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Adoption of Parker J.

Supreme Court of Maine

May 8, 2018

ADOPTION OF PARKER J.

          Argued: March 7, 2018

          Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellant Department of Health and Human Services

          Deirdre M. Smith, Esq., Carolyn Liegner, Stud. Atty., and Kurt Peterson, Stud. Atty. (orally), Cumberland Legal Aid Clinic, Portland, for appellant maternal grandmother

          Dennis L. Jones, Esq. (orally), Farmingdale, for appellees paternal grandmother and her partner Augusta District Court docket numbers FM-2016-272, 384 For Clerk Reference Only

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

          Concurrence: JABAR, J.

          ALEXANDER, J.

         [¶1] This appeal arises from an adoption proceeding in the District Court (Augusta, Nale, J.) following the termination of the parental rights of the biological parents of Parker J. During the pendency of the child protective proceeding and following the termination of parental rights, the Department of Health and Human Services placed Parker in the care of his maternal grandmother. Beginning approximately a year after the termination of parental rights, competing petitions for adoption of Parker were filed by (1) Parker's paternal grandmother, (2) Parker's maternal grandmother, and (3) Parker's maternal grandfather and his wife.

         [¶2] The competing adoption petitions were consolidated, and a hearing was held in the District Court. At the hearing,

1. Parker's paternal grandmother was represented by counsel. The same attorney also apparently represented an individual who was in a long-term relationship with Parker's paternal grandmother and who testified that he wanted to adopt Parker, although he had filed no adoption petition signifying a commitment to adoption.
2. Parker's maternal grandmother was represented by counsel. Her petition for adoption was supported by the Department, which was separately represented by an assistant attorney general who played the primary role in presenting the case supporting adoption by the maternal grandmother. The maternal grandmother and the Department are each represented by different counsel on this appeal.
3. Parker's maternal grandfather and his wife, who jointly petitioned for adoption, were unrepresented but actively participated in the hearing.

         [¶3] The court generally allowed the competing petitioners to fully present their cases and to examine opposing parties and witnesses at the hearing.

         [¶4] At the conclusion of the three-day hearing, and without taking a recess, the court announced its decision from the bench, denying the adoption petition of the maternal grandmother, denying the joint adoption petition of the maternal grandfather and his wife, and granting the adoption petition of the paternal grandmother while also granting an adoption to the partner of the paternal grandmother, although that individual had not petitioned for adoption or otherwise signaled any formal commitment to the adoption. The court requested that the prevailing party prepare a written decision consistent with the decision it had stated orally on the record.

          [¶5] When the written decision was entered, Parker was transferred to the care of the paternal grandmother and her partner. The maternal grandmother and the Department petitioned the trial court for a stay of its order pending appeal. The trial court denied the petition. Although allowable in appellate practice, no petition seeking a stay of the trial court decision pending appeal was filed with this Court. See M.R. App. P. 6(a)(4); Bangor Historic Track, Inc. v. Dep't of Agric, Food & Rural Res., 2003 ME 140, ¶¶ 9-12, 837 A.2d 129; see also Respect Me. PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010).

         [¶6] The Department and the maternal grandmother of Parker now appeal from the judgment denying the maternal grandmother's petition to adopt Parker, granting the adoption to Parker's paternal grandmother on her petition, and also granting adoption, despite the lack of any petition, to the paternal grandmother's partner. The maternal grandmother contends, among other points on appeal, that the court erred in granting an adoption to the paternal grandmother's partner.

         [¶7] Because the paternal grandmother's partner did not petition for adoption and has no formal commitment to the child or even, as conceded at oral argument, to the paternal grandmother, and because the trial court considered and decided the matter treating the paternal grandmother and her partner as if they were joint petitioners, a decision that we cannot now sever on appeal, we must vacate the judgment and remand for further proceedings.

         I. CASE HISTORY

         [¶8] The record contains the following procedural history. Parker was born drug-affected in May 2013 to his mother and father, who were not married. At the time, Parker's parents were living in housing arranged by the paternal grandmother. When he was approximately four months old, Parker's mother voluntarily placed him with her mother, Parker's maternal grandmother.

         [¶9] In December 2013, the Department filed a petition for a child protection order. The District Court [Dow, /.) granted the petition and issued an order placing Parker in the custody of the Department. Parker remained in the care of his maternal grandmother, and the Department facilitated visitation with Parker's paternal grandmother. After Parker's mother and father failed to successfully engage in reunification services, the Department petitioned for the termination of their parental rights in June 2015.

          [¶10] Two years after Parker was placed in the custody of the Department, the court [E. Walker, J.) terminated Parker's parents' rights.[1] The court continued to hold judicial review and permanency planning hearings, and Parker remained in the custody of the Department and in the care of his maternal grandmother. The relationship between the maternal grandmother and the paternal grandmother was contentious. Visitation with the paternal grandmother ceased for several months in 2016 but later resumed.

         [¶11] In August 2016, without the consent of the Department, the paternal grandmother filed a petition to adopt Parker. See 18-A M.R.S. §§ 9-301 to 9-303 (2017). Although the petition form provided space in several locations for the name of a joint petitioner, the paternal grandmother affirmatively crossed out the provided spaces, filled in her own name, or wrote "N/A at present time." Around the same time, the maternal grandmother signed an adoptive placement agreement with the Department.

         [¶12] In October 2016, the Department consented to adoption by the maternal grandmother, see 18-A M.R.S. ยง 9-302 (a) (3), and she filed a petition to adopt Parker. In March 2017, Parker's maternal grandfather and his wife filed a petition to adopt Parker. The three competing adoption petitions were consolidated for a final hearing (1) to determine whether the Department acted unreasonably by withholding consent from the paternal grandmother or from the maternal ...


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