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In re Child of Nicholas G.

Supreme Court of Maine

January 24, 2019

IN RE CHILD OF NICHOLAS G.[1]

          Submitted On Briefs: January 17, 2019

          James P. Howaniec, Esq., Lewiston, for appellant father

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

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

          GORMAN, J.

         [¶1] Nicholas G. appeals from a family matter judgment entered in the District Court (Biddeford, Dhscoll, J.) after a judicial review hearing in a child protection matter. The court dismissed the child protection matter without prejudice, opened a family matter, and entered an order in that family matter that conferred sole parental rights and responsibilities for the child on the child's mother and denied rights of contact to the father, who had been convicted of multiple sex crimes against a child and of possession of sexually explicit materials depicting children. We dismiss the appeal from the child protection matter and affirm the judgment entered in the family matter.[1]

         I. BACKGROUND

         [¶2] The facts are drawn from the procedural record and from the court's findings, which are supported by competent evidence in the record. See 22 M.R.S. § 4036(1-A) (2017); Vibert v. Dimoulas, 2017 ME 62, ¶ 15, 159 A.3d 325. The child was born in May of 2003. The Department of Health and Human Services petitioned for a child protection order and preliminary protection order in October of 2003 based on serious domestic violence by the father against the mother and her sister. The court [Foster, J.) signed an order of preliminary protection on October 2, 2003, placing the child in the custody of the Department.

         [¶3] The court (Janelle, J.) ordered a trial placement of the child with her maternal grandparents, and in 2004, the court [Foster, J.) held a hearing and found that the child was in circumstances of jeopardy with each of her parents. See 22 M.R.S. § 4035 (2017). In July of 2006, the court entered an agreed-upon order granting custody to the maternal grandparents and ordering that parental reunification efforts cease and judicial reviews be held only upon motion. See 22 M.R.S. § 4038(1-A)(A) (2017).

         [¶4] A year later, the father moved for judicial review, seeking visitation rights. In December of 2007, the court [Mulhern, J.) held an evidentiary hearing and ordered that any visits with the father be supervised.

         [¶5] In April of 2012, during a time of inactivity in the child protection matter, the father was convicted of unlawful sexual contact (Class A), 17-AM.R.S. § 255-A(1)(F-1) (2017), sexual exploitation of a minor under age twelve (Class A), 17-A M.R.S. §282(1)(C) (2010), [2] visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B) (2017), and sixty-five counts of possession of explicit material of a minor under age twelve (Class C), 17-A M.R.S. § 284(1)(C) (2010).[3] The father committed the first three charged crimes against a four-year-old girl whom he babysat one night.

         [¶6] Four years after his convictions, in March of 2016, the father moved for the appointment of counsel and for judicial review in the child protection matter. The court [Foster, J.) appointed new counsel and a new guardian ad litem. Five months later, the father's counsel moved to withdraw on the grounds that the father and counsel could not agree on how to proceed and that the father had asked that he withdraw. The court granted the motion and appointed new counsel that September. When the court held a case management conference in anticipation of judicial review in April of 2017, the father requested that his recently appointed counsel withdraw and new counsel be appointed. The court granted the motion, though it "could find no fault with the representation [counsel] had provided."

         [¶7] A judicial review hearing was scheduled for July 9, 2018. Just before that hearing, on June 22, 2018, the father's counsel moved to withdraw on the grounds that the attorney-client relationship had broken down and that the father was seeking other counsel. The court [Duddy, J.), noting a pattern of the father delaying the process through his multiple requests for new counsel, denied counsel's motion to withdraw on June 25, 2018.

         [¶8] The father, in a pro se pleading, moved to continue the hearing and to appear by video. As grounds for the motion to appear by video, he asserted that the county jail to which he would have been transported refused to dispense necessary medication and make "disability accommodations," though he offered no description of what specific medication and accommodations he would ...


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