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Guardianship of Donovan C.

Supreme Court of Maine

July 23, 2019

GUARDIANSHIP OF DONOVAN C.

          Argued: June 11, 2019

          Sarah Irving Gilbert, Esq. (orally), Camden Law LLP, Camden, for appellant father

          Hesper D. Schleiderer-Hardy, Esq., and Ellsworth T. Rundlett, III, Esq. (orally), Childs, Rundlett & Altshuler, Portland, for appellee maternal aunt

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

          JABAR, J.

         [¶1] The father of Donovan C. appeals from a judgment of the Cumberland County Probate Court [Mazziotti, J.) appointing the child's maternal aunt as his full guardian. The father contends that the court erred by finding that the father abandoned the child and that it abused its discretion by appointing the maternal aunt as a full guardian and by not providing adequate transitional arrangements. We disagree and affirm the judgment of the Probate Court.

         I. BACKGROUND

         [¶2] The following facts stem from the Probate Court's findings and procedural record, and are supported by competent record evidence. See Guardianship of Patricia S., 2019 ME 23, ¶ 2, 202 A.3d 532.

         [¶3] The child was born in December 2007 and was raised by his mother, his maternal grandparents, and his maternal aunt and her husband. The father did not support, care for, or have any contact with the child while the mother and her family were raising the child. The father was incarcerated in 2008 and in 2009, and is a lifetime registrant as a sex offender. In 2010, the District Court (Portland, Oram, J.) entered a paternity order that included a schedule of parental rights and responsibilities. That order granted the mother sole parental rights and required the father to pay weekly child support. In addition, the father was ordered to pay child support arrearages.

         [¶4] The mother died on December 13, 2016. Following the mother's death, the maternal grandmother notified the father, who responded by indicating that he would take care of the child. The father applied for and received approximately $6, 000 as the child's Social Security survivor benefits. On December 21, 2016, the maternal grandfather and maternal aunt filed a petition to be appointed as the child's co-guardians. The petition was granted and the maternal grandfather and maternal aunt were appointed as the temporary guardians of the child on December 27, 2016. See 18-A M.R.S. § 5-207(c) (2018).[1] The father filed an opposition to the petition and appointment. On June 28, 2017, the child's paternal grandparents also filed a guardianship petition. While these petitions were pending, the child lived initially with the maternal grandfather and then transitioned into the home of the maternal aunt.

         [¶5] By agreement of the parties, the Probate Court entered an interim order on November 29, 2017, establishing weekly telephone contact between the child and his father, and visitation every other Saturday between the child and his paternal grandparents. Although the father engaged in weekly telephone contact with the child, two expert witnesses opined that the phone calls caused the child a significant amount of anxiety.[2]

         [¶6] In July, August, and October 2018, the Probate Court held a three-day hearing on the two competing guardianship petitions.[3] In a judgment dated December 12, 2018, the Probate Court found by clear and convincing evidence that the father had abandoned the child and that it was in the best interest of the child for the maternal aunt to be appointed as his guardian. In its order, the Probate Court expressly terminated the contact schedule in the interim order, but allowed the weekly telephone contact between the father and the child to continue, and also provided that, if the child expressed a desire to have additional contact with the father, the court would consider modifying the guardianship.

         [¶7] The father filed this timely appeal. 18-A M.R.S. § 1-308 ...


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