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In re Children of Danielle H.

Supreme Court of Maine

August 15, 2019

IN RE CHILDREN OF DANIELLE H.

          Submitted On Briefs: July 18, 2019

          James M. Dunleavy, Esq., Currier & Trask, P.A., Presque Isle, for appellant mother

          Michele D.L. Kenney, Esq., Bloomer Russell Beaupain, Houlton, for appellant father

          Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

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

          PER CURIAM

         [¶1] Danielle H. and Matthew T. appeal from a judgment entered by the District Court (Houlton, Larson, J.) finding by clear and convincing evidence that their four children were in circumstances of jeopardy as to each parent and that continued custody of the children by either parent was likely to cause them serious emotional or physical damage. Each parent contends that (1) the court abused its discretion in relying on out-of-court statements made by the children; (2) the evidence was insufficient to support the court's required factual findings under state and federal law; and (3) the evidence did not support the court's dispositional order. We address the parents' contentions in turn and affirm the judgment.

         A. Indian Child Welfare Act

         [¶2] As an initial matter, we note that the children, affiliated through their mother with the Houlton Band of Maliseet Indians, are Indian children within the meaning of the federal Indian Child Welfare Act (ICWA). See 25 U.S.C.S. § 1903(4) (LEXIS through Pub. L. No. 116-39); In re Child of Radience K., 2019 ME 73, ¶ 3 n.l, 208 A.3d 380. Accordingly, the Department was required as a matter of Maine law to prove by a preponderance of the evidence that the children were in circumstances of jeopardy as to each parent, 22 M.R.S. § 4035(2) (2018), and required as a matter of federal law to further prove by clear and convincing evidence "that the continued custody of the child[ren] by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child[ren]," 25 U.S.C.S. § 1912(e) (LEXIS through Pub. L. No. 116-39). See In re Child of Radience K., 2019 ME 73, ¶ 22, 208A, 3d 380; In re Denice ¶., 658 A.2d 1070, 1072 (Me. 1995) (recognizing that in a child protection case, "The state grounds . . . [are] unaffected by the ICWA [and] provide a supplemental degree of protection to parents facing a [child protection] petition .... A dual burden of proof-one federal, one state-thus exists in cases involving ... an Indian child.").

         [¶3] Here the District Court made all of its factual findings by the higher standard of proof by clear and convincing evidence. Furthermore, the court found, and the record demonstrates, that the Department and the Band worked together in a cooperative and collaborative way throughout this case, and that the Band participated fully in the court proceedings. Specifically, the Band's ICWA director was involved in the Department's management of the case from the outset; the court promptly granted the Band's motion to intervene after the Department filed a child protection petition; the Band was represented by its independent counsel at the jeopardy hearing; and the children were placed with appropriate ICWA-compliant custodians. Indicative of the Band's integral role, we note that it joined in the Department's written closing argument in the trial court and has adopted the brief filed by the Department in this appeal.

         B. Children's Out-of-Court Statements

         [¶4] Prior to the jeopardy hearing, the mother, joined by the father, moved in limine to exclude from evidence any hearsay statements by the children. The court denied the motion and the children did not testify at the hearing. As set out in section (C) of this opinion, the court relied on their out-of-court statements in making the factual findings that ultimately resulted in its jeopardy determination. Each parent contends that the court's reliance on the children's hearsay statements violated their fundamental constitutional rights, including their right to due process. See In re Child of Radience K., 2019 ME 73, ¶ 20, 208 A.3d 380.

         [¶5] In child protection cases the Legislature has abrogated the rule of evidence that ordinarily renders hearsay inadmissible. See M.R. Evid. 802 ("Hearsay is not admissible unless any of the following provides otherwise:... [a] statute."). By statute, "The court may admit and consider oral or written evidence of out-of-court statements made by a child, and may rely on that evidence to the extent of its probative value." 22 M.R.S. § 4007(2) (2018). See In re Paige L., 2017 ME 97, ¶ 30, 162 A.3d 217 ("Title 22 allows a court to admit child hearsay evidence in a jeopardy hearing"); In re Kayla S., 2001 ME 79, ¶¶ 7-8, 772 A.2d 858 ("Section 4007 ... abrogates the hearsay rule as it applies to out-of-court statements made by children . . . [and] provides for the admissibility of a child's statement made outside of the court without the necessity of forcing the child to testify in the stressful environment of a contested hearing.").

         [¶6] Contrary to the parents' assertions, although we recognize their "fundamental liberty interest to direct the care, custody, and control of their children," Banks v. Leary,2019 ME 89, ¶ 13, 209 A.3d 109 (quotation marks omitted), "[w]e have held that the introduction of evidence pursuant to 22 M.R.S. § 4007(2) . .. does not violate due process," In re M.B.,2013 ...


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