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In re Child of Nicholas P.

Supreme Court of Maine

October 22, 2019

IN RE CHILD OF NICHOLAS P.

          Submitted on Briefs: June 26, 2019 and September 10, 2019

          Scott M. Houde, Esq., Biddeford, for appellant father

          Aaron M. Frey, Attorney General, and Meghan Szylvian, 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, HJELM, and HUMPHREY, JJ.

          HJELM, J.

[¶1] In this consolidated opinion, we consider two appeals advanced by Nicholas P. in a child protection proceeding in the District Court (Biddeford) involving his child. In the first appeal, the father challenges the court's [Sutton, J.) entry of a jeopardy order against him on grounds that his parentage had not yet been established and that the evidence was insufficient to support the court's finding of an aggravating factor. In the second appeal, the father asserts that the court [Duddy, J.) erred by later entering an order, based on genetic test results but without conducting an evidentiary hearing, adjudicating that he is the child's father. We affirm both decisions.

         I. BACKGROUND

         [¶2] The Department of Health and Human Services initiated this child protection proceeding in May of 2018, alleging that the father had neglected the child and exposed the child to violence, had been convicted of assaulting the mother when she was pregnant with the child, had been substantiated for abusing another child, and had refused to participate in a risk assessment or any treatment for his history of abuse and neglect.[1] See 22 M.R.S. §4032 (2018). The Department did not initially seek a preliminary protection order[2]but did so a month after filing its initial petition. See 22 M.R.S. § 4034(1) (2018). The court [Duddy, J.) then entered a preliminary protection order placing the child in departmental custody and temporarily relieving the Department of its obligation to furnish rehabilitation and reunification services to the father because of an aggravating factor arising from the father's abuse of the other child.[3] See 22 M.R.S. §§ 4002(l-B)(A), 4034(2), (4), 4036(1)(G-2), 4041(2)(A-2)(1) (2018).

         [¶3] At the summary preliminary hearing held in August of 2018, the father did not challenge the award of custody of the child to the Department but stated to the court that "the purpose of this trial, quite candidly, is to prevent the cease [reunification] from happening." While testifying during the hearing, the father was asked, "[Y]ou're the father of [this child]?" and the father responded, "Yes." In the resulting order, the court maintained the Department's custody of the child but found that the Department failed to establish the existence of an aggravating factor. Accordingly, the court discontinued the cease reunification provision that was contained in the preliminary protection order and instead required that "[Reunification will move forward for the father."

         [¶4] Two months later, in October of 2018, the court [Sutton, J.) commenced a contested jeopardy hearing on the Department's child protection petition. See 22 M.R.S. § 4035 (2018). Prior to the hearing, the court [Moskowitz, J.) had entered a case management order indicating that there were "[n]o paternity issues" in the matter.[4] The father did not object to the order. Nonetheless, on the morning of the first day of the hearing, the father asserted-for the first time-that the court lacked "subject matter jurisdiction" to determine jeopardy because his parentage had not been established in accordance with the Maine Parentage Act (MPA), 19-A M.R.S. §§ 1831-1939 (2018). The father requested that the court continue the jeopardy proceeding pending a determination of his parentage. Despite this new position, the father also explicitly took the paradoxical stance that the court should not disturb the summary preliminary order and that the Department should be required to continue providing him reunification services as the child's parent.

         [¶5] The court [Sutton, J.) sharply rejected the father's argument and denied his request for a continuance. The court characterized the father's argument as "disingenuous" and "nothing more [than] a delay tactic" given that the father had not previously raised the issue of parentage and had, at the summary preliminary hearing, "argu[ed] strenuously against a cease reunification order to a child [whom] he now says he's not the father of or may not be the father of." The court then proceeded to conduct a three-day jeopardy hearing.

         [¶6] Based on competent evidence presented at the jeopardy hearing, the court found, by a preponderance of the evidence, that "[the father] is the child's biological father" and that the child is in circumstances of jeopardy to his health or welfare based on the father's abuse of both the mother and the other child. See 22 M.R.S. §§ 4002(6)(A), (10), 4035(2) (2018). The court further found, by a preponderance of the evidence, that the father's abuse of the other child constituted an aggravating factor and, on that basis, again entered a cease reunification order. See id. §§ 4002(l-B)(A)(1), 4036(1)(G-2), 4O4l(2)(A-2)(1).

         [¶7] Soon after, the guardian ad litem moved for an order of genetic testing of the father and the child. The court (Cantara, J.) granted the motion.[5]See 19-A M.R.S. § 1911; 22 M.R.S. §§ 4005-F, 4036(2-A) (2018). Before the genetic testing was conducted, the father filed the first appeal in this matter (the jeopardy appeal), arguing to us that the court erred by adjudicating the issue of jeopardy before his parentage had been established and also challenging the court's finding of an aggravating factor. See 22 M.R.S. § 4006 (2018).

         [¶8] While the jeopardy appeal was pending, the Department filed a motion with the trial court seeking an adjudication that the father is, in fact, the child's biological parent. See 19-A M.R.S. §§ 1851(6), 1904(2), 1915. In support of its motion, the Department submitted a report of the results of the genetic testing the court had previously ordered. The genetic test results revealed, to a 99.99% probability, that the father is the child's biological parent. The Department also filed with us a motion to allow the trial court to act on its motion notwithstanding the pending appeal. See M.R. App. P. 3(d). We granted the Department's motion to allow the trial court to act, and the court [Duddy, J.) issued an order, based on the genetic test results that had been filed by the Department, adjudicating that the father is a biological parent of the child. The court did not conduct a hearing before adjudicating the father's parentage. The father then instituted a second appeal, challenging the parentage adjudication (the parentage appeal).

         [¶9] We address both appeals.

         II. DISCUSSION

         A. Parentage Determination: Judicial Estoppel

         [¶10] In the jeopardy appeal, the father challenges the court's jeopardy order primarily on the ground that the court was required to adjudicate that he is a parent of the child before it could consider whether he presents circumstances of jeopardy to the child.[6]

          [¶11] We note initially that the father has erroneously framed this argument as one that concerns the court's subject matter jurisdiction. "Jurisdiction" is a concept reserved for "delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicative authority." Landmark Realty v. Leasure, 2004 ME 85, ¶ 7, 853 A.2d 749 (quotation marks omitted). Subject matter jurisdiction in particular "refers to the power of a particular court to hear the type of case that is then before it." Jensen v. Jensen, 2015 ME 105, ¶ 11, 121 A.3d 809 (quotation marks omitted). The power of the District Court to adjudicate a child protection matter is indisputable. See 22 M.R.S. § 4031(1)(A) (2018) ("The District Court has jurisdiction over child protection proceedings . . . ."); In re Austin T., 2006 ME 28, ¶ 7, 898 A.2d 946; see also Adoption of M.A., 2007 ME 123, ¶¶ 6-7, 930 A.2d 1088 (concluding that the Probate Court's subject matter jurisdiction was not affected by the asserted procedural issues).

          [¶12] Instead, what the father actually argues-although it is not entirely clear-is that the court lacked authority, as a matter of law, to consider jeopardy as to him in the absence of a prior parentage adjudication; or that the court's finding in the jeopardy order itself that he is the child's parent is not supported, as a matter of fact, by sufficient record evidence; or both. See In re Children of Shirley T., 2019 ME 1, ¶ 19 n.9, 199 A.3d 221 (stating that we review the court's underlying factual findings for clear error and address issues of law de novo); see also 22 M.R.S. § 4002(7) (2018) (defining a "[p]arent" as "a natural or adoptive parent or a parent established under [the MPA], unless parental rights have been terminated").

         [¶13] Neither argument is persuasive.

         [¶14] First, the child protection statutes make clear that jeopardy proceedings are not dependent on parentage status, [7] and the father has offered no authority-from the child protection statutes or elsewhere-to support his contention that an affirmative adjudication of parentage (or other relevant nonparent status) is necessary before a court may undertake the jeopardy proceedings. Rather, a determination that the person is someone against whom the court may issue a jeopardy order may be based on evidence presented at the jeopardy hearing itself. See 22 M.R.S. § 4035(1), (2)(A), (B) (providing that the court "shall make a fresh determination of the question of jeopardy" based on evidence admitted at the jeopardy hearing and "shall make findings of fact on the record upon which the jeopardy determination is made").

         [¶15] As to the court's finding in the jeopardy order that the father is the child's parent, the court concluded, in essence, that the father was judicially estopped from asserting that he is not the child's parent or insisting that the Department prove his parentage. The court's conclusion was correct.

         [¶16] Judicial estoppel applies when

(1) the position asserted in the subsequent legal action [is] clearly inconsistent with a previous position asserted; (2) the party in the previous action [has] successfully convinced the court to accept the inconsistent position; and (3) the party [has] gain[ed] an unfair advantage as a result of [his or her] change of position in the subsequent action.

Linnehan Leasing v. State Tax Assessor, 2006 ME 33, ¶ 25, 898 A.2d 408. The doctrine rests on the principle that, after a party successfully asserts one position during a legal proceeding, that party is barred from asserting a contrary position at a later stage of the proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001). In this way, judicial estoppel "prohibit[s] parties from deliberately changing positions according to the exigencies of the moment." Id. at 750 (quotation marks omitted); see Me. Educ. Ass'n v. Me. Cmty. Coll. Sys. Bd. of Trs., 2007 ME 70, ¶¶ 16-17, 923 A.2d 914.

         [¶17] Throughout the proceedings leading up to the jeopardy determination, the father consistently and explicitly maintained that he is the child's father, and he sought and sometimes obtained relief in the form of rehabilitation and reunification services based solely on his status as the child's ...


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