Submitted On Briefs: October 24, 2019
Hanson, Esq., Caribou, for appellant Father
M. Frey, Attorney General, and Zack Paakkonen, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee
Department of Health and Human Services
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Troy H. appeals from a judgment entered by the District Court
(Presque Isle, Nelson, J.) finding that two of his
children are in circumstances of jeopardy pursuant to 22
M.R.S. § 4035(2) (2018) and that returning those
children to his custody is likely to cause them serious
emotional or physical damage pursuant to the Indian Child
Welfare Act (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS
through Pub. L. No. 116-65). He contends that the court's
factual findings do not support its determination that the
children are in jeopardy. We affirm the judgment.
In November of 2018, the Department of Health and Human
Services filed a petition for a child protection order and
preliminary protection order for the two children, who were
then fourteen and sixteen years old. The petition alleged that
the children were at risk due to the emotional instability
and homelessness of their father-who had sole custody at that
time pursuant to a Florida child protection order-which
caused him to neglect the children's health and safety.
The court entered a preliminary protection order that day,
placing the children in the Department's custody. The
father waived the opportunity for a summary preliminary
hearing, and he consented to their foster placement pursuant
to ICWA. See 25 U.S.C.S. § 1915(a), (c); 22
M.R.S. §4034(4) (2018).
The court conducted a contested jeopardy hearing in January
and March of 2019. Based on the evidence presented at the
hearing, by order dated April 11, 2019, the court determined
by clear and convincing evidence that the children were in
jeopardy to their health or welfare due to physical and
emotional abuse and that returning the children to the
father's custody would likely result in serious emotional
or physical damage to the children. See 25 U.S.C.S.
§ 1912(e); 22 M.R.S. §§ 4002(6), 4035(2)
(2018). The father timely appealed. See 22 M.R.S.
§ 4006 (2018); M.R. App. P. 2B(c)(1).
We note initially that Maine law and federal law apply
concurrently to this proceeding, resulting in a "dual
burden of proof." In re Denice F., 658 A.2d
1070, 1072 (Me. 1995). Pursuant to ICWA, the Department was
required to 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). Maine law, however, requires that the Department
prove by a preponderance of the evidence that the children
are in circumstances of jeopardy, which includes the
"threat of serious harm." 22 M.R.S. §§
4002(6)(A), 4035(2); In re Danielle K, 2019 ME 134,
¶ 2, 215 A.3d 217.
The father does not purport to dispute any of the court's
underlying factual findings, but instead asserts that those
facts do not support the court's conclusion that the
children are in circumstances of jeopardy pursuant to the
Maine statute. 22 M.R.S. § 4035(2). We review the
court's factual findings for clear error and will affirm
its jeopardy determination pursuant to section 4035(2)
"unless there is no competent record evidence that can
rationally be understood to establish as more likely than not
that the child was in circumstances of jeopardy to his or her
health and welfare." In re Nicholas S., 2016 ME
82, ¶ 9, 140A.3d 1226 (alterations omitted) (quotation
marks omitted); see also In re Chelsey B., 499 A.2d
137, 139 (Me. 1985).
The court made the following findings of fact, all of which
are supported by competent evidence in the record.
[Soon after moving to Maine in the summer of 2017, the
father] would respond or react to [the older child] in a
physical manner. ... On or about January 21, 2018, after a
physical altercation with [the father, the older child] was
taken to the hospital and then placed in [a crisis unit]....
The incident started with arguing, then [the older child]
kicked or put his foot on his father's chair. [The
father] pulled [the older child] by his hair down the hallway
and put him in his room. . . . Upon leaving the crisis unit,
[the older child] was supposed to have ...