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In re Children of Troy H.

Supreme Court of Maine

October 31, 2019

IN RE CHILDREN OF TROY H.

          Submitted On Briefs: October 24, 2019

          Allan Hanson, Esq., Caribou, for appellant Father

          Aaron M. Frey, Attorney General, and Zack Paakkonen, 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.

          PER CURIAM

         [¶1] 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.

         I. BACKGROUND

         [¶2] 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.[1] 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).

         [¶3] 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.[2] 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).

         II. DISCUSSION

         [¶4] 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.

         [¶5] 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).

         [¶6] 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 ...

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