Benjamin L. Yap v. Alyssa L. Vinton , 2016 Me. LEXIS 58 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 58
Docket: Oxf-15-373
Submitted
On Briefs: January 28, 2016
Decided: April 14, 2016
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
BENJAMIN L. YAP
v.
ALYSSA L. VINTON
PER CURIAM
[¶1] Benjamin L. Yap appeals from a judgment of the District Court
(South Paris, L. Walker, J.) granting Alyssa L. Vinton shared parental rights and
responsibilities of their child. On appeal, Yap contends that the court erred by
adopting Vinton’s proposed order verbatim and not exercising independent
judgment. We agree and vacate the judgment and remand for additional findings
of fact and conclusions of law.
I. BACKGROUND
[¶2] On August 14, 2014, Yap filed a complaint for protection from abuse
against Vinton on behalf of himself and their child. The complaint stemmed
principally from an incident that had occurred earlier that day, in which Vinton
went to Yap’s apartment, where the child was staying, and angrily banged on the
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front door, shattering the window. A temporary protection order was granted the
same day, awarding Yap temporary sole parental rights and responsibilities. On
August 19, 2014, Yap filed a complaint for a determination of parental rights and
responsibilities.
[¶3] On August 25, 2014, consistent with an agreement by the parties, the
court issued a protection from abuse order pursuant to 19-A M.R.S. § 4007 (2015).
The order provided shared parental rights and responsibilities, awarded Yap
primary residence of the child, and specified the days and times when Vinton could
have primary responsibility for the child.
[¶4] The court issued an amended protection from abuse order on
October 1, 2014, and on November 6, 2014, the court issued a second amended
protection from abuse order, mandating that Vinton undergo a substance abuse
evaluation and drug and alcohol testing. On June 4, 2015, the court held a hearing
on the complaint for a determination of parental rights and responsibilities.
[¶5] At the hearing, Yap testified that he and Vinton had dated
intermittently since 2008. After a series of breakups and reunions and moving
between Connecticut and Maine, in or about March 2013 Vinton moved into an
apartment in the same building as Yap in West Paris, Maine. Vinton and Yap
generally shared responsibility for their child, until sometime in late 2013 when
Yap began to suspect that Vinton had developed a drug habit. Yap described how
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Vinton would disappear for days and would often come into his home in the
middle of the night to sleep. In early 2014, Yap found, on multiple occasions,
what he suspected was cocaine among Vinton’s belongings.
[¶6] With regard to Vinton’s alleged drug habit, two of Vinton’s drug and
alcohol counselors testified at the hearing that, based on Vinton’s self-reported
answers concerning her past alcohol and drug habits, she had no substance abuse
problems. These negative findings were based, at least in part, on Vinton’s report
that she had not used drugs in over ten years. The court also received the guardian
ad litem’s report that noted that Vinton had successfully completed three drug
screens during the pendency of the case, and ultimately recommended shared
parental rights and responsibilities.
[¶7] The drug counselors’ opinions and conclusions, however, were
seriously undermined when Vinton testified at the hearing that she had
misrepresented her previous drug use because she was scared to lose her child and
had, in fact, used cocaine between twelve and fifteen months prior to the hearing.
Vinton testified that she does not do drugs “very often,” but that she “like[s] to
party.”
[¶8] Yap also testified that on April 24, 2014, Vinton had broken into,
robbed, and vandalized his apartment, and, in addition, placed old pictures of the
two in Yap’s living room. Yap contended that Vinton admitted that she broke into
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his apartment, but when Vinton was asked about this incident at the hearing she
asserted her Fifth Amendment rights. Yap also described receiving multiple death
threats from Vinton. Vinton confirmed that she had made death threats but she
denied any actual intent to physically harm either Yap or the child. Yap also
alleged that in August 2014, Vinton broke Yap’s window by banging on the door
after she had “lost [her] temper,” for which Vinton entered a guilty plea to a charge
of criminal mischief. Notwithstanding their turbulent history, Yap stated that he
believed Vinton should have one overnight per week with the child and shared
parental rights and responsibilities. At the conclusion of the hearing, the court took
the matter under advisement without announcing a decision or findings from the
bench. Vinton submitted a proposed order for the court’s consideration.
[¶9] On June 29, 2015, the court adopted, in its entirety and with the one
change noted below, Vinton’s proposed parental rights order and findings of fact
and conclusions of law, granting her at least three overnight visits with the child
per week and shared parental rights and responsibilities. The only modification the
court made to Vinton’s proposed order and findings was to obscure the word
“PROPOSED” in the title of the order with white-out-style correction tape or fluid
so the remaining visible portion of the text read: DEFENDANT’S ORDER OF
PARENTAL RIGHTS AND RESPONSIBILITIES. Yap appealed, arguing,
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inter alia, that the judge failed to exercise independent judgment by adopting the
language of Vinton’s proposed order verbatim.1
II. DISCUSSION
[¶10] “[A] trial court’s verbatim adoption of findings or orders proposed by
one party in a case is disfavored, as such an approach suggests that the court has
not carefully reviewed the evidence or applied its independent judgment in making
its findings and conclusions.” Estate of Colburn, 2006 ME 125, ¶ 11, 909 A.2d
214 (quotation marks omitted). “[A] key question on review, when draft orders are
adopted without change or with little material change, will be whether the findings
and order reflect the application of judgment by the court and not simply one of the
parties.” Id. (alteration in original) (quotation marks omitted). Id. “If the
proposed findings are argumentative or insufficiently objective because they are
drafted by a party, a judgment adopting those findings may be defective.” In re
C.P., 2016 ME 18, ¶ 19, --- A.3d ---.
[¶11] We recently addressed a parent’s contention that a court’s verbatim
adoption of a proposed order did not reflect the court’s independent judgment. In
In re C.P., the court elicited two proposed orders from an assistant attorney
1
We note that Yap failed to file a motion for further findings or for reconsideration, which would
have afforded the court an opportunity to address his concerns prior to the filing of an appeal. For future
guidance, we announce that appeals challenging orders based upon an alleged lack of independent
judgment by a judge should be preceded by an appropriate motion that identifies the issue and allows the
trial judge an opportunity to address those concerns prior to appellate review.
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general—one granting a termination of parental rights petition and another denying
the petition—without affording either parents’ counsel an opportunity to submit
proposals. Id. ¶¶ 9, 11. The court adopted without change the proposed order
terminating the parental rights of both parents, and “[t]he judge who issued the
order left the bench through a planned resignation, effective the next day.” Id. ¶
10. The father subsequently moved for amended or additional findings, and the
court, through a successor judge, granted the motion. Id. ¶¶ 11-12. The successor
judge thoroughly reviewed and carefully analyzed the entire record resulting in
extensive additional findings, and ultimately affirmed the decision to terminate
both parents’ parental rights. Id. ¶¶ 12, 23.
[¶12] The parents appealed, challenging the initial entry of a proposed order
verbatim as violative of their procedural due process rights. Id. ¶¶ 16-17. We held
that, although the process was not ideal, the order was nonetheless reflective of the
court’s independent judgment for several reasons. Id. ¶ 22. First, the focal point of
the trial was not parental unfitness given that the mother failed to even attend the
trial and the father conceded his unfitness; rather, the primary focus was whether
the children would be placed in a permanency guardianship with the children’s
grandparents, as opposed to being freed for adoption as a result of an order
terminating the parental rights of the children’s parents. Id. ¶¶ 1, 22. Second, we
concluded that “the findings ultimately entered by the court, even if drafted by one
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party, [were] fully supported in the record.” Id. ¶ 22. Finally, any potential
prejudice that could have arisen was minimized by the successor judge’s careful
and thorough review of the record memorialized by extensive, additional findings.
Id. ¶¶ 12, 23.
[¶13] The factors that led us to conclude that the court in In re C.P. had
exercised its independent judgment, however, are absent from this case. Most
notably, unlike in In re C.P., a number of the court’s findings here resemble a
party’s advocacy and are not clearly supported by evidence in the record. For
instance, in finding #8, the court stated that
[Yap] testified that in April 2014, [Vinton] “broke into his house.”
The [c]ourt notes at the time of the alleged “break-in” the parties lived
in the same building and regularly were in each other’s apartments,
both with permission and without. Additionally, the alleged
“break-in” occurred in the context of their relationship ending.
Regardless of the [sic] whether this occurred or occurred in the
manner [Yap] testified, it is unclear whether [the child] was present
for this incident. In any event, this incident would only be relevant to
the [c]ourt’s decision if [Vinton] were unavailable for some period of
time to take care of the child. If the child was in her care at the time
of the alleged incident, he was asleep just upstairs.
[¶14] Contrary to the court’s findings, there is no clear evidence in the
record that Yap and Vinton were in and out of each other’s apartments at will; and
even if Vinton was lawfully in Yap’s apartment, that would not justify the alleged
acts of vandalism and robbery that Yap contended occurred. To that end, the court
makes no mention of either accepting or rejecting Yap’s contentions that some of
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his possessions were missing or broken, nor does it draw any inference from
Vinton’s invocation of her Fifth Amendment rights when she was asked about that
incident at the hearing. Additionally, with regard to the relevance of the incident,
it is unclear how the context of the relationship ending has any bearing on the
incident, and alleged criminal conduct would not “only be relevant” if it resulted in
Vinton’s “unavailab[ility]”—presumably meaning an incarceration.
[¶15] Another finding that is not adequately supported by the record is
finding #18 which stated, in pertinent part, that “[t]his court agrees with the [GAL]
and [Vinton’s] counselor that [Yap] has used the current contact schedule as a tool
to assert power and control over [Vinton] and her time with [the child].” Although
the GAL testified that Vinton has “been marginalized in her role” as a result of the
protection from abuse order, the GAL did not state that Yap had used the contact
schedule—which Vinton agreed to—as “a tool to assert power and control.” The
court fails to identify, furthermore, how Yap could have been more compromising
in light of the agreed-upon contact schedule outlined in the second amended
protection from abuse order, which provides the following directive: “Warning to
[Vinton]: as long as this order is in effect, you must obey it. No one, including
[Yap], can give you permission to violate the provisions of this order.”2
2
The all-uppercase typeface is omitted.
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[¶16] A number of the trial court’s findings either resemble a party’s
advocacy or are not clearly supported in the record, and the court’s error in this
respect is compounded by the failure to make any additional, independent findings.
As a result, we cannot conclude that the findings were the result of careful judicial
deliberation and the exercise of independent judgment.
The entry is:
Judgment vacated. Remanded for additional
findings of fact and conclusions of law.
On the briefs:
Matthew Govan, Esq., Govan Law Office, P.A., Portland, for
appellant Benjamin L. Yap
Alyssa L. Vinton did not file a brief
South Paris District Court docket number FM-2014-105
FOR CLERK REFERENCE ONLY