In re Child of Whitney M. , 2020 ME 29 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 29Docket: Cum-19-410
Submitted
On Briefs: February 26, 2020
Decided: March 5, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
IN RE CHILD OF WHITNEY M.
PER CURIAM
[¶1] Whitney M. appeals from a judgment entered by the District Court
(Bridgton, Powers, J.) finding that her child is in circumstances of jeopardy
pursuant to 22 M.R.S. §§ 4002(6), 4035(2) (2018), and ordering that the child
remain in the custody of the Department of Health and Human Services. She
contends that the evidence was insufficient to support the court’s
determination that the child is in jeopardy. We affirm the judgment.
[¶2] In May of 2019, the Department filed a petition for a child
protection order and preliminary protection order for the child, who was then
six years old. The petition alleged that the child’s father—who had, just a few
days earlier, been granted temporary sole parental rights and responsibilities
pursuant to a temporary protection from abuse order he had obtained against
the child’s mother—had been hospitalized and was currently unable to care
for the child. The petition stated that the child was at risk due to the
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substance abuse and physical violence of the mother, who was also prevented
from having any contact with the child pursuant to the temporary protection
order.1 The court (Dobson, J.) entered a preliminary protection order that day,
placing the child in the Department’s custody. The mother waived the
opportunity for a summary preliminary hearing. See 22 M.R.S. § 4034(4)
(2018).
[¶3] The court (Powers, J.) conducted a contested hearing in August of
2019.2 Based on the evidence at the hearing, by order dated September 20,
2019, the court determined that the child was in circumstances of jeopardy
due to the threat of abuse or neglect. See 22 M.R.S. § 4002(1), (6) (2018). The
mother timely appealed. See 22 M.R.S. § 4006 (2018); M.R. App. P. 2B(c)(1).
[¶4] The mother challenges the sufficiency of the evidence to support
the court’s finding, by a preponderance of the evidence, that the child is in
circumstances of jeopardy. We review the court’s factual findings for clear
error and will affirm its jeopardy determination “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
1 The temporary protection order against the mother lapsed in June of 2019.
2On the day of the hearing, the court entered an agreed-to jeopardy order as to the father; he
does not appeal from that order.
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and welfare.” In re Nicholas S., 2016 ME 82, ¶ 9, 140 A.3d 1226 (alteration
omitted) (quotation marks omitted).
[¶5] The court made the following findings of fact, which are supported
by competent record evidence.
The child’s father obtained a temporary protection from
abuse order for the child against his mother [in May of 2019] . . . .
The order was based on an altercation . . . involving the mother
apparently pulling [the child] out of a car which placed [the child]
in danger. . . .
....
The mother has been charged with domestic violence three
times [between] 2010 to 2018 . . . . She is still on . . . probation . . . .
She tested positive for THC and suboxone in late June 2019. She
also presented two pharmacies with altered prescriptions for
suboxone which led to her termination from substance use
counseling. She continues to need such counseling, which is
required by probation. She also tested positive for cocaine this
summer. . . . She has a conviction for unlawful possession of drugs
in 2016. She agrees her substance use contributed to the
domestic violence issues.
....
[The mother has a] significant history of domestic violence
against men in her life, often with her child present or nearby, [a]
history of partially treated illegal substance use, [a] lack of
understanding of all [the child’s] needs, and . . . uncertain housing.
[¶6] Contrary to the mother’s contentions, the court did not err in
crediting the testimony of the child’s father and the mother’s former
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substance abuse counselor over the mother’s. See In re Child of Dawn B., 2019
ME 93, ¶ 10, 210 A.3d 169 (“[T]he assessment of the weight and credibility of
the evidence [is] for the trial court alone.”). Taken together, the court’s
supported factual findings are sufficient to support its determination that the
child would be “subject to a threat of serious harm[] if [he were] returned to
the custody of [the mother].” In re Nicholas S., 2016 ME 82, ¶ 11, 140 A.3d
1226 (quotation marks omitted); see 22 M.R.S. § 4002(6).
The entry is:
Judgment affirmed.
Stephen H. Shea, Esq., Fairfield & Associates, P.A., Portland, for appellant
mother
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
Thaddeus V. Day, Esq., Law Offices of Thaddeus V. Day, PLLC, Cumberland
Center, for appellee father
Bridgton District Court docket number PC-2019-13
FOR CLERK REFERENCE ONLY