Guardianship of Zacharia Hartley Stevens , 2014 Me. LEXIS 28 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 25
Docket: Pen-12-537
Argued: November 21, 2013
Decided: February 18, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
JJ.
GUARDIANSHIP OF ZACHARIA HARTLEY STEVENS
LEVY, J.
[¶1] This appeal causes us to consider the scope of the Probate Court’s
discretion regarding transitional arrangements to reunite a child under a
guardianship with his biological parent. Kristy Lynn Bouchard Hill appeals from a
judgment entered in the Penobscot County Probate Court (Woodcock, J.) denying
her petition to terminate the guardianship of her son, Zacharia. Because we
conclude that the court erred in denying Hill’s petition without providing for
transitional arrangements to restore Zacharia to Hill’s custody, we vacate the
judgment.
I. BACKGROUND
[¶2] Zacharia was born to Kristy Hill and Benjamin Stevens in January
2009.1 Hill was transient at the time of Zacharia’s birth, and Zacharia soon came
to live with Linda and Gordon Walls, Hill’s grandparents. The Wallses became
1
Benjamin Stevens is not a party to this appeal.
2
temporary guardians of Zacharia in May 2009, and Zacharia has resided with them
ever since. Hill saw Zacharia infrequently during the first year of his life, and in
March 2010, with Hill’s consent, the court appointed the Wallses as full guardians
and granted Hill visitation rights. Hill did not see Zacharia from about April of
2010 until February of 2011, when she filed a petition to terminate the
guardianship.
[¶3] After Hill petitioned to terminate the guardianship, a guardian ad litem
(GAL) was appointed and ultimately submitted three reports to the court regarding
Hill’s petition.2 The first report, issued in June 2011, concluded that Hill was unfit
to regain custody of Zacharia due to her inappropriate parenting methods, her lying
to the GAL, and her continued contact with her mother, who had been living with a
convicted sex offender. The GAL expressed concern about Hill’s “ability to keep
Zacharia safe . . . and about her ability in general to parent Zacharia.”
[¶4] Following the submission of her first report, the GAL provided a set of
recommendations for Hill, including substance abuse and mental health
counseling, parenting classes, and regular supervised visits with Zacharia. The
GAL’s second and third reports, submitted in March and October of 2012, detailed
Hill’s full compliance with the recommendations and the positive steps Hill had
2
The GAL’s reports also refer to a petition for adoption and termination of parental rights filed by the
Wallses in 2011 that is not at issue in this appeal.
3
taken to prepare for reunification with Zacharia. In spite of Hill’s efforts and the
GAL’s recommendation that her visits with Zacharia be increased, the reports
noted that the Wallses had “stonewalled” Hill’s attempts at reunification by
cancelling visits and making Zacharia unavailable. While the GAL preferred for
Zacharia to remain in a limited guardianship with increased visitation by Hill while
Hill continued counseling and parenting services, the GAL felt that terminating the
guardianship was the only option given the Wallses’ refusal to facilitate a more
gradual transition. Accordingly, the GAL’s third report concluded that terminating
the guardianship was in Zacharia’s best interest.
[¶5] On October 4, 2012, the court held a hearing on Hill’s petition for
termination of the guardianship. At the hearing, the GAL testified, consistent with
her reports, that the relationship between the Wallses and Hill had made it unlikely
that a gradual transition of Zacharia to Hill’s custody would occur as long as a
guardianship remained in effect. Accordingly, the GAL recommended terminating
the guardianship so that Hill could voluntarily work with parenting services
providers and the Wallses to transition Zacharia to her custody.
[¶6] The court also heard testimony from the Wallses, who expressed their
openness to Hill visiting Zacharia and did not dispute that Hill was capable of
providing for Zacharia’s physical needs. The Wallses were instead concerned that
Zacharia had begun experiencing severe anxiety since starting regular supervised
4
visits with Hill. The Wallses testified that Zacharia was afraid of visiting Hill and
had developed stuttering and sleeping problems since his visits with her began.
Linda Walls testified:
Q You have concerns about him going to Kristy’s home for visits,
correct?
A I have concerns about him going there for a visit because
Zacharia has never been away from home and, just like now,
with all these visits at NOE [a social services provider] and he
has to go to counseling at -- he doesn’t want to go anywhere
now. He just wants to stay at home. I think he would do better
-- I have -- I would like to see him, in time, go there to visit at
her house, but I would like to see it when he is old enough to
understand where he’s going and want to go. I don’t want him
to have to go and do something. I want him to not have to be
afraid everyday that I’m going to have to go here or I’m going
to have to go there. I would like to have him want to go and be
comfortable to go there.
Q And if he wanted to go, you would support his --
A If he wanted to go, I would be happy to take him.
Q And would you support his working with the [parenting]
service providers?
A Yes, I would.
Q If he wanted to?
A And I told Kristy that.
Q And how do you feel about Zacharia developing a bond with
Kristy and her family?
A I have no problem with that. We are family. We are all family.
She’s my granddaughter. We’re family.
[¶7] The court heard similar testimony from Verna Boyington, Zacharia’s
mental health therapist, who was presented as a witness by the Wallses. Boyington
testified that she had observed Zacharia’s anxiety when he was separated from the
Wallses during visits with Hill, and that the child recognized the Wallses, not Hill,
5
as his parents. The court also received in evidence a report prepared by Boyington
opining that separating Zacharia from the Wallses could result in severe and
irreversible attachment problems for the child, such as reactive attachment
disorder. Boyington also testified, however, that “Zacharia needs to establish a
relationship with his biological mom,” and her report recommended transitional
services for Zacharia under a continued guardianship:
[I]f Zacharia remains with Linda and Gordon and the adults all work
together, attending training, going to counseling, [parenting] services
are implemented and Zacharia begins to have home visits with his
biological mother and family, Zacharia would then be able to establish
a real connection to his other family. It is then that I believe the
chances of everyone winning are high . . . especially for this
wonderful little three-year-old boy, named Zacharia.
[¶8] Finally, Hill testified regarding the steps she had taken to prepare for
reunification with Zacharia and her intention to keep Zacharia in counseling to
help with his transition. While Hill recognized that the transition would not be
easy for Zacharia, she did not believe that the child’s attachment to the Wallses
would “be a problem.” Hill’s testimony also revealed that she was unfamiliar with
various details of Zacharia’s life and that she had never been with Zacharia for
more than two hours at a time.
[¶9] On November 1, 2012, the Probate Court entered a judgment denying
Hill’s petition to terminate the guardianship. The court, after making detailed
findings of fact, concluded that the Wallses had met their burden of proving by a
6
preponderance of the evidence that Hill is unfit because she is unable to meet
Zacharia’s needs:
The Respondents have met their burden of establishing by a
preponderance of the evidence [that] Kristy is not a fit parent for
Zacharia at this time and that it is not in Zacharia’s best interest to
terminate the guardianship. Zacharia . . . has been living with [the
Wallses] since May of 2009 when he was four months old and Kristy
Hill has not provided for his physical and emotional needs since that
time. By all reports and testimony he is a happy, active child. He is
bonded with . . . Gordon and Linda Walls and considers them his
family – he is safe and secure and all his physical and emotional needs
are being met. His contact with his mother has been limited to
supervised visitation. He has only been to her home once, for a
two-hour visit. The Guardian ad Litem testified she had “no
problems” with [the Wallses] as caregivers for the child.
Witnesses raised significant concerns about Kristy’s ability to
meet Zacharia’s needs, including the GAL who testified that Kristy
would need in-home services. While Kristy [has] been cooperative in
taking steps required of her, several witnesses testified that the
increase in Zacharia’s anxious and nervous behavior coincides with
the increase in visitation with Kristy. The presence of a newborn in
the Hill household raises additional concerns. While the guardians
have not encouraged increased visitation, their hesitancy to do so must
be viewed in light of the evidence presented. Their concerns are for
Zacharia’s safety and physical and emotional well-being.
[¶10] The court also rejected the GAL’s and Boyington’s recommendations
that transitional efforts be put in place, either upon termination of the guardianship
(as recommended by the GAL) or under a continued guardianship (as
recommended by Boyington):
Title 18-A MRSA § 5-213 authorizes the Court to provide for
transitional arrangements “if it determines that such arrangements will
7
assist the minor with a transition of custody and are in the best
interests of the child.” The Court declines to do so in this case. Based
on the evidence presented, the GAL’s recommendation for a
transitional arrangement and a limited guardianship supported by
in-home services is not in the best interests of the child. As she
testified herself, thus far a “slow transition has not worked.”
[¶11] Accordingly, the court denied Hill’s petition to terminate the
guardianship. Hill timely appealed from the judgment.
II. DISCUSSION
[¶12] Hill contends that the court’s denial of her petition to terminate the
guardianship was based on an erroneous finding that she is unfit to parent
Zacharia. Intertwined with the question of Hill’s fitness was the court’s decision
not to provide for transitional arrangements pursuant to 18-A M.R.S. § 5-213
(2013). As explained below, because all competent evidence at trial demonstrated
that Hill would be fit to parent Zacharia with the assistance of transitional
arrangements, and that the implementation of such arrangements could lead to the
termination of the guardianship and the return of Zacharia to Hill’s custody, the
court’s refusal to provide for transitional arrangements had the practical effect of
preventing Hill from becoming a fit parent. Accordingly, the court abused its
discretion by denying transitional arrangements for Zacharia and clearly erred in
8
finding that Hill was unfit.3 We proceed by discussing the respective standards for
instituting and terminating guardianships before turning to the issue of the court’s
failure to implement transitional arrangements for Zacharia.
A. Statutory Framework Governing the Institution and Termination of
Guardianships
[¶13] The Probate Court may appoint a guardian or coguardians for an
unmarried minor if certain conditions are met, including if “[a]ll parental rights of
custody have been terminated or suspended by circumstance or prior court order,”
18-A M.R.S. § 5-204(a) (2013), or if “[e]ach living parent whose parental rights
and responsibilities have not been terminated . . . consents to the guardianship and
the court finds that the consent creates a condition that is in the best interest of the
child,” 18-A M.R.S. § 5-204(b) (2013). The court may also appoint a guardian
without a parent’s consent if
the court finds by clear and convincing evidence that . . . a living
situation has been created that is at least temporarily intolerable for
the child even though the living situation does not rise to the level of
jeopardy required for the final termination of parental rights, and that
the proposed guardian will provide a living situation that is in the best
interest of the child.
18-A M.R.S. § 5-204(c) (2013).
3
Because we vacate the judgment on this basis, we do not address Hill’s separate contention that the
standard for parental unfitness established by 22 M.R.S. § 4055(1)(B)(2)(b) (2013) applies in this case.
9
[¶14] Once a guardianship is established, “[a]ny person interested in the
welfare of a ward . . . may petition for removal of a guardian on the ground that
removal would be in the best interest of the ward.” 18-A M.R.S. § 5-212(a)
(2013).4 In the absence of the guardian’s consent, the party petitioning for
termination of the guardianship bears the burden of proving, by a preponderance of
the evidence, that termination would be in the best interest of the ward.
18-A M.R.S. § 5-212(d) (2013); Guardianship of David C., 2010 ME 136, ¶ 3, 10
A.3d 684. Although section 5-212(d), on its face, indicates that the sole criterion
for terminating a guardianship is the best interest of the child, we have held that the
statute must be read to require courts to also address parental fitness in any
guardianship termination proceeding. Guardianship of Jeremiah T., 2009 ME 74,
¶¶ 26-28, 976 A.2d 955; see also Osier v. Osier, 410 A.2d 1027, 1029 (Me. 1980)
(“[A]ny decision terminating or limiting the right of a parent to physical custody of
his child also affects his constitutionally protected liberty interest in maintaining
his familial relationship with the child.”). Accordingly, “although a parent seeking
to terminate a guardianship in order to regain custody bears the burden of proving
that termination is in his or her child’s best interest pursuant to 18-A M.R.S.
§ 5-212(d), the party opposing the termination of the guardianship bears the burden
of proving, by a preponderance of the evidence, that the parent seeking to
4
A guardian’s authority terminates upon his or her removal. 18-A M.R.S. § 5-210 (2013).
10
terminate the guardianship is currently unfit to regain custody of the child.”
Guardianship of David C., 2010 ME 136, ¶ 7, 10 A.3d 684. “If the party opposing
termination of the guardianship fails to meet its burden of proof on this issue, the
guardianship must terminate for failure to prove an essential element to maintain
the guardianship.” Id. Section 5-212(d) further provides that “[i]f the court does
not terminate the guardianship, the court may dismiss subsequent petitions for
termination of the guardianship unless there has been a substantial change of
circumstances.”
[¶15] Although the parties have asked us to determine the standard of
parental fitness to apply when a parent petitions to terminate a guardianship, this
appeal does not require us to define parental unfitness for purposes of all
guardianship termination proceedings. Instead, this case presents a narrower
question related to the court’s refusal to implement transitional arrangements,
where such a refusal has the practical effect of preventing the parent from
becoming fit and could result in a de facto termination of the parent’s parental
rights. We therefore turn to the statute governing transitional arrangements, as it
applies to this case.
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B. Transitional Arrangements Pursuant to 18-A M.R.S. § 5-213 and the Court’s
Finding of Unfitness
[¶16] Title 18-A M.R.S. § 5-213 provides:
In issuing, modifying or terminating an order of guardianship
for a minor, the court may enter an order providing for
transitional arrangements for the minor if the court determines that
such arrangements will assist the minor with a transition of custody
and are in the best interest of the child. Orders providing for
transitional arrangements may include, but are not limited to, rights of
contact, housing, counseling or rehabilitation.
Section 5-213 thus vests discretion in the Probate Court to decide whether to
implement transitional arrangements for a minor under a guardianship. Such
discretion is not without limits, however. “The critical test in determining the
propriety of the exercise of judicial discretion is whether, under the facts and
circumstances of the particular case, it is in furtherance of justice.” Matter of
Howes, 471 A.2d 689, 691 (Me. 1984). For the following reasons, we conclude
that, under the facts and circumstances of this case, the court’s decision not to
provide for transitional arrangements for Zacharia was not in furtherance of justice
and that the court abused its discretion by refusing to terminate the guardianship
without also implementing transitional arrangements.
[¶17] First, the uncontested evidence indicated that, with the assistance of
transitional arrangements, Hill would be fit to parent Zacharia. Verna Boyington,
Zacharia’s mental health therapist, recommended that the Wallses retain custody of
12
Zacharia, but that the Wallses and Hill work together to attend training, counseling,
and parenting services in order for Zacharia to establish a relationship with Hill.
Similarly, the GAL recommended that, given Hill’s record of participating in
services, the guardianship be terminated so that Hill may voluntarily work with
parenting services and counselors to ensure a smooth transition for Zacharia to her
custody. Linda Walls likewise expressed her openness to Zacharia forming a bond
with Hill with the help of transitional arrangements.
[¶18] In spite of this evidence, the court declined to implement transitional
services for Zacharia and found Hill unfit to regain custody because of “concerns
about [Hill’s] ability to meet Zacharia’s needs”; because of evidence indicating
that “the increase in Zacharia’s anxious and nervous behavior coincide[d] with the
increase in visitation with [Hill]”; and because Zacharia has bonded with the
Wallses and “considers them family.” The court rejected the recommendations for
transitional arrangements as being “not in the best interests of the child” because
“thus far a ‘slow transition has not worked.’”5
[¶19] In so ruling, the court placed Hill in a catch-22: the court deemed Hill
unfit because the transition had not yet been successful, but Hill cannot become fit
without further transitional arrangements and services. Absent the court ordering
5
The court also found that Hill “has not demonstrated her ability to appropriately and safely parent
Zacharia.” This finding is both contrary to the applicable burden of proof, see Guardianship of David C.,
2010 ME 136, ¶ 7, 10 A.3d 684, and is not supported by competent evidence in the record.
13
transitional arrangements, there is little prospect of Hill becoming fit because the
guardians have obstructed her contact with Zacharia and are unwilling to allow
him to visit Hill in her home until Zacharia, who is five, decides that he wants to
go. Because the court may dismiss subsequent petitions for termination of the
guardianship unless there has been a substantial change of circumstances,
18-A M.R.S. § 5-212(d), the court’s refusal to implement any transitional
arrangements, coupled with the Wallses’ resistance to making Zacharia available
for visitations with Hill, creates a barrier to any prospective substantial changes of
circumstances that would support termination of the guardianship. This result
contravenes the purpose of 18-A M.R.S. § 5-213, which is to “give the Probate
Courts another tool in fashioning an appropriate plan for the restoration of
custodial care to the parents.” Maine Probate and Trust Law Advisory
Commission, Report to the 125th Maine Legislature, Joint Standing Commission
on Judiciary, on L.D. 170, “An Act to Extend the Maximum Time Period for
Powers of Attorney for Minors and Incapacitated Persons” 2 (Mar. 2011).
[¶20] When all competent evidence indicates that a parent petitioning to
terminate a guardianship has fully complied with the recommendations of the
guardian ad litem, is capable of providing for her child’s physical care, and either
is or will become capable of providing for her child’s emotional needs if she is
permitted to engage in transitional services, a court abuses its discretion when it
14
refuses to implement such arrangements. Because we conclude that the court
abused its discretion in declining to implement transitional arrangements pursuant
to 18-A M.R.S. § 5-213, see Matter of Howes, 471 A.2d at 691, it follows that the
court committed clear error in finding Hill unfit, because that finding was premised
upon the court’s erroneous denial of transitional arrangements. For these reasons,
we vacate the judgment and remand for the Probate Court to structure a transitional
arrangement pursuant to 18-A M.R.S. § 5-213 that will lead toward the timely
termination of the guardianship.
The entry is:
Judgment vacated. Remanded for the Probate
Court to structure a transitional arrangement that
will lead toward the timely termination of the
guardianship.
On the briefs and at oral argument:
Kirk D. Bloomer, Esq., Bloomer Law Office, P.A., Bangor, for
appellant Kristy Lynn Bouchard Hill
Barbara A. Cardone, Esq., Lanham Blackwell, P.A., Bangor,
for appellees Linda and Gordon Walls
Penobscot County Probate Court docket number 2009-238-2
FOR CLERK REFERENCE ONLY