Jana Gehrke v. Chad Gehrke , 2015 Me. LEXIS 58 ( 2015 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 58
Docket: Som-14-341
Argued: April 8, 2015
Decided: May 7, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
JANA GEHRKE et al.
v.
CHAD GEHRKE
SAUFLEY, C.J.
[¶1] Following a pattern of violence, threats, suicide threats, and failure to
comply with increasingly restrictive court orders, Chad Gehrke appeals from a
judgment entered in the District Court (Skowhegan, Benson, J.) extending a
protection from abuse order protecting his ex-wife, Jana Gehrke, and the parties’
three sons for an additional two years. He argues that the court erred in relying on
evidence of conduct that occurred before the original protection from abuse order
was entered in finding that the extended order was “necessary” to protect Jana and
the children, and that the extended protection order violates his constitutional due
process rights as a parent. 19-A M.R.S. § 4007(2) (2014). We affirm the
judgment.
2
I. BACKGROUND
A. Procedural History
[¶2] In July 2012, Jana Gehrke filed a complaint against Chad Gehrke
seeking protection from abuse for herself and their three sons (then ages twelve,
nine, and seven). The parties agreed to the entry of a protection order without
findings of abuse, and the court (Stanfill, J.) entered an order on July 20, 2012.
The order authorized Chad to contact Jana only indirectly through identified
individuals and only regarding the children, and it authorized contact with the
children under the supervision of identified individuals, at counseling as
recommended by professionals, and at the children’s extracurricular school events.
[¶3] Jana moved to modify the order in January 2013, seeking to add a
requirement that Chad attend counseling, Menswork, or an anger management
program. The resulting order, entered by agreement without findings of abuse on
February 22, 2013, required Chad to obtain such services and authorized him to
send text messages to Jana but only regarding the children.
[¶4] Six months later, in late August 2013, Jana again moved to modify the
order, this time on the ground that Chad had engaged in conduct that had
frightened the children. The court’s resulting order, entered on September 13,
2013, again by agreement of the parties without findings of abuse, further
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constrained Chad’s contact with the children and eliminated the provision that
Chad could contact Jana indirectly through others or by sending text messages.
[¶5] On November 1, 2013, Jana filed her third motion to modify the
protection order, seeking a complete prohibition on contact between Chad and the
children. After a full, contested hearing, the court found that Chad had committed
abuse and entered an amended order on January 3, 2014, prohibiting Chad from
having any contact with Jana or the children, including at school and sporting
events attended by the children. That amended order was set to expire on July 20,
2014. Chad did not request further findings or appeal from the judgment.
[¶6] In mid-July 2014, Jana moved to extend the order of protection from
abuse for two more years. See 19-A M.R.S. § 4007(2). She alleged that she
remained in fear for herself and her children because Chad had repeatedly violated
protection orders and had engaged in other conduct that frightened her and the
children. The court (Benson, J.) held a contested hearing on July 18, 2014, during
which it heard testimony from Jana and two of her relatives. The court advised
Chad of his Fifth Amendment rights. Chad elected not to testify, and he offered no
additional evidence.
[¶7] The court entered a judgment extending the order of protection from
abuse due to an “ongoing pattern of abuse” that had “continued even through the
existence of a previous order.” The court stated, “based on the evidence that I’ve
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heard, I feel I have no choice but to continue the current order for another two
years.”1
B. Facts Supporting the Court’s Judgment
[¶8] Because Chad did not, after the court entered its judgment, “request
additional findings of fact pursuant to M.R. Civ. P. 52, we assume that the trial
court made all of the necessary subsidiary findings that can be supported by
competent record evidence to support its decision.” Sullivan v. Doe, 2014 ME 109,
¶ 19, 100 A.3d 171. The evidence supporting the court’s decision is as follows.
[¶9] Jana met Chad when she was twenty-two years old and already had two
daughters, ages two and five. Chad had a four-year-old child but had only
supervised contact with that child and was required to attend an anger management
program. After Jana had been with Chad for about a year, he began to break and
throw things, and to push her. When she was pregnant with one of their children,
he made a threat through a friend that he was going to “take a coat hanger to [Jana]
and deliver[] that baby dead.”
[¶10] Chad once tackled Jana’s oldest daughter in a neighbor’s yard, and in
2009, he hit one of their boys when the boy did not want to wear the shirt his
mother had chosen. When one of Jana’s daughters attempted to intercede, Chad hit
1
Although Chad argues that this statement by the court evidenced a misunderstanding on the part of
the court that it lacked discretion, the court’s words, viewed in context, can only be understood to indicate
that the facts that the court found met the legal standard for extending the order of protection and were so
compelling that a substantial extension was necessary to protect Jana and the boys.
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her. Jana began to accommodate Chad’s every request in an effort to prevent him
from hurting her children. The parties’ oldest son witnessed Chad’s intrusive and
humiliating actions in challenging Jana’s fidelity. Chad threw a lit cigarette at Jana
when her younger daughter and one of the boys were in the car. He pushed Jana
down the stairs in front of the children. He went to Jana’s workplace, which
resulted in an emergency room visit for Jana and the loss of her job. He also went
to the home of the children’s maternal grandmother late at night to take the
children, which led to his arrest.
[¶11] Significantly, Chad once told Jana, while holding a gun and in
possession of knives, and in the presence of the boys, that he was going to end it all
that night and she would never have to worry about him and the boys again. He
told Jana he “had five bullets and [he was] going to end it all and it was going to be
done.” He made similar threats to kill them all many times.
[¶12] The children have been traumatized. The youngest, nine years old at
the time of trial, could not sleep by himself because he was scared that someone
would break into the house. All of the children feel guilty because of things that
they witnessed Chad do to Jana. One of Jana’s daughters dropped out of high
school because things got so bad. The boys have been in counseling, and Jana
thinks that it is too early to trust that Chad is doing what he must to make it safe for
the children to see him. Chad often used his visitation with his children to try to
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find out what Jana was doing, who Jana was talking to, who Jana was dating, and
when Jana got out of work. He has repeatedly violated court orders, as
demonstrated by a series of probation revocations and convictions entered upon
guilty pleas for violating protective orders or conditions of release.2
[¶13] After his most recent release from jail in September 2013, Chad
contacted Jana by email; blew her a kiss from across the street at a child’s sporting
event; showed up at a sporting event disguised in a wig, which upset the children
because they thought that he might kidnap them; and asked a friend of Jana’s if
Chad could put his paycheck in the friend’s mailbox to go toward child support.
[¶14] Chad now appeals from the trial court’s extension of the order of
protection from abuse. See 14 M.R.S. § 1901 (2014); M.R. App. P. 2.
II. DISCUSSSION
[¶15] Chad’s arguments concern (A) the court’s consideration of evidence
of abuse that predated the initial protection from abuse order in determining
whether an extension of the order was necessary and (B) the constitutionality of the
protection from abuse statute’s infringement on his parental rights. We address
each issue separately.
2
Although not presented as exhibits at the hearing, copies of docket entries and judgments
demonstrating probation revocations and convictions entered between 2010 and 2013 are contained in the
record as a result of prior proceedings in the case, and Jana asked the court to take judicial notice of the
probation revocations and convictions.
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A. Evidence of Prior Abuse
[¶16] Chad argues that the court erred in relying on any evidence that
predated the first protection order entered in this matter in 2012. He argues that
the court erred in determining that an extended protection order was “necessary” to
protect Jana and the children from abuse, 19-A M.R.S. § 4007(2), when there was
little evidence of new conduct since the last modification of the order.
[¶17] “A protective order or approved consent agreement is for a fixed
period not to exceed 2 years.” Id. “At the expiration of that time, the court may
extend an order, upon motion of the plaintiff, for such additional time as it
determines necessary to protect the plaintiff or minor child from abuse.” Id. “[A]n
extension granted in response to a plaintiff’s motion to extend is the exclusive
means to extend a protection order beyond the two-year durational limit.” O’Brien
v. Weber, 2012 ME 98, ¶ 9, 48 A.3d 230.
[¶18] The findings required for an extension of an existing order of
protection differ from the findings required for a court to issue a new order of
protection. See 19-A M.R.S. §§ 4002(1), 4005(1), 4007(1), (2) (2014). Whereas a
plaintiff bringing a new action must demonstrate “that the defendant has
committed the alleged abuse or engaged in the alleged conduct described in section
4005, subsection 1,” id. § 4007(1), a plaintiff seeking to extend an order must
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demonstrate that the additional time is “necessary to protect the plaintiff or minor
child from abuse,” id. § 4007(2).
[¶19] When a court’s order of protection has expired, some new conduct
meeting the definition of abuse must be shown for the court to issue a new order of
protection. See O’Brien, 2012 ME 98, ¶¶ 9-10, 48 A.3d 230. By contrast, when a
party, before an order of protection has expired, requests the extension of that
order, a court can, and often will, base its determination in part on the underlying
reasons that the initial order was entered. See, e.g., Dyer v. Dyer, 2010 ME 105,
5 A.3d 1049. Evidence demonstrating a history of abuse, as defined by statute to
include actual or attempted infliction of bodily injury or offensive physical contact,
see 19-A M.R.S. § 4002(1)(A), and threats of such conduct made in an attempt to
place another in fear of bodily injury, see id. § 4002(1)(B), is relevant and
admissible to demonstrate that an extended order of protection is “necessary,” id.
§ 4007(2). In this context, a court’s consideration of evidence of earlier abuse is
appropriate, particularly when preceding orders were entered without the court
making particularized factual findings or were entered by agreement of the parties
without any finding of abuse. See Dyer, 2010 ME 105, ¶¶ 3-5, 11, 5 A.3d 1049.
[¶20] The matter before us stands as a vivid example of a case in which
evidence of earlier abuse was essential to the court’s understanding of whether an
extension of the order was “necessary to protect the plaintiff or minor child from
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abuse.” 19-A M.R.S. § 4007(2). Without evidence of the pattern of persistent
intrusive and frightening conduct when Chad was allowed access to Jana and the
children, the court would not have been in a position to understand why Jana and
the children would be frightened by Chad’s more recent behavior.
[¶21] Although the evidence of recent conduct might not, taken in isolation,
demonstrate that new abuse occurred, see 19-A M.R.S. §§ 4002(1), 4007(1), the
record contains ample evidence of a pattern of abuse by Chad supporting the
court’s conclusion that an extension of an existing order was necessary for Jana’s
and the boys’ protection, see 19-A M.R.S. § 4007(2). Specifically, the record
contains evidence that Chad was violent with Jana and at least one of the boys in
the past; that he threatened Jana, the children, and himself while in possession of
deadly weapons; that he repeatedly violated protection orders; and that Jana and
the children remain frightened of him, especially because he recently behaved in
ways that continued the pattern of intimidating or threatening conduct. Chad did
not offer any evidence that the risk he posed to Jana and the children had
diminished.
[¶22] Brandishing weapons, threatening suicide, making graphic threats of
violence, and persistently violating court orders all demonstrate a serious potential
for lethality. See 19-A M.R.S. § 4001(1) (recognizing that such conduct
“frequently culminates in intrafamily homicide”). Given this evidentiary record,
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the court did not err in finding that Chad’s recent actions, viewed in context,
demonstrate a continued threat of abuse, and that continued protection is necessary.
See id.; see also Walton v. Ireland, 2014 ME 130, ¶ 22, 104 A.3d 883; O’Brien,
2012 ME 98, ¶ 9 & n.2, 48 A.3d 230.
B. Constitutionality of Intrusion on Parental Rights
[¶23] Chad argues that, to safeguard his constitutionally protected parental
rights, any restructuring of his rights of contact with the boys should have been
undertaken in the divorce proceeding, not through a protection from abuse
complaint. Accordingly, we must determine whether the order of extension
entered here comported with the purposes of the protection from abuse statute in
allocating “temporary parental rights and responsibilities” for purposes of
protection from abuse. 19-A M.R.S. § 4007(1)(G); see 19-A M.R.S. § 4001 (2014)
(identifying statutory purposes of protection from abuse statutes).
[¶24] “The law is firmly established that parents have a fundamental liberty
interest to direct the care, custody, and control of their children.” Griffin v. Griffin,
2014 ME 70, ¶ 26, 92 A.3d 1144 (quotation marks omitted). Consistent with this
legal principle, we presume that fit parents act in the best interests of their children,
and due process requires that any interference with parental interests pass the
strict-scrutiny test. Pitts v. Moore, 2014 ME 59, ¶¶ 11-12, 90 A.3d 1169. That test
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“requires that the State’s action be narrowly tailored to serve a compelling state
interest.” Id. ¶ 12 (quotation marks omitted).
[¶25] The protection from abuse statutes permit a court, upon a finding of
abuse, to temporarily infringe on parental discretion over the care and custody of a
child. See 19-A M.R.S. § 4007(1)(G). The Legislature authorized this interference
in recognition of “domestic abuse as a serious crime against the individual and
society, producing an unhealthy and dangerous family environment, resulting in a
pattern of escalating abuse, including violence, that frequently culminates in
intrafamily homicide and creating an atmosphere that is not conducive to healthy
childhood development.” 19-A M.R.S. § 4001(1); see id. § 4007(1). The
protection from abuse process serves to “support the efforts of law enforcement
officers, prosecutors and judicial officers to provide immediate, effective
assistance and protection for victims of abuse and to recognize the crucial role of
law enforcement officers in preventing further incidents of abuse and in assisting
the victims of abuse.” Id. § 4001(4).3
[¶26] When a party has established abuse pursuant to the statutory
definition of that term, see id. § 4002(1), the State has a “compelling interest” in
limiting or restricting a parent’s rights, because harm or a threat of harm to the
3
See generally Maine Domestic Abuse Homicide Review Panel, 10th Report, Building Bridges
Towards Safety and Accountability to End Domestic Violence Homicide (April 2014).
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child will result from the absence of such governmental interference. Sparks v.
Sparks, 2013 ME 41, ¶¶ 21-22, 65 A.3d 1223. As we have held before, the statute
survives strict scrutiny because it is narrowly tailored to authorize relief only when
the person bringing the petition is a person who is responsible for the child, there
has been a finding of abuse as that term is specifically defined by statute, and the
rights awarded are temporary. See id. ¶¶ 23-26.
[¶27] Here, based on findings reached after a full evidentiary hearing, the
court ordered an extension of two years. Although the order results in an intrusion
on Chad’s parental rights, both the statutory scheme and the particular order
entered here are narrowly tailored to serve the State’s interest of protecting
children from abuse and harm. The extended order is not final but instead
modifiable if the circumstances change, and unlike a parental rights and
responsibilities judgment, see 19-A M.R.S. § 1653 (2014), the provisions of the
order are limited in duration, here to two additional years, and are enforceable by
law enforcement, see 19-A M.R.S. § 4011 (2014), which is necessary in a case
where threats of lethal conduct have been made in the presence of firearms. Chad
has not been deprived of due process by the application of section 4007(2) of the
protection from abuse statute in these circumstances.
The entry is:
Judgment affirmed.
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On the briefs:
Walter F. McKee, Esq., and James A. Billings, Esq., McKee Billings, LLC,
P.A., Augusta, for appellant Chad Gehrke
Paul Sumberg, Esq., Wright & Mills, P.A., Skowhegan, for appellee Jana
Gehrke
At oral argument:
James A. Billings, Esq., for appellant Chad Gehrke
Lawrence Bloom, Esq., Bloom & Bloom, Skowhegan, for appellee Jana
Gehrke
Skowhegan District Court docket number PA-2012-271
FOR CLERK REFERENCE ONLY