In re Children of Bradford W. ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 15 Docket: Som-18-271
Submitted
On Briefs: January 17, 2019
Decided: January 29, 2019
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILDREN OF BRADFORD W.
PER CURIAM
[¶1] Katie and Bradford W. appeal from a judgment of the District Court
(Skowhegan, Nale, J.) terminating their parental rights to their children
pursuant to 22 M.R.S. §§ 4050-4056 (2017). The father advances no arguments
on appeal, and the mother argues that the District Court erred in taking judicial
notice of prior proceedings. We conclude that the court independently
assessed all facts presented and that its determination that termination of
parental rights was established by clear and convincing evidence is supported
by the record. We therefore affirm.
I. BACKGROUND
[¶2] Following a four-day termination hearing that concluded on
May 11, 2018, the court issued a judgment dated June 13, 2018, in which it
found by clear and convincing evidence that the mother and father were unable
to take responsibility for their children within a time reasonably calculated to
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meet their children’s needs and that it was in the best interests of the children
that parental rights be terminated. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(ii). At
the hearing, the Department requested that all guardian ad litem reports be
admitted in evidence and that the court take judicial notice of all prior court
orders in the case. Counsel for both the mother and the father stated that they
had no objection. The court accordingly took judicial notice of its prior orders,
the findings and conclusions of law in those orders, see In re Scott S.,
2001 ME 114, ¶ 13, 775 A.2d 1144, and the reports of the guardian ad litem, see
In re Children of Melissa F., 2018 ME 110, ¶ 2, 191 A.3d 348.
[¶3] The District Court included in its findings detailed descriptions of
the children’s medical and dental conditions, which were both numerous
significant, and of each child’s serious behavioral challenges. The court’s
finding of parental unfitness and its determination of the children’s best
interests were based upon the following findings of fact:
[A]t trial the mother and father did not believe that they played any
role in the Department removing the children from their care. . . .
. . . [T]he father accepts very little responsibility for his
children being in State custody. . . . [T]he father is unaware of any
diagnoses of his son . . . .
During the term of the Department’s involvement in this
matter, the father did very little, if anything at all, to learn of the
many needs of his children. The father was provided all the medical
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provider reports of his children. He failed to read any of them. . . .
[T]he mother and father have very little insight as to the many
needs of their children. Their lack of insight is their own doing.
. . . .
Despite all of the assistance the Department has offered, the
parents, very late in the process, have only recently [begun]
counseling with qualified mental health counselors and have not
yet come to fully understand or accept how their behavior has so
badly impacted their children. . . . [T]here is no time-line as to when
the parents will have their own issues addressed to a level where
they can begin to address the many issues that have burdened their
children.
II. DISCUSSION
[¶4] “We review the trial court’s factual findings for clear error and its
ultimate determination to terminate parental rights for an abuse of discretion.”
In re Child of Ronald W., 2018 ME 107, ¶ 6, 190 A.3d 1029. On appeal, the
mother challenges the sufficiency of the evidence supporting the court’s factual
findings, arguing that the court impermissibly adopted facts from prior
proceedings. The father advances no arguments on appeal.
[¶5] At the outset, we note that the father’s appellate counsel followed
the appropriate briefing process for when counsel does not believe that there
are any arguable issues on appeal in a termination of parental rights case:
When a parent’s attorney in a child protection case believes, in
good faith, that there are no arguable issues of merit in an appeal,
counsel should: [(1) f]ile with the Court, with a copy to the client, a
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brief outlining the factual and procedural history of the case, . . .
including a statement that counsel believes that there are no
arguable issues of merit for an appeal[; (2) p]rovide the client with
notice that, if the client believes that there is a valid ground for
appeal, the client should file (a) a brief with this Court identifying
the issues the client wishes to raise on appeal, and (b) a request for
the appointment of new counsel if the client desires new
representation[; and (3) r]equest from this Court a reasonable
extension of time for filing the appellant’s brief to allow the client
time to prepare and file a separate brief addressing the issues on
appeal from the client’s perspective.
In re M.C., 2014 ME 128, ¶ 7, 104 A.3d 139.
[¶6] Here, on September 17, 2018, counsel for the father filed an
appellate brief containing only a procedural history and statement of facts,
accompanied by a motion for enlargement of time to permit the father to
personally file a supplemental brief. Counsel’s brief concluded that he did not
believe that there were any arguable issues on appeal. We granted the motion
to allow the father to personally file a supplemental brief on or before
October 19, 2018. Although he had the opportunity, the father did not file a
supplemental brief. See id. ¶ 8. [¶7] Regarding the issue on appeal, the mother, without citing authority
and notwithstanding her counsel’s waiver of any objection at the hearing,1
contends that the District Court erred in taking judicial notice of prior
1 The mother had the same counsel at trial and on appeal.
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proceedings because in those proceedings the burden of proof was a
preponderance of the evidence, whereas at the termination of parental rights
stage the standard was clear and convincing evidence. See 22 M.R.S. §§ 4035,
4055 (2017).
In Scott S., we held:
When a court enters a judgment containing findings of fact
and conclusions of law, those findings become a matter of judicial
record. A judge may take judicial notice of any matter of record
when that matter is relevant to the proceedings at hand.
Particularly in the context of child protective proceedings, where
the entire procedure occurs as a unified proceeding, a trial judge
may, at any stage of the proceeding, take judicial notice of the
findings and conclusions contained in any prior judgments or
orders.
2001 ME 114, ¶ 13, 775 A.2d 1144 (citation omitted).2 We explained that the
Department’s burden at most stages of a child protective case is to prove the
necessary elements by a preponderance of the evidence, whereas “the court
may not terminate a parent’s rights unless it is persuaded by clear and
convincing evidence that the Department has met its burden.” Id. ¶ 14 (citing
22 M.R.S. §§ 4035, 4055). We thus concluded that “although the [trial] court
2 A trial judge’s authority to take judicial notice of findings of fact and conclusions of law is distinct
from the judge’s authority to consider evidence presented in a previous stage of a child protective
proceeding—the latter is limited to cases where the same trial judge heard the evidence presented.
See In re Caleb M., 2017 ME 66, ¶¶ 23-24, 159 A.3d 345; In re Scott S., 2001 ME 114, ¶ 12,
775 A.2d 1144. At issue in this case is the consideration of factual findings, not evidence.
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may take judicial notice of prior findings in a termination proceeding, it must
independently assess all facts presented and must be confident to a clear and
convincing standard that the evidence taken as a whole is sufficient to meet the
strict statutory prerequisites for terminating parental rights.” Id.
[¶8] That standard was met in Scott S. when the trial court heard
evidence of the mother’s continuing inability to protect her children from
jeopardy. Id. ¶ 15. We reasoned that the “evidence related to events that
occurred after the jeopardy order was entered” and that “[t]he court did not
rely on the original findings, instead it had before it new evidence of the
parents’ abilities.” Id.
Similarly, in this case the court stated that it
subjected all the evidence it considered to the scrutiny required for
the clear and convincing evidence standard used during a
termination of parental rights proceeding.
The [c]ourt reviewed the circumstances surrounding the
filing of the Petition for Termination of Parental Rights, the actions
taken by the Department to date to rehabilitate and reunify, the
recommendations of the guardian ad litem, the safety of the
children, and the actions taken by the parents to engage themselves
in a timely manner in the many services provided them.
[¶9] The court heard ample evidence regarding the parents’ actions since
the jeopardy order was entered. Specifying again that all findings were made
by clear and convincing evidence, the court found that “[w]hen the children
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came into care, the parents continued their unsafe [lifestyle], failed to alleviate
jeopardy, and failed to recognize their need to understand the needs of their
children and what role they play in the Department taking their children into
care.” The record supports the court’s findings, to the clear and convincing
evidence standard, that at least one ground of parental unfitness had been
proved, see 22 M.R.S. § 4055(1)(B)(2)(b)(ii), and that termination of the
parents’ rights was in the children’s best interests, see 22 M.R.S.
§ 4055(1)(B)(2)(a); In re Thomas H., 2005 ME 123, ¶ 30, 889 A.2d 297.
The entry is:
Judgment affirmed.
Harold J. Hainke, Esq., Hainke & Tash, Whitefield, for appellant father
Aaron B. Rowden, Esq., Waterville, for appellant mother
Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services
Skowhegan District Court docket numbers PC-2017-19 and -20
FOR CLERK REFERENCE ONLY