In re Child of Nicholas G.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 13Docket: Yor-18-309
Submitted
On Briefs: January 17, 2019
Decided: January 24, 2019
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF NICHOLAS G.1
GORMAN, J.
[¶1] Nicholas G. appeals from a family matter judgment entered in the
District Court (Biddeford, Driscoll, J.) after a judicial review hearing in a child
protection matter. The court dismissed the child protection matter without
prejudice, opened a family matter, and entered an order in that family matter
that conferred sole parental rights and responsibilities for the child on the
child’s mother and denied rights of contact to the father, who had been
convicted of multiple sex crimes against a child and of possession of sexually
explicit materials depicting children. We dismiss the appeal from the child
protection matter and affirm the judgment entered in the family matter.
1 Although this opinion affirms a family matter decision, that decision was issued to resolve a
child protection case involving the child of Nicholas G. See 22 M.R.S. § 4036(1-A) (2017). In order to
continue to protect that child’s privacy, we use the naming convention we have adopted for child
protection cases.
2
I. BACKGROUND
[¶2] The facts are drawn from the procedural record and from the court’s
findings, which are supported by competent evidence in the record. See 22
M.R.S. § 4036(1-A) (2017); Vibert v. Dimoulas, 2017 ME 62, ¶ 15, 159 A.3d 325.
The child was born in May of 2003. The Department of Health and Human
Services petitioned for a child protection order and preliminary protection
order in October of 2003 based on serious domestic violence by the father
against the mother and her sister. The court (Foster, J.) signed an order of
preliminary protection on October 2, 2003, placing the child in the custody of
the Department.
[¶3] The court (Janelle, J.) ordered a trial placement of the child with her
maternal grandparents, and in 2004, the court (Foster, J.) held a hearing and
found that the child was in circumstances of jeopardy with each of her parents.
See 22 M.R.S. § 4035 (2017). In July of 2006, the court entered an agreed-upon
order granting custody to the maternal grandparents and ordering that
parental reunification efforts cease and judicial reviews be held only upon
motion. See 22 M.R.S. § 4038(1-A)(A) (2017).
3
[¶4] A year later, the father moved for judicial review, seeking visitation
rights. In December of 2007, the court (Mulhern, J.) held an evidentiary hearing
and ordered that any visits with the father be supervised.
[¶5] In April of 2012, during a time of inactivity in the child protection
matter, the father was convicted of unlawful sexual contact (Class A),
17-A M.R.S. § 255-A(1)(F-1) (2017), sexual exploitation of a minor under age
twelve (Class A), 17-A M.R.S. § 282(1)(C) (2010),2 visual sexual aggression
against a child (Class C), 17-A M.R.S. § 256(1)(B) (2017), and sixty-five counts
of possession of explicit material of a minor under age twelve (Class C),
17-A M.R.S. § 284(1)(C) (2010).3 The father committed the first three charged
crimes against a four-year-old girl whom he babysat one night.
[¶6] Four years after his convictions, in March of 2016, the father moved
for the appointment of counsel and for judicial review in the child protection
matter. The court (Foster, J.) appointed new counsel and a new guardian ad
litem. Five months later, the father’s counsel moved to withdraw on the
2 This statute was amended after the father committed the crime, though not in any way that
affects this appeal. See P.L. 2015, ch. 394, § 1 (effective July 29, 2016) (codified at 17-A M.R.S.
§ 282(1)(C) (2017)).
3 This statute was amended after the father committed the crimes, though not in any way that
affects this appeal. See P.L. 2011, ch. 50, § 2 (effective April 25, 2011) (codified at 17-A M.R.S.
§ 284(1)(C) (2017)).
4
grounds that the father and counsel could not agree on how to proceed and that
the father had asked that he withdraw. The court granted the motion and
appointed new counsel that September. When the court held a case
management conference in anticipation of judicial review in April of 2017, the
father requested that his recently appointed counsel withdraw and new
counsel be appointed. The court granted the motion, though it “could find no
fault with the representation [counsel] had provided.”
[¶7] A judicial review hearing was scheduled for July 9, 2018. Just before
that hearing, on June 22, 2018, the father’s counsel moved to withdraw on the
grounds that the attorney-client relationship had broken down and that the
father was seeking other counsel. The court (Duddy, J.), noting a pattern of the
father delaying the process through his multiple requests for new counsel,
denied counsel’s motion to withdraw on June 25, 2018.
[¶8] The father, in a pro se pleading, moved to continue the hearing and
to appear by video. As grounds for the motion to appear by video, he asserted
that the county jail to which he would have been transported refused to
dispense necessary medication and make “disability accommodations,” though
he offered no description of what specific medication and accommodations he
5
would lack. The court denied the motion, stating, “See the Court’s order dated
6-25-2018.”
[¶9] Although the court had issued a writ of habeas corpus for the father
to testify at the July 9, 2018, hearing, the father refused to be transported and
was not present for the hearing. The court (Driscoll, J.) held the judicial review
hearing and afforded the father’s counsel the opportunity to cross-examine the
witnesses—the mother, the fifteen-year-old child, and the GAL—and to present
evidence and argument.
[¶10] The court dismissed the child protection matter without prejudice
and opened a family matter in which it entered a parental rights and
responsibilities judgment—consented to by all parties except for the father—
awarding the mother sole parental rights and responsibilities with no rights of
contact for the father. See 22 M.R.S. § 4036(1-A). The court found that the
father had not rebutted the statutory presumption that, due to his convictions,
ordering his contact with the child would create a situation of jeopardy and not
be in the child’s best interest. See 19-A M.R.S. § 1653(6-A)(A)(1), (4), (5),
(6-B)(A) (2017).
[¶11] The father appealed from both judgments. The Department moved
to dismiss his appeal from the decision in the child protection matter on the
6
ground that the statute authorizing appeals in such matters, 22 M.R.S. § 4006
(2017), does not authorize an appeal from an order of dismissal. We ordered
that the motion be considered with the merits of the appeal and required the
parties to “address in their briefs the proper procedure for an appeal from a
parental rights order entered in a child protection case and docketed as the
initiating document in a family matters case, given that the child protection
matter contains the only available record for review on appeal.”4
II. DISCUSSION
[¶12] In this opinion, we (A) consider the Department’s motion to
dismiss; (B) review whether the father, who was found to be indigent, has a
right to court-appointed counsel on appeal; and (C) review the court’s decision
entered in the family matter.
A. Motion to Dismiss Child Protection Matter
[¶13] In a previous “hybrid” situation in which a court issued both a
jeopardy order and an order in a family matter, we held that a notice of appeal
must be filed in each matter for the appeal to proceed. In re Paige L., 2017 ME
97, ¶¶ 8-11, 23, 26, 39, 162 A.3d 217. Here, however, the judgment entered in
4 The Department appropriately and successfully moved to seal the appendix given that the
proceedings leading up to the entry of the family matter judgment were held in a child protection
matter. See 22 M.R.S. § 4036(1-A)(A-1).
7
the child protection matter did not arise from a jeopardy hearing and was not
a judgment terminating parental rights or a medical treatment order—the only
orders from which title 22 authorizes an appeal. See 22 M.R.S. §§ 4006, 4035,
4054, 4071 (2017). The entry of the family matter judgment is authorized by
title 22 but is appealable only pursuant to title 19-A. See 19-A M.R.S. § 104
(2017); see also 22 M.R.S. § 4036(1-A).
[¶14] Thus, although the father challenges the process employed in the
hearing in the title 22 matter, it is not an issue that he can raise in a title 22
appeal. See 22 M.R.S. §§ 4006, 4038 (2017). As we have said, “When a parental
rights and responsibilities order is issued as the disposition after an order that
cannot be appealed, e.g., a judicial review order, the notice of appeal must
identify the parental rights order as the order being appealed and must be filed
in the parental rights and responsibilities action.” In re Paige L., 2017 ME 97,
¶ 26 n.4, 162 A.3d 217 (citation omitted). The appeal from the child protection
matter is, therefore, dismissed. See 22 M.R.S. § 4006.5
5 The record from the title 22 matter is, however, part of the record on appeal from the title 19-A
judgment.
8
B. Right to Counsel on Appeal
[¶15] Given that the child protection appeal has been dismissed, we next
consider whether the Department is correct that an indigent parent does not
retain the right to court-appointed counsel for the appeal from a family matter
judgment entered pursuant to 22 M.R.S. § 4036(1-A). In contrast to In re
Paige L., where we held that counsel for the father “appropriately continued to
represent him in th[e] appeal, because the appeal [was] taken from a title 22
jeopardy order,” 2017 ME 97, ¶ 15, 162 A.3d 217; see 22 M.R.S. § 4005(2)
(2017), there is no right of appeal from the title 22 judicial review order entered
here, see 22 M.R.S. §§ 4006, 4038. Although some provisions of title 22 may
apply, and although the father had the right to counsel for the hearing in the
title 22 matter, see id. § 4005(2), the appeal here is from a title 19-A judgment,
and title 19-A provides no right to counsel. Thus, the right to counsel will attach
only if necessary to ensure due process.
[¶16] An indigent parent has a due process right, now also codified in
section 4005(2), to appointed counsel in a child protection proceeding. In re
T.B., 2013 ME 49, ¶ 14, 65 A.3d 1282; see Danforth v. State Dep’t of Health &
Welfare, 303 A.2d 794, 801 (Me. 1973). The constitutional right attaches in
child protection proceedings because “the full panoply of the traditional
9
weapons of the state are marshalled against the defendant parents.” Danforth,
303 A.2d at 799.
[¶17] In the child protection matter, the father had the right to counsel
up to and including the time of the entry of the child protection judgment. See
22 M.R.S. §4005(2). As we have already discussed, the dismissal of the child
protection case is nonappealable. See id. § 4006. In order to challenge what
resulted from that dismissal, the father may appeal—and has appealed—from
the family matters judgment. See 19-A M.R.S. § 104. The fact that that judgment
was issued pursuant to 22 M.R.S. § 4036(1-A), however, grants him no greater
rights than those granted to any parent who appeals from a family matter
judgment. See Meyer v. Meyer, 414 A.2d 236, 238 (Me. 1980) (holding that,
where “proceedings involve primarily disputes between the parents, due
process does not automatically require appointment of counsel to either party,”
due to the State’s lesser interest in the matter and the modifiability of the
determination). When a party appeals from a family matter judgment entered
as a result of an unappealable judicial review hearing in a child protection
matter, the right to counsel does not extend to the appeal from the family
matter judgment.6
6 For the same reasons, the parent is not entitled to transcripts at state expense. Due to the
confidential nature of all proceedings leading up to the family matter judgment, however, we adhere
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C. Family Matter Appeal
[¶18] The father challenges the denial of his motion to testify by video
link and the court’s denial of his request for rights of contact with the child.
1. Denial of Motion to Participate by Video Link
[¶19] We review decisions related to the mode of presentation of
evidence for an abuse of discretion, any factual findings for clear error, and
alleged constitutional violations de novo. See Sparks v. Sparks, 2013 ME 41,
¶ 19, 65 A.3d 1223; Malenko v. Handrahan, 2009 ME 96, ¶¶ 33-34, 979 A.2d
1269.
[¶20] “In every trial, the testimony of witnesses shall be taken in open
court, unless a statute, these rules or the Rules of Evidence provide otherwise.”
M.R. Civ. P. 43(a). “The court may, on its own motion or for good cause shown
upon appropriate safeguards, permit presentation of testimony in open court
by contemporaneous transmission from a different location.” Id.[¶21] The party moving for authorization for contemporaneous
transmission from another location has the burden of establishing good cause.
See id. Therefore, if that party appeals from the denial of the motion, he or she
to the title 22 standards for access and confidentiality in such proceedings. See 22 M.R.S. §§ 4005-D,
4008 (2017) (constraining access to child protection proceedings and records). The Department’s
motion ensured that those safeguards were in place in this appeal.
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bears the burden on appeal of demonstrating that the record compelled a
finding of good cause. See Malenko, 2009 ME 96, ¶ 34, 979 A.2d 1269. Here,
the father provided only bare assertions that unspecified medical attention and
disability accommodations would not be available at the county jail. On this
record and given the court’s concern that the father habitually filed motions
just before hearing dates, the court was not compelled to find good cause to
allow contemporaneous transmission of the father’s testimony, and it did not
abuse its discretion in determining that, if the father wished to testify or
otherwise participate, he would have to come to the hearing. See M.R. Civ. P.
43(a); see also M.R. Evid. 611(a).7
[¶22] Because the father had notice of the time and nature of the hearing
and the opportunity to appear and be heard, there was no violation of the
father’s right to due process. It was the father’s decision not to avail himself of
the opportunity to appear that kept him from participating. See Haskell v.
Haskell, 2017 ME 91, ¶ 15, 160 A.3d 1176; cf. In re Destiny T., 2009 ME 26, ¶ 15,
965 A.2d 872 (vacating jeopardy finding when the father was not notified that
7 Cf. In re A.M., 2012 ME 118, ¶ 20 n.2, 55 A.3d 463 (“The fact finder must be able to assess the
parent’s demeanor and credibility, the quality of the parent-child relationship and other intangible
factors in determining whether the parent is unfit. Given the complexity of this task and the risk of
error inherent in such a determination, it is difficult to imagine how parental unfitness can
constitutionally be evaluated in the parent’s absence.” (quotation marks omitted)).
12
jeopardy would be considered at the scheduled hearing). Furthermore, the
father’s counsel was present, cross-examined the mother, and had the
opportunity to offer evidence and argument on the father’s behalf.
2. Order of No Rights of Contact
[¶23] We review findings of fact for clear error and the determination of
the best interest of a child for an abuse of discretion. See Boyd v. Manter,
2018 ME 25, ¶ 6, 179 A.3d 906. We “will vacate factual findings that are adverse
to the party with the burden of proof only if the record compels a contrary
conclusion.” Haskell, 2017 ME 91, ¶ 12, 160 A.3d 1176 (quotation marks
omitted). Here, the father had the burden to rebut the presumption that, due
to his crimes against children, his contact with the child would create a situation
of jeopardy and would not be in the child’s best interest. See 19-A M.R.S.
§ 1653(6-B)(A).
[¶24] Contrary to the father’s contention, evidence was offered at trial
indicating that the child is strongly negatively affected when she fears she will
have contact with the father and does not want any contact with him, including
by mail. The record does not compel a finding that the father rebutted the
presumption that allowing him contact with the child would create a situation
of jeopardy and would not be in the child’s best interest. See id.
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The entry is:
Motion to dismiss the appeal from the judgment
entered in the child protection matter granted.
Judgment entered in the family matter affirmed.
James P. Howaniec, Esq., Lewiston, for appellant father
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services
Biddeford District Court docket numbers PC-2003-33 and FM-2018-267
FOR CLERK REFERENCE ONLY