Guardianship of Alisha K. Golodner

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 54 Docket: Yor-16-72
Argued: September 15, 2016
Decided: February 24, 2017
Reissued: March 16, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
GUARDIANSHIP OF ALISHA K. GOLODNER
PER CURIAM
[¶1] Daniel Golodner appeals from a judgment of the York County
Probate Court (Longley, J.) denying his petition to terminate the guardianship
of his now fourteen-year-old daughter, Alisha K. Golodner, upon finding that
(1) the guardian, Gail Golodner, proved, by clear and convincing evidence, that
Daniel is unfit to parent Alisha; and (2) Daniel failed to prove, by a
preponderance of the evidence, that termination of the guardianship would be
in Alisha’s best interest.1 We affirm the judgment denying Daniel’s petition to
terminate the guardianship, but we remand the case for the court to reconsider
1
Daniel also appeals from the court’s denial of his motion, filed pursuant to Maine Rule of Probate
Procedure 60(b) and Maine Rule of Civil Procedure 60(b)(3), (4), and (6), for relief from the judgment
appointing Gail as Alisha’s guardian. This challenge is grounded on his arguments that the court’s
decision was based on erroneous evidentiary and discovery rulings and violated his constitutional
right to due process. Because his arguments are unpersuasive, we discuss them no further and affirm
the court’s denial of his motion.
2
the portion of its order requiring Daniel to pay guardian ad litem (GAL) fees as
a sanction.
I. BACKGROUND
[¶2] Alisha Golodner was born in Germany in 2003 to Daniel Golodner
and Frauke Sawaha. The family moved to Connecticut and, after Frauke
returned to Germany, a Connecticut court awarded Daniel sole legal custody of
Alisha in 2006. In 2010, facing criminal charges and the possibility of jail time,
Daniel arranged for Alisha to live in Maine with his recently widowed
stepmother, Gail Golodner. Gail filed, in the York County Probate Court, a
petition to be appointed as Alisha’s guardian. After an uncontested hearing, the
court (Bailey, J.) granted Gail’s motion and appointed her as Alisha’s full,
permanent guardian. See 18-A M.R.S. § 5-204 (2016). The order made no
specific provision for ongoing contact between Daniel and Alisha.2
[¶3] For the first three years of the guardianship, Gail permitted Daniel
to have extended visits with Alisha at Gail’s home and to speak with his
daughter on the telephone. In late 2013, however, after an altercation between
Daniel and Alisha that prompted Gail to call the police, Gail told Daniel that he
2 Although Frauke was notified of the proceedings, she did not participate in them and is not a
party to this appeal.
3
was no longer welcome at the home and she denied him contact with Alisha.
On June 23, 2014, pursuant to 18-A M.R.S. § 5-212 (2016), Daniel filed a petition
to terminate the guardianship, alleging that the “[g]uardian ha[d] denied [him]
normal contact rights in an effort to alienate [him] and his family from [Alisha].”
[¶4] The court (Nadeau, J.) appointed a GAL and, on Daniel’s motion,
entered an interim order in October 2014 providing for ongoing contact
between Daniel and Alisha as coordinated by the GAL, including telephone calls
twice per week. The court ordered Gail to “ensure that [Alisha] will speak and
listen to [Daniel] during such telephone calls” and authorized Gail to record the
calls.
[¶5] On January 15 and 25, 2016, the court (Longley, J.) held a hearing on
Daniel’s petition to terminate the guardianship. The court heard testimony
from Daniel, Gail, the GAL, and a close friend of Daniel. Alisha also testified, on
the record but outside the presence of the parties and the attorneys. The court
admitted in evidence, inter alia, several recordings of telephone calls between
Daniel and Alisha. On the second day of the hearing, the GAL testified that
Daniel had left a voicemail for him after the first day of the hearing accusing the
GAL of “slander” and “libel” and threatening to “fil[e] a grievance with the Maine
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Bar” depending on “how [the GAL] perform[ed] between now and the end of
the trial or the end of the matter.”
[¶6] After the hearing, by order dated January 28, 2016, the court denied
Daniel’s petition to terminate the guardianship upon finding that (1) Gail
proved, by clear and convincing evidence, that Daniel is unfit to parent Alisha;
and (2) Daniel failed to prove, by a preponderance of the evidence, that
termination of the guardianship would be in Alisha’s best interest. The court,
however, imposed conditions on the guardian, requiring Gail to arrange
continued counseling for Alisha, “look for healthy opportunities for [Alisha] to
have routine telephone conversations with” Daniel, and ensure that Daniel has
reasonable access to Alisha’s report cards and extra-curricular information.
The court also ordered that Daniel pay fees for work performed by the GAL as
“a necessary consequence” for Daniel’s threatening conduct toward the GAL.
[¶7] Daniel timely appealed. 3
3 On February 17, 2017, we were notified that Gail died on February 13, 2017. Daniel filed with
us a motion for relief from the Probate Court’s order, suggesting that his appeal was moot but asking
us to “clarify and settle his status as sole custodian.” On February 24, 2017, we issued an opinion
denying Daniel’s motion for relief and concluding that the substance of Daniel’s appeal was moot.
See Guardianship of Golodner, 2017 ME 31 (withdrawn upon motion for reconsideration by order
dated March 16, 2017). Daniel moved for reconsideration pursuant to M.R. App. P. 14(b). For the
reasons set forth in our order on that motion, we concluded that the “collateral consequences”
exception to the mootness doctrine applies in the unique circumstances of this case. We therefore
granted Daniel’s motion for reconsideration and withdrew our original opinion, which is replaced by
this opinion.
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II. DISCUSSION
[¶8] Daniel argues that there was insufficient evidence in the record to
support the court’s denial of his petition to terminate the guardianship, and that
the court’s decisions denying “transitional arrangements” and ordering
payment of the GAL’s fees constituted abuses of discretion. We address his
arguments in turn.
A. Sufficiency of the Evidence
[¶9] We review the Probate Court’s findings for clear error, which occurs
“if there is no competent evidence in the record to support [the finding], if the
fact-finder clearly misapprehends the meaning of the evidence, or if the finding
is so contrary to the credible evidence that it does not represent the truth and
right of the case.” Guardianship of Hailey M., 2016 ME 80, ¶ 15, 140 A.3d 478 (citations omitted) (quotation marks omitted). “In guardianship cases,
determinations of the weight, credibility, and significance of evidence are
primarily for the trial court as the finder of fact.” Id.
[¶10] The Probate Code authorizes “any person interested in the welfare
of a [child] . . . [to] petition for removal of a guardian on the ground that removal
would be in the best interest of the [child].” 18-A M.R.S. § 5-212(a). “The
petitioner has the burden of showing by a preponderance of the evidence that
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termination of the guardianship is in the best interest of the [child].”
18-A M.R.S. § 5-212(d).4
[¶11] Although the Legislature has provided no other express criteria,
we have determined that where the petitioner is the child’s parent, in order to
protect the parent’s fundamental liberty interest in directing the care and
upbringing of his or her child, the court must delve beyond consideration of the
child’s best interest to consider the petitioning parent’s fitness. Guardianship
of Jeremiah T., 2009 ME 74, ¶¶ 26-28, 976 A.2d 955; see Rideout v. Riendeau,
2000 ME 198, ¶ 12, 761 A.2d 291 (“[T]he best interests of the child standard,
standing alone, is an insufficient standard for determining when the State may
intervene in the decision making of competent parents.” (citing Troxel v.
Granville, 530 U.S. 57, 67-69 (2000))). We have further held that it is the party
opposing termination of the guardianship who bears the burden of proving that
the petitioning parent is currently unfit to regain custody of the child.
Guardianship of David C., 2010 ME 136, ¶¶ 4, 7, 10 A.3d 684.
4
Daniel appears not to challenge the court’s determination that he failed to prove, by a
preponderance of the evidence, that termination of the guardianship is in Alisha’s best interest.
See 18-A M.R.S. § 5-212(d) (2016). In any event, we conclude that the court was not compelled by
the evidence to find in Daniel’s favor on that point. See Guardianship of Gionest, 2015 ME 154, ¶ 5,
128 A.3d 1062.
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[¶12] Although the Legislature has established the standard of a
preponderance of the evidence for addressing the best interest of the child in a
proceeding to terminate a guardianship, neither we nor the Legislature has
made clear what specific standard of proof the existing guardian must meet in
proving the petitioning parent’s unfitness in order for the guardianship to
continue.5 Nor has the Legislature defined “fitness” for purposes of
termination-of-guardianship cases. The law in these areas is unsettled and
evolving. See Guardianship of Reena D., 35 A.3d 509, 514-15 (N.H. 2011)
(collecting cases and holding that where a guardianship was established by
consent, for the court to order continuation of the guardianship over the
petitioning parent’s objection, the guardian must prove, by clear and
convincing evidence, that the guardianship is “necessary to provide for the
essential physical and safety needs of the minor” and that terminating it would
“adversely affect the child’s psychological well-being” (quotation marks
omitted)); see also Tourison v. Pepper, 51 A.3d 470, 473-74 (Del. 2012) (holding
that on a parent’s petition, the guardianship must terminate unless the
5 We referred to a preponderance-of-the-evidence standard in Guardianship of David C. and cases
that followed. See Guardianship of David C., 2010 ME 136, ¶ 7, 10 A.3d 684; see also Guardianship of
Chamberlain, 2015 ME 76, ¶ 28, 118 A.3d 229; Guardianship of Stevens, 2014 ME 25, ¶ 14, 86 A.3d
1197. In Guardianship of David C., however, we were concerned primarily with the allocation of the
burden to prove unfitness as opposed to the standard of proof. 2010 ME 136, ¶¶ 4, 7, 10 A.3d 684.
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guardian proves, by clear and convincing evidence, that terminating the
guardianship would result in physical or emotional harm to the child); Boddie
v. Daniels, 702 S.E.2d 172, 174-75 (Ga. 2010) (same); In re Guardianship of D.J.,
682 N.W.2d 238, 243-46 (Neb. 2004) (holding that the guardianship must
terminate unless the guardian proves, by clear and convincing evidence, that
the petitioning parent is either unfit or has forfeited the right to custody).
[¶13] We need not decide the applicable burden in this case because the
court in fact applied the more stringent standard of proof—namely, clear and
convincing evidence, which is more favorable to Daniel—and the court’s
findings are supported by the evidence even under that standard of proof. The
evidence admitted during the hearing on Daniel’s petition to terminate the
guardianship amply supports the court’s finding, whether by a preponderance
of the evidence or by the more stringent standard of clear and convincing
evidence, that Daniel is unfit to parent Alisha. That evidence demonstrates that
Daniel’s interactions with Alisha are dominated by his shouting, insults, threats,
and emotional abuse, and have involved physical aggression; that his behavior
toward Alisha causes her fear and emotional distress; and that his
understanding of her needs is, as the GAL testified, “woefully lacking.” Daniel’s
own testimony at the hearing demonstrates his inability to understand the
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harm that he has caused his daughter, or even how his behavior toward Alisha
is problematic. On this record, the court’s findings do not constitute clear error,
and we decline to disturb the court’s decision to deny Daniel’s petition to
terminate the guardianship.
B. Transitional Arrangements
[¶14] Daniel next contends that the court abused its discretion by not
ordering certain transitional arrangements, such as increased visitation. When
the Probate Court “issu[es], modif[ies], or terminat[es] an order of
guardianship for a minor,” it may also, in its discretion, “provid[e] 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.” 18-A M.R.S. § 5-213 (2016). We review a court’s
decision as to whether to implement transitional arrangements for an abuse of
discretion. Guardianship of Stevens, 2014 ME 25, ¶¶ 16, 20, 86 A.3d 1197.
[¶15] Contrary to Daniel’s contention, this case is not like Stevens, where
we held both that the Probate Court’s finding that the petitioner was unfit was
clear error and that the court abused its discretion by refusing to implement
transitional arrangements. Id. ¶¶ 12, 16-20. Our conclusion was based on the
facts that “all competent evidence at trial demonstrated that [the mother] would
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be fit to parent [the child] 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 [the child] to [the mother]’s custody.” Id.
¶ 12 (emphasis added); see id. ¶¶ 17, 20.
[¶16] Here, there was no competent evidence at trial suggesting that
Daniel will become fit if permitted to engage in transitional services or
increased contact with Alisha. The court decided not to order “a transition,”
see 18-A M.R.S. § 5-213, and that decision is supported by the evidence of
Daniel’s ongoing difficulty in engaging in respectful communication with Alisha.
See Guardianship of Hailey M., 2016 ME 80, ¶¶ 27-28, 140 A.3d 478. The court
acted well within the bounds of its discretion when it declined to order
transitional arrangements and instead ordered the guardian to encourage
routine telephone contact—a condition on the guardianship that did not exist
previously.
C. GAL Fees as a Sanction
[¶17] Finally, Daniel challenges the portion of the court’s order regarding
GAL fees. The court stated, in relevant part:
Concerning a necessary consequence for [Daniel]’s threat to the
[GAL], this [c]ourt also orders that the GAL tally his hours in writing
his [r]eport for this [c]ourt and his post-Jan. 15, 2015 hours in
fielding [Daniel]’s threatening phone messages and his having to
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appear in court today as a witness, use his usual professional rate
of compensation and add the total resulting amount to his bill,
which this [c]ourt orders [Daniel] to pay.
[¶18] In general, we review an award of fees based on a party’s
misconduct for an abuse of discretion. Woolridge v. Woolridge, 2008 ME 11,
¶ 11, 940 A.2d 1082. Several aspects of the court’s order in this case
compromise our ability to undertake meaningful review. First, the court has
not yet entered an order stating the specific amount owed as a sanction.
See Conservatorship & Guardianship of Ann B. Thomas, 2017 ME 11,
¶ 10, --- A.3d ---. Second, the order does not make clear what rate of pay is to
be used or what hours are to be compensated. It is unclear whether the court
intended to require Daniel to pay only the fees associated with the specific tasks
mentioned (one of which—preparing the GAL report—is unrelated to Daniel’s
threatening telephone message), or whether it intended to require him to pay
for all GAL fees generated throughout the proceedings.6
[¶19] Third, the nature of the sanction—the court’s source of authority—
is also unclear. We cannot tell, from the order or the transcript of the hearing,
whether the court intended to impose the sanction pursuant to its contempt
6 The issue is further confused by the fact that the order appointing the GAL provided that Daniel
was to be responsible for one hundred percent of the GAL’s fees.
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power, see M.R. Civ. P. 66, pursuant to its “inherent authority to sanction parties
. . . for abuse of the litigation process,” see Cimenian v. Lumb, 2008 ME 107, ¶ 11,
951 A.2d 817 (quotation marks omitted), or pursuant to some other basis of
authority. In any case, in order to protect Daniel’s due process rights, see, e.g.,
Kirkpatrick v. City of Bangor, 1999 ME 73, ¶ 15, 728 A.2d 1268, the court should
have afforded him an opportunity to respond to the evidence against him that
led to the court’s sanction. See M.R. Civ. P. 66(c), (d) (setting forth procedures,
including notice and hearing, that apply when contempt occurs outside the
presence of the court); Guardianship of Isabella Ard, 2017 ME 12,
¶¶ 17-24, --- A.3d --- (vacating a sanction sounding in contempt where the court
did not implement the process required by M.R. Civ. P. 66); see also Chambers v.
NASCO, Inc., 501 U.S. 32, 57 (1991) (“As long as a party receives an appropriate
hearing, . . . the party may be sanctioned [pursuant to the court’s inherent
authority] for abuses of process occurring beyond the courtroom . . . .”).
[¶20] Although we otherwise affirm the judgment, we must therefore
vacate that portion of the court’s order relating to payment of GAL fees and
remand the matter for the court to reconsider the issue and for further
proceedings, if necessary.
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The entry is:
That portion of the court’s order requiring
Daniel Golodner to pay guardian ad litem fees as
a sanction is vacated and the matter is remanded
to the Probate Court for further proceedings
consistent with this opinion. In all other
respects, the judgment is affirmed.
David P. Mooney, Esq. (orally), Portsmouth, New Hampshire, for appellant
Daniel Golodner
Dana E. Prescott, Esq. (orally), Prescott Jamieson Murphy Law Group, LLC, Saco,
for appellee Gail Golodner
York County Probate Court docket number 2010-0676(1)
FOR CLERK REFERENCE ONLY