In re Arturo G.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 228 Docket: Yor-17-280
Submitted
On Briefs: November 29, 2017
Decided: December 12, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
IN RE ARTURO G.
SAUFLEY, C.J.
[¶1] The parents of Arturo G. appeal from a judgment of the District
Court (Biddeford, Foster, J.) terminating their parental rights to Arturo
pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i), (ii) (2016) and,
with respect to the father, § 4055(1)(B)(2)(b)(iv). Arturo is two and a half
years old and, as a result of his parents’ drug addictions, has lived with four
different care providers in his short life. The father challenges the sufficiency
of the evidence to support the court’s finding of unfitness. He also argues that
he was deprived of due process when the court denied his motion to continue
a hearing on the ground that he was experiencing withdrawal from Suboxone.
The mother argues that the court erroneously admitted hearsay evidence in the
form of drug test results. The evidence supports the court’s factual findings;
the father received due process; and the court did not abuse its discretion in
admitting evidence of the mother’s drug test results. We affirm the judgment.
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I. BACKGROUND
[¶2] On April 23, 2015, the Department of Health and Human Services
filed a petition for a child protection order concerning the child, who at that
time was only two weeks old. The Department based its petition on the parents’
significant history of substance abuse and incarceration and on a prior order
terminating the mother’s parental rights to her older daughter. On June 5,
2015, the court entered a jeopardy order with respect to the father, to which he
agreed. Pursuant to that jeopardy order, the father was required to submit to
random testing for drugs and alcohol by both hair and urine, and the
Department was required to facilitate the father’s substance abuse counseling.
[¶3] On July 17, 2015, the court entered a jeopardy order as to the
mother, to which she agreed. Pertinent to this appeal, that order included a
provision that “[u]pon request of the Department, mother shall promptly
submit to random testing for drugs and/or alcohol by both hair and urine; test
results shall be admissible in these proceedings.”
[¶4] The Department filed a petition to terminate the parental rights of
both parents on August 11, 2016. A hearing on the petition was held on May 8
and 9, 2017. On the morning of the first day of the hearing, the father moved to
continue the hearing on the ground that he was suffering from symptoms of
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withdrawal from Suboxone. He stated that the withdrawal resulted from the
Department’s decision to cut off payments for the Suboxone in order to force
the father into releasing records documenting his substance abuse counseling.
In support of the motion, the father’s counsel stated that because of the
withdrawal symptoms, the father was “at a little bit of a disadvantage.” He later
stated, “I don’t believe he’s incoherent, but he’s saying that it has affected his
ability somewhat.”
[¶5] The court summarized the positions of the parties: “The
Department’s saying they have an obligation . . . to make sure the person is using
the medication as prescribed and is attending counseling as recommended. . . .
[The father] is arguing the Department calculatedly did so to place him at a
disadvantage at a time that we are on the verge of hearing.” The court clarified
that the Department was not withholding Suboxone but withholding payments
until the father provided the Department with records showing that he had
been receiving treatment.1 The court stated, “[the father] had every reason to
1 The underlying dispute between the Department and the father involved his refusal to authorize
the release of medical records demonstrating his compliance with the reunification plan. Pursuant
to a pretrial order, the court required all parties to “execute any releases of information forms
necessary for the full exchange of information among counsel, caseworker, and the Guardian ad litem
and for testimony at trial.” The father argued that he was justified in refusing to provide or release
the records because a Department caseworker had disclosed to his aunt that he was positive for
hepatitis. The Department’s position was that it was obligated to ensure that the father was in
treatment before providing Suboxone. There is no evidence in the record showing when the father
began to refuse to release his records, although about two weeks before trial, the Department filed a
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understand the Department would be seeking those records and had an
obligation to sign the releases in a timely fashion.” It denied the motion to
continue.
[¶6] The Department’s first witness was a substance abuse counselor.
He testified that within seventy-two hours of Suboxone withdrawal, a person is
likely to experience “[h]eadaches, poor sleep, chills, sweating, diarrhea,
vomiting, weakness, craving, anxiety, depression, [and] frustration.” The father
renewed his motion to continue. The Department objected to the motion and
offered to obtain an immediate authorization for a prescription. The court once
again denied the motion. The father received treatment during a break on the
first day, and he testified on the following day.
[¶7] Also on the morning of the first day of the hearing, the mother
objected to the admission of certain positive drug test results from a laboratory
engaged by the mother’s substance abuse counseling service pursuant to her
reunification plan. The mother contended that the reports were inadmissible
hearsay and were not covered by the admissibility provisions in the jeopardy
order because they were not specifically requested by the Department.
motion asking the court to order the father’s treatment providers to disclose records pertaining to
his substance abuse treatment.
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[¶8] The court overruled the mother’s objection. It stated, “I think that
clearly the spirit of the jeopardy order was . . . . tests are generated in treatment
scenarios where a treatment provider requested those tests occur.”
[¶9] On June 12, 2017, the court entered a judgment terminating the
parents’ parental rights. Based on the evidence presented at the hearing, the
court found that both parents were (1) unwilling or unable to protect the child
from jeopardy and these circumstances are unlikely to change within a time
reasonably calculated to meet the child’s needs, and (2) unwilling or unable to
take responsibility for the child within a time that is reasonably calculated to
meet the child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii). The court also
found that the father had failed to make a good faith effort to rehabilitate and
reunify with the child. See id. § 4055(1)(B)(2)(b)(iv). The court further
determined that termination of both parents’ parental rights was in the child’s
best interest. See id. § 4055(1)(B)(2)(a). [¶10] Both parties timely appealed. See 22 M.R.S. § 4006 (2016); M.R.
App. P. 2 (Tower 2016).2
2 The parties filed their notices of appeal prior to the September 1, 2017, effective date of the
restyled Appellate Rules. See M.R. App. P. 1. Therefore, the 2016 rules apply.
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II. DISCUSSION
A. Evidence of Unfitness
[¶11] The father challenges the sufficiency of the evidence supporting
the court’s determination that he is an unfit parent. He does not challenge the
court’s finding that termination of his parental rights is in the child’s best
interest.3 See 22 M.R.S. § 4055 (1)(B)(2)(a). “We review the trial court’s
determination of parental unfitness to see if a review of the entire record
demonstrates that the trial court rationally could have found clear and
convincing evidence in that record to support the necessary factual findings as
to the bases for termination.” In re Higera N., 2010 ME 77, ¶ 29, 2 A.3d 265. In
conducting this review, we view the facts, and the weight to be given them,
through the trial court’s lens. In re Cameron Z., 2016 ME 162, ¶ 16, 150 A.3d
805.
[¶12] The court made the following factual findings concerning the
father’s unfitness:
On May 20, 2015, [the father] agreed to the entry of a Jeopardy
Order. . . . based on a “significant history of substance abuse,
criminal conduct and incarceration.” . . . [The father] had been
“clean” since 2011 but had tested positive for suboxone on April 14
of 2015. . . . [The father] did not have safe and stable housing for
3 Any such challenge would be futile because, in determining that termination is in the child’s best
interest, the court did not commit clear error or abuse its discretion. In re Caleb M., 2017 ME 66, ¶ 34,
159 A.3d 345.
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himself or his son. In support of reunification, [the father] was to
submit to a Families Affected by Substance Abuse . . . evaluation to
determine the recommended level of treatment for substance
abuse, submit to random drug tests, and obtain suitable housing,
among other tasks. . . .
. . . .
[By] February of 2016, . . . [the father] had done little to
reunify with his son. He had not attended any of the drug screens
requested by the Department. In fact, he had actually shaved his
body to preclude any hair tests.
. . . .
[The father] did not enroll in [substance abuse and mental
health] services until October of 2016, fifteen months after the
entry of the Jeopardy Order. He has not been honest about his use
and has undermined any attempt to gain a more complete picture
of his activity by refusing to comply with reasonable requests for
random drug testing. . . . On those occasions when he tested
positive for illegal substances, [the father] offered explanations
that were self serving and unreliable.
[¶13] These findings and the court’s other specific findings of fact are all
supported by competent evidence in the record, and the court adequately
explained how the father’s deficits render him unfit. In re Logan M., 2017 ME
23, ¶ 3, 155 A.3d 430.4
4 Although not challenged by the mother, the evidence also supports the court’s finding of her
parental unfitness by clear and convincing evidence.
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B. Denial of the Motions to Continue
[¶14] The father also contends that the court denied him due process
when it denied his motions to continue the trial.5 See U.S. Const. amend. XIV,
§ 1; Me. Const. art. I, § 6-A. We review a court’s decision to deny a motion to
continue for abuse of discretion. In re J.B., 2015 ME 25, ¶ 5, 112 A.3d 369. When
due process is implicated, we review such a procedural ruling to determine
whether the process “struck a balance between competing concerns that was
fundamentally fair.”6 In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463 (quotation
marks omitted). In the context of a termination hearing, balancing the interests
requires “notice of the issues, an opportunity to be heard, the right to introduce
5 At trial, the father did not expressly describe this issue as one involving due process. However,
the issue is properly preserved for appeal because there was a “sufficient basis in the record” to alert
the trial court to the due process issue. See Alexander, Maine Appellate Practice § 402 at 243 (4th ed.
2013); State v. Dolloff, 2012 ME 130, ¶ 39 n. 11, 58 A.3d 1032. It appears that the trial court did
indeed consider the motion in terms of due process, observing that the issue was whether the father
was “incapable of participating fully in a hearing regarding his child.”
6 Although the father attempts to cast his argument wholly in terms of due process, most of his
argument regarding the court’s denial of his motion to continue is factual. The court specifically
found that although the father “and his counsel attempted to characterize the action as the
caseworker having deprived [the father] of his medication[,] . . . it [actually] withheld payment for
that medication, feeling it should not pay for it unless it could reassure itself [that the father] was
engaged in treatment. This was not an unreasonable position for the Department to maintain.” To
the extent that the father’s appeal is based on a challenge to this finding, we accept the finding
because it is supported by competent evidence in the record. Further, there is nothing at all in the
record to support the father’s characterizations that, for example, he was “incapacitated” at trial.
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evidence and present witnesses, the right to respond to claims and evidence,
and an impartial factfinder.” Id. ¶ 16. [¶15] Here, there is no question that the father had notice of the issues
that would be raised at the hearing. As to the father’s opportunity to be heard,
he testified, presented witnesses, and involved himself in the examination and
cross-examination of witnesses. Indeed, he even participated actively and
meaningfully in the discussion regarding the motion to continue. To the extent
that the father argues that the fact-finder was not impartial, that challenge is
based entirely on the court’s factual determination that the Department was
“not unreasonable” when it withheld payments for Suboxone until it could
verify that the father was attending substance abuse counseling. The court’s
factual determination on this point is supported in the record, and there is no
other support for the contention that the fact-finder lacked impartiality.
[¶16] Nor does the father—who was represented by counsel throughout
these proceedings, including at the hearing—explain on appeal how the court’s
findings would have been different had he been well. His failure to explain how
his alleged incapacity prejudiced his case is relevant in determining whether he
was deprived of due process. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463.
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[¶17] There is no support for the father’s contention that he was
incapacitated at trial. The father received his Suboxone treatment on the first
day of trial. He testified and participated at trial. He has not shown how the
results of the trial would have been different had a continuance been granted.
The father was not deprived of due process. See In re Kristy Y., 2000 ME 98,
¶¶ 7-8, 752 A.2d 166. The court did not abuse its discretion in denying the
father’s motion to continue.
C. Admissibility of the Mother’s Drug Test Results
[¶18] Finally, the mother argues that the court erred in admitting a series
of drug test results over her hearsay objection. The Department concedes that
these results would be inadmissible hearsay absent an agreement by the
parties waiving any admissibility objections. It argues that the jeopardy order,
to which the parties agreed, constituted a waiver of hearsay objections
regarding the drug test results. Pursuant to the jeopardy order, “Upon request
of the Department, mother shall promptly submit to random testing for drugs
and/or alcohol by both hair and urine; test results shall be admissible in these
proceedings.”
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[¶19] We review a trial court’s decision to admit evidence for abuse of
discretion or clear error.7 State v. Hall, 2017 ME 210, ¶ 15, --- A.3d----. Here,
the court properly relied on the earlier jeopardy order in admitting the test
results. See United States v. Mezzanatto, 513 U.S. 196, 202 (1995)
(“[A]greements to waive hearsay objections are enforceable.”). Although there
is some ambiguity in the jeopardy order, the court did not abuse its discretion
when it applied the admissibility provision in the order generally to results
7 The parties disagree as to the standard of review to be applied. The mother argues that her right
to due process is implicated by the court’s construction of the waiver agreement and that we should
review it de novo and hold that the waiver does not apply unless it is an unambiguous “knowing and
voluntary” waiver of the mother’s constitutional rights. However, she did not raise this as a due
process issue at trial, and there was not a “sufficient basis in the record” to alert the trial court to a
due process issue. See Alexander, Maine Appellate Practice § 402 at 243 (4th ed. 2013); Dolloff, 2012
ME 130, ¶ 39 n. 11, 58 A.3d 1032. Therefore, the due process issue is waived. Nor do we find any
support in the case law for the mother’s contention that we should review the waiver agreement
itself de novo.
On the other hand, the Department appears to contend that because a trial court has “inherent
power to construe its judgment,” the trial court’s construction of its own order must be affirmed.
This phrase is inapposite here. The cases establishing a court’s inherent power to construe its
judgment generally involve a jurisdictional question regarding whether a court has authority to
subsequently amend or clarify a prior order. E.g., Boothbay Harbor Condo. I v. Whitten, 387 A.2d 1117,
1120 (Me. 1978); Randlett v. Randlett, 401 A.2d 1008, 1010 (Me. 1979). The cases do not involve
questions regarding the scope of an agreement or the standard we will use in reviewing the effect of
the agreement.
Because the mother’s waiver does not raise constitutional issues, we review the court’s
decision to admit evidence pursuant to the waiver provision for an abuse of discretion. See State v.
Hall, 2017 ME 210, ¶¶ 15, 22 --- A.3d --- (holding that review of a court’s decision to admit evidence
is for abuse of discretion).
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obtained through substance abuse providers engaged by the Department as
part of its reunification efforts.8
The entry is:
Judgment affirmed.
Erika S. Bristol, Esq., Auburn, for appellant father
Jack Hunt, Esq., Kennebunk, for appellant mother
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 number PC-2015-17
FOR CLERK REFERENCE ONLY
8 We also note that the mother presented no evidence challenging the accuracy or reliability of
the test results that the court admitted into evidence. Further, although when the court admitted the
documentary test results it left open the opportunity for the mother to secure an expert to address
that evidence, the mother never did so.