In re Child of Brooke B.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 20Docket: Yor-19-350
Submitted
On Briefs: January 23, 2020
Decided: January 30, 2020
Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE CHILD OF BROOKE B.
PER CURIAM
[¶1] Brooke B. appeals from a judgment of the District Court
(Biddeford, Duddy, J.) finding that her child was in circumstances of jeopardy to
the child’s health or welfare and ordering that the child remain in the custody
of the Department of Health and Human Services. See 22 M.R.S. §§ 4035(2),
4036(1)(A) (2018). The mother contends that (1) her right to due process was
violated by the way that the trial judge conducted the hearing, which
demonstrated that the judge was not impartial; and (2) certain of the court’s
factual findings were clearly erroneous. We affirm the judgment.1
A. Due Process
[¶2] The court made it clear to all parties throughout the hearing that the
time available was limited, and the court interjected at several points to remind
all parties of the need to focus their presentations. The evidence presented on
1 The identity of the child’s father had not been conclusively determined at the time of the hearing.
2
the first day of the two-day hearing was largely at the discretion of the
Department, and the evidence presented on the second day was largely at the
discretion of the mother.
[¶3] Contrary to the mother’s contention that she was deprived of due
process because the trial judge did not act impartially, the court’s actions and
comments are best viewed as an attempt to assist her in completing her case
within the allotted time by advising her as to the areas of inquiry that the court
deemed most important.2 See State v. Bard, 2018 ME 38, ¶ 43, 181 A.3d 187(“Statements made by a judge during . . . judicial proceedings will not constitute
bias or prejudice except in the extraordinary circumstances in which those
statements reveal a deep-seated favoritism or antagonism that would make fair
judgment impossible.” (alteration and quotation marks omitted)).
[¶4] Even in cases where fundamental rights are at issue, trial courts
have broad discretion to control the order and timing of the presentation of
evidence and to set and enforce reasonable time limits on hearings. Dolliver v.
Dolliver, 2001 ME 144, ¶¶ 10–12, 782 A.2d 316; Bradford v. Dumond,
675 A.2d 957, 962–63 (Me. 1996).
2 We do not consider the “proffer” offered in the mother’s brief concerning what purportedly
occurred during an unrecorded chambers conference. The substance of the conference was not
placed on the record, and the mother did not avail herself of the procedure available in
M.R. App. P. 5(d) to create a record of the unrecorded proceeding.
3
[¶5] The court did not restrict or direct the mother’s presentation of her
case apart from the time limitation, which it imposed on the Department’s case
as well. See M.R. Evid. 611(a) (“The court must exercise reasonable control over
the mode and order of examining witnesses and presenting evidence so as to . . .
[m]ake those procedures effective for determining the truth [and] [a]void
wasting time.”). See also Field & Murray, Maine Evidence, § 611.1 (6th ed. 2007).
[¶6] Furthermore, the mother did not move for the judge’s recusal, either
during the hearing or at any subsequent point. We have emphasized that
“a party who is concerned about a judge’s impartiality should tender
its concerns to the court at the earliest possible moment. To the maximum
extent possible, this should occur before adjudication takes place.”
Samsara Mem’l Tr. v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶ 30,
102 A.3d 757 (citation omitted). Because the mother did not do so, our review
is for an obvious error that “deprived the [mother] of a fair trial and resulted in
a substantial injustice.” Id. (quotation marks omitted). We discern no error,
obvious or otherwise, on this record.
B. Factual Findings
[¶7] The court based its jeopardy determination on the following factual
findings, all of which have support in the record:
4
From October 2017 to present, [the mother] has suffered
from, and continues to suffer from, an active substance abuse
condition. . . .
In February of 2019, [the mother] engaged in a domestic
violence incident involving [the father of her older child] in which
she was at least a partial participant . . . . The incident occurred
when [the child at issue here] was in the home. During this
incident, [the mother] tried to commit self-harm and she admits
that she has tried to harm herself in the past.
On or about April 8, 2019, [the mother] took [the child] and
[the child’s sister] to a home . . . that is not safe for children because
of the adult inhabitants or their visitors, some of whom have a
history of unlawful drug activity. One of the individuals in the
home was actively using methamphetamine while [the mother]
and the children were visiting.
On April 25, 2019, [the mother] tested positive for abusing
amphetamines and methamphetamine and the court finds that she
was, in fact, abusing amphetamines and methamphetamines.
There is no evidence to suggest that the test is not reliable. . . . The
court is singularly concerned about [the mother’s] denial of the
results of that test. . . .
[The mother’s] judgment and memory are impaired due to
her substance abuse. [The mother] is in denial and does not
recognize, acknowledge, or take responsibility for her substance
abuse.
The Court finds as a matter of law and by a preponderance of
the evidence that jeopardy exists based on [the mother’s] misuse
of substances and her ongoing substance use which is not
successfully treated . . . [,] her mental health issues which are not
yet successfully treated . . . [,] exposing [the child] to unsafe
individuals . . . [, and] engaging in domestic violence in the presence
of [the child].
5
[¶8] “We review the court’s factual findings for clear error and will affirm
its jeopardy determination . . . unless there is no competent record evidence
that can rationally be understood to establish as more likely than not that the
child was in circumstances of jeopardy to his or her health and welfare.”
In re Children of Troy H., 2019 ME 154, ¶ 5, 218 A.3d 750 (quotation marks
omitted). On this record, contrary to the mother’s contention, we conclude that
the court’s supported findings “establish as more likely than not that returning
the child[] to the [mother’s] custody would cause the child[] serious harm or
the threat of serious harm.” Id. ¶ 7 (alterations, footnote, and quotation marks
omitted); see 22 M.R.S. §§ 4002(6)(A), 4035(2) (2018).
The entry is:
Judgment affirmed.
Vicki Mathews, Esq., Scarborough, for appellant mother
Aaron M. Frey, 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-2019-36
FOR CLERK REFERENCE ONLY