In re Child of Jillian T.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 54
Docket: Kno-19-425
Submitted
On Briefs: February 26, 2020
Decided: April 28, 2020
Revised: June 23, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
IN RE CHILD OF JILLIAN T.
GORMAN, J.
[¶1] Jillian T. appeals from a judgment of the District Court (Rockland,
Sparaco, C.J.) finding that she presents jeopardy to her child pursuant to
22 M.R.S. § 4035 (2018). The mother challenges the court’s finding of the date
on which the child is considered to have entered foster care within the meaning
of 22 M.R.S. §§ 4038-B(1)(B), 4041(1-A), 4052(2-A)(A)(1) (2018). The
Department of Health and Human Services has moved to dismiss the appeal,
arguing that the court’s finding is not appealable. We deny the Department’s
motion to dismiss because the jeopardy order is an appealable final judgment,
and we agree with the mother that the court miscalculated the date on which
her child is considered to have entered foster care. We therefore vacate the
judgment in part.
2
I. BACKGROUND
[¶2] The Department initiated child protection proceedings and
requested a preliminary protection order (PPO) as to this child on July 4, 2019,
alleging that the child—then eleven months old—had suffered from several
nonaccidental and unexplained bone fractures and an injury to his ear, for
which the mother had not provided adequate medical care.1 See 22 M.R.S.
§§ 4032, 4034(1) (2018). The court (E. Walker, J.) entered a preliminary
protection order that day placing the child in the Department’s custody. See 22
M.R.S. § 4034(2) (2018). The mother waived her right to a summary
preliminary hearing. See 22 M.R.S. § 4034(4) (2018).
[¶3] With the mother’s agreement, the court (Sparaco, C.J.) entered an
order on October 10, 2019, finding, by a preponderance of the evidence, that
the child is in jeopardy to his health or welfare based on his serious and
unexplained physical injuries, a threat of serious emotional injury posed by the
mother, and the mother’s deprivation of adequate medical and developmental
care to the child. See 22 M.R.S. § 4035. In the jeopardy order, the court also
found that the child entered foster care on July 4, 2019, the date that the PPO
1The Department also alleged jeopardy to the child by the father. The court later found jeopardy
as to the father, but because he does not appeal from that judgment, we address the facts and
procedure only as to the mother.
3
was signed. On the mother’s motion, the court later clarified by a corrected
jeopardy order dated November 8, 2019, that, although the mother had agreed
to the jeopardy findings, the mother had not agreed to the finding regarding the
child’s date of entry into foster care. The mother appeals, challenging only the
finding of the date of the child’s entry into foster care.2 See 22 M.R.S. § 4006
(2018); M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶4] The date on which a child is “considered to have entered foster care”
is the basis for the calculation of three statutory deadlines in a child protection
matter: (1) the Department (and the parents) must initiate rehabilitation and
reunification efforts on that date, 22 M.R.S. § 4041(1-A); (2) the court must
conduct a permanency planning hearing within twelve months after that date,
22 M.R.S. § 4038-B(1)(B); and (3) the Department must file a petition seeking
the termination of parental rights before the end of the fifteenth month after
2 The Department has moved to dismiss the appeal as interlocutory, arguing that a challenge to
the court’s finding of the date of entry into foster care is not an appealable final judgment pursuant
to 22 M.R.S. § 4006 (2018) because it is not necessary to the entry of an otherwise appealable
jeopardy order. See In re L.R., 2014 ME 95, ¶ 9, 97 A.3d 602 (“Section 4006 unequivocally provides
that in child-protective cases orders other than termination orders, jeopardy orders, or orders
authorizing medical treatment are not appealable.” (quotation marks omitted)). We disagree. The
mother challenges a factual finding in a jeopardy order entered pursuant to 22 M.R.S. § 4035 (2018),
and a jeopardy order entered pursuant to section 4035 is appealable pursuant to section 4006. See
In re B.C., 2012 ME 140, ¶¶ 9-11, 15, 58 A.3d 1118 (allowing a parent to challenge on appeal an
aggravating factor finding that was made within, but not necessary to, a jeopardy order). We
therefore deny the Department’s motion to dismiss the appeal.
4
that date if the child has been in foster care for fifteen of the most recent
twenty-two months, 22 M.R.S. § 4052(2-A)(A)(1). Because the date carries
such important consequences, we must be precise in determining it.
[¶5] The statute defines the date on which a child is “considered to have
entered foster care” as the earlier of two dates—“the date of the first judicial
finding that the child has been subjected to child abuse or neglect” or “the 60th
day after the child is removed from the home.” 22 M.R.S. §§ 4038-B(1)(B),
4041(1-A). Here, there is no dispute that the child was removed from the home
on July 4, 2019. The court found that the child entered foster care on that date,
meaning that it interpreted “the date of the first judicial finding that the child
has been subjected to child abuse or neglect” to refer to the date on which the
PPO was granted. 22 M.R.S. §§ 4038-B(1)(B); 4041(1-A); see 22 M.R.S.
§ 4034(2). The mother contends that the first judicial finding of abuse or
neglect instead occurred upon the entry of the jeopardy order on October 10,
2019.3
[¶6] Thus, although the jeopardy order was entered with the agreement
of the mother, the mother challenges the court’s determination that the child
entered foster care on July 4, 2019, a finding to which the mother did not agree.
Sixty days after the PPO was signed was September 2, 2019. See 22 M.R.S. §§ 4038-B(1)(B),
3
4041(1-A) (2018).
5
We review the court’s factual findings for clear error, and we will not disturb
those findings if there is any competent record evidence to support them. In re
Child of Ryan F., 2020 ME 21, ¶¶ 29-30, 224 A.3d 1051. The court’s
determination of the date on which the child entered foster care reflects its
interpretation of statutory provisions, however, which we consider de novo as
a matter of law, first by examining their plain language. See In re Alivia B.,
2010 ME 112, ¶¶ 7, 9, 8 A.3d 625.
[¶7] The plain language of the statute provides an unambiguous answer.
Not infrequently, children who are subject to child protection orders are first
removed from their homes and placed in foster care as a result of PPOs. See 22
M.R.S. §§ 4034(2), 4036(1)(F) (2018). To construe a PPO as the first judicial
finding of abuse or neglect would mean that the date a child is considered to
have entered foster care refers to the earlier of a particular event (the entry of
the PPO that resulted in the child’s removal from the home) or sixty days after
that same event (sixty days after the entry of the PPO). This reading of the
statute creates patently absurd results by which two alternatives are
categorically narrowed to one; if the PPO triggers the operative date, then sixty
days after the PPO is entered will always be later than the date on which the
PPO is entered. Determining that the child has entered foster care on the earlier
6
of the two alternatives renders the sixty-day alternative to be entirely
meaningless. This contradicts one of our basic rules of statutory construction—
that no language should be rendered surplusage. See In re Child of Nicholas P.,
2019 ME 152, ¶ 36, 218 A.3d 247 (“A statute should be interpreted to avoid
surplusage, which occurs when a construction of one provision of a statute
renders another provision unnecessary or without meaning or force.”
(quotation marks omitted)).
[¶8] Instead, we read the plain language to preserve the two alternatives
for calculating the date in a way that avoids absurd results and creates no
surplusage.4 This is accomplished by interpreting the “date of the first judicial
4 If this analysis of the plain meaning were not sufficiently dispositive, an examination of the
history of the language would be. See In re Child of Nicholas P., 2019 ME 152, ¶ 32, 218 A.3d 247
(stating that we consider legislative history and other indicia of legislative intent when the statutory
language is ambiguous). The language at issue is directly quoted from federal law. The Child and
Family Services and Child Protection Act, 22 M.R.S. §§ 4001 to 4099-I (2018), was enacted in
compliance with numerous provisions in the federal Social Security Act, 42 U.S.C.S. §§ 301-1397mm
(LEXIS through Pub. L. No. 116-108), as amended by the Adoption and Safe Families Act of 1997, Pub.
L. No. 105-89, 111 Stat. 2115. See P.L. 1979, ch. 733, § 18 (effective July 3, 1980). In particular, Title
IV-E of the Social Security Act provides federal funding to states, like Maine, whose foster care
systems meet certain requirements, 42 U.S.C.S. §§ 670-679c, which requirements are further
elucidated in federal regulations, see 45 C.F.R. §§ 1356.21, 1356.22 (LEXIS through Mar. 23, 2020).
Among other funding eligibility requirements, a state must enact procedural safeguards
regarding the time by which permanency hearings must be held and termination of parental rights
petitions must be filed, both of which are established by reference to the date the child is “considered
to have entered foster care.” 42 U.S.C.S. § 675(5)(C); see 45 C.F.R. §§ 1356.21(b)(2), (i)(i)(A),
1356.22(a); see also New York ex rel. N.Y. State Office of Children & Family Servs. v. U.S. Dep’t of Health
& Human Servs.’ Admin. for Children & Families, 556 F.3d 90, 100 (2d Cir. 2009). The Social Security
Act defines the date that a child is considered to have entered foster care as “the earlier of . . . (i) the
date of the first judicial finding that the child has been subjected to child abuse or neglect; or (ii) the
date that is 60 days after the date on which the child is removed from the home.” 42 U.S.C.S.
§ 675(5)(F). The Code of Federal Regulations contains the same language, along with the additional
7
finding that the child has been subjected to child abuse or neglect” as the date
on which a jeopardy order is entered.5 22 M.R.S. §§ 4038-B(1)(B), 4041(1-A).
This is also the method of calculation that we have used in earlier decisions. In
In re Thomas D., for example, we concluded that the first judicial finding of
abuse or neglect occurred via the jeopardy order rather than the PPO: “[The
child] entered foster care for purposes of section 4041(1-A)(A)(1)(a) no later
than February 27, 2002, the date of the jeopardy order, which was less than
explanation that “[a] title IV-E agency may use a date earlier than that required in this definition, such
as the date the child is physically removed from the home.” 45 C.F.R. § 1355.20(a) (LEXIS through
Mar. 23, 2020) (emphasis added).
Here lies the rub. This federal regulation expressly provides that the date that a child is
physically removed from the home may be earlier than that for which either existing date alternative
provides in calculating the date on which a child is considered to have entered foster care. Because
the federal language has already been expressly explained not to refer to the date that the child is
physically removed from the home—an event that, in Maine, usually occurs as the result of a PPO—
Maine’s identical language must be interpreted the same way. See Caribou Sch. Dep’t v. Caribou
Teachers Ass’n, 402 A.2d 1279, 1285 (Me. 1979) (interpreting a Maine statute “in a similar manner”
as a federal statute with “nearly identical language”); Weeks v. State, 267 A.2d 641, 646 (Me. 1970)
(stating that “practically identical language” in a Maine provision and a federal provision render the
two provisions “coextensive in meaning”); cf. Levis v. Konitzky, 2016 ME 167, ¶ 14 n.5, 151 A.3d 20
(distinguishing the result in matters decided based on a federal rule because Maine’s version of that
rule contained different language). Although states are free to adopt the date on which the child is
physically removed from the home as the date on which the child is considered to have entered foster
care pursuant to 45 C.F.R. § 1355.20(a), any state doing so would obviously have to use language
different from the federal provisions.
5 Interpreting the jeopardy order as the first finding of abuse or neglect need not delay the
provision of rehabilitation and reunification services. See 22 M.R.S. § 4041(1-A). In the vast majority
of cases involving PPOs, the Department has already been providing services to the family. Even if
the Department does wait to provide services until after a jeopardy proceeding—an unlikely event—
measuring the date the child is considered to have entered care as the jeopardy date or sixty days
after the PPO also extends the time within which the Department is required to seek a permanency
planning order and file a termination of parental rights petition, an extension that may well benefit
family reunification. See 22 M.R.S. §§ 4038-B(1)(B), 4052(2-A)(A)(1) (2018).
8
sixty days after he was taken into the Department’s custody pursuant to the
ex parte preliminary protection order entered January 7, 2002.” 2004 ME 104,
¶ 27, 854 A.2d 195.
[¶9] We conclude that the first judicial finding of abuse or neglect was
on October 10, 2019, the date that the jeopardy order was entered. The child
was removed from the home on July 4, 2019; sixty days after the child’s removal
from the home was therefore September 2, 2019. As between the October 10,
2019, jeopardy date and the September 2, 2019, sixty-day date, September 2,
2019, is earlier. The September 2, 2019, date is therefore the date on which this
child is considered to have entered foster care within the meaning of sections
4038-B(1)(B), 4041(1-A), and 4052(2-A)(A)(1). We therefore vacate only the
portion of the jeopardy order containing that finding, and we remand for entry
of an order that reflects September 2, 2019, as the date on which this child is
considered to have entered foster care.6 We affirm the jeopardy order in all
other respects.
The entry is:
Judgment vacated. Remanded for entry of a
jeopardy order consistent with this opinion.
6Because we vacate the judgment on the issue of the date the child is considered to have entered
foster care, we need not address the mother’s additional argument regarding due process.
9
Paula Hopkins, Esq., West Rockport, for appellant mother
Aaron M. Frey, Attorney General, and Zack Paakkonen, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services
Rockland District Court docket number PC-2019-17
FOR CLERK REFERENCE ONLY