MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 76
Docket: And-14-368
Argued: December 10, 2014
Decided: June 18 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
GUARDIANSHIP OF SEBASTIEN CHAMBERLAIN et al.
SAUFLEY, C.J.
[¶1] In this matter of first impression, we are called upon to address the
constitutionality of the process that the Legislature has provided for a Probate
Court to establish a guardianship for a child who has been in the care of a “de facto
guardian” for an identified period of time without a parent’s consistent
participation in the child’s life. See 18-A M.R.S. § 5-204(d) (2014). Marc
Chamberlain, the father of two children who have been in the care of their maternal
grandmother for a number of years before and following the death of their mother,
presents this facial challenge to the constitutionality of a provision of the Probate
Code governing the appointment of guardians for minors, 18-A M.R.S. § 5-204(d).
[¶2] After a trial, the Androscoggin County Probate Court (Dubois, J.)
determined, pursuant to 18-A M.R.S. § 5-204(c) (2014), that the grandmother had
not proved by clear and convincing evidence—the statutorily designated standard
of proof—that Chamberlain had created an “at least temporarily intolerable” living
situation for the children. Id. The court did determine, however, applying the
2
lower statutory standard of proof by a preponderance of the evidence, that the
grandmother had met her burden pursuant to 18-A M.R.S. § 5-204(d)—the de facto
guardian provision. Because we conclude that the appointment of a guardian over
a parent’s objection upon proof by the lower standard of a preponderance of the
evidence violates the Due Process Clause of the United States Constitution, see
U.S. Const. amend. XIV, § 1, we vacate the judgment and remand the matter for
the court to apply the constitutionally required standard of proof by clear and
convincing evidence when applying section 5-204(d).
I. BACKGROUND
[¶3] The parties agree that Chamberlain has been living apart from the
children since 2007. On January 14, 2014, following the December 2013 death of
the children’s mother, their maternal grandmother, with whom they had been living
for several years, and their maternal aunt petitioned the Androscoggin County
Probate Court for appointment as the children’s co-guardians. The court appointed
the grandmother and aunt as temporary co-guardians of the children the next day.
The court held a hearing on June 24, June 25, and July 14, 2014, at which
Chamberlain opposed the grandmother and aunt’s petition. The court entered a
judgment appointing the grandmother—but not the aunt—as guardian of the two
children.
3
[¶4] The court analyzed the evidence under two of the four statutory
alternatives authorizing the appointment of a guardian of a minor. 18-A M.R.S.
§ 5-204(c), (d). The court first determined that neither the grandmother nor the
aunt had met the burden pursuant to 18-A M.R.S. § 5-204(c) to prove by clear and
convincing evidence that a living situation had been created that was at least
temporarily intolerable for the children. The court then turned to the second
alternative and applied the plain language of 18-A M.R.S. § 5-204(d), which
authorizes the appointment of a guardian without a parent’s consent if “the court
finds by a preponderance of the evidence that there is a de facto guardian and a
demonstrated lack of consistent participation by the nonconsenting parent or legal
custodian of the unmarried minor,” and that “the appointment is in the best interest
of the child.” Id.; see also 18-A M.R.S. § 5-204(b) (2014).1 The court found by a
preponderance of the evidence that the grandmother—but not the aunt—was a “de
facto guardian” and that Chamberlain had not consistently participated in the
children’s lives. The court entered a judgment appointing the grandmother as the
children’s guardian.
1
As it pertains to a child who is at least three years old, the term “de facto guardian” means “an
individual with whom, within the 24 months immediately preceding the filing of a petition . . . a child has
resided for [12 months or more, which need not be consecutive] and during which period there has been a
demonstrated lack of consistent participation by the parent or legal custodian.” 18-A M.R.S.
§ 5-101(1-B) (2014). A shorter period of shared residence applies when the child is less than three years
old. See 18-A M.R.S. § 5-101(1-B)(a).
4
[¶5] Chamberlain moved for findings of fact and conclusions of law and for
the court to reconsider its findings with respect to section 5-204(d) applying the
higher standard of proof by clear and convincing evidence. See M.R. Prob. P. 52,
59; M.R. Civ. P. 52(a), (b), 59(e). In his motion to reconsider, Chamberlain argued
that the Due Process Clause required the court to apply the higher standard of
proof. The court made additional findings, but it denied Chamberlain’s motion for
reconsideration and did not address the standard of proof further.
[¶6] Chamberlain timely appealed. See 18-A M.R.S. § 1-308 (2014); M.R.
App. P. 2. He did not request a transcript of the trial or obtain any substitute for a
transcript, see M.R. App. P. 5, and opted instead to mount a facial challenge to the
constitutionality of 18-A M.R.S. § 5-204(d).2 We do not, therefore, summarize the
factual findings of the trial court here.
II. DISCUSSION
A. Facial Constitutional Challenges
[¶7] Chamberlain argues that section 5-204(d) is facially unconstitutional
because it, and the statutes defining its terms, are unconstitutionally vague and
2
We understand from the docket entries that the Probate Court ensured that other procedural
safeguards were implemented: the parties had notice and an opportunity to be heard, see Sparks v. Sparks,
2013 ME 41, ¶ 28, 65 A.3d 1223, the matter was recorded, see Recording of Trial Court Proceedings, Me.
Admin. Order JB-12-1 § II (as amended by A. 11-14) (effective Nov. 24, 2014), the parties had the
opportunity to request the appointment of a guardian ad litem for the children, see 18-A M.R.S. § 1-112
(2014), and the parties had counsel for the contested proceedings, see 18-A M.R.S. § 5-204 (2014).
5
violate due process. With respect to due process, Chamberlain argues that the
statutes violate parents’ rights to substantive and procedural due process.
Regarding each of his arguments, Chamberlain contends that section 5-204(d) is
unconstitutional on its face.3
[¶8] When we address a facial constitutional challenge, the laws enacted by
the elected representatives of the people of Maine are entitled to the deference of
the courts. “The court is bound to assume that, in the passage of any law, the
Legislature acted with full knowledge of all constitutional restrictions and
intelligently, honestly and discriminatingly decided that they were acting within
their constitutional limits and powers.” Laughlin v. City of Portland, 111 Me. 486,
489, 90 A. 318 (1914). That deference is further expressed in the presumption of
constitutionality that we accord Maine statutes. See Doe v. Anderson, 2015 ME 3,
¶ 11, 108 A.3d 378.
[¶9] Consistent with that presumption, facial challenges to the
constitutionality of statutory provisions are not undertaken lightly. As the
Supreme Court of the United States has stated, “facial challenges threaten to short
3
Although in the absence of a transcript of the proceedings, we ordinarily assume that the transcript
would support all factual findings, see Laprel v. Going, 2014 ME 84, ¶ 2, 96 A.3d 67, without a complete
record, we will not address an argument that a statute is unconstitutional as applied, see McGee v. Sec’y of
State, 2006 ME 50, ¶ 18, 896 A.2d 933 (stating, when the factual record was inadequate for us to consider
a constitutional challenge to a statute as applied, that we would review only whether the statute was
facially unconstitutional).
6
circuit the democratic process by preventing laws embodying the will of the people
from being implemented in a manner consistent with the Constitution.” Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008). “‘A
ruling of unconstitutionality frustrates the intent of the elected representatives of
the people.’” Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329
(2006) (alteration omitted) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984)
(plurality opinion)).4
[¶10] Because of the weighty concerns that caution courts against making
overly broad declarations of constitutional invalidity, a party mounting a facial
challenge must demonstrate that “no set of circumstances exists under which the
[statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see
Wash. State Grange, 552 U.S. at 449 (stating that a statute will be deemed facially
invalid only if “the law is unconstitutional in all of its applications”); Conlogue v.
4
The Supreme Court of the United States has recognized additional reasons that facial challenges are
disfavored:
Claims of facial invalidity often rest on speculation. As a consequence, they raise the
risk of “premature interpretation of statutes on the basis of factually barebones records.”
Sabri v. United States, 541 U.S. 600, 609, 124 S. Ct. 1941, 158 L. Ed. 2d 891 (2004)
(internal quotation marks and brackets omitted). Facial challenges also run contrary to
the fundamental principle of judicial restraint that courts should neither “‘anticipate a
question of constitutional law in advance of the necessity of deciding it’” nor “‘formulate
a rule of constitutional law broader than is required by the precise facts to which it is to
be applied.’” Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S. Ct. 466, 80 L. Ed. 688
(1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S.S. Co.
v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S. Ct. 352, 28 L. Ed. 899 (1885)).
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008).
7
Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691 (applying the Salerno test). Thus, a
facial challenge will be considered only if there is a reasoned argument that a
challenged statute cannot be applied constitutionally on any set of facts.5 Applying
this standard, we consider whether Chamberlain can possibly prevail in his
arguments raising issues of (1) unconstitutional vagueness, (2) substantive due
process, and (3) procedural due process.
1. Vagueness
[¶11] Because of the standard applied to facial challenges, Chamberlain
cannot prevail in his argument that the statutes are facially void for
unconstitutional vagueness. Chamberlain challenges the definition of a
“demonstrated lack of consistent participation,” 18-A M.R.S. § 5-101(1-C) (2014),
as being unconstitutionally vague. “A statute may be void for vagueness when
people of common intelligence must guess at its meaning.” State v. Peck, 2014
ME 74, ¶ 10, 93 A.3d 256 (quotation marks omitted). “In examining the
5
Although in Washington State Grange, the Supreme Court of the United States listed reasons why
facial challenges to statutes’ constitutionality are disfavored, 552 U.S. at 450-51, it has since declared
statutes facially unconstitutional. See, e.g., Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2631 (2013);
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733, 2742 (2011); United States v. Stevens, 559 U.S.
460, 467, 482 (2010). Other federal and state courts have also declared statutes facially
unconstitutional—whether pursuant to the federal constitution or a state constitution—in varied
circumstances since the Washington State Grange decision. See, e.g., Wis. Right to Life, Inc. v. Barland,
751 F.3d 804, 832 (7th Cir. 2014); N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 308 (4th Cir. 2008);
MKB Mgmt. Corp. v. Burdick, 16 F. Supp. 3d 1059, 1074-75 (D.N.D. 2014); Martin v. Kohls, 444 S.W.3d
844, 846 (Ark. 2014); Montenegro v. N.H. Div. of Motor Vehicles, 93 A.3d 290, 298 (N.H. 2014); State
ex rel. Sunset Estate Props., LLC v. Vill. of Lodi, No. 2013-1856, 2015 Ohio LEXIS 480, at *1, 8-9 (Ohio
Mar. 10, 2015); cf. State v. Crute, 860 N.W.2d 284, 292-99 (Wis. Ct. App. 2015).
8
sufficiency of statutory language, [o]bjective quantification, mathematical
certainty, and absolute precision are not required.” Id. (alteration in original)
(quotation marks omitted).
[¶12] Section 5-101(1-C) defines the term “demonstrated lack of consistent
participation,” which is used in section 5-204(d), as
refusal or failure to comply with the duties imposed upon a parent by
the parent-child relationship, including but not limited to providing
the child necessary food, clothing, shelter, health care, education, a
nurturing and consistent relationship and other care and control
necessary for the child’s physical, mental and emotional health and
development.
18-A M.R.S. § 5-101(1-C).6 To determine whether a parent demonstrated a lack of
consistent participation, the court must consider the following factors, at a
minimum:
(a) The intent of the parent, parents or legal custodian in placing the
child with the person petitioning as a de facto guardian;
(b) The amount of involvement the parent, parents or legal custodian
had with the child during the parent’s, parents’ or legal custodian’s
absence;
(c) The facts and circumstances of the parent’s, parents’ or legal
custodian’s absence;
(d) The parent’s, parents’ or legal custodian’s refusal to comply with
conditions for retaining custody set forth in any previous court orders;
and
6
“Serving as a member of the United States Armed Forces may not be considered demonstration of
lack of consistent participation.” 18-A M.R.S. § 5-101(1-C) (2014).
9
(e) Whether the nonconsenting parent, parents or legal custodian was
previously prevented from participating in the child’s life as a result
of domestic violence or child abuse or neglect.
Id.
[¶13] Only if “no set of circumstances exists under which the [statute]
would be valid,” Salerno, 481 U.S. at 745, will we declare a legislative enactment
unconstitutional. See also Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691. As applied
in at least some situations, the statutes provide adequate guidance for
decision-making. These statutes define the relevant terms with sufficient detail to
avoid facial infirmity based on unconstitutional vagueness.
2. Substantive Due Process
[¶14] Nor will we vacate the judgment on the basis of Chamberlain’s facial
challenges raising issues of substantive due process. He contends that a judicial
finding of unfitness is necessary for section 5-204(d) to satisfy substantive due
process, citing to In re Guardianship of Jewel M. (Jewel II), 2010 ME 80, ¶¶ 7, 11,
2 A.3d 301 (construing section 5-204(c) to require a finding of unfitness given a
parent’s fundamental liberty interest in the care or custody of the child).7 Even if
Chamberlain is correct that a finding of unfitness is necessary, the facts
7
We held that for a court to appoint a guardian pursuant to section 5-204(c), the court must find,
among other things, that “the parent is unfit in that he is currently unable to meet the child’s needs and
that inability will have an effect on the child’s well-being that may be dramatic, and even traumatic, if the
child lives with the parent.” In re Guardianship of Jewel M. (Jewel II), 2010 ME 80, ¶ 11, 2 A.3d 301.
10
demonstrating a “lack of consistent participation” may also demonstrate parental
unfitness in some instances. See 18-A M.R.S. §§ 5-101(1-C), 5-204(d); Jewel II,
2010 ME 80, ¶ 11, 2 A.3d 301; cf. 22 M.R.S. § 4055(1)(B)(2)(b) (2014) (defining
unfitness for purposes of termination of parental rights). Because the
constitutional standard that Chamberlain endorses could be satisfied through some
applications of section 5-204(d), we will not conclude, for purposes of this issue,
that “the law is unconstitutional in all of its applications.” Wash. State Grange, 552
U.S. at 449-51 (disfavoring facial challenges in part because decisions may be
premature or improperly rest on speculation).
[¶15] We similarly reject Chamberlain’s argument that the applicable
statutes violate principles of substantive due process because they do not require
proof that the child resided with the de facto guardian in the absence of a parent for
the requisite period of time. Even if we were to agree that the absence of a parent
from the de facto guardian’s residence was constitutionally required, there would
be some circumstances in which the statute could be applied constitutionally
because the child did reside with a de facto guardian without a parent present. See
Salerno, 481 U.S. at 745; Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691.
Accordingly, we decline to declare section 5-204(d) facially unconstitutional on
the basis of substantive due process.
11
3. Procedural Due Process
[¶16] Finally, Chamberlain argues that the standard of proof provided in
section 5-204(d) is unconstitutional on its face because the standard is inadequate
to satisfy the requirements of procedural due process. The Legislature has
recognized the critical importance of a parent’s rights by adopting a standard of
proof by clear and convincing evidence when the putative guardian alleges that the
parent who opposes the appointment of a guardian has created an “at least
temporarily intolerable” living situation for the child. 18-A M.R.S. § 5-204(c).
Juxtaposed against that provision is the similar provision at issue here, which
allows the creation of a guardianship over a parent’s objection when the putative
guardian has alleged that she has cared for the child for a defined period of time
without consistent participation by the parent. 18-A M.R.S. §§ 5-101(1-B), (1-C),
5-204(d) (2014). Although the extent of the intrusion into parental rights is
identical, and the State’s compelling interest in the safety and well-being of
children is similar, the statutes specify different standards of proof. In this context,
we will consider the substance of Chamberlain’s facial challenge, based on
principles of procedural due process, to the standard of proof set forth in section
5-204(d).
12
B. Adequacy of Standard of Proof to Ensure Procedural Due Process
[¶17] Chamberlain argues that a court must reach its findings by clear and
convincing evidence for its decision pursuant to section 5-204(d) to satisfy
constitutional requirements of procedural due process. The Fourteenth
Amendment provides that no State shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. “Procedural
due process rules are meant to protect persons not from the deprivation, but from
the mistaken or unjustified deprivation of life, liberty, or property.” Carey v.
Piphus, 435 U.S. 247, 259 (1978) (emphasis added). Applying procedural due
process principles, we examine section 5-204(d) in light of three distinct factors:
“the private interests affected by the proceeding; the risk of error created by the
State’s chosen procedure; and the countervailing governmental interest supporting
use of the challenged procedure.” Santosky v. Kramer, 455 U.S. 745, 754 (1982)
(citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
[¶18] We begin by considering the private and governmental interests at
stake—the first and third Mathews factors. 424 U.S. at 335. The private liberty
interest at issue is that “of parents in the care, custody, and control of their
children,” which “is perhaps the oldest of the fundamental liberty interests
recognized” by the Supreme Court of the United States. Troxel v. Granville, 530
U.S. 57, 65 (2000) (plurality opinion) (quotation marks omitted). More than ninety
13
years ago, the Supreme Court of the United States first recognized that the liberties
protected by the Due Process Clause include the liberty of a parent to “establish a
home and bring up children.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see
U.S. Const. amend. XIV, § 1. Like the Supreme Court of the United States, we
have acknowledged the fundamental liberty interest of parents in “the care,
custody, and control of their children.” Jewel II, 2010 ME 80, ¶ 6, 2 A.3d 301;
Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291.
[¶19] The governmental interest at issue—the State’s interest in “preserving
and promoting the welfare of the child”—is an urgent governmental interest.
Santosky, 455 U.S. at 766. Here, that interest is expressed in the provisions of
section 5-204(d), which require, before a guardianship can be created, the
consideration of the parent’s and potential guardian’s participation in the child’s
life, the length of time that a child has been cared for by alternate caregivers, the
child’s residence, and the best interest of the child. See 18-A M.R.S.
§§ 5-101(1-B), (1-C), 5-204(d).
[¶20] We now consider the standard of proof as it relates to the second
Mathews factor—the risk of error created by the statute at issue. 424 U.S. at 335.
Because of the importance of a parent’s liberty interest in the care, custody, and
control of a child, the standard of proof applied by a court before it interferes with
a parent’s exercise of parental rights has constitutional significance. See Jewel II,
14
2010 ME 80, ¶ 6, 2 A.3d 301. The purpose of the assigned standard of proof is “to
instruct the factfinder concerning the degree of confidence our society thinks he
should have in the correctness of factual conclusions for a particular type of
adjudication.” Taylor v. Comm’r of Mental Health & Mental Retardation, 481
A.2d 139, 150 (Me. 1984) (quotation marks omitted). A greater degree of certainty
is required when more serious consequences flow from a decision, and therefore a
higher standard of proof is imposed. See id. at 150-52.
[¶21] The standard of proof by clear and convincing evidence is an
intermediate standard of proof that is “mandated . . . when the individual interests
at stake in a state proceeding are both particularly important and more substantial
than mere loss of money.” Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 282
(1990) (quotation marks omitted). Facts are established by clear and convincing
evidence when the proof offered “create[s] in the fact-finder an abiding conviction
that it is highly probable that facts sought to be proved are the correct view of the
events.” Jewel II, 2010 ME 80, ¶ 12, 2 A.3d 301 (quotation marks omitted).
[¶22] The standard of proof by a preponderance of the evidence is a lower
standard; it requires only proof that it is “more likely than not” that the facts as
established are true. In re Dakota P., 2005 ME 2, ¶ 15, 863 A.2d 280 (quotation
marks omitted). “[T]he preponderance-of-the-evidence standard results in a
roughly equal allocation of the risk of error between litigants” and therefore is the
15
standard “applicable in civil actions between private litigants unless particularly
important individual interests or rights are at stake.” Grogan v. Garner, 498 U.S.
279, 286 (1991) (emphasis added) (quotation marks omitted).
[¶23] In addressing the important individual interests at stake, judicial
decisions that affect parental rights fall on a continuum based on the nature and
extent of the interests and rights affected, and the degree of finality of the different
types of decisions. At one end of the continuum are proceedings to terminate a
person’s parental rights. The Supreme Court of the United States has held that
requiring proof by clear and convincing evidence in those proceedings satisfies the
Constitution because, in the balance of interests, it “adequately conveys to the
factfinder the level of subjective certainty about his factual conclusions necessary
to satisfy due process.” Santosky, 455 U.S. at 769; see In re H.C., 2013 ME 97,
¶ 11, 82 A.3d 80. The requirement of clear and convincing evidence is based
primarily on concerns arising from the finality of the decision to terminate parental
rights. In re Christmas C., 1998 ME 258, ¶ 12, 721 A.2d 629 (citing Santosky, 455
U.S. at 758-59, and In re Guardianship of Hughes, 1998 ME 186, ¶ 13, 715 A.2d
919). The Maine Legislature appropriately adopted the clear and convincing
evidence standard in the statute governing the termination of parental rights. See
22 M.R.S. § 4055(1)(B)(2) (2014).
16
[¶24] The heightened standard of proof by clear and convincing evidence is
also required when a court is making a final determination about whether a person
is a child’s de facto parent with the consequent permanent role in the child’s life.
See Pitts v. Moore, 2014 ME 59, ¶¶ 27, 36-37, 90 A.3d 1169. De facto parenthood
determinations, unlike determinations of guardianship, do not necessarily involve
any finding of deficiencies on the part of other parents, but the degree of finality in
establishing a permanent relationship between the child and a person other than a
previously legally recognized parent, and the resulting intrusion into existing
parental relationships, makes a standard of proof by clear and convincing evidence
constitutionally necessary in such cases. See id. ¶¶ 34-38.
[¶25] With respect to guardianship determinations, the Maine Legislature
has established that proof by clear and convincing evidence may be required by
incorporating that standard into another subsection of the statute governing the
appointment of guardians for minor children. Section 5-204(c) authorizes the
appointment of a guardian without a parent’s consent when
the court finds by clear and convincing evidence that the person or
persons [who have parental rights to the child] have failed to respond
to proper notice or a living situation has been created that is at least
temporarily intolerable for the child even though the living situation
does not rise to the level of jeopardy required for the final termination
of parental rights, and that the proposed guardian will provide a living
situation that is in the best interest of the child.
17
18-A M.R.S. § 5-204(c). The requirement of proof by clear and convincing
evidence contained in section 5-204(c), combined with a required showing of
parental unfitness, as we explained in Jewel II, adequately protects a parent’s
fundamental liberty interest in the upbringing of his or her child. See Jewel II,
2010 ME 80, ¶¶ 7, 11-12, 2 A.3d 301; see also In re Guardianship of Jewel M.
(Jewel I), 2010 ME 17, ¶¶ 12-13, 989 A.2d 726.
[¶26] At the other end of the continuum, the lower standard of proof by a
preponderance of the evidence is applied. This standard is properly applied when
the court is balancing the rights of two individuals who have equal rights in
parenting, as in divorce proceedings and parental rights and responsibilities cases
between fit parents. See Jacobs v. Jacobs, 507 A.2d 596, 599 (Me. 1986); see also
Pitts, 2014 ME 59, ¶ 37, 90 A.3d 1169. The standard is also adequate for due
process purposes when a court enters a nonpermanent interim order, such as a
jeopardy order, in a child protection proceeding where the State has interceded in
the family to protect the child but no final judgment terminating parental rights is
under consideration. See In re Christmas C., 1998 ME 258, ¶ 13, 721 A.2d 629;
see also 22 M.R.S. § 4035(2) (2014). Increasing the potential that the intrusion
into the parent-child relationship is only temporary in such cases is the provision of
rehabilitation and reunification services to the parents and child. 22 M.R.S.
§ 4041(1-A) (2014) (requiring the provision of services unless an aggravating
18
factor exists or efforts would be inconsistent with the permanency plan for the
child).
[¶27] The guardianship provision before us today—the appointment of a
guardian pursuant to 18-A M.R.S. § 5-204(d)—provides a greater degree of
finality than a jeopardy order in a child protection case but less finality than an
order terminating parental rights. As with a guardianship created pursuant to
section 5-204(c), a guardianship established pursuant to section 5-204(d) will cease
only upon the termination of the guardianship through the resignation or removal
of the guardian in the Probate Court; the death of the guardian or the minor; or the
minor’s adoption, marriage, or attainment of majority. See 18-A M.R.S. §§ 5-210,
5-212 (2014). Moreover, in contrast to the consequences of a jeopardy order,
neither the appointed guardian nor the State is obligated to provide services or
make efforts to reunify the parent and child to prevent a permanent deprivation of
the right to parent. Compare 18-A M.R.S. § 5-204, with 22 M.R.S. § 4041 (2014).
[¶28] The process for a parent to re-enter the child’s life through a contested
motion to terminate the guardianship also demonstrates the significant potential for
a permanent interference with a parent’s fundamental rights. The burdens on the
parties when the parent seeks to have the guardianship terminated are mixed.
When a parent seeks the removal of a guardian who was appointed pursuant to
section 5-204(c), the statute requires the guardian to prove by a preponderance of
19
the evidence that the parent remains unfit. See In re Guardianship of Stevens,
2014 ME 25, ¶¶ 13-14, 86 A.3d 1197 (construing 18-A M.R.S. §§ 5-204(c) and
5-212(d) to place the burden on the party opposing the termination of the
guardianship to establish continued parental unfitness). As to the best interest of
the child, however, the burden is on the parent rather than the guardian when the
parent petitions for removal of the guardian and termination of the guardianship.
See 18-A M.R.S. § 5-212(d) (“The petitioner has the burden of showing by a
preponderance of the evidence that termination of the guardianship is in the best
interest of the ward.”); In re Guardianship of Stevens, 2014 ME 25, ¶ 14, 86 A.3d
1197. Thus, once a guardianship is established, there is, by statute, “a presumption
in favor of continuing it.” In re Guardianship of Jeremiah T., 2009 ME 74, ¶ 21,
976 A.2d 955.
[¶29] In addition to considerations of the finality of the guardianship, it is
important to recognize the extent of the powers granted to a guardian. A guardian,
once appointed, has almost all decision-making responsibilities for the child, which
removes from the parent even the right to determine how or where the child should
be raised. See 18-A M.R.S. § 5-209 (2014) (“A guardian of a minor has the
powers and responsibilities of a parent . . . except that a guardian is not legally
obligated to provide from the guardian’s own funds for the ward and is not liable to
3rd persons by reason of the parental relationship for acts of the ward.”).
20
[¶30] Thus, although the appointment of a guardian pursuant to section
5-204(d) does not result in the same degree of finality as a termination of parental
rights or a determination of de facto parenthood, the appointment is more final than
a jeopardy order in a child protection proceeding, and parental rights are
transferred to the guardian almost in their entirety. Pursuant to the current
language of section 5-204(d), these results may occur even if the elements of the
statute are established by a preponderance of the evidence—the lower standard of
proof. This stands in marked contrast to the standard of proof that the Legislature
provided in the very similar proceedings provided for in section 5-204(c).
[¶31] When the government authorizes an extensive and potentially
permanent intrusion into fundamental constitutional rights, the risk of erroneous
deprivation of a parent’s rights is high if the decision-maker does not have a
greater-than-ordinary degree of confidence in the correctness of its factual
findings—namely, the degree of confidence afforded by the standard of proof by
clear and convincing evidence. See Mathews, 424 U.S. at 344; Pitts, 2014 ME 59,
¶ 27, 90 A.3d 1169; Taylor, 481 A.2d at 150. The Legislature recognized the
importance of the standard of proof when it required proof by clear and convincing
evidence in section 5-204(c). We similarly recognized the importance of the
standard of proof when we required that de facto parenthood be established by
clear and convincing evidence in Pitts v. Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169.
21
[¶32] Ultimately, in balancing the Mathews factors in this matter, we
conclude that the appointment of a guardian pursuant to section 5-204(d) is most
akin to an appointment of a guardian pursuant to section 5-204(c), and is more
similar to a termination of parental rights or a determination of de facto parenthood
than it is to a divorce or parental rights and responsibilities judgment entered with
respect to fit parents, or to an initial determination of jeopardy or other interim
child protection order.
[¶33] Therefore, in every instance, a court’s application of the statutorily
provided standard of proof by a preponderance of the evidence would be
constitutionally deficient. See Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691. To
properly balance the constitutional rights at issue, an order appointing a guardian
pursuant to section 5-204(d)—like other orders that terminate or severely constrain
the fundamental right to parent—can be entered only after a court has made
findings applying the standard of proof by clear and convincing evidence.
[¶34] In this rare circumstance in which the statute under review fails to
afford a constitutionally required procedural safeguard, we hold that section
5-204(d) is facially unconstitutional to the extent that it provides for a standard of
proof by a preponderance of the evidence. The only interpretation that can render
section 5-204(d) constitutional is to require proof by clear and convincing evidence
instead of proof by a preponderance of the evidence as stated in the statute. See
22
Ayotte, 546 U.S. at 328-29 (stating preferences “to sever [a statute’s] problematic
portions while leaving the remainder intact” and “not to nullify more of a
legislature’s work than is necessary”). Notwithstanding the plain language of
section 5-204(d), the applicable standard of proof must be proof by clear and
convincing evidence.
III. CONCLUSION
[¶35] Because we conclude that section 5-204(d) provides for the
application of a standard of proof that is not adequate to protect parents’ rights of
procedural due process, and that the statute may be made to comply with
constitutional requirements by applying the clear and convincing standard of proof,
we vacate the Probate Court’s judgment and remand the matter for the court to
apply the standard of proof by clear and convincing evidence.8 Due to the passage
of time, we defer to the discretion of the court in determining whether the court
should reopen the record for updated evidence, or should apply the constitutional
standard to the evidence already of record.
The entry is:
Judgment vacated. Remanded for the court to
apply the standard of proof by clear and
convincing evidence.
8
Although the facts as stated in the court’s judgment may appear compelling, we cannot determine
whether the court would have made the same factual findings if it had applied the standard of proof by
clear and convincing evidence.
23
On the briefs and at oral argument:
E. Chris L’Hommedieu, Esq., Lewiston, for appellant Marc
Chamberlain
Aubrey A. Russell, Esq., Lewiston, for appellee grandmother
Androscoggin County Probate Court docket numbers 2014-12 and 2014-13
FOR CLERK REFERENCE ONLY