MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 82
Docket: Was-15-353
Argued: April 6, 2016
Decided: June 2, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
IN RE NICHOLAS S. et al.
PER CURIAM
[¶1] The mother of Nicholas S., Ryan S., and Sean B. appeals from orders
entered in the District Court (Machias, D. Mitchell, J.) finding, by a preponderance
of the evidence, that the three children were in jeopardy to their health or welfare
in the mother’s care. The mother argues that the Department of Health and Human
Services did not present sufficient evidence to support the court’s jeopardy
findings. We disagree and affirm the decisions, and we clarify that the Maine
Rules of Appellate Procedure do not prohibit a trial court, pending our disposition
of an appeal from a jeopardy order, from acting pursuant to 22 M.R.S. § 4036(1-A)
(2015) to dismiss a child protection petition after determining that entry of a
parental rights order will alleviate jeopardy.
I. BACKGROUND
[¶2] On October 1, 2014, the Department filed separate child protection
petitions—one regarding Sean, and one regarding twins Nicholas and Ryan—in the
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District Court (Machias). The Department alleged that the children were in
jeopardy in the mother’s care due to her failure to protect them from physical
abuse by her husband,1 and that the mother had deprived the children of an
adequate education.
[¶3] After a consolidated jeopardy hearing held on January 14 and April 15,
2015, the court found the following facts by a preponderance of the evidence.
The mother’s husband struck Sean with a wooden implement after Sean did not tell
the mother or her husband that he had been ill and had vomited before he was able
to reach the bathroom. The assault left a scratch “between [Sean’s] scrotum and
anus” that was later seen by Sean’s father. The implement the mother’s husband
used was known to the children as the “spank spoon.” The court found that the
assault had occurred and noted that the mother’s explanation for the use of such
“discipline,” i.e., that Sean had lied about the vomit, “speaks volumes about how
Sean feels in the [mother’s] home, a fact that is supported by . . . [his] quiet,
reserved and shy demeanor in that home.” Based on these findings, which are
supported by competent evidence in the record, see In re E.A., 2015 ME 37, ¶ 7,
1
The mother’s husband is not the father of any of these children, and Sean’s father is not the twins’
father.
3
114 A.3d 207, the court determined that the children were in circumstances of
jeopardy to their health or welfare in the mother’s care.2
[¶4] The court ordered that the twins be placed in Department custody, but
determined that an order modifying Sean’s parents’ existing parental rights and
responsibilities judgment would protect him from jeopardy. The court therefore
entered such an order and dismissed the child protection petition regarding Sean.
See 22 M.R.S. § 4036(1-A). The amended parental rights judgment awarded
Sean’s parents shared parental rights and responsibilities, except that primary
residence and “all decision-making authority concerning educational and medical
decisions” were awarded to Sean’s father. The court also ordered that “[n]either
parent shall use or permit to be used any physical discipline of the minor child.”
The mother appealed from the orders finding jeopardy to Sean and the twins and
the order modifying her and Sean’s father’s parental rights and responsibilities.
[¶5] While the mother’s appeal was pending, the court, by agreement
among the Department, the mother, and the twins’ father, determined that an order
modifying the twins’ parents’ existing parental rights and responsibilities judgment
would protect the twins from jeopardy. Pursuant to 22 M.R.S. § 4036(1-A), the
court dismissed the child protection petition regarding the twins and entered an
2
As a separate basis for jeopardy, the court also found that the mother deprived the children of an
adequate education. See 22 M.R.S. § 4002(6)(B) (2015).
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amended parental rights judgment regarding the mother and the twins’ father. This
amended order granted the twins’ parents shared parental rights and
responsibilities, awarded the mother the right to provide the children’s primary
residence, and ordered that “[n]either party shall issue corporal punishment to the
minor children nor shall they allow other persons to do so.”3
II. DISCUSSION
A. Trial Court Action Pending Disposition of Appeal
[¶6] We begin by noting that the trial court was correct to dismiss the child
protection petition regarding the twins when it determined that an order modifying
parental rights would protect them from jeopardy, even pending our disposition of
the mother’s appeal. Maine Rule of Appellate Procedure 3(b) provides, in relevant
part, that “[t]he trial court shall take no further action pending disposition of the
appeal by the Law Court except . . . in child protective cases, to continue case
review and processing as required by law.” The Legislature has unequivocally
stated that “children [shall] be taken from the custody of their parents only where
failure to do so would jeopardize their health or welfare.” 22 M.R.S. § 4003(2)
(2015). In light of this clear expression of legislative intent, when a court
determines that entering a parental rights order pursuant to 22 M.R.S. § 4036(1-A)
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It appears that by the time the court entered this order, the mother had divorced her husband, the
twins were attending school, and the twins’ father was playing a larger role in his sons’ lives.
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will alleviate jeopardy, the court must do so, whether or not an appeal is pending.
Rule 3(b) cannot be read to require a trial court to wait to take action until an
appeal from the order finding jeopardy is resolved.4
B. Mootness
[¶7] Because both child protection petitions have been dismissed, we must
first determine whether we can reach the merits of the mother’s appeal.
An issue is moot when there is no real and substantial controversy,
admitting of specific relief through a judgment of conclusive
character. . . . We decline to decide issues that have lost their
controversial vitality, that is, when a decision by this Court would not
provide an appellant any real or effective relief.
Clark v. Hancock Cty. Comm’rs, 2014 ME 33, ¶ 11, 87 A.3d 712 (alteration
omitted) (quotation marks omitted). Even when an appeal is moot, however, we
will still address the merits in some circumstances. In re Christopher H.,
2011 ME 13, ¶ 11, 12 A.3d 64 (describing exceptions to the mootness doctrine);
see Alexander, Maine Appellate Practice § 205 at 212 (4th ed. 2013). One such
exception applies where “sufficient collateral consequences will result from the
determination of the questions presented so as to justify relief.” In re
Christopher H., 2011 ME 13, ¶ 11, 12 A.3d 64 (alteration omitted) (quotation
marks omitted).
4
On May 9, 2016, the Court issued an order establishing an Advisory Committee on the Maine Rules
of Appellate Procedure. That committee’s responsibilities include, inter alia, reviewing and
recommending revisions to the Appellate Rules to provide greater clarity and direction.
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[¶8] We agree with the parties’ contention that the collateral consequences
exception applies here. In In re Ciara H., we addressed the merits of a parent’s
appeal from a jeopardy order although the child had turned eighteen while the
appeal was pending. 2011 ME 109, ¶¶ 2, 5, 30 A.3d 835 (per curiam).
We explained that a jeopardy finding in a court order can give rise to a
substantiation of abuse in administrative proceedings before the Department, and
that “such ‘substantiated’ determinations can have adverse consequences on
[a parent’s] capacity to obtain employment or care for children other than [his or]
her own biological children under certain circumstances.” Id. ¶ 3; see 22 M.R.S.
§ 4004(2) (2015); 18 C.M.R. 10 148 201-2 § II(B)(1) (2008). Because the same
rationale holds true here, the collateral consequences exception applies, and we
reach the merits of the mother’s appeal.
C. Sufficiency of the Evidence
[¶9] The mother argues that the Department did not present sufficient
evidence to support the court’s jeopardy findings. A finding that children are in
circumstances of jeopardy must be supported by a preponderance of the evidence.
22 M.R.S. § 4035(2) (2015); In re E.L., 2014 ME 87, ¶ 12, 96 A.3d 691.
We review jeopardy findings for clear error, and will affirm the decision “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
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her] health and welfare.” In re E.A., 2015 ME 37, ¶ 7, 114 A.3d 207 (quotation
marks omitted).
[¶10] Jeopardy is defined as “serious abuse or neglect, as evidenced by,”
inter alia, “[s]erious harm or threat of serious harm.” 22 M.R.S. § 4002(6)(A)
(2015). The statute defines “serious harm” as:
A. Serious injury;
B. Serious mental or emotional injury or impairment which now or in
the future is likely to be evidenced by serious mental, behavioral or
personality disorder, including severe anxiety, depression or
withdrawal, untoward aggressive behavior, seriously delayed
development or similar serious dysfunctional behavior; or
C. Sexual abuse or exploitation.
22 M.R.S. § 4002(10) (2015). “Serious injury means serious physical injury or
impairment.” 22 M.R.S. § 4002(11) (2015) (quotation marks omitted).
[¶11] The mother argues that the court’s findings regarding physical abuse
cannot meet the definition of jeopardy. We disagree. The mother distinguishes her
case from In re Dorothy V., in which we affirmed a jeopardy finding where the
evidence demonstrated that the “parents employed extraordinary disciplinary
measures.” 2001 ME 97, ¶ 13, 774 A.2d 1118. We explained, however, that to
find jeopardy, “the court needed only to find, as a matter of fact, that it was more
likely than not that [the child] would incur serious harm, or be subject to a threat of
serious harm, if she was returned to the custody of her parents.” Id. ¶ 8.
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[¶12] Here, the court did not clearly err in determining that the children
were at risk of serious harm in the mother’s care. That determination is supported
by the evidence that the mother’s husband struck Sean with a wooden implement,
injuring the child’s genital area, and that Sean, who was eight years old at the time,
fearing disciplinary reprisals, believed he could not tell anyone that he had
vomited. As the court found, “it is preposterous and nearly abhorrent to strike a
child Sean’s age for being sick.” In addition, Sean’s father, whose testimony the
court expressly found credible, described several instances in which Sean returned
to his care bearing burn marks, welts, bruises, and “marks that look like a spoon on
his rear end.”
[¶13] With regard to the twins, we have held that “[a] court may rely on a
parent’s behavior with respect to one child in assessing whether [other] child[ren]
in the parent’s care also face[] jeopardy.” In re Adrian D., 2004 ME 144, ¶ 12,
861 A.2d 1286; see also In re E.A., 2015 ME 37, ¶ 9, 114 A.3d 207 (“[W]hat is
past is often prologue regarding the threat of serious harm posed by the parent.”
(quotation marks omitted)). Here, the court’s jeopardy finding based on physical
abuse is supported by competent evidence in the record “that can rationally be
understood to establish as more likely than not that the child[ren] [were] in
circumstances of jeopardy to [their] health and welfare,” In re E.A., 2015 ME 37,
¶ 7, 114 A.3d 207 (quotation marks omitted). We affirm the court’s decisions
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finding that Sean and the twins were in jeopardy and modifying the parental rights
judgment that applies to Sean’s parents.5
The entry is:
Judgment affirmed.
On the briefs:
Amy McNally, Esq., Woodman Edmands Danylik Austin
Smith & Jacques, P.A., Biddeford, 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
At oral argument:
Amy McNally, Esq., for appellant mother
Meghan Szylvian, Asst. Atty. Gen., for appellee Department of
Health and Human Services
Machias District Court docket numbers PC-2014-19, PC-2014-20, and FM-2011-73
FOR CLERK REFERENCE ONLY
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Because we conclude that the court’s findings concerning physical abuse are supported by the record
and are sufficient to support the jeopardy determination, we do not reach the mother’s argument that the
evidence was insufficient to support the court’s findings that she deprived the children of an adequate
education.