MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 19
Docket: Kno-17-328
Argued: December 14, 2017
Decided: January 30, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Concurrence: SAUFLEY, C.J.
ADOPTION OF PAISLEY
ALEXANDER, J.
[¶1] The appellants, the adoptive parents of two of Paisley’s five
biological siblings, appeal from a judgment of the District Court (Rockland,
Sparaco, J.) denying their petition to adopt Paisley and granting the petition of
the appellees, Paisley’s foster parents, to adopt her.
[¶2] The appellants argue that they have standing to appeal the trial
court’s adoption decree granting the foster parents’ petition to adopt Paisley.
They challenge the trial court’s finding that, pursuant to 18-A M.R.S.
§ 9-302(a)(3) (2017), the Department of Health and Human Services acted
unreasonably in withholding consent to the adoption of Paisley by the foster
2
parents. The appellants also challenge the trial court’s admission of testimony
by the foster parents’ expert witness, a child attachment specialist.1
[¶3] In this appeal, we consider the application of the consent to
adoption statute, 18-A M.R.S. § 9-302 (2017), to contested adoption
proceedings heard in the District Court following a District Court judgment
terminating parental rights concerning that child. See 22 M.R.S. §§ 4050-4056
(2017). Adoption proceedings following State initiated proceedings to
terminate parental rights are heard in the District Court. See 4 M.R.S.
§ 152(5-A) (2017); 18-A M.R.S. § 9-103 (2017). See also Adoption of Isabelle T.,
2017 ME 220, ¶ 9 n.2, --- A.3d ---.
[¶4] As relevant to this appeal, 18-A M.R.S. § 9-302(a) states:
(a) Before an adoption is granted, written consent to the adoption
must be given by:
. . . .
(3) The person or agency having legal custody or guardianship
of the child or to whom the child has been surrendered and
released, except that the person’s or agency’s lack of consent, if
adjudged unreasonable by a judge . . . may be overruled by the
judge. In order for the judge to find that the person or agency acted
unreasonably in withholding consent, the petitioner must prove, by
a preponderance of the evidence, that the person or agency acted
unreasonably. The court may hold a pretrial conference to
determine who will proceed. The court may determine that even
1 The appellants further argue that the court erred in admitting a photo and video collage offered
by the foster parents. This argument is not persuasive and will not be discussed further.
3
though the burden of proof is on the petitioner, the person or
agency should proceed if the person or agency has important facts
necessary to the petitioner in presenting the petitioner’s case. The
judge shall consider the following:
(i) Whether the person or agency determined the needs
and interests of the child;
(ii) Whether the person or agency determined the ability
of the petitioner and other prospective families to
meet the child's needs;
(iii) Whether the person or agency made the decision
consistent with the facts;
(iv) Whether the harm of removing the child from the
child's current placement outweighs any
inadequacies of that placement; and
(v) All other factors that have a bearing on a
determination of the reasonableness of the person’s
or agency's decision in withholding consent.
. . . .
A petition for adoption must be pending before a consent is
executed.
[¶5] Here, Paisley’s parents’ rights had been terminated, and because the
Department had legal custody of Paisley, section 9-302(a)(3) required that,
before any adoption could be granted, the Department’s written consent had to
be obtained. The Department’s refusal to grant consent to adoption by the
appellees and its consent to adoption by the appellants was the focus of the
4
District Court hearing. After the hearing, the court, applying section
9-302(a)(3), found that the appellees—the foster parents—had met their
burden to prove “by a preponderance of the evidence” that the Department had
acted unreasonably in withholding its consent to their adoption of Paisley.
[¶6] Because the evidence admitted at the trial on the competing
petitions for adoption supports the trial court’s findings and discretionary
determinations, we affirm the judgment.
I. CASE HISTORY
[¶7] The following findings, all of which are fully supported by the
record, were made by the court in its decision. Paisley was born in
October 2015. When she was just twelve days old, the Department took
custody of her and placed her into the home of licensed foster parents, the
appellees.
[¶8] Title 22 M.R.S. § 4036-B requires the Department to notify relatives
when a child enters foster care. See 22 M.R.S. § 4036-B(3-A) (2017) (requiring
the Department to notify the following relatives: all grandparents of the child;
all parents of a sibling of the child who have legal custody of the sibling; and
other adult relatives of the child).
5
[¶9] When Paisley was placed in foster care, the appellants, who had
previously adopted two of Paisley’s biological siblings2 and who live in
Massachusetts, received the Department’s notification, pursuant to 22 M.R.S.
§ 4036-B(3-A). They immediately contacted the Department, stating their
interest in serving as a placement for Paisley.
[¶10] At that time, the Department’s plan for Paisley was reunification
with her mother, who resided in mid-coast Maine. Accordingly, the Department
chose to leave Paisley in the care of her foster parents. The record indicates
that the Department was concerned that placing Paisley with the appellants in
southern Massachusetts would make its efforts toward reunification with the
mother in mid-coast Maine much more difficult.
[¶11] While Paisley resided with her foster parents, the Department
engaged in reunification efforts with Paisley’s mother.3 During this time, the
appellants were in regular contact with the Department, seeking to set up
visitation with Paisley and to make the Department aware that they were
interested in being the permanent adoptive placement for Paisley. In January
2 The record reflects that Paisley has five biological siblings: two sisters who live with their
adoptive parents, the appellants, in southern Massachusetts; a brother and a sister who live with
Paisley’s paternal grandmother, near Paisley’s foster parents in mid-coast Maine; and a half-brother
who lives with his biological father in Maine.
3 Paisley’s father was incarcerated and did not participate in any reunification efforts with
Paisley.
6
of 2016, a Department supervisor notified the appellants that the Department
was “going to look into getting an Interstate Compact on Placement of Children
(‘ICPC’)” evaluation started. The Department initiated that process in March of
2016.
[¶12] On June 1, 2016, the Department filed its petition for termination
of the parents’ rights and, in that month, the appellants had their first visit with
Paisley. Despite the filing of the termination petition, reunification efforts
continued, and the Department remained “hopeful” that the mother would be
able to reunify. In December of 2016, however, the mother relapsed, was
incarcerated, and reunification efforts with the mother ceased.
[¶13] On December 16, 2016, a Department supervisor directed the
caseworker to tell Paisley’s foster parents that, if the mother’s rights were
terminated, the Department intended to place Paisley in Massachusetts with
the appellants. The foster parents told the caseworker that they had called an
attorney “to possibly fight DHHS’s placement decision.” The Department
attempted to have the two families meet but, when that meeting did not occur,
and “with the threat of litigation looming,” the Department backed off on any
firm decision about Paisley’s placement. Soon thereafter, both the appellants
and the appellees moved to intervene in the child protection action. In
7
February of 2017, before any termination order issued, the foster parents filed
a petition for adoption.
[¶14] Paisley’s parents consented to a termination of their parental
rights on March 6, 2017, and the permanency plan for Paisley became
adoption.4 The appellants filed a competing petition to adopt Paisley on
April 10, 2017.
[¶15] On April 24, 2017, the court issued a case management and pretrial
order that listed all three docket numbers: the child protection docket number
and the two family matter docket numbers assigned to the competing adoption
petitions. The order granted intervenor status to both the appellees and the
appellants. The matters were then set for a contested adoption hearing.
[¶16] In late May, approximately two weeks before the date set for the
contested adoption hearing, the Department decided that Paisley should be
placed with the appellants in Massachusetts with two of her siblings and that it
would not consent to adoption by the foster parents.
[¶17] At about the same time as the Department’s consent decision, the
foster parents notified the appellants and the court that they intended to offer
at trial the expert witness testimony of a specialist in early childhood
4 At the termination hearing, both parents expressed to the court their belief that Paisley should
stay with the appellees because of Paisley’s bond with the appellees’ family.
8
attachment. On May 30, 2017, the District Court held a telephone conference
to address the objection by the appellants to the foster parents’ late designation
of the expert witness. After the conference, the court issued an order allowing
the foster parents to call their witness. The court also indicated that it would
leave the record open to allow the appellants to call their designated rebuttal
witness. The appellants never called their identified rebuttal witness, and there
is no evidence in the record that the appellants sought to have their witness
testify at another time, an opportunity offered by the court.
[¶18] On June 6 and June 7, 2017, the District Court held a hearing on the
competing petitions for adoption. During the hearing, all prospective adoptive
parents testified and described their plans and commitment to the care of
Paisley. The Department’s witnesses testified that the decision that Paisley
should be placed with the appellants and that it would not consent to adoption
by the foster parents was made in late May, approximately two weeks before
the date set for the contested adoption hearing. In its decision, the court noted
that the supervisor who testified about this issue did “not know who actually
9
made the decision but understood that it was made because of DHHS’s sibling
policy.”5
[¶19] The appellees called their expert witness, a specialist in early
childhood attachment. The appellants renewed their objection to this witness,
arguing again that her designation was untimely. The court overruled the
objection and allowed the testimony.
[¶20] Paisley’s guardian ad litem recommended that the court grant the
foster parents’ petition to adopt Paisley. In its decision, the court quoted from
the GAL’s most recent report, in which she stated that Paisley “regards her
foster parents as her parents . . . .”
[¶21] On June 29, 2017, the District Court issued a single order that was
entered in all three cases: (1) finding that the Department unreasonably
withheld its consent to the foster parents’ adoption petition; (2) granting their
petition to adopt Paisley; and (3) denying the appellants’ petition to adopt
Paisley. In the order, the court found:
[The Department’s] consideration of Paisley’s needs and best
interest was, at best, narrowly confined to the fact that the
[appellants] have adopted two of Paisley’s biological siblings.
There is no evidence that [the Department] gave weight to any
5 This policy states: “Placement of siblings together should be made a priority in case planning
and implementation of the case plan. Valid reasons must be identified and documented for not
placing siblings together.”
10
other factor relevant to Paisley’s best interest, including the bond
that had formed between Paisley and the [foster parents]. This
conclusion is reinforced by [the permanency supervisor’s]
admission that she did not even read the GAL report and
recommendation.
. . . .
The court finds that the harm of removing Paisley from the
[foster parents’] home outweighs any inadequacies of that
placement, specifically the fact that Paisley will not be living with
biological siblings. Paisley has formed a strong attachment to the
[foster parents’] family . . . . For Paisley, [the foster parents] are her
parents and their two children are her siblings.
. . . .
While the court recognizes the importance and purpose of
[the Department’s] sibling policy, the court notes that some of the
important reasons for that policy are not present in this case. . . .
Here, the policy is being applied to unite Paisley with some of her
biological siblings at the cost of separating her from those persons
with whom she has come to know as her family. Here, Paisley can
still have a meaningful sibling relationship with her biological
siblings and the [appellants’] entire family without subjecting her
to the trauma of separating her from the [foster parents], the family
that she has come to know as her own.
. . . .
Paisley’s relationship with [the foster parents] is one of
parent and child. Paisley does not have the same depth of bond
with the [appellants]. The court finds that it would be in Paisley’s
best interest for [the foster parents] to adopt her.
[¶22] The appellants timely filed a notice of appeal.
11
II. LEGAL ANALYSIS
A. Standing
[¶23] We review the threshold issue of a party’s standing to sue de novo.
Lowry v. KTI Specialty Waste Servs., Inc., 2002 ME 58, ¶ 4, 794 A.2d 80. Standing
requires that the party seeking review have a sufficient personal stake in the
controversy and have suffered an injury that is likely to be redressed by the
judicial relief sought. Halfway House, Inc. v. City of Portland, 670 A.2d 1377,
1380 (Me. 1996).
[¶24] Here, the appellants were granted intervenor status in the child
protective proceeding that gave the District Court jurisdiction over the
subsequent adoption petitions. They participated in that child protection
proceeding and, by virtue of their own adoption petition, were parties to the
consolidated action in which the court considered the competing adoption
petitions. As parties in the underlying proceeding who have demonstrated that
they suffered a “particularized injury,” the appellants have standing to pursue
this appeal. N.E. Ins. Co. v. Young, 2011 ME 89, ¶ 11, 26 A.3d 794.
B. The Department’s Unreasonableness in Withholding Consent to the
Adoption of Paisley by the Foster Parents
[¶25] The Department’s refusal to consent to an adoption can be
overridden by the court if the court finds that the Department acted
12
unreasonably in withholding consent. 18-A M.R.S. §9-302(a)(3); see also
Adoption of Michaela C., 2004 ME 153, ¶ 3, 863 A.2d 270.
[¶26] Pursuant to 18-A M.R.S. § 9-302(a)(3), the court must consider the
following factors in determining whether the Department acted unreasonably
in withholding consent: (1) whether the Department determined the needs and
interests of the child; (2) whether the Department determined the ability of the
petitioner and other prospective families to meet the child’s needs; (3) whether
the Department’s decision was consistent with the facts; (4) whether the harm
of removing the child from the child’s current placement outweighs any
inadequacies of that placement; and (5) all other factors that have a bearing on
a determination of the reasonableness of the Department’s decision in
withholding consent. Id. The adoption petitioner, from whom the Department
has withheld consent, bears the burden of proving, “by a preponderance of the
evidence,” that the Department acted unreasonably. See id.
[¶27] The appellants argue that the court erred by finding that the
Department acted unreasonably when it withheld consent from the foster
parents to adopt Paisley. We review findings of fact for clear error and
discretionary determinations for an abuse of discretion. See In re Thomas H.,
2005 ME 123, ¶¶ 16-17, 889 A.2d 297; In re Morris D., 2000 ME 122, ¶ 6,
13
754 A.2d 993. Further, where, as here, the court made findings on all issues
required to be addressed by the relevant statute and the appellants did not
request further findings of fact, we will infer that the trial court found all the
facts necessary to support its judgment, if those findings are supported by
competent evidence in the record. See In re Guardianship of Ard, 2017 ME 12,
¶ 15, 154 A.3d 609.
[¶28] The court’s finding that the Department acted unreasonably is
supported by competent evidence in the record. The court applied 18-A M.R.S.
§ 9-302(a)(3), addressed each statutory factor individually, and made findings
as to each factor that support the court’s ultimate finding that the Department
acted unreasonably in withholding its consent to adoption by the foster
parents.
[¶29] The court specifically found that (1) the Department’s decision
that Paisley should be placed with the appellants was primarily based on the
Department’s policy of placing siblings together; (2) the Department failed to
consider other factors relevant to Paisley’s needs and best interest, including
the bond between Paisley and her long-term foster family; and (3) the
Department failed to give adequate consideration to the harm Paisley would
experience if removed from the care of the foster parents. The court found that
14
“the harm of removing Paisley from [her current home] outweighs any
inadequacies of that placement, specifically the fact that Paisley will not be
living with biological siblings.” Additionally, the court found that Paisley, if
adopted by her foster parents, will be able to have a meaningful relationship
with her biological siblings without being subjected to the trauma of being
removed from the appellees, the only caregivers she has known.6
[¶30] The court’s finding that the Department acted unreasonably in
withholding consent of the adoption of Paisley by the foster parents is
supported by competent evidence in the record. When the Department’s own
representative at trial was unable to identify the Department’s decision-maker
or the details of the analysis that went into the decision, the Department’s
position became less than compelling.
[¶31] The court demonstrated that it understood the distinct roles it and
the Department played in this proceeding.7 The Department, as the child’s legal
6 There is ample record evidence indicating the commitment of the foster parents and the
appellants to maintaining strong sibling relationships between Paisley and her five biological
siblings, regardless of Paisley’s adoptive placement.
7 Section 9-302 directs that the burden of proof to be applied in determining whether “[t]he
person or agency having legal custody” has unreasonably denied consent for adoption is a
preponderance of evidence. 18-A M.R.S. § 9-302(a)(3) (2017). This low standard can be applied only
because the Department does not have any “fundamental” parental rights and responsibilities; in
acting as the child’s caretaker, its responsibility is to assist the court in making a wise decision about
the child’s future.
15
guardian, has an obligation to find an appropriate adoptive home for the child.
Having done so, it is then in a position solely to offer its expertise to assist the
court in determining whether the actual adoption of that child into that home
is in the child’s best interest. See Stout v. Tippecanoe County Dep't of Pub.
Welfare, 395 N.E.2d 444, 450-451 (Ind. Ct. App. 1979). In the end, however,
only the court may grant an adoption based on its independent determination
of what is in a child’s best interest.
C. Expert Witness Testimony
[¶32] The appellants argue that the trial court erred and abused its
discretion by allowing the foster parents’ untimely designation of an expert
witness. Specifically, they argue that they were unfairly prejudiced as they
were unable to prepare for the witness given the late designation.
[¶33] “We review a court’s foundational finding that expert testimony is
sufficiently reliable for clear error and review for an abuse of discretion a
court’s decision to admit an expert’s opinion after finding it reliable.” State v.
Maine, 2017 ME 25, ¶ 16, 155 A.3d 871. Further, we have held that a court does
not abuse its discretion by permitting the testimony of a late designated expert
witness when the opposing party is not “unfairly surprised.” See Estate of
16
O’Brien-Hamel, 2014 ME 75, ¶¶ 23-24, 93 A.3d 689; Bray v. Grindle,
2002 ME 130, ¶ 9, 802 A.2d 1004.
[¶34] Here, the court did not err or abuse its discretion by allowing the
foster parents’ expert witness, identified nearly two weeks prior to trial, to
testify. Nothing in the testimony of the specialist in early childhood attachment
was an unfair surprise to the appellants. Upon a motion by the appellants, the
court held a telephonic hearing on the late expert witness designation—a
designation made nine days after the deadline.
[¶35] The court issued an order the day of the telephonic hearing
allowing the expert to testify and keeping the record open to allow the
appellants to present their own expert witness at a later date, which they never
sought to do. Although the foster parents made their expert witness available
to the appellants for questioning on an informal basis prior to hearing, the
appellants did not take advantage of that opportunity. The court did not err or
abuse its discretion by allowing the testimony of the foster parents’ expert
witness.
The entry is:
Judgment affirmed.
17
SAUFLEY, C.J., concurring.
[¶36] I must reluctantly concur in the court’s opinion, particularly given
the child’s attachment to her foster family in Maine. I write separately,
however, because the State’s delays in establishing a solid contact schedule
with the Massachusetts family have led to the sad result that Paisley will be
deprived of the opportunity to grow up in an available family with her
biological siblings.
[¶37] I do not underestimate the complexity of scheduling visits between
an infant and a family that is not local, nor do I question the reasons for placing
a child in a location close to her parent for reunification purposes. And Paisley
is certainly fortunate to have been placed in a foster home where she is loved
and has been well cared for.
[¶38] Nonetheless, had the Department acted more expeditiously and
more assertively to establish a relationship between Paisley and the family of
her sisters, she could have been adopted into the same family and had the
benefit of a childhood and adolescence spent with her own sisters. The value
of that family connection appears to have been lost in the Department’s slow
response to the Massachusetts family’s availability, and those actions have cost
this child dearly.
18
[¶39] The Legislature has explicitly established kinship placement as a
high priority for children who cannot be raised by their parents: “Recognizing
that the health and safety of children must be of paramount concern and that
the right to family integrity is limited by the right of children to be protected
from abuse and neglect and recognizing also that uncertainty and instability are
possible in extended foster home or institutional living, it is the intent of the
Legislature that this chapter . . .[p]lace children who are taken from the custody
of their parents with an adult relative when possible.” 22 M.R.S. § 4003(3-A)
(2017). By urging the consideration of kinship care, the Legislature has
certainly signaled that a home where a child’s siblings reside should be
considered for placement when possible.8
[¶40] Especially in light of the tragedies caused by the opioid addiction
epidemic, it is important to honor the Legislature’s purpose to provide for the
early placement of children whose parents cannot care for them with other
family members so that the children can grow up with a strong sense of family
identity and are not deprived of the lifetime connection that a childhood and
adolescence shared with siblings or other relatives can provide.
8 A more explicit consideration of sibling placement by the Legislature would be helpful. See also
22 M.R.S. §§ 4036-B(3-A), 4038-C(3) (2017).
19
Kevin P. Sullivan, Esq. (orally), Sullivan Law, P.C., Augusta, for appellants,
adoptive parents of two of Paisley’s biological siblings
Sarah Irving Gilbert, Esq. (orally), Elliott, MacLean, Gilbert & Coursey, LLP,
Camden, for appellee foster parents
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Department of Health and
Human Services
Rockland District Court docket numbers FM-2017-31, 72
FOR CLERK REFERENCE ONLY