Adoption of Paisley

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).
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[¶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
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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.
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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.

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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).
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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