Guardianship of Donovan C.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 118
Docket: Cum-19-10
Argued: June 11, 2019
Decided: July 23, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GUARDIANSHIP OF DONOVAN C.

JABAR, J.

[¶1] The father of Donovan C. appeals from a judgment of the

Cumberland County Probate Court (Mazziotti, J.) appointing the child’s

maternal aunt as his full guardian. The father contends that the court erred by

finding that the father abandoned the child and that it abused its discretion by

appointing the maternal aunt as a full guardian and by not providing adequate

transitional arrangements. We disagree and affirm the judgment of the Probate

Court.

I. BACKGROUND

[¶2] The following facts stem from the Probate Court’s findings and

procedural record, and are supported by competent record evidence. See

Guardianship of Patricia S., 2019 ME 23, ¶ 2, 202 A.3d 532.

[¶3] The child was born in December 2007 and was raised by his mother,

his maternal grandparents, and his maternal aunt and her husband. The father
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did not support, care for, or have any contact with the child while the mother

and her family were raising the child. The father was incarcerated in 2008 and

in 2009, and is a lifetime registrant as a sex offender. In 2010, the District Court

(Portland, Oram, J.) entered a paternity order that included a schedule of

parental rights and responsibilities. That order granted the mother sole

parental rights and required the father to pay weekly child support. In addition,

the father was ordered to pay child support arrearages.

[¶4] The mother died on December 13, 2016. Following the mother’s

death, the maternal grandmother notified the father, who responded by

indicating that he would take care of the child. The father applied for and

received approximately $6,000 as the child’s Social Security survivor benefits.

On December 21, 2016, the maternal grandfather and maternal aunt filed a

petition to be appointed as the child’s co-guardians. The petition was granted

and the maternal grandfather and maternal aunt were appointed as the

temporary guardians of the child on December 27, 2016. See 18-A M.R.S.

§ 5-207(c) (2018).1 The father filed an opposition to the petition and

appointment. On June 28, 2017, the child’s paternal grandparents also filed a

All citations herein are to Title 18-A, the Probate Code in effect at the time of oral argument. The
1

Code has been replaced with a new Probate Code codified in Title 18-C, which will become effective
September 1, 2019. See P.L. 2019, ch. 417.
 3

guardianship petition. While these petitions were pending, the child lived

initially with the maternal grandfather and then transitioned into the home of

the maternal aunt.

[¶5] By agreement of the parties, the Probate Court entered an interim

order on November 29, 2017, establishing weekly telephone contact between

the child and his father, and visitation every other Saturday between the child

and his paternal grandparents. Although the father engaged in weekly

telephone contact with the child, two expert witnesses opined that the phone

calls caused the child a significant amount of anxiety.2

[¶6] In July, August, and October 2018, the Probate Court held a

three-day hearing on the two competing guardianship petitions.3 In a judgment

dated December 12, 2018, the Probate Court found by clear and convincing

evidence that the father had abandoned the child and that it was in the best

interest of the child for the maternal aunt to be appointed as his guardian. In

its order, the Probate Court expressly terminated the contact schedule in the

interim order, but allowed the weekly telephone contact between the father

2 The expert witnesses also testified that the telephone contact and in-person visitation between
the child and his paternal grandparents caused the child anxiety.
3 At the outset of the guardianship hearing, the maternal grandfather moved to dismiss his
petition to be appointed as guardian of the child, and the Probate Court dismissed his petition without
objection from the parties.
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and the child to continue, and also provided that, if the child expressed a desire

to have additional contact with the father, the court would consider modifying

the guardianship.

[¶7] The father filed this timely appeal. 18-A M.R.S. § 1-308 (2018); M.R.

App. P. 2B(c)(1).

II. DISCUSSION

[¶8] The father asserts that the Probate Court erred by applying

Title 22’s statutory definition of abandonment, see 22 M.R.S. § 4002(1-A)

(2018), and that there is insufficient evidence supporting the Probate Court’s

finding that he had abandoned his child. Additionally, the father contends that

the Probate Court abused its discretion by appointing the maternal aunt as a

full guardian rather than a limited guardian and by failing to provide sufficient

transitional arrangements. See 18-A M.R.S. §§ 5-105, 5-201, 5-213 (2018).

[¶9] We review questions of law de novo, Sparks v. Sparks, 2013 ME 41,

¶ 19, 65 A.3d 1223, and the Probate Court’s factual findings for clear error, In

re Sterling N., 673 A.2d 1312, 1314 (Me. 1996). We review the Probate Court’s

determination regarding the scope of a guardianship and whether to

implement transitional arrangements for an abuse of discretion. See

Guardianship of Golodner, 2017 ME 54, ¶ 14, 157 A.3d 762; Guardianship of
 5

McIntosh, 2015 ME 95, ¶ 20, 120 A.3d 654. The father did not move for

post-judgment findings of fact pursuant to M.R. Prob. P. 52; therefore, we will

infer that the Probate Court made all of the necessary findings to support its

judgment, to the extent those inferred findings are supported by competent

evidence in the record. See Guardianship of David P., 2018 ME 151, ¶ 1, 196

A.3d 896.

A. Abandonment of the Child

[¶10] We begin with the Probate Court’s finding of abandonment. The

father challenges the Probate Court’s factual findings and its application of the

law to those facts.

1. Title 22’s Definition of Abandonment

[¶11] Pursuant to the applicable version of the Maine Probate Code, the

Probate Court may appoint a guardian for a minor if, inter alia, the Probate

Court finds by clear and convincing evidence4 that (1) the minor’s parents’

parental rights have been “suspended by circumstance or prior court order”

and (2) the court finds that the appointment is in the best interest of the child.

See 18-A M.R.S. §§ 5-204(a), 207 (2018). One method of proving that a parent’s

4Because an order appointing a guardian pursuant to 18-A M.R.S. § 5-204(a) “severely
constrain[s] the right to parent,” the applicable standard of proof is clear and convincing evidence.
See Guardianship of Chamberlain, 2015 ME 76, ¶¶ 30-34, 118 A.3d 229.
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parental rights have been suspended by circumstance is by demonstrating that

the parent has abandoned the child. See Conservatorship of Justin R., 662 A.2d

232, 234 (Me. 1995).

[¶12] Although “abandonment” is not defined in Title 18-A, it is defined

in Title 22 as “any conduct on the part of the parent showing an intent to forego

parental duties or relinquish parental claims.” 22 M.R.S. § 4002(1-A). Contrary

to the father’s contentions, the Probate Court did not err by applying Title 22’s

statutory definition of abandonment in this guardianship action. See In re

Sterling N., 673 A.2d at 1314-15; Guardianship of Zachary Z., 677 A.2d 550, 553

(Me. 1996); Conservatorship of Justin R., 662 A.2d at 234 (Me. 1995); In re

Krystal S., 584 A.2d 672, 674 n.6 (Me. 1991) (citing with approval Title 22’s

definition of abandonment in a guardianship action involving suspension of

parental rights by circumstances of abandonment).

2. Sufficiency of the Evidence

[¶13] Turning to the father’s challenge to the sufficiency of the evidence

supporting the Probate Court’s finding that the father abandoned the child,

[w]e review the Probate Court’s findings for clear error, which
occurs if there is no competent evidence in the record to support
the finding, if the fact-finder clearly misapprehends the meaning of
the evidence, or if the finding is so contrary to the credible evidence
that it does not represent the truth and right of the case.
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Guardianship of Golodner, 2017 ME 54, ¶ 9, 157 A.3d 762 (alteration omitted)

(quotation marks omitted).

[¶14] The record in this case supports the Probate Court’s finding that

the father did not have contact with the child until after the death of the mother.

In 2010, the father failed to appear at the paternity hearing at which the District

Court granted the mother sole parental rights, and the father has never moved

to modify that order so that he may have contact with his son. The record also

supports the court’s finding that the father did not support the child financially

while the mother was alive and had accumulated a child support arrearage of

$14,000 as of the guardianship hearing.5

[¶15] Because there is competent evidence in the record to support the

Probate Court’s finding of abandonment by clear and convincing evidence, the

Probate Court did not err in its finding that the father abandoned the child. See

22 M.R.S. § 4002(1-A)(F); Guardianship of Golodner, 2017 ME 54, ¶ 9, 157 A.3d

762 (“In guardianship cases, determinations of the weight, credibility, and

significance of evidence are primarily for the trial court as the finder of fact.”

5 Following the mother’s death, the father applied for and received approximately $6,000 in
survivor’s benefits from the Social Security Administration for the child, and testified that the funds
were placed in a separate account for the child and that none of the money had been spent. However,
during the second day of the hearing, the father was requested by opposing counsel to produce the
bank records, which revealed that the father withdrew $3,000 in April 2017 and $2,000 in September
2017.
8

(quotation marks omitted)); cf. Guardianship of Thayer, 2016 ME 52, ¶ 27, 136

A.3d 349. Although the father has had some minimal contact with the child

since the mother’s death—such as weekly telephone contact—“[a] mere flicker

of interest is not sufficient to bar a finding of abandonment.” In re Brianna K.,

675 A.2d 980, 982 (Me. 1996) (quotation marks omitted).

B. Limited Guardianship & Transitional Arrangements

[¶16] Lastly, we consider the father’s contentions regarding the Probate

Court’s decision to appoint the maternal aunt as a full guardian—as opposed to

a limited guardian—without implementing transitional arrangements.

[¶17] When circumstances permit the appointment of a guardian, the

Probate Court may appoint a limited guardianship and specify the duties and

legal powers of the guardian. See 18-A M.R.S. § 5-105 (2018). “The concept of

limited guardianship serves to effectuate the policy that a court should only

grant to the guardian those powers actually needed.” Guardianship of Hailey M.,

2016 ME 80, ¶ 25, 140 A.3d 478 (quotation marks omitted). In determining

whether to order a full or limited guardianship, the Probate Court considers

what is in the best interest of the child. See Guardianship of I.H., 2003 ME 130,

¶ 19, 834 A.2d 922. When the Probate Court grants a guardianship, it may

“enter an order providing for transitional arrangements for the minor if the
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court determines that such arrangements will assist the minor with a transition

of custody and are in the best interest of the child.” 18-A M.R.S. § 5-213.

Transitional arrangements, however, are to be used in those cases where a

“transition”—i.e., a change in custody—is contemplated.

[¶18] Here, the father did not request that the Probate Court limit any

guardianship order it might issue, and he did not suggest any kind of shared

custodial arrangement that might have generated transitional arrangements.

Instead, the father employed an all-or-nothing approach with regard to the

guardianship proceedings. Cf. Adoption of Riahleigh M., 2019 ME 24, ¶ 14 n.9,

202 A.3d 1174. Given the anxiety that the child was experiencing from the

telephone contact and the prospect of in-person contact with the father, and

considering the healthy and stable environment provided by the maternal aunt

and the mother’s family who helped raise the child since birth, the Probate

Court acted within its discretion by appointing the maternal aunt as a full

guardian, by maintaining the weekly telephone contact between the child and

the father, and by declining to order transitional arrangements. See

Guardianship of Hailey M., 2016 ME 80, ¶¶ 25-28, 140 A.3d 478. Further,

competent record evidence demonstrates that a “limited guardianship or

transitional arrangement was not necessary to satisfy the additional
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constitutional requirement that any infringement on [the father’s] parental

rights be narrowly tailored to serve the State’s interest in protecting the child’s

welfare.” Id. ¶ 23; see also Guardianship of Golodner, 2017 ME 54, ¶ 16, 157 A.3d

762.

III. CONCLUSION

[¶19] The Probate Court did not err by applying Title 22’s statutory

definition of abandonment in this guardianship action. Additionally, there is

ample evidence in the record to support the Probate Court’s finding of

abandonment. Finally, the Probate Court did not abuse its discretion by

appointing the maternal aunt as a full guardian of the child.

The entry is:

Judgment affirmed.

Sarah Irving Gilbert, Esq. (orally), Camden Law LLP, Camden, for appellant
father

Hesper D. Schleiderer-Hardy, Esq., and Ellsworth T. Rundlett, III, Esq. (orally),
Childs, Rundlett & Altshuler, Portland, for appellee maternal aunt

Cumberland County Probate Court docket numbers 2016-1778 and 2016-1778-1
FOR CLERK REFERENCE ONLY