MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 208
Docket: Cum-17-143
Submitted
On Briefs: September 27, 2017
Decided: October 24, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE ALIYAH A. et al.
SAUFLEY, C.J.
[¶1] The question presented in this appeal is whether the court erred in
finding an aggravating factor as to the father of Aliyah A. and her five younger
siblings based on conduct that is “heinous or abhorrent to society,” 22 M.R.S.
§ 4002(1-B)(A)(1) (2016), when the father left the children living with their
mother in squalid conditions without adequate food or heat. The father
appeals from the finding of an aggravating factor as part of a jeopardy order
entered by the District Court (Portland, Powers, J.) after a contested hearing.
We discern no error in the court’s finding of an aggravating factor, and we
affirm the judgment.
[¶2] Based on competent evidence in the record, the court found, by a
preponderance of the evidence, that the six children in this matter were in
circumstances of jeopardy to their health or welfare if placed in either
2
parent’s care.1 See 22 M.R.S. § 4035(2) (2016). The court found the existence
of an aggravating factor as to the father for his treatment of the children in a
manner that was “heinous or abhorrent to society” because he left the six
children in the mother’s care for weeks, without providing support or
checking on them, when he knew that the conditions in the home were
unsanitary and unsafe. Id. § 4002(1-B)(A)(1). Accordingly, the court entered
an order authorizing the Department of Health and Human Services to cease
reunification efforts with the father. See 22 M.R.S. §§ 4036(1)(G-2),
4041(2)(A-2)(1) (2016).2
[¶3] The court based its determinations on detailed findings of fact,
including the following:
The three oldest children were in DHHS custody in 2011 due to
neglect and returned to the parents with a dismissal of the case in
2013. Jeopardy in that case in 2011 was “significant neglect based
on unsafe and unhealthy living conditions, exposure to unsafe
people, and the developmental delays of Aliyah and [the next
oldest child].” [The guardian ad litem in this case] was also
involved in the 2011 case.
1 The mother has not brought an appeal, and we do not discuss the court’s decision with respect
to her further.
2 “Although the determination, at the time of the jeopardy proceeding, that aggravating factors
exist is appealable because it comprises a portion of the jeopardy finding, the disposition ordered
by a court after it makes that finding is not appealable.” In re B.C., 2012 ME 140, ¶ 12, 58 A.3d 1118;
see 22 M.R.S. § 4006 (2016).
3
On December 2, 2016 [the mother] was at home, arrested,
and jailed for violating bail conditions. [The father] was not
around. He later said he had left them 5 months ago. DHHS
entered the home and found it to be in a “deplorable” condition.
There were feces on walls, cat urine on the floor, and garbage
piled high. The house smelled of feces and urine and trash was
everywhere. [The two youngest children] were purple, swollen,
and cold . . . . [One of them] was face down on a mattress in a
soiled diaper and had no pants or socks on. The four children at
home were taken for evaluation to Maine Medical Center. The
two youngest had frostbite and stayed a few days there. The
other two were medically fine. Portland Water District had shut
off water to the home several weeks before December 2. The
home itself was cold, certainly under 60 degrees. There were
some broken windows in the home. The Portland Police
Department civilian coordinator who also went to the home on
December 2, and described its condition as “disgusting, filthy, and
cluttered.” She said it was the worst building she had entered
during her 15 years of employment. She noted [that one of the
younger children] picked up crumbs . . . and tried to eat them.
[The mother] said the children were not hungry. The children
needed socks and shoes. The oldest two also came to the hospital
from school later that day.
The Portland code enforcement officer had gone to this
home in January 2015 and the family vacated for 5 days to clean
up the home. He went again on December 2, 2016. . . . He saw the
cluttered home, which had a space heater inside with broken
windows to the outside. Shards of glass were within reach of the
children. It was very dark and cold inside. He said the home was
unsafe due to life safety issues, including no functioning smoke
detector. He described the home as being in the “top two” he has
seen in terms of its bad condition. The building has not been
inhabited since then and remains boarded up with no water or
power. The water had been shut off for at least a week before
December 2, 2016. . . .
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These parents have been in a relationship for about 10
years. Their relationship developed problems earlier in 2016, and
[the father] would be gone, probably out of state, for days at a
time. He says he has not been staying in the Portland home since
September 6, 2016. He has a new girlfriend, with whom he has
been staying since October 2016. The mother says he left the
home on October 27, 2016. He has not been a primary caregiver
and has had some recent one hour supervised visits with children.
[The father] claims to want to reunify. He signed an updated
reunification plan at a team meeting on January 24, 2017. He says
the children were all in good health, that the home was not a
mess, and that he was unaware of the youngest children’s
developmental delays when he left on September 6, 2016. Those
comments are not likely accurate based on other evidence in this
case.
. . . . Neither parent accepts any responsibility for the
serious, long-term neglect and its impact on all the children. . . .
. . . .
The GAL concludes that the children are in jeopardy and
have suffered from long-term neglect, which has been most
obvious in the four youngest children. The two youngest showed
signs of malnutrition as well. He notes all six have some level of
special needs and have not received regular medical and other
services to meet their individual needs. The needs are likely
related to their long-term neglect. The parents have taken no
responsibility for their role. The GAL [indicated] “this lack of
understanding is dangerous and unlikely to change without an
extreme shift in thinking by each parent.” The children’s recent
situation is worse than it was four years ago. He concludes that it
is unlikely either parent can ever care for the children and meet
their needs. All the children are doing better in foster care even
though all have issues.
. . . .
5
These same parents had issues involving their serious
neglect of the three oldest children in 2011. They regained
custody in 2013 with the case being dismissed. In December
2016 all six children, ranging from 9 months to 9 years old, were
found living in a cold, unsanitary, and unsafe home. The mother
felt there was essentially nothing wrong with the situation. The
father has been in and out of the home since the summer of 2016
and totally out of the home since either September 6, 2016 or
October 27, 2016. He has given no financial support since he left
at least. He also says the children were fine when he last saw
them in the fall of 2016, which cannot be accurate.
The photos and testimony demonstrate that the family
home owned since 2011 was in disgusting condition and not
suitable for raising these children. . . . That condition was clearly
in existence for some time, not just on December 2, 2016. Home
cleanliness issues were also present in this family’s 2011 child
protection case. There had been no water in the home for several
days or weeks. The temperature was cold enough to cause
frostbite. At least two of the children did not appear well. The
parents did not take the children regularly to medical and dental
visits. They did not recognize the numerous developmental
delays which are ongoing and in need of serious services. The
father and mother were oblivious to these serious issues and were
not getting services to those children. The father gave no support
and moved in with his new girlfriend in October 2016, not
spending any real time with the children before this case began.
. . . He should have been present at least enough to check on his
children even if he had left the home. His responsibility for the
horrible neglect is as clear to the court as the mother’s, who was
present daily in the home. No child should live under the squalid
conditions shown above, and no parent should allow such
conditions to exist.
. . . .
This case presents one of the worst factual backgrounds this
court has ever seen regarding long-term poor parenting,
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deplorable living conditions, and significant negative impacts on
the children. These parents have shown that they cannot
recognize their liabilities and the impact on their children. They
are not likely to be rehabilitated by participating in services, nor
are they likely to be able to meet their children’s needs, protect
them, and reunify with any of them. There is no sense under
these facts to spend additional time, energy, and money on
reunification that has almost no chance of success.
[¶4] The father does not contest the finding of jeopardy, which is
supported by the court’s findings and the evidence presented at the jeopardy
hearing. See id. § 4035(2). He contests only the finding of an aggravating
factor, arguing that his conduct was not “heinous or abhorrent to society”
because he was not the person responsible for the conditions in the mother’s
home and that there is no evidence showing that he was aware the water had
been shut off. Id. § 4002(1-B)(A)(1).
[¶5] The court’s findings of jeopardy and an aggravating factor are
supported by competent evidence in the record. See In re B.C., 2012 ME 140,
¶ 11, 58 A.3d 1118. The evidence supports the court’s findings that the father
knew about the unsafe and unsanitary conditions in the mother’s home, but
that he nonetheless entrusted the mother with the children’s primary, and at
times exclusive, care over a course of weeks, months, and years—even after
previous involvement by the Department—without acting to support the
children or protect them from harm. See id. ¶¶ 4, 11, 58 A.3d 1118 (affirming
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finding of conduct heinous or abhorrent to society when a parent left the child
with a significant other she knew to be incapable of handling the infant,
resulting in a life-threatening injury to the child); In re Jamara R., 2005 ME 45,
¶¶ 4, 15-16, 870 A.2d 112 (affirming finding of conduct heinous or abhorrent
to society when the mother left the child in the care of her boyfriend, who had
been convicted of assaulting a child before, and the seventeen-month-old child
suffered a spiral fracture, facial bruises, a bite mark, and scratches), overruled
in part on other grounds by In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d 1118.
[¶6] As the court found, the father’s “responsibility for the horrible
neglect is as clear . . . as the mother’s, who was present daily in the home.”
The court did not err in finding an aggravating factor based on the father’s
extraordinary neglect of the children, which ultimately resulted in long-term
deprivation of medical and dental care, failure to thrive, frostbite,
malnutrition, significant and possibly irreversible developmental delays, and
long-term special needs for the children. See In re Ashley S., 2000 ME 212,
¶¶ 4-10, 16-22, 762 A.2d 941 (affirming finding of conduct heinous or
abhorrent to society when the child was subjected to “extraordinary neglect”
in a squalid apartment where she was ignored, unfed, and unwashed, and was
found covered in feces), overruled in part on other grounds by In re B.C., 2012
8
ME 140, ¶ 14 n.2, 58 A.3d 1118; see also In re B.C., 2012 ME 140, ¶¶ 4, 11, 58
A.3d 1118; In re Jamara R., 2005 ME 45, ¶¶ 4, 15-16, 870 A.2d 112.
The entry is:
Judgment affirmed.
Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A.,
Biddeford, for appellant father
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
Portland District Court docket number PC-2016-101
FOR CLERK REFERENCE ONLY