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In re Kayla S.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 79
Docket:	Cum-00-332
on briefs:	January 11, 2001
Decided:	May 11, 2001	




	[¶1]  The mother of Kayla S. appeals from a judgment entered in the
District Court (Portland, Goranites, J.) terminating her parental rights.  The
mother also appeals that part of the judgment ordering the Department of
Human Services to cease its efforts to provide reunification services to the
mother.  The mother contends that the court (1) denied her equal
protection of the law when it quashed a subpoena for her daughter to testify
at the hearing; (2) impermissibly allowed in evidence a statement contained
in her medical records and witness testimony about her character and
reputation; and (3) erred when it applied a recent amendment to the Child
Protection Act.  She also contends that the evidence was insufficient to
support the court's findings.  We are unpersuaded by the mother's
contentions and affirm the judgment.
	[¶2]  The Department first became involved with Kayla in August of
1997, when the court issued a preliminary child protection order giving
custody of four-and-a-half year old Kayla to the Department.  Kayla was
returned to her mother subject to several conditions including supervision
of the mother in her home by the Department, and the mother's obligation
to maintain stable housing, to continue individual counseling, and to attend
parenting education.  In August of 1998, the court again removed Kayla from
her mother's custody, at the mother's request, and placed her in foster
care.  The court ordered the mother to continue individual counseling and
to maintain sobriety.  In August of 1999, following a judicial review and a
hearing on a permanency plan, the court directed the mother to obtain
stable housing and employment.  In March of 2000, the court granted the
Department's motion to delay its obligation to provide in-home visits as a
result of a recent assessment of Kayla during play therapy.
	[¶3]  The mother continued to experience substance and alcohol abuse
problems and involvement with domestic violence.  She also struggled to
maintain a stable living arrangement.  The Department filed a motion to
cease reunification services and a petition to terminate parental rights to
Kayla pursuant to 22 M.R.S.A. §§ 4050-4058 (1992 & Supp. 2000).
	[¶4]  Prior to the hearing on the Department's motion and petition,
the mother filed a subpoena with the Department to require the attendance
and testimony of Kayla.  At the termination hearing, the court granted the
Department's motion to quash the subpoena for Kayla.  The mother also
objected to the admission in evidence of medical records from a health
center that included an entry describing her as having "drug-seeking
behavior and dishonesty."  The court overruled the objection and relied on
the entry in its findings.  The court also overruled the mother's objection to
the Department's inquiry to a psychologist about the mother's admission
that she lies.  Following the hearing, the court terminated the mother's
parental rights to Kayla and her brother and relieved the Department of any
obligation to continue reunification efforts.  
	[¶5]  The mother appeals the order terminating her parental rights to
Kayla but does not challenge the court action terminating her parental rights
to her son.  The mother also appeals the court's order relieving the
Department from its obligation to provide services to her.
	[¶6]  The mother challenges the court's order to quash her subpoena
of Kayla.  In quashing the subpoena that would require Kayla to testify, the
court noted that the mother had not tendered the requisite fees for Kayla's
attendance and mileage.  See M.R. Civ. P. 45(b)(1);{1} see also 16 M.R.S.A.
§§ 251, 253 (1983 & Supp. 2000).  The mother contends that she was not
afforded equal protection of the law because she was unable to tender the
	[¶7]  The mother's contention has merit to the extent that the court's
decision to quash the subpoena was based solely on the failure to tender the
fee.  Cf. State v. Curtis, 399 A.2d 1330, 1331 (Me. 1979) (finding indigent
defendant entitled to transcript at public expense).  The refusal of the court
to sanction the compelled appearance of Kayla, however, does not mandate
that the termination order be vacated.  Section 4007 of the Child Protection
Act is designed to reduce the necessity of putting a child through the
experience of testifying in a child protection proceeding.  In order to do so,
it abrogates the hearsay rule as it applies to out-of-court statements made by
children.{2}  See 22 M.R.S.A. § 4007(2) (1992); In re Morris D., 2000 ME
122, ¶ 7, 754 A.2d 993, 996.  When the court, in its discretion, determines
that the child may be called as a witness, the testimony of the child may be
produced in an alternative manner that does not require the child to appear
before the court.{3}  Morris D., 2000 ME 122, ¶ 7, 754 A.2d at 996.
	[¶8]  While the State's interest to guarantee that the fee for
attendance and travel be paid may not be sufficient alone to justify the
quashing of the subpoena, any harm suffered by the mother as a result of the
subpoena being quashed is minimal in the circumstances of this case.  The
mother has not identified any testimony that Kayla could have offered that
would have affected the outcome of the case, and section 4007 provides for
the admissibility of a child's statement made outside of the court without
the necessity of forcing the child to testify in the stressful environment of a
contested hearing.  Accordingly, any error in the court's quashing of the
subpoena was harmless. Moreover, the decision of the court to terminate the
mother's parental rights was based on substantial objective evidence
concerning the mother's inability to parent, and any in-court testimony by
Kayla would have had little effect on the court's ultimate determination to
terminate the mother's parental rights.
	[¶9]  The mother also contends that the court erred in admitting the
testimony of a psychologist which suggested that the mother had a
propensity to lie.  We review a trial court's evidentiary rulings for clear error
and an abuse of discretion.  State v. Kelly, 2000 ME 107, ¶ 22, 752 A.2d
188, 193.  Character evidence is not admissible for the purpose of proving
that the accused acted in conformity with the trait on the particular
occasion involved at trial, but such character evidence may be used in some
circumstances.  See M.R. Evid. 404(a), 405(b); State v. Bourgeois, 639 A.2d
634, 637 (Me. 1994); State v. Wells, 423 A.2d 221, 223-24 (Me. 1980).
	[¶10]  In this case, the mother's propensity to lie is critical to a
determination of whether she is able to properly care for her children, and
additionally, it is important to accurately assess the mother's affirmations to
the Department about her intent to work harder to rehabilitate herself and
reunify with her children.  Moreover, the testimony was relevant to the
psychologist's testimony as to the likelihood of the mother's cooperation
with the Department.  Its admission here was neither clear error nor an
abuse of the court's discretion.
	[¶11]  The mother also challenges the court's admission of
"unredacted" medical records that described the mother as displaying
certain "narcotic seeking" behavior.  Our review of the record discloses that
the error if any in admitting that medical record is harmless.  See In re
Elijah R., 620 A.2d 282, 285-86 (Me. 1993).  There is ample evidence in the
record supporting the findings made by the court that the mother has
inadequately addressed her substance abuse problems.  Id.  The court relied
on evidence including testimony from the mother's drug counselor and
other medical information in reaching its conclusion that she has not
addressed her substance abuse issues adequately and consistently.  Further,
the record also fails to show any request by the mother to redact that
portion of the record, nor does it reflect any challenge to the authenticity of
the record.
	[¶12]  In challenging that part of the judgment relieving the
Department from providing reunification services, the mother contends that
the court erred in its conclusion that the Department made reasonable
efforts to develop a reunification plan.  We review the factual findings that
lead to a cease reunification order for clear error.  MacDougall v. Dep't of
Human Serv., 2000 ME 64, ¶ 6, ___ A.2d ___ (affirming Court practice to
overturn disputed findings of fact only if clearly erroneous).  The
Department must demonstrate by a preponderance of the evidence that it
made a good faith effort to rehabilitate the parent and reunify her with her
children.  22 M.R.S.A. § 4041(1)(A) (Supp. 2000); In re Ashley R., 2000 ME
212, ¶ 22, ___ A.2d ___; In re Breauna N., 1999 ME 191, ¶ 21, 742 A.2d
911, 916.  The court's determination to cease reunification is reviewed for
an abuse of discretion.  See Ashley R., 2000 ME 212 ¶ 22 n.11, ___ A.2d
___ n.11.
	[¶13]  Here, the court found that, although the Department made a
good faith effort to establish and implement a reunification program, the
mother did not comply in good faith with her obligations.  The facts clearly
show that the Department provided reunification and rehabilitation services,
in which the mother participated but later discontinued.  Even if there is
some merit in the mother's assertions that the Department caseworkers
hindered reunification, the mother continued to abuse drugs, remained in
contact with an individual with whom the court ordered her to have no
contact, failed to follow through with reunification efforts with in-home
counselors, and continued her inconsistent conduct.  The court acted within
its discretion in determining that the Department should be relieved of any
further responsibility to assist the mother in rehabilitating and reunifying
with Kayla.
	[¶14]  The mother's contentions that there was insufficient evidence
to support the termination of her parental rights, and that the court
incorrectly applied an amended version of 22 M.R.S.A. § 4052(2-A)
(Supp. 2000), are without substantial merit.
	The entry is:
			Judgment affirmed.

Attorney for appellant: James S. Hewes, Esq. 80 Exchange Street Portland, ME 04101 Attorneys for appellee: G. Steven Rowe, Attorney General Mathew Pollack, Asst. Attorney General Sally DeMartini, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Barbara Lundgren, Esq. 33 Fessenden Street Portland, ME 04103-4817 Attorney for father: Judith Wohl, Esq. 103 Exchange Street Portland, ME 04101-5001
FOOTNOTES******************************** {1} . The rule states that service of a subpoena should be made, "if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law." M.R. Civ. P. 45(b)(1). {2} . The rule governing the conduct of child protective proceedings provides: "The court may interview a child witness in chambers . . . and may admit and consider oral or written evidence of out-of-court statements made by the child, and may rely on that evidence to the extent of its probative value." 22 M.R.S.A. § 4007(2) (1992). {3} . In a child protection proceeding, the far better practice for determining whether a child will be required to testify, rather than the issuance of a subpoena or the filing of a motion to quash a subpoena, is the use of a motion in limine. See Gendron v. Pawtucket Mut. Ins. Co., 409 A.2d 656, 659, 660 (Me. 1979) (noting motion in limine utilized in many ways to protect party's right to fair trial). Such a motion allows the court to decide, based on sufficient information, what the testimony may be and to determine its relevance, most often without requiring the presence of the child. See id. at 660. If the child is in the custody of the Department, the Department should make the child available to testify if the court deems that testimony to be appropriate.