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In re Misty B.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 67
Docket:	And-99-367
on briefs:	January 14, 2000	
Decided:	April 19, 2000



	[¶1]  The mother of Misty B. appeals from orders entered in the
District Court (Lewiston, Gorman, J.) pursuant to 22 M.R.S.A. § 4036
(1992 & Supp. 1999) (preliminary protection order) and 22 M.R.S.A.
§§ 4036(1), 4041(2)(A-1) (1992 & Supp. 1999) (final child protection
order including a provision allowing the Department of Human Services to
discontinue efforts to reunify the parent with her child).  The mother
contends, inter alia, that the court impermissibly suspended reunification
efforts in its preliminary protection order, that she was treated unfairly by
the court at the jeopardy hearing, and that the court erred in issuing the
jeopardy order and by relieving the Department of its obligation to provide
reunification services to the mother.  Concluding that the appeal of the
preliminary protection order is moot, that the court acted within its
discretion in conducting the jeopardy hearing, that there is sufficient
evidence to support the issuance of the child protection order, and that
procedural errors by the court in relieving the Department of its obligation
to reunify Misty with her mother are harmless, we affirm the judgments.
	[¶2]  Misty is the fourth child of the mother.  The oldest child has
always resided with the mother's parents, and the second child was adopted
after Misty's mother consented to termination of her parental rights.  The
mother's third child was removed from her custody by the Department and
resides with relatives.
	[¶3]  Misty was born on December 9, 1998 and, pursuant to a
preliminary child protection order, was removed from her mother's custody
in late December of the same year, when the mother's apartment was found
in disarray.  The entrance to the apartment was damaged, the furniture
smashed, and the mother's behavior was bizarre.  In addition, the mother
was complaining of water contamination in her apartment and that her
other children had been taken away from her by the police.
	[¶4]  Following a summary preliminary hearing on December 31,
1998, see 22 M.R.S.A. § 4034(4) (Supp. 1999), the court found that Misty
was in circumstances of jeopardy, and ordered that custody of Misty remain
with the Department, see 22 M.R.S.A. §§ 4034(4), 4036(1)(F) (1992 &
Supp. 1999).  The court also ordered that reunification efforts be suspended
and that the Department file a permanency plan with the court.  See
22 M.R.S.A. §§ 4034(4), 4036(1)(G-2), 4041(2)(A-1) (Supp. 1999).
	[¶5]  A final protection hearing was held in April of 1999, and a child
protection order was issued by the court on May 20.  See 22 M.R.S.A.
§§ 4035, 4036 (1992 & Supp. 1999).  After an extensive review of the
mother's mental health history and the events leading to the Department's
petition for custody, the court found that Misty would be in circumstances of
jeopardy if placed with her mother, see 22 M.R.S.A. § 4035(2) (1992), and
that reunification would be an exercise in futility.  Accordingly, the court
ordered that reunification efforts be terminated.  The mother filed a notice
of appeal from that order on June 8, 1999.
	[¶6]  On June 17, the court held a permanency planning hearing.  See
22 M.R.S.A. § 4038(7-A) (Supp. 1999).  Several days later, the court issued a
permanency planning order providing that the "plan for the child is
termination of parental rights and placement for adoption."  The court also
affirmed its prior cease reunification order.
	[¶7]  The mother contends that the District Court erred in its order
following the summary preliminary hearing when it suspended the
obligation of the Department to reunify the mother with Misty.{1}  The court,
however, later conducted a full evidentiary hearing pursuant to 22 M.R.S.A.
§ 4035 (1992 & Supp. 1999), and determined that the Department was to
be relieved of its duty to provide reunification services.  See 22 M.R.S.A.
§ 4041(2)(A-1) (Supp. 1999).  We agree with the Department that the
suspension of reunification efforts became moot when the court addressed
the same issue at the final protection hearing.  See Monroe v. Town of Gray,
1999 ME 190, ¶ 4, 743 A.2d 1257, 1258; see also In re Erica B., 520 A.2d
342, 344-45 (Me. 1987).  When a decision of the appellate court will not
provide an appellant with any "'real or effective relief,'" we will not review
the issue.  See Sordyl v. Sordyl, 1997 ME 87, ¶ 4, 692 A.2d 1386, 1387
(quoting International Paper v. United Paperworkers Int'l, 551 A.2d 1356,
1360-61 (Me. 1988)).  Because the summary preliminary order automatically
expired when the final jeopardy order was issued on May 20, 1999, see 22
M.R.S.A. § 4034(2) (1992), we can offer the mother no real or effective
relief, see Sordyl v. Sordyl, 1997 ME 87, ¶ 4, 692 A.2d at 1387.  The order,
therefore, is moot, and because the mother has not established that any
exceptions to mootness apply, she has failed to meet her burden of
demonstrating "that the collateral consequences of the ruling are substantial
enough to justify our consideration of a question with no continuing
controversial vitality."  See id. ¶ 6, 692 A.2d at 1388.
	[¶8]  Contrary to its obligation under the pretrial order in this case,
the Department failed to provide a list of witnesses and exhibits prior to
jeopardy hearing.  See M.R. Civ. P. 16A.  The mother objected at trial and
moved to exclude those witnesses and exhibits.  The court inquired as to
whether the mother was surprised by any of the witnesses the Department
listed at trial, and the mother's attorney did not point to any that were
unexpected.  The issue was not mentioned again.  Moreover, the court did
not admit the voluminous packet of materials offered by the Department that
the mother's attorney had not been able to review, but left the record open
for the parties to reach an agreement as to the admissibility of the materials
or to present witnesses through which the materials could be offered. 
Excerpts from the materials were later added to the record by agreement of
the parties.
	[¶9]  The mother contends that she was placed "at an unfair and
significant disadvantage" by the Department's failure to designate witnesses
and exhibits.  We review the trial court's determination as to what sanctions,
if any, should be imposed for a discovery violation for an abuse of discretion. 
See Shaw v. Bolduc, 658 A.2d 229, 234-35 (Me. 1995).  A review of the
record discloses that none of the witnesses called by the Department were a
surprise to the mother.  The mother did not argue surprise at trial, nor on
appeal does she point to any testimony that surprised her.  Moreover, the
court allowed the mother additional time to review the documentary
evidence.  Because the mother has failed to establish that she was
prejudiced by the Department's failure to disclose, we conclude that the
court acted within its discretion in allowing the Department's witnesses to
testify and in admitting in evidence exhibits offered by the Department.  See
Bailey v. Sears, Roebuck & Co., 651 A.2d 840, 842 (Me. 1994).
	[¶10]  Following the final protection hearing on April 28, 1999, the
court issued a child protection order in which it relieved the Department of
its duty to provide reunification services.{2}  The determination of whether
the Department is to be relieved of its duty to provide reunification services
is governed by 22 M.R.S.A. § 4041(2) (Supp. 1999).  The former version of
section 4041(2) allowed a court to issue such an order if it found that "[t]he
parent is unwilling or unable to rehabilitate and reunify with the child within
a time which is reasonably calculated to meet the child's needs."  See
22 M.R.S.A. § 4041(2)(A)(3) (1992), amended by P.L. 1997, ch. 715, § B-11
(effective June 30, 1998).
	[¶11]  Pursuant to recent amendments to the statute, however, a court
may relieve the Department of its reunification responsibilities only if it
finds an aggravating factor as defined in 22 M.R.S.A. § 4002(1-B)
(Supp. 1999), or if it finds that reunification efforts are "inconsistent with
the permanency plan for the child."  See 22 M.R.S.A. § 4041(2)(A-1)
(Supp. 1999).{3}  In this case, the court did not separately find the presence
of an aggravating factor in its May 20, 1999, jeopardy order, nor did it rely
on a permanency plan for the child because the hearing on the permanency
plan was not held until June 17, 1999, and the permanency plan order was
not issued until June 22, 1999.  A review of the entire record, however,
reveals that in the circumstances of this case, the District Court's
procedural error was harmless.
	[¶12]  The trial court found, in its May 20, 1999 child protection
order, that the mother could not be a "competent caretaker" and that,
because of her mental health history, "reunification [would be] an exercise in
futility."  Those findings were supported by competent evidence.
	[¶13]  The court had before it evidence that the mother had a long
history of schizophrenia/schizoaffective disorder and substance abuse. 
Witnesses testified that the mother had not fully accepted that she needs to
take her medication to remain stable.  In addition, there was evidence of
marijuana and alcohol use, even after the mother's discharge from AMHI in
March of 1999, as well as evidence that her behavior during supervised
visits with Misty demonstrated her inability to safely care for the child.
	[¶14]  If the permanency plan, which called for adoption of the child,
had been issued prior to the jeopardy hearing, these findings would have
amply supported a determination that reunification efforts were
"inconsistent with the permanency plan for the child."{4}  See 22 M.R.S.A.
§ 4041(2)(A-1) (Supp. 1999).  Accordingly, although the court erred in
ordering that reunification efforts not begin before it had found an
aggravating factor or had formulated a permanency plan, see 22 M.R.S.A.
§ 4041(2)(A-1) (Supp. 1999), that error was harmless.
	The entry is:
			Judgments affirmed.

Attorney for the appellant: David N. Veilleux, Esq. Howaniec & Associates 145 Lisbon St. P.O. Box 655 Lewiston, Maine 04243-0655 Attorneys for the appellee: Andrew Ketterer, Attorney General David F. Hathaway, Assistant Attorney General Matthew Pollack, Assistant Attorney General State House Station 6 Augusta, Maine 04333 Guardian ad Litem: Christopher L'Hommedieu, Esq. 65 East Ave. Lewiston, Maine 04240
FOOTNOTES******************************** {1} . The mother was receiving mental health services at the Augusta Mental Health Institute during this period. Despite the order suspending reunification efforts, the Department arranged for visits with Misty while the mother was at AMHI. {2} . The mother contends that the court did not apply the correct standard of proof, which the mother argued should be proof by clear and convincing evidence, in its order relieving the Department of its duty to reunify Misty with her mother. The mother's claim is without merit. We have recently decided that issue against the mother's position. In In re Christmas C., 1998 ME 258, ¶¶ 7, 13, 721 A.2d 629, 631-32, we construed the prior cease reunification statute as requiring proof by a preponderance of the evidence. There is nothing in the circumstances of this case, or in the statutes, that would require a different result here. {3} . If the court finds the presence of "an aggravating factor," the court may order the Department not to commence reunification or to cease reunification, "in which case a permanency planning hearing must commence within 30 days of the order." 22 M.R.S.A. § 4036(1)(G-2) (Supp. 1999). In this case, there was no finding of an aggravating factor, but a permanency planning hearing was held within 30 days of the final protection order relieving the Department of its obligation to provide reunification services. {4} . Contrary to the mother's contentions, this evidence was also sufficient to support the court's finding of continuing jeopardy.