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In re Heather C.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 99
Docket:	Som-99-497
Argued:	May 1, 2000
Decided:	May 25, 2000




	[¶1]  The mother of Heather C. appeals from an order entered in the
District Court (Somerset, Clapp, J.), pursuant to 22 M.R.S.A. §§ 4035, 4036
(1992 & Supp. 1999), finding that Heather was in circumstances of jeopardy
and awarding custody to the Department of Human Services.  On appeal, the
mother contends that certain provisions of the Child Protection Act,
22 M.R.S.A. §§ 4001-4094 (1992 & Supp. 1999), which allow the court to
relieve the Department of its statutory responsibility to provide reunification
services when the court is satisfied that the Department has sufficiently
demonstrated that an aggravating factor is present, are unconstitutional as
applied to her.  We find no constitutional infirmity and affirm the judgment.
	[¶2]  Because the mother argues that the statutory process has worked
to deprive her of her due process rights, we first review the process itself. 
When the Department has sought and obtained an emergency order of
preliminary protection, a summary preliminary hearing must be held within
ten days of the filing of the petition, unless the parent consents to the
continuation of the order.  See 22 M.R.S.A. § 4034(4).  The parents are
entitled to have an attorney represent them at the State's expense if they
cannot afford counsel.  See 22 M.R.S.A. § 4005(2).  
	[¶3]  At the summary hearing, the court may limit testimony and "may
admit evidence, including reports and records, that would ordinarily be
inadmissible as hearsay evidence."  22 M.R.S.A. § 4034(4).  This process
allows both the petitioner, usually the Department, and the parents or
guardian ad litem, to bring evidence to the court's attention in this
expedited proceeding that would not otherwise be available.  If, after
hearing, the court finds by a preponderance of the evidence "that there is
an immediate risk of serious harm to the child," 22 M.R.S.A. § 4034(2), it
may continue the preliminary protection order and may order that the
Department or another person take custody of the child, see 22 M.R.S.A.
§ 4036(1)(F).
	[¶4]  In the ordinary course, as soon as the child has entered foster
care as a result of a court order, the Department is required to begin
providing rehabilitation services to the parents.  See 22 M.R.S.A.
§ 4041(1)(A).  If, however, the court has found the presence of an
"aggravating factor," see 22 M.R.S.A. § 4002(1-B), the court may, but is not
required to, relieve the Department of its statutory responsibility to
commence or continue rehabilitation services under section 4041.  See
22 M.R.S.A. § 4034(4).  An aggravating factor is defined by statute, and
includes circumstances such as sexual assault or chronic abuse of the child
by the parent, conviction of the parent for certain violent crimes, a prior
involuntary termination of the parent's parental rights to another child, and
abandonment of the child.  See 22 M.R.S.A. § 4002(1-B).{1}  In order to assure
that there are immediate plans made for the child's future when the
Department has been relieved of its responsibility to work with the parents,
a permanency planning hearing must be held within thirty days of the entry
of the preliminary order.  See 22 M.R.S.A. § 4034(4).
	[¶5]  The preliminary protection order is intended to act as a short-
term vehicle for providing safety to children in immediate risk of serious
harm, not to establish the longer term goals for the parents or children.
Thus, any determination of the court in the preliminary order is subject to
change as a result of the jeopardy hearing, see 22 M.R.S.A. § 4035, and the
facts found by the court at the summary hearing are not final for purposes of
issue preclusion, see In re Misty B., 2000 ME 67, ¶ 7, 749 A.2d 754, ----. 
The preliminary order is interlocutory and is not appealable.  See
22 M.R.S.A. § 4006.  It automatically expires upon the issuance of a final
protection order pursuant to 22 M.R.S.A. § 4035.  See 22 M.R.S.A.
§ 4034(2); In re Misty B., 2000 ME 67, ¶ 7, 749 A.2d at ----. 
	[¶6]  The next step in the process requires the court to determine
whether the child is in "jeopardy."  22 M.R.S.A. §§ 4002(6), 4035.  The
jeopardy order must be issued within 120 days of the original filing of the
petition unless good cause is shown for the delay.  See 22 M.R.S.A.
§ 4035(4-A).  Before issuing a final protection order, the court must hold a
full adversarial hearing, unless hearing is waived by the parents.  See
22 M.R.S.A. § 4035(1).  Because the summary preliminary hearing and the
jeopardy hearing are part of a unified process, the court is permitted to take
judicial notice of evidence presented in the summary preliminary hearing. 
See In re David W., 568 A.2d 513, 515 (Me. 1990).  It may also take judicial
notice of findings made in other jeopardy or termination of parental rights
orders.  In contrast, the factual findings included in the preliminary
protection order are not final, and the parties may present additional
evidence on facts relevant to the court's jeopardy and dispositional
determinations.  See 22 M.R.S.A. § 4034(2).{2}  
	[¶7]  Unless the parties have reached an agreement at the jeopardy
hearing, if the court entered a cease reunification order after the summary
hearing and if a parent challenges that order and presents additional
evidence regarding the application of an "aggravating factor" to that parent's
circumstances, the court must revisit the issues of whether an aggravating
factor exists, and if it does, whether a cease reunification provision should
be imposed, making use of the evidence presented at both the summary and
jeopardy hearings.  If, by a preponderance of the evidence, the court finds
that "the child is in circumstances of jeopardy to his health or welfare," it
may issue a final order of child protection.  See 22 M.R.S.A. § 4035(2).  The
court may order one or more of the dispositions in section 4036, including,
if an aggravating factor is found, that the Department need not commence or
continue reunification.  See 22 M.R.S.A. § 4036(G-2).
	[¶8]  In the matter before us, this process was followed correctly, and
the mother does not allege any deviation from the required statutory
process by the court.  Rather, she argues that the statute, as applied to her,
gave rise to a violation of her procedural due process rights.  Because she
challenges the statute as applied to the individual facts before the court, we
review the facts before the court regarding the mother's parenting history.
	[¶9]  Heather C. is the mother's eighth child.  The mother is currently
thirty-eight years old.  Although she had been told for much of her life that
she was retarded, she has recently learned that the label may be inaccurate. 
She is, however, learning disabled, and tests of her intellectual functioning
suggests a range of low average to borderline intellectual functioning.  She
has been diagnosed as suffering from a severe personality disorder which
interferes with her ability to understand the needs and actions of her
children and to respond appropriately.
	[¶10]  She gave birth to her first child, Lorna, when she was
approximately seventeen years old.  Lorna's father left her when he
discovered that she had become pregnant.  Her second child, Crystal, was
born when the mother was twenty-one.  The mother then met and married
a man whom she later described as a chronic alcoholic and who "used [her]
as a punching bag."  By this father, the mother gave birth to two boys, Albert
and Steven.
	[¶11]  The Department first intervened with the mother when Albert
and Steven were each twice admitted to the hospital for failure to thrive. 
When Steven was admitted for the second time, a nurse noted that there
was a dead cockroach in the nipple of Steven's bottle, which was coated
with curdled milk.  The services provided by the Department to the mother
were not successful, and eventually, because of continuing allegations of
neglect and abuse, including sexual abuse, the Department petitioned for
and was granted custody of all four children.  A fifth child, Nicole, was born
shortly thereafter, and the Department took custody of Nicole before she
was discharged from the hospital.
	[¶12]  During the course of those events, the mother received
substantial services from the Department, but showed little commitment to
or progress in these services.  Eventually, the mother voluntarily gave up her
parental rights to Nicole in 1990 and to Albert and Steven in 1992.  The
mother's parental rights to Lorna and Crystal were involuntarily terminated
after hearing in 1992.
	[¶13]  The mother eventually divorced her first husband and met the
man who would become Heather's father.  With him, she gave birth to two
sons, Vernal in 1992 and Daniel in 1994.  In 1996, the mother petitioned
for and obtained an order for protection from abuse against the boys' father,
but soon thereafter, with the protection from abuse order still in place, she
married her alleged abuser.
	[¶14]  The boys remained in the parents' care until 1997, when the
Department was given custody by the court.  The boys had been horrifically
neglected, and had apparently been deprived of almost all nurturing human
contact.  They suffered from severe developmental delays.  In the child
protection order in that case, the court found that the boys "suffered from
painful medical and dental neglect and had trouble walking correctly.  They
had been kept in a cage-like enclosure, euphemistically referred to as a crib,
to control them, much like one would cage an animal and they exhibited
many feral traits, including being totally uncontrollable."  Although the court
relieved the Department of any obligation to provide reunification services to
the mother, the Department continued to assist her voluntarily until, in
January 1999, the mother voluntarily relinquished her parental rights to
both boys.
	[¶15]  Heather, the mother's eighth child, was born on March 18,
1999, just two months after her mother voluntarily gave up her parental
rights to Vernal and Daniel.  The day after Heather was born, the
Department petitioned the court for immediate custody.  The petition
recounted that the State had taken custody of her seven previous children
and that, despite the availability and offer of services to the mother, she was
unable to care for any of those seven and thus had, either voluntarily or
through an adversarial proceeding, lost her parental rights to every one of
those children.  The petition specifically included reference to the
involuntary termination of her rights to Lorna and Crystal in 1992, and
included a description of the way she and her husband had treated Daniel
and Vernal.  The petition also alleged that the mother had not shown any
progress with services previously offered by the Department and that she
continued to suffer from a severe personality disorder.{3}  On the basis of the
prior involuntary terminations and the mother's demonstrated inability to
take advantage of services, the Department sought to be relieved of any
requirement that it provide reunification services.
	[¶16]  An ex parte order of preliminary protection was issued on the
same day, and the Department's request regarding reunification services
was addressed after a summary preliminary hearing held six days later. 
During that hearing, the court asked pointed questions in order to discern
the mother's present ability to care for Heather.{4}  The guardian ad litem for
Heather stated that, in his opinion, Heather's parents would need to be
monitored at least "until [Heather was] ten or twelve years old."  This kind
of intensive monitoring would be required "because of the nature of the
parents, their own needs, and it's something that they perhaps cannot do
anything about."
	[¶17]  In its order following the summary hearing, the court took
judicial notice of the prior court orders and findings regarding the mother. 
The court also noted, and gave particular weight to, the circumstances
under which the mother had very recently voluntarily given up her rights to
Vernal and Daniel and the conditions in which the boys had been found. 
The court ordered that the Department was relieved of any requirement
that it provide reunification services to the mother.{5}
	[¶18]  A combined jeopardy and permanency planning hearing was
held on June 9 and 10, 1999.  At that hearing, the mother presented new
evidence regarding her ability to make use of rehabilitation services.  She
testified that she now maintained a good home.  She also presented the
testimony of several professionals, including the testimony of her own
doctor, a family practitioner, who opined that the mother could parent
Heather with sufficient supervision in place.  The Department presented a
psychologist's evaluation of the mother, which concluded that the mother
would be unable to adequately parent Heather "within a reasonable period of
time."  Evidence showed that the mother continued to suffer from a
personality disorder requiring significant therapy.
	[¶19]  Following the hearing, the court issued a final protection order,
taking judicial notice of prior evidence submitted at the summary hearing
and of previous orders concerning the mother.  The court found the
mother's experts to be not particularly credible, finding in particular that
the mother's doctor had attempted to minimize Vernal's and Daniel's
conditions.  The court again found that further efforts at rehabilitating the
mother would be fruitless, specifically finding that "[r]eunification with
[Heather's] parents is too dangerous now and highly unlikely to do anything
in the long range other than to expose her to a real threat of severe abuse,
neglect, or significant development delays."  Accordingly, the court ordered
that Heather remain in the Department's custody and that the Department
was relieved of any responsibility to provide reunification services to either
parent.  The mother then filed this appeal.{6}
	[¶20]  The mother presents a challenge to the constitutionality of
section 4002(1-B) as it has been applied in this case.  Specifically, the
mother alleges a procedural due process violation, arguing that the process
creates a high risk of erroneous deprivation of a parent's fundamental rights
to raise her children, which outweighs the State's interests in carrying out
an expeditious child protection proceeding.{7}
	[¶21]  The Due Process Clause of Fourteenth Amendment, and article
I, section 6-A of the Maine Constitution, place certain constraints upon the
exercise of governmental power that serves to deprive an individual of a life,
liberty, or property interest.  U.S. Const. amend. XIV; Me. Const. art. I, § 6-A;
see also Mathews v. Eldridge, 424 U.S. 319, 332 (1976); In re Christmas C.,
1998 ME 258, ¶ 9, 721 A.2d 629, 631 (quoting State v. Rosado, 669 A.2d
180, 182 (Me. 1996) (reiterating principle that the Maine Constitution and
the Constitution of the United States are declarative of identical concepts of
due process)).  
	[¶22]  When a protected right is implicated, the question of what
process is due depends on the nature of the interest and the risks to that
interest.  See In re Christmas C., 1998 ME 258, ¶ 11, 721 A.2d at 632.  In
answering this question, we balance the three factors articulated by the
Supreme Court in Mathews.  See In re Kafia M., 1999 ME 195, ¶ 21, 742
A.2d 919, 926 (citing Mathews, 424 U.S. at 334-35).
[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors:  First, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews, 424 U.S. at 335 (citing Goldberg v. Kelly, 397 U.S. 254, 263-71
(1970)), cited in In re Kafia, 1999 ME 195, ¶¶ 21-22, 742 A.2d at 926-27.
	[¶23]  As to the first factor, there can be no dispute that there exists
within the constitutional frameworks of the federal and state constitutions a
fundamental and important right to raise one's children.  See In re
Christmas C., 1998 ME 258, ¶¶ 10-11, 721 A.2d at 631-32; In re
Alexander D., 1998 ME 207, ¶ 14, 716 A.2d 222, 226-27.  We have held
that there also exists a fundamental and important right to receive
reunification services at state expense, although that interest is somewhat
less important than that implicated in a termination proceeding.  See In re
Christmas C., 1998 ME 258, ¶ 11, 721 A.2d at 632. 
	[¶24]  Accordingly, the remaining factors require an evaluation of the
potential for an erroneous deprivation of those rights against the
government's interest in maintaining the procedure embodied in the
statute.  The mother contends that the process chosen by the Legislature
creates a high risk of an erroneous deprivation of her rights.  Because the
statute does not explicitly require that the court evaluate whether the prior
terminations has any relevance in her present case, the mother contends,
the court is able to relieve the Department of its duty to provide
reunification services to her when she may, in fact, be perfectly capable of
receiving them.{8}
	[¶25]  We are not persuaded that the statute poses a high risk for
erroneous deprivation of a parent's rights.  The statute is written to allow,
but does not mandate, that the Department be relieved of its
responsibilities.  Where the court is accorded discretion by the Legislature,
it must exercise that discretion in a reasonable manner.  See West Point-
Pepperell, Inc. v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211,
1213 (quoting Coon v. Grenier, 867 F.2d 73, 78 (1st Cir. 1989)) (citations
omitted).  In order to exercise its discretion in circumstances where the
competing interests of the parent in raising her child and the State in
protecting the child from harm are at stake, the court considers both the
historical and present circumstances of the family.  Thus, the court may not
consider the aggravating factor in the abstract as the mother fears.  Rather,
it must take into account the nature of the aggravating factor and any
relevant facts related to a parent's and child's current circumstances.  By its
language, the statute requires the court to act on the facts unique to each
family's circumstances. 
	[¶26]  In addition, there are procedural safeguards in place designed
to protect against and correct potential error.  Application of the aggravating
factor is discretionary, and is reviewable in this Court for an abuse of
discretion.{9}  Thus, a parent is not without recourse in the event that the
court abuses its discretion and relieves the Department of its reunification
responsibilities without justification.  Accordingly, we conclude that the risk
of erroneous deprivation of a parent's rights in the process established by
the Legislature is minimal.

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