189 A.3d 252 (Me. 2018), Ken-18-8, In re Children of Bethmarie R.

Docket NºKen-18-8
Citation189 A.3d 252, 2018 ME 96
Opinion JudgeHUMPHREY, J.
Party NameIN RE CHILDREN OF BETHMARIE R.
AttorneyRory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant mother Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services Elyse Marye Apantaku, Esq., Schneider & Br...
Judge PanelPanel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Case DateJuly 12, 2018
CourtSupreme Judicial Court of Maine

Page 252

189 A.3d 252 (Me. 2018)

2018 ME 96

IN RE CHILDREN OF BETHMARIE R.

No. Ken-18-8

Supreme Judicial Court of Maine

July 12, 2018

Argued: May 16, 2018.

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[Copyrighted Material Omitted]

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Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant mother

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Elyse Marye Apantaku, Esq., Schneider & Brewer, Waterville, for appellee grandmother

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

OPINION

HUMPHREY, J.

[¶ 1] Bethmarie R. appeals from a judgment entered by the District Court (Waterville, Stanfill, J. ) finding jeopardy to two of her children pursuant to 22 M.R.S. § 4035 (2017) and ordering the Department of Health and Human Services (the Department) to cease reunification efforts pursuant to 22 M.R.S. § 4041(2)(A-2) (2017). The mother contends that (1) the court erred when it concluded that the doctrine of res judicata did not bind the Department to orders issued by the Probate Court concluding that the children were not in jeopardy, and (2) her due process rights were violated. We affirm the judgment.

I. CASE HISTORY

[¶ 2] The record contains the following procedural history.1 In January 2010, the Somerset County Probate Court (Alsop, J. ) granted the mother’s petition to appoint the maternal grandmother to be full guardian of the two children at issue in this case. Between 2010 and 2016, the mother filed four petitions to terminate the guardianship. The first two petitions were denied, and on the third petition, the court limited the guardianship to allow contact and permit the mother to participate in decision-making for the children.

[¶ 3] During a supervised visit in August 2013, the mother absconded with the children and they were located near the South Carolina and Georgia border the next day. The mother was convicted of two counts of criminal restraint in February 2015 in the Superior Court (Kennebec County, Horton, J. ) and sentenced to two and one-half years’ imprisonment, with all but five months suspended.

[¶ 4] In June 2016, following a series of motions and orders concerning visitation, the mother filed her fourth petition in the Probate Court to terminate the guardianship. On August 18, 2017, the Kennebec County Probate Court (E. Mitchell, J. )2 held a final hearing on the mother’s petition and on motions she filed to enforce and compel visitation. In an August 28, 2017, order, the court concluded that it could not find the mother unfit and terminated the guardianship, subject to a one-month transition of the children to the mother’s custody.

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[¶ 5] On September 1, 2017, the grandmother filed a motion to reopen the evidence, for amended findings of fact and conclusions of law, and to stay enforcement based on four alleged incidents that had occurred since the August 18 hearing: (1) the mother’s former boyfriend[3] was seen near the mother’s house, (2) the mother bit her son, (3) the mother sat by and did not intervene while another child stomped on her son’s head, and (4) the mother pulled bandages off of her son’s face in a way that inflicted unnecessary pain to the child. The mother filed a motion for contempt that same day, alleging that the grandmother was not complying with the August 28, 2017, order for contact.

[¶ 6] On September 28, 2017, the Probate Court held a hearing on the new evidence and the issues raised by the motions. A Department caseworker testified at the hearing, but it is not clear whether and to what extent the Probate Court received information from the Department concerning the mother.4 The following day, the court entered an intermediate order requiring supervised visits with the mother.

[¶ 7] On Saturday, October 7, 2017, before the Probate Court issued a final decision, the Department sought, and the District Court (Augusta, Ende, J. ) granted, a preliminary protection order pursuant to the Child and Family Services and Child Protection Act, 22 M.R.S. § § 4001 to 4099-H (2017). In its order, the District Court granted custody to the grandmother, ordered no contact with the mother, and relieved the Department of providing reunification services. Pursuant to M.R. Civ. P. 126 and 4 M.R.S. § § 152(5-A), 251-A (2017), the District Court (Waterville, Stanfill, J. ) conferenced with the Probate Court and determined that, because the Probate Court had already heard the pending motions and soon would issue its judgment, the probate matter would be transferred to the Waterville District Court after the Probate Court issued its amended order on the mother’s motion to terminate the guardianship. After conferencing with the parties, the District Court continued the child protection hearing until November because it would be "impracticable to hold a summary preliminary hearing at this stage."

[¶ 8] On October 18, 2017, the Probate Court denied the mother’s motion to terminate the guardianship,[5] "but add[ed] limitations to" the guardianship to require supervised visits with the mother at least twice weekly, ordered transitional services, and ordered the guardianship to be further reviewed after three months. The court emphasized that the grandmother had "consistently refused to work toward reunification

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of the children with their mother," "willfully ignored this court’s initial order and [ ] made a transition beneficial to the children impossible by refusing to allow the children to follow the scheduled visits," did not present "convincing evidence on her four allegations against [the mother]," and did not present "evidence that suggested circumstances of jeopardy to the children’s health and welfare." (Quotation marks omitted.)

[¶ 9] On November 86 and 16, 2017, a few weeks after the Probate Court order was issued, the District Court (Waterville, Stanfill, J. ) held a combined summary preliminary hearing and jeopardy hearing. The District Court found jeopardy, see 22 M.R.S. § 4035(2) (2017), and issued an order on the Department’s petition on December 21, 2017. The District Court’s jeopardy determination relied in part on the biting, stomping, and bandage allegations that the Probate Court heard and adjudicated in its October 18, 2017, judgment. In stark contrast to the Probate Court’s order for transitional services to return the children to the mother’s care, the District Court ordered the Department to cease reunification with the mother based on the aggravating factor that the mother had subjected the children to treatment that was "heinous or abhorrent to society" because she had been convicted of criminally restraining these children and had abandoned her other children, 22 M.R.S. § 4002(1-B)(A)(1) (2017).[7] The permanency plan identified by the District Court was termination of the mother’s rights and adoption by the grandmother.

[¶ 10] Based on the evidence before the District Court, the court made the following findings of fact to support its jeopardy determination: [The mother] has a number of children, none of whom are in her custody. [The children] have lived with [their grandmother] since 2009, which is most of their lives. Although their contact and visits with [their mother] have waxed and waned over the years, the children have not been in the primary care of their mother for over eight years.

The last time [the mother] got close to regaining custody was in 2013. She was regularly seeing the children under a transition plan. For reasons unknown to this court, she decided to abscond with the children from a supervised visit. ... Although the children were physically unharmed, the "kidnapping" continues to loom large in their minds, especially for [the boy].

The children began to transition again to their mother this summer and were having regular visits. However, once again events occurred which halted the transition. The behaviors of the children after visits were concerning. [The girl], who is typically a shy and quiet girl, became increasingly angry, defiant and agitated after visits. [The boy] did not want to go, saying he was afraid his mother would take them again where no one would ever find them. ...

....

[The girl] was coming home from visits with her mother saying things to [the grandmother] like "you hate me and my mother," "I don’t have to listen to you,"

Page 257 "you’re a decrepit old Nana," and denying [the boy] is her brother. [The girl’s] behaviors culminated in the beginning of October when she became violent and threatening and taken into crisis. [The grandmother’s ex-husband,] who remains very involved with the family[,] found that [the girl] had a tape recorder hidden in her shirt. [The girl] reported that she got it from [the mother] in order to record the conversations at the [grandmother’s] home. [The grandmother’s ex-husband] took it away, and [the girl’s] behavior escalated. ...

....

[A psychologist] evaluated [the mother] in 2011, diagnosing her with a personality disorder with paranoid features as well as an adjustment disorder. He noted at the time her pattern of self-defeating behaviors, her inability to do what needed to be done to get her children back. After reviewing documents concerning recent events, he felt that her actions continue to be consistent with his 2011 evaluation: she still does not understand the issues or demonstrate any insight, she has not accepted services, and she continues her self-defeating behaviors. [The psychologist’s] testimony and opinions are consistent with [the mother’s] presentation in court. Her affect in the court was flat, demonstrating no emotion. She seemed incapable of...

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