Adoption by Jessica M., 100620 MESC, And-19-491

Docket Nº:And-19-491
Opinion Judge:PER CURIAM
Party Name:ADOPTION BY JESSICA M. et al.
Attorney:Judgment affirmed. Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant father Matthew P. Mastrogiacomo, Esq. (orally), The Mastrogiacomo Law Office, PA, Lewiston, for appellant mother Molly Watson Shukie, Esq. (orally), and Jeffrey A. Schwartz, Esq., Linnell, Choate, & Webber ...
Case Date:October 06, 2020
Court:Supreme Judicial Court of Maine

2020 ME 118


No. And-19-491

Supreme Court of Maine

October 6, 2020

Argued: September 16, 2020

Judgment affirmed. Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant father

Matthew P. Mastrogiacomo, Esq. (orally), The Mastrogiacomo Law Office, PA, Lewiston, for appellant mother

Molly Watson Shukie, Esq. (orally), and Jeffrey A. Schwartz, Esq., Linnell, Choate, & Webber LLP, Auburn, for maternal aunt and uncle

Kristina Dougherty, Esq., amicus curiae pro se

Lauren Wille, Esq., Disability Rights Maine, Augusta, for amicus curiae Disability Rights Maine Androscoggin County Probate Court docket number A-2018-007 For Clerk Reference Only



[¶ l] The parents of a child appeal from a judgment of the Androscoggin County Probate Court [Dubois, J.) terminating their parental rights in anticipation of adoption pursuant to 18-AM.R.S. §9-204 (2017), on the petition of the child's maternal aunt and uncle.[1] Both parents challenge the sufficiency of the evidence supporting the court's findings that they are unfit to parent the child and that termination of their parental rights is in the child's best interest. The father also contends that (1) his right to due process was violated because his appearance at the termination hearing was telephonic and (2) the court abused its discretion by considering a portion of the transcript of his federal criminal sentencing hearing. We affirm the judgment.


[¶ 2] On March 26, 2018, the aunt and uncle, who are the child's legal guardians, filed petitions for termination of the parents' parental rights and for adoption of the child. See 18-A M.R.S. §§ 9-204, 9-301 (2017). They filed an amended petition for termination of parental rights in June 2018. The parents, both of whom were incarcerated at the time, objected, and the court appointed an attorney to represent each of them. In August 2018, after holding a pretrial conference, the court noted on the docket record that the father's attorney was to investigate whether the final hearing could be held in a District Court courtroom because "there [would] be issues with having both parents appear by video for the trial." In a request for approval of expanded work hours filed in December 2018, the father's attorney indicated that she "still need[ed] to... schedule video attendance with" the federal correctional institution where the father was incarcerated.

[¶ 3] The court held the first two days of a three-day final hearing on April 10 and 11, 2019. The father appeared by telephone. At the beginning of the first day of the hearing, the father requested that the court continue the hearing to allow more time for him to arrange a video appearance in order to enhance the court's ability to assess his demeanor. The father indicated that the New Jersey prison where he was incarcerated had been unable to set up the technology necessary for a video appearance and that more time might facilitate that process. After he agreed that telephonic participation would suffice, at least during the testimony of some of the aunt and uncle's witnesses, the court denied his request for a continuance. The court permitted recesses as necessary for the father to confer privately with his attorney by telephone and ruled that it would keep the evidentiary record open in case video technology could be arranged at some point during the proceedings.2

[¶ 4] On July 16, 2019, the court sent the parties a notice setting August 13, 2019, as the date for the third day of the hearing.3 The notice stated, "If any party needs to participate telephonically or by video, you must get the necessary contact information to the Court by July 30, 2019, so that we may make the necessary arrangements." Nothing in the record indicates that the father provided this information to the court, and the third day of the hearing proceeded in the Probate Court. The father again requested a continuance, indicating that the federal prison had encountered technological problems that prevented an appearance by video. The court denied that motion and noted on the docket record that the "federal prison was unable to make video conferencing available for" the father.

[¶ 5] During the third day of the hearing, the aunt and uncle sought to admit in evidence the transcript of a January 2017 hearing at which the father had been sentenced in federal court after pleading guilty to a crime. The father objected. The parties and the court discussed whether portions of the transcript were subject to judicial notice or were otherwise admissible in evidence. The court first stated that the transcript was admitted "as it relates to the [federal] Court's findings placed on the record ... [f] or whatever weight that has." Then, after hearing the father's renewed objection, the court ruled that only the portion of the transcript constituting "an order of the [federal] court" would be admitted and that the transcript was admitted "conditionally]" because "there [was] an issue with respect to which portion ... [could] be construed as an order of the [federal] Court."

[¶ 6] After the hearing, the court entered a judgment terminating both parents' parental rights to the child.4 The court made the following findings, which, except as noted, are supported by competent evidence in the record. At the time of [the child's] birth, both . . . parents were incarcerated and the child came into the custody of the Department of Health and Human Services. [The child] was placed in the care of the maternal grandmother, . . . and remained in the custody of the Department for approximately two years.

In 2009, after [the father] successfully completed] a court ordered reunification plan, the child protection action was dismissed and [the child] was placed in the care of [the father]. A [p]arental [r]ights and [Responsibilities] [o]rder was entered granting [the father] sole parental rights and responsibilities. Contact between [the child] and [the mother] was ... on a supervised basis until [the mother] could demonstrate "mental health stability, no criminal involvements and sobriety. ["] [The mother] left the state of Maine and no evidence was presented that she ever returned for a visit or otherwise. [The mother] has a significant criminal history as well as substance abuse and mental health issues to include suicide attempts. The maternal grandmother ... did not recall a time when [the mother] had gone a year without being incarcerated and has not known of a period when [the mother] ever had stable housing or regular employment. At the time of the hearing, [the mother] was in an Alabama prison. ... [T]here was no evidence presented to indicate [that the mother] has had any meaningful contact whatsoever with [the child] following his birth.... [The mother] has never had a relationship with [the child]

[After the father] was granted custody of [the child] ... and until [the father's] most recent period of incarceration, [the child] resided with [the father] at various residences in Bangor and Rumford[T]he child was reported absent [twenty-eight] times in kindergarten, [seventeen] times in first grade [, ] and [thirty-five] times in second grade . . . [and he] was often tardy. The frequent absences and tardiness adversely affected [the child's] academic and social development [The child] came to school disheveled and tired, often falling asleep in class.

[The child's] teachers addressed with [the father] concerns regarding [the child's] attendance and school performance without success. ... It was recommended that [the father] look into [occupational [t]herapy screenings to address [the child's issues].

... [N]o well child checks occurred after age [four] and [the child] received minimal medical treatment despite evidence of treatable health conditions. When [the child] came to live with [the petitioners, he had [several untreated medical issues], all of which were resolved with medical treatment.

At trial, [the father] testified that he had no concerns for [the child's] development or medical needs at the time when [the child] was left in the care of the maternal grandmother.

... On January 23, 2017, [the father] was adjudicated guilty of conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base. [The father] was sentenced to a period of [sixty] months in prison followed by [three] years of supervised release. [The father] will not be released [from prison] until November 2020 at the earliest. [The father] testified that he will not be in a position to provide for [the child's] needs until the completion of his supervised release .... [The child] will be thirteen years old if [the father] is released in November 2020 and sixteen years old when [the father] completes his supervised release requirement.

At [the father's] request, the maternal grandmother provided [the child's] care beginning [in] June 2016. For the next year [the father] sent [the child] a few letters and called a few times.

In May 2017, [the child] moved in with the [aunt and uncle, ] who ... were granted guardianship of [the child] in January 2018. Initially, [the aunt and uncle] paid for [a] text [messaging] service to allow communication between [the father] and [the child]. [The father's] texts were sporadic and often weeks would go by between texts. Although [the child] was free to initiate contact with [the father], he did not do so. In June 2018, 5 the [aunt and uncle] terminated the text service [based on the father's] sporadic use, [the child's] non-use and [the child's] reaction to the text messages.

Since May 2017, [the aunt and uncle]...

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