Guardianship Of Jewel M., Docket No. Yor-10-230.

• Decision Date: 17 August 2010
• Docket Number: Docket No. Yor-10-230.
• Citation: 2 A.3d 301
• Parties: GUARDIANSHIP OF JEWEL M.
• Court: Maine Supreme Court

2 A.3d 301

GUARDIANSHIP OF JEWEL M.

Docket No. Yor-10-230.

Supreme Judicial Court of Maine.

Submitted on Briefs: July 21, 2010.

Decided: Aug. 17, 2010.

Amanda E. Ramirez, Esq., McGarry & Holmes, LLC, Wells, ME, for father.

John A. Turcotte, Esq., Ainsworth, Thelin & Raftice, P.A., South Portland, ME, for grandmother.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

ALEXANDER, J.

[¶ 1] In this appeal we address, again, an issue that has recently arisen with some frequency: the quality of evidence that must be presented and standards of proof that must be met to remove a child from a parent's care and custody through a guardianship proceeding. See 18-A M.R.S. § 5-204(c) (2009). For the second time, the father of Jewel M. appeals from a judgment of the York County Probate Court ( Bailey, J.) granting the child's maternal grandmother's petition for a temporary guardianship, establishing the grandmother as Jewel's temporary coguardian along with the father. See Guardianship of Jewel M. ( Jewel I ), 2010 ME 17, 989 A.2d 726.

[¶ 2] The father argues that the Probate Court erred by: (1) granting the grandmother's petition because relitigation of the issues involved is barred by res judicata; (2) failing to consider the father's parental fitness before establishing the temporary guardianship; and (3) concluding that the living situation at the father's residence is temporarily intolerable pursuant to 18-A M.R.S. § 5-204(c). The father also argues that attorney fees and costs should be assessed against the grandmother. Because the court's findings, based on the evidence submitted, cannot support the imposition of a guardianship in a contested proceeding, we vacate and remand with direction to terminate the temporary coguardianship awarded to the grandmother and allow the father to parent his child. We decline to award attorney fees.

I. GOVERNING LEGAL STANDARDS

[¶ 3] Before addressing the particular circumstances of this appeal, it is useful to review the legal standards that govern a case when a third party, here the grandmother, invokes legal process to attempt to limit or remove a parent's fundamental right to parent his or her child.

[¶ 4] A decade ago, the United States Supreme Court ruled that a parent has a fundamental liberty interest in parenting his or her child-an interest that cannot be infringed without strict adherence to the Due Process Clause, which: “does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Thus, the United States Supreme Court has observed that the state has only a “de minimis” interest in child care decision-making by a fit parent. See Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Reflective of this “de minimis” state interest, “there is a presumption that fit parents act in the best interests of their children.” Troxel, 530 U.S. at 68, 120 S.Ct. 2054 (citing Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979)).

[¶ 5] The same year that Troxel was decided, we ruled similarly in Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291, 299, addressing a grandparents' visitation statute, a law that, like the guardianship statute as applied in this case, “allows the courts to determine whether parents will be required to turn their children over to the grandparents against the parents' wishes,” id. ¶ 21, 761 A.2d at 300. We held that “[t]he power of the court to adjudicate such disputes and to enforce its own orders constitutes state involvement in a way that clearly implicates parents' fundamental liberty interests in the care and custody of their children.” Id. ¹

[¶ 6] Last year, in a guardianship appeal, we emphasized that:

[W]e have consistently recognized, absent a showing of unfitness, parents' fundamental liberty interest with respect to the care, custody, and control of

their children. See Rideout, 2000 ME 198, ¶ 18, 761 A.2d at 299; Osier v. Osier, 410 A.2d 1027, 1029 (Me.1980) (recognizing that “any decision terminating or limiting the right of a parent to physical custody of his child also affects his constitutionally protected liberty interest in maintaining his familial relationship with the child”); Danforth v. State Dep't of Health & Welfare, 303 A.2d 794, 797 (Me.1973) (discussing the natural and fundamental rights of parents to the custody of their children).

Guardianship of Jeremiah T., 2009 ME 74, ¶ 27, 976 A.2d 955, 962.

[¶ 7] This year in Jewel I, we reviewed the issues that are before us again on this appeal as follows:

Title 18-A M.R.S. § 5-204(c) does not define the term “temporarily intolerable ... living situation.” 18-A M.R.S. § 5-204(c). Our construction of that term is informed, however, by the fundamental liberty interest parents have in parenting their children. See Guardianship of Jeremiah T., 2009 ME 74, ¶ 27, 976 A.2d 955, 962. Because a temporarily intolerable living situation must relate to a parent's inability to care for the child, proof of parental unfitness is a required element to support the establishment of a guardianship over the parent's objection. Id. The statute's requirement of a “living situation ... that is at least temporarily intolerable for the child even though the living situation does not rise to the level of jeopardy required for the final termination of parental rights,” 18-A M.R.S. § 5-204(c), thus requires the court to find that the parent's inability to meet the child's needs constitutes an urgent reason that “may have a dramatic, and even traumatic, effect upon the child's well-being,” Rideout v. Riendeau, 2000 ME 198, ¶ 26, 761 A.2d 291, 301, if the child lives with the parent.

Accordingly, a guardianship may only be ordered pursuant to section 5-204(c) if the court finds that (1) the parent is currently unable to meet the child's needs and that inability will have an effect on the child's well-being that may be dramatic, and even traumatic, if the child lives with the parent, and (2) the proposed guardian will provide a living situation that is in the best interest of the child. This standard is, as indicated in section 5-204(c), less stringent than the standard for finding jeopardy. See 22 M.R.S. § 4002(6) (2009). Although a temporarily intolerable living situation may arise from the physical condition of a parent's residence, it is by no means restricted to that circumstance.

Jewel I, 2010 ME 17, ¶¶ 12-13, 989 A.2d at 729-30.

[¶ 8] With this background, the law governing review of the Probate Court decision at issue in this appeal may be summarized as follows:

[¶ 9] First, the father has a fundamental liberty interest in parenting his child that may not be infringed simply by proof that a grandparent might provide a “better” living arrangement for the child.

[¶ 10] Second, because a temporarily intolerable living situation must relate to a parent's inability to care for the child, proof of parental unfitness is a required element to support the imposition of a guardianship over the parent's objection.

[¶ 11] Third, while the standard for proof of a temporarily intolerable living situation, 18-A M.R.S. § 5-204(c), may be less stringent than the standard for a finding of jeopardy, 22 M.R.S. § 4002(6) (2009), a guardianship may only be ordered, pursuant to section 5-204(c), if the court finds that: (1) the parent is unfit in that he is currently unable to meet the child's needs and that inability will have an effect on the child's well-being that may be dramatic, and even traumatic, if the child lives with the parent; and (2) the proposed guardian will provide a living situation that is in the best interest of the child.

[¶ 12] Fourth, while section 5-204(c) states that the standard of proof may be less stringent than the standard for finding jeopardy, section 5-204(c) imposes on the guardianship petitioner the higher, clear and convincing evidence burden of proof to create in the fact-finder an “abiding conviction” that it is “highly probable” that facts sought to be proved are the correct view of the events. See Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139, 153 (Me.1984).

[¶ 13] Having stated the law that will govern our review, we proceed to consider the factual and legal issues in this appeal.

II. CASE HISTORY

[¶ 14] Jewel M. was born in April 2005. The mother and father were divorced when Jewel was two years old. The mother was granted primary physical custody, and the father was granted rights of contact. After her parents separated, Jewel was exposed to domestic violence by the mother's boyfriend and another individual and may have been sexually abused by men while in her mother's care.

[¶ 15] On September 9, 2008, without notice to the father, the maternal grandmother filed two petitions in Probate Court: one for appointment as temporary guardian and the other as guardian of the child. The Probate Court appointed the grandmother as temporary guardian on September 17, 2008. The child was subsequently diagnosed with post-traumatic stress disorder and began weekly therapy with a therapist in the vicinity of the grandmother's residence in Biddeford.

[¶ 16] In January 2009, the father, a resident of Holden, filed a motion to dissolve the temporary guardianship. After a hearing on the father's motion and the grandmother's outstanding petition for guardianship, the Probate Court granted the grandmother's petition in April 2009. The Probate Court found the father's living situation “intolerable” because he: (1) lacked a parental rights order giving him the primary residential care of the child; (2) had had limited and inconsistent contact with the child; (3) had not arranged for a qualified therapist for the child near his home; and (4) had yet to establish through hair follicle drug testing...