In re Children of Danielle H., 081519 MESC, Aro-19-74

Docket Nº:Aro-19-74
Opinion Judge:PER CURIAM
Party Name:IN RE CHILDREN OF DANIELLE H.
Attorney:James M. Dunleavy, Esq., Currier & Trask, P.A., Presque Isle, for appellant mother Michele D.L. Kenney, Esq., Bloomer Russell Beaupain, Houlton, for appellant father Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Dep...
Judge Panel:Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Case Date:August 15, 2019
Court:Supreme Judicial Court of Maine
 
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2019 ME 134

IN RE CHILDREN OF DANIELLE H.

No. Aro-19-74

Supreme Court of Maine

August 15, 2019

Submitted On Briefs: July 18, 2019

James M. Dunleavy, Esq., Currier & Trask, P.A., Presque Isle, for appellant mother

Michele D.L. Kenney, Esq., Bloomer Russell Beaupain, Houlton, for appellant father

Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

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

PER CURIAM

[¶1] Danielle H. and Matthew T. appeal from a judgment entered by the District Court (Houlton, Larson, J.) finding by clear and convincing evidence that their four children were in circumstances of jeopardy as to each parent and that continued custody of the children by either parent was likely to cause them serious emotional or physical damage. Each parent contends that (1) the court abused its discretion in relying on out-of-court statements made by the children; (2) the evidence was insufficient to support the court's required factual findings under state and federal law; and (3) the evidence did not support the court's dispositional order. We address the parents' contentions in turn and affirm the judgment.

A. Indian Child Welfare Act

[¶2] As an initial matter, we note that the children, affiliated through their mother with the Houlton Band of Maliseet Indians, are Indian children within the meaning of the federal Indian Child Welfare Act (ICWA). See 25 U.S.C.S. § 1903(4) (LEXIS through Pub. L. No. 116-39); In re Child of Radience K., 2019 ME 73, ¶ 3 n.l, 208 A.3d 380. Accordingly, the Department was required as a matter of Maine law to prove by a preponderance of the evidence that the children were in circumstances of jeopardy as to each parent, 22 M.R.S. § 4035(2) (2018), and required as a matter of federal law to further prove by clear and convincing evidence "that the continued custody of the child[ren] by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child[ren]," 25 U.S.C.S. § 1912(e) (LEXIS through Pub. L. No. 116-39). See In re Child of Radience K., 2019 ME 73, ¶ 22, 208A, 3d 380; In re Denice ¶., 658 A.2d 1070, 1072 (Me. 1995) (recognizing that in a child protection case, "The state grounds . . . [are] unaffected by the ICWA [and] provide a supplemental degree of protection to parents facing a [child protection] petition .... A dual burden of proof-one federal, one state-thus exists in cases involving ... an Indian child.").

[¶3] Here the District Court made all of its factual findings by the higher standard of proof by clear and convincing evidence. Furthermore, the court found, and the record demonstrates, that the Department and the Band worked together in a cooperative and collaborative way throughout this case, and that the Band participated fully in the court proceedings. Specifically, the Band's ICWA director was involved in the Department's management of the case from the outset; the court promptly granted the Band's motion to intervene after the Department filed a child protection petition; the Band was represented by its independent counsel at the jeopardy hearing; and the children were placed with appropriate...

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