In re Dustin C.
| Decision Date | 29 May 2008 |
| Docket Number | Docket: Ken-07-114 |
| Citation | 2008 ME 89,952 A.2d 993 |
| Parties | In re DUSTIN C. et al. |
| Court | Maine Supreme Court |
G. Steven Rowe, Attorney General Nora Sosnoff, Assistant Attorney General, Augusta, ME, for Department of Health and Human Services.
Harold J. Hainke, Esq., Whitefield, ME, for the mother.
Mary Dionne, Esq., Augusta, ME, for Guardian Ad Litem.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, MEAD, and GORMAN, JJ.
[¶1] The mother of Dustin C. and Skylar C. appeals from an order of the District Court (Augusta, Laverdiere, J.), appointing the maternal grandparents of the children as permanency guardians, pursuant to 22 M.R.S. § 4038-C(l-2) (2007).1 Specifically, the mother contends that the court erred in appointing the permanency guardians, and in determining that she did not overcome the presumption of 22 M.R.S. § 4035(2-A)(B)(2) (2007).2 Because we agree with the Department of Health and Human Services that the statute provides the mother no right to appeal the order appointing the permanency guardians, we dismiss the appeal.
[¶2] In this child protection matter, the District Court acted on a petition filed by the Department and, pursuant to 22 M.R.S. § 4035(2) (2007), entered an order of jeopardy as to the father and the mother on July 29, 2004. No appeal was taken from that order. The Department was granted custody, and the children were placed with their maternal grandparents. The Department alleges that the parents have a history of substance abuse and domestic violence. The mother has shown a pattern of poor decision-making for herself and her children, specifically leaving her children in the care and custody of a convicted sex offender, and moving in with a convicted sex offender knowing that she will not be able to attempt reunification with her children so long as she resides with that person. In a judicial review and permanency planning order, entered on June 29, 2006, the court appointed the maternal grandparents as permanency guardians pursuant to 22 M.R.S. § 4038-C(l-2), concluding the mother did not overcome the presumptions set out in 22 M.R.S. § 4035(2-A)(B)(2) that she would create a situation of jeopardy if she had custody of the children. The mother filed an appeal from the order. The Department filed a motion to dismiss the appeal as interlocutory.
[¶3] In support of its motion to dismiss this appeal, the Department contends that the mother has no statutory right to take this appeal, and urges us to dismiss the appeal pursuant to 22 M.R.S. § 4006 (2007), which provides in part:
A party aggrieved by an order of a court entered pursuant to section 4035, 4054 or 4071 may appeal directly to the Supreme Judicial Court sitting as the Law Court and such appeals are governed by the Maine Rules of Civil Procedure, chapter 9.
....
Orders entered under this chapter under sections other than section 4035, 4054 or 4071 are interlocutory and are not appealable.
Although 22 M.R.S. § 4035 is implicated in the District Court's order, the mother's appeal is from an order appointing permanency guardians, entered pursuant to 22 M.R.S. § 4038-C(1-2).
[¶4] In enacting 22 M.R.S. § 4038-C, and in creating the position of permanency guardian, the Legislature is presumed to be aware that section 4006 restricted appeals that can be taken in child protection proceedings, and that child protection orders entered pursuant to sections other than sections 4035, 4054, and 4071, are designated as interlocutory and "are not appealable." See Stockly v. Doil, 2005 ME 47, ¶ 14, 870 A.2d 1208, 1213 (). Because the order in this case was entered pursuant to section 4038-C, the mother has no statutory right to file this appeal. See In re Johnna M., 2006 ME 46, ¶ 7, 903 A.2d 331, 332.
[¶5] The mother also contends that if she is not allowed to proceed with her appeal, she will be denied her rights to due process, and that because other parents are allowed to appeal similar orders in other proceedings involving guardianship and residence of children, the denial of her right to appeal this order appointing permanency guardians, denies her the right to equal protection of the law. U.S. CONST. amend. XIV, § 1; ME. CONST. art. I, § 6-A. We are unpersuaded by the mother's contentions.
[¶6] As we noted in Rice v. Amerling:
The appellate jurisdiction of the Law Court and its power to review cases, are entirely and exclusively those plainly conferred by statute. The right of appeal is not a constitutional one; nor does it arise under the common law; it is purely statutory. The Legislature, in granting a right to appeal in certain cases, may restrict, limit or otherwise condition its availability as it sees fit.
433 A.2d 388, 390-91 (Me.1981) (quotation marks and internal citations omitted).
[¶7] As to the mother's contention that the statutory limitation on her right to appeal has deprived her of due process, her right to procedural due process in this context requires "an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right which the particular pertinent constitutional provision purports to protect." See In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222, 226 (quotation marks omitted). The mother was given notice of the judicial review and permanency planning hearing, was represented by counsel at the hearing, and was given the opportunity to rebut the Department's evidence and present her own evidence. Moreover, pursuant to 22 M.R.S. § 4038-C(6), a parent can bring a petition to terminate the permanency guardianship, or petition for rights of contact with the children, a procedure that the mother has already utilized in this case. Given the procedural safeguards afforded her under 22 M.R.S. § 4038-C, the mother has not been deprived of procedural due process.
[¶8] The mother's additional contention that she is being denied equal protection of the law with regard to her fundamental right to the care, custody, and control of her children is also unpersuasive. The mother points out that a parent has a statutory right to appeal the appointment of a guardian pursuant to 18-A M.R.S. § 5-204 (2007), and to appeal the award of primary residence or visitation pursuant to 19-A M.R.S. § 1653(2) (2007). She argues that if she has no right to appeal the appointment of a permanency guardian pursuant to 22 M.R.S. § 4038-C, she has been denied equal protection of the law. The appointment of a permanency guardian is, however, embedded in an overall statutory framework quite different and apart from guardianship pursuant to 18-A M.R.S. § 5-204 or residence and visitation pursuant to 19-A M.R.S. § 1653(2), and the mother is not similarly situated with parents seeking to appeal an adverse ruling pursuant to 18-A M.R.S. § 5-204 or 19-A M.R.S. § 1653(2), within the meaning of the Equal Protection Clause. See Town of Frye Island v. State of Maine, 2008 ME 27, ¶ 14, 940 A.2d 1065, 1069. That the Legislature has provided for appeals to the Law Court under titles 18-A and 19-A, does not elevate those statutory appellate rights to rights based on the constitution.3
The entry is:
Appeal dismissed.
[¶9] Although I join in the majority's statutory and due process analysis, I respectfully dissent because I conclude that depriving the mother of Dustin C. and Skylar C. the right to appeal from an order appointing a permanency guardian is an unconstitutional denial of equal protection of the law.
[¶10] As noted by the majority, neither the Maine nor the Federal Constitution imposes a general obligation on the State to establish an avenue of appellate review. See Harrington v. Harrington, 269 A.2d 310, 314 (Me.1970). Once a right of appeal is established, however, "`it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause.'" M.L.B. v. S.L.J., 519 U.S. 102, 114, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972)).4 Once the State establishes an avenue of appeal in a discrete area of law, that avenue "must be kept free of unreasoned discriminatory distinctions that can only impede open and equal access to the courts." Harrington, 269 A.2d at 314.
[¶11] When a party asserts that a statute offends the principles of equal protection, we apply a multi-step analysis to determine whether the Maine and Federal Constitutions have been violated. Town of Frye Island v. State, 2008 ME 27, ¶ 14, 940 A.2d 1065, 1069. "First, the party challenging the statute must show that similarly situated persons are not treated equally under the law." Id. If we determine that similarly situated persons are treated differently, we must then determine whether the statute implicates either a fundamental right or a suspect class. See id. If the statute burdens a suspect class or fundamental right, the statute must be narrowly tailored to achieve a compelling governmental interest. See Anderson v. Town of Durham, 2006 ME 39, ¶ 29, 895 A.2d 944, 953.
[¶12] Since 1981, the Probate Code has governed court appointments of a guardian for a minor. See 18-A M.R.S. §§ 5-201 to 5-212 (2007) (). In 2005, however, the Legislature enacted 22 M.R.S. § 4038-C (2007), which amended the Child and Family Services and Child Protection Act (Child Protection Act) to create the position of a permanency guardian. P.L.2005, ch. 372, § 6. As a consequence, Maine now has two alternative statutory frameworks for appointing a guardian for a minor. Se...
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