In re Guardianship of Jewel M.

• Decision Date: 09 March 2010
• Docket Number: Docket: Yor-09-276
• Citation: 989 A.2d 726,2010 ME 17
• Parties: GUARDIANSHIP OF JEWEL M.
• Court: Maine Supreme Court

989 A.2d 726

2010 ME 17

GUARDIANSHIP OF JEWEL M.

Docket: Yor-09-276

Supreme Judicial Court of Maine.

Argued: January 14, 2010.

Decided: March 9, 2010.

Amanda E. Ramirez, Esq. (orally), McGarry & Holmes, LLC, Wells, ME, for the father.

John A. Turcotte, Esq. (orally), Ainsworth, Thelin & Raftice, P.A., South Portland, ME, for the maternal grandmother.

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

LEVY, J.

[¶ 1] The father of Jewel M. appeals from a judgment of the York County Probate Court (Bailey, J.) appointing guardianship of the child to the maternal grandmother pursuant to 18-A M.R.S. § 5-204(c) (2009). On appeal, the father argues that the court erred by (1) concluding that the statutory standard of a temporarily intolerable living situation had been established as applied to him, and (2) denominating the guardianship to be a permanent guardianship when only a temporary guardianship was actually established. We affirm the judgment with modifications.

I. BACKGROUND

[¶ 2] In June 2007, the mother and the father were divorced. The divorce judgment granted the mother primary physical custody of their daughter, Jewel, then age two, and the father was granted rights of contact. A month after the divorce judgment, the mother moved with Jewel to an apartment in Biddeford that the grandmother provided for them.

[¶ 3] The grandmother began spending most days of the week with Jewel. The father had visits with Jewel through Christmas 2007. In early January 2008, he was charged with operating under the influence and a follow-up surprise visit to his residence in Holden by police revealed that he was in possession of alcohol, marijuana, and drug paraphernalia in violation of his conditions of release. He did not visit with Jewel again until August 2008.

[¶ 4] In the spring of 2008, the relationship between the mother and the grandmother began to deteriorate, and in April 2008, the mother was hospitalized for substance abuse treatment. After the mother completed the treatment program in August 2008, she began to foster contact between the father and Jewel and allowed visitation. Around this time, however, the mother changed the locks on the apartment and stopped paying rent to the grandmother. Eventually, she moved with Jewel to an unknown location where Jewel was exposed and subjected to domestic violence by the mother's boyfriend. The Probate Court found that Jewel was physically abused during this time period by the boyfriend and another individual. Although the father was visiting Jewel during this time period, he never entered the mother's residence and had no reason to suspect these events were occurring.

[¶ 5] The grandmother filed petitions for guardianship and temporary guardianship in September 2008, but did not provide notice of the same to the father. She was awarded temporary guardianship on September 17, 2008. Shortly thereafter, Jewel was evaluated by the Spurwink Child Abuse Program and was diagnosed with post-traumatic stress disorder. She has since been treated by a therapist and has shown improvement since beginning play therapy.

[¶ 6] In January 2009, the father moved to dissolve the temporary guardianship. A hearing on his motion and on the issue of the permanent guardianship was scheduled for April 9, 2009. On the day of the hearing, the mother and the father signed an agreement to modify their parental rights judgment in the District Court by awarding the primary residential care of the child to the father, with rights of contact to the mother. The agreement also provided that the mother's contact would be supervised until both her mental health provider and the child's mental health provider agreed that supervision was unnecessary. In light of the agreement, the guardian ad litem (GAL) recommended that the court grant the grandmother a continued temporary guardianship to allow Jewel a slow and steady transition to the father's home over a five-month period. She also recommended that the father make arrangements for an appropriate therapist to be available to treat Jewel once she comes into his care.

[¶ 7] After the hearing, the court issued the judgment that is the subject of this appeal. The court found that the grandmother would provide a living situation that was in the best interests of the child, and that a temporarily intolerable living situation existed as to both parents. See 18-A M.R.S. § 5-204(c) (2009).¹ The court based its conclusion with respect to the father on its findings that: (1) he lacked a parental rights order giving him the primary residential care of Jewel; (2) he had had limited and inconsistent contact with Jewel; (3) he had not arranged for a qualified therapist to be available to treat Jewel near his home; and (4) he had yet to establish through hair follicle drug testing that he was drug-free.² Therefore, the court granted the grandmother's petition.

[¶ 8] In establishing the guardianship, the court adopted the majority of the GALs recommendations. It ordered that the guardianship would terminate when the father provided proof that: (1) the District Court had approved the parents' agreement and modified the parental rights and responsibilities order; (2) the father had found a qualified therapist for Jewel near his home; and (3) the father had passed a hair follicle drug test. Upon satisfaction of these conditions, the father would gain complete care, custody, and control of Jewel. To that end, the court also granted the father's motion to dissolve the temporary guardianship. In the interim, however, the court ordered that the father have a graduated visitation schedule with Jewel.

[¶ 9] This appeal by the father followed. Both parties represent that since the filing of this appeal, the father's visitation schedule established by the court has been complied with and that the father has been awarded the primary residential care of Jewel by the District Court.

II. DISCUSSION

[¶ 10] The father contends that the Probate Court erred by (A) concluding that a temporarily intolerable living situation would exist if Jewel were to live with him pursuant to 18-A M.R.S. § 5-204(c), and (B) describing the guardianship it granted as permanent when the judgment establishes terms akin to a temporary guardianship. Statutory interpretation is a matter of law that we review de novo. See Guardianship of Zachary Z., 677 A.2d 550, 552 (Me.1996). We review the Probate Court's factual findings for clear error. See Guardianship of Autumn S., 2007 ME 8, ¶ 5, 913 A.2d 614, 616.

A. Temporarily Intolerable Living Situation

[¶ 11] The father's arguments, which center on the sufficiency of the evidence to support the court's findings and conclusions, are essentially twofold: (1) that the court should not have concluded that a temporarily intolerable living situation existed with respect to him because the court did not find that he was an unfit parent or that there are environmental conditions in his home that may have a negative effect on his daughter's emotional or physical well-being; and, (2) that the court's key factual findings were either not supported by competent evidence or were contradictory. We first construe section 5-204(c), and we then review the court's factual findings for clear error and consider those findings in relation to our construction of the statute.

1. Construction of Section 5-204

[¶ 12] 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.

[¶ 13] 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).³ 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. Cf. Guardianship of Emma M., 2003 ME 89, ¶ 3, 828 A.2d 776, 777 ("The court appropriately examined evidence of the mother's prior abuse to ascertain the child's living situation in the context of determining [the mother's] current ability to care for her daughter.").

2. The Probate Court's Factual Findings

[¶ 14] The father argues that the Probate Court's key findings in support of its conclusion that a temporarily intolerable living situation existed are clearly erroneous. A finding of fact is clearly erroneous when (1) no competent evidence supporting the finding exists in the record; (2) the fact-finder clearly misapprehends the meaning of the evidence; or (3) the force and effect of the evidence, taken as a...