In re Heather C.

• Decision Date: 25 May 2000
• Citation: 2000 ME 99,751 A.2d 448
• Parties: In re HEATHER C.
• Court: Maine Supreme Court

751 A.2d 448

2000 ME 99

In re HEATHER C.

Supreme Judicial Court of Maine.

Argued May 1, 2000.

Decided May 25, 2000.

Patricia A. Peard (orally), Bernstein, Shur, Sawyer & Nelson, P.A., Brenda M. Buchanan, Warren Currier & Buchanan, LLC, P.A., Portland, for appellant.

Andrew Ketterer, Attorney General, Matthew Pollack, Asst. Attorney General (orally), Patricia Stevens, Asst. Attorney General, Augusta, for appellee.

Charles Veilleux, Skowhegan, Guardian ad Litem.

Charles Reeves, Waterville, for father.

Before CLIFFORD, RUDMAN, DANA, SAUFLEY and ALEXANDER, JJ.

SAUFLEY, J.

[¶ 1] The mother of Heather C. appeals from an order entered in the District Court (Somerset, Clapp, J.), pursuant to 22 M.R.S.A. §§ 4035, 4036 (1992 & Supp. 1999), finding that Heather was in circumstances of jeopardy and awarding custody to the Department of Human Services. On appeal, the mother contends that certain provisions of the Child Protection Act, 22 M.R.S.A. §§ 4001-4094 (1992 & Supp. 1999), which allow the court to relieve the Department of its statutory responsibility to provide reunification services when the court is satisfied that the Department has sufficiently demonstrated that an aggravating factor is present, are unconstitutional as applied to her. We find no constitutional infirmity and affirm the judgment.

I. PROCEDURAL REQUIREMENTS IN CHILD PROTECTIVE CASES

[¶ 2] Because the mother argues that the statutory process has worked to deprive her of her due process rights, we first review the process itself. When the Department has sought and obtained an emergency order of preliminary protection, a summary preliminary hearing must be held within ten days of the filing of the petition, unless the parent consents to the continuation of the order. See 22 M.R.S.A. § 4034(4). The parents are entitled to have an attorney represent them at the State's expense if they cannot afford counsel. See 22 M.R.S.A. § 4005(2).

[¶ 3] At the summary hearing, the court may limit testimony and "may admit evidence, including reports and records, that would ordinarily be inadmissible as hearsay evidence." 22 M.R.S.A. § 4034(4). This process allows both the petitioner, usually the Department, and the parents or guardian ad litem, to bring evidence to the court's attention in this expedited proceeding that would not otherwise be available. If, after hearing, the court finds by a preponderance of the evidence "that there is an immediate risk of serious harm to the child," 22 M.R.S.A. § 4034(2), it may continue the preliminary protection order and may order that the Department or another person take custody of the child, see 22 M.R.S.A. § 4036(1)(F).

[¶ 4] In the ordinary course, as soon as the child has entered foster care as a result of a court order, the Department is required to begin providing rehabilitation services to the parents. See 22 M.R.S.A. § 4041(1)(A). If, however, the court has found the presence of an "aggravating factor," see 22 M.R.S.A. § 4002(1-B), the court may, but is not required to, relieve the Department of its statutory responsibility to commence or continue rehabilitation services under section 4041. See 22 M.R.S.A. § 4034(4). An aggravating factor is defined by statute, and includes circumstances such as sexual assault or chronic abuse of the child by the parent, conviction of the parent for certain violent crimes, a prior involuntary termination of the parent's parental rights to another child, and abandonment of the child. See 22 M.R.S.A. § 4002(1-B).¹ In order to assure that there are immediate plans made for the child's future when the Department has been relieved of its responsibility to work with the parents, a permanency planning hearing must be held within thirty days of the entry of the preliminary order. See 22 M.R.S.A. § 4034(4).

[¶ 5] The preliminary protection order is intended to act as a short-term vehicle for providing safety to children in immediate risk of serious harm, not to establish the longer term goals for the parents or children. Thus, any determination of the court in the preliminary order is subject to change as a result of the jeopardy hearing, see 22 M.R.S.A. § 4035, and the facts found by the court at the summary hearing are not final for purposes of issue preclusion, see In re Misty B., 2000 ME 67, ¶ 7, 749 A.2d 754, 756

. The preliminary order is interlocutory and is not appealable. See 22 M.R.S.A. § 4006. It automatically expires upon the issuance of a final protection order pursuant to 22 M.R.S.A. § 4035. See 22 M.R.S.A. § 4034(2); In re Misty B., 2000 ME 67, ¶ 7, 749 A.2d at 756.

[¶ 6] The next step in the process requires the court to determine whether the child is in "jeopardy." 22 M.R.S.A. §§ 4002(6), 4035. The jeopardy order must be issued within 120 days of the original filing of the petition unless good cause is shown for the delay. See 22 M.R.S.A. § 4035(4-A). Before issuing a final protection order, the court must hold a full adversarial hearing, unless hearing is waived by the parents. See 22 M.R.S.A. § 4035(1). Because the summary preliminary hearing and the jeopardy hearing are part of a unified process, the court is permitted to take judicial notice of evidence presented in the summary preliminary hearing. See In re David W., 568 A.2d 513, 515 (Me.1990)

. It may also take judicial notice of findings made in other jeopardy or termination of parental rights orders. In contrast, the factual findings included in the preliminary protection order are not final, and the parties may present additional evidence on facts relevant to the court's jeopardy and dispositional determinations. See 22 M.R.S.A. § 4034(2).²

[¶ 7] Unless the parties have reached an agreement at the jeopardy hearing, if the court entered a cease reunification order after the summary hearing and if a parent challenges that order and presents additional evidence regarding the application of an "aggravating factor" to that parent's circumstances, the court must revisit the issues of whether an aggravating factor exists, and if it does, whether a cease reunification provision should be imposed, making use of the evidence presented at both the summary and jeopardy hearings. If, by a preponderance of the evidence, the court finds that "the child is in circumstances of jeopardy to his health or welfare," it may issue a final order of child protection. See 22 M.R.S.A. § 4035(2). The court may order one or more of the dispositions in section 4036, including, if an aggravating factor is found, that the Department need not commence or continue reunification. See 22 M.R.S.A. § 4036(2).

II. BACKGROUND

[¶ 8] In the matter before us, this process was followed correctly, and the mother does not allege any deviation from the required statutory process by the court. Rather, she argues that the statute, as applied to her, gave rise to a violation of her procedural due process rights. Because she challenges the statute as applied to the individual facts before the court, we review the facts before the court regarding the mother's parenting history.

[¶ 9] Heather C. is the mother's eighth child. The mother is currently thirty-eight years old. Although she had been told for much of her life that she was retarded, she has recently learned that the label may be inaccurate. She is, however, learning disabled, and tests of her intellectual functioning suggests a range of low average to borderline intellectual functioning. She has been diagnosed as suffering from a severe personality disorder which interferes with her ability to understand the needs and actions of her children and to respond appropriately.

[¶ 10] She gave birth to her first child, Lorna, when she was approximately seventeen years old. Lorna's father left her when he discovered that she had become pregnant. Her second child, Crystal, was born when the mother was twenty-one. The mother then met and married a man whom she later described as a chronic alcoholic and who "used [her] as a punching bag." By this father, the mother gave birth to two boys, Albert and Steven.

[¶ 11] The Department first intervened with the mother when Albert and Steven were each twice admitted to the hospital for failure to thrive. When Steven was admitted for the second time, a nurse noted that there was a dead cockroach in the nipple of Steven's bottle, which was coated with curdled milk. The services provided by the Department to the mother were not successful, and eventually, because of continuing allegations of neglect and abuse, including sexual abuse, the Department petitioned for and was granted custody of all four children. A fifth child, Nicole, was born shortly thereafter, and the Department took custody of Nicole before she was discharged from the hospital.

[¶ 12] During the course of those events, the mother received substantial services from the Department, but showed little commitment to or progress in these services. Eventually, the mother voluntarily gave up her parental rights to Nicole in 1990 and to Albert and Steven in 1992. The mother's parental rights to Lorna and Crystal were involuntarily terminated after hearing in 1992.

[¶ 13] The mother eventually divorced her first husband and met the man who would become Heather's father. With him, she gave birth to two sons, Vernal in 1992 and Daniel in 1994. In 1996, the mother petitioned for and obtained an order for protection from abuse against the boys' father, but soon thereafter, with the protection from abuse order still in place, she married her alleged abuser.

[¶ 14] The boys remained in the parents' care until 1997, when the Department was given custody by the court. The boys had been horrifically neglected, and had apparently been deprived of almost all nurturing human contact. They suffered from severe developmental delays. In the child protection order in that case, the court found that the boys "suffered from painful medical and dental neglect and had trouble walking correctly. They had been kept in a...