In Re Higera N.

• Decision Date: 10 August 2010
• Docket Number: Docket No. Cum-09-437.
• Citation: 2 A.3d 265
• Parties: In re HIGERA N. et al.
• Court: Maine Supreme Court

2 A.3d 265

In re HIGERA N. et al.

Docket No. Cum-09-437.

Supreme Judicial Court of Maine.

Argued: June 16, 2010.

Decided: Aug. 10, 2010.

Robert C. Andrews, Esq. (orally), Portland, ME, for the father.

Janet T. Mills, Attorney General, Nora Sosnoff, Asst. Atty. Gen., Martha J. Hallisey-Swift, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, ME, for Maine Department of Health and Human Services.

Tony West, Asst. Atty. Gen., Paula D. Silsby, United States Atty., Michael Jay Singer, Esq., Howard S. Scher, Esq., Department of Justice, Civil Division, Washington, DC, for amicus curiae United States.

Marty J. Jackley, Attorney General, Jeremy D. Lund, Spec. Asst. Atty. Gen., Pierre, SD, for amicus curiae State of South Dakota.

Jennifer Carey, Esq., Portland, ME, Guardian ad litem.

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

MEAD, J.

[¶ 1] The father of Higera N., Hwida N., Diera N., Tuta N., and Thon B. appeals from a judgment of the District Court (Portland, Powers, J.) terminating his parental rights to the children pursuant to 22 M.R.S. § 4055 (2009). He contends that (1) the Parental Kidnaping Prevention Act (PKPA), 28 U.S.C.S. § 1738A (LexisNexis 2003), deprived the court of subject matter jurisdiction because a South Dakota court had previously entered an interim custody order; (2) the Department of Health and Human Services (Department) failed to act in good faith with regard to his efforts to reunify with the children; and (3) the court erred in finding by clear and convincing evidence that he is an unfit parent. Because we conclude that the PKPA does not apply to this child protection action and otherwise discern no error, we affirm the judgment.

I. BACKGROUND

[¶ 2] The District Court found the following facts, which are supported by competent evidence in the record and therefore are not clearly erroneous. See In re Marcus S., 2007 ME 24, ¶ 6, 916 A.2d 225, 227. Nyawar N. (mother) and Sadiq K. (father) are the natural parents of five children: Higera (now age ten), Hwida (age nine), Diera (age seven), Tuta (age five), and Thon (age three). Until November 2006, the family lived in South Dakota. At that time, after filing for divorce, the mother moved to Maine with the four oldest children. Thon was born in Maine in February 2007. By the time of the termination of parental rights (TPR) hearing in March of 2009, the parents were still married, although separated, and it appeared that the mother was once again living in South Dakota.

[¶ 3] In South Dakota, the parents had a history with law enforcement of domestic violence incidents committed against each other with the children present. The court described their relationship there as “chaotic and violent.” The girls saw their parents fight in their presence. South Dakota police reports show that the mother was arrested twice for assaulting the father, once with a knife, and the father was arrested once for assaulting the mother and, on another occasion, for assaulting a man whom he suspected was involved with her. In October 2006, shortly before the mother moved to Maine, the South Dakota Circuit Court entered an order of protection against domestic abuse on behalf of the mother against the father.

[¶ 4] In addition, the mother physically abused the girls while the father was present; the father once told the mother that she could kick the girls but not the boy, Tuta. The court found that the father made an implicit admission to the children's guardian ad litem that he knew the mother abused the children, and it found unpersuasive the father's testimony denying that he knew of the abuse. The father himself disciplined the older girls by pinching them hard enough to leave marks for up to two days. His denial that he did so “cause[d] the court to doubt his overall credibility.”

[¶ 5] In January 2007, Diera, then age three, was taken by ambulance to Maine Medical Center with what a physician specializing in child abuse described as potentially life-threatening injuries, including a spiral fracture of the femur, a fractured clavicle, scalp lacerations, and burns caused by boiling water. The District Court later found it “highly likely” that once in Maine, the mother had committed brutal, horrific physical and emotional abuse against the three girls, particularly Diera.

[¶ 6] On January 18, 2007, the Department filed a petition for a child protection order as to Higera, Hwida, Diera, and Tuta. On February 4, the day he was born, the Department filed a petition as to their brother, Thon. The court entered preliminary child protection orders and granted the Department custody of the five children. See 22 M.R.S. § 4034(2) (2009). The mother waived her right to a summary preliminary hearing. The father exercised his right, and a summary hearing was held on February 12. The court ( Bradley, J.) found that the children would be in immediate risk of serious harm if returned to the father and ordered that they remain in the custody of the Department. See 22 M.R.S. § 4034(4) (2009). On September 4, the court ( Powers, J.) held a jeopardy hearing. By agreement, the court found jeopardy as to all five children against both parents. See 22 M.R.S. § 4035(2) (2009). The Department retained custody and was ordered to pursue reunification with the father; it was relieved of any reunification obligation to the mother. See 22 M.R.S. § 4036-B(4) (2009).

[¶ 7] One year later, following three judicial reviews, the Department filed a petition to terminate the parental rights of both parents as to all of the children. See 22 M.R.S. § 4052 (2009). In March 2009, six months after the TPR petition was filed, and less than two weeks before the TPR hearing, the father moved to dismiss the petition, asserting that the PKPA deprived the court of subject matter jurisdiction. The basis of the motion was an order entered by the South Dakota Circuit Court in the parents' South Dakota divorce action on December 19, 2006, thirty days before the District Court issued its first preliminary child protection order. The father had registered the South Dakota order in the District Court on March 1, 2007. Noting the mother's failure to appear for a custody and contempt hearing, the South Dakota order provided that

[the father] shall be awarded the care, custody and control of the parties minor children [naming the four oldest children], commencing immediately; and

IT IS FURTHER ORDERED that [the father] shall retain custody of the parties minor children until [the mother] schedules a hearing, and [the mother] and the four minor children shall be present at said hearing, to address the issues of custody and visitation and any other remaining issues that pertain to the best interests of the children and upon further order of the Court.

Following a hearing on March 13, 2009, the court denied the motion to dismiss the petition, finding that the PKPA did not apply to a child protection proceeding.

[¶ 8] A four-day hearing on the TPR petition was held March 16-19, 2009. The mother did not appear. The court heard testimony from a Department caseworker, three licensed clinical social workers, two therapeutic foster parents, the father, and the guardian ad litem. Based on all of the evidence presented, the court concluded by clear and convincing evidence that the mother was unfit because she had abandoned the children and had acted toward Diera “in a manner that is heinous or abhorrent to society.” See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii), (iii), (1-A)(A). It concluded that the father was unfit because his failure to protect the children from domestic violence, coupled with his failure to understand their many special needs and to cope with those needs, left him unable to protect them from jeopardy and to take responsibility for them within a time reasonably calculated to meet their needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii). The court also found by clear and convincing evidence that termination was in the best interest of each child. See 22 M.R.S. § 4055(1)(B)(2)(a). Accordingly, it entered a judgment terminating both parents' rights to all five children and granting continued custody to the Department.

[¶ 9] The father moved for further findings of fact and for an amended judgment; in response, the court entered additional written findings. This appeal by the father followed; the mother has not appealed. In response to our invitation, South Dakota and the United States have filed briefs as amici curiae addressing the jurisdiction issue raised by the father.

II. DISCUSSION

A. Jurisdiction

[¶ 10] The father contends that the PKPA barred the District Court from exercising jurisdiction over the TPR petition because of the pre-existing South Dakota interim custody order. ¹ We address this issue before reaching his other claims because absent subject matter jurisdiction, the court had no authority to act. Ewing v. Me. Dist. Court, 2009 ME 16, ¶ 12, 964 A.2d 644, 647. Whether the court had jurisdiction is an issue of law that we review de novo. Id.

[¶ 11] As an initial matter, we note that ordinarily the District Court has jurisdiction over child protection petitions “regardless of other decrees regarding a child's care and custody,” and its orders in a child protection proceeding “take[ ] precedence over any prior order regarding the child's care and custody.” 22 M.R.S. § 4031(1)(A), (3) (2009). That jurisdictional grant controls here unless the PKPA bars Maine courts from exercising jurisdiction in this case. 28 U.S.C.S. § 1738A(a); see Thompson v. Thompson, 484 U.S. 174, 177, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (“Once a State exercises jurisdiction consistently with the provisions of the [PKPA], no other State may exercise concurrent jurisdiction over the custody dispute, even if it would have been empowered to take jurisdiction in the first instance ....” (citation omitted)); Hamilton v. Hamilton, 2009 ME 83, ¶ 15, 976 A.2d 924,...