In re A.M.

• Decision Date: 23 October 2012
• Docket Number: Docket No. Kno–12–5.
• Parties: In re A.M.
• Court: Maine Supreme Court

55 A.3d 463

2012 ME 118

In re A.M.

Docket No. Kno–12–5.

Supreme Judicial Court of Maine.

Argued: Sept. 11, 2012.

Decided: Oct. 23, 2012.

Thomas F. Shehan, Jr., Esq. (orally), Belfast, for appellant mother.

William J. Schneider, Attorney General, Cheryl J. Cutliffe, Student Attorney, and Nora Sosnoff, Asst. Atty. Gen., Office of the Attorney General, Augusta, Michael C. Kearney (orally), Asst. Atty. Gen., Office of the Attorney General, Portland, for appellee Department of Health and Human Services.

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

SAUFLEY, C.J.

[¶ 1] The mother of A.M. appeals from a judgment entered in the District Court (Rockland, Field, J.) terminating her parental rights to her son pursuant to 22 M.R.S. § 4055(1)(B)(2) (2011). She argues that, because she was in law enforcement custody on the morning of the trial, the court violated her due process rights by denying her motion to continue the proceedings. She also challenges the admission of testimony from one of the officers involved in her arrest because he had not been included in the Department's witness list, and she argues that the court erred in its factual findings. We conclude that the mother was not deprived of due process and that the court neither abused its discretion in its rulings nor committed clear error in its factual findings. Accordingly, we affirm the judgment terminating the mother's parental rights.

I. BACKGROUND

[¶ 2] A.M.'s father died in August 2010, when A.M. was one year and nine months old, and the Department of Health and Human Services filed a petition for a child protection order and for preliminary protection four days later. The court ( Westcott, J.) signed a preliminary protection order on the same day, placing the child in the Department's custody. The court ( Field, J.) entered an order retaining the placement with the Department on September 2, 2010, after the mother waived the right to a summary preliminary hearing. By that point, the child had been placed in the home of his paternal grandmother.

[¶ 3] The court ( Tucker, J.) held a hearing and entered a jeopardy order on September 7, 2010, in which it found jeopardy based on the mother's history of involvement in violent domestic relationships, her substance abuse, her resulting incarceration, her only recent commencement of substance abuse treatment, and the Department's recent involvement with the mother after she left another child, who was four years old, outdoors in shorts and a raincoat with no shoes for thirty to forty-five minutes in May 2010.

[¶ 4] In the jeopardy order, the court ordered that the child remain in what it characterized as the safe and appropriate placement with his paternal grandmother. The court ordered the mother to participate in multiple services designed to prevent further substance abuse and prohibited her from using drugs and alcohol. She was to be permitted visitation as approved by the Department. The stated permanency plan for the child was for reunification with the mother.

[¶ 5] Reunification was complicated, however, by the mother's return to incarceration on drug-related convictions. After two additional judicial review and permanency planning orders had been entered maintaining the child's placement and directing continued services for the mother, the Department petitioned for termination of the mother's parental rights on September 23, 2011. On the same day, the mother was served with the petition at the Knox County Jail. The mother received notice in early November that the termination hearing was to be held on December 7, 2011. The mother was released from incarceration on or about November 17.

[¶ 6] On the night of December 6—the night before the trial—the mother was, once again, arrested. The mother was alleged to be under the influence of bath salts at the time of the arrest. She was taken to the hospital, and because she tested positive for cocaine, she was charged with violating terms of her probation.

[¶ 7] The mother was released from the hospital into law enforcement custody during the early morning hours of December 7 before the termination hearing began. At the outset of the hearing, the court was advised that the jail's transportation officer would not be able to bring the mother to court because the mother remained incoherent. The mother's attorney moved to continue the hearing on the ground that the failure to do so would violate the mother's due process rights. The court ( Field, J.) denied the motion.

[¶ 8] The mother's attorney also objected to the Department calling one of the arresting officers as a witness because he had not been included in the Department's witness list. The court overruled the objection concluding that the mother's conduct—not any delay on the State's part—caused the need for the additional witness. The court also accepted certain portions of the officer's testimony for the sole purpose of understanding the mother's absence and not for purposes of making the substantive termination decision.

[¶ 9] The mother did not move the court to take her testimony by telephone or video. SeeM.R. Civ. P. 7(b), 43(a).¹ Nor did she ask the court to keep the record open so that she could submit testimony or other evidence at a later time. SeeM.R. Civ. P. 7(b), 43(j).

[¶ 10] After hearing testimony from the child's clinical nurse specialist, the arresting officer, and the paternal grandmother, and after considering several documentary exhibits and the guardian ad litem's reports, the court terminated the parental rights of the mother. The court based its decision on findings that (1) the mother is unfit due to her abandonment of the child, her inability or unwillingness to protect the child from jeopardy or take responsibility for him within a time reasonably calculated to meet his needs, and her failure to participate in a plan to reunify, and (2) termination of parental rights and remaining in the care of the paternal grandmother is in the child's best interest. See22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(iv).

[¶ 11] In particular, the court found that the child has serious and immediate needs due to psychological problems and that the mother cannot meet those needs due to her failure to avoid incarceration, her history of unstable living situations, her abandonment of the child resulting from a failure to participate in reunification efforts, her failure to engage in treatment to address her ongoing serious substanceabuse problem, and her failure to visit the child with any regularity since the child has been in the Department's custody. The court specifically found that, after initially attending three visits with the child in the fall of 2010 at the paternal grandmother's home, the mother attended only two or three additional visits.

[¶ 12] The mother did not, after the entry of judgment, file a motion for a new trial accompanied by an affidavit summarizing the testimony that she would offer, seeM.R. Civ. P. 59, or a motion for relief from judgment explaining what information she should have been allowed to provide, seeM.R. Civ. P. 60(b)(6). She filed a timely notice of appeal from the judgment terminating her parental rights. SeeM.R.App. P. 2.

II. DISCUSSION

A. Due Process

[¶ 13] The mother argues that the court violated her due process rights by denying her motion to continue and then allowing one of the officers who arrested her to testify in her absence when he had not been listed as a witness. She argues that the inconvenience of a delay from a continuance was not sufficient to outweigh her interest in being present during a trial at which her fundamental liberty interest in parenting the child was at stake, especially given the continuity of care for the child by his paternal grandmother.

[¶ 14] We review both the determination whether to grant a motion to continue and the determination whether to impose sanctions for a discovery violation for an abuse of discretion. In re Trever I., 2009 ME 59, ¶ 28, 973 A.2d 752;In re Misty B., 2000 ME 67, ¶ 9, 749 A.2d 754. When due process is implicated, we review such procedural rulings to determine whether the process “struck a balance between competing concerns that was fundamentally fair.” In re Randy Scott B., 511 A.2d 450, 453 (Me.1986) (quotation marks omitted); see also In re Jaime S., 120 Conn.App. 712, 994 A.2d 233, 249 (2010) (noting that the review of a denial of a motion to continue based on due process principles must be undertaken pursuant to Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).

[¶ 15] “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333, 96 S.Ct. 893 (quotation marks omitted). It is a flexible concept that “calls for such procedural protections as the particular situation demands.” Id. at 334, 96 S.Ct. 893 (quotation marks omitted); see, e.g., In re Kristy Y., 2000 ME 98, ¶ 6, 752 A.2d 166. To determine whether a party has received due process, three factors must be considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. 893;see In re Kristy Y., 2000 ME 98, ¶ 6, 752 A.2d 166.

[¶ 16] “[A] parent of a child has a fundamental right to parent that child and to maintain a parental relationship free from state interference absent a court finding that the parent is, in some respect, unfit and State involvement in the parental relationship is necessary to avoid harm to the child.” In re Cody T., 2009 ME 95, ¶ 25, 979 A.2d 81. Thus, as...