In re Paisley
| Decision Date | 30 January 2018 |
| Docket Number | Docket: Kno–17–328 |
| Citation | 178 A.3d 1228 |
| Parties | ADOPTION OF PAISLEY |
| Court | Maine Supreme Court |
Kevin P. Sullivan, Esq. (orally), Sullivan Law, P.C., Augusta, for appellants, adoptive parents of two of Paisley's biological siblings
Sarah Irving Gilbert, Esq. (orally), Elliott, MacLean, Gilbert & Coursey, LLP, Camden, for appellee foster parents
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶ 1] The appellants, the adoptive parents of two of Paisley's five biological siblings, appeal from a judgment of the District Court (Rockland, Sparaco, J. ) denying their petition to adopt Paisley and granting the petition of the appellees, Paisley's foster parents, to adopt her.
[¶ 2] The appellants argue that they have standing to appeal the trial court's adoption decree granting the foster parents' petition to adopt Paisley. They challenge the trial court's finding that, pursuant to 18–A M.R.S. § 9–302(a)(3) (2017), the Department of Health and Human Services acted unreasonably in withholding consent to the adoption of Paisley by the foster parents. The appellants also challenge the trial court's admission of testimony by the foster parents' expert witness, a child attachment specialist.1
[¶ 3] In this appeal, we consider the application of the consent to adoption statute, 18–A M.R.S. § 9–302 (2017), to contested adoption proceedings heard in the District Court following a District Court judgment terminating parental rights concerning that child. See 22 M.R.S. §§ 4050 – 4056 (2017). Adoption proceedings following State initiated proceedings to terminate parental rights are heard in the District Court. See 4 M.R.S. § 152(5–A) (2017) ; 18–A M.R.S. § 9–103 (2017). See also Adoption of Isabelle T. , 2017 ME 220, ¶ 9 n.2, 175 A.3d 639.
[¶ 4] As relevant to this appeal, 18–A M.R.S. § 9–302(a) states:
[¶ 5] Here, Paisley's parents' rights had been terminated, and because the Department had legal custody of Paisley, section 9–302(a)(3) required that, before any adoption could be granted, the Department's written consent had to be obtained. The Department's refusal to grant consent to adoption by the appellees and its consent to adoption by the appellants was the focus of the District Court hearing. After the hearing, the court, applying section 9–302(a)(3), found that the appellees—the foster parents—had met their burden to prove "by a preponderance of the evidence" that the Department had acted unreasonably in withholding its consent to their adoption of Paisley.
[¶ 6] Because the evidence admitted at the trial on the competing petitions for adoption supports the trial court's findings and discretionary determinations, we affirm the judgment.
[¶ 7] The following findings, all of which are fully supported by the record, were made by the court in its decision. Paisley was born in October 2015. When she was just twelve days old, the Department took custody of her and placed her into the home of licensed foster parents, the appellees.
[¶ 8] Title 22 M.R.S. § 4036–B requires the Department to notify relatives when a child enters foster care. See 22 M.R.S. § 4036–B(3–A) (2017) ().
[¶ 9] When Paisley was placed in foster care, the appellants, who had previously adopted two of Paisley's biological siblings2 and who live in Massachusetts, received the Department's notification, pursuant to 22 M.R.S. § 4036–B(3–A). They immediately contacted the Department, stating their interest in serving as a placement for Paisley.
[¶ 10] At that time, the Department's plan for Paisley was reunification with her mother, who resided in mid-coast Maine. Accordingly, the Department chose to leave Paisley in the care of her foster parents. The record indicates that the Department was concerned that placing Paisley with the appellants in southern Massachusetts would make its efforts toward reunification with the mother in mid-coast Maine much more difficult.
[¶ 11] While Paisley resided with her foster parents, the Department engaged in reunification efforts with Paisley's mother.3 During this time, the appellants were in regular contact with the Department, seeking to set up visitation with Paisley and to make the Department aware that they were interested in being the permanent adoptive placement for Paisley. In January of 2016, a Department supervisor notified the appellants that the Department was "going to look into getting an Interstate Compact on Placement of Children (‘ICPC’)" evaluation started. The Department initiated that process in March of 2016.
[¶ 12] On June 1, 2016, the Department filed its petition for termination of the parents' rights and, in that month, the appellants had their first visit with Paisley. Despite the filing of the termination petition, reunification efforts continued, and the Department remained "hopeful" that the mother would be able to reunify. In December of 2016, however, the mother relapsed, was incarcerated, and reunification efforts with the mother ceased.
[¶ 13] On December 16, 2016, a Department supervisor directed the caseworker to tell Paisley's foster parents that, if the mother's rights were terminated, the Department intended to place Paisley in Massachusetts with the appellants. The foster parents told the caseworker that they had called an attorney "to possibly fight DHHS's placement decision." The Department attempted to have the two families meet but, when that meeting did not occur, and "with the threat of litigation looming," the Department backed off on any firm decision about Paisley's placement. Soon thereafter, both the appellants and the appellees moved to intervene in the child protection action. In February of 2017, before any termination order issued, the foster parents filed a petition for adoption.
[¶ 14] Paisley's parents consented to a termination of their parental rights on March 6, 2017, and the permanency plan for Paisley became adoption.4 The appellants filed a competing petition to adopt Paisley on April 10, 2017.
[¶ 15] On April 24, 2017, the court issued a case management and pretrial order that listed all three docket numbers: the child protection docket number and the two family matter docket numbers assigned to the competing adoption petitions. The order granted intervenor status to both the appellees and the appellants. The matters were then set for a contested adoption hearing.
[¶ 16] In late May, approximately two weeks before the date set for the contested adoption hearing, the Department decided that Paisley should be placed with the appellants in Massachusetts with two of her siblings and that it would not consent to adoption by the foster parents.
[¶ 17] At about the same time as the Department's consent decision, the foster parents notified the appellants and the court that they intended to offer at trial the expert witness testimony of a specialist in early childhood attachment. On May 30, 2017, the District Court held a telephone conference to address the objection by the appellants to the foster parents' late designation of the expert witness. After the conference, the court issued an order allowing the foster parents to call their witness. The court also indicated that it would leave the record open to allow the appellants to call their designated rebuttal witness. The appellants never called their identified rebuttal witness, and there is no evidence in the record that the appellants sought to have their witness testify at another time, an opportunity offered by the court.
[¶ 18] On June 6 and June 7, 2017, the District Court held a hearing on the competing petitions for adoption. During the hearing, all prospective adoptive parents testified and described their plans and commitment to the care of Paisley. The Department's witnesses testified that the decision that Paisley should be placed with the appellants and that it would not consent to adoption by the foster parents was made in late May,...
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