In re Scott S.

• Citation: 2001 ME 114,775 A.2d 1144
• Parties: In re SCOTT S. et al.
• Decision Date: 19 July 2001
• Court: Supreme Judicial Court of Maine (US)

775 A.2d 1144

2001 ME 114

In re SCOTT S. et al.

Supreme Judicial Court of Maine.

Submitted on Briefs: May 25, 2001.

Decided: July 19, 2001.

Stephen C. Whiting, Esq., Portland, for appellants.

G. Steven Rowe, Attorney General, Matthew Pollack, Asst. Attorney General, Nancy Henry, Asst. Attorney General, Augusta, for appellee.

Tracy Phillips, CASA, Durham, Guardian ad Litem.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

SAUFLEY, J.

[¶ 1] The mother and father appeal from the judgment of the District Court (Lewiston, Beliveau, J.) terminating the mother's parental rights to Scott S. and terminating both parents rights to Kaleb C.¹ The parents contend, among other things, that the District Court erred (1) in giving the determination of the best interests of the children precedence over the determination of parental unfitness under 22 M.R.S.A. § 4055(1)(B)(2)(b) (1992), and (2) in considering the findings of fact and conclusions of law made by another judge in prior hearings regarding this matter. Because we conclude that the court erred in holding that its determination regarding the best interests of the children took precedence over considerations of parental capacity, and that the error was not harmless as to Kaleb, we vacate the judgment in part and affirm in part.

I. BACKGROUND

[¶ 2] The mother of Scott and Kaleb is married to Kaleb's father. Scott's biological father opposed termination of his parental rights but has not appealed from the court's decision to terminate his parental rights to Scott.

[¶ 3] The mother and father were married in 1998 when Scott was three years old. When Scott was almost four, the mother gave birth to Kaleb. Approximately two weeks after Kaleb was born, the mother called the Department of Human Services and said that she could not take care of her children any longer, particularly Scott. She admitted hitting him and telling him that she was going to give him up for adoption. The mother also admitted that she had physically abused Scott and her husband² and that she was in no condition to care for her newborn child, Kaleb. The mother was then hospitalized for psychiatric reasons. At the time of hospitalization, she said that she did not want her children and that she was afraid she was going to hurt them.

[¶ 4] The Department filed a petition for a child protection order, but did not seek to have the children immediately removed from the home. Instead, the Department urged the father to assume responsibility for the children's care. The caseworker arranged for day care for the children and parenting assistance for both parents. Although the father had considered himself a "traditional father" and believed that it was his wife's responsibility to take care of the children, he agreed to take care of the children when they returned from day care and to continue as their primary caretaker. He also agreed to be responsible for ensuring that his wife would have no unsupervised contact with the children until the Department felt that she was emotionally and mentally stable enough to return home and be with the children.

[¶ 5] In the days leading to the jeopardy hearing, the father struggled to take care of the children and was not always successful. The guardian observed that when she visited the home, it was uncared for, with "stuff" covering the stove top, the sink filled with dirty dishes and soured food, open containers of food, cat feces overflowing the litter box, an open third floor window with the children leaning out, and prescription medication on a night-stand where the children could easily get hold of it. In addition, the father allowed the mother to be alone with the children after she left the hospital.

[¶ 6] After a contested hearing, the District Court (Gorman, J.) entered a judgment finding the children to be in jeopardy and concluding that the mother possessed "deficits in her knowledge of child development and her ability to care for children." The court also took into consideration the mother's statement that she would hurt the children if they remained in her care.³ As to the father, the court found that his failure to protect the children and himself from the mother's behavior had placed Scott and Kaleb in circumstances of jeopardy. The court also found that marital discord between the parents jeopardized the children. The court ordered that the children be placed in the custody of the Department. The Department placed the boys with their day care provider.

[¶ 7] In its jeopardy order, the court required that both the mother and father follow the recommendations of their psychological evaluations and participate in counseling and parenting classes. The plan developed by the Department anticipated that the father would need preparation to become the children's primary caretaker.⁴ The plan further provided that the mother and father would continue in individual therapy, that they would continue in parenting education and couple's counseling, that the father would continue supervised visitation in the foster parent's home as long as it was in the best interests of the children, and that the mother would continue supervised visitation at the Department as long as it was in the children's best interests.

[¶ 8] After a judicial review and permanency planning hearing held on January 14, 2000,⁵ the court found that the Department had made reasonable efforts to rehabilitate and reunify the family, but that the children continue to be in need of a child protection order. The parties agreed that Scott and Kaleb would remain in the custody of the Department and that efforts would be made to reunify Kaleb with his parents and reunify Scott with his mother as long as his stepfather remains in the household.

[¶ 9] The Department filed a petition for termination of the mother's parental rights to Scott and Kaleb and the father's parental rights to Kaleb on May 10, 2000.⁶ The petition alleged that the mother had not been able to progress in treatment and that she would not likely ever be able to care for her children. The Department also alleged that the father had made only minimal progress and that he believed that his wife did not have any problems that would keep her from being able to parent the children. After a contested hearing, the District Court entered an order terminating both parents' parental rights. The court first found that termination of parental rights would serve the best interests of the children. Regarding the mother, the court found that she is unable to meet her children's needs within a reasonable time and that she is unable to protect the children from jeopardy. As for the father, the court found that he is unwilling and unable to protect Kaleb from jeopardy.⁷ This appeal followed.

II. DISCUSSION

[¶ 10] We review the District Court's findings of fact to determine whether they are clearly erroneous, and we review de novo the conclusions of law for clear error. In re Ashley S., 2000 ME 212, ¶ 11, 762 A.2d 941, 945; In re Christina H., 618 A.2d 228, 229 (Me.1992). "Deference is paid to that court's superior perspective for evaluating the weight and credibility of evidence." In re Leona T., 609 A.2d 1157, 1158 (Me.1992).

A. Judicial Notice of Prior Findings of Fact and Conclusion of Law

[¶ 11] We first address the parents' contention that the court should not have considered the findings of fact and conclusions of law previously entered by a different judge at the jeopardy and judicial review hearings. The parents argue that because the judge "could not consider the evidence presented at those former hearings, he also could not consider the findings of fact and conclusions of law reached at those prior hearings."⁸

[¶ 12] That contention is simply wrong. The authority of the trial judge to take judicial notice of matters of record is distinct from the authority of a single judge to consider evidence presented in a previous stage of a child protective proceeding when that evidence was presented to the same trial judge. See In re Heather C., 2000 ME 99, ¶ 6, 751 A.2d 448, 451

; Finn v. Lipman, 526 A.2d 1380, 1381 (Me.1987); see also In re Michael A., 552 A.2d 368, 369-70 (R.I.1989). When the trial judge has actually heard the evidence presented in prior stages of a child protection proceeding, that judge may consider the evidence in the following stages because the process is, in fact, a unified proceeding. In re Leona T., 642 A.2d 166, 168 (Me.1994); In re David W., 568 A.2d 513, 515 (Me.1990).⁹ When a different trial judge presides at a later stage of the process, that trial judge may not rely on the evidence presented to the prior judge, but may consider and rely on the findings of fact and conclusions of law contained in the orders or judgments entered by the prior judge.

[¶ 13] When a court enters a judgment containing findings of fact and conclusions of law, those findings become a matter of judicial record. A judge may take judicial notice of any matter of record when that matter is relevant to the proceedings at hand.¹⁰ Particularly in the context of child protective proceedings, where the entire procedure occurs as a unified proceeding, see In re Leona T., 642 A.2d at 168,

a trial judge may, at any stage of the proceeding, take judicial notice of the findings and conclusions contained in any prior judgments or orders. In re Heather C., 2000 ME 99, ¶ 6, 751 A.2d at 451.

[¶ 14] Because of the shifting burdens of proof in these unique proceedings, however, a cautionary note is important. Although the proceedings in child protective matters are unified, the burden of proof is more stringent at the termination of parental rights stage. See Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)

. The Department's burden at most stages is to prove the necessary elements by a preponderance of the evidence. See 22 M.R.S.A. § 4035 (1992 & Supp.2000) (requiring a...