Shane T., In re
| Decision Date | 29 July 1988 |
| Citation | 544 A.2d 1295 |
| Parties | In re SHANE T. |
| Court | Maine Supreme Court |
Joseph M. O'Donnell, Goodspeed & O'Donnell, John D. Pelletier (orally), Augusta, for plaintiff.
Stephen T. Hayes (orally), Hayes & Dyer, Augusta, for defendant.
Robert J. Allen, Augusta, Guardian Ad Litem.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
On December 31, 1987, the Kennebec County Probate Court entered a judgment terminating George T.'s parental rights in his son, Shane T., and granting the adoption petition of Cheryl F., Shane's mother, and Michael F., her present husband. On his appeal to this court George contends that (1) the Probate Court erred in denying his motion for a jury trial; (2) the Probate Court abused its discretion by refusing to interview Shane in chambers or to compel Shane's examination by George's expert witness; and (3) the Probate Court's finding that George has been unable and unwilling to take responsibility for Shane was not supported by clear and convincing evidence. Rejecting those contentions, we affirm the judgment.
Shane T. was born to Cheryl F. on April 12, 1979, during her marriage to George T. She was divorced from George on May 13, 1981. The divorce judgment granted Cheryl physical custody of Shane but gave alternating weekend visitation rights to the father. George's visitations and payment of child support became increasingly sporadic after July 1982, and he completely stopped paying child support after June 1983. From June 1983 until December 1985 George saw Shane between 6 and 12 times. George did not initiate the visits but rather saw Shane only on occasions when Shane was visiting at the home of George's sister or stepmother. George has not seen his son since December 1985.
Shane has lived with Cheryl since birth and with Cheryl's husband, Michael F., since 1983. Shane has a half-brother born to Cheryl and Michael in 1985, and Shane refers to Michael as his father and uses Michael's last name when asked what his own last name is.
In October 1986 Cheryl and Michael petitioned the Probate Court pursuant to 19 M.R.S.A. § 533-A (Supp.1987) 1 to terminate the parental rights of Shane's father George and to adopt Shane. Following several days of hearings the Probate Court ordered termination of George's parental rights in Shane. The Probate Court found that termination was in Shane's best interests and that George, by "years of virtual inactivity as a father," has been unwilling and unable to take responsibility within a time reasonably calculated to meet Shane's needs. Upon George's timely request the court issued supplemental findings of fact on November 4, 1987. On December 31, 1987, the court entered the judgment, now on appeal, terminating George's parental rights and granting Cheryl and Michael's petition for adoption.
George first contends that the Probate Court's denial of his motions for a jury trial and for removal of the action to the Superior Court violated his constitutional right to a jury trial. Article I, section 20 of the Maine Constitution, in the same form today as when adopted in 1820, provides in pertinent part:
In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced....
Article I, section 20 guarantees parties in a civil suit the right to a jury trial unless at the time the Maine Constitution was adopted, the same or similar action was not tried to a jury. See City of Portland v. DePaolo, 531 A.2d 669, 671 (Me.1987). The case at bar is sharply distinguished from DePaolo, in which the City of Portland sought exclusively a money judgment as a civil penalty for violation of its anti-pornography ordinance. Id. In contrast, the objective of the present suit is not a money judgment, either exclusively or in any part, but rather is a coercive, injunctive-type order against the father governing his future relationship with his son. Although the specific action for termination of parental rights is a creature of recent statute, P.L.1979, ch. 733, § 18, similar suits adjusting the relationship between parent and child were heard in equity without the intervention of a jury prior to 1820. As Justice Story explained in 1836:
The jurisdiction of the Court of Chancery extends to the care of the person of the infant, so far as is necessary for his protection and education.... It is upon the former ground principally, that is to say, for the due protection and education of infants, that the Court interferes with the ordinary rights of parents, as guardians by nature, or by nurture, in regard to the custody and care of their children. For, though in general parents are entrusted with the custody of the persons and the education of their children; yet this is done upon the natural presumption, that the children will be properly taken care of.... But whenever this presumption is removed; and it is found, that a father ... acts in a manner injurious to their morals or interests; in every such case, the Court of Chancery will interfere, and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and take care of them, and superintend their education.
2 J. Story, Commentaries on Equity Jurisprudence § 1341, at 574-75 (1836) (footnotes omitted). See also 2 J. Kent, Commentaries on American Law 182 (1827) ("The Court of Chancery, for just cause, may interpose and control that authority and discretion, which the father has in general in the education and management of his child"). Justice Story observed that suits to remove children from their parents' custody "ha[ve] been acted upon in Chancery for one hundred and fifty years." 2 J. Story, Commentaries on Equity Jurisprudence § 1342, at 576. See also Roussel v. State, 274 A.2d 909, 917-23 (Me.1971). Since prior to 1820 suits of the same general nature as the present action fell within the jurisdiction of the chancery courts and were not tried to a jury, George's contention that article I, section 20 guarantees him a jury trial here is refuted by historical fact.
George contends that the probate judge abused his discretion by refusing to interview Shane in chambers or to order his examination by George's expert psychologist, pursuant to 22 M.R.S.A. § 4007 (Supp.1987). We do not agree.
As to a chambers conference with a child section 4007(2) provides that:
The court may...
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