GUARDIANSHIP OF Sebastien CHAMBERLAIN et al.
Docket No. And-14-368
Supreme Judicial Court of Maine
June 18, 2015
2015 ME 76
B. Judicial Bias
[¶ 24] Butsitsi argues that the court‘s sentence was illegally based upon his national origin because, he alleges, the court repeatedly referenced his national origin during the sentencing hearing and made other statements that he contends show at least the appearance of racial bias. Butsitsi asks us to hold that the sentencing court‘s references to his national origin and his community created a constitutionally impermissible appearance of bias. See Kaba, 480 F.3d at 158.
[¶ 25] Courts are afforded “wide discretion in determining the sources and types of information to consider when imposing a sentence.” State v. Reese, 2010 ME 30, ¶ 28, 991 A.2d 806. See generally Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). A defendant‘s right to due process of law continues through his or her sentencing hearing, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and “[s]entencing on the basis of racial categories or nationality, as opposed to demonstrated individual involvement and culpability, is constitutionally impermissible,” State v. Gonzales, 604 A.2d 904, 907 (Me.1992); Pepper, 562 U.S. at 489 n. 8, 131 S.Ct. 1229 (citing Leung, 40 F.3d at 586).
[¶ 26] Here, even if we were to adopt the Second Circuit‘s appearance of bias test, see Kaba, 480 F.3d at 158, the court‘s statements did not create the appearance of bias. Viewing the court‘s statements in the context of the criminal trial and sentencing hearing, see State v. Farnham, 479 A.2d 887, 889 (Me.1984), the court appears to have carefully and thoughtfully weighed all of the considerations presented to it by Butsitsi, the State, and the victim‘s family and community. Although the court did reference some of these considerations in delivering its sentence, the court‘s statements in no way suggest that the sentence was based upon Butsitsi‘s race or national origin, or that the sentencing judge was otherwise biased against Butsitsi.
[¶ 27] At the sentencing hearing, Butsitsi‘s counsel asserted that the “cultural underpinnings” of the case were relevant to the proceeding, and repeatedly argued that the court should consider Butsitsi‘s exposure to violence in the Congo as a mitigating factor. The court did just that (“In terms of his upbringing, his exposure to violence, I do consider that a mitigating factor“) and sentenced Butsitsi to a final term of imprisonment, for what was a planned, ambush murder, lower than the basic sentence it had enunciated. For these reasons, Butsitsi has failed to demonstrate any error—let alone obvious error—in the court‘s sentencing.
The entry is:
Sentence affirmed.
Aubrey A. Russell, Esq. (orally), Lewiston, for appellee grandmother.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶ 1] In this matter of first impression, we are called upon to address the constitutionality of the process that the Legislature has provided for a Probate Court to establish a guardianship for a child who has been in the care of a “de facto guardian” for an identified period of time without a parent‘s consistent participation in the child‘s life. See
[¶ 2] After a trial, the Androscoggin County Probate Court (Dubois, J.) determined, pursuant to
I. BACKGROUND
[¶ 3] The parties agree that Chamberlain has been living apart from the children since 2007. On January 14, 2014, following the December 2013 death of the children‘s mother, their maternal grandmother, with whom they had been living for several years, and their maternal aunt petitioned the Androscoggin County Probate Court for appointment as the children‘s co-guardians. The court appointed the grandmother and aunt as temporary co-guardians of the children the next day. The court held a hearing on June 24, June 25, and July 14, 2014, at which Chamberlain opposed the grandmother and aunt‘s petition. The court entered a judgment appointing the grandmother—but not the aunt—as guardian of the two children.
[¶ 4] The court analyzed the evidence under two of the four statutory alternatives authorizing the appointment of a guardian of a minor.
[¶ 5] Chamberlain moved for findings of fact and conclusions of law and for the court to reconsider its findings with respect to section 5-204(d) applying the higher standard of proof by clear and convincing evidence. See
[¶ 6] Chamberlain timely appealed. See
II. DISCUSSION
A. Facial Constitutional Challenges
[¶ 7] Chamberlain argues that section 5-204(d) is facially unconstitutional because it, and the statutes defining its terms, are unconstitutionally vague and violate due process. With respect to due process, Chamberlain argues that the statutes violate parents’ rights to substantive and procedural due process. Regarding each of his arguments, Chamberlain contends that section 5-204(d) is unconstitutional on its face.3
[¶ 8] When we address a facial constitutional challenge, the laws enacted by the elected representatives of the people of Maine are entitled to the deference of the courts. “The court is bound to assume that, in the passage of any law, the Legislature acted with full knowledge of all constitutional restrictions and intelligently, honestly and discriminatingly decided that they were acting within their constitutional limits and powers.” Laughlin v. City of Portland, 111 Me. 486, 489,
[¶ 9] Consistent with that presumption, facial challenges to the constitutionality of statutory provisions are not undertaken lightly. As the Supreme Court of the United States has stated, “facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). “A ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (alteration omitted) (quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) (plurality opinion)).4
[¶ 10] Because of the weighty concerns that caution courts against making overly broad declarations of constitutional invalidity, a party mounting a facial challenge must demonstrate that “no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see Wash. State Grange, 552 U.S. at 449, 128 S.Ct. 1184 (stating that a statute will be deemed facially invalid only if “the law is unconstitutional in all of its applications“); Conlogue v. Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691 (applying the Salerno test). Thus, a facial challenge will be considered only if there is a reasoned argument that a challenged statute cannot be applied constitutionally on any set of facts.5 Applying this stan-
1. Vagueness
[¶ 11] Because of the standard applied to facial challenges, Chamberlain cannot prevail in his argument that the statutes are facially void for unconstitutional vagueness. Chamberlain challenges the definition of a “demonstrated lack of consistent participation,”
[¶ 12] Section 5-101(1-C) defines the term “demonstrated lack of consistent participation,” which is used in section 5-204(d), as
refusal or failure to comply with the duties imposed upon a parent by the parent-child relationship, including but not limited to providing the child necessary food, clothing, shelter, health care, education, a nurturing and consistent relationship and other care and control necessary for the child‘s physical, mental and emotional health and development.
(a) The intent of the parent, parents or legal custodian in placing the child with the person petitioning as a de facto guardian;
(b) The amount of involvement the parent, parents or legal custodian had with the child during the parent‘s, parents’ or legal custodian‘s absence;
(c) The facts and circumstances of the parent‘s, parents’ or legal custodian‘s absence;
(d) The parent‘s, parents’ or legal custodian‘s refusal to comply with conditions for retaining custody set forth in any previous court orders; and
(e) Whether the nonconsenting parent, parents or legal custodian was previously prevented from participating in the child‘s life as a result of domestic violence or child abuse or neglect.
Id.
[¶ 13] Only if “no set of circumstances exists under which the [statute] would be valid,” Salerno, 481 U.S. at 745, 107 S.Ct. 2095, will we declare a legislative enactment unconstitutional. See also Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691. As applied in at least some situations, the statutes provide adequate guidance for decision-making. These statutes define the relevant terms with sufficient detail to avoid facial infirmity based on unconstitutional vagueness.
2. Substantive Due Process
[¶ 14] Nor will we vacate the judgment on the basis of Chamberlain‘s facial challenges raising issues of substantive due process. He contends that a judi-
[¶ 15] We similarly reject Chamberlain‘s argument that the applicable statutes violate principles of substantive due process because they do not require proof that the child resided with the de facto guardian in the absence of a parent for the requisite period of time. Even if we were to agree that the absence of a parent from the de facto guardian‘s residence was constitutionally required, there would be some circumstances in which the statute could be applied constitutionally because the child did reside with a de facto guardian without a parent present. See Salerno, 481 U.S. at 745, 107 S.Ct. 2095; Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691. Accordingly, we decline to declare section 5-204(d) facially unconstitutional on the basis of substantive due process.
3. Procedural Due Process
[¶ 16] Finally, Chamberlain argues that the standard of proof provided in section 5-204(d) is unconstitutional on its face because the standard is inadequate to satisfy the requirements of procedural due process. The Legislature has recognized the critical importance of a parent‘s rights by adopting a standard of proof by clear and convincing evidence when the putative guardian alleges that the parent who opposes the appointment of a guardian has created an “at least temporarily intolerable” living situation for the child.
B. Adequacy of Standard of Proof to Ensure Procedural Due Process
[¶ 17] Chamberlain argues that a court must reach its findings by
[¶ 18] We begin by considering the private and governmental interests at stake—the first and third Mathews factors. 424 U.S. at 335, 96 S.Ct. 893. The private liberty interest at issue is that “of parents in the care, custody, and control of their children,” which “is perhaps the oldest of the fundamental liberty interests recognized” by the Supreme Court of the United States. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (quotation marks omitted). More than ninety years ago, the Supreme Court of the United States first recognized that the liberties protected by the Due Process Clause include the liberty of a parent to “establish a home and bring up children.” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); see
[¶ 19] The governmental interest at issue—the State‘s interest in “preserving and promoting the welfare of the child“—is an urgent governmental interest. Santosky, 455 U.S. at 766, 102 S.Ct. 1388. Here, that interest is expressed in the provisions of section 5-204(d), which require, before a guardianship can be created, the consideration of the parent‘s and potential guardian‘s participation in the child‘s life, the length of time that a child has been cared for by alternate caregivers, the child‘s residence, and the best interest of the child. See
[¶ 20] We now consider the standard of proof as it relates to the second Mathews factor—the risk of error created by the statute at issue. 424 U.S. at 335, 96 S.Ct. 893. Because of the importance of a parent‘s liberty interest in the care, custody, and control of a child, the standard of proof applied by a court before it interferes with a parent‘s exercise of parental rights has constitutional significance. See Jewel II, 2010 ME 80, ¶ 6, 2 A.3d 301. The purpose of the assigned standard of proof is “to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Taylor v. Comm‘r of Mental Health & Retardation, 481 A.2d 139, 150 (Me.1984) (quotation marks omitted). A greater degree of certainty is required when more serious consequences flow from a decision, and therefore a higher standard of proof is imposed. See id. at 150-52.
[¶ 22] The standard of proof by a preponderance of the evidence is a lower standard; it requires only proof that it is “more likely than not” that the facts as established are true. In re Dakota P., 2005 ME 2, ¶ 15, 863 A.2d 280 (quotation marks omitted). “[T]he preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants” and therefore is the standard “applicable in civil actions between private litigants unless particularly important individual interests or rights are at stake.” Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (emphasis added) (quotation marks omitted).
[¶ 23] In addressing the important individual interests at stake, judicial decisions that affect parental rights fall on a continuum based on the nature and extent of the interests and rights affected, and the degree of finality of the different types of decisions. At one end of the continuum are proceedings to terminate a person‘s parental rights. The Supreme Court of the United States has held that requiring proof by clear and convincing evidence in those proceedings satisfies the Constitution because, in the balance of interests, it “adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Santosky, 455 U.S. at 769, 102 S.Ct. 1388; see In re H.C., 2013 ME 97, ¶ 11, 82 A.3d 80. The requirement of clear and convincing evidence is based primarily on concerns arising from the finality of the decision to terminate parental rights. In re Christmas C., 1998 ME 258, ¶ 12, 721 A.2d 629 (citing Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388, and In re Guardianship of Hughes, 1998 ME 186, ¶ 13, 715 A.2d 919). The Maine Legislature appropriately adopted the clear and convincing evidence standard in the statute governing the termination of parental rights. See
[¶ 24] The heightened standard of proof by clear and convincing evidence is also required when a court is making a final determination about whether a person is a child‘s de facto parent with the consequent permanent role in the child‘s life. See Pitts v. Moore, 2014 ME 59, ¶¶ 27, 36-37, 90 A.3d 1169. De facto parenthood determinations, unlike determinations of guardianship, do not necessarily involve any finding of deficiencies on the part of other parents, but the degree of finality in establishing a permanent relationship between the child and a person other than a previously legally recognized parent, and the resulting intrusion into existing parental relationships, makes a standard of proof by clear and convincing evidence constitutionally necessary in such cases. See id. ¶¶ 34-38.
[¶ 25] With respect to guardianship determinations, the Maine Legislature has established that proof by clear and convincing evidence may be required by incorporating that standard into another subsection of the statute governing the appointment of guardians for minor chil-
the court finds by clear and convincing evidence that the person or persons [who have parental rights to the child] have failed to respond to proper notice or a living situation has been created that is at least temporarily intolerable for the child even though the living situation does not rise to the level of jeopardy required for the final termination of parental rights, and that the proposed guardian will provide a living situation that is in the best interest of the child.
[¶ 26] At the other end of the continuum, the lower standard of proof by a preponderance of the evidence is applied. This standard is properly applied when the court is balancing the rights of two individuals who have equal rights in parenting, as in divorce proceedings and parental rights and responsibilities cases between fit parents. See Jacobs v. Jacobs, 507 A.2d 596, 599 (Me.1986); see also Pitts, 2014 ME 59, ¶ 37, 90 A.3d 1169. The standard is also adequate for due process purposes when a court enters a nonpermanent interim order, such as a jeopardy order, in a child protection proceeding where the State has interceded in the family to protect the child but no final judgment terminating parental rights is under consideration. See In re Christmas C., 1998 ME 258, ¶ 13, 721 A.2d 629; see also
[¶ 27] The guardianship provision before us today—the appointment of a guardian pursuant to
[¶ 28] The process for a parent to re-enter the child‘s life through a contested motion to terminate the guardianship also demonstrates the significant potential for a permanent interference with a parent‘s fundamental rights. The burdens on the parties when the parent seeks to have the guardianship terminated are mixed. When a parent seeks the removal of a guardian who was appointed pursuant to section 5-204(c), the statute requires the guardian to prove by a preponderance
[¶ 29] In addition to considerations of the finality of the guardianship, it is important to recognize the extent of the powers granted to a guardian. A guardian, once appointed, has almost all decision-making responsibilities for the child, which removes from the parent even the right to determine how or where the child should be raised. See
[¶ 30] Thus, although the appointment of a guardian pursuant to section 5-204(d) does not result in the same degree of finality as a termination of parental rights or a determination of de facto parenthood, the appointment is more final than a jeopardy order in a child protection proceeding, and parental rights are transferred to the guardian almost in their entirety. Pursuant to the current language of section 5-204(d), these results may occur even if the elements of the statute are established by a preponderance of the evidence—the lower standard of proof. This stands in marked contrast to the standard of proof that the Legislature provided in the very similar proceedings provided for in section 5-204(c).
[¶ 31] When the government authorizes an extensive and potentially permanent intrusion into fundamental constitutional rights, the risk of erroneous deprivation of a parent‘s rights is high if the decision-maker does not have a greater-than-ordinary degree of confidence in the correctness of its factual findings—namely, the degree of confidence afforded by the standard of proof by clear and convincing evidence. See Mathews, 424 U.S. at 344, 96 S.Ct. 893; Pitts, 2014 ME 59, ¶ 27, 90 A.3d 1169; Taylor, 481 A.2d at 150. The Legislature recognized the importance of the standard of proof when it required proof by clear and convincing evidence in section 5-204(c). We similarly recognized the importance of the standard of proof when we required that de facto parenthood be established by clear and convincing evidence in Pitts v. Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169.
[¶ 32] Ultimately, in balancing the Mathews factors in this matter, we conclude that the appointment of a guardian pursuant to section 5-204(d) is most akin to an appointment of a guardian pursuant to section 5-204(c), and is more similar to a termination of parental rights or a determination of de facto parenthood than it is to a divorce or parental rights and responsibilities judgment entered with respect to fit parents, or to an initial determination of
[¶ 33] Therefore, in every instance, a court‘s application of the statutorily provided standard of proof by a preponderance of the evidence would be constitutionally deficient. See Conlogue, 2006 ME 12, ¶ 5, 890 A.2d 691. To properly balance the constitutional rights at issue, an order appointing a guardian pursuant to section 5-204(d)—like other orders that terminate or severely constrain the fundamental right to parent—can be entered only after a court has made findings applying the standard of proof by clear and convincing evidence.
[¶ 34] In this rare circumstance in which the statute under review fails to afford a constitutionally required procedural safeguard, we hold that section 5-204(d) is facially unconstitutional to the extent that it provides for a standard of proof by a preponderance of the evidence. The only interpretation that can render section 5-204(d) constitutional is to require proof by clear and convincing evidence instead of proof by a preponderance of the evidence as stated in the statute. See Ayotte, 546 U.S. at 328-29, 126 S.Ct. 961 (stating preferences “to sever [a statute‘s] problematic portions while leaving the remainder intact” and “not to nullify more of a legislature‘s work than is necessary“). Notwithstanding the plain language of section 5-204(d), the applicable standard of proof must be proof by clear and convincing evidence.
III. CONCLUSION
[¶ 35] Because we conclude that section 5-204(d) provides for the application of a standard of proof that is not adequate to protect parents’ rights of procedural due process, and that the statute may be made to comply with constitutional requirements by applying the clear and convincing standard of proof, we vacate the Probate Court‘s judgment and remand the matter for the court to apply the standard of proof by clear and convincing evidence.8 Due to the passage of time, we defer to the discretion of the court in determining whether the court should reopen the record for updated evidence, or should apply the constitutional standard to the evidence already of record.
The entry is:
Judgment vacated. Remanded for the court to apply the standard of proof by clear and convincing evidence.
Notes
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008).Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (internal quotation marks and brackets omitted). Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “‘anticipate a question of constitutional law in advance of the necessity of deciding it‘” nor “‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.‘” Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885)).