*1 1286
Seaside was transient nature and re- days.
solved itself within a few our
[¶ 14] Under Workers’ Com (39-A M.R.S.A.)
pensation Act workers compensated earnings
are for lost caused injuries. work-related When the work- injury
related results in a temporary
change, compensation payable only change.
the duration of that See Wood v. Corp.,
Cives Constr. A.2d 910
(Me.1981). worker “[A] who suffers from
no physical disability to the attributable incident,
original longer since he no has a
disabling ‘injury’, simply not entitled to payment compensation.” v. Curtis (Me.
Bridge Corp., Constr. A.2d
1981). entry is:
The decision of Hearing Officer of Compensation Workers’ Board is va-
cated. Remanded to the Workers’ Com-
pensation proceedings. Board for further
In ADRIAN re D. et al.
Supreme Judicial Court of Maine. July
Submitted on Briefs: 2004. 30, 2004.
Decided: Nov. *2 General, Rowe, Attorney Steven
G. Gen., Greason, Atty. Geof- Asst. Katherine Gen., Goodwin, Augus- Atty. P. Asst. frey ta, appellee. for Doane, Exeter, ad Li- Guardian
Wayne tem. Bos, Shalhoob, Peter Bangor;
Margaret Palmer, for fathers. Gray Bangor, & SAUFLEY, C.J., and Panel: DANA, CLIFFORD, RUDMAN, LEVY, ALEXANDER, CALKINS, and JJ.
LEVY, J. D. and Dia- The mother of Adrian judgments of the appeals mond D. J.) Gunther, con- (Bangor, District Court were in that two of her children cluding welfare, to their health and jeopardy custody of of them in the placing one of Human Department Services.1 present mother contends that DHS did evidence to court’s sufficient findings. disagree and af- jeopardy We judgments. firm the
I. BACKGROUND 2003, peti- September In of DHS protection for a child order be- tioned Adrian, Benjamin, and Diamond D.2 half of protection a preliminary did not seek order, their and the children remained custody pending jeopardy hear- court found hearing, After the ing. nine, Diamond, one, in Adrian, age age The court found that moth- jeopardy. because of placed jeopardy Adrian er following circumstances: Miller, up on medi- appel- Anne failure to follow Bangor, Laurie Chronic seri- to address lant. cal issues. Failure 2004, appeal Benjamin part this be- Legislature the De- is not a 1. established 2. Services, partment judgment Health and as Human District entered cause the Court Department Hu- subsumed the regard- which has favor of law in the mother’s a matter Department Behav- man Services and ing him. 2004, Developmental P.L. ioral and Services. (effective 2004). July ch. 689
ous try supported by behavioral or to to were not the evidence. We (3) Inadequate assess supervi- cause. jeopardy review factual in a sion to school. B., after Puts too [and] In re Thomas order for error. clear much responsibility on Adrian [and] ¶2, A 1998 ME 719 A.2d 530. *3 doesn’t respond when he fails to achieve if protection may final order issue (school goals attendance/perform- finds, a of the by preponderance court school). of after awareness ance/loose evidence, that “the child is circum- Diamond, regard to the court found With to or jeopardy stances of the child’s health jeopardy from: resulted (2004).3 4035(2) § welfare.” M.R.S.A. (1) [The c]hronic failure to co-
operate providers in w[ith] medical care Contrary to as the mother’s [¶ 5] of this [and] other children. Needs a sertions, paints trial record a picture co-parent but refuses father’s involve- young Adrian a child been as who has ment. Prevented access. Failure to chronically Dr. Wal neglected. Thomas child, adequately supervise older demon- ters, physician, a practice testified strates need for active assistance so this “morbidly that Adrian at risk obese” and repeated is not Diamond. Re- w[ith] “of further developing health [guardian fused litem] ad access [to diagnosis, down the road.” Based on this child]. physician a previously referred Adrian Based on jeopardy findings, specialist, to a with whom the mother placed court ordered that Adrian be appointment failed to an other schedule or custody, and that Diamond remain in wise up. follow subject custody weekly her mother’s to obesity, suf- addition Adrian rights visitation allocated Diamond’s fa- loss, hearing fers from a condition that was ther and supervision. DHS’s by auditory screening first identified an specified also ordered evaluations as a pre- performed elementary at Adrian’s school. a developing cursor to rehabilitation and problem; This was a Adrian plan. appeal reunification This not transient followed. auditory failed tests. screening “several” II. DISCUSSION subsequently brought The mother Adrian suffering to see a he doctor when was [¶ The mother asserts that 4] infection, jeopardy court erred because its an ear and the doctor noted 4002(6) (2004). “jeopardy” § 3. The statute as condi- defines All the jeopardy predicated tions of are the threat on neglect, by: serious abuse as or evidenced harm,” goes of "serious which the statute harm; A. Serious harm threat of serious or to define as: food, Deprivation adequate clothing, B. injury; A. Serious shelter, care, including or injury B. or or Serious mental emotional deprivation health care when that causes impairment which now or in the future harm; a threat of serious mental, likely by evidenced to be serious C. the child or Abandonment of absence of disorder, personality in- behavioral or child, any person responsible for the cluding anxiety, depression or severe harm; creates a threat serious withdrawal, aggressive behav- untoward or ior, seriously delayed development or voluntary placement, behavior; D. The end of when dysfunctional similar serious of the imminent return child to his a exploitation. custodian threat of causes C. Sexual abuse 4002(10) (2004). harm. 22 M.R.S.A. questions Shortly filing of the respond 10] Adrian failed to after [¶ doctor asked because of his deficient hear- was struck ardy petition, Adrian follow-up Adrian ing. was referred for truck another speeding playing while care, keep and his mother failed busy on a after dark. He was street subsequent appointments that medical injured. A seriously DHS caseworker hearing were scheduled to address his loss. attempted then to assist testified she four important follow-up appoint- At least safety developing plan the mother ments were missed. whereby the walk mother would Adrian house, and the other child’s the child’s although Dr. Walters testified that if it parents Adrian back home would walk brought the mother had Adrian to see *4 to According when there was an medical after dark. the case- “urgent doctor was concern,” she bring worker, had failed to Adrian to a the mother did not that feel “follow-up appointments important to on safety plan necessary “because she did child, things medical issues for this that anything not feel that this was to do with hearing long period could affect over his ... entirely it was Adrian [because] time, in ability perform his to well fault.” driver’s school, and long-term his medical health may consist Jeopardy of “serious care.” ... neglect, by as abuse evidenced Adrian was also to have discovered the “[depriva- threat of serious harm” and four-year-old had sexual contact with a care, adequate ... tion incident, child. Adrian admitted to the but including depriva- health care when that four-year-old. blamed it on Upon tion causes threat of serious harm.” of a request police officer and a DHS (B). 4002(6)(A), The record caseworker, protective agreed the mother that establishes the court did not commit bring following to Adrian to a counselor findings regarding clear error the sexual contact incident. again, Once neglect chronic of Adrian’s health the mother failed to follow In addi- up. supervise needs and failure to care her tion, Adrian engaged inappropriate properly. guardian him The ad litem’s at by looking conduct school at other chil- closing to the court statement elucidates dren in bathroom stalls. to if his mother continues the risk Adrian The principal Adrian’s elementa- his neglect needs: ry school testified that Adrian was habitu- I have Adrian The concern that about ally tardy in getting to and had school years he’s nine He’s is that old. good “a morning missed chunk of [the] really, really ten. is on a bad almost He language plan arts A block.” was devel- emotionally, path physically, academical- moth- oped address the issue with the way young having to be ly. He’s too cooperation. By er’s the time of the hav- problems constellation of that he’s ardy hearing, Adrian’s chronic tardiness I ing. having think he’s these principal had resumed.4 Adrian’s school nobody’s paying attention fail- because “likely also testified that Adrian was him. going problem on with ing failing subjects.” or close to a lot of what’s his order, think, just I is fairly great can that is at services One infer Adrian in place there have been services risk for academic failure. that time, problem that her if he does case- it is not 4. A child and assessment get worker testified that the mother stated to school on time. day gets every she Adrian off to school before, ... and it apparently determining hasn’t tak- whether Diamond was in en, jeopardy. and it apparently hasn’t worked. My that, given concern Adrian is about challenge [¶ The mother’s trial 13] now, way that he going if some- court’s heavily relies on her own
thing now, isn’t done to turn him around testimony and her own view of the import gonna he’s be real hard to turn around testimony. other witnesses’ In this gets when he to be twelve or thirteen. vein, (1) she argues obesity Adrian’s think, And I point, at that we’ve almost not serious because she was obese aas him, lost really and then he’s hard to child and Adrian is tall age;5 for his turn around. I think something up has to she failed to follow regarding Adrian’s now, obesity be done I think because she “never only way received the referral”; proper if even Adrian is going that it’s if happen is he’s not experiencing hearing loss there was “no there. There’s been time for her to testimony any hearing loss affected arrange these services and to be atten- any way”; Adrian in responded she it, tive to these issues. She hasn’t done appropriately to the concerns voiced and I don’t think there’s reason to *5 officials; school the sexual contact inci think that going she’s time soon.
dent was not Adrian’s fault because Adrian Diamond, regard [¶ 12] With encouraged by four-year-old “was the trial judge opportunity had the to ob touch genitals his and to allow four- court, serve the mother in and did not err year-old to genitals”; touch Adrian’s and in concluding that neglect the mother’s of (6) the truck responsibili accident was the Adrian also established a risk of serious ty of the truck’s driver. harm may to Diamond. A court rely on a [¶ 14] The court acted well within parent’s respect behavior with to one child reject the bounds of fact-finding its role in assessing whether another child in the ing the explanation of the rele parent’s care also faces jeopardy. See In Although vant events. the mother offers ¶ S., 19,
re Danielle 2004 ME 844 A.2d an assessment of the evidence is dra 1148, 1149-50; W., Jr., In re David 568 matically court’s, different from the trial it (Me.1990). addition, A.2d 515 a is the trial court charged with parent’s custodial unreasonable refusal to weighing making the evidence and sense of permit a child to have contact with the presented by body the maelstrom a parent other court-appointed and conflicting testimony that pre is less than guardian ad litem should be by considered why cise. This is we “review the trial determining court when whether the cus findings court’s of fact for clear error and parent todial is able to care for the child uphold findings will ‘unless there is no ” properly protect and to the child from them,’ evidence Hartwell v. jeopardy. Accordingly, properly the court ¶29, 10, Stanley, 2002 ME 790 A.2d considered Adrian’s circumstances as well (quoting 611 Oxford, Charlton v. Town of ¶ permit as the mother’s refusal to contact 104, 28, 366, 375), 2001 ME 774 A.2d and father, between Diamond and her and be interpret the factual “in findings light litem, guardian tween Diamond and the ad judg- most favorable to the trial court’s finding regarding height, 5. The mother testified that Adrian is five feet not make a Adrian's guardian tall. The ad litem testified that Ad- request findings following nor there a for boy, rian is a tall but that he did not think judgments. the issuance of the court’s that Adrian was five feet tall. The court did ment,” Alexander, justify invasion of Appellate ing necessary to State Maine Prac- 405(c) (2004). separation § at children tice protec- indeed. The parents very high The District Court’s were may order issue if the court tion here by a supported preponderance of the evi- evidence, finds, preponderance and, judgments accordingly, dence must that “the in circumstances of child is be affirmed. health or ardy the child’s welfare.” entry The is: 4035(2) (2004). statute, In the Judgments affirmed. “jeopardy” means: DANA, J., dissenting opinion files a neglect, as evidenced abuse CALKINS, JJ., ALEXANDER and by: join. A. harm or threat of serious Serious
DANA, J., with ALEXANDER whom harm; CALKINS, JJ., join, dissenting. food, adequate B. cloth- Deprivation of I respectfully dissent. record shelter, care, ing, includ- certainly parental reveals instances when ing deprivation health care Parenting carelessness. is difficult. Few harm; causes a threat of serious parent perfectly. But or a one few bad or ab- C. Abandonment of parenting equate decisions do to the responsible any person sence of constitutionally-mandated standard for a child, which creates threat of serious jeopardy finding necessary for the State to *6 harm; or family separate ten-year- invade the and D. voluntary placement, end of The from old child his mother. return child to when the imminent of the held, recently parental As we “the [¶ 17] his causes a threat of serious custodian in maintaining parent-child interest the re harm. lationship is one of the most fundamental liberty protected interests by our constitu 4002(6) (2004). § 22 M.R.S.A. L., 125, In re
tion.” Jazmine 2004 ME jeopardy definition is the ba- [¶ 19] The ¶ 1280, 1277, 12 A.2d 861 2004 WL guide determining parental unfit- sic 2192317, S., *3. See also In re Alana 2002 protection ness to a final order. trigger 126, 1116, 976, 980; ME 802 A.2d In re determination, Notably jeopardy for a ¶ S., 12, 114, 2001 ME n. Scott 20 775 A.2d child, or must neglect harm to a or abuse Riendeau, 1144, 1151; Rideout v. 2000 ME harm” is then de- be “serious.” “Serious ¶ 12, 761 A.2d 297. This funda 4002(10) in fined as: section liberty in parents mental interest of main injury; A. Serious taining parent-child relationship and family of the protecting integrity injury or B. Serious mental emotional recently recognized by most the United fu- impairment now in the or or Supreme in Troxel v. States Court Gran be serious likely ture evidenced ville, 57, 65-66, U.S. 120 S.Ct. 530 mental, personality or disor- behavioral (2000). 147 L.Ed.2d der, depression including anxiety, severe withdrawal, be- aggressive or untoward society’s interest Respecting havior, delayed development or seriously integrity of the and protecting behavior; involved, dysfunctional similar liberty the fundamental interest or statutory jeopardy standard for a find- exploitation. C. Sexual abuse or Let us examine the record to see if these can the serious 4002(10) (2004). harm/jeopardy determination. jeopardy The [¶20] and serious harm first found that may fairly definitions be read to indicate mother’s “chronic up failure to follow parental sufficiently unfitness danger- presented medical issues” a threat of seri- ous to justify the child to a jeopardy find- Adrian, nine, ous harm to and his one- ing may only occur when the trial court sister, year-old Diamond. Dr. Thomas demonstrating physical finds evidence or regarding Walters testified the children’s abuse, abandonment, sexual repeated ex- history family practice at a center Ban- posure of a danger, gross child to gor. Dr. Walters that he testified long-term any emotional never seen physical neglect, personally, the children they only and said some came to his attention safety other serious threat to the of a after DHS contacted him with concerns resulting parent’s acts or about problems getting the mother’s omissions. The opinion equates Court’s to follow-up appointments. children parenting bad jeopardy and in doing health Dr. Walters de- very so lowers the high standard that the scribed were that Adrian is obese and that requires justify constitution be met to school, he failed a hearing screening at family integrity. invasion of possibly suffering because he was from an parenting may properly [¶ 21] Inferior ear infection. Although the doctor said and, subject reproach be hopefully, may that the children had missed several fol- generate parent assistance to reduce low-up appointments, he did not describe parenting problems, a jeopardy finding but any being, serious threats to their well justified only if prob- far more serious testified that the brings mother the chil- lems are identified. Because the record dren in when “urgent there is an medical this case does not reveal a threat of seri- concern.” The record does not reveal harm ous sufficient for a determination of further evidence that the children suffered jeopardy, I would judgments. vacate the “[deprivation of ... health ... care *7 causing] a threat of serious harm.” 22 Adrian, regard With to [¶ 22] the court 4002(6)(B). judgment based its on following factual The court [¶ 25] also found that Adrian’s findings: mother had failed to “address serious be- up Chronic failure to follow on medi- problems havioral ... try to assess cal issues. Failure to address seri- Elementary principal cause.” school [the] problems try ous behavioral or to to Paul Butler and caseworker Dawn (3) Inadequate assess cause. supervi- Arbo testified about Adrian’s behavioral sion to and after school. Puts too in early year issues. Butler said that responsibility much on Adrian and school, “habitually tardy” Adrian was respond doesn’t he when fails achieve that improved but testified the situation (school goals attendance/perform- him cooperated after the mother with in school). awareness of after developing disciplinary plan.6 Butler ance/loose stopping play 6. Butler testified that the school classified Ad- with there. other children rian as a "walker” because he lived so close improved princi- Adrian’s tardiness after the to the school. Adrian had to walk across pal began holding him after school when he in, playground way on his and it later became morning. late arrived in apparent he that was late because he was to su- mother’s failure of Adrian’s engaged dence repeatedly said that Adrian also him. pervise in “horseplay” in the bathroom —some- at other stu- peering
times over the stalls found that Adri- Finally, the court [¶ 29] a “bath- put was therefore on dents—and responsibility” much puts mother “too an’s plan” whereby his bathroom use room when he fails respond him “doesn’t and Butler also recounted some supervised. findings, In oral goals.” to achieve playground, on the inappropriate behavior Adrian’s concern that expressed court forged testified that Adrian had once and him to accompanied school mother had not card, signature report on a his mother’s showing up out he was she found when report he this incident though did testified, however, Adrian’s mother late. that Finally, Butler testified the mother. younger to care for her that her need and agreeable mother had been Adrian’s for her to walk made it difficult children addressed the issues he appropriately school, Butler tes- principal Adrian to brought to her attention. improved that Adrian’s tardiness had tified Regarding the incident of sexual developing in cooperated after his mother four-year- conduct between Adrian and the was also disciplinary plan. boy, and his old Arbo testified that Adrian per- Adrian’s academic concerned about Benjamin four-year-old brother said the that he Though formance. Butler testified penis, asked them to touch his and no school, doing poorly thought Adrian was suggests evidence in the record that only evidence court excluded the direct brothers initiated the behavior. Nonethe- Butler also testified grades. of his less, Arbo was concerned that Adrian’s him cooperated Adrian’s mother had seriously take mother did not the incident to his re- responded appropriately boys into enough get and failed to does evidence the record quests. The counseling. that the mother’s failure not demonstrate respond to his to walk Adrian to school Neither Butler nor Arbo’s testi-
[¶27] a threat of academic troubles constituted mony suggests that Adrian’s behavioral serious harm. or a problems are evidence of sexual abuse fact, threat serious harm. the record its factual find- The court based responded that the mother ade- indicates largely Diamond on the ings regarding quately to his at school. Dia- presented about Adrian. evidence testify that he wanted mond’s father did The court further found Adri- court found custody, ... and the “inadequately supervised] an was share coopera- from the child would benefit after school.” The evidence *8 The court also heard parents. tion of two regarding record Adrian’s after school su- the mother had refused testimony testimony accident in pervision is about an guardian denied the ad services and had Adrian was struck a vehicle on after she learned litem access to Diamond his home. The evidence also street near however, exploring possibility established, at a that DHS was that Adrian was child with the father. reuniting house under the friend’s however, mother, testified that she was adult, that Adrian called his moth- another if with DHS services willing cooperate to let her know that he er afternoon house, her to do so. and that the court ordered had arrived at the friend’s parental recognized speed- itself the vehicle that struck Adrian “in a place take unfortunate, cooperation and visitation an accident under ing. While jeop- pull DHS doesn’t evi- lot of cases where persuasive is not these circumstances ardy.” tempo- support The mother’s decision to finding sufficient of serious rarily parental necessary refuse services and access harm that is justify the re- present did not a threat of harm parent’s to moval of children from the care. support finding the child sufficient to I judg- would vacate the District Court’s jeopardy. ments. All of parent
[¶ this demonstrates 31] justify reproach,
conduct sufficient to but
insufficient to demonstrate danger necessary
serious harm
ardy finding. my opinion, the evidence upon by
relied the District Court was in-