IN RE CHILD OF NICHOLAS P.
2019 ME 152; Docket: Yor-19-54
MAINE SUPREME JUDICIAL COURT
October 22, 2019
2019 ME 152
HJELM, J.
HJELM, J.
[¶1] In this consolidated opinion, we consider two appeals advanced by Nicholas P. in a child protection proceeding in the District Court (Biddeford) involving his child. In the first appeal, the father challenges the court‘s (Sutton, J.) entry of a jeopardy order against him on grounds that his parentage had not yet been established and that the evidence was insufficient to support the court‘s finding of an aggravating factor. In the second appeal, the father asserts that the court (Duddy, J.) erred by later entering an order, based on genetic test results but without conducting an evidentiary hearing, adjudicating that he is the child‘s father. We affirm both decisions.
I. BACKGROUND
[¶2] The Department of Health and Human Services initiated this child protection proceeding in May of 2018, alleging that the father had neglected the child and exposed the child to violence, had been convicted of assaulting the mother when she was pregnant with the child, had been substantiated for abusing another child, and had refused to participate in a risk assessment or any treatment for his history of abuse and neglect.1 See
[¶3] At the summary preliminary hearing held in August of 2018, the father did not challenge the award of custody of the child to the Departmеnt but stated to the court that “the purpose of this trial, quite candidly, is to prevent the cease [reunification] from happening.” While testifying during the hearing, the father was asked, “[Y]ou‘re the father of [this child]?” and the father responded, “Yes.” In the resulting order, the court maintained the Department‘s custody of the child but found that the Department failed to establish the existence of an aggravating factor. Accordingly,
[¶4] Two months later, in October of 2018, the court (Sutton, J.) commenced a contested jeopardy hearing on the Department‘s child protection petition. See
[¶5] The court (Sutton, J.) sharply rejected the father‘s argument and denied his request for a continuance. The court characterized the father‘s argument as “disingenuous” and “nothing more [than] a delay tactic” given that the father had not previously raised the issue of parentage and had, at the summary preliminary hearing, “argu[ed] strenuously against a cease reunification order to a child [whom] he now says he‘s not the father of or may not be the father of.” The court then proceeded to conduct a three-day jeopardy hearing.
[¶6] Based on competent evidence presented at the jeopardy hearing, the court found, by a preponderance of the evidence, that “[the father] is the child‘s biological father” and that the child is in circumstances of jeopardy to his health or welfare based on the father‘s abuse of both the mother and the other child. See
[¶7] Soon after, the guardian ad litem moved for an order of genetic testing of the father and the child. The court (Cantara, J.) granted the motion.5 See
[¶8] While the jeopardy appeal was pending, the Department filed a motion with the trial court seeking an adjudication that the father is, in fact, the child‘s biological parent. See
[¶9] We address both appeals.
II. DISCUSSION
A. Parentage Determination: Judicial Estoppel
[¶10] In the jeopardy appeal, the father challenges the court‘s jeopardy order primarily on the ground that the court was required to adjudicate that he is a parent of the child before it could consider whether he presents circumstances of jeopardy to the child.6
[¶11] We note initially that the father has erroneously framed this argument as one that concerns the court‘s subject matter jurisdiction. “Jurisdiction” is a concept reserved for “delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court‘s adjudicative authority.” Landmark Realty v. Leasure, 2004 ME 85, ¶ 7, 853 A.2d 749 (quotation marks omitted). Subject matter jurisdiction in particular “refers to the power of a particular court to hear the type of case that is then before it.” Jensen v. Jensen, 2015 ME 105, ¶ 11, 121 A.3d 809 (quotation marks omitted). The power of the District Court to adjudicate a child protection matter is indisputable. See
[¶12] Instead, what the father actually argues—although it is not entirely clear—is that the court lacked authority, as a matter of law, to consider jeopardy as to him in the absence of a prior parentage adjudication; or that the court‘s finding in the jeopardy order itself that he is the child‘s parent is not supported, as a matter of fact, by sufficient record evidence; or both. See In re Children of Shirley T., 2019 ME 1, ¶ 19 n.9, 199 A.3d 221 (stating that we review the court‘s underlying factual findings for clear error and address issues of law de novo); see also
[¶13] Neither argument is persuasive.
[¶14] First, the child protection statutes make clear that jeopardy proceedings are not dependent on parentage status,7 and the father has offered no authority—from the child protection statutes or elsewhere—to support his contention that an affirmative adjudication of parentage (or other relevant nonparent status) is necessary before a court may undertake the jeоpardy proceedings. Rather, a determination that the person is someone against whom the court may issue a jeopardy order may be based on evidence presented at the jeopardy hearing itself. See
[¶15] As to the court‘s finding in the jeopardy order that the father is the child‘s parent, the court concluded, in essence, that the father was judicially estopped from asserting that he is not the child‘s parent or insisting that the Department prove his parentage. The court‘s conclusion was correct.
[¶16] Judicial estoppel applies when
(1) the position asserted in the subsequent legal action [is] clearly inconsistent with a previous position asserted; (2) the party in the previous action [has] successfully convinced the court to accept the inconsistent position; and (3) the party [has] gain[ed] an unfair advantage as a result of [his or her] change of position in the subsequent action.
Linnehan Leasing v. State Tax Assessor, 2006 ME 33, ¶ 25, 898 A.2d 408. The doctrine rests on the principle that, after a party successfully asserts one position during a legal proceeding, that party is barred from asserting a contrary position at a later stage of the proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001). In this way, judicial estoppel “prohibit[s] parties from deliberately changing positions according to the exigencies of the moment.” Id. at 750 (quotation marks omitted); see Me. Educ. Ass‘n v. Me. Cmty. Coll. Sys. Bd. of Trs., 2007 ME 70, ¶¶ 16-17, 923 A.2d 914.
- In a case management order entered prior to the hearing, the father did not challenge the court‘s indication that paternity was not disputed;
- At the hearing, the father testified, under oath, that he is the child‘s father;
- The father did not challenge the Department caseworker‘s testimony that he is the child‘s father;
- The father, during his attorney‘s cross-examination of the Department caseworker, referred to himself as the child‘s parent when asking, “And so at the onset of this case . . ., it was the Department‘s plan to reunify both parents” (emphasis added);
- The father stated on the record that he requested a hearing for the express purpose of challenging only the cease reunification provision in the preliminary protection order, thereby arguing to the court that he should receive the benefit of rehabilitation and reunification services as the child‘s parent, see
22 M.R.S. §§ 4002(1-B) ,4034(4) ,4041 (2018); and - The father opposed the court‘s finding of an aggravating factor, which is defined only “with regard to the parent,” on the ground that the evidence of his abuse of the other child was not credible, but without asserting that the Department failed to prove that he was “the parent” at issue, id. § 4002(1-B) (emphasis added).
[¶18] The father‘s efforts at the summary preliminary hearing were successful; the court found that the Department did not prove the existence of an aggravating factor and ordered the Department to commenсe rehabilitation and reunification efforts for the father.
[¶19] It was not until the morning of the first day of the jeopardy hearing—almost five months after the child protection petition was filed—that the father first asserted that the matter could not proceed unless and until his parentage was established, this despite his successful assertion of rights as the child‘s father just nine weeks earlier at the summary preliminary hearing. Additionally, even during the jeopardy phase of the case, the father continued to hold himself out as the child‘s father in other respects:
- He did not object to a case management order entered by the court prior to the jeopardy hearing, in which the court stated that there were “[n]o paternity issues” in the matter;
- He argued at the jeopardy hearing that the court should not vаcate the summary preliminary order, which required the Department to provide him with services that would allow
him to reunify parentally with the child; - He argued at the jeopardy hearing that the court should not allow the Department to cease reunification efforts for him, and, on cross-examination, he challenged the recommendation that the Department cease reunification services for him;
- In his written closing argument for the jeopardy hearing, he argued that the Department “failed to meet its burden of proving an aggravating factor justifying continuing the Cease Reunification“; and
- As at the summary preliminary hearing, he opposed the finding of an aggravating factor by contesting the allegation that he abused the other child and by asserting that he was not a “person responsible for the child,” but he did not argue that thеre was insufficient evidence to prove the “parent” element necessary for finding an aggravating factor, id.
[¶20] Significantly, the father has never denied that he is the child‘s biological parent, and he has never asserted that he has evidence to suggest that some other person is the child‘s biological father. Instead, he has argued only that the Department was required to prove his parentage, despite his own admissions of parentage and his reliance on the fact of his parentage as a predicate to the relief he has sought at multiple stages of this child protection proceeding. With good reason, it was apparent to the court that the father‘s last-minute nominal challenge to his parentage was an unwarranted about-face that would delay the jeopardy hearing beyond the statutory deadline;9 unfairly disadvantage the Department in the litigation; and otherwise groundlessly impede the progression of this case, which involves the safety of a child.
[¶21] We agree with the court‘s conclusion that all three prerequisites for the application of judicial estoppel are present, and the father is therefore barred from advancing any challenge to his parentage in this proceeding. See New Hampshire, 532 U.S. at 755-56; Me. Educ. Ass‘n, 2007 ME 70, ¶ 20, 923 A.2d 914; Linnehan Leasing, 2006 ME 33, ¶ 25, 898 A.2d 408. Because the father was estopped from arguing to the trial court that the jeopardy hearing could not proceed in the absence of a parentage finding, the court committed no error by denying the father‘s request to continue the jeopardy proceedings on that basis.10
[¶22] The estoppel effect goes further because it also precludes the father from arguing in the jeopardy aрpeal that the trial court erred by finding jeopardy without first finding from the evidence that he is the child‘s father.
[¶23] Judicial estoppel also applies to the father‘s parentage appeal, despite the father‘s assertion that it does not foreclose his challenge to the parentage adjudication in particular. More specifically, the father contends that genetic parentage can only be established when certain scientific and documentary criteria are met,11
[¶24] The father‘s argument falls short of the mark in two respects. First, it is directly contradicted by the MPA, which expressly recognizes circumstances in which a party to a genetic parentage dispute may be “estop[ped] . . . from denying parentage” based on his or her conduct. Id. § 1912(1)(A).
[¶25] Second, the father‘s argument conflates the requirements of proof when proof is necessary, with circumstances in which no proof is required in the first place because the putative parent, through his or her conduct during the judicial proceeding, becomes barred from denying parentage. See New Hampshire, 532 U.S. at 755-56; Me. Educ. Ass‘n, 2007 ME 70, ¶¶ 16, 20, 923 A.2d 914. In the latter situation, judicial estoppel obviates any need to evaluate the scientific or other evidence of parentage that would otherwise be examined according to the applicable proof requirements in the MPA. Instead, judicial estoppel precludes the father from challenging parentage in any way given his prior conduct in the case, including his successful reliance on his own assertions of parentage to obtain relief at the summary preliminary hearing. The father is therefore estopped from arguing in the parentage appeal that the court erred by failing to follow a particular process in making its affirmative determination of parentage.
B. Parentage Determination on the Department‘s Motion: The MPA
[¶26] Although, for the reasons we have just explained, the father is judicially estopped from denying his parentage to the child, we nonetheless take this opportunity to examine the MPA and reach his challenge to the affirmative, evidence-based determination that he is, in fact, the child‘s parent. Before doing so, however, we address a threshold issue regarding the justiciability of the parentage appeal.
1. Justiciability of the Parentage Appeal
[¶27] Although neither party has raised the question of the justiciability of the issues raised in the father‘s parentage appeal, we consider the question sua sponte. See Chretien v. Chretien, 2017 ME 192, ¶ 5 n.3, 170 A.3d 260.
[¶29] As we have recognized, an order entered in the context of a child protection case, but which is not itself an order entered pursuant to the Child and Family Services and Child Protection Act,
[¶30] We therefore proceed to the substance of the father‘s contentions in the parentage appeal.
2. Merits of the Parentage Appeal
[¶31] In the parentage appeal, the father challenges the parentage determination, which is based on genetic testing, by asserting only that the court erred by adjudicating his parentage without first conducting a hearing. The father points to no specific provision of the MPA that mandates an evidentiary hearing, but he instead infers such a requirement from
[¶32] Whether the MPA mandates the trial court to conduct a hearing before adjudicating genetic parentage requires us to interpret the MPA de novo, which we do by first examining its plain language. See Guardianship of Patricia S., 2019 ME 23, ¶ 12, 202 A.3d 532. If the statute is unambiguous, we consider the statute according to its plain meaning. See id. Only if the statute is ambiguous—which, for the reasons that follow, we conclude it is not—would we then consider other indicia of legislative intent, such as the legislative history leading to the MPA‘s enactment. See id.
[¶33] A genetic test result is not, by itself, an enforceable and final judicial determination
[¶34] When there is some legitimate question asserted about the reliability of the genetic test results, the MPA sets out the process for rebutting the identification of a person as a biological parent and for admitting other evidence that bears on a genetically-based parentage adjudication. Those statutorily prescribed procedures include the following elements.
- “[A] record of a genetic testing expert is admissible as evidence of the truth of the facts asserted in the report unless a party objects to its admission within 14 days after its receipt by the objecting party and cites specific grounds for exclusion.” Id. § 1913(1).
- A rebuttably identified genetic parent “may rebut the genetic testing results,” although “only by other genetic testing” that either excludes that person as the parent or identifies another person as the possible genetic father. Id. § 1904(3).
- “A party objecting to the results of genetic testing may call one or more genetic testing experts to testify in person or by telephone, videoconference, deposition or another method approved by the court.” Id. § 1913(2).
- “Testimony relating to sexual relations or possible sexual relations of the woman giving birth at a time other than the probable time of conception of the child is inadmissible in evidence.” Id. § 1915(2).
- “In a proceeding to adjudicate parentage, the court may . . . deny admissibility of the test results at trial if the court determines that . . . [t]he conduct of the parties estops a party from denying parentage [or] [i]t would be an inequitable interference to the relationship between the child and a parent or otherwise contrary to the best interest of the child.” Id. § 1912(1).
- “A report made under the requirements of this subchapter is self-authenticating“; if the testing laboratory documentation establishes a reliable chain of custody, the genetic test results are “admissible without testimony.” Id. § 1903(2).
[¶35] Despite the references to admissibility and testimony in these provisions, the MPA does not require a hearing as a predicate to an adjudication of parentage. The relevant provisions of the MPA instead contemplate that an adjudication can be issued basеd on genetic test results alone, which are self-authenticating. Id. A party who seeks to challenge those results is required to file a timely objection to the test results within fourteen days after receipt of the test results and, in that objection,
[¶36] If a hearing were categorically required in every parentage dispute, there would be little reason for the Legislature to have imposed this discrete statutory process requiring a putative parent to affirmatively object to genetic test results and, in that objection, articulate the particular basis for a challenge. See Sears, Roebuck & Co. v. State Tax Assessor, 2012 ME 110, ¶ 8, 52 A.3d 941 (“A statute should be interpreted to avoid surplusage, which occurs when a construction of one provision of a statute renders another provision unnecessary or without meaning or force.” (quotation marks omitted)). The objection procedure instead allows a party the opportunity to create a further factual record, but that process is triggered only when the party has an evidentiary basis on which to rebut the genetic test results and describes that basis with specificity in the objection.
[¶37] The conclusion that a hearing is not always needed for an adjudication of parentage is also consistent with portions of the MPA that govern parentage adjudications other than by genetic testing. For example, parentage may be established by an admission in a pleading. Id. § 1841(1). If “there is no reason to question the admission, and no other party contests it, the court may issue an order adjudicating the child to be the child of the person admitting parentage.”13 Id. § 1841(2). Like the genetic parеntage provisions, section 1841 places the obligation on the objecting party to initiate proceedings necessary to resolve a factual dispute. In the absence of an assertion that there exists a legitimate factual dispute, the pleading alone is a sufficient basis for adjudicating parentage.
must satisfy a list of statutory requirements. Id. § 1862. Also, a party may be adjudicated to be a parent without a hearing or any inрut at all if he or she fails to submit to court-ordered genetic testing. Id. § 1914(1). Even the de facto parentage statute, which requires the petitioning parent to meet threshold fact-based standing criteria, requires the court to hold a hearing only when, in the court‘s “sole discretion,” a hearing is necessary “to determine disputed facts that are necessary and material to the issue of standing.” Id. § 1891(2)(C); cf. Young v. King, 2019 ME 78, ¶¶ 11-13, 208 A.3d 762 (concluding that a hearing was required to resolve the conflicting facts as to de facto parenthood standing that had been properly presented by the parties).
[¶39] These examples demonstrate that, although parentage may be determined by genetic testing that implicates underlying scientific statutory criteria that, in turn, could provide fodder for challenging genetic test results in a fact-finding setting, a hearing on the matter is not always required. In multiple settings governed by the MPA, a pеrson may be adjudicated a parent in the absence of any kind of hearing. The Legislature has not differentiated a parentage determination based on genetic testing from those approaches. Additionally, as a more general matter, a court is given great latitude in determining whether a hearing is necessary, even when a motion is based on a factual predicate. See M.R. Civ. P. 43(e) (“When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.“); Randall v. Conley, 2010 ME 68, ¶¶ 18-19, 2 A.3d 328 (“We review the court‘s decision not to hear testimony only for abuse of discretion.” (quotation marks omitted)).
[¶40] We conclude thаt the MPA plainly and unambiguously does not require a testimonial hearing in every case before a court may properly adjudicate parentage based on a genetic test result.14
C. Conclusion
[¶41] None of the father‘s challenges to the court‘s orders is persuasive. Given the stance the father had taken in this action up to the moment the jeopardy hearing began, the court appropriately determined that the father was judicially estopped from challenging his parentage of the child or the Department‘s obligation to prove his parentage. Later, after the court was presented with the results of a court-ordered genetic test demonstrating the father‘s parentage—and without the father‘s statutorily sufficient objection to that report—the court did not err by adjudicating his parentage without holding a hearing.
The entry is:
Judgments affirmed.
Scott M. Houde, Esq., Biddeford, for appellant father
Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Biddeford District Court docket number PC-2018-24
FOR CLERK REFERENCE ONLY
Notes
Moreover, comments to the Uniform Parentage Act, on which the MPA is also based, establish that genetic test results were intended to be decisive in a parentage dispute: “This section establishes the controlling supremacy of admissible genetic test results in the adjudication of paternity.” Unif. Parentage Act § 631 cmt. (Nat‘l Conference of Comm‘rs on Unif. State Laws 2002); see L.D. 1017, Summary (127th Legis. 2015). Although “errors (and sometimes fraud) may occur in testing,” which could require “other evidence of paternity [to be] presented in the proceeding,” genetic testing otherwise “can be absolute“; “if test results are admissible, those results control unless other test results create a conflict rebutting the admitted results.” Unif. Parentage Act § 631 cmt. These comments support an interpretation of the MPA that genetic test results that comply with the scientific requirements of the statute are dispositive—without the need for a hearing—absent a timely objection and rebutting evidence.