*1 adjustment actually an for losses sustained completion appraisal.
after the therefore,
Superintendent, the fair reduced by compliance
market value Y2K those incurred,
expenses actually HLHZ not its adjust
did valuation reflect those
losses. Superintendent 41] The did not err fair market
adjusting by value actual
BCBSME’s losses sustained 1999.
The discount rate HLHZ selected upon projection
based BCBSME approximately
would earn million $4.6 only
1999. failed to fulfill BCBSME projection, but it also sustained losses
in the amount of million. Because $18.1
there is no record that
HLHZ assumed million loss $18.1 rate,
arriving Superin- at the discount properly
tendent reduced the fair market
value and did amount not double expenses doing
count Y2K so. entry is:
Judgment affirmed.
In re Michaela C.
Supreme Judicial Court Maine.
Argued: May 2002.
Decided: Oct.
CLIFFORD, J. appeals Michaela C. The mother of *3 Court judgment District Westcott, J.) terminating pa- (Augusta, daughter pursuant to her rental (1992 Supp.2001).1 & 22 M.R.S.A. alia, the challenges, inter trial The mother of certain medical evi- court’s exclusion sufficiency of the evidence. and the dence judgment. affirm the We February in was born [¶ 2] Michaela diagnosed cystic with fibro- 1997. She was She age at the of seven months. sis twice hospitalized at Maine Medical Center for, among things, malnour- in 1998 During failure to thrive. ishment and hospitalization, November second of Human Services J.) (Vafiades, grant- sought, the court ed, preliminary or- parte protection an ex preliminary protection An on agreed der. J.), {Perry, giving De- order followed custody of Michaela. When she partment L’Hommedieu, (orally), E. Chris Lewi- hospital, the from the De- released ston, for appellant. pater- with her partment placed Michaela Rowe, General, Attorney Aria G. Steven grandmother.2 nal eee, (orally), Attorney Asst. General Mat- January jeopardy hearing At the 3] [¶ General, Pollack, Attorney thew Asst. agreed to an order the mother Leighton, Attorney Asst. Christoher Gen- finding Michaela was circumstances eral, MeCullum, Augusta, Elizabeth A. welfare. jeopardy to her health and Gardiner, (for paternal Spurling, C.H. by the court stipulated order entered appellees. grandmother), J.) stated that: {Vafiades, Mitchell, ... Michaela Norridgewock, Jeopardy Karen Guardian exists because [eatingj/feeding disorder ad Litem. serious cystic fibrosis complicate^] which If C.J., diagnosis. SAUFLEY, failure to thrive Panel: RUDMAN, DANA, managed these CLIFFORD, treated and properly her health. ALEXANDER, LEVY, a serious risk to CALKINS, present failed past ... has mother] [The JJ. appeal, ap- Although has not filed brief party father is not this 1. Michaela's sought and was Department sought paternal grandmother to terminate peal. The proceed- parental rights, parent but the father’s as a foster granted status intervenor he ings bifurcated as him because were participated in the ter- grandparent, and to termi- indicated that he would consent hearing. mination parental rights were nation the mother's if terminated. to appreciate the seriousness Throughout proceedings and com- confi- plexity problem, creating dential was repeatedly thus information dis- minor closed to the At the jeopardy media. first hearing child. [The J.) in November the court {Perry, working mother] ... now resolve orally parties cautioned the issues, others yet these is not point present court, including Michaela’s ma- where has been alleviated. ternal statute the provided order for continued proceedings were confidential and were placement of with not to press. be discussed Not- *4 grandmother. The mother to was ordered admonition, withstanding this the maternal follow plan reunification/rehabilitation repeatedly spoke to the individual counseling included and press and disseminated confidential infor- services, other and to indepen- establish mation to concerning case the Kenne- dence from mother. The mother was outlets, becJournal and media to the regular, unsupervised allowed visitation extent that on one occasion Michaela saw was ordered to “not herself on the television news and asked provide snacks, with candy, Michaela about appear it. It does drinks or meals.” instigator mother was the of this disclo- sure, but she it tolerated and to some hearing testimony [¶ 5] After judi- at a degree cooperated In July it. J.) cial hearing, (French, review the court J.) {Worth, the court granted the Depart- unsupervised found that during visits the ment’s motion to allow to disclose infor- mother had fed Michaela violation of the mation to picture counter inaccurate order, jeopardy and ordered that future given by press the mother and the visits supervised. be grandmother. (Worth, maternal The court agreed the mother that Michaela would be J.) subsequently by denied a motion in-patient referred to an feeding program mother for “gag relief from the order.” at Kennedy Krieger Institute in Balti- Department’s petition [¶ 8] The for ter- patient Kennedy more. Michaela mination of rights the mother’s Krieger for weeks in early several days was heard over four between October and then returned with her January of 2000 and major of 2001. One paternal grandmother, who had been focus of was the Kennedy Krieger trained at in the detailed ineffectual attempts comply feeding program developed there for Mi- goals rehabilitation established at the time chaela. jeopardy A psychologist order. who In April the mother filed in January evaluated the mother of 1999 independent motion for an medical exami- long-term, testified that she needed moti- nation of Michaela Dr. Boyle William of vated diagnosed treatment. He her as Hampshire Cystic the New Fibrosis Clinic. having a personality passive disorder with {French, J.) The court granted the moth- dependent features, leading to her difficul- motion, stating er’s that “[t]he issue of ty in focusing on Michaela’s needs and in relitigated” shall not be at the providing response a structured to Michae- hearing but that “[f]or the lim- problems. la’s Two counselors testified matter, ited purposes reviewing that the mother had discontinued therapy if necessary, developing a permanency with them and made little progress; had plan, expert testimony [medical] will be she did not think had anything to work on; considered.” independence she wanted from her Mi- any- positive this has had for unwilling do results own mother but was it, eating.3 chaela’s thing about so that her mother contin- her; ued to she was shown dominate L.C.S.W., Johnson, who [¶ 12] Eileen give to feed or to unable interest evaluation” for performed “best physical therapy becoming overly without termi- Department, concluded emotional; and she continued to live be- nation is in best interest Michaela’s lifestyle, as immature evidenced Mi- paternal grandmother, who cause the abusive men past by her associations with with, is spends chaela most of her time fre- staying out late so that she was “primary figure.” attachment Michaela’s slept forgot quently through tired and litem that ter- ad concluded guardian appointments. mination of the mother’s was not in Michaela’s best interest testimony numer- There Michaela and the of the bond between mother ous other witnesses litem, however, guardian ad mother. own continues be dominated efforts did recommend reunification *5 mother, Michaela’s maternal cease the mother had not made and is live own unable to on her or make necessary to changes the in her life allow concerning without her decisions Michaela her care for Michaela. to mother’s The maternal interference. dispute at [¶ There was substantial 13] grandmother psycho- suffers from serious hearing the about the mother’s termination own, logical disrupted her has problems of present expert to medical evi- attempts in past, repeatedly giv- visitations has the dence, particular, from Dr. evidence concerning en confidential information Boyle. sought present- The to evidence be media, protective proceedings child to the ed the mother concerned Michaela’s given during has Michaela milk chocolate and to the eating/feeding disorder went instructions, visit in violation medical weight way gained child had and lost disagreed opinions has past. conferences between Several Michaela’s doctors. pur- concerning and counsel court Other that a [¶ 10] witnesses testified was pose for which this medical evidence strong mother bond exists between the throughout the ter- being offered occurred Michaela, disruptive that after origi- was hearing. mination The evidence grandmother from maternal was excluded nally proffered to demonstrate that the visits between the mother and Michae- erroneously relied la, ap- those visits were affectionate and being that was not propriate. in the mother’s properly cared when testi- [¶ medically 11] much off custody, and better was Michaela, adopt fied that she wants paternal grandmoth- placed when with her adopt argued if allowed to that medical er. The mother her with reason permit the mother visit Michaela. the court’s evidence showed stable, the child well-organized original removal of She described for the i.e., explained custody, the child home life with Michaela and the mother’s in mother’s custo- while feeding regimen that she had failed to thrive detailed to be in circumstances of dy causing her Kennedy Krieger in at been trained request so refused. to do was she wanted The mother testified that well, feeding regimen as trained jeopardy, needs, medically was not sound. The 4055(l)(B)(2)(b)(i); trial court justifiably excluded the evidence the mother is unwill- concluding throughout ing most the termi- responsibility unable to take hearing nation the mother was at- reasonably Michaela within time calculat- tempting relitigate prior needs, court’s ed to meet Michaela’s section findings 4055(l)(B)(2)(b)(ii); child and, was circum- mother stances while in the custody good failed to make a faith effort reha- mother,4 findings that had previ- reunify been bilitate and section ously 4055(l)(B)(2)(b)(iv). agreed the mother.5 The court con- also cluded that termination of the mother’s Near the end the termination rights inter- Michaela’s best however, hearing, the mother made clear 4055(l)(B)(2)(a). est, appeal section This that she offering the medical evidence by the mother followed the denial termination, on the issues involved motion for reconsideration that the evidence relevant to at least of its decision to exclude the evi- medical some of the issues involved in termination. entry of dence and the the order terminat- court, however, denied the mother’s ing parental rights. motion to allow the record to open remain so that she could submit the medical evi- I. dence. In a proceed mother, the court’s sugges- *6 ing, before court even the addresses
tion, reconsideration, filed a motion for and parental whether of is rights at presented the request, an offer child, in the best of the court interest the proof of as to the medical evidence. The parent has to whether is fit determine the proffer gained was that Michaela had S., the child. In re parent to Scott weight more when in quickly the mother’s ¶ 114, 19, 1144, ME 775 A.2d care, custody than when was with the De- the burden prove to one partment. proffer also the included statutory or more of grounds paren the of testimony Boyle concerning of Dr. his ex- tal clear by unfitness and evi convincing amination of Michaela and his opinion that ¶ M., 195, 9, dence. In re 1999 ME Kafia weight gain accepted is an measure 742 923. Where clear con and failure to thrive and that cases the mother vincing required, evidence is appropri the responsible was not for the child’s failure ate appellate standard of review is whether to thrive. The denied court the motion to the District could reasonably Court admit the medical evidence. persuaded been that required the factual terminating pa- [¶ 16] the mother’s findings to proved highly proba were be Michaela, rental to the court con- J., Christopher In re ble. 505 A.2d cluded convincing clear and evidence (Me.1986). unwilling mother is unable protect jeopardy Michaela from and challenges those The mother unlikely change sufficiency circumstances are with- of the evidence to in a time reasonably findings calculated to meet of unfitness the court. agreed findings 4. The court stated on record that it had 5. The mother had to the excluded, exclude, and would not evi- jeopardy jeopardy hearing at the two and at dence related to current Michaela's medical separate judicial reviews. condition. only ordered, needs to find the court impermis- court also contends She unfitness, statutory grounds for one sibly excluded the medical evidence G., re eating/feeding see In David presented on the disorder Michaela, (Me.1995), and that of that much exclusion this case involves and findings adversely impacted evidence the mother is able more than whether parental unfitness best interest. properly feed Michaela. rejec- dispute over the court’s finding by clear and The court’s [¶21] evidence is tion the mother’s medical is un- that the mother convincing evidence complex, impact at one of and its least Michaela responsibility take able to parental unfit- findings the court’s as to reasonably calculated within time ness, finding particular needs, section meet protect mother is unable 4055(l)(B)(2)(b)(ii), is on the fact based are un- those circumstances independent, mother is not change reasonably time likely to within a mature, is un- responsible parent, and pursu- to meet Michaela’s needs calculated Michaela, special needs provide able to 4055(l)(B)(2)(b)(i), difficult ant to section child, daily care that she with the basic Although the mother did to determine. daily needs, phys- chest such as Michaela’s proper not make clear to the trial Moreover, therapy. the court also ical medical reason for admission convincing evidence found clear very until late in the termination good failed to make the mother at of the hear- proceedings, the conclusion reunify faith to rehabilitate effort reconsideration, ing, in her motion 4055(l)(B)(2)(b)(iv). In- section why sufficiently she did articulate reasons findings consti- dividually, either those admitted, the evidence should be and its parental unfit- grounds of sufficient tutes by the court was error. The exclusion which to base a termination ness on evidence, although medical di- excluded G., In re David rights. court’s earlier primarily rected trial *7 The medical evidence 659 A.2d the child in cir- determinations that on find- impact no either would had jeopardy the moth- cumstances while suffi- ing. the medical evidence Nor was the failure to er’s care based on child’s to determination ciently relevant the thrive, to has some relevance the court’s parental rights of the mother’s termination finding pursuant to section to pursuant interest is in Michaela’s best 4055(l)(B)(2)(b)(i) that is un- the mother 4055(l)(B)(2)(a). § The 22 M.R.S.A. jeopardy, to protect able Michaela in- interest determination court’s best jeopardy out the eat- particular, arising lack of beyond the mother’s volves issues ing/feeding disorder. highly It is to feed the child. competence court find- Although the trial court’s best interest unlikely 20] that the [¶ evidence, by excluded it excluding ing erred in medical be affected that the error did not highly probable is medical evidence. pro
affect the outcome to reviewing a decision In is harmless. See and, therefore, [¶22] ceedings ¶¶ S., a decision 31-32, parental rights, 775 terminate In re Scott ME 2002 (error factual, recognize unique “the we highly is is harmless when is A.2d at 1154 assess the court to opportunity of the trial not af that the error did highly probable M, evidence,” In re Caroline case). 576 error is of the The fect outcome in a (Me.1990), the evidence and view in order for termination harmless light Department, most provide favorable to daily unable basic care for Mi- (Me.1985). B., 137, 140 Chesley re chaela. [¶ Michaela been in Contrary custody 25] to the mother’s conten-
tion, since 1998. ample there is Michaela’s support paternal grandmother by has been findings court’s clear and Michaela’s convinc- years custodian ing for several and evidence that the mother desires to has failed to adopt take the child.6 Michaela has responsibility responded for Michaela a within care, well time, grandmother’s to the reasonable M.R.S.A. 4055(l)(B)(2)(b)(ii), grandmoth- rehabilitative services that the and has failed to er good has assured she make faith effort to receives. The District rehabilitate and “love, reunify Court found that there is pursuant affection to section 4055(l)(B)(2)(b)(iv). strong emotional The ties” between the mother was con- sistently child and the custodial resistent following the treat- plan capacity ment “has agreed to at the time of the willingness nurture the child and order and she failed to make safe, provide predictable her with problems, serious effort to resolve her own problems home.” severely compromise comfortable Michaela considers grandmother’s ability to home to be home. care for Michaela. points correctly mother II. “love, out that there is affection and mother unper is also emotional bond” between her and Michae attachment, suasive her contention that however, the evidence la. only Such one is is insufficient to finding several factors the trial must clear convincing evidence that determining ter consider in what is the best mination parental rights of her is in the ability interest of the child. “[T]he child’s best interest of Michaela. is to integrate There sub into substitute stantial evidence in the record that parent’s back into the home and child’s physical relied Court justify impor District and emotional needs” are the conclusion that termination of tant well. considerations the court as 4055(2) (Supp.2001).7 Moreover, best interest. mother depen just has a because the has a mother dency excessively depen relationship disorder and is with the child that is not dis- *8 on her ruptive dent own mother. The mother is does not mean that adult, responsible unable to function as cannot inbe the child’s best In interest. G., and has little motivation for re treatment. David 659 A.2d at trial 862. The fully She cannot appreciate very spe court took all into account of those factors (cystic cial needs fibrosis and an and grandmother eat found that the to “is able disorder) Michaela, ing/feeding of prioritize and is her time address [Michaela’s] 4062(4) Title (Supp.2001) age, 22 M.R.S.A. child’s child’s rele- attachments to statutory preference sets out place- periods persons, vant of and attachments person of a ment child with a related to that separation, ability integrate child’s child. into a substitute or back into parent's physical and the home child’s 4055(2) provides: 7. Section emotional needs. deciding parental rights, In to terminate 4055(2). 22 M.R.S.A. court shall the best consider interest of the child, child, including needs of the
1253 that it is the intent of provides is in 4050 special ... [and Michaela] needs Act: Legislature that the consistency patience ... and need skill to requires great deal Allow for the termination only person possible can after [who ] nurture her. at the earliest time (Emphasis do that is and reunification efforts [the ].” rehabilitation added.) Moreover, the trial court consid- and termination have been discontinued child; rejected of the option is in the best interest specifically ered care, finding that long-term foster need for children ... Eliminate the already multiple disruptions had had child time for periods of wait unreasonable consistency. in need of and was the conditions parents correct their family; prevent return to which their judg District Court’s [¶ 27] The [and] on is enti ment the issue of best interest adoption of children ... Promote the tled to deference because substantial allowing rather than into stable families directly testi court is able to evaluate the impermanency remain in the children to mony of the witnesses. of foster care.... justice trial who hears is able to 4050(l)-(3) (1992). In §§ See appraise testimony parties all the of the ¶ 8, M., Kayla re ME experts in and their social work and 330, perma- favors (statutory policy 332-33 ... psychology child exercises a broad nency). discretion, charged and is with a corre- adopted If had the District Court spondingly weighty responsibility, to de- kinship Mi- or foster care as long-term particularly ques- termine the sensitive permanency plan, it would chaela’s tion of a His child’s best interest[]. periodically been authorized enter and judgment, properly when exercised designed to address actions review orders him, the basis of the evidence before is by Michaela’s noncustodial relatives very entitled to substantial defer- impact well-being. utility upon her indepen- An appellate ence .... court’s however, must be consid- authority, this espe- dent evaluation of the evidence is light practical limits on ered cially inappropriate on a delicate issue of relation- ability control familial this sort. high view the ships behaviors. H., Misty In re Lee 529 A.2d dur- family conflict demonstrated level of (Me.1987) (quoting Cooley v. St. Andre’s case, the District ing pendency of this 1084, 1086 Placing Agency, Child concluding that its justified Court (Me.1980)). family of Michaela’s supervision indefinite relationships effectively placed would have Moreover, Family the Child and [¶28] limbo,” and not have “in Act, which Services and Child Protection certainty goals Act’s achieved the clearly governs proceedings, these stability. favoring permanency for chil- policy stated *9 with relationship future Michaela’s in Michaela’s situation. Section dren issue, 4003(4) dynamic which will her mother is provides that it is the intent of the Mi- throughout have to be revisited “[p]romote likely that the Act Legislature per- from the childhood. Viewed early permanent plans of for chaela’s establishment of Michaela’s spective can- of the remainder custody of children who the care and concerning nature minority, family.” 22 decisions be to their not returned contacts with 4003(4) of Michaela’s frequency (Supp.2001). § Section primarily conclude, mother should be a function Because I would on these unusu- of meeting developmental facts, al yet that the record does not sup- needs, opposed emotional as to seeking to port finding termination of the permanently guarantee legal right parental rights is Michaela’s contact. Because Michaela been in the interests, best I respectfully must dissent. primary capable care of a grandparent 4055(l)(B)(2)(a) (1992). § See M.R.S.A. her, willing who is to adopt the District I separately also write from Justice Dana’s rightfully Court concluded is in dissent, I agree majori- Michaela’s best interest that grandpar- ty’s holding today that any evidentiary er- ent, court, the Department and not or the ror that occur did was harmless. Ulti- the ongoing responsibility shoulder mately, I would conclude that it was not these along decisions with all other aspects evidentiary upon issues which the of Michaela’s upbringing. turned, question court’s decision but [¶ 31] Our evaluation of the evidence judicial authority to prevent further dis- must be undertaken proper with deference ruptions in the child’s current beneficial to the trial court. trial court deter- appears have unneces- mined that the not mother is able to func- sarily options. limited the court’s responsible tion as a adult and does not fully appreciate special needs of Mi- presents This case several unique chaela. It further person found that the policy circumstances that reflect and legal who can care best for Michaela is her changes in important this area of law. paternal grandmother. The evidence es- First, placed pater- the child was with tablishes that the court reasonably could nal Leg- consistent persuaded highly been that it is prob- ever-increasing islature’s directives to the able that termination of pa- the mother’s agency State to encourage the courts rental is in Michaela’s best interest. kinship placements appropriate.8 where Accordingly, that finding is not erroneous. Second, mother, the child’s while not able is: entry child, to be a custodian for her can abe positive life, force as demonstrated
Judgment affirmed. judge’s the trial finding there is SAUFLEY, C.J., dissenting. affection, “love, and an bond” emotional between Michaela and her mother. And parts I in all [¶ 32] concur the court’s opinion finally, people except well reasoned its other in the child’s conclusion regarding the best interests Michaela. negative mother’s lives have had a effect example statutory (2)(A-2)(2)(b)) 8. For an provi- of the new § codified at M.R.S.A 4041 regarding taking kinship sions Implementation [hereinafter care effect af- of Committee case, entry ter judgment permanen- in this see Recommendations] states: "If the P.L.2001, (effective cy plan provides ch. CC-5 March person for a or other relative (to 2002) custody at 22 codified M.R.S.A to have child and court has 4041(l-A)(A)(l)(c)(vi)), custody which states that a ordered the child to relative or plan person, rehabilitation reunification finding must in- make a shall "[a]ny support, kinship clude use of includ- that continuation of reunification efforts is to, ing, placement, supervision limited plan with the permanency inconsistent for the visitation, respite in-home department child and order the to cease reu- addition, Implement care." parent An Act to nification unless the demonstrates that Recommendations of the Committee to Re- should reunification be continued and the *10 Services, P.L.2001, view the Child Protective court determines efforts to be reunification in 25, (effective 2002) (to July ch. the best interests of the child.” of tionships, and that termination nondisrup- a ability to be on the mother’s appropriate vehi- are rights adoption and daughter’s life. presence in her tive many stability assuring that cles for end, previ- of the [¶ 34] parents cannot the child’s instances where disruptions that Michaela had ous suf- however, time, It is be caretakers. fered, as concern for appropriate as well options thoroughly consider other more the court con- stability, Michaela’s need who family has members child when the final of Michaela’s cluded that a severance a provide home. willing able to are legal relationship to her mother was neces- care kinship and benefits purposes sary. with the trial court’s I find no fault matter, and Mi- heart of this are capable is not conclusion the mother provides a com- placement chaela’s current caretaker, being primary Michaela’s kinship pelling example of the benefits that the agree I with the trial court issue not be cared care. she could When came to this: could the child’s here down safe, placed a parents, she was her long-term served in best interests be result loving, relative’s home. The stable paternal with her foster care envi- exactly Legislature as the avoiding thus the final sev- re- fragile child physically it. This sioned legal relationship with grandmother erance of Michaela’s who of a ceives the benefits nur- See capacity willingness her mother? “has safe, 4055(l)(B)(2)(a) (1992).9 provide with a ture child and her predictable comfortable home.” While the trial court answered pressing for finali- The reasons for negative, I con- question would necessarily urgent as when the ty are not judicial termi- clude that a order short of placement. kinship child is cared for nation would best served Michaela’s here, case the child knows and As is the authority the exercise of needs. With with her mother. The has had contact Act, granted through the court agrees that contin- paternal grandmother or could fashion order that reduces nondisruptive contact would nurturing, ued legal disruptions eliminates the in Michae- court could address benefit the child. The any remaining la’s life and that minimizes through entry disruption problems order, if personal disruptions. Such an problem an order that alleviates her complied with the mother and own by, disruption grandmother’s the maternal mother, would Michaela to have allowed necessary, the maternal prohibiting if competent loving, continue to thrive in the visiting re- paternal grandmother, while at care of multiple motions ability to file stricting allowing continued contact the same time ability court, restricting between Michaela her noncustodial disrupt take actions would, in this mother. result Such permitting Our zeal for life. case, Michaela than unique be better for must be every person to the courts access finality certainty adoption. as a prevent harm to children tempered to Al- access. question that abusive can be no of unfettered There result filing docu- though prohibitions on family rela- stability their children need See, S., e.g.,In re Melanie will continue. grandmother has no le- visits 9. Michaela’s ("[A]n 7,¶ 1998 ME gal responsibility upon deprives rights terminating parental permit order visits to continue mother, any authority impose condition court of de- and Michaela’s between Michaela would, parent and preserves contact between spite at trial that she her indications child.”) be no assurance such and thus there can *11 with See expressly ments the court rights. Implementation are in protection statutory Recommendations, discussed the child P.L.2001, Committee scheme, (1992 § Supp. 696, § M.R.S.A. 4036 & ch. 34. charged The court is by law 2001) grants power court the broad to with considering numerous principles in fashion protection individual child orders fashioning order, such protection a includ particular suited the circumstances in ing “[p]rotect the child from jeopardy to each case.10 welfare,” his health or disposi and “[m]ake tion in the best interests of the child.” 22 If [¶ 38] the court entered an order lim- 4036(2)(A) (C) (1992). § & We iting opportunities the disruption of for recognized judicial this broad authori status, legal home life and but See, In ty numerous times. e.g., re David leaving intact, rights W., Jr., (Me.1990) (“22 568 the given mother would be opportunity grants M.R.S.A. 4036 wide discretion to to demonstrate she could protection the court child proceedings healthy, part noncustodial of the life child’s concerning ”). custody of .... the child without or causing allowing disruptions Thus, authority for put the court to that would harm Michaela. The benefits place into restricting disruptions, order to Michaela of such structured order intact, leaving parental albeit would far outweigh the limitations on the circumscribed, exists the statute. mother’s and grandmother’s maternal ac- If, frequent litigation. cess to in such an case, this unusual I would va- arrangement, the mother fails show that judgment cate the terminating moth- capable being healthy part of parental rights er’s and return the matter creating Michaela’s lile without such dis- trial entry court for judgment ruptions, termination appro- would then be denying petition pa- termination of priate. rights, rental and for the entry further orders consistent with Michaela’s best in- I would also that a recog- conclude terests. nition of the authority to restrict
the actions of noncustodial relatives is en- DANA, J., CALKINS, J., with whom tirely consistent Legislature’s re- joins, dissenting. cent kinship placement clarification that a may result I judgment cessation of DHS involve- would vacate the ment without requiring First, a termination of two reasons. the error in excluding 10. provides, pertinent part: The statute F. Removal of the child his from custo- granting custody dian ato noncusto- order, Disposition. protection In a parent, person dial ment; the depart- other may one order or more of the follow- ing: perpetrator F-l. Removal change custody; A. No home, prohibiting the child's direct or Departmental supervision B. indirect contact the child home; family child and in the child’s perpetrator prohibiting specific child, custodians, C. That the perpetrator acts which the court parents appropriate family and other child; may finds threaten the accept members treatment or services to Payment by parents G. of a reason- ameliorate the circumstances related to ...; amount able for the child jeopardy; Necessary emergency D. medical treat- specific H. Other governing conditions
ment for the child when the custodians custody; consent; unwilling are or unable to ...; 4036(1) (1992 Emancipation E. Supp.2001). child 22 M.R.S.A. &
1257 (SECOND) OF JUDG- crucial medical evidence was STATEMENT mother’s 28(4) (1982). Moreover, Second, jeop- is no MENTS not harmless. there evi- record, ardy because circumstances dence in this let alone clear and was issue evidence, pe- changed intervening convincing could have termination riod, agreed jeopardy that the that was parental rights the mother’s is Miehae- so years before could have la’s best to exist almost two interest. ceased the time of the I. hearing. correctly correctly Court The trial court noted [¶ 44] The concludes
[¶ 42] its an attack on the 1999 that the trial court abused discretion distinction between litigation presenting jeopardy mother from preventing the determination it in a jeopardy, misapplied anal- current but her medical evidence. Some further necessary explain way prevented pre- ysis is both the nature the mother from why it not evidence. senting court’s error and relevant repeatedly interpret mistake harmless. first, proffer going only as the mother Had offered her medi impermissible purpose. The mother’s ar- purpose cal evidence for the sole of chal although not at all times guments, as clear determination, jeopardy lenging 1999 been, support not they as could have do have At been irrelevant. a termi consistently interpretation. this She ar- hearing, question nation is whether “[t]he gued that she should be allowed to intro- parent] protect can [the children] [the testimony expert regarding Miehae- duce jeopardy now or within a time rea condition, la’s which historical medical sonably calculated meet their needs.” assump- might have shown that the factual P., 1224, In re 562 Howard A.2d 1227 April agreed 1999 underlying tions M., (Me.1989); In re see also 1999 Kafia incorrect, but which jeopardy order were ¶ 195, 12, 742 ME A.2d 924. On the purpose of contest- was offered not for hand, to show the evidence offered ing that order to show order jeopardy absence of current was relevant. jeopardy. there was no current April jeopardy 1999 order could nei jeopar misinterpretation of litigation ther foreclose of current The court’s appears at to stem dy hearing argument the time of the termination the mother’s temporal scope from an error about the nor relieve the of its burden to the issue of part of evidence relevant proving jeopardy current as its of the repeatedly unwilling jeopardy. current allegation that the mother is medical protect of Michaela’s jeopardy unable to Michaela from excluded evidence as ir- jeopardy order reasonably a time calculated to condition before within relevant, stating that it would higher while also Because of meet needs. termination, medical con- of her current proof required allow evidence standard caselaw, however, does not Our preclu- dition. order does In drawing re such line. jeopardy. See sive effect on the issue ¶99, 6, B., Garner, 284-85, ME 710 Nathaniel Grogan v. 498 U.S. (1991) 921, 922, argument rejected we 112 L.Ed.2d S.Ct. looked court should have by preponder the termination (holding prior finding the issu- only parents’ actions after given ance standard cannot be collateral (the protection order the child governed by ance of estoppel proceeding effect in jeopardy order under standard); equivalent RE- convincing clear and statute) prior in considering parental nation. That large determination rested in *13 nothing unfitness. “There stat- on part finding the Michaela’s medical ute, decisions, nothing past only by our needs paternal could be met her temporal scope by limits the the of not her mother. The any understanding court’s of examination evidence to court’s of those medical period. particular impose entirely We decline to depended secondary needs on evi- re 922; Id. accord In such a limit.” at Although prob- dence. Michaela’s medical D., ¶ 207, Alexander 18, part 1998 ME 716 lems an important were its case for termination, A.2d 228. regarding Department Evidence the five called period April after the order professionals 1999 mental health as witnesses see, e.g., re relevant, In obviously was single expert. but did not call a medical S., ¶ 114, 15, Scott 2001 ME Department’s The on best 1144, 1150, but weak, evidence Michaela’s interest I element as discuss was condition, past particularly medical of her Boyle’s testimony Dr. below. on behalf of condition while in the of her mother care the mother would have been the sole ex- and maternal before Novem- testimony court pert medical heard ber was also relevant the issues would greatly have increased the best interest and whether understanding court’s of Michaela’s medi- in jeopardy would if returned to distinctly possible, cal needs. It is there- early mother’s care in late or 2001. fore, Boyle’s the admission of Dr. testimony could to a have led the court [¶ 46] The cumulative effect of all the respect different conclusion with to Mi- rulings court’s on the medical evidence chaela’s best interest. issue, pretrial barring order med- testimony any ical termination issues to [¶ 48] the burden portion of the termination order refus- demonstrate that error a termi- ing to allow reopen the mother to parental nation was proceeding present testimony record to Dr. That high,” harmless. burden “is and thus Boyle, to deny op- the mother a fair “[a]ny doubt will be resolved favor portunity present her relevant medical S., In re Scott parent.” 2001 ME correctly evidence. The Court concludes ¶ 29, 775 at significant 1154. There is highly probable that it is error that this impact doubt about the mother’s medi- not trial did affect the had, cal evidence S., determination, In re Scott unfitness see doubt must be resolved in her favor. ¶ 114, 29, 1153-54, 2001 ME 775 A.2d at judgment should be vacated and the case because the medical not evidence would hearing remanded a new which the finding have affected the court’s that the opportunity present mother has full good mother failed to faith make effort her medical evidence. reunify to rehabilitate and 4055(l)(B)(2)(b)(iv) see M.R.S.A. II.
(1992).11 deciding termination is whether however, interest, agree, I cannot that it in a best
[¶47] child’s the court must child, highly probable that the af- including error did not consider “the needs the trial age, fect court’s best interest determi- the child’s the child’s attachments to agree implicit I also with the Court’s con- of the medical evidence exclusion evidence, sufficiency clusion that the several additional issues dis- do merit appeal, raised than mother on cussion. eating skills. including regression periods persons, of attachments relevant ter- Johnson recommended ability to inte- On this basis separation, the child’s back mination. grate into substitute and the child’s parent’s
into the home testimony insufficient This physical and emotional needs.” highly that it was to conclude 4055(2) Although (Supp.2001). in Michae- termination was probable is relevant evidence of unfitness grand- la’s best interest. inquiry, In re Michelle *14 to the best interest testimony a conclusion supported mother’s ¶ 286, 123, 283, W., 2001 ME 777 in not Michaela’s best it would be that element[] interests distinct [is a] “best from her home. interest to be removed proved independently,” In re that must be however, sup- testimony, in Nothing (Me.1990) M., 576 A.2d at Caroline losing legal that the a conclusion ports (alterations original). in It follows that in mother is right to contact with her prevent may factor alone “the best interest paternal interest. The Michaela’s best re rights.” termination of the that there is a deny did not grandmother ¶ S., 114, 21, 2001 ME 775 A.2d at Scott loving strong and bond between 1151. mother, in that and fact testified and the the between would allow visitation 50] The trial court’s conclusion inwas Michaela’s best interest two.12 testimony to appears have rested is Johnson’s evidence also insuffi- First, grand- the paternal two witnesses. the court’s conclusion. cient to testimony established that she in serious flaws The record discloses Michaela; appropriate caregiver was Department, after fil- That the evidence. supportably found that “there is Johnson ing petition, its termination hired love, strong affection and emotional ties is evaluation” perform to a “best interest grand- paternal the child and [the between to It is difficult avoid troubbng itself. grandmoth- paternal and that the mother]” es- role was the inference Johnson’s to capacity willingness er “has the and rubber-stamp to a decision sentially provide nurture the child and her with made, already and Department had safe, predictable and comfortable home.” Department’s presenting intent that the usurp Second, “independent” findings im- her evaluation the court’s guard- role of the plicitly testimony statutorily-mandated show rebanee on the and 4005(1) litem. See M.R.S.A. interest evaluation” of Eileen John- ian ad “best (1992 (requiring ad guardian Supp.2001) testified that & son. Johnson Michaela’s pursuit act in of best interest figure” pa- btem to “primary attachment make report, investigate, child and she had been grandmother ternal because court). This concern paternal recommendations to grandmother’s care two where, noteworthy here, especiaby years spent majority time btem, attorney ad guardian to the and that contrast paternal grandmother, with the testimony a in her demonstrated primary Johnson any disruption this attachment legal understanding of fundamental for Michaela lack problems could cause serious witnesses, affectionate including and Michaela were Multiple two visit su- mother mother and pervisors, appropriate. the existence of bond Michaela loves her confirmed visits, steadily her mother. The ma- between Michaela and which had forward looks (a Department grandmother former ternal leading up improved in the months force, employee) disruptive but after was a hearing. excluded, the visits between she was regarding issues placement. conclusion termination of Moreover, again in See, contrast to the thor- is in the child’s best interest. ¶ ough investigation M., performed by e.g., In re 1999 ME Kafia litem, guardian inquiry ap- ad Johnson’s (citing A.2d at 925 evidence that child pears meager: been she relied on “is parents bonded with the foster who her, medical records adopt deemed relevant the want to bonded ei- father”). accepted apparently ther her mother This is not Department’s allegations factual such a As guardian face case. ad litem value; report, she refused to points interview mother stated “[a]ll when the requested positive mother that her nurturing attor- to the and definite (a ney present request given reasonable bond loving between and Mi- [the mother] Johnson’s Department’s status as the chaela.” strong This bond is not as as the agent); she observed only paternal Michaela for bond between the (one two one-hour visits but only De- *15 grandmother mother); partment one placed pa- had Michaela in the did grandmother’s not evaluate attach- Michaela’s ternal care for over two mother, apparently years. ment deeming it ... “Courts should be cautious irrelevant because the mother was not Mi- that finding termination is in a child’s best “primary chaela’s attachment figure.” ... interests when re- parent-child stricts the contact by institut- Department’s [¶ 54] The argument on ing protective proceedings child and then best interest boils down a contention parent-child cites the lack of a normal that permanence Michaela needs relationship that as evidence the ‘best in- should have primary attachment to the T., test In terests’ is satisfied.” re Justin paternal grandmother permanently guar- (Me.1994). 640 A.2d anteed. goal permanence clearly is one, important an by 56] mandated statute. [¶ There no evidence that con- (1992 4003(4), §§ See 22 M.R.S.A. & tinued contact with the mother would Supp.2001). perma- need for cause Michaela harm. On the contrary, nence, however, by Johnson, cannot paternal grandmother itself conclusion termination by the two Depart- witnesses relied could, is in her best interest. If it argument, ment for its best interest both the best interest element would be mean- testified favor continued contact be- ingless appropri- and termination would tween mother and Michaela. The ate guardian whenever is argued unfitness found ad litem legally because all children involved in the guaranteed child right such contact was in protective process permanence. interest, need Michaela’s best and I agree that Likewise, fact that Michaela has a compels evidence before the court such primary capable attachment to a lov- conclusion. ing parent adopt foster who wants to recognized past [¶57] We have dispositive cannot itself be without re- may that a “child from preserving benefit gard to her attachment to her natural relationship a limited with her own [natu-
mother. ral parent] despite parent’s] inadequa- [the cases, many II., Hope evidence that the cies.” In re 541 A.2d (Me.1988) parent child’s attachment to the natural (vacating judgment is for insuffi- nonexistent, minimal or or that continued cient evidence termination was in interest). contact with the parent natural would child’s best This is particularly harm, cause the child is crucial to permanent true when the child is in the est, would be in that case Michaela family of a Thus we have care member. harmed, benefitted, by change. The interest of a held that was in the best legal pro- speculative possibility of future child who suffered from failure thrive severing the justify ceedings cannot custody of her and was loving parent-child bond despite healthy and contact with her mother keep the mother and Mi- between In re now exists parent. unfitness as a the mother’s M., chaela. Caroline 744-45. stating “proper def- stated, Although The trial as an addi- required, trial court” is to the erence analysis, in its
tional factor best interest adopts super- Court in fact attitude “lim- placed that Michaela should not be If this best interest determina- deference. it, legal put bo”—or as Johnson “the busi- (let tion, by any unsupported record, ness needs to be over.” On this evidence),14 is convincing alone clear and however, the notion that Michaela would affirmed, every then best interest determi- legal proceedings be harmed future is case, In that nation will be affirmed. arrange- pure speculation. legal Various essentially findings are District Court’s possible just “long-term ments are —not from the every appeal unreviewable care,” referred to in the foster Court’s a mean- parental rights opinion would serve Michaela’s best —that re- judicial and a waste of ingless exercise by keeping interest her in the Legisla- I cannot that the sources. believe grandmother’s guaranteeing her *16 care while it made that result when ture intended Any right to contact her mother.13 part parents’ right appeal integral sure, arrangement would, such to be allow statutory 22 M.R.S.A. scheme. See the mother to come back into court respectfully § I dis- (Supp.2001). point argue some future and sent. given an- changed she has and should be
other chance to care for Michaela. Con-
ceivably might the court then find that the parent
mother is a fit and that would be in Michaela’s best inter-
with her we defined has fallen. When first example, 13. For Michaela could remain in standard Department custody placed while standard "as that which establishes ” paternal 22 M.R.S.A. 'highly probable,’ factual conclusion to cf. 4052(2-A) (Supp.2001) (providing De- & Mental Taylor Mental Health v. Comm'r of petition partment need not if file termination Retardation, (Me.1984), an the child cared it "has chosen relative”); that definition important reason was that grandmother could be meaningful appellate review would ”allow[] custody granted see section findings,” at 153. court's id. lower W., 4036(1)(F) (1992); In re David however, appears that our review practice, (Me.1990) (affirming grant 515-16 cases termination of custody grandparents); see also 19-A indistinguishable cases from that in become 1653(2)(C) (1998) (permitting preponderance of the evidence where the parental rights responsi- court to award meaning provide applicable. To standard person parent if award to bilities to third constitutionally- appellate review of this ful pater- place jeopardy); child or the higher proof, see standard of Santo mandated made Michaela’s nal could be 745, 769, Kramer, 102 S.Ct. sky 455 U.S. v. legal guardian, § 5-204 see 18-A M.R.S.A. (1982), we should be L.Ed.2d 599 (1998). searching review of performing a more extraordinary defer than the Court’s record point opinion low 14. The Court’s shows the court allows. ence to the trial convincing the "clear and evidence” which