In re Child of Nicholas G.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 13
Docket: Yor-18-309
Submitted
On Briefs: January 17, 2019
Decided: January 24, 2019

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


IN RE CHILD OF NICHOLAS G.1


GORMAN, J.

[¶1] Nicholas G. appeals from a family matter judgment entered in the

District Court (Biddeford, Driscoll, J.) after a judicial review hearing in a child

protection matter. The court dismissed the child protection matter without

prejudice, opened a family matter, and entered an order in that family matter

that conferred sole parental rights and responsibilities for the child on the

child’s mother and denied rights of contact to the father, who had been

convicted of multiple sex crimes against a child and of possession of sexually

explicit materials depicting children. We dismiss the appeal from the child

protection matter and affirm the judgment entered in the family matter.

1 Although this opinion affirms a family matter decision, that decision was issued to resolve a

child protection case involving the child of Nicholas G. See 22 M.R.S. § 4036(1-A) (2017). In order to
continue to protect that child’s privacy, we use the naming convention we have adopted for child
protection cases.
2

I. BACKGROUND

[¶2] The facts are drawn from the procedural record and from the court’s

findings, which are supported by competent evidence in the record. See 22

M.R.S. § 4036(1-A) (2017); Vibert v. Dimoulas, 2017 ME 62, ¶ 15, 159 A.3d 325.

The child was born in May of 2003. The Department of Health and Human

Services petitioned for a child protection order and preliminary protection

order in October of 2003 based on serious domestic violence by the father

against the mother and her sister. The court (Foster, J.) signed an order of

preliminary protection on October 2, 2003, placing the child in the custody of

the Department.

[¶3] The court (Janelle, J.) ordered a trial placement of the child with her

maternal grandparents, and in 2004, the court (Foster, J.) held a hearing and

found that the child was in circumstances of jeopardy with each of her parents.

See 22 M.R.S. § 4035 (2017). In July of 2006, the court entered an agreed-upon

order granting custody to the maternal grandparents and ordering that

parental reunification efforts cease and judicial reviews be held only upon

motion. See 22 M.R.S. § 4038(1-A)(A) (2017).
3

[¶4] A year later, the father moved for judicial review, seeking visitation

rights. In December of 2007, the court (Mulhern, J.) held an evidentiary hearing

and ordered that any visits with the father be supervised.

[¶5] In April of 2012, during a time of inactivity in the child protection

matter, the father was convicted of unlawful sexual contact (Class A),

17-A M.R.S. § 255-A(1)(F-1) (2017), sexual exploitation of a minor under age

twelve (Class A), 17-A M.R.S. § 282(1)(C) (2010),2 visual sexual aggression

against a child (Class C), 17-A M.R.S. § 256(1)(B) (2017), and sixty-five counts

of possession of explicit material of a minor under age twelve (Class C),

17-A M.R.S. § 284(1)(C) (2010).3 The father committed the first three charged

crimes against a four-year-old girl whom he babysat one night.

[¶6] Four years after his convictions, in March of 2016, the father moved

for the appointment of counsel and for judicial review in the child protection

matter. The court (Foster, J.) appointed new counsel and a new guardian ad

litem. Five months later, the father’s counsel moved to withdraw on the

2 This statute was amended after the father committed the crime, though not in any way that

affects this appeal. See P.L. 2015, ch. 394, § 1 (effective July 29, 2016) (codified at 17-A M.R.S.
§ 282(1)(C) (2017)).
3 This statute was amended after the father committed the crimes, though not in any way that

affects this appeal. See P.L. 2011, ch. 50, § 2 (effective April 25, 2011) (codified at 17-A M.R.S.
§ 284(1)(C) (2017)).
4

grounds that the father and counsel could not agree on how to proceed and that

the father had asked that he withdraw. The court granted the motion and

appointed new counsel that September. When the court held a case

management conference in anticipation of judicial review in April of 2017, the

father requested that his recently appointed counsel withdraw and new

counsel be appointed. The court granted the motion, though it “could find no

fault with the representation [counsel] had provided.”

[¶7] A judicial review hearing was scheduled for July 9, 2018. Just before

that hearing, on June 22, 2018, the father’s counsel moved to withdraw on the

grounds that the attorney-client relationship had broken down and that the

father was seeking other counsel. The court (Duddy, J.), noting a pattern of the

father delaying the process through his multiple requests for new counsel,

denied counsel’s motion to withdraw on June 25, 2018.

[¶8] The father, in a pro se pleading, moved to continue the hearing and

to appear by video. As grounds for the motion to appear by video, he asserted

that the county jail to which he would have been transported refused to

dispense necessary medication and make “disability accommodations,” though

he offered no description of what specific medication and accommodations he
5

would lack. The court denied the motion, stating, “See the Court’s order dated

6-25-2018.”

[¶9] Although the court had issued a writ of habeas corpus for the father

to testify at the July 9, 2018, hearing, the father refused to be transported and

was not present for the hearing. The court (Driscoll, J.) held the judicial review

hearing and afforded the father’s counsel the opportunity to cross-examine the

witnesses—the mother, the fifteen-year-old child, and the GAL—and to present

evidence and argument.

[¶10] The court dismissed the child protection matter without prejudice

and opened a family matter in which it entered a parental rights and

responsibilities judgment—consented to by all parties except for the father—

awarding the mother sole parental rights and responsibilities with no rights of

contact for the father. See 22 M.R.S. § 4036(1-A). The court found that the

father had not rebutted the statutory presumption that, due to his convictions,

ordering his contact with the child would create a situation of jeopardy and not

be in the child’s best interest. See 19-A M.R.S. § 1653(6-A)(A)(1), (4), (5),

(6-B)(A) (2017).

[¶11] The father appealed from both judgments. The Department moved

to dismiss his appeal from the decision in the child protection matter on the
6

ground that the statute authorizing appeals in such matters, 22 M.R.S. § 4006

(2017), does not authorize an appeal from an order of dismissal. We ordered

that the motion be considered with the merits of the appeal and required the

parties to “address in their briefs the proper procedure for an appeal from a

parental rights order entered in a child protection case and docketed as the

initiating document in a family matters case, given that the child protection

matter contains the only available record for review on appeal.”4

II. DISCUSSION

[¶12] In this opinion, we (A) consider the Department’s motion to

dismiss; (B) review whether the father, who was found to be indigent, has a

right to court-appointed counsel on appeal; and (C) review the court’s decision

entered in the family matter.

A. Motion to Dismiss Child Protection Matter

[¶13] In a previous “hybrid” situation in which a court issued both a

jeopardy order and an order in a family matter, we held that a notice of appeal

must be filed in each matter for the appeal to proceed. In re Paige L., 2017 ME

97, ¶¶ 8-11, 23, 26, 39, 162 A.3d 217. Here, however, the judgment entered in

4 The Department appropriately and successfully moved to seal the appendix given that the

proceedings leading up to the entry of the family matter judgment were held in a child protection
matter. See 22 M.R.S. § 4036(1-A)(A-1).
7

the child protection matter did not arise from a jeopardy hearing and was not

a judgment terminating parental rights or a medical treatment order—the only

orders from which title 22 authorizes an appeal. See 22 M.R.S. §§ 4006, 4035,

4054, 4071 (2017). The entry of the family matter judgment is authorized by

title 22 but is appealable only pursuant to title 19-A. See 19-A M.R.S. § 104

(2017); see also 22 M.R.S. § 4036(1-A).

[¶14] Thus, although the father challenges the process employed in the

hearing in the title 22 matter, it is not an issue that he can raise in a title 22

appeal. See 22 M.R.S. §§ 4006, 4038 (2017). As we have said, “When a parental

rights and responsibilities order is issued as the disposition after an order that

cannot be appealed, e.g., a judicial review order, the notice of appeal must

identify the parental rights order as the order being appealed and must be filed

in the parental rights and responsibilities action.” In re Paige L., 2017 ME 97,

¶ 26 n.4, 162 A.3d 217 (citation omitted). The appeal from the child protection

matter is, therefore, dismissed. See 22 M.R.S. § 4006.5

5 The record from the title 22 matter is, however, part of the record on appeal from the title 19-A

judgment.
8

B. Right to Counsel on Appeal

[¶15] Given that the child protection appeal has been dismissed, we next

consider whether the Department is correct that an indigent parent does not

retain the right to court-appointed counsel for the appeal from a family matter

judgment entered pursuant to 22 M.R.S. § 4036(1-A). In contrast to In re

Paige L., where we held that counsel for the father “appropriately continued to

represent him in th[e] appeal, because the appeal [was] taken from a title 22

jeopardy order,” 2017 ME 97, ¶ 15, 162 A.3d 217; see 22 M.R.S. § 4005(2)

(2017), there is no right of appeal from the title 22 judicial review order entered

here, see 22 M.R.S. §§ 4006, 4038. Although some provisions of title 22 may

apply, and although the father had the right to counsel for the hearing in the

title 22 matter, see id. § 4005(2), the appeal here is from a title 19-A judgment,

and title 19-A provides no right to counsel. Thus, the right to counsel will attach

only if necessary to ensure due process.

[¶16] An indigent parent has a due process right, now also codified in

section 4005(2), to appointed counsel in a child protection proceeding. In re

T.B., 2013 ME 49, ¶ 14, 65 A.3d 1282; see Danforth v. State Dep’t of Health &

Welfare, 303 A.2d 794, 801 (Me. 1973). The constitutional right attaches in

child protection proceedings because “the full panoply of the traditional
9

weapons of the state are marshalled against the defendant parents.” Danforth,

303 A.2d at 799.

[¶17] In the child protection matter, the father had the right to counsel

up to and including the time of the entry of the child protection judgment. See

22 M.R.S. §4005(2). As we have already discussed, the dismissal of the child

protection case is nonappealable. See id. § 4006. In order to challenge what

resulted from that dismissal, the father may appeal—and has appealed—from

the family matters judgment. See 19-A M.R.S. § 104. The fact that that judgment

was issued pursuant to 22 M.R.S. § 4036(1-A), however, grants him no greater

rights than those granted to any parent who appeals from a family matter

judgment. See Meyer v. Meyer, 414 A.2d 236, 238 (Me. 1980) (holding that,

where “proceedings involve primarily disputes between the parents, due

process does not automatically require appointment of counsel to either party,”

due to the State’s lesser interest in the matter and the modifiability of the

determination). When a party appeals from a family matter judgment entered

as a result of an unappealable judicial review hearing in a child protection

matter, the right to counsel does not extend to the appeal from the family

matter judgment.6

6 For the same reasons, the parent is not entitled to transcripts at state expense. Due to the

confidential nature of all proceedings leading up to the family matter judgment, however, we adhere
10

C. Family Matter Appeal

[¶18] The father challenges the denial of his motion to testify by video

link and the court’s denial of his request for rights of contact with the child.

1. Denial of Motion to Participate by Video Link

[¶19] We review decisions related to the mode of presentation of

evidence for an abuse of discretion, any factual findings for clear error, and

alleged constitutional violations de novo. See Sparks v. Sparks, 2013 ME 41,

¶ 19, 65 A.3d 1223; Malenko v. Handrahan, 2009 ME 96, ¶¶ 33-34, 979 A.2d

1269.

[¶20] “In every trial, the testimony of witnesses shall be taken in open

court, unless a statute, these rules or the Rules of Evidence provide otherwise.”

M.R. Civ. P. 43(a). “The court may, on its own motion or for good cause shown

upon appropriate safeguards, permit presentation of testimony in open court

by contemporaneous transmission from a different location.” Id.

[¶21] The party moving for authorization for contemporaneous

transmission from another location has the burden of establishing good cause.

See id. Therefore, if that party appeals from the denial of the motion, he or she

to the title 22 standards for access and confidentiality in such proceedings. See 22 M.R.S. §§ 4005-D,
4008 (2017) (constraining access to child protection proceedings and records). The Department’s
motion ensured that those safeguards were in place in this appeal.
11

bears the burden on appeal of demonstrating that the record compelled a

finding of good cause. See Malenko, 2009 ME 96, ¶ 34, 979 A.2d 1269. Here,

the father provided only bare assertions that unspecified medical attention and

disability accommodations would not be available at the county jail. On this

record and given the court’s concern that the father habitually filed motions

just before hearing dates, the court was not compelled to find good cause to

allow contemporaneous transmission of the father’s testimony, and it did not

abuse its discretion in determining that, if the father wished to testify or

otherwise participate, he would have to come to the hearing. See M.R. Civ. P.

43(a); see also M.R. Evid. 611(a).7

[¶22] Because the father had notice of the time and nature of the hearing

and the opportunity to appear and be heard, there was no violation of the

father’s right to due process. It was the father’s decision not to avail himself of

the opportunity to appear that kept him from participating. See Haskell v.

Haskell, 2017 ME 91, ¶ 15, 160 A.3d 1176; cf. In re Destiny T., 2009 ME 26, ¶ 15,

965 A.2d 872 (vacating jeopardy finding when the father was not notified that

7 Cf. In re A.M., 2012 ME 118, ¶ 20 n.2, 55 A.3d 463 (“The fact finder must be able to assess the

parent’s demeanor and credibility, the quality of the parent-child relationship and other intangible
factors in determining whether the parent is unfit. Given the complexity of this task and the risk of
error inherent in such a determination, it is difficult to imagine how parental unfitness can
constitutionally be evaluated in the parent’s absence.” (quotation marks omitted)).
12

jeopardy would be considered at the scheduled hearing). Furthermore, the

father’s counsel was present, cross-examined the mother, and had the

opportunity to offer evidence and argument on the father’s behalf.

2. Order of No Rights of Contact

[¶23] We review findings of fact for clear error and the determination of

the best interest of a child for an abuse of discretion. See Boyd v. Manter,

2018 ME 25, ¶ 6, 179 A.3d 906. We “will vacate factual findings that are adverse

to the party with the burden of proof only if the record compels a contrary

conclusion.” Haskell, 2017 ME 91, ¶ 12, 160 A.3d 1176 (quotation marks

omitted). Here, the father had the burden to rebut the presumption that, due

to his crimes against children, his contact with the child would create a situation

of jeopardy and would not be in the child’s best interest. See 19-A M.R.S.

§ 1653(6-B)(A).

[¶24] Contrary to the father’s contention, evidence was offered at trial

indicating that the child is strongly negatively affected when she fears she will

have contact with the father and does not want any contact with him, including

by mail. The record does not compel a finding that the father rebutted the

presumption that allowing him contact with the child would create a situation

of jeopardy and would not be in the child’s best interest. See id.
13

The entry is:

Motion to dismiss the appeal from the judgment
entered in the child protection matter granted.
Judgment entered in the family matter affirmed.



James P. Howaniec, Esq., Lewiston, for appellant father

Janet T. Mills, 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 numbers PC-2003-33 and FM-2018-267
FOR CLERK REFERENCE ONLY