In Re Adrian D.

2004 ME 144, 861 A.2d 1286, 2004 Me. LEXIS 174

• Court: Supreme Judicial Court of Maine
• Decided: November 30, 2004
• Status: Published

Opinions

LEVY, J.

[¶ 1] The mother of Adrian D. and Diamond D. appeals from judgments of the District Court (Bangor, Gunther, J.) concluding that two of her children were in jeopardy to their health and welfare, and placing one of them in the custody of the Department of Human Services.¹ The mother contends that DHS did not present sufficient evidence to support the court’s jeopardy findings. We disagree and affirm the judgments.

I. BACKGROUND

[¶ 2] In September of 2003, DHS petitioned for a child protection order on behalf of Adrian, Benjamin, and Diamond D.² DHS did not seek a preliminary protection order, and the children remained in their mother’s custody pending a jeopardy hearing. After the hearing, the court found Adrian, age nine, and Diamond, age one, in jeopardy. The court found that the mother placed Adrian in jeopardy because of the following circumstances:

(1) Chronic failure to follow up on medical issues. (2) Failure to address serious behavioral problems or to try to assess cause. (3) Inadequate supervision to [and] after school. (4) Puts too much responsibility on Adrian [and] doesn’t respond when he fails to achieve goals (school attendance/performance/loose awareness of after school).

With regard to Diamond, the court found that jeopardy resulted from:

(1) [The mother’s c]hronic failure to cooperate w[ith] medical providers in care of this [and] other children. (2) Needs a co-parent but refuses father’s involvement. Prevented access. (3) Failure to adequately supervise older child, demonstrates need for active assistance so this is not repeated w[ith] Diamond. (4) Refused [guardian ad litem] access [to the child].

[¶ 3] Based on its jeopardy findings, the court ordered that Adrian be placed in DHS custody, and that Diamond remain in her mother’s custody subject to weekly visitation rights allocated to Diamond’s father and DHS’s supervision. The court also ordered specified evaluations as a precursor to developing a rehabilitation and reunification plan. This appeal followed.

II. DISCUSSION

[¶ 4] The mother asserts that the court erred because its jeopardy findings were not supported by the evidence. We review the factual findings in a jeopardy order for clear error. In re Thomas B., 1998 ME 236, ¶2, 719 A.2d 529, 530. A final protection order may issue if the court finds, by a preponderance of the evidence, that “the child is in circumstances of jeopardy to the child’s health or welfare.” 22 M.R.S.A. § 4035(2) (2004).³

[¶ 5] Contrary to the mother’s assertions, the trial record paints a picture of Adrian as a young child who has been chronically neglected. Dr. Thomas Walters, a family practice physician, testified that Adrian is “morbidly obese” and at risk “of developing further health problems down the road.” Based on this diagnosis, a physician had previously referred Adrian to a specialist, with whom the mother failed to schedule an appointment or otherwise follow up.

[¶ 6] In addition to obesity, Adrian suffers from hearing loss, a condition that was first identified by an auditory screening performed at Adrian’s elementary school. This was not a transient problem; Adrian failed “several” auditory screening tests. The mother subsequently brought Adrian to see a doctor when he was suffering from an ear infection, and the doctor noted that Adrian failed to respond to questions the doctor asked because of his deficient hearing. Adrian was referred for follow-up care, and his mother failed to keep any of the subsequent medical appointments that were scheduled to address his hearing loss. At least four important follow-up appointments were missed.

[¶ 7] Dr. Walters testified that although the mother had brought Adrian to see a doctor when there was an “urgent medical concern,” she had failed to bring Adrian to appointments to “follow-up on important medical issues for this child, things that could affect his hearing over a long period of time, his ability to perform well in school, and his long-term medical health care.”

[¶ 8] Adrian was also discovered to have had sexual contact with a four-year-old child. Adrian admitted to the incident, but blamed it on the four-year-old. Upon the request of a police officer and a DHS child protective caseworker, the mother agreed to bring Adrian to a counselor following the sexual contact incident. Once again, the mother failed to follow up. In addition, Adrian had engaged in inappropriate conduct at school by looking at other children in bathroom stalls.

[¶ 9] The principal of Adrian’s elementary school testified that Adrian was habitually tardy in getting to school and had missed “a good chunk of [the] morning language arts block.” A plan was developed to address the issue with the mother’s cooperation. By the time of the jeopardy hearing, Adrian’s chronic tardiness had resumed.⁴ Adrian’s school principal also testified that Adrian was “likely failing or close to failing a lot of his subjects.” One can fairly infer that Adrian is at great risk for academic failure.

[¶ 10] Shortly after the filing of the jeopardy petition, Adrian was struck by a speeding truck while playing with another child on a busy street after dark. He was not seriously injured. A DHS caseworker testified that she then attempted to assist the mother in developing a safety plan whereby the mother would walk Adrian to the other child’s house, and the child’s parents would walk Adrian back home if it was after dark. According to the caseworker, the mother did not feel that a safety plan was necessary “because she did not feel that this was anything to do with Adrian [because] it was ... entirely the driver’s fault.”

[¶ 11] Jeopardy may consist of “serious abuse or neglect, as evidenced by ... threat of serious harm” and the “[deprivation of adequate ... supervision or care, including health care when that deprivation causes a threat of serious harm.” 22 M.R.S.A. § 4002(6)(A), (B). The record establishes that the court did not commit clear error in its findings regarding the mother’s chronic neglect of Adrian’s health care needs and her failure to supervise him properly. The guardian ad litem’s closing statement to the court elucidates the risk to Adrian if his mother continues to neglect his needs:

The concern that I have about Adrian is that he’s only nine years old. He’s almost ten. He is on a really, really bad path physically, emotionally, academically. He’s way too young to be having the constellation of problems that he’s having. I think he’s having these problems because nobody’s paying attention to what’s going on with him. The problem with just a services order, I think, is that there have been services in place before, ... and it apparently hasn’t taken, and it apparently hasn’t worked. My concern about Adrian is that, given the way that he is going now, if something isn’t done to turn him around now, he’s gonna be real hard to turn around when he gets to be twelve or thirteen. And I think, at that point, we’ve almost lost him, and then he’s really hard to turn around. I think something has to be done now, and I think the only way that it’s going to happen is if he’s not there. There’s been time for her to arrange these services and to be attentive to these issues. She hasn’t done it, and I don’t think there’s any reason to think that she’s going to any time soon.

[¶ 12] With regard to Diamond, the trial judge had the opportunity to observe the mother in court, and did not err in concluding that the mother’s neglect of Adrian also established a risk of serious harm to Diamond. A court may rely on a parent’s behavior with respect to one child in assessing whether another child in the parent’s care also faces jeopardy. See In re Danielle S., 2004 ME 19, ¶ 4, 844 A.2d 1148, 1149-50; In re David W., Jr., 568 A.2d 513, 515 (Me.1990). In addition, a custodial parent’s unreasonable refusal to permit a child to have contact with the other parent and with the court-appointed guardian ad litem should be considered by a court when determining whether the custodial parent is able to care for the child properly and to protect the child from jeopardy. Accordingly, the court properly considered Adrian’s circumstances as well as the mother’s refusal to permit contact between Diamond and her father, and between Diamond and the guardian ad litem, in determining whether Diamond was in jeopardy.

[¶ 13] The mother’s challenge to the trial court’s findings relies heavily on her own testimony and her own view of the import of other witnesses’ testimony. In this vein, she argues that (1) Adrian’s obesity is not serious because she was obese as a child and Adrian is tall for his age;⁵ (2) she failed to follow up regarding Adrian’s obesity because she “never received the proper referral”; (3) even if Adrian is experiencing hearing loss there was “no testimony that any hearing loss affected Adrian in any way”; (4) she responded appropriately to the concerns voiced by school officials; (5) the sexual contact incident was not Adrian’s fault because Adrian “was encouraged by the four-year-old to touch his genitals and to allow the four-year-old to touch Adrian’s genitals”; and (6) the truck accident was the responsibility of the truck’s driver.

[¶ 14] The court acted well within the bounds of its fact-finding role in rejecting the mother’s explanation of the relevant events. Although the mother offers an assessment of the evidence that is dramatically different from the trial court’s, it is the trial court that is charged with weighing the evidence and making sense of the maelstrom presented by a body of conflicting testimony that is less than precise. This is why we “review the trial court’s findings of fact for clear error and will uphold the findings ‘unless there is no evidence to support them,’ ” Hartwell v. Stanley, 2002 ME 29, ¶ 10, 790 A.2d 607, 611 (quoting Charlton v. Town of Oxford, 2001 ME 104, ¶ 28, 774 A.2d 366, 375), and interpret the factual findings “in the light most favorable to the trial court’s judgment,” Alexander, Maine Appellate Practice § 405(c) at 179 (2004).

[¶ 15] The District Court’s findings were supported by a preponderance of the evidence and, accordingly, its judgments must be affirmed.

The entry is:

Judgments affirmed.

DANA, J., files a dissenting opinion in which ALEXANDER and CALKINS, JJ., join.

1 . In 2004, the Legislature established the Department of Health and Human Services, which has subsumed the Department of Human Services and the Department of Behavioral and Developmental Services. P.L. 2004, ch. 689 (effective July 1, 2004).

2 . Benjamin is not a part of this appeal because the District Court entered judgment as a matter of law in the mother’s favor regarding him.

3 . The statute defines “jeopardy” as

serious abuse or neglect, as evidenced by:

A. Serious harm or threat of serious harm;

B. Deprivation of adequate food, clothing, shelter, supervision or care, including health care when that deprivation causes a threat of serious harm;

C. Abandonment of the child or absence of any person responsible for the child, which creates a threat of serious harm; or

D. The end of voluntary placement, when the imminent return of the child to his custodian causes a threat of serious harm.

22 M.R.S.A. § 4002(6) (2004). All the conditions of jeopardy are predicated on the threat of "serious harm,” which the statute goes on to define as:

A. Serious injury;

B. Serious mental or emotional injury or impairment which now or in the future is likely to be evidenced by serious mental, behavioral or personality disorder, including severe anxiety, depression or withdrawal, untoward aggressive behavior, seriously delayed development or similar serious dysfunctional behavior; or

C. Sexual abuse or exploitation. 22 M.R.S.A. § 4002(10) (2004).

4 . A DHS child and family assessment caseworker testified that the mother stated that she gets Adrian off to school every day on time, and that it is not her problem if he does not get to school on time.

5 . The mother testified that Adrian is five feet tall. The guardian ad litem testified that Adrian is a tall boy, but that he did not think that Adrian was five feet tall. The court did not make a finding regarding Adrian's height, nor was there a request for findings following the issuance of the court’s judgments.