In re Child of Nicholas G.

2021 ME 48, 259 A.3d 783

• Court: Supreme Judicial Court of Maine
• Decided: September 28, 2021
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2021 ME 48 Docket: And-21-100 Argued: September 8, 2021 Decided: September 28, 2021

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

IN RE CHILD OF NICHOLAS G.

JABAR, J.

[¶1] For the reasons discussed below, we dismiss as interlocutory the

father’s appeal from a judicial review order that required him to return his child

to Maine. See 22 M.R.S. § 4038(6) (2021).

[¶2] This child protection action began in March 2020, when the District

Court (Lewiston, Oram, J.) granted the Department of Health and Human

Services’ (the Department) request for a preliminary protection order that gave

custody of the child—who had been living with her mother—to her father. In

June 2020, the court issued a jeopardy order finding jeopardy as to the mother

but not as to the father. That order, to which the father agreed, required both

parents to take certain steps toward reunification, including steps that required

the child to be present in Maine. Approximately three weeks after that order

was issued, the father filed a request that the court issue a parental rights and

responsibilities order pursuant to 22 M.R.S. § 4036(1-A) (2021). In his request, 3

the father asserted that he “anticipated that [the Department] will move to

dismiss” the pending child protection action after that order was issued. The

parties were unable to agree that such an order should issue and, after a

conference held on August 26, 2020, the court ordered that the case be

scheduled for a contested hearing. The following day, the mother filed a motion

for an expedited interim hearing. In that motion, she asserted that the father

had told her—after the previous day’s conference—that he had “an imminent

plan to move with the child to Florida.” She asked the court to schedule an

expedited hearing on the issue of the proposed relocation of the child.

[¶3] Five months later, on January 25, 2021, the court held a hearing both

to address the father’s request for a parental rights and responsibilities order

and to perform a judicial review regarding the child’s relocation. The father

failed to appear at that hearing and, therefore, the court did not consider his

request for an order allocating parental rights and responsibilities. At the

hearing, the court heard testimony demonstrating that the child remained in

circumstances of jeopardy as to the mother and that, as a result, the child could

not be returned to her. The court also heard testimony that the father had

moved to Florida with the child and that, although there were some concerns,

the child was safe in his care. 4

[¶4] At the conclusion of the hearing, the mother, the guardian ad litem,

and the Department all asked the court to order that the child be returned to

Maine. In the judicial review order it issued on March 5, 2021, the court found

that there was no jeopardy as to the father and ordered that the child remain in

his custody “subject to conditions outlined elsewhere in this order.” Among

those conditions was the following:

Within 21 days of the end of the 2020-2021 school year [the father] shall return to the State of Maine with [the child] and shall notify the Department and the Guardian ad Litem of his address upon return.

[¶5] The father appealed this order. See 22 M.R.S. §§ 4006, 4038(6)

(2021). Appeals from judicial review orders are interlocutory and not

authorized under the statute. 22 M.R.S. § 4006 (“Orders entered under this

chapter under sections other than 4035, 4054 or 4071 are interlocutory and

are not appealable.”). Despite the father’s requests, we do not have the

authority to apply judge-made exceptions to this statutory provision, “absent

any constitutional infirmity in [that] statute.”1 In re L.R., 2014 ME 95, ¶ 9, 97

1 In In re L.R., we reaffirmed that

“[t]he appellate jurisdiction of the Law Court and its power to review cases[] are entirely and exclusively those plainly conferred by statute. The right of appeal is not a constitutional one; nor does it arise under the common law; it is purely statutory. The Legislature, in granting a right to appeal in certain cases, may restrict, limit or 5

A.3d 602. The father does not challenge the constitutionality of section 4006 in

his appeal; he challenges only the constitutionality of the order.2 An appeal of

an interlocutory order on these grounds is not permitted.

The entry is:

Appeal dismissed.

Nathaniel Seth Levy, Esq. (orally), Portland, for appellant father

Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Lewiston District Court docket number PC-2020-27 FOR CLERK REFERENCE ONLY

otherwise condition its availability as it sees fit.” . . . We cannot substitute our judgment for that of the Legislature.

2014 ME 95, ¶ 9, 97 A.3d 602 (quoting In re Dustin C., 2008 ME 89, ¶ 6, 952 A.2d 993 (alterations in original)). 2 Moreover, contrary to the father’s argument, the order in question requires the father to return the child to Maine; it does not require him to establish his residence in Maine.