MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2015 ME 37 Docket: And-14-251 Submitted On Briefs: February 26, 2015 Decided: March 24, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, and JABAR, JJ.
IN RE E.A. et al.
MEAD, J.
[¶1] The mother and father of E.A. and E.A. appeal from a judgment of the
District Court (Lewiston, Beliveau, J.) finding jeopardy and the existence of
aggravating factors pursuant to 22 M.R.S. §§ 4002(1-B)(B)(3), 4002(1-B)(B)(5),
4002(1-B)(A)(1), and 4035 (2014). We conclude that the court did not err when it
found aggravating factors as to the father or admitted in evidence an autopsy report
of the parents’ son. Because the evidence supports the court’s findings, we affirm
the judgment.
I. BACKGROUND
[¶2] The following facts are supported by competent record evidence.
See In re M.E., 2014 ME 98, ¶ 16, 97 A.3d 1082. On October 3, 2013, premature
twins E.A. and E.A. were born at Maine Medical Center in Portland. Six days
later, the Department of Health and Human Services (Department) petitioned for a
child protection order, alleging that the twins were in circumstances of immediate 2
risk of serious harm based on the mother’s infliction of fatal injuries to the parents’
adopted son in February 2003, and the father’s infliction of serious bruising to the
son two days before his death. The court granted the petition. After spending
several weeks in Maine Medical Center’s neonatal intensive care unit, the twins
were discharged into a foster home. In an early December 2013 visit with their
pediatrician, the mother and father declined to give consent for vaccinations for the
twins. In January 2014, the twins received only two of the five recommended
vaccines. On February 25, 2014, the court ordered that the twins be administered
any and all vaccinations recommended by the pediatrician. The twins are currently
healthy.
[¶3] On May 30, 2014, the court concluded that E.A. and E.A. would be in
circumstances of jeopardy to their health and welfare if returned to the custody of
their parents. The court found that the parents have failed to acknowledge
responsibility for the injury and death of their adopted son.
[¶4] The sequence of events that started in 2003, and which loomed large in
the court’s consideration, are as follows: On February 13, 2003, when the son was
less than two years old, the father beat him at least three times with a wooden
spoon on his buttocks, leaving substantial bruises. The next night, the mother
called 9-1-1 because the son had stopped breathing. She told the police that he had
fallen several times during the day and hit his head on the bathtub and the floor. 3
The son died on February 15, 2003, after suffering retinal hemorrhages, optic nerve
sheath hemorrhage, subarachnoid hemorrhage, cerebral edema, hemorrhage in
muscle and soft tissue surrounding the upper cervical vertebrae, and a subdural
hematoma. The Chief Medical Examiner determined that cranio-cervical trauma
was the cause of death, and ruled the son’s death a homicide.
[¶5] The mother was indicted for manslaughter in the son’s death. In her
2005 jury trial, Dr. Lawrence Ricci testified for the State and concluded that the
son’s injuries were not consistent with the mother’s statement of the events.
Dr. Ricci opined that the son’s injuries were consistent with violent shaking and
that the extent of his injuries could not be produced by a fall or a group of minor
falls. The mother was convicted and sentenced to eight years’ imprisonment, with
all but forty-two months suspended. In a separate jury trial, the father was
convicted of assault (Class C) for hitting the son with a wooden spoon and causing
severe bruising. He was sentenced to eighteen months’ imprisonment, with all but
six months suspended. We affirmed both convictions. State v. Allen, 2006 ME 20,
¶ 1, 892 A.2d 447; State v. Allen, 2006 ME 21, ¶ 1, 892 A.2d 456.
[¶6] In its jeopardy order, the court concluded that the father’s inability to
grasp the severity of the violence to which the son had been subjected, based
primarily on the parents’ continued belief that his death was caused by an
undiagnosed seizure disorder brought on by a vaccination, “present[s] a threat of 4
serious harm or serious injury to [the twins].” The court also found that the father
“has not admitted to any wrongdoing” in the spanking that left severe bruising on
the son two days before his death. It determined that the father’s “recent actions,
including refusing to vaccinate his highly susceptible premature infants, show utter
disregard for the health and welfare of [the twins].” The court similarly concluded
that the mother is unable to show remorse for her actions, has not admitted to
wrongdoing, and still maintains that the son died of an undiagnosed medical
condition. After finding aggravating factors as to both the mother and father, the
court relieved the Department of its obligation to provide the parents with
reunification services. It ordered the twins to remain in foster care and established
a permanency plan of adoption. Both parents timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
[¶7] The parents argue that the evidence was insufficient to support the
court’s findings and assert that their failure to take responsibility for the death of
their son does not establish jeopardy. Jeopardy is defined as “serious abuse or
neglect, as evidenced by . . . [s]erious harm or threat of serious harm” or
“[d]eprivation of necessary health care when the deprivation places the child in
danger of serious harm.” 22 M.R.S. § 4002(6)(A) and (B-1) (2014); see
In re M.E., 2014 ME 98, ¶ 17, 97 A.3d 1082. We review a court’s factual findings, 5
which “must be supported by a preponderance of the evidence,” for clear error.
In re M.E., 2014 ME 98, ¶¶ 16-17, 97 A.3d 1082. “[T]hose findings will be upheld
unless there is no competent record evidence that can rationally be understood to
establish as more likely than not that the child was in circumstances of jeopardy to
his health and welfare.” Id. ¶ 16 (quotation marks omitted).
[¶8] We conclude that there is more than sufficient evidence in the record to
support the court’s findings establishing jeopardy as to both parents. Contrary to
the parents’ contentions, the evidence supports the court’s findings that (1) the son
died as a result of inflicted “severe violent shaking,” not an undiagnosed seizure
disorder, and (2) the parents have not acknowledged wrongdoing regarding his
death or the bruising inflicted by the father’s spanking. The mother contests the
sufficiency of the evidence supporting the court’s jeopardy finding by relying on
testimony of defense witnesses at her manslaughter trial and discounting the
State’s witnesses, including Dr. Ricci, who concluded that the injuries “certainly
were consistent with inflicted trauma more than accidental trauma.” Although the
mother admitted to treating the son “roughly” the day of his death, believed that
she should have secured medical attention sooner, and grieved after he died, she
has never admitted that he died as a result of inflicted trauma. Although the father
acknowledges that he hit the son with a wooden spoon and has promised not to use
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2015 ME 37 Docket: And-14-251 Submitted On Briefs: February 26, 2015 Decided: March 24, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, and JABAR, JJ.
IN RE E.A. et al.
MEAD, J.
[¶1] The mother and father of E.A. and E.A. appeal from a judgment of the
District Court (Lewiston, Beliveau, J.) finding jeopardy and the existence of
aggravating factors pursuant to 22 M.R.S. §§ 4002(1-B)(B)(3), 4002(1-B)(B)(5),
4002(1-B)(A)(1), and 4035 (2014). We conclude that the court did not err when it
found aggravating factors as to the father or admitted in evidence an autopsy report
of the parents’ son. Because the evidence supports the court’s findings, we affirm
the judgment.
I. BACKGROUND
[¶2] The following facts are supported by competent record evidence.
See In re M.E., 2014 ME 98, ¶ 16, 97 A.3d 1082. On October 3, 2013, premature
twins E.A. and E.A. were born at Maine Medical Center in Portland. Six days
later, the Department of Health and Human Services (Department) petitioned for a
child protection order, alleging that the twins were in circumstances of immediate 2
risk of serious harm based on the mother’s infliction of fatal injuries to the parents’
adopted son in February 2003, and the father’s infliction of serious bruising to the
son two days before his death. The court granted the petition. After spending
several weeks in Maine Medical Center’s neonatal intensive care unit, the twins
were discharged into a foster home. In an early December 2013 visit with their
pediatrician, the mother and father declined to give consent for vaccinations for the
twins. In January 2014, the twins received only two of the five recommended
vaccines. On February 25, 2014, the court ordered that the twins be administered
any and all vaccinations recommended by the pediatrician. The twins are currently
healthy.
[¶3] On May 30, 2014, the court concluded that E.A. and E.A. would be in
circumstances of jeopardy to their health and welfare if returned to the custody of
their parents. The court found that the parents have failed to acknowledge
responsibility for the injury and death of their adopted son.
[¶4] The sequence of events that started in 2003, and which loomed large in
the court’s consideration, are as follows: On February 13, 2003, when the son was
less than two years old, the father beat him at least three times with a wooden
spoon on his buttocks, leaving substantial bruises. The next night, the mother
called 9-1-1 because the son had stopped breathing. She told the police that he had
fallen several times during the day and hit his head on the bathtub and the floor. 3
The son died on February 15, 2003, after suffering retinal hemorrhages, optic nerve
sheath hemorrhage, subarachnoid hemorrhage, cerebral edema, hemorrhage in
muscle and soft tissue surrounding the upper cervical vertebrae, and a subdural
hematoma. The Chief Medical Examiner determined that cranio-cervical trauma
was the cause of death, and ruled the son’s death a homicide.
[¶5] The mother was indicted for manslaughter in the son’s death. In her
2005 jury trial, Dr. Lawrence Ricci testified for the State and concluded that the
son’s injuries were not consistent with the mother’s statement of the events.
Dr. Ricci opined that the son’s injuries were consistent with violent shaking and
that the extent of his injuries could not be produced by a fall or a group of minor
falls. The mother was convicted and sentenced to eight years’ imprisonment, with
all but forty-two months suspended. In a separate jury trial, the father was
convicted of assault (Class C) for hitting the son with a wooden spoon and causing
severe bruising. He was sentenced to eighteen months’ imprisonment, with all but
six months suspended. We affirmed both convictions. State v. Allen, 2006 ME 20,
¶ 1, 892 A.2d 447; State v. Allen, 2006 ME 21, ¶ 1, 892 A.2d 456.
[¶6] In its jeopardy order, the court concluded that the father’s inability to
grasp the severity of the violence to which the son had been subjected, based
primarily on the parents’ continued belief that his death was caused by an
undiagnosed seizure disorder brought on by a vaccination, “present[s] a threat of 4
serious harm or serious injury to [the twins].” The court also found that the father
“has not admitted to any wrongdoing” in the spanking that left severe bruising on
the son two days before his death. It determined that the father’s “recent actions,
including refusing to vaccinate his highly susceptible premature infants, show utter
disregard for the health and welfare of [the twins].” The court similarly concluded
that the mother is unable to show remorse for her actions, has not admitted to
wrongdoing, and still maintains that the son died of an undiagnosed medical
condition. After finding aggravating factors as to both the mother and father, the
court relieved the Department of its obligation to provide the parents with
reunification services. It ordered the twins to remain in foster care and established
a permanency plan of adoption. Both parents timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
[¶7] The parents argue that the evidence was insufficient to support the
court’s findings and assert that their failure to take responsibility for the death of
their son does not establish jeopardy. Jeopardy is defined as “serious abuse or
neglect, as evidenced by . . . [s]erious harm or threat of serious harm” or
“[d]eprivation of necessary health care when the deprivation places the child in
danger of serious harm.” 22 M.R.S. § 4002(6)(A) and (B-1) (2014); see
In re M.E., 2014 ME 98, ¶ 17, 97 A.3d 1082. We review a court’s factual findings, 5
which “must be supported by a preponderance of the evidence,” for clear error.
In re M.E., 2014 ME 98, ¶¶ 16-17, 97 A.3d 1082. “[T]hose findings will be upheld
unless there is no competent record evidence that can rationally be understood to
establish as more likely than not that the child was in circumstances of jeopardy to
his health and welfare.” Id. ¶ 16 (quotation marks omitted).
[¶8] We conclude that there is more than sufficient evidence in the record to
support the court’s findings establishing jeopardy as to both parents. Contrary to
the parents’ contentions, the evidence supports the court’s findings that (1) the son
died as a result of inflicted “severe violent shaking,” not an undiagnosed seizure
disorder, and (2) the parents have not acknowledged wrongdoing regarding his
death or the bruising inflicted by the father’s spanking. The mother contests the
sufficiency of the evidence supporting the court’s jeopardy finding by relying on
testimony of defense witnesses at her manslaughter trial and discounting the
State’s witnesses, including Dr. Ricci, who concluded that the injuries “certainly
were consistent with inflicted trauma more than accidental trauma.” Although the
mother admitted to treating the son “roughly” the day of his death, believed that
she should have secured medical attention sooner, and grieved after he died, she
has never admitted that he died as a result of inflicted trauma. Although the father
acknowledges that he hit the son with a wooden spoon and has promised not to use
corporal punishment in the future, he also testified that hitting the son “was the 6
wrong thing to do because it didn’t work.” The father maintains that he was
convicted of assault only because the son died and the jury saw a prejudicial photo
of his injuries.
[¶9] The court properly considered the parents’ past conduct and whether
they have sufficiently accepted responsibility for their actions. “In child protection
proceedings, what is past is often prologue regarding the threat of serious harm
posed by the parent . . . .” In re E.L., 2014 ME 87, ¶ 14, 96 A.3d 691. “Evidence
of historical behavior is relevant to a finding of jeopardy . . . . [T]he court must
consider whether there is prospective jeopardy. And in making that
determination, . . . the trial court must consider what has happened in the past.” Id.
(citation and quotation marks omitted); see also In re Kafia M., 1999 ME 195,
¶ 12, 742 A.2d 919 (“While our inquiry as to ability to protect from jeopardy is
prospective, the evidence we consider is retrospective.”). As Dr. Ricci testified,
“the fact that there was a pattern of abusive physical discipline to [the son] . . . is
relevant to future intervention [and] prediction.” The parents continue to
demonstrate a profound lack of insight regarding the cause of their son’s death.
The court did not err given that, notwithstanding unequivocal testimony to the
contrary, both parents maintain that the son’s death was caused by an undiagnosed 7
seizure condition brought on by a reaction to a vaccination that mimicked
shaken-baby syndrome.1
B. Aggravating Factors
[¶10] The court determined that the father’s assault conviction constituted
an aggravating factor pursuant to 22 M.R.S. § 4002(1-B)(B)(5), which provides
that an aggravating factor exists if a parent has been convicted of “[f]elony assault
that results in serious bodily injury” against “a child for whom the parent was
responsible.” The father argues that his conviction pursuant to 17-A M.R.S.
§ 207(1)(B) (2014) was for bodily injury—not “serious bodily injury” as provided
in section 4002(1-B)(B)(5). (Emphasis added.) See 17-A M.R.S. § 207(1)(B)
(“A person is guilty of assault if . . . [he] intentionally, knowingly or recklessly
causes bodily injury to another person who is less than 6 years of age.”). “We
review de novo the court’s interpretation of [a] statute for errors of law, and review
the court’s application of . . . statutory language to the facts at issue for abuse of
discretion.” In re Ashley S., 2000 ME 212, ¶ 11, 762 A.2d 941, overruled on other
grounds by In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d 1118.
1 The parents’ initial refusal to vaccinate the twins further confirms their current lack of insight. The pediatrician testified that vaccinations were particularly important for premature babies and that the parents declined to give consent for the vaccines at the two-month visit. At the jeopardy hearing, the father testified that he believed that a hepatitis B immunization had caused the son “to stop developing and growing.” That the parents ultimately consented to the vaccines does not render the court’s finding clearly erroneous. 8
[¶11] There was no error here. First, in addition to its finding pursuant to
section 4002(1-B)(B)(5), the court also found that the father’s conduct constituted
an aggravating factor pursuant to 22 M.R.S. § 4002 (1-B)(A)(1), which includes
“any . . . treatment that is heinous or abhorrent to society.” The court properly
concluded that bruising a child with a wooden spoon is “treatment that is heinous
or abhorrent to society,” and therefore did not err in finding an aggravating factor
on that basis alone. Further, based on the evidence and photographs presented, the
court did not abuse its discretion in applying section 4002(1-B)(B)(5) to the facts
here and concluding that the father committed an assault resulting in serious bodily
injury to the son.
C. Documents of the Chief Medical Examiner
[¶12] Finally, the mother argues that documents produced during the
criminal investigation into the son’s death—the investigative report, the autopsy,
and the neuropathology report—were hearsay and that admitting them in evidence
violated her substantive due process rights because she was unable to
cross-examine their author. “A trial court’s decision to admit or exclude alleged
hearsay evidence is reviewed for an abuse of discretion,” Walton v. Ireland,
2014 ME 130, ¶ 12, 104 A.3d 883 (quotation marks omitted), but we review
de novo the application of the Confrontation Clause, State v. Johnson,
2014 ME 83, ¶ 8, 95 A.3d 621. 9
[¶13] The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; see also Me. Const. art. I, § 6.
This right does not extend to civil matters, however. See, e.g., Covell v. Dep’t of
Soc. Servs., 791 N.E.2d 877, 893 (Mass. 2003) (“There is no right of confrontation
in civil proceedings.”).
[¶14] “The due process to which a parent in a child custody proceeding is
entitled does not rise to the same level as that accorded the defendant in a criminal
prosecution.” In re Jo-Nell C., 493 A.2d 1053, 1055 (Me. 1985). Child protection
proceedings, although “deserving of more elaborate procedural safeguards than are
required for the determination of lesser civil entitlements” due to the
“constitutional dimension” of the right to parent, id., are nonetheless civil matters.
The Confrontation Clause therefore does not apply in child protection proceedings.
See, e.g., In re Noah W., 813 A.2d 365, 371 (N.H. 2002) (“Because an action to
terminate parental rights is a civil proceeding, the Sixth Amendment confers no
right of confrontation on the respondent.”); In re A.L., 669 A.2d 1168, 1170
(Vt. 1995) (“[P]arents do not have a right to face-to-face confrontation in [child
protection] proceedings.”).2 The court did not abuse its discretion in admitting the
2 See also In re D.B., 947 A.2d 443, 449 n.11 (D.C. 2008); In re L.K.S., 451 N.W.2d 819, 822 (Iowa 1990); In re J.D.C., 159 P.3d 974, 981 (Kan. 2007); In re S.A., 708 N.W.2d 673, 679 & n.8 (S.D. 2005) (citing cases). 10
documents, all of which were accompanied by a certificate of the Chief Medical
Examiner. See 22 M.R.S. § 3022(6) (2014) (“Notwithstanding any other provision
of law or rule of evidence, the certificate of the Chief Medical Examiner . . . shall
be received in any court as prima facie evidence of any fact stated in the certificate
or documents attached to the certificate.”).
The entry is:
Judgment affirmed.
On the briefs:
Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant father
Adam P. Sherman, Esq., Paradie, Sherman, Walker &Worden, Lewiston, for appellant mother
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
Lewiston District Court docket number PC-2013-73 FOR CLERK REFERENCE ONLY