In re Kaliyah B.

2017 ME 134, 166 A.3d 117, 2017 WL 2773935, 2017 Me. LEXIS 140

• Court: Supreme Judicial Court of Maine
• Decided: June 27, 2017
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 134 Docket: Pen-17-53 Submitted On Briefs: June 14, 2017 Decided: June 27, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

IN RE KALIYAH B.

PER CURIAM

[¶1] The mother of Kaliyah B. appeals from an order of the District

Court (Bangor, Jordan, J.) finding jeopardy as to both her and the father

pursuant to 22 M.R.S. § 4035(4-A) (2016), and ordering that the child be

placed in the custody of the Department of Health and Human Services

pursuant to 22 M.R.S. § 4036(1)(F) (2016).1 Because (1) a dispositional order

of custody is not appealable,2 (2) the mother does not challenge the finding of

jeopardy as to her, and (3) the evidence supports the court’s finding of

jeopardy as to the father, we affirm the judgment.

1 The father has not appealed.

2 To the extent the mother challenges the dispositional order placing the child in Department

custody rather than in the father’s custody, such a challenge is interlocutory and not properly before us. See 22 M.R.S. §§ 4006, 4036 (2016). As we have recently reiterated, “the disposition ordered by a court after it makes [a jeopardy] finding is not appealable.” In re Z.S., 2015 ME 110, ¶ 8, 121 A.3d 1286 (alteration in original) (quotation marks omitted). Accordingly, we do not address that aspect of the mother’s appeal. For the purposes of this appeal, we assume without deciding that one parent has standing to challenge a jeopardy determination as to another parent. 2

[¶2] The court found, by a preponderance of the evidence, that as to

both the mother and the father, the child was in circumstances of jeopardy to

her health and welfare. See 22 M.R.S. § 4035(2); In re Dorothy V., 2001 ME 97,

¶¶ 11-12, 774 A.2d 1118. The court based this determination on the

following factual findings, which are supported by competent evidence in the

record.

[¶3] The mother suffers from substance abuse and mental health

issues, has not participated in visitation with the child or attended services,

used heroin regularly while pregnant with the child, and remained addicted to

heroin as of the jeopardy hearing. The father has a history of domestic

violence and “has been neglectful and has failed to protect [the child].”

[¶4] In October 2016, when the father had custody of the child, the

mother called the father upset about her heroin addiction, her lack of support

from family members, and her desire to see the child. At this time, the child

was a young, vulnerable infant, dependent on her caregiver. The father took

the child to live with the mother for several days. Although the father knew,

having been informed by the Department, that the child was not to be left

alone with the mother unsupervised, on October 8, 2016, he left the child

alone with the mother while he traveled to New York City. Upon learning of 3

the arrangement, the Department undertook a search for the child, which

lasted several hours before the child was located. During the search effort, the

father spoke with the Department over the phone and lied repeatedly about

his and the child’s whereabouts.

[¶5] The court concluded that by leaving the child alone with the

heroin-addicted mother and lying to those charged with protecting the child,

the father exhibited a “serious failure in judgment” that created a

circumstance of jeopardy. Because the court’s finding that the child was more

likely than not in circumstances of jeopardy in her father’s care is supported

by competent record evidence, we affirm the judgment. See In re E.A.,

2015 ME 37, ¶ 7, 114 A.3d 207.

The entry is:

Judgment affirmed.

Randy G. Day, Esq., Garland, 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

Bangor District Court docket number PC-2016-75 FOR CLERK REFERENCE ONLY