MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 135 Docket: And-17-47 Submitted On Briefs: June 14, 2017 Decided: June 27, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
IN RE KAYLIANNA C.
HJELM, J.
[¶1] The father of Kaylianna C. appeals from a judgment of the District
Court (Lewiston, Dow, J.) terminating his parental rights to Kaylianna
pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2) (2016), and from the
court’s denial of his motion for a new trial or for reconsideration. See M.R.
Civ. P. 59. The father argues that he was deprived of due process because the
court terminated his parental rights even though he was not present at the
final hearing, and, when he later told the court that he had not attended due to
transportation problems, the court failed to provide him with an alternative
opportunity to be heard. Finding no error or abuse of discretion in the court’s
decisions, we affirm.
I. BACKGROUND
[¶2] After a hearing, the court found, by clear and convincing evidence,
that the father was unwilling or unable to protect the child from jeopardy or 2
take responsibility for the child within a time reasonably calculated to meet
her needs, failed to make a good faith effort to reunify with the child, and had
abandoned the child, and that termination of the father’s parental rights was
in the child’s best interest. See 22 M.R.S. § 4055(1)(B)(2); In re Tacoma M.,
2017 ME 85, ¶ 2, --- A.3d ---. The court made its determination based on the
following findings of fact that are supported by competent evidence in the
record. See In re Kayleigh P., 2017 ME 96, ¶ 2, --- A.3d ---.
[¶3] The father, who, as the parties agree, lives in Massachusetts, is
effectively a stranger to the child—his paternity was not established until
after this child protection matter had been commenced, and he has met the
child only a few times in her life. Because the father was largely absent from
the child’s life, he was not in a position to protect her from harm that occurred
while she was in the mother’s custody.1 During the pendency of this matter,
the father failed to meaningfully engage in reunification and did not comply
with the visitation schedule established by the Department of Health and
Human Services. A study completed at the Department’s request pursuant to
1 The record establishes that when the child was approximately two years old and was in the
mother’s care, she was assaulted by the mother’s boyfriend and developed an associated medical condition. 3
the Interstate Compact for the Placement of Children did not recommend
placement with the father. See 22 M.R.S. § 4255 (2016).
[¶4] In April 2016, the father attended a jeopardy hearing and agreed
to the issuance of a jeopardy order based on his failure to protect the child.
Both through out-of-state process and at a pretrial conference held on
September 29, 2016, the father was served with the Department’s petition to
terminate his parental rights.
[¶5] The father was subsequently notified of a three-day termination
hearing, but he was not present when the hearing commenced on December 2,
2016. The father’s attorney was present and did not request a continuance or
otherwise assert that the hearing should not go forward. Without objection
from the father, the court stated that the prior orders issued in this case and
the guardian ad litem’s reports would be part of the record. The Department
presented the testimony only of the Department caseworker, and the father
presented no evidence. After the Department and father rested, the court
announced its decision to terminate the father’s parental rights based on its
findings that the Department had proved all four grounds of parental
unfitness and that termination was in the child’s best interest.2
2 After the court announced its decision as to the father, the Department proceeded to present
evidence against the mother, who was present on the first day of the hearing but did not appear for 4
[¶6] On December 8, 2016, before the court issued its written
judgment, the father filed a motion for a new trial or for reconsideration of the
termination decision that the court had stated orally. See M.R. Civ. P. 59. The
motion stated, “The father has contacted counsel and explained that [he] was
not present because he resides in Massachusetts, and . . . his vehicle was stolen
the night before the hearing.” The motion further stated that but for that
circumstance, the father would have attended the hearing and would have
been “able to offer testimony in his defense.” The motion did not explain why
the father had not notified the court or his attorney on the day of the hearing
that he would not attend; it did not provide any support for the claim that the
car had been stolen; and it did not describe what testimony the father claimed
he would have provided at the hearing. The Department opposed the motion,
and the court summarily denied it on December 15, 2016. The final judgment
terminating the parental rights of both parents was entered on December 27,
and the father timely appealed. See 22 M.R.S. § 4006 (2016);
M.R. App. P. 2(b)(3).
the second day. Based on the evidence presented, the court terminated the mother’s parental rights. She does not appeal. 5
II. DISCUSSION
[¶7] On appeal, the father does not contest the sufficiency of the
evidence supporting the court’s parental unfitness and best interest
determinations. Rather, he argues that the court deprived him of due process
by terminating his parental rights even though he was not present at the
termination hearing, and by failing to grant his motion for a new trial or
provide him with an alternative opportunity to be heard when he notified the
court, six days after the hearing was held, that his absence was due to the
alleged theft of his car.3
[¶8] We review the denial of a motion for a new trial “deferentially
. . . for a clear and manifest abuse of discretion.” Arundel Valley, LLC v. Branch
River Plastics, Inc., 2016 ME 175, ¶ 11, 151 A.3d 938 (citations and quotation
marks omitted); see also In re Mark M., 581 A.2d 807, 808 (Me. 1990). “When
due process is implicated, we review such procedural rulings to determine
whether the process struck a balance between competing concerns that was
3 The father also argues that the court’s summary denial of his Rule 59 motion was insufficient
to inform the parties of the basis for its decision and to allow for meaningful review on appeal. In a termination proceeding, M.R. Civ. P. 52(a) requires the court to “make specific findings of fact and state its conclusions of law thereon as required by 22 M.R.S. § 4055,” which prescribes the grounds for a termination decision. Here, in its oral and written decisions, the court made findings of fact and stated its conclusions of law as required by Rule 52(a). Contrary to the father’s argument, however, his Rule 59 motion did not by itself trigger an obligation for the court to make additional findings of fact or otherwise explain its reasoning in denying the motion. 6
fundamentally fair.” In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463 (quotation
marks omitted).
[¶9] Due process is a “flexible concept that calls for such procedural
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 135 Docket: And-17-47 Submitted On Briefs: June 14, 2017 Decided: June 27, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
IN RE KAYLIANNA C.
HJELM, J.
[¶1] The father of Kaylianna C. appeals from a judgment of the District
Court (Lewiston, Dow, J.) terminating his parental rights to Kaylianna
pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2) (2016), and from the
court’s denial of his motion for a new trial or for reconsideration. See M.R.
Civ. P. 59. The father argues that he was deprived of due process because the
court terminated his parental rights even though he was not present at the
final hearing, and, when he later told the court that he had not attended due to
transportation problems, the court failed to provide him with an alternative
opportunity to be heard. Finding no error or abuse of discretion in the court’s
decisions, we affirm.
I. BACKGROUND
[¶2] After a hearing, the court found, by clear and convincing evidence,
that the father was unwilling or unable to protect the child from jeopardy or 2
take responsibility for the child within a time reasonably calculated to meet
her needs, failed to make a good faith effort to reunify with the child, and had
abandoned the child, and that termination of the father’s parental rights was
in the child’s best interest. See 22 M.R.S. § 4055(1)(B)(2); In re Tacoma M.,
2017 ME 85, ¶ 2, --- A.3d ---. The court made its determination based on the
following findings of fact that are supported by competent evidence in the
record. See In re Kayleigh P., 2017 ME 96, ¶ 2, --- A.3d ---.
[¶3] The father, who, as the parties agree, lives in Massachusetts, is
effectively a stranger to the child—his paternity was not established until
after this child protection matter had been commenced, and he has met the
child only a few times in her life. Because the father was largely absent from
the child’s life, he was not in a position to protect her from harm that occurred
while she was in the mother’s custody.1 During the pendency of this matter,
the father failed to meaningfully engage in reunification and did not comply
with the visitation schedule established by the Department of Health and
Human Services. A study completed at the Department’s request pursuant to
1 The record establishes that when the child was approximately two years old and was in the
mother’s care, she was assaulted by the mother’s boyfriend and developed an associated medical condition. 3
the Interstate Compact for the Placement of Children did not recommend
placement with the father. See 22 M.R.S. § 4255 (2016).
[¶4] In April 2016, the father attended a jeopardy hearing and agreed
to the issuance of a jeopardy order based on his failure to protect the child.
Both through out-of-state process and at a pretrial conference held on
September 29, 2016, the father was served with the Department’s petition to
terminate his parental rights.
[¶5] The father was subsequently notified of a three-day termination
hearing, but he was not present when the hearing commenced on December 2,
2016. The father’s attorney was present and did not request a continuance or
otherwise assert that the hearing should not go forward. Without objection
from the father, the court stated that the prior orders issued in this case and
the guardian ad litem’s reports would be part of the record. The Department
presented the testimony only of the Department caseworker, and the father
presented no evidence. After the Department and father rested, the court
announced its decision to terminate the father’s parental rights based on its
findings that the Department had proved all four grounds of parental
unfitness and that termination was in the child’s best interest.2
2 After the court announced its decision as to the father, the Department proceeded to present
evidence against the mother, who was present on the first day of the hearing but did not appear for 4
[¶6] On December 8, 2016, before the court issued its written
judgment, the father filed a motion for a new trial or for reconsideration of the
termination decision that the court had stated orally. See M.R. Civ. P. 59. The
motion stated, “The father has contacted counsel and explained that [he] was
not present because he resides in Massachusetts, and . . . his vehicle was stolen
the night before the hearing.” The motion further stated that but for that
circumstance, the father would have attended the hearing and would have
been “able to offer testimony in his defense.” The motion did not explain why
the father had not notified the court or his attorney on the day of the hearing
that he would not attend; it did not provide any support for the claim that the
car had been stolen; and it did not describe what testimony the father claimed
he would have provided at the hearing. The Department opposed the motion,
and the court summarily denied it on December 15, 2016. The final judgment
terminating the parental rights of both parents was entered on December 27,
and the father timely appealed. See 22 M.R.S. § 4006 (2016);
M.R. App. P. 2(b)(3).
the second day. Based on the evidence presented, the court terminated the mother’s parental rights. She does not appeal. 5
II. DISCUSSION
[¶7] On appeal, the father does not contest the sufficiency of the
evidence supporting the court’s parental unfitness and best interest
determinations. Rather, he argues that the court deprived him of due process
by terminating his parental rights even though he was not present at the
termination hearing, and by failing to grant his motion for a new trial or
provide him with an alternative opportunity to be heard when he notified the
court, six days after the hearing was held, that his absence was due to the
alleged theft of his car.3
[¶8] We review the denial of a motion for a new trial “deferentially
. . . for a clear and manifest abuse of discretion.” Arundel Valley, LLC v. Branch
River Plastics, Inc., 2016 ME 175, ¶ 11, 151 A.3d 938 (citations and quotation
marks omitted); see also In re Mark M., 581 A.2d 807, 808 (Me. 1990). “When
due process is implicated, we review such procedural rulings to determine
whether the process struck a balance between competing concerns that was
3 The father also argues that the court’s summary denial of his Rule 59 motion was insufficient
to inform the parties of the basis for its decision and to allow for meaningful review on appeal. In a termination proceeding, M.R. Civ. P. 52(a) requires the court to “make specific findings of fact and state its conclusions of law thereon as required by 22 M.R.S. § 4055,” which prescribes the grounds for a termination decision. Here, in its oral and written decisions, the court made findings of fact and stated its conclusions of law as required by Rule 52(a). Contrary to the father’s argument, however, his Rule 59 motion did not by itself trigger an obligation for the court to make additional findings of fact or otherwise explain its reasoning in denying the motion. 6
fundamentally fair.” In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463 (quotation
marks omitted).
[¶9] Due process is a “flexible concept that calls for such procedural
protections as the particular situation demands.” Id. ¶ 15 (quotation marks
omitted) (noting that a due process challenge to a judgment terminating
parental rights must be reviewed pursuant to Mathews v. Eldridge, 424 U.S.
319, 334-35 (1976)). In termination proceedings, where a parent’s
fundamental right to care for his or her child is at stake, “due process
requires: notice of the issues, an opportunity to be heard, the right to
introduce evidence and present witnesses, the right to respond to claims and
evidence, and an impartial factfinder.” In re A.M., 2012 ME 118, ¶ 16,
55 A.3d 463 (quotation marks omitted).
[¶10] “When incarceration is not involved and a parent fails to appear,
courts generally discern no abuse of discretion or violation of due process in
proceeding with the hearing if the parent’s absence was occasioned by
circumstances voluntarily created by that parent.” Id. ¶ 19; see also In re
Adden B., 2016 ME 113, ¶ 8, 144 A.3d 1158 (concluding that a father’s absence
due to illness was not “involuntary” in part because the court questioned the
credibility of his assertion that he was ill). Further, regardless of whether a 7
parent’s failure to appear at a termination hearing is voluntary, a court does
not deprive the absent parent of due process by terminating her parental
rights if that parent fails to make an offer of proof, see M.R. Evid. 103(a)(2),
through a timely post-judgment motion, “indicating what additional relevant
information might be provided to the court by her presence or her testimony.”
In re A.M., 2012 ME 118, ¶¶ 18, 23, 55 A.3d 463; see also In re Randy Scott B.,
511 A.2d 450, 453 (Me. 1986) (rejecting a parent’s due process challenge
when he “failed to show any prejudice caused by his absence from the
[termination] hearing”).
[¶11] That is the case here. The father did not explain in his Rule 59
motion, and does not explain on appeal, how his participation in the trial
would have affected the court’s determinations that he was parentally unfit
and that termination was in the child’s best interest. He did not make an offer
of proof or otherwise provide the court with a description of the information
he would have offered to oppose the termination petition, particularly given
the Department’s evidence that he had played virtually no role in the child’s
life both before and during the pendency of this proceeding and had not made
meaningful efforts to reunify with her.4 See In re A.M., 2012 ME 118, ¶ 25,
4 We further note that as a result of the father’s unexplained failure to contact the court or his
attorney on the day of the hearing when the alleged transportation problem arose, he did not 8
55 A.3d 463 (stating that a parent’s “failure to explain on appeal how her
absence . . . could have affected the trial or its outcome is relevant in
determining on appeal whether she has been deprived of due process”).
[¶12] The court therefore did not abuse its discretion by denying the
father’s motion for a new trial or for reconsideration. See Arundel Valley, LLC,
2016 ME 175, ¶ 11, 151 A.3d 938.
The entry is:
Judgment affirmed.
Richard Charest, 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
Lewiston District Court docket number PC-2015-69 FOR CLERK REFERENCE ONLY
request a continuance or seek to participate by video or telephone. See M.R. Civ. P. 43(a) (stating that “for good cause shown,” a court may “permit presentation of testimony in open court by contemporaneous transmission from a different location”).