MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	139	
Docket:	      Yor-18-100	
Submitted	
  On	Briefs:	 September	26,	2018	
Decided:	     October	4,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                    IN	RE	CHILD	OF	ANGELA	H.	
	
	
PER	CURIAM	

         [¶1]	 	 Angela	 H.	 appeals	 from	 an	 order	 entered	 by	 the	 District	 Court	

(Springvale,	Foster,	J.)	finding	that	her	minor	child	is	in	jeopardy	pursuant	to	

22	M.R.S.	§	4035	(2017).		The	mother	challenges	the	sufficiency	of	the	evidence	

supporting	 the	 court’s	 finding,	 by	 a	 preponderance	 of	 the	 evidence,	 that	 the	

child	is	in	jeopardy.		We	affirm	the	judgment.	

         [¶2]	 	 The	 Department	 of	 Health	 and	 Human	 Services	 filed	 a	 child	

protection	petition	against	the	mother	as	to	this	child	in	September	of	2017,1	

alleging	 that	 the	 mother	 neglected	 the	 child’s	 medical	 needs	 and	 failed	 to	

adequately	 supervise	 the	 child.	 	 After	 a	 two-day	 testimonial	 hearing,	 by	 a	

decision	entered	on	February	21,	2018,	the	court	found	the	following	facts	by	a	



    1	 	 The	 mother	has	 other	 children	 who	 are	 not	 at	 issue	 in	 this	 appeal.	 	 The	 Department	 also	
instituted	 child	 protection	 proceedings	 against	 the	 father,	 but	 the	 father	 agreed	 to	 a	 finding	 of	
jeopardy	and	is	not	a	party	to	this	appeal.			
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preponderance	 of	 the	 evidence,	 each	 of	 which	 is	 supported	 by	 competent	

evidence	in	the	record.		See	22	M.R.S.	§	4035(2).			

      [¶3]	 	 In	 2011,	 concerns	 were	 raised	 with	 the	 Department	 regarding	

whether	 this	 child	 was	 receiving	 appropriate	 medical	 care	 for	 his	 Type	 1	

diabetes,	 with	 which	 he	 was	 diagnosed	 as	 a	 young	 child.	 	 The	 mother,	 with	

whom	the	child	primarily	resides,	received	services	designed	to	promote	the	

child’s	regular	attendance	at	medical	appointments	and	monitor	the	necessary	

testing	of	the	child’s	blood.		After	the	child	was	hospitalized	twice	for	diabetic	

ketoacidosis,	 the	 Department	 again	 worked	 with	 the	 mother	 regarding	 the	

child’s	 medical	 needs.	 	 The	 mother	 reported	 then	 that	 she	 was	 “unwilling	 to	

monitor	her	son’s	testing	as	he	needed	to	learn	how	to	care	for	his	own	medical	

needs	in	regard	to	his	chronic	condition.”		The	child	was	eight	years	old	at	the	

time.		The	child’s	medical	providers	again	referred	the	family	to	the	Department	

in	2016	when	the	child	failed	to	attend	scheduled	medical	appointments.			

      [¶4]		In	April	of	2017,	the	child	was	expelled	from	school	for	possession	

of	 marijuana	 on	 school	 grounds.	 	 The	 school	 listed	 the	 tasks	 the	 child	 was	

required	 to	 complete	 before	 he	 could	 be	 readmitted	 to	 school,	 including	

counseling,	community	service,	and	certain	homework	assignments.		The	child	
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did	not	do	so	before	the	end	of	the	school	year	and	was	not	readmitted	until	

October	of	2017.			

      [¶5]	 	 Meanwhile,	 as	 a	 consequence	 of	 his	 expulsion,	 the	 child’s	 regular	

visits	with	the	school	nurse	to	monitor	his	blood	sugar	were	discontinued.		The	

child	also	missed	multiple	medical	appointments	between	June	and	August	of	

2017,	 notwithstanding	 the	 efforts	 of	 his	 medical	 providers	 to	 engage	 the	

mother	 in	 addressing	 the	 child’s	 needs.	 	 In	 September,	 the	 child	 was	 again	

hospitalized	for	diabetic	ketoacidosis.		The	mother	complained	that	she	would	

have	to	be	near	her	son	on	a	constant	basis	to	monitor	the	child’s	health,	stated	

that	 she	 hoped	 that	 being	 hospitalized	 would	 motivate	 the	 child	 to	 better	

manage	his	condition,	and	expressed	anger	at	being	expected	to	take	the	child	

to	 the	 hospital	 after	 her	 long	 work	 day.	 	 On	 multiple	 days	 in	 November	 and	

December	of	2017,	the	child	left	school	early	and,	on	one	occasion,	had	to	be	

taken	to	the	hospital,	because	his	blood	sugar	numbers	were	outside	the	norm.		

Although	 the	 mother	 has	 opined	 that	 the	 child’s	 difficulties	 in	 managing	 his	

diabetes	are	related	to	a	mental	health	issue,	she	has	not	followed	through	on	

multiple	opportunities	to	obtain	counseling	for	him.			

      [¶6]		The	court	found,	

      The	 Guardian	 [ad	 litem]	 concluded	 that	 the	 parents’	 inability	 to	
      communicate	and	reach	agreement	on	how	to	manage	their	son’s	
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     diagnosis	 and	 respond	 to	 medical	 emergencies	 has	 resulted	 in	
     inconsistent	 care	 and	 unsustainable	 plans	 that	 have	 placed	 [the	
     child]	at	risk	of	physical	harm.		Throughout	this	case,	[the	mother]	
     rejected	responsibility	for	any	of	the	difficulties	in	her	life	and	often	
     provided	explanations	for	events	that	portrayed	her	as	the	victim	
     of	others.			
     	
     	       .	.	.	.	
     	
     	       As	the	Guardian	points	out,	both	of	[the	child’s]	parents	are	
     able	to	articulate	what	needs	to	be	done	to	properly	manage	their	
     son’s	diabetes	as	well	as	the	dangers	posed	by	a	failure	to	do	so.		At	
     trial,	[the	mother]	gave	a	thorough	and	cogent	description	of	what	
     daily	testing	and	monitoring	entails.		Even	when	she	was	without	
     insurance,	she	has	apparently	ensured	that	[the	child]	still	has	the	
     supplies,	 medicine,	 even	 snacks	 he	 requires	 for	 his	 condition.		
     Despite	that,	[the	mother]	has	been	unwilling	or	unable	to	support	
     her	 son	 in	 a	 manner	 that	 ensures	 the	 condition	 is	 appropriately	
     addressed.	 	 At	 the	 heart	 of	 this	 issue	 is	 [the	 mother’s]	 long-held	
     conviction	 that	 her	 son	 should	 be	 able	 to	 manage	 his	 condition	
     independent	of	any	oversight	by	her	or	[the	father].			
     	
     	       At	 the	 [family	 team	 meeting]	 on	 September	 21,	 2017	 [the	
     mother]	reiterated	her	conviction	that	[the	child]	was	old	enough	
     to	take	care	of	himself.		Even	as	she	maintained	that,	[the	child]	was	
     in	the	hospital	for	the	fourth	time	for	diabetic	ketoacidosis.	.	.	.		In	
     her	testimony,	[the	mother]	pointed	out	that	her	son	was	only	three	
     years	short	of	being	an	adult.		She	acknowledged	that	he	has	not	
     always	 been	 truthful	 about	 when	 and	 what	 he	 has	 eaten,	 critical	
     information	 when	 assessing	 his	 condition.	 	 Yet	 she	 had	 no	
     contingency	plan	to	address	that	reality.			
     	
     	       .	.	.	.	
     	
             [The	mother]	seems	to	have	abdicated	responsibility	for	her	
     son	on	a	number	of	fronts.		Although	she	insisted	it	had	been	very	
     important	 to	 her	 that	 [the	 child]	 be	 readmitted	 to	 school,	 her	
     explanations	 for	 the	 delay	 were	 nebulous,	 unconvincing,	 and	 in	
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        some	instances	unreliable.		The	Court	agrees	with	the	Guardian’s	
        assessment	that	no	action	was	undertaken	on	[the	child’s]	school	
        re-entry	 plan	 until	 he	 and	 the	 Department’s	 caseworker	 became	
        involved	.	.	.	.			
              	
              .	.	.	.	
	
        	        [The	mother]	pledged	to	follow	the	current	safety	plan,	even	
        if	 the	 Department	 is	 not	 involved	 with	 her	 family.	 	 Her	 history	
        suggests	otherwise.		This	is	a	critical	time	for	[the	child].		Failure	to	
        support	and	supervise	him	as	he	struggles	to	gain	mastery	over	his	
        diabetes	 could	 be	 fatal.	 	 The	 family	 history	 documents	 a	 chronic	
        inability	to	follow	through	on	essential	components	of	[the	child’s]	
        life.	 	 While	 there	 have	 been	 observable	 improvements	 in	 [the	
        child’s]	health	and	ability	to	 manage	his	own	care,	there	is	every	
        reason	 to	 believe	 those	 would	 fade	 away	 without	 mandatory	
        oversight	from	the	Department	and	the	court.			
	
(Footnote	omitted.)		Based	on	these	findings,	the	court	determined,	

             Jeopardy	 in	 this	 matter	 consists	 of	 the	 risk	 of	 physical	 and	
      emotional	 harm	 arising	 from	 the	 parent’s	 unwillingness	 and/or	
      inability	 to	 ensure	 appropriate	 support	 and	 supervision	 for	 [the	
      child’s]	medical	care,	education,	and	mental	health	treatment.		[The	
      mother]	has	repeatedly	failed	to	ensure	[the	child’s]	medical	needs	
      are	 met	 and	 failed	 to	 take	 expeditious	 action	 to	 ensure	 he	 was	
      re-enrolled	in	school.			
      	
The	 court	 ordered	 that	 the	 child	 remain	 in	 the	 mother’s	 custody	 subject	 to	

certain	 conditions.2	 	 See	 22	 M.R.S.	 §§	 4002(6),	 4035(2),	 (3),	 4036(1)(A)-(C)	


    2		Those	conditions	included	that	the	child	shall	primarily	reside	with	the	mother,	the	mother	must	

allow	the	Department	caseworker	and	the	guardian	ad	litem	access	to	the	child,	the	mother	must	
comply	 with	 the	 Department’s	 requirements	 for	 visitation	 and	 contact,	 and	 the	 mother	 must	 sign	
releases	to	allow	the	Department	access	to	the	child’s	records.		See	22	M.R.S.	§	4036(1)(A)-(C)	(2017)	
(allowing	 the	 court,	 in	 fashioning	 a	 protection	 order,	 to	 order	 “[n]o	 change	 in	 custody”;	
“[d]epartmental	supervision	of	the	child	and	family	in	the	child’s	home”;	and	“[t]hat	the	child,	the	
custodians,	 the	 parents	 and	 other	 appropriate	 family	 members	 accept	 treatment	 or	 services	 to	
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(2017).	 	 The	 mother	 timely	 appeals	 the	 court’s	 finding	 of	 jeopardy.	 	 See	 22	

M.R.S.	§	4006	(2017);	M.R.	App.	P.	2B(c)(1).			

	      [¶7]		The	mother	contends	that	there	is	insufficient	evidence	to	support	

a	 finding	 of	 jeopardy	 because	 she	 has	 alleviated	 all	 of	 the	 Department’s	

concerns	 and	because	there	is	 no	 evidence	that	she	presents	jeopardy	to	the	

child	on	a	prospective	basis.		We	review	the	court’s	findings	for	clear	error,	and	

we	will	uphold	the	jeopardy	determination	if	there	is	any	competent	evidence	

in	the	record	to	support	it.		See	In	re	Nicholas	S.,	2016	ME	82,	¶	9,	140	A.3d	1226.	

       [¶8]	 	 We	 agree	 with	 the	 mother	 that	 “the	 question	 before	 the	 court	 is	

necessarily	whether	there	is	prospective	jeopardy,”	but	we	note	that	“[e]vidence	

of	past	jeopardy	is	relevant	to	the	future,	and	in	the	case	of	a	custodial	parent	it	

is	highly	 probative.”	 	In	re	Tabitha	R.,	2003	 ME	76,	 ¶	7,	 827	A.2d	830.		Here,	

there	is	competent	evidence	to	support	the	court’s	finding	that	the	jeopardy	the	

mother	presents	to	the	child	is	prospective	and	not	just	historical;	there	was	

evidence	that	the	poor	management	of	the	child’s	medical	condition	has	been	a	

chronic	problem	for	at	least	seven	years,	the	mother	is	unlikely	to	adhere	to	the	




ameliorate	the	circumstances	related	to	the	jeopardy,”	among	other	authorized	dispositions);	see	also	
In	re	Alivia	B.,	2010	ME	112,	¶	10,	8	A.3d	625	(“The	statutory	scheme	[of	section	4036]	authorizes	the	
court	to	permit	a	child	to	remain	in	a	parent’s	custody	even	after	a	finding	of	jeopardy	while	that	
parent	engages	in	reunification	and	related	services.”	(citation	omitted)).			
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safety	 plan	 necessary	 to	 prevent	 future	 problems	 with	 his	 diabetes	 without	

Department	oversight,	and	the	mother	continues	to	expect	the	child	to	manage	

his	diabetes	without	adequate	supervision	or	assistance.		Because	the	court’s	

findings	are	supported	by	competent	record	evidence,	we	do	 not	disturb	the	

court’s	 determination	 that	 the	 child	 is	 in	 circumstances	 of	 jeopardy.	 	 See	

22	M.R.S.	§§	4002(6),	4035;	In	re	Nicholas	S.,	2016	ME	82,	¶	9,	140	A.3d	1226.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	      	     	      	
	
Stephen	 H.	 Shea,	 Esq.,	 Fairfield	 &	 Associates,	 P.A.,	 Portland,	 for	 appellant	
mother	
	
Janet	T.	Mills,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	
of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Springvale	District	Court	docket	number	PC-2017-31	
FOR	CLERK	REFERENCE	ONLY	
