MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision:   2016 ME 58
Docket:     Oxf-15-373
Submitted
 On Briefs: January 28, 2016
Decided:    April 14, 2016

Panel:          ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


                                  BENJAMIN L. YAP

                                           v.

                                 ALYSSA L. VINTON

PER CURIAM

         [¶1]    Benjamin L. Yap appeals from a judgment of the District Court

(South Paris, L. Walker, J.) granting Alyssa L. Vinton shared parental rights and

responsibilities of their child. On appeal, Yap contends that the court erred by

adopting Vinton’s proposed order verbatim and not exercising independent

judgment. We agree and vacate the judgment and remand for additional findings

of fact and conclusions of law.

                                     I. BACKGROUND

         [¶2] On August 14, 2014, Yap filed a complaint for protection from abuse

against Vinton on behalf of himself and their child. The complaint stemmed

principally from an incident that had occurred earlier that day, in which Vinton

went to Yap’s apartment, where the child was staying, and angrily banged on the
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front door, shattering the window. A temporary protection order was granted the

same day, awarding Yap temporary sole parental rights and responsibilities. On

August 19, 2014, Yap filed a complaint for a determination of parental rights and

responsibilities.

      [¶3] On August 25, 2014, consistent with an agreement by the parties, the

court issued a protection from abuse order pursuant to 19-A M.R.S. § 4007 (2015).

The order provided shared parental rights and responsibilities, awarded Yap

primary residence of the child, and specified the days and times when Vinton could

have primary responsibility for the child.

      [¶4]    The court issued an amended protection from abuse order on

October 1, 2014, and on November 6, 2014, the court issued a second amended

protection from abuse order, mandating that Vinton undergo a substance abuse

evaluation and drug and alcohol testing. On June 4, 2015, the court held a hearing

on the complaint for a determination of parental rights and responsibilities.

      [¶5]     At the hearing, Yap testified that he and Vinton had dated

intermittently since 2008. After a series of breakups and reunions and moving

between Connecticut and Maine, in or about March 2013 Vinton moved into an

apartment in the same building as Yap in West Paris, Maine. Vinton and Yap

generally shared responsibility for their child, until sometime in late 2013 when

Yap began to suspect that Vinton had developed a drug habit. Yap described how
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Vinton would disappear for days and would often come into his home in the

middle of the night to sleep. In early 2014, Yap found, on multiple occasions,

what he suspected was cocaine among Vinton’s belongings.

      [¶6] With regard to Vinton’s alleged drug habit, two of Vinton’s drug and

alcohol counselors testified at the hearing that, based on Vinton’s self-reported

answers concerning her past alcohol and drug habits, she had no substance abuse

problems. These negative findings were based, at least in part, on Vinton’s report

that she had not used drugs in over ten years. The court also received the guardian

ad litem’s report that noted that Vinton had successfully completed three drug

screens during the pendency of the case, and ultimately recommended shared

parental rights and responsibilities.

      [¶7]    The drug counselors’ opinions and conclusions, however, were

seriously undermined when Vinton testified at the hearing that she had

misrepresented her previous drug use because she was scared to lose her child and

had, in fact, used cocaine between twelve and fifteen months prior to the hearing.

Vinton testified that she does not do drugs “very often,” but that she “like[s] to

party.”

      [¶8] Yap also testified that on April 24, 2014, Vinton had broken into,

robbed, and vandalized his apartment, and, in addition, placed old pictures of the

two in Yap’s living room. Yap contended that Vinton admitted that she broke into
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his apartment, but when Vinton was asked about this incident at the hearing she

asserted her Fifth Amendment rights. Yap also described receiving multiple death

threats from Vinton. Vinton confirmed that she had made death threats but she

denied any actual intent to physically harm either Yap or the child. Yap also

alleged that in August 2014, Vinton broke Yap’s window by banging on the door

after she had “lost [her] temper,” for which Vinton entered a guilty plea to a charge

of criminal mischief. Notwithstanding their turbulent history, Yap stated that he

believed Vinton should have one overnight per week with the child and shared

parental rights and responsibilities. At the conclusion of the hearing, the court took

the matter under advisement without announcing a decision or findings from the

bench. Vinton submitted a proposed order for the court’s consideration.

      [¶9] On June 29, 2015, the court adopted, in its entirety and with the one

change noted below, Vinton’s proposed parental rights order and findings of fact

and conclusions of law, granting her at least three overnight visits with the child

per week and shared parental rights and responsibilities. The only modification the

court made to Vinton’s proposed order and findings was to obscure the word

“PROPOSED” in the title of the order with white-out-style correction tape or fluid

so the remaining visible portion of the text read: DEFENDANT’S ORDER OF

PARENTAL RIGHTS AND RESPONSIBILITIES.                       Yap appealed, arguing,
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inter alia, that the judge failed to exercise independent judgment by adopting the

language of Vinton’s proposed order verbatim.1

                                         II. DISCUSSION

        [¶10] “[A] trial court’s verbatim adoption of findings or orders proposed by

one party in a case is disfavored, as such an approach suggests that the court has

not carefully reviewed the evidence or applied its independent judgment in making

its findings and conclusions.” Estate of Colburn, 2006 ME 125, ¶ 11, 909 A.2d

214 (quotation marks omitted). “[A] key question on review, when draft orders are

adopted without change or with little material change, will be whether the findings

and order reflect the application of judgment by the court and not simply one of the

parties.”     Id. (alteration in original) (quotation marks omitted).                     Id.    “If the

proposed findings are argumentative or insufficiently objective because they are

drafted by a party, a judgment adopting those findings may be defective.” In re

C.P., 2016 ME 18, ¶ 19, --- A.3d ---.

        [¶11] We recently addressed a parent’s contention that a court’s verbatim

adoption of a proposed order did not reflect the court’s independent judgment. In

In re C.P., the court elicited two proposed orders from an assistant attorney


   1
       We note that Yap failed to file a motion for further findings or for reconsideration, which would
have afforded the court an opportunity to address his concerns prior to the filing of an appeal. For future
guidance, we announce that appeals challenging orders based upon an alleged lack of independent
judgment by a judge should be preceded by an appropriate motion that identifies the issue and allows the
trial judge an opportunity to address those concerns prior to appellate review.
6

general—one granting a termination of parental rights petition and another denying

the petition—without affording either parents’ counsel an opportunity to submit

proposals. Id. ¶¶ 9, 11. The court adopted without change the proposed order

terminating the parental rights of both parents, and “[t]he judge who issued the

order left the bench through a planned resignation, effective the next day.” Id. ¶

10. The father subsequently moved for amended or additional findings, and the

court, through a successor judge, granted the motion. Id. ¶¶ 11-12. The successor

judge thoroughly reviewed and carefully analyzed the entire record resulting in

extensive additional findings, and ultimately affirmed the decision to terminate

both parents’ parental rights. Id. ¶¶ 12, 23.

      [¶12] The parents appealed, challenging the initial entry of a proposed order

verbatim as violative of their procedural due process rights. Id. ¶¶ 16-17. We held

that, although the process was not ideal, the order was nonetheless reflective of the

court’s independent judgment for several reasons. Id. ¶ 22. First, the focal point of

the trial was not parental unfitness given that the mother failed to even attend the

trial and the father conceded his unfitness; rather, the primary focus was whether

the children would be placed in a permanency guardianship with the children’s

grandparents, as opposed to being freed for adoption as a result of an order

terminating the parental rights of the children’s parents. Id. ¶¶ 1, 22. Second, we

concluded that “the findings ultimately entered by the court, even if drafted by one
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party, [were] fully supported in the record.” Id. ¶ 22. Finally, any potential

prejudice that could have arisen was minimized by the successor judge’s careful

and thorough review of the record memorialized by extensive, additional findings.

Id. ¶¶ 12, 23.

      [¶13] The factors that led us to conclude that the court in In re C.P. had

exercised its independent judgment, however, are absent from this case. Most

notably, unlike in In re C.P., a number of the court’s findings here resemble a

party’s advocacy and are not clearly supported by evidence in the record. For

instance, in finding #8, the court stated that

      [Yap] testified that in April 2014, [Vinton] “broke into his house.”
      The [c]ourt notes at the time of the alleged “break-in” the parties lived
      in the same building and regularly were in each other’s apartments,
      both with permission and without.            Additionally, the alleged
      “break-in” occurred in the context of their relationship ending.
      Regardless of the [sic] whether this occurred or occurred in the
      manner [Yap] testified, it is unclear whether [the child] was present
      for this incident. In any event, this incident would only be relevant to
      the [c]ourt’s decision if [Vinton] were unavailable for some period of
      time to take care of the child. If the child was in her care at the time
      of the alleged incident, he was asleep just upstairs.

      [¶14] Contrary to the court’s findings, there is no clear evidence in the

record that Yap and Vinton were in and out of each other’s apartments at will; and

even if Vinton was lawfully in Yap’s apartment, that would not justify the alleged

acts of vandalism and robbery that Yap contended occurred. To that end, the court

makes no mention of either accepting or rejecting Yap’s contentions that some of
8

his possessions were missing or broken, nor does it draw any inference from

Vinton’s invocation of her Fifth Amendment rights when she was asked about that

incident at the hearing. Additionally, with regard to the relevance of the incident,

it is unclear how the context of the relationship ending has any bearing on the

incident, and alleged criminal conduct would not “only be relevant” if it resulted in

Vinton’s “unavailab[ility]”—presumably meaning an incarceration.

          [¶15] Another finding that is not adequately supported by the record is

finding #18 which stated, in pertinent part, that “[t]his court agrees with the [GAL]

and [Vinton’s] counselor that [Yap] has used the current contact schedule as a tool

to assert power and control over [Vinton] and her time with [the child].” Although

the GAL testified that Vinton has “been marginalized in her role” as a result of the

protection from abuse order, the GAL did not state that Yap had used the contact

schedule—which Vinton agreed to—as “a tool to assert power and control.” The

court fails to identify, furthermore, how Yap could have been more compromising

in light of the agreed-upon contact schedule outlined in the second amended

protection from abuse order, which provides the following directive: “Warning to

[Vinton]: as long as this order is in effect, you must obey it. No one, including

[Yap], can give you permission to violate the provisions of this order.”2



    2
        The all-uppercase typeface is omitted.
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        [¶16]     A number of the trial court’s findings either resemble a party’s

advocacy or are not clearly supported in the record, and the court’s error in this

respect is compounded by the failure to make any additional, independent findings.

As a result, we cannot conclude that the findings were the result of careful judicial

deliberation and the exercise of independent judgment.

        The entry is:

                           Judgment vacated.       Remanded for additional
                           findings of fact and conclusions of law.



On the briefs:

        Matthew Govan, Esq., Govan Law Office, P.A., Portland, for
        appellant Benjamin L. Yap

        Alyssa L. Vinton did not file a brief



South Paris District Court docket number FM-2014-105
FOR CLERK REFERENCE ONLY
