MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision:    2016 ME 113
Docket:      And-15-586
Submitted
  On Briefs: May 26, 2016
Decided:     July 19, 2016

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



                                 IN RE ADDEN B.



HUMPHREY, J.

         [¶1] The father of Adden B. appeals from a judgment of the District Court

(Lewiston, Oram, J.) terminating his parental rights as to his son pursuant to

22 M.R.S. § 4055(1)(A), (B)(2)(b)(i)-(ii) (2015). The father contends that the

court violated the Due Process Clauses of the United States and Maine

Constitutions by conducting the termination hearing in his absence. See U.S.

Const. amend. XIV, § 1; Me. Const. art. I, § 6-A. Because we conclude that the

father was afforded sufficient process by the District Court, we affirm.

                                I. BACKGROUND

         [¶2] Gary and Roseanne B. are the biological parents of Adden B., who

entered foster care on September 27, 2014, one day after his birth, because the

Department of Health and Human Services had received a report that both parents

had significant mental health issues, that there was domestic violence in the

relationship, and that the mother reported that she did not want the child. The
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Department’s petition for a preliminary protection order was granted.                 In

January 2015, after a hearing, the court (L. Walker, J.) made a finding of jeopardy

as to the father based on domestic violence, “unmanaged mental health and/or

anger management problems which cause[d] impulsive, angry, sometimes violent

behaviors,” and his status as a sexual offender based on a 2005 conviction for

indecent assault and battery on a child younger than fourteen for which he had

never been treated. The court ordered the father to participate in mental health

counseling, a psychosexual evaluation, sexual offender treatment, a certified

Batterers’ Intervention Program, and parenting education classes.

        [¶3] In April 2015, the Department filed a petition to terminate the father’s

parental rights, alleging, inter alia, that he had not taken any steps toward

rehabilitation and reunification as outlined in his reunification plan, including that

he refused to undergo sexual offender or mental health treatment. The court

(Oram, J.) held a hearing on the petition on Wednesday, September 30, 2015.

        [¶4] At the commencement of the termination hearing, the father told the

court

        I’ve been puking all morning, and I’ve had a fever, hot and cold
        flashes, coughing . . . I’m not doing well while I’m down here in the
        rain just because I knew I had to be here. But I can’t keep making
        trips back and forth in the rain with – as sick as I am. . . . I’ve already
        hit the bathroom like four times and ended up puking up my breakfast
        this morning. And I’m just – I’m not doing good.
                                                                                    3

      ....

      With as sick as I am, I can barely concentrate. I mean, I can barely
      stay awake out there. . . . I can barely think, I can barely process. . . .
      And I want to be able to be at 100 percent if I’m going to be fighting
      for my son.

The court responded,

      If you feel that you are so acutely ill that you cannot wait and that you
      need immediate medical attention I certainly don’t wish to keep you
      from getting that immediate medical attention.

      ...

      [I]t’s your choice to make; and I’m not going to tell you not to go get
      medical care that you think you need. What I am going to do is this, if
      you feel you need to leave and not come back . . . we’ll let the
      Department put on the evidence that they would put on . . . and I’d
      give you a week to get me a doctor’s note that says, on medical advice
      you were unable to participate in court today.

      ....

      And if I get that from you . . . then we’ll reschedule this hearing and
      start over.

With a promise that he would deliver a note the following Monday, and after

further colloquy with the court regarding what the court would require to grant a de

novo hearing, the father left the courthouse. The court noted on the record that the

father “did not appear or sound unwell.” His attorney remained for the proceeding

and cross-examined both of the Department’s witnesses, but he did not present any
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witnesses on behalf of the father. The father never filed a doctor’s note and no

re-hearing was scheduled.

      [¶5] In an order dated October 23, 2015, the court terminated the father’s

parental rights. See 22 M.R.S. § 4055 (2015). The court stated that, because the

father failed to remain in court or participate in the hearing and failed to file a note

from a medical provider indicating that he sought treatment that morning, it drew

“a negative conclusion” from his absence. It found that the father had not had any

contact with the child since September 2014, and that he refused to engage in

services or meet with the Department until August 2015. The court also found that

the father had not begun any evaluations or treatment to alleviate jeopardy, and

“jeopardy remain[ed] unresolved.”

      [¶6] Based on the father’s “complete refusal to acknowledge jeopardy or

take any of the steps the court ordered him to take,” the court concluded that he

was unwilling or unable to protect the child from jeopardy and unwilling or unable

to take responsibility for him within a time reasonably calculated to meet the

child’s needs. As to the best interest analysis, the court found that the father’s

“unwillingness and inability to accept responsibility for his actions, and his

unwillingness to engage in any reunification services for a period of more than six

months all present[ed] an obstacle to permanency by placement with him.” The

father timely appealed.
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                                 II. DISCUSSION

      [¶7] The father contends that the court violated his right to due process by

conducting the termination hearing in his absence when he left the courthouse due

to an “acute illness.” We review de novo whether an individual was afforded

procedural due process. State v. Jones, 2012 ME 126, ¶ 35, 55 A.3d 432. See also

In re Robert S., 2009 ME 18, ¶ 12, 966 A.2d 894.

            When due process is implicated, we review such procedural
      rulings to determine whether the process struck a balance between
      competing concerns that was fundamentally fair. The fundamental
      requirement of due process is the opportunity to be heard at a
      meaningful time and in a meaningful manner. It is a flexible concept
      that calls for such procedural protections as the particular situation
      demands.

In re M.P., 2015 ME 138, ¶ 30, 126 A.3d 718 (quotation marks omitted) (citations

omitted). As applied to a termination hearing, “balancing the interests, where

significant rights are 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).

      [¶8] The father contends that his absence was “involuntary” due to his

illness. “When incarceration is not involved and a parent fails to appear, courts

generally discern no . . . violation of due process in proceeding with the hearing if

the parent’s absence was occasioned by circumstances voluntarily created by that
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parent.” Id. ¶ 19. We conclude that the father’s departure from the courthouse was

voluntary. First, although suffering from an illness itself is not a voluntary act, the

father has cited no authority supporting the proposition that removing himself from

the courtroom due to alleged cold or flu symptoms and not returning was an

“involuntary” action.     Second, the court questioned the father’s credibility

regarding his alleged illness, stating, “[i]t was not entirely apparent to me just from

observing [the father’s] demeanor and tone of voice and his appearance that he was

unwell. Sometimes when people are unwell you can—the color of their skin, the

tone of their voice, the way their face looks—we can often look at people and say

they look unwell.” Finally, the court provided the father the opportunity to have a

de novo hearing if he verified his health condition by providing medical

documentation within a week’s time. The father’s failure to avail himself of this

opportunity cannot be said to be involuntary.

      [¶9] Applying the due process requirements set forth in In re A.M. to the

facts of the case here, the father had notice of the issues because he was served

with a copy of the petition for termination of his parental rights. See id. ¶ 16. He

had an opportunity, but declined to be heard either by staying at the courthouse and

participating in the hearing or by submitting a doctor’s note and being granted a de

novo hearing, see id., and he also had the opportunity, at the hearing that was held,

to examine witnesses and respond to claims and evidence through his attorney,
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who represented his interests during the hearing. See id. Lastly, there is no

contention that the fact-finder was not impartial. See id.

      [¶10]    The father also made no effort to seek relief through other

post-judgment action such as filing a motion to leave the record open if he needed

more time to get a medical note, see M.R. Civ. P. 7(b), filing a motion for new

trial, see M.R. Civ. P. 59, or filing a motion for relief from judgment, see M.R.

Civ. P. 60(b)(6); In re A.M., 2012 ME 118, ¶ 23, 55 A.3d 463. Finally, he does not

argue that his participation at the hearing would have affected the outcome of the

case. See In re A.M., 2012 ME 118, ¶¶ 24-25, 55 A.3d 463 (stating, “[t]he

mother’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”). For these reasons, we conclude that the court did not

violate the father’s due process rights when it conducted the termination hearing in

his absence.

      The entry is:

                      Judgment affirmed.
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On the briefs:

        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-2014-71
FOR CLERK REFERENCE ONLY
