MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	       2017	ME	97	
Docket:	         Ken-16-423	
Submitted		
					On	Briefs:	 February	23,	2017	  	     	      	      	     	    	
Decided:	        May	18,	2017	
	                	                                                                          	
Panel:	          ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                     IN	RE	PAIGE	L.	
	
	
ALEXANDER,	J.	

       [¶1]		The	Legislature	enacted	22	M.R.S.	§	4036(1-A)	(2016)	authorizing	

a	 court	 that	 has	 made	 a	 finding	 of	 jeopardy	 in	 a	 title	 22	 child	 protection	

proceeding	 to	 “enter	 an	 order	 awarding	 parental	 rights	 and	 responsibilities”	

pursuant	to	19-A	M.R.S.	§	1653	(2016),	“if	the	court	determines	that	the	order	

will	protect	the	child	from	jeopardy	and	is	in	the	child’s	best	interest.”		A	title	

19-A	 parental	 rights	 and	 responsibilities	 order	 can	 provide	 more	 permanent	

protection	for	a	child	when,	as	in	this	case,	at	least	one	parent	is	fit	to	care	for	

the	child.	

       [¶2]	 	 Section	 4036(1-A)(A)	 provides	 that	 when,	 “upon	 request	 of	 a	

parent,”	a	court	presiding	over	a	child	protection	proceeding	determines	that	

entry	of	a	parental	rights	and	responsibilities	order	is	appropriate,	the	court	

“shall	direct	the	clerk	to	open	a	family	matters	case	on	behalf	of	the	parties	.	.	.	

without	a	separate	initial	filing	by	the	parties.”		The	trial	court	in	this	case	did	
2	

not	 direct	 the	 opening	 of	 a	 family	 matters	 case,	 instead	 it	 amended	 the	

parental	rights	and	responsibilities	order	that	had	been	issued	in	the	parties’	

divorce	judgment	three	years	earlier	and	that	was	in	effect	at	the	time	of	the	

jeopardy	 hearing.	 	 In	 this	 appeal,	 we	 address	 the	 application	 of	 section	

4036(1-A)	to	preexisting	parental	rights	orders.	

      [¶3]	 	 The	 father	 of	 Paige	 L.	 appeals	 from	 a	 judgment	 entered	 in	 the	

District	Court	(Augusta,	E.	Walker,	J.)	after	a	jeopardy	hearing	was	conducted	

pursuant	 to	 22	 M.R.S.	 §	 4035	 (2016).	 	 The	 court’s	 initial	 jeopardy	 judgment	

dismissed	 the	 child	 protection	 action	 and	 awarded	 sole	 parental	 rights	 over	

the	 child	 to	 the	 mother	 by	 amending	 a	 preexisting	 parental	 rights	 and	

responsibilities	 order	 pursuant	 to	 section	 4036(1-A).	 	 See	 22	 M.R.S.	

§	4036(1-A)(D-1)(1).	 	 Then,	 in	 response	 to	 a	 motion	 for	 findings	 of	 fact	 and	

conclusions	of	law	filed	by	the	father,	the	court	made	a	specific	finding	that	the	

father	created	circumstances	of	jeopardy	for	his	child.		The	father	also	appeals	

from	the	court’s	order	on	his	motion	for	findings	of	fact	and	conclusions	of	law	

and	the	denial	of	his	motion	to	alter	or	amend	the	amended	judgment.	

      [¶4]		The	father	argues	that	the	court	erred	by	(i)	improperly	admitting	

child	 hearsay	 testimony	 and	 evidence	 of	 prior	 incidents	 of	 abuse	 at	 the	

jeopardy	hearing,	(ii)	failing	to	clearly	explain	what	would	constitute	a	future	
                                                                                      3	

substantial	 change	 of	 circumstances	 in	 the	 initial	 amended	 order,	 and	

(iii)	denying	his	motion	to	amend	the	amended	judgment	in	the	family	matter.		

Because	 competent	 evidence	 in	 the	 record	 supports	 the	 court’s	 finding	 of	

jeopardy,	and	because	the	court	did	not	abuse	its	discretion	by	amending	the	

preexisting	 parental	 rights	 and	 responsibilities	 order	 pursuant	 to	 section	

4036(1-A),	we	affirm.	

                             I.		PROCEDURAL	HISTORY	

      [¶5]		The	mother	and	father	were	married	in	2009,	and	Paige	was	born	

in	January	2010.		The	father	initiated	a	divorce	action	in	September	2012,	and	

the	 parties	 were	 divorced	 by	 a	 judgment	 (Chandler,	 M.)	 dated	 April	4,	2013.		

Pursuant	to	the	divorce	judgment,	the	parties	were	awarded	shared	parental	

rights	 and	 responsibilities,	 the	 mother	 was	 awarded	 primary	 physical	

residence	 of	 the	 child,	 and	 the	 father	 was	 awarded	 contact	 every	 weekend	

“and	other	times	by	agreement	of	the	parties.”		In	July	2013,	by	agreement	of	

the	parties,	the	court	(Fowle,	J.)	granted	the	mother	a	final	order	for	protection	

from	abuse	against	the	father.		Although	the	protection	from	abuse	order	was	

also	 issued	 on	 behalf	 of	 Paige,	 the	 only	 substantive	 change	 it	 made	 to	 the	

contact	schedule	was	to	name	a	third	party	who	was	to	“facilitate”	transfers	of	

the	child.	
4	

      [¶6]		On	October	8,	2015,	the	Department	of	Health	and	Human	Services	

(the	Department)	 filed	 a	 child	 protection	 petition	 and	 a	 request	 for	 a	

preliminary	 protection	 order.	 	 See	 22	 M.R.S.	 §§	 4032,	 4034	 (2016).	 	 The	

Department’s	petition	alleged	that	the	child	was	in	jeopardy	in	the	care	of	her	

father	 based	 on	 the	 father’s	 extensive	 history	 of	 child	 abuse	 and	 recent	

reports	 to	 law	 enforcement	 that	 the	 father’s	 current	 wife,	 a	 convicted	 sex	

offender	 and	 a	 direct	 caregiver	 for	 Paige,	 had	 sexually	 abused	 her	 minor	

children.		The	petition	also	asserted	that	Paige	was	not	in	jeopardy	in	the	care	

of	 her	 mother	 and	 stated,	 “The	 Department	 is	 asking	 that	 the	 court	 provide	

protection	 for	 Paige	 [L.]	 by	 granting	 [the	 mother]	 full	 custody	 of	 Paige	 to	

ensure	that	she	can	fully	protect	her	daughter	from	threats	of	immediate	harm	

by	[the	father]	and	[his	wife].”	

      [¶7]	 	 The	court	 (Mullen,	J.)	 issued	 a	 preliminary	 protection	 order	 that	

day,	 awarding	 custody	 of	 the	 child	 to	 the	 mother.	 	 That	 order	 also	 provided	

that	 the	 father	 could	 have	 no	 unsupervised	 contact	 with	 Paige.	 	 The	 father	

waived	his	right	to	have	a	summary	preliminary	hearing,	and,	as	a	result,	that	

order	remained	in	place	for	the	next	four	months.		See	22	M.R.S.	§	4034(4).	

      [¶8]		The	court	(E.	Walker,	J.)	conducted	a	two-day	jeopardy	hearing	in	

February	2016.		At	the	beginning	of	the	hearing,	the	Department	presented	a	
                                                                                                              5	

proposed	 order	 of	 “nonjeopardy”	 as	 to	 the	 mother,	 which	 the	 court	 issued	

without	 objection.	 	 The	 court	 also	 noted	 on	 the	 record	 that—if	 it	 found	

jeopardy	 concerning	 the	 father—it	 could	 modify	 the	 parties’	 preexisting	

parental	rights	and	responsibilities	order.1	

        [¶9]		The	evidence	at	the	jeopardy	hearing	consisted	of	testimony	from	

several	 witnesses	 including	 the	 mother,	 the	 father,	 a	 detective	 from	 the	

Augusta	 Police	 Department,	 the	 guardian	 ad	 litem,	 and	 five	 social	 workers,	

and	 exhibits	 including	 a	 child’s	 drawing	 of	 a	 wooden	 paddle,	 the	 temporary	

and	 final	 protection	 from	 abuse	 orders	 against	 the	 father,	 a	 doctor’s	 report,	

the	father’s	military	discharge	paperwork,	and	a	reunification	plan.	

        [¶10]	 	 On	 April	 8,	 2016,	 the	 court	 issued	 a	 “dispositional”	 order	 in	 the	

child	protection	proceeding,	and,	as	authorized	by	section	4036(1-A),	attached	

an	amended	parental	rights	and	responsibilities	order	modifying	the	parental	

rights	 and	 responsibilities	 order	 issued	 in	 the	 divorce	 judgment.	 	 The	

dispositional	order	was	docketed	in	the	child	protection	matter.		In	that	order,	

the	 court	 stated	 only	 that	 the	 “[c]hild	 is	 doing	 well	 in	 mother’s	 care	 and	 all	

parties	 agree	 that	 the	 child	 is	 not	 in	 Jeopardy	 in	 mother’s	 care.”	 	 The	 order	


   1		By	referencing	its	capacity	to	modify	the	parental	rights	and	responsibilities	order,	the	court	

provided	 the	 required	 notice	 “that	 the	 child	 protective	 case	 may	 be	 disposed	 of	 through	 an	 order	
awarding	 parental	 rights	 and	 responsibilities.”	 	 22	 M.R.S.	 §	 4036(1-A)	 (2016).	 	 The	 sufficiency	 of	
that	notice	is	not	an	issue	in	this	appeal.	
6	

contained	 no	 finding	 of	 jeopardy	 as	 to	 the	 father.	 	 Through	 the	 dispositional	

order,	the	court	also	purported	to	dismiss	the	child	protection	action	pursuant	

to	22	M.R.S.	§	4036(1-A)(D-1)(1).	

          [¶11]		The	amended	parental	rights	and	responsibilities	order,	docketed	

in	 the	 preexisting	 family	 matter,	 awarded	 sole	 parental	 rights	 and	

responsibilities	 to	 the	 mother	 and	 supervised	 contact	 to	 the	 father	 pursuant	

to	 19-A	 M.R.S.	 §	1653.	 	 The	 amended	 order	 stated	 that	 “[i]t	 shall	 be	 a	

significant	 change	 of	 circumstances	 if	 the	 father	 addresses	 the	 issues	 that	

resulted	 in	 this	 Order.”	 	 Otherwise,	 the	 amended	 order	 did	 not	 contain	 any	

findings	 of	 fact	 but	 noted	 that	 it	 “was	 entered	 as	 part	 of	 a	 disposition	 in	 a	

related	matter”	after	notice	and	hearing.2	

          [¶12]	 	 The	 father	 timely	 filed	 a	 motion	 for	 findings	 of	 fact	 and	

conclusions	 of	 law	 and	 a	 motion	 to	 alter	 or	 amend	 the	 judgment.		

See	M.R.	Civ.	P.	52(a)-(b),	59.		The	captions	for	the	father’s	motions	identified	

the	docket	number	in	the	child	protection	matter.		In	his	motion	for	findings,	

the	 father	 argued	 that	 the	 court	 had	 made	 no	 findings—oral	 or	 written—

regarding	 the	 father,	 how	 the	 disposition	 would	 protect	 the	 child	 from	

     2		 Title	 22	 M.R.S.	 §	 4036(1-A)(A-1)	 specifically	 directs	 that	 the	 parental	 rights	 and	
responsibilities	order	“may	not	include	reference	to	or	discussion	of	the	child	protective	case.”		This	
is	 because	 child	 protective	 cases	 are	 confidential	 by	 statute.	 	 Id.	 	 Because	 of	 the	 confidentiality	
mandate,	this	opinion	will	not	address	information	beyond	that	which	is	usually	stated	in	opinions	
resolving	appeals	from	child	protection	matters.	
                                                                                                    7	

jeopardy,	 or	 how	 the	 disposition	 was	 in	 the	 child’s	 best	 interest.	 	 The	 father	

further	argued	that	the	amended	order	was	ambiguous	regarding	what	would	

constitute	a	future	substantial	change	of	circumstances.	

       [¶13]		The	court	granted	the	father’s	motion	for	further	findings	of	fact	

and	 conclusions	 of	 law,	 but	 denied	 his	 motion	 to	 alter	 or	 amend	 the	

judgment.3	 	 The	 court	 issued	 four	 pages	 of	 factual	 findings	 and	 found	 “by	 a	

preponderance	 of	 the	 evidence	 that	 [the	 child]	 would	 be	 in	 jeopardy	 to	 her	

health	 and	 welfare	 if	 she	 were	 returned	 to	 the	 custody	 of	 her	 father.”	 	 The	

court	 further	 found	 that	 the	 child	 is	 not	 in	 jeopardy	 when	 she	 is	 in	 her	

mother’s	care.		In	addition,	the	court	concluded	that	awarding	the	mother	sole	

parental	 rights	 and	 responsibilities	 and	 primary	 residence,	 and	 limiting	 the	

father	to	supervised	contact	based	on	the	overall	threat	posed	to	the	child	by	

the	father,	was	in	the	child’s	best	interest.		The	court	also	advised:	

       Father	 asks	 this	 court	 for	 guidance	 in	 addressing	 his	 issues	 that	
       resulted	 in	 this	 order	 so	 that	 he	 may	 know	 what	 the	 court	 will	
       view	 as	 a	 “significant	 change	 of	 circumstances”	 for	 future	
       purposes.	 	 This	 is	 a	 reasonable	 request	 and	 the	 court	 probably	
       should	have	been	more	specific	about	this	issue	in	its	order.		This	
       court	 would	 consider	 it	 a	 significant	 change	 of	 circumstances	 if	


   3		The	Department’s	brief	correctly	points	out	a	misstatement	of	law	in	the	court’s	post-judgment	

order:	the	court	stated	that	it	should	have	conducted	a	family	matters	hearing	instead	of	a	jeopardy	
hearing	 because	 the	 Department	 was	 not	 seeking	 a	 finding	 of	 jeopardy	 against	 the	 mother.		
However,	the	jeopardy	hearing	and	the	court’s	action	after	the	jeopardy	hearing	were	appropriate	
because	the	father	was	properly	served	notice	pursuant	to	22	M.R.S.	§	4035(2)(C)	(2016).		See,	e.g.,	
In	re	Alivia	B.,	2010	ME	112,	¶	2,	8	A.3d	625.	
8	

      Father	were	to	attend	a	certified	batterer’s	intervention	program	
      and	 complete	 at	 least	 26	 of	 the	 48	 weeks	 of	 that	 program.		
      Additionally,	Father	needs	to	attend	and	complete	an	assessment	
      with	 a	 licensed	 psychiatrist	 and	 abide	 by	 any	 of	 his	 or	 her	
      recommendations	for	at	least	6	months	or	for	a	shorter	period	if	
      the	psychiatrist	feels	that	that	length	of	treatment	is	not	needed.		
      Father	 must	 take	 any	 and	 all	 medications	 prescribed	 by	 the	
      psychiatrist	 if	 there	 is	 such	 a	 recommendation.	 	 Lastly,	 Father	
      must	take	and	complete	a	parenting	class	so	that	he	can	come	to	
      appreciate	 the	 negative	 effects	 his	 behaviors	 have	 had	 on	 Paige	
      and	appreciate	what	help	she	will	need	in	the	future	to	overcome	
      this	trauma.	
      	
	     [¶14]	 	 The	 father	 timely	 filed	 a	 notice	 of	 appeal	 in	 the	 child	 protection	

matter,	 22	 M.R.S.	 §	 4006	 (2016),	 but	 did	 not	 file	 a	 notice	 of	 appeal	 in	 the	

family	matter,	19-A	M.R.S.	§	1652(5)	(2016).		When	the	child	protection	action	

is	 dismissed	 pursuant	 to	 22	 M.R.S.	 §	 4036(1-A)(D-1)(1),	 as	 occurred	 in	 this	

case,	 22	 M.R.S.	 §	 4036(1-A)(F)	 directs	 that	 “the	 court	 shall	 terminate	 the	

appointments	 of	 the	 guardian	 ad	 litem	 and	 attorneys	 for	 parents	 and	

guardians.		After	the	appointments	are	terminated,	the	attorneys	and	guardian	

ad	litem	have	no	further	responsibilities	to	their	clients	or	the	court.”	

      [¶15]		Despite	 that	 language,	 counsel	 for	 the	 father	 has	 appropriately	

continued	to	represent	him	in	this	appeal,	because	the	appeal	is	taken	from	a	

title	22	jeopardy	order.		We	will	address	below	the	complications	created	for	

counsel	 assigned	 to	 represent	 parents	 in	 child	 protection	 cases	 when	 those	
                                                                                        9	

cases	convert	to	parental	rights	and	responsibilities	cases,	where	there	is	no	

statutory	right	to	assignment	of	counsel.	

                            II.		FINDINGS	BY	THE	COURT	

	     [¶16]	 	 Responding	 to	 the	 father’s	 motion	 for	 findings,	 the	 court	 found	

the	following	facts,	by	a	preponderance	of	evidence,	which	are	supported	by	

competent	 record	 evidence.	 	 See	 22	 M.R.S.	 §	 4035(2);	 In	 re	 Nicholas	 S.,	

2016	ME	82,	¶	9,	140	A.3d	1226.	

	     [¶17]	 	 The	 father	 was	 verbally	 and	 physically	 abusive	 to	 the	 mother	

during	the	marriage,	including	punching	or	hitting	the	mother	on	at	least	ten	

different	 occasions.	 	 The	 father	 threatened	 to	 have	 the	 mother	 followed,	 to	

have	 her	 tires	 slashed,	 to	 hurt	 her	 if	 she	 called	 the	 police,	 to	 make	 false	

allegations	to	the	Department	to	have	the	child	taken	away	from	the	mother,	

and	 to	 kill	 her.	 	 Some	 of	 the	 episodes	 of	 domestic	 violence	 occurred	 in	 the	

presence	of	the	child.	

	     [¶18]	 	 After	 the	 parties	 divorced,	 the	 father	 disciplined	 the	

then-three-year-old	 child	 and	 other	 children	 living	 with	 him	 with	 a	 wooden	

paddle.		The	father	justified	paddling	the	children	by	referencing	his	religious	

beliefs.	 	 He	 disposed	 of	 the	 wooden	 paddle	 while	 a	 police	 investigation	 was	
10	

pending.	 	 The	 father	 has	 made	 derogatory	 comments	 to	 the	 child	 such	 as	

calling	her	“fat,”	“loser,”	and	“bad.”	

	      [¶19]		In	August	2014,	the	father	married	a	registered	sex	offender.		The	

father	 stated	 that	 he	 admired	 his	 new	 wife’s	 honesty	 in	 disclosing	 her	

conviction	 and	 did	 not	 consider	 whether	 she	 might	 pose	 a	 danger	 to	 Paige	

because	 his	 wife’s	 victim	 was	 a	 male	 child.	 	 Recently,	 the	 father’s	 new	 wife’s	

minor	children	from	a	prior	relationship	have	witnessed	the	father	physically	

assaulting	their	mother,	and	they	are	afraid	of	the	father.		Paige	has	stated	that	

she	 does	 not	 want	 to	 visit	 her	 father	 and	 became	 upset	 to	 the	 point	 of	

hyperventilating	at	the	prospect	of	a	visit.	

	      [¶20]		The	father	has	a	lengthy	criminal	record	including	convictions	for	

assault	 in	 2010	 and	 2011,	 violation	 of	 a	 protective	 order	 in	 2010,	 and	

domestic	violence	assault	and	violation	of	conditions	of	release	in	2012.		The	

father	claims	that	he	has	little	or	no	memory	of	these	crimes.	

	      [¶21]	 	 The	 father	 admits	 that	 he	 needs	 anger	 management	 counseling	

and	that	he	did	not	comply	with	the	Department’s	reunification	plan	requiring	

such	 counseling	 because	 he	 prefers	 that	 his	 pastor	 provide	 counseling	

services.		Despite	substantial	evidence	to	the	contrary,	the	father	asserted	that	
                                                                                    11	

“everything	 was	 fine”	 until	 the	 fall	 of	 2015,	 when	 the	 current	 investigation	

started,	and	he	asserted	that	the	Department	is	biased	against	him.	

	     [¶22]	 	 Regarding	 the	 mother,	 the	 court	 found	 that	 she	 has	 resolved	

some	past	issues	and	that	her	home	is	safe	and	secure.		The	child	is	loved	in	

the	mother’s	home.	

                               III.		LEGAL	ANALYSIS	

A.	   Justiciability	of	Appeal	of	Amended	Parental	Rights	Order	

	     [¶23]		On	appeal,	the	father	purports	to	challenge	the	amended	parental	

rights	and	responsibilities	order	issued	in	the	title	19-A	proceeding.		A	party	

to	 a	 proceeding	 who	 wishes	 to	 appeal	 from	 an	 order,	 including	 an	 amended	

order,	must	file	a	notice	of	appeal	in	the	proceeding	in	which	the	order	issued,	

here	 the	 title	 19-A	 proceeding.	 	 See	In	re	Melissa	 T.,	 2002	 ME	 31,	 ¶	 5,	

791	A.2d	98	 (dismissing	 the	 mother’s	 appeal	 challenging	 a	 jeopardy	 order	

when	the	mother	filed	a	brief	but	did	not	file	a	notice	of	appeal);	see	also	Costa	

v.	Vogel,	2001	ME	131,	¶	1	n.1,	777	A.2d	827;	Town	of	Mount	Desert	v.	Smith,	

2000	ME	88,	¶	8,	751	A.2d	445	(holding	that	the	timely	filing	of	a	cross-appeal	

to	 the	 Law	 Court	 will	 not	 cure	 a	 procedural	 defect	 of	 failing	 to	 file	 a	

cross-appeal	to	the	Superior	Court	from	a	District	Court	order).	
12	

	       [¶24]		The	father	never	filed	a	notice	of	appeal	in	the	family	matter	case,	

and,	 ordinarily,	 the	 father’s	 attempt	 at	 a	 direct	 appeal	 of	 the	 modification	 of	

the	title	19-A	parental	rights	and	responsibilities	order	would	be	dismissed.	

	       [¶25]	 	 Because	 the	 father	 timely	 appealed	 from	 the	 jeopardy	 order	 in	

the	title	22	proceeding,	and	because	we	have	not	before	had	the	opportunity	

to	provide	any	guidance	on	how	to	address	this	overlap	of	titles	22	and	19-A,	

we	 will	 address	 both	 the	 court’s	 order	 finding	 jeopardy	 and	 its	 order	

amending	the	parental	rights	and	responsibilities	order.	

	       [¶26]	 	 Going	 forward,	 however,	 we	 caution	 that,	 in	 such	 appeals,	 the	

parent—or	 the	 parent’s	 counsel—who	 wishes	 to	 challenge	 a	 parental	 rights	

and	 responsibilities	 order	 issued	 after	 a	 jeopardy	 finding	 must	 appeal	 from	

both	 the	 title	 22	 jeopardy	 order	 and	 the	 title	 19-A	 parental	 rights	 and	

responsibilities	 order.	 	 That	 will	 be	 required	 whether	 the	 order	 at	 issue	 is	

entered	 in	 a	 newly	 opened	 parental	 rights	 and	 responsibilities	 case,	 as	

contemplated	 by	 section	 4036(1-A)(A),	 or	 amends	 a	 preexisting	 parental	

rights	order,	as	occurred	here.4	




   4	 	 When	 a	 parental	 rights	 and	 responsibilities	 order	 is	 issued	 as	 the	 disposition	 after	 an	 order	

that	cannot	be	appealed,	e.g.,	a	judicial	review	order,	22	M.R.S.	§§	4006,	4038	(2016),	the	notice	of	
appeal	must	identify	the	parental	rights	order	as	the	order	being	appealed	and	must	be	filed	in	the	
parental	rights	and	responsibilities	action.	
                                                                                                    13	

B.	     Challenges	to	Findings	of	Fact	

	       [¶27]	 	 The	 court’s	 findings,	 stated	 above,	 are	 fully	 supported	 by	

competent	evidence	in	the	record.		 The	 father	 argues	 that	 the	court’s	factual	

findings	 are	 improperly	 based	 on	 hearsay	 evidence	 because	 the	 amended	

order	was	entered	pursuant	to	19-A	M.R.S.	§	1653,	and,	had	the	hearing	been	

conducted	 in	 a	 family	 matters	 proceeding	 rather	 than	 a	 jeopardy	 hearing,	

child	 hearsay	 evidence	 would	 have	 been	 inadmissible	 absent	 the	 availability	

of	 an	 exception	 to	 the	 hearsay	 rule.	 	 He	 also	 contends	 that	 the	 court	

improperly	 considered	 incidents	 that	 occurred	 prior	 to	 the	 last	 modification	

of	the	parental	rights	and	responsibilities	order.5	

	       [¶28]		Although	the	father	did	not	object	at	the	jeopardy	hearing	to	the	

admission	of	child	hearsay	testimony	or	to	the	mother’s	request	that	the	court	

dispose	 of	 the	 case	 with	 a	 modification	 of	 the	 parental	 rights	 and	

responsibilities	order,	his	argument	on	appeal	is	properly	presented	because	

his	objections	would	have	been	overruled	in	the	jeopardy	proceeding,	where	

admission	of	such	evidence	was	proper.	




    5		The	father	also	argues	that	the	court’s	factual	findings	do	not	support	a	finding	that	there	was	

a	substantial	change	of	circumstances	since	the	prior	modification.		The	court’s	findings	that	there	
had	been	recent	domestic	violence	in	the	father’s	home	and	that	the	father	had	married	a	registered	
sex	 offender	 are	 sufficient	 to	 demonstrate	 that	 there	 had	 been	 a	 substantial	 change	 of	
circumstances.		See	19-A	M.R.S.	§	1657(2)(B)	(2016);	see	also	19-A	M.R.S.	§	1653(3)(R)	(2016).	
14	

	      1.	    Child	Hearsay	Evidence	

	      [¶29]		“All	child	protection	proceedings	shall	be	conducted	according	to	

the	 rules	 of	 civil	 procedure	 and	 the	 rules	 of	 evidence,	 except	 as	 provided	

otherwise	in”	the	Child	and	Family	Services	and	Child	Protection	Act,	22	M.R.S.	

§§	4001	to	4099-H	(2016).		22	M.R.S.	§	4007(1)	(2016).		“The	court	may	admit	

and	 consider	 oral	 or	 written	 evidence	 of	 out-of-court	 statements	 made	 by	 a	

child,	 and	 may	 rely	 on	 that	 evidence	 to	 the	 extent	 of	 its	 probative	 value.”		

Id.	§	4007(2)	 (2016);	 see	 In	 re	 Kayla	 S.,	 2001	 ME	 79,	 ¶	 7,	 772	 A.2d	 858;	

In	re	Robin	T.,	651	A.2d	337,	338	(Me.	1994).		Upon	a	finding	of	jeopardy,	the	

court	 shall	 “make	 a	 written	 order	 of	 any	 disposition	 under	 section	 4036.”		

22	M.R.S.	§	4035(3).		Pursuant	to	section	4036(1-A),	“the	court	may	enter	an	

order	 awarding	 parental	 rights	 and	 responsibilities	 pursuant	 to	 Title	 19-A,	

section	1653	if	the	court	determines	that	the	order	will	protect	the	child	from	

jeopardy	 and	 is	 in	 the	 child’s	 best	 interest	 as	 defined	 in	 Title	 19-A,	 section	

1653,	subsection	3.”	

	      [¶30]	 	 Title	 22	 allows	 a	 court	 to	 admit	 child	 hearsay	 evidence	 in	 a	

jeopardy	 hearing	 and	 to	 protect	 a	 child	 from	 jeopardy	 by	 issuing	 a	 parental	

rights	and	responsibilities	order	pursuant	to	title	19-A.		22	M.R.S.	§§	4007(2),	

4036(1-A).	 	 Moreover,	 22	 M.R.S.	 §	 4036(1-A)(A-1)	 provides	 that	 “the	 court	
                                                                                          15	

shall	seal	and	keep	confidential	any	documents	from	the	child	protective	case	

that	are	made	a	part	of	the	record	of	the	family	matters	case	.	.	.	.”		Thus,	the	

statutory	 scheme	 contemplates	 that	 a	 court	 issuing	 a	 parental	 rights	 and	

responsibilities	 order	 under	 these	 circumstances	 will	 rely	 on	 its	 factual	

findings	 from	 the	 jeopardy	 hearing,	 which	 may	 be	 based	 on	 evidence	 that	

includes	 child	 hearsay.	 	 See	In	re	Jacob	 C.,	 2009	ME	 10,	 ¶	 9,	 965	 A.2d	 47	

(considering	 the	 whole	 statutory	 scheme	 so	 that	 a	 harmonious	 result,	

presumably	 the	 intent	 of	 the	 Legislature,	 may	 be	 achieved).	 	 Therefore,	 the	

court	 did	 not	 err	 in	 considering	 statements	 ascribed	 to	 the	 child	 when	

determining,	first,	that	the	father	created	jeopardy	for	Paige,	and,	second,	that	

the	appropriate	disposition	was	to	award	the	mother	sole	parental	rights	and	

responsibilities.	

	      2.	    Consideration	of	Prior	Incidents	

	      [¶31]	 	 “In	 child protection	 proceedings,	 what	 is	 past	 is	 often	 prologue	

regarding	 the	 threat	 of	 serious	 harm	 posed	 by	 the	 parent	 .	 .	 .	 .”	 In	 re	 E.A.,	

2015	ME	 37,	 ¶	 9,	 114	 A.3d	 207	 (quoting	 In	 re	 E.L.,	 2014	 ME	 87,	 ¶	 14,	

96	A.3d	691).	 	 “Evidence	 of	 historical	 behavior	 is	 relevant	 to	 a	 finding	 of	

jeopardy	.	.	.	.	[T]he	court	must	consider	whether	there	is	prospective	jeopardy.		
16	

And	in	making	that	determination,	.	.	.	the	trial	court	must	consider	what	has	

happened	in	the	past.”		Id.	

	     [¶32]	 	 Accordingly,	 the	 court	 properly	 considered	 evidence	 of	 the	

father’s	 extensive	 history	 of	 domestic	 violence	 and	 abuse	 toward	 children	 in	

making	 its	 jeopardy	 findings.	 	 Even	 in	 a	 hearing	 on	 a	 motion	 to	 modify	 a	

parental	 rights	 order,	 the	 evidence	 could	 be	 relevant	 to	 the	 issue	 of	 what	

custody	 arrangement	 is	 in	 the	 child’s	 best	 interest.	 	 See	Aranovitch	 v.	 Versel,	

2015	ME	146,	¶	15,	127	A.3d	542	(“Generally,	the	substantial	change	inquiry	

is	temporally	limited	to	events	following	the	most	recent	order	governing	the	

children’s	residential	care.		However,	if	the	court	determines	that	a	substantial	

change	 in	 circumstances	 has	 occurred	 since	 the	 most	 recent	 order,	 it	 may	

consider	 events	 before	 that	 order	 to	 provide	 context	 for	 evaluating	

subsequent	 events,	 if	 the	 pre-order	 events	 are	 relevant	 to	 the	 issue	 of	 what	

parental	 rights	 arrangement	 will	 further	 the	 children’s	 best	 interests.”	

(citation	omitted)).	

	     [¶33]	 	 The	 trial	 court	 properly	 relied	 on	 evidence	 concerning	 prior	

incidents	 when	 deciding	 whether	 the	 father	 created	 jeopardy	 for	 Paige	 and	

when	determining	how	best	to	alleviate	that	jeopardy.	

	
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C.	       Clarity	of	Future	Substantial	Change	of	Circumstances	

	         [¶34]	 	 The	 father	 contends	 that	 the	 court’s	 direction	 regarding	 what	

would	 constitute	 a	 future	 substantial	 change	 of	 circumstances	 in	 the	 court’s	

amended	 order	 is	 ambiguous,	 and	 that	 the	 court	 erred	 by	 explaining	 the	

provision	 in	 the	 child	 protection	 matter	 instead	 of	 in	 the	 amended	 order.		

Despite	 the	 father’s	 claims	 to	 the	 contrary,	 the	 court’s	 detailed	 statement	 of	

what	would	constitute	a	future	change	of	circumstances	was	properly	stated	

in	the	child	protection	proceeding	and	provides	the	requisite	clarity	for	what	

is	expected	of	the	father.	

D.	       Basis	for	the	Amended	Parental	Rights	Order	

	         [¶35]		The	father	argues	that	the	court	abused	its	discretion	by	denying	

his	 motion	 to	 amend	 the	 parental	 rights	 and	 responsibilities	 judgment	

because	 the	 amended	 order	 in	 the	 family	 matter	 is	silent	 regarding	 the	 legal	

predicates	upon	which	it	is	based.6	

	         [¶36]	 	 The	 court’s	 amended	 parental	 rights	 order	 does	 not	 include	

findings	of	fact	or	conclusions	of	law;	however,	the	extensive	findings	of	fact	


      6		The	father	also	contends	that	the	court’s	orders	should	be	vacated	because	section	4036(1-A)	

“indicate[s]	 that	 any	 post-judgment	 motions	 filed	 under	 circumstances	 such	 as	 these	 should	 be	
captioned	under	the	family	matter	docket,	and	that	any	order	in	response	to	such	motions	should	
likewise	be	issued	under	the	family	matter	docket	number.”		Here,	the	court	properly	entered	the	
amended	order	under	the	family	matter	docket	number.		See	22	M.R.S.	§	4036(1-A)(A).		The	father	
filed	 a	 single	 post-judgment	 motion	 under	 the	 child	 protection	 docket	 number,	 and	 the	 court	
responded	accordingly.		Thus,	there	was	no	error,	and	the	father’s	contention	is	without	merit.	
18	

and	 conclusions	 of	 law	 that	 formed	 the	 basis	 of	 the	 amended	 order	 are	

contained	 in	 the	 court’s	 post-judgment	 order	 in	 the	 child	 protection	 matter.		

Because	 a	 parental	 rights	 and	 responsibilities	 order	 issued	 pursuant	 to	

section	4036(1-A)	may	not	refer	to	or	discuss	the	originating	child	protection	

matter,	 the	 court	 was	 prohibited	 from	 including	 its	 findings	 in	 the	 amended	

parental	rights	order.		See	22	M.R.S.	§	4036(1-A)(A-1).	

       [¶37]	 	 Turning	 to	 the	 findings	 of	 fact	 and	 conclusions	 of	 law,	 and	

recognizing	 that	 the	 court	 was	 deciding	 both	 whether	 the	 State	 had	 proved	

jeopardy	and	whether	the	child	could	be	protected	from	that	jeopardy	without	

the	 continuing	 need	 for	 a	 child	 protection	 order,	 the	 court	 did	 not	 expressly	

state	that	it	was	considering	each	of	the	factors	listed	in	section	1653(3).		The	

court	 did,	 however,	 state	 that	 “the	 overall	 revised	 parental	 rights	 and	

responsibilities	order	is	clearly	in	[the	child’s]	best	interest.”	

       [¶38]	 	 Notably,	 the	 court’s	 findings	 relate	 to	 nine	 of	 the	 nineteen	 best	

interest	 factors	 listed	 in	 section	 1653(3),	 including	 the	 age	 of	 the	 child;	 the	

relationship	 of	 the	 child	 with	 the	 child’s	 parents	 and	 any	 other	 persons	 who	

may	 significantly	 affect	 the	 child’s	 welfare;	 the	 preference	 of	 the	 child;	 the	

parties’	capacities	to	give	the	child	love,	affection,	and	guidance;	the	existence	

of	domestic	abuse	between	the	parents,	in	the	past	or	currently;	the	existence	
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of	 any	 history	 of	 child	 abuse	 by	 a	 parent;	 the	 existence	 of	 a	 person	 residing	

with	 the	 parent	 who	 has	 been	 convicted	 of	 certain	 sex	 crimes;	 whether	

allocation	 of	 some	 or	 all	 parental	 rights	 and	 responsibilities	 would	 best	

support	 the	 child’s	 safety	 and	 well-being;	 and	 all	 other	 factors	 having	 a	

reasonable	bearing	on	the	physical	and	psychological	well-being	of	the	child.	

       [¶39]	 	 As	 noted	 above,	 the	 order	 issued	 by	 the	 court	 could	 best	 be	

described	 as	 a	 “hybrid”	 of	 a	 jeopardy	 order	 and	 a	 parental	 rights	 and	

responsibilities	 order.	 	 Even	 if	 it	 had	 been	 exclusively	 a	 parental	 rights	 and	

responsibilities	 order,	 however,	 the	 court	 was	 not	 required	 to	 address	 each	

best	interest	factor	in	its	decision.		See	Nadeau	v.	Nadeau,	2008	ME	147,	¶	35,	

957	A.2d	108.		The	trial	court	rather	evidently	evaluated	the	evidence	with	the	

best	 interest	 factors	 in	 mind	 and	 did	 not	 abuse	 its	 discretion	 in	 reaching	 its	

ultimate	conclusion.	

       The	entry	is:	

                     The	 jeopardy	 order	 and	 the	 amended	 parental	
                     rights	 and	 responsibilities	 order	 issued	
                     pursuant	to	22	M.R.S.	§	4036(1-A)	are	affirmed.		
	
	      	      	      	      	      	
	
20	


Thomas W. Bell, Esq., The Law Office of Thomas W. Bell, Esq.,
Topsham, for appellant father

Lorne Fairbanks, Esq., Lewiston, for appellee mother

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee State of
Maine


Augusta District Court docket number PC-2015-57
FOR CLERK REFERENCE ONLY
