MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	228	
Docket:	      Yor-17-280	
Submitted	
  On	Briefs:	 November	29,	2017	
Decided:	     December	12,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                    IN	RE	ARTURO	G.	
	
	
SAUFLEY,	C.J.	

       [¶1]	 	 The	 parents	 of	 Arturo	 G.	 appeal	 from	 a	 judgment	 of	 the	 District	

Court	 (Biddeford,	 Foster,	 J.)	 terminating	 their	 parental	 rights	 to	 Arturo	

pursuant	to	22	M.R.S.	§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(i),	(ii)	(2016)	and,	

with	 respect	 to	 the	 father,	 §	 4055(1)(B)(2)(b)(iv).	 	 Arturo	 is	 two	 and	 a	 half	

years	 old	 and,	 as	 a	 result	 of	 his	 parents’	 drug	 addictions,	 has	 lived	 with	 four	

different	care	providers	in	his	short	life.		The	father	challenges	the	sufficiency	

of	the	evidence	to	support	the	court’s	finding	of	unfitness.		He	also	argues	that	

he	was	deprived	of	due	process	when	the	court	denied	his	motion	to	continue	

a	hearing	on	the	ground	that	he	was	experiencing	withdrawal	from	Suboxone.		

The	mother	argues	that	the	court	erroneously	admitted	hearsay	evidence	in	the	

form	of	drug	test	results.		The	evidence	supports	the	court’s	factual	findings;	

the	father	received	due	process;	and	the	court	did	not	abuse	its	discretion	in	

admitting	evidence	of	the	mother’s	drug	test	results.		We	affirm	the	judgment.					
2	

                                   I.		BACKGROUND	

	     [¶2]		On	April	23,	2015,	the	Department	of	Health	and	Human	Services	

filed	a	petition	for	a	child	protection	order	concerning	 the	 child,	 who	 at	 that	

time	was	only	two	weeks	old.		The	Department	based	its	petition	on	the	parents’	

significant	history	of	substance	abuse	and	incarceration	and	on	a	prior	order	

terminating	 the	 mother’s	 parental	 rights	 to	 her	 older	 daughter.	 	 On	 June	 5,	

2015,	the	court	entered	a	jeopardy	order	with	respect	to	the	father,	to	which	he	

agreed.		Pursuant	to	that	jeopardy	order,	the	father	was	required	to	submit	to	

random	 testing	 for	 drugs	 and	 alcohol	 by	 both	 hair	 and	 urine,	 and	 the	

Department	was	required	to	facilitate	the	father’s	substance	abuse	counseling.	

	     [¶3]	 	 On	 	 July	 17,	 2015,	 the	 court	 entered	 a	 jeopardy	 order	 as	 to	 the	

mother,	 to	 which	 she	 agreed.	 	 Pertinent	 to	 this	 appeal,	 that	 order	 included	 a	

provision	 that	 “[u]pon	 request	 of	 the	 Department,	 mother	 shall	 promptly	

submit	to	random	testing	for	drugs	and/or	alcohol	by	both	hair	and	urine;	test	

results	shall	be	admissible	in	these	proceedings.”		

	     [¶4]		The	Department	filed	a	petition	to	terminate	the	parental	rights	of	

both	parents	on	August	11,	2016.		A	hearing	on	the	petition	was	held	on	May	8	

and	9,	2017.		On	the	morning	of	the	first	day	of	the	hearing,	the	father	moved	to	

continue	 the	 hearing	 on	 the	 ground	 that	 he	 was	 suffering	 from	 symptoms	 of	
                                                                                                              3	

withdrawal	from	Suboxone.		He	stated	that	the	withdrawal	resulted	from	the	

Department’s	decision	to	cut	off	payments	for	the	Suboxone	in	order	to	force	

the	father	into	releasing	records	documenting	his	substance	abuse	counseling.		

In	 support	 of	 the	 motion,	 the	 father’s	 counsel	 stated	 that	 because	 of	 the	

withdrawal	symptoms,	the	father	was	“at	a	little	bit	of	a	disadvantage.”		He	later	

stated,	“I	don’t	believe	he’s	incoherent,	but	he’s	saying	that	it	has	affected	his	

ability	somewhat.”			

	       [¶5]	 	 The	 court	 summarized	 the	 positions	 of	 the	 parties:	 “The	

Department’s	saying	they	have	an	obligation	.	.	.	to	make	sure	the	person	is	using	

the	medication	as	prescribed	and	is	attending	counseling	as	recommended.	.	.	.	

[The	 father]	 is	 arguing	 the	 Department	 calculatedly	 did	 so	 to	 place	 him	 at	 a	

disadvantage	at	a	time	that	we	are	on	the	verge	of	hearing.”		The	court	clarified	

that	the	Department	was	not	withholding	Suboxone	but	withholding	payments	

until	 the	 father	 provided	 the	 Department	 with	 records	 showing	 that	 he	 had	

been	receiving	treatment.1		The	court	stated,	“[the	father]	had	every	reason	to	


    1		The	underlying	dispute	between	the	Department	and	the	father	involved	his	refusal	to	authorize	

the	release	of	medical	records	demonstrating	his	compliance	with	the	reunification	plan.		Pursuant	
to	 a	 pretrial	 order,	 the	 court	 required	 all	 parties	 to	 “execute	 any	 releases	 of	 information	 forms	
necessary	for	the	full	exchange	of	information	among	counsel,	caseworker,	and	the	Guardian	ad	litem	
and	for	testimony	at	trial.”		The	father	argued	that	he	was	justified	in	refusing	to	provide	or	release	
the	 records	 because	 a	 Department	 caseworker	 had	 disclosed	 to	 his	 aunt	 that	 he	 was	 positive	 for	
hepatitis.	 	 The	 Department’s	 position	 was	 that	 it	 was	 obligated	 to	 ensure	 that	 the	 father	 was	 in	
treatment	before	providing	Suboxone.		There	is	no	evidence	in	the	record	showing	when	the	father	
began	to	refuse	to	release	his	records,	although	about	two	weeks	before	trial,	the	Department	filed	a	
4	

understand	 the	 Department	 would	 be	 seeking	 those	 records	 and	 had	 an	

obligation	 to	 sign	 the	 releases	 in	 a	 timely	 fashion.”	 	 It	 denied	 the	 motion	 to	

continue.			

	      [¶6]		The	Department’s	first	witness	was	a	substance	abuse	counselor.		

He	testified	that	within	seventy-two	hours	of	Suboxone	withdrawal,	a	person	is	

likely	 to	 experience	 “[h]eadaches,	 poor	 sleep,	 chills,	 sweating,	 diarrhea,	

vomiting,	weakness,	craving,	anxiety,	depression,	[and]	frustration.”		The	father	

renewed	his	motion	to	continue.		The	Department	objected	to	the	motion	and	

offered	to	obtain	an	immediate	authorization	for	a	prescription.		The	court	once	

again	denied	the	motion.		The	father	received	treatment	during	a	break	on	the	

first	day,	and	he	testified	on	the	following	day.		

	      [¶7]	 	 Also	 on	 the	 morning	 of	 the	 first	 day	 of	 the	 hearing,	 the	 mother	

objected	to	the	admission	of	certain	positive	drug	test	results	from	a	laboratory	

engaged	by	the	mother’s	substance	abuse	counseling	service	pursuant	to	her	

reunification	plan.		The	mother	contended	that	the	reports	were	inadmissible	

hearsay	and	were	not	covered	by	the	admissibility	provisions	in	the	jeopardy	

order	because	they	were	not	specifically	requested	by	the	Department.		




motion	asking	the	court	to	order	the	father’s	treatment	providers	to	disclose	records	pertaining	to	
his	substance	abuse	treatment.			
                                                                                                     5	

        [¶8]		The	court	overruled	the	mother’s	objection.		It	stated,	“I	think	that	

clearly	the	spirit	of	the	jeopardy	order	was	.	.	.	.	tests	are	generated	in	treatment	

scenarios	where	a	treatment	provider	requested	those	tests	occur.”		

	       [¶9]	 	 On	 June	 12,	 2017,	 the	 court	 entered	 a	 judgment	 terminating	 the	

parents’	parental	rights.		Based	on	the	evidence	presented	at	the	hearing,	the	

court	found	that	both	parents	were	(1)	unwilling	or	unable	to	protect	the	child	

from	 jeopardy	 and	 these	 circumstances	 are	 unlikely	 to	 change	 within	 a	 time	

reasonably	calculated	to	meet	the	child’s	needs,	and	(2)	unwilling	or	unable	to	

take	responsibility	for	the	child	within	a	time	that	is	reasonably	calculated	to	

meet	the	child’s	needs.		See	22	M.R.S.	§	4055(1)(B)(2)(b)(i),	(ii).		The	court	also	

found	that	the	father	had	failed	to	make	a	good	faith	effort	to	rehabilitate	and	

reunify	 with	 the	 child.	 	 See	 id.	 §	 4055(1)(B)(2)(b)(iv).	 	 The	 court	 further	

determined	that	termination	of	both	parents’	parental	rights	was	in	the	child’s	

best	interest.		See	id.	§	4055(1)(B)(2)(a).		

        [¶10]		Both	parties	timely	appealed.		See	22	M.R.S.	§	4006	(2016);	M.R.	

App.	P.	2	(Tower	2016).2			




    2		The	parties	filed	their	notices	of	appeal	prior	to	the	September	1,	2017,	effective	date	of	the	

restyled	Appellate	Rules.		See	M.R.	App.	P.	1.		Therefore,	the	2016	rules	apply.				
   	
6	

                                       II.		DISCUSSION	

A.	      Evidence	of	Unfitness	

	        [¶11]		The	father	challenges	the	sufficiency	of	the	evidence	supporting	

the	court’s	determination	that	he	is	an	unfit	parent.		He	does	not	challenge	the	

court’s	 finding	 that	 termination	 of	 his	 parental	 rights	 is	 in	 the	 child’s	 best	

interest.3	 	 See	 22	 M.R.S.	 §	 4055	 (1)(B)(2)(a).	 	 “We	 review	 the	 trial	 court’s	

determination	 of	 parental	 unfitness	 to	 see	 if	 a	 review	 of	 the	 entire	 record	

demonstrates	 that	 the	 trial	 court	 rationally	 could	 have	 found	 clear	 and	

convincing	evidence	in	that	record	to	support	the	necessary	factual	findings	as	

to	the	bases	for	termination.”		In	re	Higera	N.,	2010	ME	77,	¶	29,	2	A.3d	265.		In	

conducting	 this	 review,	 we	 view	 the	 facts,	 and	 the	 weight	 to	 be	 given	 them,	

through	the	trial	court’s	lens.		In	re	Cameron	Z.,	2016	ME	162,	¶	16,	150	A.3d	

805.		

         [¶12]	 	 The	 court	 made	 the	 following	 factual	 findings	 concerning	 the	

father’s	unfitness:		

         On	 May	 20,	 2015,	 [the	 father]	 agreed	 to	 the	 entry	 of	 a	 Jeopardy	
         Order.	 .	 .	 .	 based	 on	 a	 “significant	 history	 of	 substance	 abuse,	
         criminal	 conduct	 and	 incarceration.”	 .	 .	 .	 [The	 father]	 had	 been	
         “clean”	since	2011	but	had	tested	positive	for	suboxone	on	April	14	
         of	2015.	.	.	.	[The	father]	did	not	have	safe	and	stable	housing	for	

     3		Any	such	challenge	would	be	futile	because,	in	determining	that	termination	is	in	the	child’s	best	

interest,	the	court	did	not	commit	clear	error	or	abuse	its	discretion.		In	re	Caleb	M.,	2017	ME	66,	¶	34,	
159	A.3d	345.			
                                                                                                    7	

          himself	or	his	son.		In	support	of	reunification,	[the	father]	was	to	
          submit	to	a	Families	Affected	by	Substance	Abuse	.	.	.	evaluation	to	
          determine	 the	 recommended	 level	 of	 treatment	 for	 substance	
          abuse,	submit	to	random	drug	tests,	and	obtain	suitable	housing,	
          among	other	tasks.	.	.	.		
                 	
                 .	.	.	.		
                 	
                 [By]	 February	 of	 2016,	 .	 .	 .	 [the	 father]	 had	 done	 little	 to	
          reunify	with	his	son.		He	had	not	attended	any	of	the	drug	screens	
          requested	by	the	Department.		In	fact,	he	had	actually	shaved	his	
          body	to	preclude	any	hair	tests.			
                 	
                 .	.	.	.	
                 	
                 [The	 father]	 did	 not	 enroll	 in	 [substance	 abuse	 and	 mental	
          health]	 services	 until	 October	 of	 2016,	 fifteen	 months	 after	 the	
          entry	of	the	Jeopardy	Order.		He	has	not	been	honest	about	his	use	
          and	has	undermined	any	attempt	to	gain	a	more	complete	picture	
          of	his	activity	by	refusing	to	comply	with	reasonable	requests	for	
          random	 drug	 testing.	 .	 .	 .	 	 On	 those	 occasions	 when	 he	 tested	
          positive	 for	 illegal	 substances,	 [the	 father]	 offered	 explanations	
          that	were	self	serving	and	unreliable.		
			
          [¶13]		These	findings	and	the	court’s	other	specific	findings	of	fact	are	all	

supported	 by	 competent	 evidence	 in	 the	 record,	 and	 the	 court	 adequately	

explained	how	the	father’s	deficits	render	him	unfit.		In	re	Logan	M.,	2017	ME	

23,	¶	3,	155	A.3d	430.4			




      4		Although	not	challenged	by	the	mother,	the	evidence	also	supports	the	court’s	finding	of	her	

parental	unfitness	by	clear	and	convincing	evidence.		
8	

B.	      Denial	of	the	Motions	to	Continue	

	        [¶14]		The	father	also	contends	that	the	court	denied	him	due	process	

when	it	denied	his	motions	to	continue	the	trial.5		See	U.S.	Const.	amend.	XIV,	

§	1;	Me.	Const.	art.	I,	§	6-A.		We	review	a	court’s	decision	to	deny	a	motion	to	

continue	for	abuse	of	discretion.		In	re	J.B.,	2015	ME	25,	¶	5,	112	A.3d	369.		When	

due	 process	 is	 implicated,	 we	 review	 such	 a	 procedural	 ruling	 to	 determine	

whether	the	process	“struck	a	balance	between	competing	concerns	that	was	

fundamentally	 fair.”6	 	 In	 re	 A.M.,	 2012	 ME	 118,	 ¶	 14,	 55	 A.3d	 463	 (quotation	

marks	omitted).		In	the	context	of	a	termination	hearing,	balancing	the	interests	

requires	“notice	of	the	issues,	an	opportunity	to	be	heard,	the	right	to	introduce	




     5		At	trial,	the	father	did	not	expressly	describe	this	issue	as	one	involving	due	process.		However,	

the	issue	is	properly	preserved	for	appeal	because	there	was	a	“sufficient	basis	in	the	record”	to	alert	
the	trial	court	to	the	due	process	issue.		See	Alexander,	Maine	Appellate	Practice	§	402	at	243	(4th	ed.	
2013);	State	v.	Dolloff,	2012	ME	130,	¶	39	n.	11,	58	A.3d	1032.		It	appears	that	the	trial	court	did	
indeed	consider	the	motion	in	terms	of	due	process,	observing	that	the	issue	was	whether	the	father	
was	“incapable	of	participating	fully	in	a	hearing	regarding	his	child.”		
   	
   6		Although	the	father	attempts	to	cast	his	argument	wholly	in	terms	of	due	process,	most	of	his	

argument	 regarding	 the	 court’s	 denial	 of	 his	 motion	 to	 continue	 is	 factual.	 	 The	 court	 specifically	
found	 that	 although	 the	 father	 “and	 his	 counsel	 attempted	 to	 characterize	 the	 action	 as	 the	
caseworker	having	deprived	[the	father]	of	his	medication[,]	.	.	.	it	[actually]	withheld	payment	for	
that	medication,	feeling	it	should	not	pay	for	it	unless	it	could	reassure	itself	[that	the	father]	was	
engaged	in	treatment.		This	was	not	an	unreasonable	position	for	the	Department	to	maintain.”		To	
the	 extent	 that	 the	 father’s	 appeal	 is	 based	 on	 a	 challenge	 to	 this	 finding,	 we	 accept	 the	 finding	
because	it	is	supported	by	competent	evidence	in	the	record.		Further,	there	is	nothing	at	all	in	the	
record	to	support	the	father’s	characterizations	that,	for	example,	he	was	“incapacitated”	at	trial.		
                                                                                    9	

evidence	and	present	witnesses,	the	right	to	respond	to	claims	and	evidence,	

and	an	impartial	factfinder.”		Id.	¶	16.			

	     [¶15]		Here,	there	is	no	question	that	the	father	had	notice	of	the	issues	

that	would	be	raised	at	the	hearing.		As	to	the	father’s	opportunity	to	be	heard,	

he	testified,	presented	witnesses,	and	involved	himself	in	the	examination	and	

cross-examination	 of	 witnesses.	 	 Indeed,	 he	 even	 participated	 actively	 and	

meaningfully	in	the	discussion	regarding	the	motion	to	continue.		To	the	extent	

that	the	father	argues	that	the	fact-finder	was	not	impartial,	that	challenge	is	

based	 entirely	 on	 the	 court’s	 factual	 determination	 that	 the	 Department	 was	

“not	 unreasonable”	 when	 it	 withheld	 payments	 for	 Suboxone	 until	 it	 could	

verify	that	the	father	was	attending	substance	abuse	counseling.		The	court’s	

factual	determination	on	this	point	is	supported	in	the	record,	and	there	is	no	

other	support	for	the	contention	that	the	fact-finder	lacked	impartiality.			

	     [¶16]		Nor	does	the	father—who	was	represented	by	counsel	throughout	

these	proceedings,	including	at	the	hearing—explain	on	appeal	how	the	court’s	

findings	would	have	been	different	had	he	been	well.		His	failure	to	explain	how	

his	alleged	incapacity	prejudiced	his	case	is	relevant	in	determining	whether	he	

was	deprived	of	due	process.		See	In	re	A.M.,	2012	ME	118,	¶	25,	55	A.3d	463.			
10	

       [¶17]	 	 There	 is	 no	 support	 for	 the	 father’s	 contention	 that	 he	 was	

incapacitated	at	trial.		The	father	received	his	Suboxone	treatment	on	the	first	

day	of	trial.		He	testified	and	participated	at	trial.		He	has	not	shown	how	the	

results	of	the	trial	would	have	been	different	had	a	continuance	been	granted.		

The	father	was	not	deprived	of	due	process.		See	In	re	Kristy	Y.,	2000	ME	98,	

¶¶	 7-8,	 752	 A.2d	 166.	 	 The	 court	 did	 not	 abuse	 its	 discretion	 in	 denying	 the	

father’s	motion	to	continue.		

C.	    Admissibility	of	the	Mother’s	Drug	Test	Results	

       [¶18]		Finally,	the	mother	argues	that	the	court	erred	in	admitting	a	series	

of	drug	test	results	over	her	hearsay	objection.		The	Department	concedes	that	

these	 results	 would	 be	 inadmissible	 hearsay	 absent	 an	 agreement	 by	 the	

parties	waiving	any	admissibility	objections.		It	argues	that	the	jeopardy	order,	

to	 which	 the	 parties	 agreed,	 constituted	 a	 waiver	 of	 hearsay	 objections	

regarding	the	drug	test	results.		Pursuant	to	the	jeopardy	order,	“Upon	request	

of	the	Department,	mother	shall	promptly	submit	to	random	testing	for	drugs	

and/or	alcohol	by	both	hair	and	urine;	test	results	shall	be	admissible	in	these	

proceedings.”		
                                                                                                              11	

        [¶19]		We	review	a	trial	court’s	decision	to	admit	evidence	for	abuse	of	

discretion	or	clear	error.7		State	v.	Hall,	2017	ME	210,	¶	15,	---	A.3d----.		Here,	

the	 court	 properly	 relied	 on	 the	 earlier	 jeopardy	 order	 in	 admitting	 the	 test	

results.	 	 See	 United	 States	 v.	 Mezzanatto,	 513	 U.S.	 196,	 202	 (1995)	

(“[A]greements	to	waive	hearsay	objections	are	enforceable.”).		Although	there	

is	some	ambiguity	in	the	jeopardy	order,	the	court	did	not	abuse	its	discretion	

when	 it	 applied	 the	 admissibility	 provision	 in	 the	 order	 generally	 to	 results	




   7		The	parties	disagree	as	to	the	standard	of	review	to	be	applied.		The	mother	argues	that	her	right	

to	due	process	is	implicated	by	the	court’s	construction	of	the	waiver	agreement	and	that	we	should	
review	it	de	novo	and	hold	that	the	waiver	does	not	apply	unless	it	is	an	unambiguous	“knowing	and	
voluntary”	 waiver	 of	 the	 mother’s	 constitutional	 rights.	 	 However,	 she	 did	 not	 raise	 this	 as	 a	 due	
process	issue	at	trial,	and	there	was	not	a	“sufficient	basis	in	the	record”	to	alert	the	trial	court	to	a	
due	process	issue.		See	Alexander,	Maine	Appellate	Practice	§	402	at	243	(4th	ed.	2013);	Dolloff,	2012	
ME	130,	¶	39	n.	11,	58	A.3d	1032.		Therefore,	the	due	process	issue	is	waived.		Nor	do	we	find	any	
support	 in	 the	 case	 law	 for	 the	 mother’s	 contention	 that	 we	 should	 review	 the	 waiver	 agreement	
itself	de	novo.			
    	
        On	the	other	hand,	the	Department	appears	to	contend	that	because	a	trial	court	has	“inherent	
power	 to	 construe	 its	 judgment,”	 the	 trial	 court’s	 construction	 of	 its	 own	 order	 must	 be	 affirmed.		
This	 phrase	 is	 inapposite	 here.	 	 The	 cases	 establishing	 a	 court’s	 inherent	 power	 to	 construe	 its	
judgment	 generally	 involve	 a	 jurisdictional	 question	 regarding	 whether	 a	 court	 has	 authority	 to	
subsequently	amend	or	clarify	a	prior	order.		E.g.,	Boothbay	Harbor	Condo.	I	v.	Whitten,	387	A.2d	1117,	
1120	(Me.	1978);	Randlett	v.	Randlett,	401	A.2d	1008,	1010	(Me.	1979).		The	cases	do	not	involve	
questions	regarding	the	scope	of	an	agreement	or	the	standard	we	will	use	in	reviewing	the	effect	of	
the	agreement.	
        	
        Because	 the	 mother’s	 waiver	 does	 not	 raise	 constitutional	 issues,	 we	 review	 the	 court’s	
decision	to	admit	evidence	pursuant	to	the	waiver	provision	for	an	abuse	of	discretion.		See	State	v.	
Hall,	2017	ME	210,	¶¶	15,	22	---	A.3d	---	(holding	that	review	of	a	court’s	decision	to	admit	evidence	
is	for	abuse	of	discretion).			
12	

obtained	 through	 substance	 abuse	 providers	 engaged	 by	 the	 Department	 as	

part	of	its	reunification	efforts.8		

         The	entry	is:	

                            Judgment	affirmed.		
	     	      	      	     	      	
	
Erika	S.	Bristol,	Esq.,	Auburn,	for	appellant	father	
	
Jack	Hunt,	Esq.,	Kennebunk,	for	appellant	mother	
	
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	
	
	
Biddeford	District	Court	docket	number	PC-2015-17	
FOR	CLERK	REFERENCE	ONLY	
                            	




   8		We	also	note	that	the	mother	presented	no	evidence	challenging	the	accuracy	or	reliability	of	

the	test	results	that	the	court	admitted	into	evidence.		Further,	although	when	the	court	admitted	the	
documentary	test	results	it	left	open	the	opportunity	for	the	mother	to	secure	an	expert	to	address	
that	evidence,	the	mother	never	did	so.			
