MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	96	
Docket:	   Ken-18-8	
Argued:	   May	16,	2018	
Decided:	  July	12,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                        IN	RE	CHILDREN	OF	BETHMARIE	R.	
                                       	
	
	
HUMPHREY,	J.	

      [¶1]		Bethmarie	R.	appeals	from	a	judgment	entered	by	the	District	Court	

(Waterville,	Stanfill,	J.)	finding	jeopardy	to	two	of	her	children	pursuant	to	22	

M.R.S.	 §	 4035	 (2017)	 and	 ordering	 the	 Department	 of	 Health	 and	 Human	

Services	(the	Department)	to	cease	reunification	efforts	pursuant	to	22	M.R.S.	

§	4041(2)(A-2)	(2017).		The	mother	contends	that	(1)	the	court	erred	when	it	

concluded	 that	 the	 doctrine	 of	 res	 judicata	 did	 not	 bind	 the	 Department	 to	

orders	 issued	 by	 the	 Probate	 Court	 concluding	 that	 the	 children	 were	 not	 in	

jeopardy,	and	(2)	her	due	process	rights	were	violated.		We	affirm	the	judgment.	
2	

                                          I.		CASE	HISTORY	

	        [¶2]		The	record	contains	the	following	procedural	history.1		In	January	

2010,	 the	 Somerset	 County	 Probate	 Court	 (Alsop,	 J.)	 granted	 the	 mother’s	

petition	 to	 appoint	 the	 maternal	 grandmother	 to	 be	 full	 guardian	 of	 the	 two	

children	at	issue	in	this	case.		Between	 2010	and	2016,	the	mother	filed	four	

petitions	to	terminate	the	guardianship.		The	first	two	petitions	were	denied,	

and	on	the	third	petition,	the	court	limited	the	guardianship	to	allow	contact	

and	permit	the	mother	to	participate	in	decision-making	for	the	children.			

         [¶3]	 	 During	 a	 supervised	 visit	 in	 August	 2013,	 the	 mother	 absconded	

with	the	children	and	they	were	located	near	the	South	Carolina	and	Georgia	

border	 the	 next	 day.	 	 The	 mother	 was	 convicted	 of	 two	 counts	 of	 criminal	

restraint	in	February	2015	in	the	Superior	Court	(Kennebec	County,	Horton,	J.)	

and	 sentenced	 to	 two	 and	 one-half	 years’	 imprisonment,	 with	 all	 but	 five	

months	suspended.			

	        [¶4]		In	June	2016,	following	a	series	of	motions	and	orders	concerning	

visitation,	the	mother	filed	her	fourth	petition	in	the	Probate	Court	to	terminate	

the	 guardianship.	 	 On	 August	 18,	 2017,	 the	 Kennebec	 County	 Probate	 Court	


     1		The	procedural	history	is	drawn	from	the	records	of	the	District	Court	and	the	Probate	Court.		

We	 may	 take	 judicial	 notice	 of	 the	 Probate	 Court’s	 records,	 including	 the	 pleadings	 and	 docket	
entries.		See	Guardianship	of	Jewel	M.,	2010	ME	80,	¶	24,	2	A.3d	301;	M.R.	Evid.	201.	
                                                                                                     3	

(E.	Mitchell,	J.)2	held	a	final	hearing	on	the	mother’s	petition	and	on	motions	she	

filed	to	enforce	and	compel	visitation.		In	an	August	28,	2017,	order,	the	court	

concluded	 that	 it	 could	 not	 find	 the	 mother	 unfit	 and	 terminated	 the	

guardianship,	subject	to	a	one-month	transition	of	the	children	to	the	mother’s	

custody.			

	       [¶5]		On	September	1,	2017,	the	grandmother	filed	a	motion	to	reopen	

the	evidence,	for	amended	findings	of	fact	and	conclusions	of	law,	and	to	stay	

enforcement	 based	 on	 four	 alleged	 incidents	 that	 had	 occurred	 since	 the	

August	18	 hearing:	 (1)	 the	 mother’s	 former	 boyfriend3	 was	 seen	 near	 the	

mother’s	house,	(2)	the	mother	bit	her	son,	(3)	the	mother	sat	by	and	did	not	

intervene	while	another	child	stomped	on	her	son’s	head,	and	(4)	the	mother	

pulled	bandages	off	of	her	son’s	face	in	a	way	that	inflicted	unnecessary	pain	to	

the	child.		The	mother	filed	a	motion	for	contempt	that	same	day,	alleging	that	

the	 grandmother	 was	 not	 complying	 with	 the	 August	 28,	 2017,	 order	 for	

contact.			




    2		The	matter	was	transferred	from	the	Somerset	County	Probate	Court	to	the	Kennebec	County	

Probate	Court	in	August	2016.			
    3		In	March	2013,	the	grandmother,	on	behalf	of	the	children,	had	petitioned	the	District	Court	for	

protection	from	harassment	orders	against	this	boyfriend,	and	the	court	(Waterville,	Dow,	J.)	ordered	
protection	after	a	hearing	in	July	2013.		The	protection	order	expired	in	July	2014.			
4	

       [¶6]	 	 On	 September	 28,	 2017,	 the	 Probate	 Court	 held	 a	 hearing	 on	 the	

new	evidence	and	the	issues	raised	by	the	motions.		A	Department	caseworker	

testified	 at	 the	 hearing,	 but	 it	 is	 not	 clear	 whether	 and	 to	 what	 extent	 the	

Probate	 Court	 received	 information	 from	 the	 Department	 concerning	 the	

mother.4		The	following	day,	the	court	entered	an	intermediate	order	requiring	

supervised	visits	with	the	mother.			

	      [¶7]	 	 On	 Saturday,	 October	 7,	 2017,	 before	 the	 Probate	 Court	 issued	 a	

final	decision,	the	Department	sought,	and	the	District	Court	(Augusta,	Ende,	J.)	

granted,	 a	 preliminary	 protection	 order	 pursuant	 to	 the	 Child	 and	 Family	

Services	and	Child	Protection	Act,	22	M.R.S.	§§	4001	to	4099-H	(2017).		In	its	

order,	 the	 District	 Court	 granted	 custody	 to	 the	 grandmother,	 ordered	 no	

contact	 with	 the	 mother,	 and	 relieved	 the	 Department	 of	 providing	

reunification	services.		Pursuant	to	M.R.	Civ.	P.	126	and	4	M.R.S.	§§	152(5-A),	

251-A	(2017),	the	District	Court	(Waterville,	Stanfill,	J.)	conferenced	with	the	

Probate	 Court	 and	 determined	 that,	 because	 the	 Probate	 Court	 had	 already	

heard	 the	 pending	 motions	 and	 soon	 would	 issue	 its	 judgment,	 the	 probate	



    4		Although	the	Probate	Court	record	indicates	that	the	guardian	ad	litem	reviewed	a	Department	

file	concerning	a	2012	child	protection	matter,	that	proceeding	was	in	regard	to	one	of	the	mother’s	
other	children.		Further,	there	is	no	indication	in	the	record	that	the	Probate	Court	issued	a	Clifford	
Order,	22	M.R.S.	§	4008(3)(B)	(2017),	to	obtain	the	Department’s	records	concerning	the	children	at	
issue.			
                                                                                                                 5	

matter	would	be	transferred	to	the	Waterville	District	Court	after	the	Probate	

Court	 issued	 its	 amended	 order	 on	 the	 mother’s	 motion	 to	 terminate	 the	

guardianship.		After	conferencing	with	the	parties,	the	District	Court	continued	

the	child	protection	hearing	until	November	because	it	would	be	“impracticable	

to	hold	a	summary	preliminary	hearing	at	this	stage.”			

	       [¶8]		On	October	18,	2017,	the	Probate	Court	denied	the	mother’s	motion	

to	terminate	the	guardianship,5	“but	add[ed]	limitations	to”	the	guardianship	to	

require	 supervised	 visits	 with	 the	 mother	 at	 least	 twice	 weekly,	 ordered	

transitional	services,	and	ordered	the	guardianship	to	be	further	reviewed	after	

three	months.		The	court	emphasized	that	the	grandmother	had	“consistently	

refused	 to	 work	 toward	 reunification	 of	 the	 children	 with	 their	 mother,”	

“willfully	ignored	this	court’s	initial	order	and	[]	made	a	transition	beneficial	to	

the	 children	 impossible	 by	 refusing	 to	 allow	 the	 children	 to	 follow	 the	

scheduled	visits,”	did	not	present	“convincing	evidence	on	her	four	allegations	

against	 [the	 mother],”	 and	 did	 not	 present	 “evidence	 that	 suggested	




   5	 	 In	its	 order,	 the	 Probate	 Court	 stated	that	 “[a]t	no	 point	 during	this	 case	did	 this	 court	 hear	

evidence	that	suggested	‘circumstances	of	jeopardy	to	the	children’s	health	and	welfare.’”		Because	
the	court	did	not	terminate	the	guardianship,	however,	it	had	to	have	determined	that	the	mother	
was	unfit	in	some	way.		See	18-A	M.R.S.	§	5-212	(2017);	Guardianship	of	Stevens,	2014	ME	25,	¶	14,	
86	A.3d	1197.	
6	

circumstances	 of	 jeopardy	 to	 the	 children’s	 health	 and	 welfare.”	 	 (Quotation	

marks	omitted.)			

	        [¶9]		On	November	86	and	16,	2017,	a	few	weeks	after	the	Probate	Court	

order	 was	 issued,	 the	 District	 Court	 (Waterville,	 Stanfill,	 J.)	 held	 a	 combined	

summary	preliminary	hearing	and	jeopardy	hearing.		The	District	Court	found	

jeopardy,	 see	 22	 M.R.S.	 §	 4035(2)	 (2017),	 and	 issued	 an	 order	 on	 the	

Department’s	 petition	 on	 December	 21,	 2017.	 	 The	 District	 Court’s	 jeopardy	

determination	relied	in	part	on	the	biting,	stomping,	and	bandage	allegations	

that	the	Probate	Court	heard	and	adjudicated	in	its	October	18,	2017,	judgment.		

In	stark	contrast	to	the	Probate	Court’s	order	for	transitional	services	to	return	

the	children	to	the	mother’s	care,	the	District	Court	ordered	the	Department	to	

cease	 reunification	 with	 the	 mother	 based	 on	 the	 aggravating	 factor	 that	 the	

mother	had	subjected	the	children	to	treatment	that	was	“heinous	or	abhorrent	

to	 society”	 because	 she	 had	 been	 convicted	 of	 criminally	 restraining	 these	

children	and	had	abandoned	her	other	 children,	22	 M.R.S.	§	4002(1-B)(A)(1)	




     6		At	the	hearing	on	November	8,	2017,	the	preliminary	protection	order	was	amended	to	grant	

custody	to	the	Department	after	the	grandmother	voluntarily	relinquished	her	guardianship.		The	
grandmother	was	thereafter	granted	intervenor	status	in	the	child	protection	proceedings.		See	22	
M.R.S.	§	4005-D(5)	(2017).			
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(2017).7		The	permanency	plan	identified	by	the	District	Court	was	termination	

of	the	mother’s	rights	and	adoption	by	the	grandmother.			

         [¶10]		Based	on	the	evidence	before	the	District	Court,	the	court	made	the	

following	findings	of	fact	to	support	its	jeopardy	determination:		

                [The	mother]	has	a	number	of	children,	none	of	whom	are	in	
         her	 custody.	 	 [The	 children]	 have	 lived	 with	 [their	 grandmother]	
         since	2009,	which	is	most	of	their	lives.		Although	their	contact	and	
         visits	with	[their	 mother]	have	waxed	and	waned	over	the	years,	
         the	children	have	not	been	in	the	primary	care	of	their	mother	for	
         over	eight	years.			
                	
                The	last	time	[the	mother]	got	close	to	regaining	custody	was	
         in	2013.		She	was	regularly	seeing	the	children	under	a	transition	
         plan.		For	reasons	unknown	to	this	court,	she	decided	to	abscond	
         with	the	children	from	a	supervised	visit.	.	.	.		Although	the	children	
         were	 physically	 unharmed,	 the	 “kidnapping”	 continues	 to	 loom	
         large	in	their	minds,	especially	for	[the	boy].		
                	
                The	 children	 began	 to	 transition	 again	 to	 their	 mother	 this	
         summer	 and	 were	 having	 regular	 visits.	 	 However,	 once	 again	
         events	occurred	which	halted	the	transition.		The	behaviors	of	the	
         children	after	visits	were	concerning.		[The	girl],	who	is	typically	a	
         shy	and	quiet	girl,	became	increasingly	angry,	defiant	and	agitated	
         after	visits.		[The	boy]	did	not	want	to	go,	saying	he	was	afraid	his	
         mother	 would	 take	 them	 again	 where	 no	 one	 would	 ever	 find	
         them.	.	.	.		
	        	
	        	      .	.	.	.	
	
               [The	 girl]	 was	 coming	 home	 from	 visits	 with	 her	 mother	
         saying	 things	 to	 [the	 grandmother]	 like	 “you	 hate	 me	 and	 my	

    7	 	 The	 District	 Court	 order	also	 cites	22	 M.R.S.	 §	 4002(1-B)(D)	 (2017),	 but	the	 court’s	 analysis	

leading	to	the	finding	makes	clear	that	this	was	a	clerical	error.			
8	

     mother,”	“I	don’t	have	to	listen	to	you,”	“you’re	a	decrepit	old	Nana,”	
     and	 denying	 [the	 boy]	 is	 her	 brother.	 	 [The	 girl’s]	 behaviors	
     culminated	in	the	beginning	of	October	when	she	became	violent	
     and	 threatening	 and	 taken	 into	 crisis.	 	 [The	 grandmother’s	 ex-
     husband,]	who	remains	very	involved	with	the	family[,]	found	that	
     [the	 girl]	 had	 a	 tape	 recorder	 hidden	 in	 her	 shirt.	 	 [The	 girl]	
     reported	that	she	got	it	from	 [the	mother]	in	order	to	record	the	
     conversations	 at	the	 [grandmother’s]	 home.		 [The	grandmother’s	
     ex-husband]	took	it	away,	and	[the	girl’s]	behavior	escalated.	.	.	.			
            			
	    	      .	.	.	.	
            	
            [A	psychologist]	evaluated	[the	mother]	in	2011,	diagnosing	
     her	with	a	personality	disorder	with	paranoid	features	as	well	as	
     an	adjustment	disorder.		He	noted	at	the	time	her	pattern	of	self-
     defeating	behaviors,	her	inability	to	do	what	needed	to	be	done	to	
     get	 her	 children	 back.	 	 After	 reviewing	 documents	 concerning	
     recent	events,	he	felt	that	her	actions	continue	to	be	consistent	with	
     his	 2011	 evaluation:	 she	 still	 does	 not	 understand	 the	 issues	 or	
     demonstrate	 any	 insight,	 she	 has	 not	 accepted	 services,	 and	 she	
     continues	 her	 self-defeating	 behaviors.	 	 [The	 psychologist’s]	
     testimony	 and	 opinions	 are	 consistent	 with	 [the	 mother’s]	
     presentation	 in	 court.	 	 Her	 affect	 in	 the	 court	 was	 flat,	
     demonstrating	 no	 emotion.	 	 She	 seemed	 incapable	 of	
     understanding	 a	 viewpoint	 different	 from	 her	 own,	 of	
     understanding	the	risks	and	benefits	of	different	courses	of	action,	
     or	of	even	making	decisions.		She	has	her	long-held	views	and	sees	
     no	reason	to	even	consider	services	or	change.			
            	
            The	testimony	of	the	children’s	therapist	and	of	the	Guardian	
     ad	litem	ultimately	is	very	persuasive	to	this	court.		[The	therapist]	
     has	been	seeing	the	children	in	therapy	since	2015.		The	children	
     ordinarily	function	quite	well,	until	they	are	stressed	by	the	visits	
     with	 their	 mother.	 	 During	 the	 stress	 of	 visits	 and	 reunification,	
     their	 behaviors	 become	 problematic.	 	 [The	 girl]	 becomes	 angry,	
     threatening	 and	 yells.	 	 [The	 boy’s]	 anxiety	 increases	 and	 he	 has	
     sleep	 difficulties.	 	 Even	 though	 they	 were	 not	 physically	 harmed	
     when	[the	mother]	illegally	took	the	children,	there	has	never	been	
                                                                                       9	

      any	 resolution	 of	 this	 for	 the	 children.	 	 They	 worry	 that	 it	 will	
      happen	 again.	 	 [The	 grandmother]	 has	 provided	 stability	 and	
      consistency,	and	they	feel	safer	with	her.		Such	uncertainty	is	not	
      healthy	for	the	children,	and	their	behaviors	speak	volumes.			
            	
            The	court	has	no	question	that	[the	grandmother	and	her	ex-
      husband]	have	frequently	involved	the	children	in	the	conflict	and	
      adult	issues,	and	have	not	always	followed	through	with	visits	and	
      transition	 plans.	 	 They	 have	 unilaterally	 made	 decisions	 to	 the	
      detriment	of	the	children’s	relationship	with	their	mother.		But	[the	
      mother’s]	actions	have,	without	more,	put	the	children	in	jeopardy.		
      They	 have	 suffered	 serious	 emotional	 harm	 at	 her	 hands,	 and	
      would	continue	to	do	so	if	returned	to	her	care.			
	
	     [¶11]	 	 In	 its	 findings,	 the	 District	 Court	 also	 described	 three	 of	 the	

incidents	 that	 served	 as	 the	 basis	 for	 the	 grandmother’s	 September	 1,	 2017,	

motion	to	the	Probate	Court:		

             In	 late	 August,	 [the	 boy]	 came	 downstairs	 to	 his	
      grandmother;	[the	mother]	was	upstairs.		He	had	bite	marks	on	his	
      right	 shoulder,	 and	 reported	 that	 his	 mother	 bit	 him.	 	 This	 was	
      confirmed	by	[the	girl].	 	While	 apparently	[the	 mother]	regularly	
      playfully	nipped	the	children	on	the	ear	and	the	like,	this	biting	left	
      marks	and	was	not	appropriate.			
             	
             Later	that	same	evening,	[the	grandmother]	was	downstairs	
      and	 [the	 boy]	 was	 playing	 with	 another	 child	 in	 a	 bedroom	 with	
      [the	mother].		[The	grandmother]	heard	[the	boy]	screaming	and	
      rushed	upstairs	to	the	bedroom.		There	she	found	[the	boy]	on	the	
      floor,	the	other	child	“stomping”	on	[the	boy’s]	head,	blood	under	
      him,	and	[the	mother]	sitting	there	and	not	intervening	while	[the	
      boy]	 screamed.	 	 [The	 grandmother]	 was	 able	 to	 separate	 the	
      children	 and	 [the	 boy]	 did	 not	 suffer	 any	 serious	 injury.	 	 When	
      asked	why	she	did	not	intervene	to	protect	[the	boy],	the	mother	
      said	 she	 cannot	 touch	 another	 child.	 	 Even	 afterwards	 she	
      maintained	that	she	would	not	have	done	anything	differently.		
10	

             	
             A	few	days	later,	on	August	30,	[the	boy]	placed	band-aids	on	
      his	face	before	a	visit	with	his	mother.		[The	grandmother]	gave	him	
      a	magic	marker,	 and	he	wrote	on	the	bandages	 something	to	the	
      effect	of	“why	are	you	kidnapping	me	again.”		Rather	than	consoling	
      him	 or	 talking	 about	 his	 concerns,	 [the	 mother]	 ripped	 the	
      bandages	off,	apparently	oblivious	to	any	problem.			
	
      [¶12]	 	 Unlike	 the	 District	 Court,	 the	 Probate	 Court	 previously	 rejected	

accounts	 of	 these	 incidents	 because	 the	 grandmother	 did	 not	 present	

“convincing	evidence”	of	her	allegations	and	the	Probate	Court	concluded	that	

the	 evidence	 did	 not	 “suggest[]	 circumstances	 of	 jeopardy	 to	 the	 children’s	

health	and	welfare.”		(Quotation	marks	omitted.)			

	     [¶13]		The	mother	timely	appealed	the	District	Court’s	judgment.		See	22	

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

                                  II.		DISCUSSION	

A.	   Res	Judicata	

	     [¶14]		The	mother	argues	that	the	District	Court	erred	when	it	concluded	

that	the	doctrine	of	res	judicata	did	not	make	the	orders	of	the	Probate	Court	

binding	on	the	Department.		She	asserts	that	the	Department	was	barred	from	

relitigating	its	claim	that	the	mother	exposed	the	children	to	jeopardy	and	that	

the	 Department	 was	 estopped	 from	 contesting	 factual	 findings	 issued	 by	 the	
                                                                                        11	

Probate	Court.		We	review	de	novo	a	determination	that	res	judicata	does	not	

bar	litigation.		See	Guardianship	of	Jewel	M.,	2010	ME	80,	¶	38,	2	A.3d	301.	

	      [¶15]		“The	doctrine	of	res	judicata	.	.	.	is	a	court-made	collection	of	rules	

designed	to	ensure	that	the	same	matter	will	not	be	litigated	more	than	once.”		

Pushard	v.	Bank	of	Am.,	N.A.,	2017	ME	230,	¶	19,	175	A.3d	103	(quotation	marks	

omitted).	 	 Res	 judicata	 encompasses	 two	 different	 legal	 theories:	 claim	

preclusion	 (bar)	 and	 issue	 preclusion	 (collateral	 estoppel).	 	 See	 id.	 “Claim	

preclusion	prohibits	relitigation	of	an	entire	cause	of	action	between	the	same	

parties	 or	 their	 privies,	 once	 a	 valid	 final	 judgment	 has	 been	 rendered	 in	 an	

earlier	suit	on	the	same	cause	of	action.”		Id.	(quotation	marks	omitted).		“Issue	

preclusion	.	.	.	prevents	the	relitigation	of	factual	issues	already	decided	if	the	

identical	 issue	 was	 determined	 by	 a	 prior	 final	 judgment,	 and	 .	 .	 .	 the	 party	

estopped	 had	 a	 fair	 opportunity	 and	 incentive	 in	 an	 earlier	 proceeding	 to	

present	 the	 same	 factual	 issue	 or	 issues	 it	 wishes	 to	 litigate	 again	 in	 a	

subsequent	 proceeding.	 	 Collateral	 estoppel	 arises	 only	 if	 the	 identical	 issue	

necessarily	 was	 determined	 by	 a	 prior	 final	 judgment.”	 	 Guardianship	 of	

Jewel	M.,	 2010	 ME	 80,	 ¶	39,	 2	 A.3d	 301	 (citations	 omitted)	 (quotation	 marks	

omitted).		“Principles	of	res	judicata	must	be	applied	with	caution	in	domestic	

relations	cases,	as	new	developments	often	inform	decisions	as	to	what	may	be	
12	

in	 the	 best	 interest	 of	 a	 child	 in	 circumstances	 where	 relationships	 must	

continue	and	will	change	over	time	until	a	child	reaches	majority.”		Id.	¶	41.			

      [¶16]		Common	to	both	legal	theories	is	the	requirement	that	the	party	

sought	to	be	barred	or	estopped	from	litigating	the	claim	or	issue	was	a	party	

or	privy	to	a	party	in	the	earlier	case.		See	In	re	M.M.,	2014	ME	15,	¶	16,	86	A.3d	

622	(explaining	that	claim	preclusion	 requires	that	the	same	parties	or	their	

privies	are	involved	in	both	actions);	Beal	v.	Allstate	Ins.	Co.,	2010	ME	20,	¶	18,	

989	 A.2d	 733	 (explaining	 that	 where,	 as	 here,	 “a	 party	 asserting	 nonmutual	

collateral	estoppel—where	the	parties	are	not	the	same	parties	or	privies	to	the	

prior	proceeding—must	establish	that	the	party	to	be	estopped	was	a	party	or	

in	privity	with	a	party	in	the	prior	proceeding”).		Because	the	Department	was	

not	 a	 party	 to	 the	 probate	 proceeding,	 we	 will	 not	 apply	 res	 judicata	 to	 the	

probate	 proceedings	 unless	 we	 conclude	 that	 the	 Department	 was	 in	 privity	

with	the	grandmother.			

      [¶17]		“Privity	exists	when	two	parties	have	a	commonality	of	ownership,	

control,	and	interest	in	a	proceeding.”		In	re	M.M.,	2014	ME	15,	¶	16,	86	A.3d	

622	 (quotation	 marks	 omitted).	 	 We	 agree	 with	 the	 District	 Court	 that	 the	

grandmother	 and	the	 Department	 did	 not	have	the	same	ownership,	control,	

and	 interest	 in	 the	 probate	 proceedings.	 	 Although	the	 Department	 has	 been	
                                                                                        13	

involved	 with	 the	 family	 over	 the	 years	 and	 a	 Department	 caseworker	 was	

called	to	testify	at	the	September	2017	probate	hearing,	the	court	was	correct	

when	 it	 determined	 that	 “[t]he	 Department	 could	 advise	 and	 inform	 [the	

grandmother],	but	[it]	could	not	control	her	actions	or	interests	in	the	probate	

proceeding.”			

       [¶18]	 	 Contrary	 to	 the	 mother’s	 contentions,	 the	 Department	 and	 the	

grandmother	did	not	have	the	same	interest	in	the	proceeding,	either.		We	agree	

with	the	District	Court	that	“[t]he	Department’s	interest	is	defined	by	statute;	

even	 if	 [the	 grandmother	 had]	 the	 best	 interest	 of	 the	 children	 at	 heart,	 [the	

grandmother	 had]	 her	 own	 interest	 at	 stake.”	 	 By	 statute,	 the	 Department	 is	

required	 “to	 protect	 abused	 and	 neglected	 children	 and	 children	 in	

circumstances	that	present	a	substantial	risk	of	abuse	and	neglect,	to	prevent	

further	abuse	and	neglect,	to	enhance	the	welfare	of	these	children	and	their	

families	 and	 to	 preserve	 family	 life	 wherever	 possible.”	 22	M.R.S.	 §	 4004(2)	

(2017).		The	Department	is	also	required	to	file	petitions	for	child	protection	if,	

after	 investigation,	 the	 Department	 “determines	 that	 a	 child	 is	 in	 immediate	

risk	 of	 serious	 harm	 or	 in	 jeopardy	 as	 defined	 in	 [chapter	 1071].”	 	 22	 M.R.S.	

§	4004(2)(F).		At	the	jeopardy	hearing,	the	court	must	make	a	determination	of	

the	 question	 of	 jeopardy.	 	 See	 22	 M.R.S.	 §	 4035(2)	 (2017).	 	 Thus,	 the	
14	

Department’s	interest	in	a	child	protection	proceeding	can	be	characterized	as	

protecting	 the	 child	 from	 jeopardy	 and	 enhancing	 the	 child’s	 welfare,	 and	

because	 the	 Department	 must	 preserve	 family	 life	 whenever	 possible,	 the	

Department	 must	 aid	 the	 court	 in	 reaching	 the	proper	 determination	 on	 the	

question	of	jeopardy.	

      [¶19]	 	 In	 contrast,	 the	 statute	 governing	 guardians	 does	 not	 compel	 a	

guardian	to	align	her	interests	with	the	Department’s	interests	and	statutory	

obligations.		See	18-A	M.R.S.	§	5-209	(2017)	(explaining	that	the	guardian	has	

the	powers	and	responsibilities	of	a	parent).		The	guardian	is	permitted	to	act	

with	 the	 goal	 of	 retaining	 custody,	 and	 that	 interest	 may	 conflict	 with	 the	

Department’s	 interest	 in	 protecting	 children	 and	 preserving	 family	 life	

whenever	possible.		In	this	case,	the	District	Court	found	that	the	grandmother	

has	 involved	 the	 children	 in	 the	 conflict	 with	 the	 mother	 and	 has	 made	

decisions	 to	 the	 “detriment	 of	 the	 children’s	 relationship	 with	 their	 mother,”	

which	suggests	that	she	was	not	interested	in	preserving	the	family	and	has	not	

always	acted	to	“enhance	the	welfare”	of	the	children.		See	22	M.R.S.	§	4004(2).	

      [¶20]		The	court	did	not	err	when	it	declined	to	apply	res	judicata	in	this	

case	because	the	Department	and	the	grandmother	were	not	in	privity	in	the	

probate	proceedings.		In	order	to	fulfill	its	legislative	mandate,	the	Department	
                                                                                    15	

was	not	barred	from	litigating	its	claim	that	the	children	were	in	jeopardy	and	

presenting	evidence	on	issues	already	decided	by	the	Probate	Court.			

B.	   Due	Process	

	     [¶21]		The	mother	next	argues	that	the	Department	and	the	District	Court	

violated	 her	 due	 process	 rights	 when	 she	 was	 subjected	 to	 a	 second	 judicial	

proceeding	on	the	same	claims	and	facts	that	the	Probate	Court	decided	in	her	

favor	while	the	child	protection	proceedings	were	pending.			

	     [¶22]		We	described	a	parent’s	right	to	due	process	in	child	protection	

proceedings	and	the	applicable	test	in	our	decision	in	In	re	M.P.:	

              When	 analyzing	 whether	 a	 party	 was	 afforded	 the	 process	
       that	is	due,	we	balance	the	three	factors	articulated	by	the	Supreme	
       Court	 of	 the	 United	 States	 in	Mathews	 v.	 Eldridge,	 424	 U.S.	 319	
       [(1976)]:	
              	
              First,	 the	 private	 interest	 that	 will	 be	 affected	 by	 the	
              official	 action;	 second,	 the	 risk	 of	 an	 erroneous	
              deprivation	 of	 such	 interest	 through	 the	 procedures	
              used,	 and	 the	 probable	 value,	 if	 any,	 of	 additional	 or	
              substitute	 procedural	 safeguards;	 and	 finally,	 the	
              Government’s	interest,	including	the	function	involved	
              and	 the	 fiscal	 and	 administrative	 burdens	 that	 the	
              additional	 or	 substitute	 procedural	 requirement	
              would	entail.	
              	
In	re	M.P.,	2015	ME	138,	¶¶	30-31,	126	A.3d	718	(citations	omitted)	(quotation	

marks	omitted).		Our	review	of	an	alleged	constitutional	violation	is	de	novo.		

See	State	v.	Jones,	2012	ME	126,	¶	35,	55	A.3d	432.	
16	

	     [¶23]	 	 With	 regard	 to	 the	 first	 factor,	 the	 mother’s	 right	 “to	 make	

decisions	 concerning	 the	 care,	 custody,	 and	 control	 of	 [her	 children]”	 is	 a	

fundamental	liberty	interest	that	is	protected	by	the	Due	Process	Clause.		See	

Rideout	 v.	 Riendeau,	 2000	 ME	 198,	 ¶	 18,	 761	 A.2d	 291	 (quotation	 marks	

omitted).		That	constitutional	liberty	interest	is	not	absolute	or	free	from	state	

interference,	 and	 although	 the	 Due	 Process	 Clause	 provides	 heightened	

protection	 against	 state	 intervention,	 it	 is	 “not	 an	 impenetrable	 wall	 behind	

which	parents	may	shield	their	children.”		Id.	¶	19.		As	to	the	third	factor,	“the	

State	 has	 a	 compelling	 interest	 in	 limiting,	 restricting,	 or	 even	 terminating	 a	

parent’s	 rights	 when	 harm	 to	 the	 child	 will	 result	 from	 the	 absence	 of	 such	

governmental	interference,”	Pitts	v.	Moore,	2014	ME	59,	¶	14,	90	A.3d	1169,	as	

well	as	“a	significant	interest	in	obtaining	stability	and	permanency	for	children	

within	a	reasonable	time,”	In	re	M.P.,	2015	ME	138,	¶	32,	126	A.3d	718.			

      [¶24]		Bearing	these	competing	interests	in	mind,	we	consider	the	second	

factor	 and	 what	 due	 process	 necessitates	 in	 child	 protection	 proceedings:	

“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	 fact-finder.”	 	 In	 re	 Robert	 S.,	 2009	 ME	 18,	 ¶	 14,	 966	 A.2d	 894	

(quotation	 marks	 omitted).	 	 The	 mother	 argues	 that	 the	 District	 Court	
                                                                                     17	

proceedings	“deprived	her	of	a	meaningful	process	to	vindicate	her	rights,”	but	

she	does	not	point	to	a	deprivation	of	any	particular	procedural	right.		Indeed,	

the	record	shows	that	the	mother	had	notice	of	the	issues,	was	represented	by	

counsel,	 was	 present	 at	 the	 District	 Court	 hearings,	 introduced	 evidence	 and	

presented	witnesses,	cross-examined	the	Department’s	witnesses,	and	had	an	

impartial	 fact-finder	 who	 ensured	 that	 she	 understood	 the	 potential	

consequences	 associated	 with	 the	 proceedings.	 	 See	 id.	 	 It	 is	 true	 that	 the	

Probate	 Court	 and	 District	 Court	 reached	 different	 conclusions	 after	 hearing	

some	of	the	same	evidence	and	from	some	of	the	same	witnesses,	but	this	does	

not	 amount	 to	 a	 deprivation	 of	 being	 heard	 in	 a	 meaningful	 time	 and	 in	 a	

meaningful	manner.		See	In	re	M.P.,	2015	ME	138,	¶	38,	126	A.3d	718.	

                                  III.		CONCLUSION	

      [¶25]	 	 We	 conclude	 that	 the	 procedures	 followed	 by	 the	 District	 Court	

were	adequate	to	protect	the	mother’s	liberty	interest	while	at	the	same	time	

safeguarding	 the	 State’s	 interest	 in	 protecting	 these	 children	 and	 promoting	

stability	and	permanency	without	further	delay.		See	id.	¶	37.		No	due	process	

violation	has	been	demonstrated	on	this	record.		Further,	although	not	argued	

by	 the	 mother,	 the	 District	 Court’s	 findings	 are	 supported	 by	 competent	

evidence	in	the	record	that	can	rationally	be	understood	to	establish	as	more	
18	

likely	 than	 not	 that	 the	 children	 were	 in	 circumstances	 of	 jeopardy	 to	 their	

health	and	welfare.		See	22	M.R.S.	§	4035(2);	In	re	Nicholas	S.,	2016	ME	82,	¶	9,	

140	A.3d	1226.		Accordingly,	we	affirm	the	court’s	jeopardy	determination.	

       [¶26]	 	 Finally,	 we	 note	 that,	 in	 spite	 of	 the	 significant	 benefits	 and	

protections	 provided	 by	 the	 Home	 Court	 Act,	 4	 M.R.S.	 §	 152(5-A),	 this	 case	

highlights	 a	 problem	 that	 may	 recur	 because	 the	 District	 Court	 and	 Probate	

Court	continue	to	have	jurisdiction	over	child-related	litigation	that	may	permit	

nearly	simultaneous	proceedings	in	each	forum	concerning	custody	of	the	same	

children.	 	 See	 4	 M.R.S.	 §	 152(5-A);	 see,	 e.g.,	 18-A	 M.R.S.	 §	5-102	 (granting	 the	

Probate	 Court	 exclusive	 jurisdiction	 over	 guardianship	 proceedings,	 subject	

only	 to	 the	 Home	 Court	 Act,	 4	 M.R.S.	 §	152(5-A));	 22	 M.R.S.	 §	4031	 (2017)	

(giving	 the	 District	 Court	 exclusive	 jurisdiction	 over	 child	 protection	

proceedings,	except	that	the	Probate	Court	and	Superior	Court	have	concurrent	

jurisdiction	to	act	on	requests	for	preliminary	child	protection	orders	pursuant	

to	 22	 M.R.S.	 §	 4034	 (2017)).	 	 Because	 the	 Department	 did	 not	 file	 a	 child	

protection	proceeding	in	the	District	Court	until	the	Probate	Court	was	about	

to	issue	a	final	order	in	the	probate	case,	even	under	the	Home	Court	Act,	the	

District	Court	had	no	occasion	to	consolidate	the	proceedings	until	there	had	

already	been	a	significant	litigation	event.	
                                                                                       19	

      [¶27]		In	the	end,	the	jurisdictional	overlap	led	to	the	situation	in	this	case	

where	much	of	the	same	evidence	regarding	the	custody	and	best	interests	of	

the	same	children	was	heard	in	two	different	forums,	applying	similar	but	not	

identical	 standards.	 	 Given	 the	 separately	 created	 jurisdictions	 of	 the	 two	

courts,	the	differing	parties,	and	the	different	standards	at	play	as	between	a	

guardianship	and	a	child	protection	proceeding,	the	resulting	determinations	

of	the	District	Court	could	lawfully	vary	substantially	from	those	of	the	Probate	

Court.	 	 The	 fact	 that	 the	 children	 were	 the	 subject	 of	 five	 different	 custody	

orders	between	August	and	 December	 2017,	 and	that	the	courts	could	 reach	

such	 substantially	 different	 results,	 creates	 an	 understandable	 sense	 of	

frustration	 for	 the	 families	 involved.	 	 Until	 a	 unified	 system	 of	 child-related	

litigation	 is	 established	 by	 the	 Legislature,	 these	 distressing	 events	 may	

continue	to	occur.	

      The	entry	is:	

                    Judgment	affirmed.		         	
	
	     	      	      	      	      	
20	

Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	mother	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	
Human	Services	
	
Elyse	 Marye	 Apantaku,	 Esq.,	 Schneider	 &	 Brewer,	 Waterville,	 for	 appellee	
grandmother	
	
	
Waterville	District	Court	docket	numbers	PC-2017-41	and	PC-2017-42	
FOR	CLERK	REFERENCE	ONLY	
