MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:    2016 ME 1
Docket:      Cum-15-43
Submitted
  On Briefs: July 23, 2015
Argued:      December 9, 2015
Decided:     January 7, 2016

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



                                       IN RE M.E.

PER CURIAM

         [¶1] This is the second appeal in this child protection matter. In the first

appeal, we affirmed the order of the District Court (Portland, Powers, J.) finding

that M.E.’s father had placed her in circumstances of jeopardy to her health or

welfare. In re M.E., 2014 ME 98, ¶ 19, 97 A.3d 1082; see 22 M.R.S. § 4035

(2015). The father now challenges the court’s termination of his parental rights to

M.E. on grounds that the procedures undertaken by the court violated his due

process rights, and that there is insufficient evidence in the record to support the

court’s judgment. We disagree and affirm the judgment.

                                  I. BACKGROUND

         [¶2] Our decision in In re M.E. contains a detailed recitation of the facts and

procedure up to that point, 2014 ME 98, ¶¶ 2-14, 97 A.3d 1082.                 To avoid

duplication, we focus on the court’s findings, which are supported by the record,

regarding the events that have occurred since In re M.E. was issued.
2

       [¶3] The father has continued to discount the severity of the child’s medical

problems, refused to acknowledge his role in her illness or the effect of his own

behavior on the child, and either cannot or will not agree to follow the medical

instructions that would keep her healthy.        He has not complied with any

rehabilitation or reunification requirements, and he remains unable to care for the

child’s needs. Because of his intemperate actions, the father was discharged by

two individual counselors, one of whom he had selected himself. He refused to

cooperate with various community agencies. The father has not seen the child

since July of 2014 and, since he moved to Missouri in August or September of

2014, the father has failed to contact the Department of Health and Human

Services or anyone else about his child. Nevertheless, he blames the Department

for his failure to see her.

       [¶4] The father has been diagnosed with post-traumatic stress disorder,

paranoid personality disorder, and social and refugee issues, and has been very

difficult to work with. He has threatened suicide, for which he was involuntarily

hospitalized for several days. He is loud, angry, defiant, aggressive, intimidating,

and accusatory during medical appointments and team meetings. Three

pediatricians have attempted and failed in their attempts to work with the father.

His behavior required the Department to arrange for two police officers and two

case aides to attend his supervised visits with the child.   During those visits, he
                                                                                      3

engaged in inappropriate behavior, and the visits were at times suspended because

he failed to comply with visit rules. The father has also been required to leave the

courtroom at times based on his disruptive behaviors. Throughout the proceedings,

the father refused to cooperate with the multiple attorneys appointed to represent

him. Although the father testified that he wanted to return to Maine, forgive

everyone involved in the proceedings, and work to get the child back, the court

found that “[t]his last minute statement of contrition” was not credible.

      [¶5] The court also provided the father with Russian language interpreters at

state expense throughout the proceedings, including during meetings with his

attorney, team meetings, court hearings and conferences, the child’s medical

appointments, and visits with the child.      Documents were translated between

Russian and English for the benefit of the father. Ultimately, the court found that

      [t]he court and providers have gone well beyond the norm to help
      these parents, including the use of interpreters, and regularly
      translated court and [guardian ad litem] documents. Nothing has
      seemed to help. These parents have tested the patience of providers
      and court personnel. This court has not ever encountered parental
      obstinance like this.

      [¶6] The child has improved substantially in foster care, but continues to

suffer from some food-related problems that require special care; she has a gastric

tube from which she receives about thirty percent of her calories. The foster

parents have monitored the child’s condition, appropriately fed the child and
4

maintained the equipment to do so, and cooperated with medical instructions. The

child is bonded with them, and they wish to adopt her.

        [¶7] On August 1, 2014, the Department filed a petition for termination of

parental rights.1        The court scheduled a trial management conference for

December 1, 2014, and later scheduled the trial itself for December 4 and 5, 2014.

The court found that the father was notified of these dates by his attorney. The

father did not appear at either the trial management conference or the termination

hearing. On December 4, the court conducted a full evidentiary hearing during

which the Department presented six witnesses and ten exhibits; even in the absence

of the father’s cooperation, the father’s attorney cross-examined each of those

witnesses and made a closing statement.

        [¶8]    On December 8, 2014, the father appeared at the courthouse.

Notwithstanding the father’s failure to attend the termination hearing, the court

reopened the evidence and allowed him to testify that day. By judgment dated

December 11, 2014, the court terminated the father’s rights to the child after

finding all four grounds of parental unfitness—that the father is unwilling or

unable to protect the child from jeopardy, is unwilling or unable to take

responsibility for the child, has abandoned the child, and has failed to make a good

    1
      The proceedings also resulted in the termination of the mother’s parental rights. The mother does
not appeal from that judgment.
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faith effort to rehabilitate and reunify with the child—and that termination is in the

child’s best interest. See 22 M.R.S. § 4055(1)(B)(2) (2015).

        [¶9] On December 22, 2014, the father moved for a new trial and to set

aside the termination judgment, which he argued was a default judgment.

See M.R. Civ. P. 55, 59, 60. By a post-judgment order entered on January 5, 2015,

the court denied the motions.                  The father filed a notice of appeal on

January 22, 2015.

                                         II. DISCUSSION

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

court’s finding that he is unwilling or unable to protect the child from jeopardy.2


   2
      We assume without deciding that the appeal is both timely and justiciable. The father’s notice of
appeal was filed within twenty-one days after the entry of the post-judgment order on the father’s motions
for a new trial and for relief from judgment, but not within twenty-one days after the entry of the
termination judgment itself. See M.R. App. P. 2(b)(3). We have never applied to child protection matters
the appeal period extension of Rule 2(b)(3), and, more generally, we have not yet evaluated whether and
to what extent traditional civil motion practice is permissible, appropriate, or appealable in child
protection cases in particular. See 22 M.R.S. § 4006 (2015); see also M.R. App. P. 2(b)(4), 3(b).
Although the timeliness and justiciability of the father’s appeal were not raised by the parties, we asked
the parties to submit additional briefing—and invited the submission of amicus curiae briefs—on the
following issues:

        1. Whether 22 M.R.S. § 4006 precludes the termination of the appeal period pursuant to
           M.R. App. P. 2(b)(3) when a party files a post-judgment motion enumerated in the
           rule, thereby requiring a party to file any notice of appeal within 21 days after the
           entry of the original judgment regardless of any post-judgment motions;

        2. Whether 22 M.R.S. § 4006 precludes appellate review of an order entered on a
           post-judgment motion enumerated in M.R. App. P. 3(b), despite the provisions of
           M.R. App. P. 2(b)(4); and

        3. Whether 22 M.R.S. § 4006 precludes appellate review from an order on a motion
           pursuant to M.R. Civ. P. 60(b) for relief from a judgment that is appealable pursuant
           to section 4006.
6

See 22 M.R.S. § 4055(1)(B)(2)(b)(i). The father does not challenge the other three

grounds of parental unfitness as found by the trial court, however, and the court

need only find one ground of parental unfitness to support a termination of parental

rights. See In re A.H., 2013 ME 85, ¶ 14, 77 A.3d 1012. The court’s finding of

parental unfitness is therefore supported on that basis alone.

       [¶11] In any event, there was sufficient evidence to support the court’s

findings of parental unfitness on the ground of the father’s unwillingness or

inability to protect the child from jeopardy. See In re M.B., 2013 ME 46, ¶ 37,

65 A.3d 1260. The court also did not err or abuse its discretion in determining that

termination is in the child’s best interest. See In re Thomas H., 2005 ME 123,

¶ 16, 889 A.2d 297. The father, when faced with a child in a life-threatening

situation, failed to understand the seriousness of the child’s medical condition or

his role in the condition, and he refused to follow the medical instructions of the

child’s providers. In the more than eighteen months during which these child

protection proceedings were pending in the District Court, the father also refused

to comply with any rehabilitation and reunification requirements.

       [¶12] In addition, the court found that the father is unable to place the

child’s needs before his own substantial anger and paranoia, characterizing the


Given the father’s lack of any meritorious argument on the merits and the lack of any amicus curiae
briefs, we save for another day our analysis of these important and complex issues.
                                                                                    7

father as “beyond difficult and uncooperative,” “extremely loud and accusatory,”

“aggressive[],” “out of control,” “disrupti[ve],” “intimidat[ing],” and “angry and

defiant,” for example.    These findings are supported by the following record

evidence. The father called one of the child’s pediatricians “crazy,” an “idiot,” and

a “clown,” and joked about bashing in the pediatrician’s head with a hammer and

poking out his eye with a pen. The father accused the child’s medical providers of

wanting the child to die so that they could “make money harvesting her organs.”

He put his hand across his neck to intimidate a child protective worker, and talked

about wanting to “cut people’s heads off.” A police officer described the father as

a “powder keg waiting to explode” at team meetings and called the father’s

continued participation in such meetings “a recipe for disaster.” The guardian ad

litem reported that the father’s statements “have gone outside the realm of societal

decency,” and that he has openly insulted all of those involved with his child’s care

and called some of them “pederasts.” He threatened to hang himself in the medical

clinic treating the child, and attempted to use his other child as a human shield. He

has told the child that the foster father is “the devil.” Dr. Lawrence Ricci, from the

Spurwink Child Abuse Program, reported, “I’ve never had a situation where a

family was quite this persistently difficult, in fact, impossible to work with.” The

record contains numerous other such evidentiary details.
8

        [¶13] The father also argues that the court, the Department, and all other

involved persons demonstrated prejudice against him based on his national origin

and immigration status. In contrast, the court expressly found that the attorneys,

the court staff, the medical providers, and the Department’s employees more than

accommodated the language barrier and any cultural differences.                                 The record

supports the court’s findings and demonstrates the efforts the court made to

accommodate an extremely difficult litigant.                          The record is replete with

documentation of the interpreters provided to the father at state expense at every

stage of the proceedings—including meetings with his attorney, team meetings,

court hearings and conferences, the child’s medical appointments, and visits with

the child. In addition, the court arranged to have countless documents translated

from Russian to English and vice versa for the benefit of the father.

        [¶14] After a thorough review of the entire record, we conclude that it is

devoid of any suggestion that any party, provider, or witness, or the trial court

judge himself, exhibited any such prejudice.3 We cannot discern whether the


    3
     In addition, the father never sought the recusal of the trial court judge. Rather, when the father’s
current attorneys began to represent him, after the court had issued its order terminating the father’s
parental rights, the father’s attorneys suggested as follows:

            It is apparent that this Court has heard much in this case and has reached conclusions
        regarding [the father] based on the State’s evidence and [the father’s] behavior in this
        proceeding. In light of this, [the father] believes that it would be beneficial for a different
        judge to review this case moving forward. This is not an aspersion against the skill of the
        sitting judge, but rather an effort to relieve any fatigue, so to speak, that may have come
        from the long and unusual track this litigation has taken. It may also be helpful to have a
                                                                                                        9

father’s contention of prejudice originated with the father himself, who clearly

struggles with mental health challenges that he claims were caused or exacerbated

by torture and trauma he suffered before his arrival in the United States, or with the

father’s attorneys. In either event, when pressed at oral argument, the father’s

attorney was unable to provide any reasonable support for this accusation.4

        [¶15] We are dismayed by the hyperbolic and vitriolic manner in which the

father’s entire argument was presented in his brief, as written by his attorneys. For

example, the brief asserts that the court did “a bad thing”; condoned a “playground

game [of] telephone” and a “gossip game”; credited a “cartoonish” exchange “on

the level of ‘me Tarzan, you Jane’”; and “added insult to injury.” The brief

characterizes various aspects of the proceedings as “insidious,” “chilling,”

“bizarre,”        “shocking,”          “outrageous,”          “disturbing,”          “unfathomable,”

“contaminat[ed],” “absurd,” “incredible,” and “evidence of the court’s own

fatigue,” and states that the decision constitutes a “horrendous wrong” that must be



        new judge handle this matter so that opinions as to [the father] arising from his
        eccentricities, which have been clearly on display, may not color the issue of justice for
        him and his family. The undersigned wishes it to be understood that there is no intended
        disrespect in this request.

See Samsara Mem’l Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107, ¶ 25, 102 A.3d 757 (“When a
party fails to make a timely motion for recusal before the entry of judgment, that party has forfeited its
objection to the judge’s qualification and cannot be heard to complain following a result alleged to be
unfair.”).
   4
      The father’s remaining contentions—regarding notice of the termination hearing, the preservation of
his right to counsel, and the extent of the findings made by the District Court—also are not persuasive.
10

“purged.” The brief refers to the trial as a “tapestry of ethnocentric nationalism on

display” against a “backdrop of . . . pervasive flaws,” notes that the court was

aware of the child’s heritage only in “the way one might be mindful of a hole in a

driveway,” accuses the court of undertaking a “casual disregard for the dignity of

[the father’s] language and culture,” suggests that the family’s providers used

“stereotypical and reductivist language,” and cautions that a judgment in the

Department’s favor would “put the judges hearing these cases in the position of

being able to act with impunity for overt constitutional deprivations.” Again, none

of these assertions is borne out by the record, nor could counsel point to anything

supporting the allegations when given that opportunity at oral argument. Such

baseless assertions have no place in the courts of Maine or any other jurisdiction.5

         [¶16] Finally, the brief suggests that “[t]his Court should not be enticed to

reduce the strong due process protections it has announced to a rubber stamp.”

Rather than demonstrating a “rubber stamp” approach, the process in this case

reflects careful adherence to the principles established through legislation and




     5
     Cf. M.R. Prof. Conduct 3.5 cmt. (4) (“Refraining from abusive or obstreperous conduct is a corollary
of the advocate’s right to speak on behalf of litigants.”); In re Jon N., 2000 ME 123, ¶ 6, 754 A.2d 346
(noting, with disapproval, the “extensive hyperbole employed in the [parent’s] brief”). This practice of
making unsupported allegations of prejudice is neither appropriate nor successful. See, e.g., In re I.S.,
2015 ME 100, ¶ 8, 121 A.3d 105 (“Contrary to the father’s contentions, there is not even a suggestion in
the record that the court terminated his parental rights solely because he has been diagnosed as having a
borderline personality disorder.”).
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court policy that are designed to assure that a parent’s rights and need for

resources—such as language services—are recognized.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Aaron B. Rowden, Esq., and Jared S. Brewer, Esq., Schneider
        & Brewer, Waterville, for appellant father

        Janet T. Mills, Attorney General, and Meghan Szylvian, Asst.
        Atty. Gen., Office of the Attorney General, Augusta, for the
        Department of Health and Human Services


At oral argument:

        Jared S. Brewer, Esq., for appellant father

        Meghan Szylvian, Asst. Atty. Gen., for the Department of
        Health and Human Services



Portland District Court docket number PC-2013-27
FOR CLERK REFERENCE ONLY
