MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
Decision: 2016 ME 80
Docket:   Cum-15-461
Argued:   February 11, 2016
Decided:  May 26, 2016

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



                              GUARDIANSHIP OF HAILEY M.

SAUFLEY, C.J.

         [¶1] The mother of sixteen-year-old Hailey M.1 appeals from a judgment

entered by the Cumberland County Probate Court (Mazziotti, J.) granting Hailey’s

paternal grandparents’ petition for guardianship.                    The mother challenges the

court’s findings and argues that the award of full guardianship—rather than a

limited guardianship—to the paternal grandparents, with no arrangement for

transition back into the mother’s home, unreasonably infringed on her fundamental

right to parent her daughter in violation of her substantive due process rights. We

affirm the judgment.

                                        I. BACKGROUND

         [¶2] In September 2014, Hailey’s mother petitioned the Cumberland County

Probate Court for Hailey’s paternal grandparents to be appointed as guardians so

that Hailey could attend school in Freeport, where the grandparents live. The

   1
      On motion of one of the parties, the Court has allowed the use of this confidential naming protocol.
Cf. 18-A M.R.S. §§ 5-101 to 5-213 (2015).
2

mother withdrew the petition in November 2014 because the petition had been

sought “for an educational purpose that [was] no longer needed.”          The court

dismissed the petition.

      [¶3] On December 12, 2014, the grandparents petitioned to have themselves

appointed as the guardians of the child on the grounds that the child needed a safe

and supportive environment, and had threatened to run away from her mother’s

house if she could not stay at her grandparents’ house. The child began to live

with her grandparents in January 2015.       The child’s father consented to the

guardianship, but her mother did not.

      [¶4] A trial was held on July 9, 2015, at which the court heard testimony

from the child, who was then fifteen years old; her parents; her grandmother; and a

clinician who had provided home and community treatment services to the child

and her mother. The parties also stipulated that the grandfather agreed with the

grandmother that the two of them should become guardians for the child.

      [¶5]   The court entered a judgment finding, by clear and convincing

evidence, that the mother had created a living situation that was at least

temporarily intolerable for the child and that a guardianship with the paternal

grandparents was in the child’s best interest. It found that the mother had shown

an inability to meet the child’s needs that threatened the child’s well-being and

could result in trauma to the child if she remained with the mother. The court also
                                                                                                           3

found that the grandparents were qualified and able to care for the child, and that

the appointment was necessary and in the best interest of the child, who agreed

with the creation of a guardianship. The court ordered that contact between the

mother and the child not be obstructed or restricted if the child desires contact, and

that the grandparents “encourage and facilitate a healthy relationship between

mother and daughter.”

        [¶6] The mother moved for additional findings of fact and for a conclusion

that the grandparents had failed to prove the mother’s unfitness by clear and

convincing evidence. In that motion, the mother also asked the court to indicate

whether it had considered ordering a limited guardianship or a reunification plan

with the mother.

        [¶7]     The court entered findings of fact and conclusions of law on

August 27, 2015.          The court ultimately found that a full guardianship in the

grandparents was warranted. In its order, the court did not make extensive findings

of fact but instead primarily summarized the witnesses’ testimony.2 Apart from

noting an inconsistency in the mother’s testimony about how many times the child

had run away, the court did not indicate which testimony it found credible. We

   2
      Because a record of the testimony must be kept in proceedings pertaining to the guardianship of a
minor, see M.R. Prob. P. 76H; M.R. Civ. P. 76H; Recording of Trial Court Proceedings, Me. Admin.
Order JB-12-1 § II (as amended by A. 11-14) (effective Nov. 24, 2014), it is not necessary for the court to
recite or summarize the testimony in its judgment. The best, and most efficient, practice is for the court to
expressly state the facts that it found to be true.
4

therefore focus on the following findings that the court did make in support of its

conclusion that the mother had created an at least temporarily intolerable living

situation.

      [¶8] The court explicitly found that the mother had created an abusive

environment in which the child was hurting herself and running away, and that the

mother was unable to meet the child’s mental health needs. The court further

found that the mother’s conduct toward the child had caused, or at least

exacerbated, the child’s unsafe behaviors, resulting in a home environment that

was unfit and not suited to meeting the child’s needs.

      [¶9]    Supporting these findings, the record includes evidence of the

following facts. When the child lived with her mother, the mother took out her

aggressions on the child and would swear, scream, and yell at her. The child

inflicted harm on herself, as evidenced by slash marks on her arms and calls the

father received from the school nurse. The child threatened to hurt herself if she

had to stay with the mother, and she underperformed at school in hope that she

would be allowed to leave the mother’s home. The child has given up on her

relationship with her mother after repeated attempts to repair it with the help of

counselors.   The child’s interactions with her mother exacerbated the child’s

symptoms of anxiety, depression, and isolation. If she were forced to live with the

mother, the child would run away again.
                                                                                 5

      [¶10] The child, her clinician, her father, and her grandmother all agreed

that the child is doing much better since leaving the mother’s home. She is not

hurting herself, is happy, is no longer depressed and hiding in her room, no longer

takes anti-depressant medication, and is putting effort into school and

extracurricular activities.

      [¶11] In entering its judgment after the mother’s motion for findings of fact

and conclusions of law, the court did not alter its appointment of the grandparents

as full guardians. Nor did it articulate its reasons for deciding not to limit the

guardianship or establish arrangements for a transition to the mother’s home.

      [¶12] The mother timely appealed from the judgment. 18-A M.R.S. § 1-308

(2015); M.R. App. P. 2.

                                II. DISCUSSION

      [¶13] The mother argues that the court (A) misunderstood her testimony as

being self-contradictory and (B) violated her due process rights by awarding a full

guardianship to the paternal grandparents based on findings that were insufficient

to demonstrate parental unfitness.

A.    The Mother’s Testimony

      [¶14] We first address the mother’s argument that the court misunderstood

her testimony as being inconsistent, which demonstrably affected the court’s

assessment of her overall credibility. She contends that her testimony was meant
6

to convey that the child had run away three times—twice from the mother’s home

and once from the father’s home.3

         [¶15] A probate court’s findings in support of a guardianship, reached by

clear and convincing evidence, are reviewed for clear error. Guardianship of

Jewel M. (Jewel II), 2010 ME 80, ¶ 47, 2 A.3d 301. A finding of fact is clearly

erroneous if there is no competent evidence in the record to support it, see

Guardianship of Johnson, 2014 ME 104, ¶ 19, 98 A.3d 1023; if “the fact-finder

clearly misapprehends the meaning of the evidence,” Guardianship of Jewel M.

(Jewel I), 2010 ME 17, ¶ 14, 989 A.2d 726; or if the finding is so contrary to the
3
    The following testimony from the mother was admitted:

         Q.      We have also heard about a couple of times that Hailey has run away. What
         times do you remember Hailey running away?
         A.      Hailey has run away three times that I can remember for sure, and there may
         have been another couple of times that were less extravagant where situations weren’t as
         extreme . . . .
         Q.      So what about . . . specifically the time when the Freeport police were called,
         what do you remember about that time?
         A.      Hailey was in the . . . guardian of my grandmother who was watching her for me,
         and it was the evening her dad was supposed to come pick her up at my grandmother’s
         house in Freeport and Hailey refused to go with him; and so she ran across the train track
         to the movie theater where I was called, from my grandmother and the Freeport police, to
         come down because they were looking for her.
         Q.      And have there been other times when Hailey has run away from [the father’s],
         to your knowledge?
         A.      Yes.

       She later testified as follows on cross-examination:

         Q.      And [you are aware] that she has run away from your home on several
         occasions?
         A.      Not several.
         Q.      How many?
         A.      Twice.
                                                                                    7

credible evidence “that it does not represent the truth and right of the case,” id. In

guardianship cases, determinations of the weight, credibility, and significance of

evidence are primarily for the trial court as the finder of fact. Guardianship of

Autumn S., 2007 ME 8, ¶ 5, 913 A.2d 614.

      [¶16] The findings available to us are brief, and the mother has not argued

that the actual findings—as opposed to the summarized testimony—are insufficient

to support the judgment.         Rather, the mother contends that the court

misapprehended the evidence in determining that she had contradicted herself in

her testimony. See Jewel I, 2010 ME 17, ¶ 14, 989 A.2d 726. Reviewing that

testimony, we can discern only that the testimony was unclear regarding the

number of times that the child had attempted to run away from the mother’s home.

The trial court was in the best position to weigh the evidence and reach findings,

see In re A.M., 2012 ME 118, ¶ 31, 55 A.3d 463, and we cannot conclude on the

record before us that the court “clearly misapprehend[ed] the meaning of the

evidence” in finding the mother’s testimony to be inconsistent, Jewel I, 2010 ME

17, ¶ 14, 989 A.2d 726.

B.    Substantive Due Process

      [¶17] The mother argues that the court’s judgment violated her substantive

due process rights because the evidence of unfitness was insufficient for the court

to interfere with her parental rights by appointing the grandparents as full
8

guardians. She also argues that, even if the government does have a compelling

interest, for an infringement on her parental rights to be narrowly tailored to serve

that interest, it had to be confined to the creation of a limited guardianship or a

guardianship with an arrangement for the child to transition back into the mother’s

home. See Doe I v. Williams, 2013 ME 24, ¶¶ 65-66, 61 A.3d 718 (“A substantive

due process analysis turns on whether the challenged state action implicates a

fundamental right . . . .     If state action infringes on a fundamental right or

fundamental liberty interest, the infringement must be narrowly tailored to serve a

compelling state interest.”). We review the court’s unfitness determination and

then address the alternatives of a limited guardianship or transitional arrangement.

      1.      Unfitness and the Sufficiency of the Evidence

      [¶18]        The mother argues that the guardianship statute was applied

unconstitutionally because there was no showing of harm that would create a

compelling government interest justifying the intrusion into her fundamental

parental rights.

      [¶19] “A parent, so long as [she] adequately cares for . . . her children (i.e.,

is fit), has a firmly-established fundamental liberty interest, protected by the Due

Process Clause, to direct and control her child’s upbringing.” Guardianship of

Jeremiah T., 2009 ME 74, ¶ 22, 976 A.2d 955 (quotation marks omitted). If

parental unfitness has been demonstrated, however, a court may infringe on
                                                                                      9

parental rights because the State has a compelling interest in protecting the welfare

of the child. See Pitts v. Moore, 2014 ME 59, ¶¶ 12-14 & n.5, 90 A.3d 1169;

Jewell II, 2010 ME 80, ¶ 46, 2 A.3d 301; Jewel I, 2010 ME 17, ¶ 12, 989 A.2d

726; cf. Conlogue v. Conlogue, 2006 ME 12, ¶ 22, 890 A.2d 691. Thus, the State

may infringe on the fundamental liberty interest of a parent in the care and custody

of a child if the parent is unfit, the infringement on parental rights is in the child’s

best interest, and the infringement is narrowly tailored to serve the State’s

compelling interest in protecting the welfare of the child. See Sparks v. Sparks,

2013 ME 41, ¶¶ 23-27, 65 A.3d 1223; Jewell II, 2010 ME 80, ¶ 7, 2 A.3d 301.

      [¶20] The question of whether the guardianship statute, as applied, violates

the mother’s due process rights depends initially on factual and discretionary

determinations. Specifically, the statute is constitutionally applied if (1) the court

did not commit clear error in finding that “the parent is currently unable to meet

the child’s needs and that inability will have an effect on the child’s well-being that

may be dramatic, and even traumatic, if the child lives with the parent,” and (2) the

court committed no error or abuse of discretion in finding and determining that

“the proposed guardian will provide a living situation that is in the best interest of

the child.” Jewel II, 2010 ME 80, ¶ 7, 2 A.3d 301 (quotation marks omitted). This

standard recognizes that, due to constitutional protections of a parent’s

fundamental rights to the care and custody of her child, the existence of “a
10

temporarily intolerable living situation must relate to a parent’s inability to care for

the child,” such that “proof of parental unfitness is a required element to support

the establishment of a guardianship over the parent’s objection.”             Id. ¶ 46

(quotation marks omitted); see Guardianship of Johnson, 2014 ME 104, ¶ 19, 98

A.3d 1023.

        [¶21] As previously stated, a probate court’s findings are reviewed for clear

error. Jewel II, 2010 ME 80, ¶ 47, 2 A.3d 301. The ultimate determination of the

child’s best interest based on the factual findings is reviewed for an abuse of

discretion, consistent with the review of such determinations in child protection

cases, see In re Thomas H., 2005 ME 123, ¶ 16, 889 A.2d 297, and parental rights

and responsibilities matters, see Pearson v. Wendell, 2015 ME 136, ¶ 29, 125 A.3d

1149.

        [¶22] Here, the court’s findings of fact are supported by competent evidence

in the record; the judgment does not suggest that the court misapprehended the

meaning of the evidence; and the judgment is not so contrary to the credible

evidence “that it does not represent the truth and right of the case.” Jewell I, 2010

ME 17, ¶ 14, 989 A.2d 726; see Jewell II, 2010 ME 80, ¶ 46, 2 A.3d 301. The

determination of unfitness based on the mother’s own conduct and her inability to

meet the child’s needs is not error given the court’s findings that the child had

physically harmed herself and had run away from the mother’s home, and that the
                                                                                   11

interactions between the child and her mother had exacerbated the child’s unsafe

behaviors. Based on these findings and the finding that the child’s grandparents

are qualified and capable of providing for her care, the court did not abuse its

discretion in determining that appointing the grandparents as guardians was in the

child’s best interest.

       [¶23] Accordingly, the substantive due process requirements have been met

as long as a limited guardianship or transitional arrangement was not necessary to

satisfy the additional constitutional requirement that any infringement on parental

rights be narrowly tailored to serve the State’s interest in protecting the child’s

welfare. See Sparks, 2013 ME 41, ¶¶ 23-27, 65 A.3d 1223; Doe I, 2013 ME 24,

¶ 66, 61 A.3d 718; Jewel II, 2010 ME 80, ¶ 7, 2 A.3d 301.

       2.     Limited Guardianship and Transitional Arrangement

       [¶24] The mother argues that, even if the evidence was sufficient to find an

at least temporarily intolerable living situation, the court should have appointed the

grandparents as limited—not full—guardians because a change in school could be

achieved without infringing on the mother’s fundamental right to parent her child.

She further contends that a transitional arrangement should have been ordered to

enable her to attempt reconciliation with the child and demonstrate that she has

remedied any unfitness identified by the court. We review each determination and

then consider whether either a limitation on the guardianship or a transitional
12

arrangement was necessary for the infringement on the mother’s parental rights to

be narrowly tailored to serve the State’s interest in protecting the child’s welfare.

             a.     Limited Guardianship

      [¶25] “In any case in which a guardian can be appointed by the court, the

judge may appoint a limited guardian with fewer than all of the legal powers and

duties of a guardian.” 18-A M.R.S. § 5-105 (2015). The concept of limited

guardianship serves to effectuate the policy that a court “should only grant to the

guardian those powers actually needed.” Unif. Probate Code § 5-206 cmt. (Unif.

Law Comm’n amended 2010); see Guardianship of Collier, 653 A.2d 898, 901-02

(Me. 1995) (applying this general principle with respect to an incapacitated adult).

We review a trial court’s determination whether a full or a limited guardianship

was in a child’s best interest for an abuse of discretion. Guardianship of I.H., 2003

ME 130, ¶ 19, 834 A.2d 922.

      [¶26] Due to the severity of the child’s symptoms when residing with her

mother and the child’s age at the time of trial, the court did not abuse its discretion

in determining that a full guardianship establishing a known and stable home for

the child with her grandparents was in the child’s best interest. If the mother were

correct that the judgment’s sole purpose was to enable the child to attend school in

a different municipality, her argument might be persuasive. Here, however, the

court determined that the mother’s interactions with the child were creating a
                                                                                  13

significant risk of harm to the child. Reviewing the judgment as a whole, we

conclude that the court committed no abuse of discretion in establishing a full,

rather than a limited, guardianship in the grandparents.

              b.    Transitional Arrangement

      [¶27]    Title 18-A M.R.S. § 5-213 (2015) authorizes a probate court to

provide for transitional arrangements for a minor “if the court determines that such

arrangements will assist the minor with a transition of custody and are in the best

interest of the child.” (Emphasis added.) Section 5-213 “vests discretion in the

Probate Court to decide whether to implement transitional arrangements for a

minor under a guardianship.” Guardianship of Stevens, 2014 ME 25, ¶ 16, 86

A.3d 1197. “Such discretion is not without limits, however. The critical test in

determining the propriety of the exercise of judicial discretion is whether, under

the facts and circumstances of the particular case, it is in furtherance of justice.”

Id. (quotation marks omitted).

      [¶28] Here, the court did not order the child to transition back into her

mother’s home—a decision that was supported by evidence of the child’s age and

the severity of her symptoms when living with the mother. The “transition” to the

grandparents’ home had already occurred in this case. Therefore, the court did not

abuse its discretion in deciding not to establish a transitional arrangement.
14

               c.        Narrowly Tailored Judgment

         [¶29] Based on the evidence presented, the court created a full guardianship

in the child’s grandparents to establish a stable living situation for a then

fifteen-year-old child whose interactions with her mother exacerbated the risk that

the child would injure herself or run away. Given the circumstances of this case,

the court did not abuse its discretion in granting the petition for full guardianship,

and the infringement on the mother’s parental rights was narrowly tailored to serve

the State’s compelling interest4 in protecting the child from psychological and

physical harm. See Sparks, 2013 ME 41, ¶¶ 23-27, 65 A.3d 1223; Doe I, 2013 ME

24, ¶ 66, 61 A.3d 718; Jewel II, 2010 ME 80, ¶ 7, 2 A.3d 301. We affirm the

court’s judgment.

         The entry is:

                         Judgment affirmed.




     4
       Because the facts here overwhelmingly support the entry of the guardianship order, we need not
discuss further the descriptions of that compelling state interest. See Gordius v. Kelley, 2016 ME 77,
¶ 18, --- A.3d --- (Saufley, C.J., concurring).
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On the briefs and at oral argument:

        Melissa L. Martin, Esq., Pine Tree Legal Assistance, Portland, for appellant
        mother

        Kristina M. Kurlanski, Esq., Ranger & Copeland, P.A., Brunswick, for
        appellees paternal grandparents



Cumberland County Probate Court docket number 2014-1193
FOR CLERK REFERENCE ONLY
