MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2015 ME 52
Docket:   Cum-14-363
Argued:   April 10, 2015
Decided:  May 7, 2015

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



                                   STATE OF MAINE

                                            v.

                                 JONATHAN COLLINS

HJELM, J.

         [¶1]      Jonathan Collins appeals from an order of the trial court

(Moskowitz, J.) amending the conditions of his probation to prohibit him from

having contact with his minor son unless specifically permitted by the court.

Collins argues that the amendment constituted an abuse of the trial court’s

discretion and improperly interfered with his constitutional parental rights. We

affirm the order.

                                   I. BACKGROUND

         [¶2] The relevant facts are not in dispute. See State v. Russo, 2008 ME 31,

¶ 2, 942 A.2d 694. Collins was indicted on January 11, 2013, for two counts of

unlawful sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2014),

committed against his son and stepson. In June 2013, Collins pleaded guilty to two

counts of misdemeanor assault (Class D), 17-A M.R.S. § 207(1)(A) (2014), and the
2

State dismissed the two original charges. The court imposed a suspended sentence

of 364 days to the Cumberland County Jail and one year of probation for each of

the two assault counts, to be served consecutively. The conditions of probation

prohibited Collins from having any contact with his stepson, and prohibited contact

with his son “unless supervised by a [third] party non-family member or by

agreement [with] family court [and] probation.”      Collins was also ordered to

complete a “sex offender evaluation” and undergo “individualized treatment

(sex offender).”

      [¶3] On March 31, 2014, Collins filed a motion to amend the conditions of

probation, alleging that his probation officer would not permit him to have contact

with his son and seeking expanded rights of contact. Then, in May 2014, while

Collins’s motion was still pending, the Department of Corrections, which

administers probation services, 34-A M.R.S. § 5401 (2014), issued a blanket

directive prohibiting probation officers from determining if probationers should

have contact with victims.    As a result, the condition of Collins’s probation

predicating contact on permission from the family court and his probation officer

could not be implemented.

      [¶4] At a conference of the parties held on June 6, 2014, the court ordered

that, pending a hearing on Collins’s motion, the probation condition governing

contact with the victims “is amended by agreement to read: no contact, direct or
                                                                                                        3

indirect, with [Collins’s stepson].             No contact with [Collins’s son] direct, or

indirect, except as may be ordered by the court.” The court also scheduled a

hearing on Collins’s motion to modify.

        [¶5] At the hearing, held on August 18, 2014, Collins requested that the

court modify the condition of probation to mirror a contact order that had been

issued in an action to determine Collins’s parental rights and responsibilities.

Collins told the court that the order allowed him to have “frequent and regular

contact” with his son if it were supervised by a third party who is not a member of

the family.1 Also, although he had already pleaded guilty to the two assault

charges, Collins maintained his innocence. The State argued that the court should

prohibit contact between Collins and his son.

        [¶6]     During the hearing, the court considered a letter that Collins’s

counselor had provided to him, indicating that during therapy sessions, Collins

stated that he does not believe that psychotherapy would be beneficial, denied

harming either victim, “close[d] down, [became] irritable,” and, on advice of

counsel, refused to take a polygraph examination. The child’s mother addressed

the court and stated that she had agreed to supervised visitation in the parenting

action only because she expected that the probation officer would oversee Collins’s


   1
     The record does not include copies of the order issued by the District Court in the parenting action.
Rather, it contains only the parties’ description to the court of some of its terms.
4

treatment and that Collins would be allowed to have contact with the child if he

was doing well on probation and in counseling. She also told the court that since

the child stopped having contact with Collins, troubling aspects of the child’s

behavior had improved.

      [¶7] At the conclusion of the hearing, the court denied Collins’s motion and

ordered that the June 6 order would continue to govern his rights of contact with

his son—that is, Collins was prohibited from having any contact with his son

except as specifically permitted by the court.     The court found that Collins’s

counseling was “really slow at best and very, very difficult. It really doesn’t seem

that treatment has been that productive at all.” Determining from this and other

circumstances that contact with Collins would expose the child to psychological

harm, the court found that even supervised contact was not appropriate. The court,

however, expressly reserved to Collins the opportunity to seek modification of the

order if he was able to demonstrate that counseling has become productive and that

he has developed insight into

      this offense and how it affects the children and how it affects himself,
      and if he has some understanding of how he should comport himself
      when he has contact with his children, specifically [his son]. And
      perhaps, if [his son’s] counselors concur that supervised contact
      makes sense, then perhaps the condition of probation can be amended
      to allow for that. But given what I know now, we’re nowhere near
      there especially when – in light of the letter that [Collins’s counselor]
      sent to Mr. Collins.
                                                                                                          5

        [¶8] Collins appeals the court’s order.

                                          II. DISCUSSION

        [¶9] As his central challenge to the court’s order foreclosing contact with

his son absent specific judicial approval, Collins argues that the court abused its

discretion because, he contends, the evidence did not warrant that restriction, and

because the District Court, in a collateral parenting action, had already allowed

him to have supervised contact with his son.2

        [¶10] The Legislature has given the courts a broad range of dispositional

authority when adjudicating motions to modify conditions of probation:

        During the period of probation specified in the sentence . . . , and upon
        application of a person on probation or the person’s probation officer,
        or upon its own motion, the court may, after a hearing . . . , modify the
        requirements imposed by the court . . . , add further requirements
        authorized by section 1204 or relieve the person on probation of any
        requirement imposed by the court . . . that, in its opinion, imposes on
        the person an unreasonable burden.

17-A M.R.S. § 1202(2) (2014). In other words, “[a] court addressing a motion to

modify conditions of probation has three options. It may modify a condition, add a

condition, or relieve the defendant from a condition entirely.” State v. Spencer,

   2
      In his brief on appeal, Collins also argues that the court was not authorized to modify the conditions
of probation to make them more restrictive than the terms of the plea agreement that led to the
convictions. At oral argument, however, Collins clarified that he is arguing only that the court’s
disposition of his motion to modify constituted an abuse of discretion. Even if Collins pressed an
argument that the court acted beyond its power, it would be unavailing because, for the reasons set out in
this opinion, the court’s modification of the terms of probation was within its statutory authority and
therefore lawful. See State v. Telford, 2010 ME 33, ¶¶ 9-12, 993 A.2d 8 (conditions of probation may be
modified even when they were the product of a plea agreement, if the modification is authorized by
17-A M.R.S. § 1202 (2014)).
6

2003 ME 112, ¶ 8, 831 A.2d 419. When modifying probation conditions, a court is

only required to consider and promote any of the objectives of probation found in

17-A M.R.S. § 1204 (2014). State v. Telford, 2010 ME 33, ¶ 7, 993 A.2d 8. On an

appeal from a decision to modify probation, we review the record for clear error.

Id.

        [¶11] Section 1204 expressly authorizes the court to impose conditions of

probation that prohibit the offender from “consorting with specified persons” and

that satisfy any condition “reasonably related to the rehabilitation of the convicted

person or the public safety or security.” 17-A M.R.S. § 1204(2-A)(F), (M). We

have held that these statutory provisions allow a court to prohibit a person

convicted of sexual assaults against a child from having contact with most

children, because such a restriction “furthers the rehabilitation process by reducing

the risk of [the offender] committing further crimes against minors, and protects

the public safety.” State v. Coreau, 651 A.2d 319, 321 (Me. 1994).3

        [¶12] At the motion hearing, the court considered the information presented

by the parties, and then, specifically citing section 1204 and Coreau, carefully

applied that information to the statutory and decisional framework that governs

    3
      In State v. Coreau, we held that the condition of probation prohibiting all contact between Coreau
and his own children, who were not the victims of his crimes, was overbroad because there was no
evidence that supervised contact would place his children at risk and because some contact would help
stabilize Coreau’s family. 651 A.2d 319, 321-22 (Me. 1994). This aspect of the holding in Coreau is
inapposite here because Collins assaulted his own child, which gave the court a reasonable basis to be
concerned that the victim would be harmed further if Collins had contact with him.
                                                                                 7

conditions of probation.    In framing the issues that were important to its

adjudication of the motion, the court described the new Department of Corrections

policy not to assess whether a probationer should have contact with a victim as the

loss of a “safeguard,” which assumed heightened importance because Collins’s

assaults against his son and stepson were sexual, even though the convictions

themselves were for assaults of an unspecified nature. The court also found that

Collins had not benefited from counseling, continued to deny any culpability, and

had not yet recognized the harm he had caused to the two victims.

      [¶13] Although a change of circumstances is not a necessary predicate to a

change in probation conditions, Telford, 2010 ME 33, ¶ 7, 993 A.2d 8, the court

here was faced with a situation where Collins, a convicted offender who refused to

acknowledge that he had victimized his son, was supervised by a probation officer

who was no longer available to make judgments about whether contact with the

victim was appropriate.    The court’s decision to prohibit contact under any

circumstances absent specific judicial approval was supported by the evidence and

was clearly responsive to the statutory purposes of probation. The court’s ruling

on Collins’s motion to modify therefore was not erroneous, much less clearly

erroneous.

      [¶14] Collins contends that the court erred by declining to defer to the

parenting order issued in the family proceeding that allowed him to have “regular
8

and frequent” supervised contact with his son. He argues that the justification for

the criminal justice system’s interference with his constitutional right to parent is

diminished because in the parenting action a court had already addressed the issue

of the victim’s safety, eliminating the need for further governmental intrusion

through the criminal case.

      [¶15] Collins’s argument fails for two reasons. First, as a doctrinal matter,

the State is not bound by a judicial determination made in a proceeding to which

neither it nor a privy is a party. See State Mut. Ins. Co. v. Bragg, 589 A.2d 35, 37

(Me. 1991); State v. Spearin, 463 A.2d 727, 729-30 (Me. 1983), overruled in part

on other grounds by State v. Walker, 510 A.2d 1064 (Me. 1986) (applying the

doctrine of collateral estoppel to criminal proceedings). This consideration is

particularly important because the State’s interests and objectives may not be fully

aligned with those of either parent in a civil family action. Therefore, the contact

order issued in the parenting action did not bind the State and left it free to argue in

support of greater contact restrictions than were contained in the parental rights

order, and similarly the court in the criminal action was also not bound by the prior

parenting order.

      [¶16]    Second, Collins’s argument does not account for the essential

differences between a parental rights action and a criminal case where the

perpetrator and victim are members of the same family. It cannot be disputed that
                                                                                  9

Collins’s right to parent his child is of constitutional magnitude. See Rideout v.

Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291. We have repeatedly acknowledged

that “parents have a fundamental liberty interest to direct the care, custody, and

control of their children.” Pitts v. Moore, 2014 ME 59, ¶ 11, 90 A.3d 1169

(quotation marks omitted); see Troxel v. Granville, 530 U.S. 57, 65 (2000).

However, this right consists of heightened protection, not absolute protection, from

governmental inference with matters affecting “family integrity.”          Rideout,

2000 ME 198, ¶ 19, 761 A.2d 291. Protecting a child from harm is a compelling

governmental interest that justifies narrowly tailored restrictions on a parent’s

rights. Id. ¶¶ 19, 23.

      [¶17] The touchstone of a court’s decision on parenting issues in a family

action is the best interest of the child.   See 19-A M.R.S. § 1653(3) (2014);

Daggett v. Sternick, 2015 ME 8, ¶ 11, --- A.3d ---. In a criminal proceeding, when

a minor child is the victim of a crime committed by a family member, the child’s

physical safety and psychological well-being must be compelling considerations

for the sentencing court to address.         See 17-A M.R.S. §§ 1151(8)(A),

1204(2-A)(F), (M) (2014); cf. Coreau, 651 A.2d at 321. Therefore, in situations

involving child abuse, the issue of the child’s best interest is common to the two

types of court proceedings.
10

      [¶18]   In the criminal setting, however, the Legislature has identified

additional factors for the court to consider in fashioning a sentence, including, for

example, punishment, specific deterrence, and public safety. 17-A M.R.S. § 1151

(2014). When a sentence includes a period of probation, the court must impose

conditions designed to rehabilitate an offender who has the capacity to benefit

from “the supervision, guidance, assistance or direction that probation can

provide.” State v. Black, 2007 ME 19, ¶ 14, 914 A.2d 723 (quotation marks

omitted). Probation carries aspects that are both rehabilitative and punitive, id.,

which go beyond the parental rights analysis that centers on a child’s best interest.

The considerations that influence the terms of a sentence imposed against a parent

in a criminal case, including the probation component of a sentence, are therefore

not coextensive with those that influence a court’s judgment on parental rights.

      [¶19]    Consequently, the exercise of judicial authority over Collins’s

parental rights in the family law proceeding does not eliminate the justification for

an additional layer of governmental involvement through the criminal action.

When framed properly, conditions of probation affecting an offender’s rights of

contact with his child who is the victim of the offender’s violent conduct are

“narrowly tailored to serve a compelling state interest” and do not

unconstitutionally infringe on the offender’s parental rights.              Rideout,

2000 ME 198, ¶ 19, 761 A.2d 291; see also Pitts, 2014 ME 59, ¶ 12,
                                                                                                      11

90 A.3d 1169; United States v. Smith, 436 F.3d 307, 308-11 (1st Cir. 2006)

(concluding that, in a case where the defendant’s conditions of supervised release

prohibited contact with his child, “a sentencing court can infringe upon a convicted

felon’s liberty . . . by imposing conditions of supervised release” and that such

conditions “limit[ing] a convicted felon’s liberty do[] not render them invalid.”);

Commonwealth v. LaPointe, 759 N.E.2d 294, 298 (Mass. 2001) (holding that

“[p]arental rights are not absolute and they may be restricted by probation

conditions” (citations omitted)).4 Therefore, a court’s determination of parental

rights in a family law proceeding is not dispositive of sentencing issues, including

probation, in a related criminal prosecution of a parent.

        [¶20] Here, as the court in the parental rights action presumably did, the

court that acted on Collins’s probation motion properly placed substantial weight

on the victim’s best interest, concluding that even supervised contact with Collins

would create the risk of psychological harm. The criminal court also, however,

went beyond this factor and noted that Collins had made no meaningful

rehabilitative strides through counseling and that Collins did not believe

counseling would benefit him. Although this evidence could be pertinent to a


   4
     The court’s decision to prohibit contact between Collins and his son is not permanent. As the court
made clear in its order, Collins maintains the right to seek a modification of that prohibition if he can
demonstrate that he is progressing in counseling. In this way, the court ensured that the restrictions on
Collins’s parenting rights were a “narrowly tailored” response to the present circumstances and are
subject to change when Collins is less of a threat to his son’s safety.
12

determination of parental rights and responsibilities, it bears more closely on the

central probationary objectives of rehabilitation, deterrence, and public safety, and

thus is entitled to greater weight in a criminal case. While it was proper for the

criminal court to consider the order issued in the parental rights action, it was not

limited by that decision and properly considered the entire record, of which that

court order was a part. Accordingly, the court did not unconstitutionally infringe

on Collins’s parental rights when it increased the restrictions on his rights of

contact with his son that had been set by a court in a separate judicial proceeding.

        The entry is:

                           Judgment affirmed.


On the briefs:

        Verne E. Paradie, Jr., Esq., Lewiston, for appellant Jonathan
        Collins

        Stephanie Anderson, District Attorney, and Jennifer F.
        Ackerman, Asst. Dist. Atty., Prosecutorial District No. Two,
        Portland, for appellee State of Maine

At oral argument:

        Verne E. Paradie, Jr., Esq., for appellant Jonathan Collins

        Jennifer F. Ackerman, Asst. Dist. Atty., for appellee State of
        Maine

Cumberland County Unified Criminal Docket docket number CR-2013-298
FOR CLERK REFERENCE ONLY
