                                                    	
MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2019	ME	13	
Docket:	      Yor-18-309	
Submitted	
  On	Briefs:	 January	17,	2019		
Decided:	     January	24,	2019	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               IN	RE	CHILD	OF	NICHOLAS	G.1	
	
	
GORMAN,	J.	

	       [¶1]		Nicholas	G.	appeals	from	a	family	matter	judgment	entered	in	the	

District	Court	(Biddeford,	Driscoll,	J.)	after	a	judicial	review	hearing	in	a	child	

protection	 matter.	 	 The	 court	 dismissed	 the	 child	 protection	 matter	 without	

prejudice,	opened	a	family	matter,	and	entered	an	order	in	that	family	matter	

that	 conferred	 sole	 parental	 rights	 and	 responsibilities	 for	 the	 child	 on	 the	

child’s	 mother	 and	 denied	 rights	 of	 contact	 to	 the	 father,	 who	 had	 been	

convicted	of	multiple	sex	crimes	against	a	child	and	of	possession	of	sexually	

explicit	 materials	 depicting	 children.	 	 We	 dismiss	 the	 appeal	 from	 the	 child	

protection	matter	and	affirm	the	judgment	entered	in	the	family	matter.	




    1		Although	this	opinion	affirms	a	family	matter	decision,	that	decision	was	issued	to	resolve	a	

child	protection	case	involving	the	child	of	Nicholas	G.		See	22	M.R.S.	§	4036(1-A)	(2017).		In	order	to	
continue	to	protect	that	child’s	privacy,	we	use	the	naming	convention	we	have	adopted	for	child	
protection	cases.	
2	

                                   I.		BACKGROUND	

	      [¶2]		The	facts	are	drawn	from	the	procedural	record	and	from	the	court’s	

findings,	 which	 are	 supported	 by	 competent	 evidence	 in	 the	 record.	 	 See	 22	

M.R.S.	§	4036(1-A)	(2017);	Vibert	v.	Dimoulas,	2017	ME	62,	¶	15,	159	A.3d	325.		

The	 child	 was	 born	 in	 May	 of	 2003.	 	 The	 Department	 of	 Health	 and	 Human	

Services	 petitioned	 for	 a	 child	 protection	 order	 and	 preliminary	 protection	

order	 in	 October	 of	 2003	 based	 on	 serious	 domestic	 violence	 by	 the	 father	

against	 the	 mother	 and	 her	 sister.	 	 The	 court	 (Foster,	 J.)	 signed	 an	 order	 of	

preliminary	protection	on	October	2,	2003,	placing	the	child	in	the	custody	of	

the	Department.			

	      [¶3]		The	court	(Janelle,	J.)	ordered	a	trial	placement	of	the	child	with	her	

maternal	grandparents,	and	in	2004,	the	court	(Foster,	J.)	held	 a	hearing	and	

found	that	the	child	was	in	circumstances	of	jeopardy	with	each	of	her	parents.		

See	22	M.R.S.	§	4035	(2017).		In	July	of	2006,	the	court	entered	an	agreed-upon	

order	 granting	 custody	 to	 the	 maternal	 grandparents	 and	 ordering	 that	

parental	 reunification	 efforts	 cease	 and	 judicial	 reviews	 be	 held	 only	 upon	

motion.		See	22	M.R.S.	§	4038(1-A)(A)	(2017).			
                                                                                                                    3	

	        [¶4]		A	year	later,	the	father	moved	for	judicial	review,	seeking	visitation	

rights.		In	December	of	2007,	the	court	(Mulhern,	J.)	held	an	evidentiary	hearing	

and	ordered	that	any	visits	with	the	father	be	supervised.			

	        [¶5]		In	April	of	2012,	during	a	time	of	inactivity	in	the	child	protection	

matter,	 the	 father	 was	 convicted	 of	 unlawful	 sexual	 contact	 (Class	 A),	

17-A	M.R.S.	§	255-A(1)(F-1)	(2017),	sexual	exploitation	of	a	minor	under	age	

twelve	 (Class	 A),	 17-A	 M.R.S.	 §	282(1)(C)	 (2010),2	 visual	 sexual	 aggression	

against	a	child	(Class	C),	17-A	M.R.S.	§	256(1)(B)	(2017),	and	sixty-five	counts	

of	 possession	 of	 explicit	 material	 of	 a	 minor	 under	 age	 twelve	 (Class	 C),	

17-A	M.R.S.	§	284(1)(C)	(2010).3		The	father	committed	the	first	three	charged	

crimes	against	a	four-year-old	girl	whom	he	babysat	one	night.		

	        [¶6]		Four	years	after	his	convictions,	in	March	of	2016,	the	father	moved	

for	the	appointment	of	counsel	and	for	judicial	review	in	the	child	protection	

matter.	 	 The	 court	 (Foster,	 J.)	 appointed	 new	 counsel	 and	 a	 new	 guardian	 ad	

litem.	 	 Five	 months	 later,	 the	 father’s	 counsel	 moved	 to	 withdraw	 on	 the	



   2	 	 This	statute	was	amended	after	the	 father	 committed	 the	 crime,	 though	 not	in	any	 way	that	

affects	 this	 appeal.	 	 See	 P.L.	 2015,	 ch.	 394,	 §	 1	 (effective	 July	 29,	 2016)	 (codified	 at	 17-A	M.R.S.	
§	282(1)(C)	(2017)).	
    3		This	statute	was	amended	after	the	father	committed	the	crimes,	though	not	in	any	way	that	

affects	 this	 appeal.	 	 See	 P.L.	 2011,	 ch.	 50,	 §	 2	 (effective	 April	 25,	 2011)	 (codified	 at	 17-A	 M.R.S.	
§	284(1)(C)	(2017)).	
4	

grounds	that	the	father	and	counsel	could	not	agree	on	how	to	proceed	and	that	

the	 father	 had	 asked	 that	 he	 withdraw.	 	 The	 court	 granted	 the	 motion	 and	

appointed	 new	 counsel	 that	 September.	 	 When	 the	 court	 held	 a	 case	

management	conference	in	anticipation	of	judicial	review	in	April	of	2017,	the	

father	 requested	 that	 his	 recently	 appointed	 counsel	 withdraw	 and	 new	

counsel	be	appointed.		The	court	granted	the	motion,	though	it	“could	find	no	

fault	with	the	representation	[counsel]	had	provided.”			

	     [¶7]		A	judicial	review	hearing	was	scheduled	for	July	9,	2018.		Just	before	

that	hearing,	on	June	22,	2018,	the	father’s	counsel	moved	to	withdraw	on	the	

grounds	 that	 the	 attorney-client	 relationship	 had	 broken	 down	 and	 that	 the	

father	was	seeking	other	counsel.		The	court	(Duddy,	J.),	noting	a	pattern	of	the	

father	 delaying	 the	 process	 through	 his	 multiple	 requests	 for	 new	 counsel,	

denied	counsel’s	motion	to	withdraw	on	June	25,	2018.			

	     [¶8]		The	father,	in	a	pro	se	pleading,	moved	to	continue	the	hearing	and	

to	appear	by	video.		As	grounds	for	the	motion	to	appear	by	video,	he	asserted	

that	 the	 county	 jail	 to	 which	 he	 would	 have	 been	 transported	 refused	 to	

dispense	necessary	medication	and	make	“disability	accommodations,”	though	

he	offered	no	description	of	what	specific	medication	and	accommodations	he	
                                                                                         5	

would	lack.		The	court	denied	the	motion,	stating,	“See	the	Court’s	order	dated	

6-25-2018.”			

	     [¶9]		Although	the	court	had	issued	a	writ	of	habeas	corpus	for	the	father	

to	testify	at	the	July	9,	2018,	hearing,	the	father	refused	to	be	transported	and	

was	not	present	for	the	hearing.		The	court	(Driscoll,	J.)	held	the	judicial	review	

hearing	and	afforded	the	father’s	counsel	the	opportunity	to	cross-examine	the	

witnesses—the	mother,	the	fifteen-year-old	child,	and	the	GAL—and	to	present	

evidence	and	argument.			

	     [¶10]		The	court		dismissed	the	child	protection	matter	without	prejudice	

and	 opened	 a	 family	 matter	 in	 which	 it	 entered	 a	 parental	 rights	 and	

responsibilities	judgment—consented	to	by	all	parties	except	for	the	father—

awarding	the	mother	sole	parental	rights	and	responsibilities	with	no	rights	of	

contact	 for	 the	 father.	 	 See	 22	M.R.S.	 §	4036(1-A).	 	 The	 court	 found	 that	 the	

father	had	not	rebutted	the	statutory	presumption	that,	due	to	his	convictions,	

ordering	his	contact	with	the	child	would	create	a	situation	of	jeopardy	and	not	

be	 in	 the	 child’s	 best	 interest.	 	 See	 19-A	 M.R.S.	 §	1653(6-A)(A)(1),	 (4),	 (5),	

(6-B)(A)	(2017).			

	     [¶11]		The	father	appealed	from	both	judgments.		The	Department	moved	

to	dismiss	his	 appeal	from	the	decision	 in	the	child	protection	 matter	on	the	
6	

ground	that	the	statute	authorizing	appeals	in	such	matters,	22	M.R.S.	§	4006	

(2017),	does	not	authorize	an	appeal	from	an	order	of	dismissal.		We	ordered	

that	the	motion	be	considered	with	the	merits	of	the	appeal	and	required	the	

parties	to	“address	in	their	briefs	the	proper	procedure	for	an	 appeal	from	 a	

parental	 rights	 order	 entered	 in	 a	 child	 protection	 case	 and	 docketed	 as	 the	

initiating	 document	 in	 a	 family	 matters	 case,	 given	 that	 the	 child	 protection	

matter	contains	the	only	available	record	for	review	on	appeal.”4			

                                            II.		DISCUSSION	

	        [¶12]	 	 In	 this	 opinion,	 we	 (A)	 consider	 the	 Department’s	 motion	 to	

dismiss;	 (B)	 review	 whether	 the	 father,	 who	 was	 found	 to	 be	 indigent,	 has	 a	

right	to	court-appointed	counsel	on	appeal;	and	(C)	review	the	court’s	decision	

entered	in	the	family	matter.	

A.	      Motion	to	Dismiss	Child	Protection	Matter	

	        [¶13]	 	 In	 a	 previous	 “hybrid”	 situation	 in	 which	 a	 court	 issued	 both	 a	

jeopardy	order	and	an	order	in	a	family	matter,	we	held	that	a	notice	of	appeal	

must	be	filed	in	each	matter	for	the	appeal	to	proceed.		In	re	Paige	L.,	2017	ME	

97,	¶¶	8-11,	23,	26,	39,	162	A.3d	217.		Here,	however,	the	judgment	entered	in	


     4	 	 The	 Department	 appropriately	 and	 successfully	 moved	 to	 seal	 the	 appendix	 given	 that	 the	

proceedings	leading	up	to	the	entry	of	the	family	matter	judgment	were	held	in	a	child	protection	
matter.		See	22	M.R.S.	§	4036(1-A)(A-1).		
                                                                                                      7	

the	child	protection	matter	did	not	arise	from	a	jeopardy	hearing	and	was	not	

a	judgment	terminating	parental	rights	or	a	medical	treatment	order—the	only	

orders	from	which	title	22	authorizes	an	appeal.		See	22	M.R.S.	§§	4006,	4035,	

4054,	4071	(2017).		The	entry	of	the	family	matter	judgment	is	authorized	by	

title	 22	 but	 is	 appealable	 only	 pursuant	 to	 title	 19-A.	 	 See	 19-A	 M.R.S.	 §	 104	

(2017);	see	also	22	M.R.S.	§	4036(1-A).	

	       [¶14]		Thus,	although	the	father	challenges	the	process	employed	in	the	

hearing	in	the	title	22	matter,	it	is	not	an	issue	that	he	can	raise	 in	 a	title	22	

appeal.		See	22	M.R.S.	§§	4006,	4038	(2017).		As	we	have	said,	“When	a	parental	

rights	and	responsibilities	order	is	issued	as	the	disposition	after	an	order	that	

cannot	 be	 appealed,	 e.g.,	 a	 judicial	 review	 order,	 the	 notice	 of	 appeal	 must	

identify	the	parental	rights	order	as	the	order	being	appealed	and	must	be	filed	

in	the	parental	rights	and	responsibilities	action.”		In	re	Paige	L.,	2017	ME	97,	

¶	26	n.4,	162	A.3d	217	(citation	omitted).		The	appeal	from	the	child	protection	

matter	is,	therefore,	dismissed.		See	22	M.R.S.	§	4006.5	




    5		The	record	from	the	title	22	matter	is,	however,	part	of	the	record	on	appeal	from	the	title	19-A	

judgment.	
8	

B.	    Right	to	Counsel	on	Appeal	

	      [¶15]		Given	that	the	child	protection	appeal	has	been	dismissed,	we	next	

consider	whether	the	Department	is	correct	that	an	indigent	parent	does	not	

retain	the	right	to	court-appointed	counsel	for	the	appeal	from	a	family	matter	

judgment	 entered	 pursuant	 to	 22	M.R.S.	 §	 4036(1-A).	 	 In	 contrast	 to	 In	 re	

Paige	L.,	where	we	held	that	counsel	for	the	father	“appropriately	continued	to	

represent	him	in	th[e]	appeal,	because	the	appeal	[was]	taken	from	a	title	22	

jeopardy	 order,”	 2017	 ME	 97,	 ¶	15,	 162	 A.3d	 217;	 see	 22	M.R.S.	 §	4005(2)	

(2017),	there	is	no	right	of	appeal	from	the	title	22	judicial	review	order	entered	

here,	 see	 22	M.R.S.	 §§	 4006,	 4038.	 	 Although	 some	 provisions	 of	 title	 22	 may	

apply,	and	although	the	father	had	the	right	to	counsel	for	the	hearing	in	the	

title	22	matter,	see	id.	§	4005(2),	the	appeal	here	is	from	a	title	19-A	judgment,	

and	title	19-A	provides	no	right	to	counsel.		Thus,	the	right	to	counsel	will	attach	

only	if	necessary	to	ensure	due	process.	

	      [¶16]		An	indigent	parent	has	a	due	process	right,	now	also	codified	in	

section	4005(2),	to	appointed	counsel	in	a	child	protection	proceeding.		In	re	

T.B.,	 2013	ME	 49,	 ¶	14,	 65	 A.3d	 1282;	 see	 Danforth	 v.	 State	 Dep’t	 of	 Health	 &	

Welfare,	 303	 A.2d	 794,	 801	 (Me.	 1973).	 	 The	 constitutional	 right	 attaches	 in	

child	 protection	 proceedings	 because	 “the	 full	 panoply	 of	 the	 traditional	
                                                                                                                     9	

weapons	of	the	state	are	marshalled	against	the	defendant	parents.”		Danforth,	

303	A.2d	at	799.	

	        [¶17]		In	the	child	protection	matter,	the	father	had	the	right	to	counsel	

up	to	and	including	the	time	of	the	entry	of	the	child	protection	judgment.		See	

22	M.R.S.	§4005(2).		 As	we	have	 already	discussed,	the	dismissal	of	the	child	

protection	case	is	nonappealable.		See	id.	§	4006.		In	order	to	challenge	what	

resulted	from	that	dismissal,	the	father	may	appeal—and	has	appealed—from	

the	family	matters	judgment.		See	19-A	M.R.S.	§	104.		The	fact	that	that	judgment	

was	issued	pursuant	to	22	M.R.S.	§	4036(1-A),	however,	grants	him	no	greater	

rights	 than	 those	 granted	 to	 any	 parent	 who	 appeals	 from	 a	 family	 matter	

judgment.	 	 See	 Meyer	 v.	 Meyer,	 414	 A.2d	 236,	 238	 (Me.	 1980)	 (holding	 that,	

where	 “proceedings	 involve	 primarily	 disputes	 between	 the	 parents,	 due	

process	does	not	automatically	require	appointment	of	counsel	to	either	party,”	

due	 to	 the	 State’s	 lesser	 interest	 in	 the	 matter	 and	 the	 modifiability	 of	 the	

determination).		When	a	party	appeals	from	a	family	matter	judgment	entered	

as	 a	 result	 of	 an	 unappealable	 judicial	 review	 hearing	 in	 a	 child	 protection	

matter,	 the	 right	 to	 counsel	 does	 not	 extend	 to	 the	 appeal	 from	 the	 family	

matter	judgment.6	


    6	 	 For	 the	 same	 reasons,	 the	 parent	 is	 not	 entitled	 to	 transcripts	 at	 state	 expense.	 	 Due	 to	 the	

confidential	nature	of	all	proceedings	leading	up	to	the	family	matter	judgment,	however,	we	adhere	
10	

C.	    Family	Matter	Appeal	

	      [¶18]		The	father	challenges	the	denial	of	his	motion	to	testify	by	video	

link	and	the	court’s	denial	of	his	request	for	rights	of	contact	with	the	child.			

	      1.	     Denial	of	Motion	to	Participate	by	Video	Link	

	      [¶19]	 	 We	 review	 decisions	 related	 to	 the	 mode	 of	 presentation	 of	

evidence	 for	 an	 abuse	 of	 discretion,	 any	 factual	 findings	 for	 clear	 error,	 and	

alleged	 constitutional	 violations	 de	 novo.	 	 See	 Sparks	 v.	 Sparks,	 2013	 ME	 41,	

¶	19,	 65	A.3d	 1223;	 Malenko	 v.	 Handrahan,	 2009	 ME	 96,	 ¶¶	 33-34,	 979	 A.2d	

1269.	

	      [¶20]		“In	every	trial,	the	testimony	of	witnesses	shall	be	taken	in	open	

court,	unless	a	statute,	these	rules	or	the	Rules	of	Evidence	provide	otherwise.”		

M.R.	Civ.	P.	43(a).		“The	court	may,	on	its	own	motion	or	for	good	cause	shown	

upon	appropriate	safeguards,	permit	presentation	of	testimony	in	open	court	

by	contemporaneous	transmission	from	a	different	location.”		Id.	

	      [¶21]	 	 The	 party	 moving	 for	 authorization	 for	 contemporaneous	

transmission	from	another	location	has	the	burden	of	establishing	good	cause.		

See	id.		Therefore,	if	that	party	appeals	from	the	denial	of	the	motion,	he	or	she	



to	the	title	22	standards	for	access	and	confidentiality	in	such	proceedings.		See	22	M.R.S.	§§	4005-D,	
4008	(2017)	(constraining	access	to	child	protection	proceedings	and	records).		The	Department’s	
motion	ensured	that	those	safeguards	were	in	place	in	this	appeal.	
                                                                                                        11	

bears	 the	 burden	 on	 appeal	 of	 demonstrating	 that	 the	 record	 compelled	 a	

finding	of	good	cause.		See	Malenko,	2009	ME	96,	¶	34,	979	A.2d	1269.		Here,	

the	father	provided	only	bare	assertions	that	unspecified	medical	attention	and	

disability	accommodations	would	 not	be	available	 at	the	county	 jail.		On	this	

record	 and	 given	 the	 court’s	 concern	 that	 the	 father	 habitually	 filed	 motions	

just	 before	 hearing	 dates,	 the	 court	 was	 not	 compelled	 to	 find	 good	 cause	 to	

allow	contemporaneous	transmission	of	the	father’s	testimony,	and	it	did	not	

abuse	 its	 discretion	 in	 determining	 that,	 if	 the	 father	 wished	 to	 testify	 or	

otherwise	participate,	he	would	have	to	come	to	the	hearing.		See	M.R.	Civ.	P.	

43(a);	see	also	M.R.	Evid.	611(a).7			

	       [¶22]		Because	the	father	had	notice	of	the	time	and	nature	of	the	hearing	

and	 the	 opportunity	 to	 appear	 and	 be	 heard,	 there	 was	 no	 violation	 of	 the	

father’s	right	to	due	process.		It	was	the	father’s	decision	not	to	avail	himself	of	

the	 opportunity	 to	 appear	 that	 kept	 him	 from	 participating.	 See	 Haskell	 v.	

Haskell,	2017	ME	91,	¶	15,	160	A.3d	1176;	cf.	In	re	Destiny	T.,	2009	ME	26,	¶	15,	

965	A.2d	872	(vacating	jeopardy	finding	when	the	father	was	not	notified	that	



   7		Cf.	In	re	A.M.,	2012	ME	118,	¶	20	n.2,	55	A.3d	463	(“The	fact	finder	must	be	able	to	assess	the	

parent’s	demeanor	and	credibility,	the	quality	of	the	parent-child	relationship	and	other	intangible	
factors	in	determining	whether	the	parent	is	unfit.		Given	the	complexity	of	this	task	and	the	risk	of	
error	 inherent	 in	 such	 a	 determination,	 it	 is	 difficult	 to	 imagine	 how	 parental	 unfitness	 can	
constitutionally	be	evaluated	in	the	parent’s	absence.”	(quotation	marks	omitted)).	
12	

jeopardy	 would	 be	 considered	 at	 the	 scheduled	 hearing).	 	 Furthermore,	 the	

father’s	 counsel	 was	 present,	 cross-examined	 the	 mother,	 and	 had	 the	

opportunity	to	offer	evidence	and	argument	on	the	father’s	behalf.			

	      2.	    Order	of	No	Rights	of	Contact	

	      [¶23]		We	review	findings	of	fact	for	clear	error	and	the	determination	of	

the	 best	 interest	 of	 a	 child	 for	 an	 abuse	 of	 discretion.	 	 See	 Boyd	 v.	 Manter,	

2018	ME	25,	¶	6,	179	A.3d	906.		We	“will	vacate	factual	findings	that	are	adverse	

to	 the	 party	 with	 the	 burden	 of	 proof	 only	 if	 the	 record	 compels	 a	 contrary	

conclusion.”	 	 Haskell,	 2017	 ME	 91,	 ¶	 12,	 160	 A.3d	 1176	 (quotation	 marks	

omitted).		Here,	the	father	had	the	burden	to	rebut	the	presumption	that,	due	

to	his	crimes	against	children,	his	contact	with	the	child	would	create	a	situation	

of	 jeopardy	 and	 would	 not	 be	 in	 the	 child’s	 best	 interest.	 	 See	 19-A	M.R.S.	

§	1653(6-B)(A).	

       [¶24]		Contrary	to	the	father’s	contention,	evidence	was	offered	at	trial	

indicating	that	the	child	is	strongly	negatively	affected	when	she	fears	she	will	

have	contact	with	the	father	and	does	not	want	any	contact	with	him,	including	

by	 mail.	 	 The	 record	 does	 not	 compel	 a	 finding	 that	 the	 father	 rebutted	 the	

presumption	that	allowing	him	contact	with	the	child	would	create	a	situation	

of	jeopardy	and	would	not	be	in	the	child’s	best	interest.		See	id.	
                                                                                      13	

         The	entry	is:	

                            Motion	to	dismiss	the	appeal	from	the	judgment	
                            entered	 in	 the	 child	 protection	 matter	 granted.		
                            Judgment	entered	in	the	family	matter	affirmed.	
	
	     	      	      	     	    	
	
James	P.	Howaniec,	Esq.,	Lewiston,	for	appellant	father	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Biddeford	District	Court	docket	numbers	PC-2003-33	and	FM-2018-267	
FOR	CLERK	REFERENCE	ONLY	
