MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:   2013 ME 82
Docket:     Ken-12-588
Submitted
 On Briefs: June 26, 2013
Decided:    September 19, 2013

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


                      GUARDIANSHIP OF KENNETH V. LABREE

MEAD, J.

         [¶1]    The mother of Kenneth LaBree appeals from a judgment of the

Kennebec County Probate Court (Mitchell, J.) appointing her and Kenneth’s

paternal aunt as limited coguardians of Kenneth, subject to the mother’s

compliance with certain conditions. The court’s order provided that if the mother

failed to comply with any of the conditions, the paternal aunt could remove

Kenneth from his mother’s residence, and the court would then terminate the

mother’s coguardianship.         The mother appealed, arguing that the conditions

interfered with her fundamental liberty interest in parenting Kenneth. Because we

conclude that the Probate Court’s order cannot be reconciled with principles

established in Guardianship of Jewel M. (Jewel II), 2010 ME 80, 2 A.3d 301, we

vacate the judgment and remand the case for further proceedings.
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                                      I. BACKGROUND

        [¶2] Kenneth is fourteen years old. After 2006, when he was removed from

his mother’s custody as a result of an action initiated by the Department of Health

and Human Services due to his mother’s substance abuse, prostitution, and

inconsistent parenting, he lived with his father.1 During the years when Kenneth

was living with his father, he attended the same school regularly. Around April

2011, Kenneth lived with his mother for a short period of time. He returned to his

father’s care because his grades were slipping and he was not regularly attending

school.

        [¶3] In April 2012, Kenneth’s father died suddenly, and Kenneth began

living with his mother again. Within days, Kenneth’s paternal aunt and her son,

Kenneth’s cousin, filed joined petitions for the appointment of a conservator and

guardian. The court appointed a guardian ad litem (GAL) and held a hearing on

the joined petitions.

        [¶4] At the hearing, the petitioners presented the testimony of the GAL, the

cousin, and the cousin’s wife.            Kenneth’s mother presented the testimony of

Kenneth. Neither Kenneth’s mother nor Kenneth’s paternal aunt testified. The




    1
     The protective custody case was dismissed against the recommendation of the guardian ad litem and
before a final parental rights and responsibilities order was entered.
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court did or could have found the following facts from the evidence admitted at the

hearing. See Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903.

      [¶5] The GAL testified that although the mother reported that she is no

longer using substances or engaging in prostitution, the GAL was not satisfied that

the mother presented sufficient evidence of substance abuse treatment. The GAL

further reported that the mother was generally difficult to contact regarding the

guardianship case.

      [¶6] The mother has an unstable personal life. Since April 2011, Kenneth

and his mother have moved six times. About a week before the hearing, the

mother moved herself and Kenneth to Gardiner where they live with her boyfriend

and Kenneth’s nineteen-month-old half-sister. The mother and her boyfriend only

recently reconciled. Kenneth has switched schools with every move and has had

chronically poor attendance. As of the date of the hearing he had not yet been

enrolled in school in Gardiner. Kenneth feels that most of the responsibility

regarding his failure to participate in meaningful education falls upon his

shoulders.

      [¶7]   The guardian testified that Kenneth is “quite a sad young man.”

Despite several recommendations that Kenneth needs to see a counselor, he has not

been in counseling because his mother has not arranged it. He met with the
4

counselor once during a chance meeting at the school and has not made a

follow-up appointment.

      [¶8] According to the GAL, Kenneth expressed a “heartfelt desire” to live

with his mother, and is “distraught” at the suggestion of not living with her. The

GAL believes that Kenneth’s mother is not an appropriate guardian because she is

disorganized, inconsistent, unreliable, and difficult to reach. The GAL opined that

Kenneth’s paternal uncle and his wife would be appropriate guardians because they

were thoughtful about the implications of taking Kenneth into their home and

would support contact with his mother.

      [¶9] Kenneth’s cousin and his wife live in Gardiner with their daughter and

a son who is about the same age as Kenneth. Kenneth and his cousin’s son have

attended school together in the past, but have different friends. There is conflicting

evidence about how familiar Kenneth is with his cousin’s family. There was little

testimony about the suitability of Kenneth’s paternal aunt as guardian; the only

testimony about her came from Kenneth.

      [¶10]   Following the hearing, the court found by clear and convincing

evidence “that circumstances for Kenn[eth] . . . at his mother’s home in her

custody are temporarily intolerable.” The court then considered the best interest

standard, focusing on (A) the potential harm to Kenneth if he was removed from

his mother’s custody, and (B) his mother’s “three major failings” in parenting
                                                                                  5

Kenneth: (1) failure to ensure Kenneth’s schooling, (2) encouraging him to believe

his truancy is solely his fault, and (3) failure to secure counseling for him. The

court made no findings regarding the suitability of either of the petitioners as

guardians for Kenneth. The court appointed Kenneth’s mother and paternal aunt

his coguardians, subject to certain conditions: (1) his mother must not relocate

outside the school district, (2) Kenneth must improve his attendance at school, and

(3) he must attend counseling.      In support of its order, the court stated that

“depriv[ing] Kenn[eth] of [his mother’s] presence, succor, charm, touch and

support would either devastate him or be the single most important factor in

teaching him to grow up and rely on his inner strengths,” and concluded that it was

“not ready to impose the tough love solution at this point.”

      [¶11] In February 2013, while this appeal was pending, supplemental filings

in the Probate Court indicated that Kenneth’s paternal aunt filed her intention to

remove Kenneth from the custody of his mother and petitioned for removal of his

mother as coguardian. It is alleged that shortly thereafter, Kenneth ran away; it is

unclear from the record where he is currently living. The mother objected to her

removal as coguardian and moved to dismiss the petition and for a stay of

enforcement of the judgment pending appeal. The Probate Court has scheduled

these matters for hearing.
6

                                 II. DISCUSSION

      [¶12] The mother contends that the order appointing her as a coguardian is

inconsistent with the court’s finding of an intolerable living situation, and thus

interferes with her constitutional right to care for her child. The mother has “a

fundamental liberty interest in parenting h[er] child absent a showing of unfitness.”

See Adoption of Tobias D., 2012 ME 45, ¶ 9, 40 A.3d 990 (citing Jewel II,

2010 ME 80, ¶ 6, 2 A.3d 301). Because of that interest, the Probate Court

      may appoint a guardian or coguardians for an unmarried minor if
      ....
      (c) . . . [it] finds by clear and convincing evidence that . . . a living
      situation has been created that is at least temporarily intolerable for
      the child even though the living situation does not rise to the level of
      jeopardy required for the final termination of parental rights, and that
      the proposed guardian will provide a living situation that is in the best
      interest of the child.

18-A M.R.S. § 5-204(c) (2012). We have construed the statute to mean that “a

guardianship may only be ordered” if the court makes two findings:

      (1) 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 proposed guardian will provide a living situation that is in the
      best interest of the child.

Guardianship of Jewel M. (Jewel I), 2010 ME 17, ¶ 13, 989 A.2d 726 (emphasis

added). “The authority of the court is a matter of law that we review de novo.”

In re Cyr, 2005 ME 61, ¶ 11, 873 A.2d 355.
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      [¶13] We note at the outset that the Probate Court failed to make the second

required finding that the petitioners, as the proposed guardians, will provide a

living situation that is in Kenneth’s best interest. See Jewel I, 2010 ME 17, ¶ 13,

989 A.2d 726. That finding is essential to the court’s authority to appoint a

guardian. See id.

      [¶14] We turn now to consider the first required finding. Because parental

unfitness is determined by the potential detriment to the child “if the child lives

with the parent,” there is, as the mother contends, an internal inconsistency in the

court’s order that cannot be reconciled. Id. ¶¶ 12-13 (construing 18-A M.R.S.

§ 5-204(c)). Here, the order simultaneously finds the mother to be unfit if Kenneth

were to continue living with her, while also allowing Kenneth to continue living

with her. We previously considered and rejected this disposition in Jewel II,

2010 ME 80, ¶ 47, 2 A.3d 301.

      [¶15] In Jewel II, we reviewed an order of the Probate Court appointing the

grandmother and the father coguardians of the minor child and awarding shared

primary residence. Id. ¶ 33. We held that the Probate Court’s appointment of the

father as coguardian meant that it “necessarily concluded that the [petitioner] had

failed to prove, to the clear and convincing evidence standard, that the [parent]’s

living situation was temporarily intolerable.” Id. ¶ 47. Thus, in this matter, the

Probate Court’s finding that the mother created an intolerable living situation, and
8

the Probate Court’s appointment of her as coguardian and placing Kenneth in her

home, are inconsistent and cannot be reconciled with the principles established in

Jewel II. We acknowledge and commend the Probate Court’s efforts to fashion a

creative approach to a difficult circumstance, but given the constraints of the

requirements of 18-A M.R.S. § 5-204(c), and the lack of findings on the issue of

the suitability of the coguardians, we must vacate.

        [¶16] Accordingly, we remand the case for further proceedings consistent

with this opinion. On remand, the court should consider whether the petitioners

have proven, by clear and convincing evidence, that the mother is an unfit parent.2

See, e.g., Jewel II, 2010 ME 80, ¶ 12, 2 A.3d 301.

        The entry is:

                           Judgment vacated.        Remanded for                further
                           proceedings consistent with this opinion.


On the briefs:

        Edward R. Hoyt IV, Esq., and Ronald W. Bourget, Esq., Law Offices of
        Ronald W. Bourget, Augusta, for appellant mother

        Tammy Ham-Thompson, Esq., Farris Law, P.A., Gardiner, for appellees
        paternal aunt and cousin

Kennebec County Probate Court docket number 2012-214
FOR CLERK REFERENCE ONLY


    2
      The Probate Court’s order states that the mother “fail[ed] to produce any evidence to rebut the
inference” of her unfitness. The burden of proof is not on the mother, but on the petitioners. See, e.g.,
Guardianship of Jewel M., 2010 ME 80, ¶ 12, 2 A.3d 301.
