MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	135	
Docket:	      And-17-47	
Submitted	 	
  On	Briefs:	 June	14,	2017	
Decided:	     June	27,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 IN	RE	KAYLIANNA	C.	
	
	
HJELM,	J.	

       [¶1]		The	father	of	Kaylianna	C.	appeals	from	a	judgment	of	the	District	

Court	 (Lewiston,	 Dow,	 J.)	 terminating	 his	 parental	 rights	 to	 Kaylianna	

pursuant	 to	 22	 M.R.S.	 §	 4055(1)(A)(1)(a)	 and	 (B)(2)	 (2016),	 and	 from	 the	

court’s	 denial	 of	 his	 motion	 for	 a	 new	 trial	 or	 for	 reconsideration.	 	 See	 M.R.	

Civ.	P.	59.		The	father	argues	that	he	was	deprived	of	due	process	because	the	

court	 terminated	 his	 parental	 rights	 even	 though	 he	 was	 not	 present	 at	 the	

final	hearing,	and,	when	he	later	told	the	court	that	he	had	not	attended	due	to	

transportation	 problems,	 the	 court	 failed	 to	 provide	 him	 with	 an	 alternative	

opportunity	to	be	heard.		Finding	no	error	or	abuse	of	discretion	in	the	court’s	

decisions,	we	affirm.	

                                    I.		BACKGROUND	

       [¶2]		After	a	hearing,	the	court	found,	by	clear	and	convincing	evidence,	

that	the	father	was	unwilling	or	unable	to	protect	the	child	from	jeopardy	or	
2	

take	 responsibility	 for	 the	 child	 within	 a	 time	 reasonably	 calculated	 to	 meet	

her	needs,	failed	to	make	a	good	faith	effort	to	reunify	with	the	child,	and	had	

abandoned	the	child,	and	that	termination	of	the	father’s	parental	rights	was	

in	 the	 child’s	 best	 interest.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2);	 In	 re	 Tacoma	 M.,	

2017	ME	85,	¶	2,	---	A.3d	---.		The	court	made	its	determination	based	on	the	

following	 findings	 of	 fact	 that	 are	 supported	 by	 competent	 evidence	 in	 the	

record.		See	In	re	Kayleigh	P.,	2017	ME	96,	¶	2,	---	A.3d	---.			

          [¶3]	 	 The	 father,	 who,	 as	 the	 parties	 agree,	 lives	 in	 Massachusetts,	 is	

effectively	 a	 stranger	 to	 the	 child—his	 paternity	 was	 not	 established	 until	

after	 this	 child	 protection	 matter	 had	 been	 commenced,	 and	 he	 has	 met	 the	

child	only	a	few	times	in	her	life.		Because	the	father	was	largely	absent	from	

the	child’s	life,	he	was	not	in	a	position	to	protect	her	from	harm	that	occurred	

while	she	was	in	the	mother’s	custody.1		During	the	pendency	of	this	matter,	

the	 father	 failed	 to	 meaningfully	 engage	 in	 reunification	 and	 did	 not	 comply	

with	 the	 visitation	 schedule	 established	 by	 the	 Department	 of	 Health	 and	

Human	Services.		A	study	completed	at	the	Department’s	request	pursuant	to	




     1	 	 The	 record	 establishes	 that	 when	 the	 child	 was	 approximately	 two	 years	 old	 and	 was	 in	 the	

mother’s	 care,	 she	 was	 assaulted	 by	 the	 mother’s	 boyfriend	 and	 developed	 an	 associated	 medical	
condition.			
                                                                                                  3	

the	 Interstate	 Compact	 for	 the	 Placement	 of	 Children	 did	 not	 recommend	

placement	with	the	father.		See	22	M.R.S.	§	4255	(2016).	

       [¶4]		In	April	2016,	the	father	attended	a	jeopardy	hearing	and	agreed	

to	 the	 issuance	 of	 a	 jeopardy	 order	 based	 on	 his	 failure	 to	 protect	 the	 child.		

Both	 through	 out-of-state	 process	 and	 at	 a	 pretrial	 conference	 held	 on	

September	29,	2016,	the	father	was	served	with	the	Department’s	petition	to	

terminate	his	parental	rights.			

       [¶5]	 	 The	 father	 was	 subsequently	 notified	 of	 a	 three-day	 termination	

hearing,	but	he	was	not	present	when	the	hearing	commenced	on	December	2,	

2016.		The	father’s	attorney	was	present	and	did	not	request	a	continuance	or	

otherwise	 assert	 that	 the	 hearing	 should	 not	 go	 forward.	 	 Without	 objection	

from	the	father,	the	court	stated	that	the	prior	orders	issued	in	this	case	and	

the	guardian	ad	litem’s	reports	would	be	part	of	the	record.		The	Department	

presented	 the	 testimony	 only	 of	 the	 Department	 caseworker,	 and	 the	 father	

presented	 no	 evidence.	 	 After	 the	 Department	 and	 father	 rested,	 the	 court	

announced	 its	 decision	 to	 terminate	 the	 father’s	 parental	 rights	 based	 on	 its	

findings	 that	 the	 Department	 had	 proved	 all	 four	 grounds	 of	 parental	

unfitness	and	that	termination	was	in	the	child’s	best	interest.2			


   2		After	the	court	announced	its	decision	as	to	the	father,	the	Department	proceeded	to	present	

evidence	against	the	mother,	who	was	present	on	the	first	day	of	the	hearing	but	did	not	appear	for	
4	

        [¶6]	 	 On	 December	 8,	 2016,	 before	 the	 court	 issued	 its	 written	

judgment,	the	father	filed	a	motion	for	a	new	trial	or	for	reconsideration	of	the	

termination	decision	that	the	court	had	stated	orally.		See	M.R.	Civ.	P.	59.		The	

motion	stated,	“The	father	has	contacted	counsel	and	explained	that	[he]	was	

not	present	because	he	resides	in	Massachusetts,	and	.	.	.	his	vehicle	was	stolen	

the	 night	 before	 the	 hearing.”	 	 The	 motion	 further	 stated	 that	 but	 for	 that	

circumstance,	 the	 father	 would	 have	 attended	 the	 hearing	 and	 would	 have	

been	“able	to	offer	testimony	in	his	defense.”		The	motion	did	not	explain	why	

the	father	had	not	notified	the	court	or	his	attorney	on	the	day	of	the	hearing	

that	he	would	not	attend;	it	did	not	provide	any	support	for	the	claim	that	the	

car	had	been	stolen;	and	it	did	not	describe	what	testimony	the	father	claimed	

he	would	have	provided	at	the	hearing.		The	Department	opposed	the	motion,	

and	the	court	summarily	denied	it	on	December	15,	2016.		The	final	judgment	

terminating	the	parental	rights	of	both	parents	was	entered	on	December	27,	

and	 the	 father	 timely	 appealed.	 	 See	 22	 M.R.S.	 §	 4006	 (2016);	

M.R.	App.	P.	2(b)(3).	




the	 second	 day.	 	 Based	 on	 the	 evidence	 presented,	 the	 court	 terminated	 the	 mother’s	 parental	
rights.		She	does	not	appeal.			
                                                                                                             5	

                                            II.		DISCUSSION	

	       [¶7]	 	 On	 appeal,	 the	 father	 does	 not	 contest	 the	 sufficiency	 of	 the	

evidence	 supporting	 the	 court’s	 parental	 unfitness	 and	 best	 interest	

determinations.		Rather,	he	argues	that	the	court	deprived	him	of	due	process	

by	 terminating	 his	 parental	 rights	 even	 though	 he	 was	 not	 present	 at	 the	

termination	 hearing,	 and	 by	 failing	 to	 grant	 his	 motion	 for	 a	 new	 trial	 or	

provide	him	with	an	alternative	opportunity	to	be	heard	when	he	notified	the	

court,	 six	 days	 after	 the	 hearing	 was	 held,	 that	 his	 absence	 was	 due	 to	 the	

alleged	theft	of	his	car.3			

        [¶8]	 	 We	 review	 the	 denial	 of	 a	 motion	 for	 a	 new	 trial	 “deferentially	

.	.	.	for	a	clear	and	manifest	abuse	of	discretion.”		Arundel	Valley,	LLC	v.	Branch	

River	Plastics,	Inc.,	2016	ME	175,	¶	11,	151	A.3d	938	(citations	and	quotation	

marks	omitted);	see	also	In	re	Mark	M.,	581	A.2d	807,	808	(Me.	1990).		“When	

due	 process	 is	 implicated,	 we	 review	 such	 procedural	 rulings	 to	 determine	

whether	 the	 process	 struck	 a	 balance	 between	 competing	 concerns	 that	 was	


    3		The	father	also	argues	that	the	court’s	summary	denial	of	his	Rule	59	motion	was	insufficient	

to	inform	the	parties	of	the	basis	for	its	decision	and	to	allow	for	meaningful	review	on	appeal.		In	a	
termination	proceeding,	M.R.	Civ.	P.	52(a)	requires	the	court	to	“make	specific	findings	of	fact	and	
state	its	conclusions	of	law	thereon	as	required	by	22	M.R.S.	§	4055,”	which	prescribes	the	grounds	
for	a	termination	decision.		Here,	in	its	oral	and	written	decisions,	the	court	made	findings	of	fact	
and	 stated	 its	 conclusions	 of	 law	 as	 required	 by	 Rule	52(a).	 	 Contrary	 to	 the	 father’s	 argument,	
however,	his	Rule	59	motion	did	not	by	itself	trigger	an	obligation	for	the	court	to	make	additional	
findings	of	fact	or	otherwise	explain	its	reasoning	in	denying	the	motion.		
6	

fundamentally	 fair.”	 	 In	 re	 A.M.,	 2012	 ME	 118,	 ¶	 14,	 55	 A.3d	 463	 (quotation	

marks	omitted).		

       [¶9]	 	 Due	 process	 is	 a	 “flexible	 concept	 that	 calls	 for	 such	 procedural	

protections	 as	 the	 particular	 situation	 demands.”	 	 Id.	 ¶	 15	 (quotation	 marks	

omitted)	 (noting	 that	 a	 due	 process	 challenge	 to	 a	 judgment	 terminating	

parental	 rights	 must	 be	 reviewed	 pursuant	 to	 Mathews	 v.	 Eldridge,	 424	 U.S.	

319,	 334-35	 (1976)).	 	 In	 termination	 proceedings,	 where	 a	 parent’s	

fundamental	 right	 to	 care	 for	 his	 or	 her	 child	 is	 at	 stake,	 “due	 process	

requires:	 notice	 of	 the	 issues,	 an	 opportunity	 to	 be	 heard,	 the	 right	 to	

introduce	evidence	and	present	witnesses,	the	right	to	respond	to	claims	and	

evidence,	 and	 an	 impartial	 factfinder.”	 	 In	 re	 A.M.,	 2012	 ME	 118,	 ¶	 16,	

55	A.3d	463	(quotation	marks	omitted).			

       [¶10]		“When	incarceration	is	not	involved	and	a	parent	fails	to	appear,	

courts	generally	discern	no	abuse	of	discretion	or	violation	of	due	process	in	

proceeding	 with	 the	 hearing	 if	 the	 parent’s	 absence	 was	 occasioned	 by	

circumstances	 voluntarily	 created	 by	 that	 parent.”	 	 Id.	 ¶	 19;	 see	 also	 In	 re	

Adden	B.,	2016	ME	113,	¶	8,	144	A.3d	1158	(concluding	that	a	father’s	absence	

due	to	illness	was	not	“involuntary”	in	part	because	the	court	questioned	the	

credibility	 of	 his	 assertion	 that	 he	 was	 ill).	 	 Further,	 regardless	 of	 whether	 a	
                                                                                                         7	

parent’s	failure	to	appear	at	a	termination	hearing	is	voluntary,	a	court	does	

not	 deprive	 the	 absent	 parent	 of	 due	 process	 by	 terminating	 her	 parental	

rights	 if	 that	 parent	 fails	 to	 make	 an	 offer	 of	 proof,	 see	 M.R.	 Evid.	 103(a)(2),	

through	 a	 timely	 post-judgment	 motion,	 “indicating	 what	 additional	 relevant	

information	might	be	provided	to	the	court	by	her	presence	or	her	testimony.”		

In	re	A.M.,	2012	ME	118,	¶¶	18,	23,	55	A.3d	463;	see	also	In	re	Randy	Scott	B.,	

511	 A.2d	 450,	 453	 (Me.	 1986)	 (rejecting	 a	 parent’s	 due	 process	 challenge	

when	 he	 “failed	 to	 show	 any	 prejudice	 caused	 by	 his	 absence	 from	 the	

[termination]	hearing”).			

        [¶11]	 	 That	 is	 the	 case	 here.	 	 The	 father	 did	 not	 explain	 in	 his	 Rule	 59	

motion,	 and	 does	 not	 explain	 on	 appeal,	 how	 his	 participation	 in	 the	 trial	

would	 have	 affected	 the	 court’s	 determinations	 that	 he	 was	 parentally	 unfit	

and	that	termination	was	in	the	child’s	best	interest.		He	did	not	make	an	offer	

of	proof	or	otherwise	provide	the	court	with	a	description	of	the	information	

he	 would	 have	 offered	 to	 oppose	 the	 termination	 petition,	 particularly	 given	

the	 Department’s	 evidence	 that	 he	 had	 played	 virtually	 no	 role	 in	 the	 child’s	

life	both	before	and	during	the	pendency	of	this	proceeding	and	had	not	made	

meaningful	 efforts	 to	 reunify	 with	 her.4	 	 See	 In	 re	 A.M.,	 2012	 ME	 118,	 ¶	 25,	


   4		We	further	note	that	as	a	result	of	the	father’s	unexplained	failure	to	contact	the	court	or	his	

attorney	 on	 the	 day	 of	 the	 hearing	 when	 the	 alleged	 transportation	 problem	 arose,	 he	 did	 not	
8	

55	A.3d	463	 (stating	 that	 a	 parent’s	 “failure	 to	 explain	 on	 appeal	 how	 her	

absence	 .	 .	 .	 could	 have	 affected	 the	 trial	 or	 its	 outcome	 is	 relevant	 in	

determining	on	appeal	whether	she	has	been	deprived	of	due	process”).			

         [¶12]	 	 The	 court	 therefore	 did	 not	 abuse	 its	 discretion	 by	 denying	 the	

father’s	motion	for	a	new	trial	or	for	reconsideration.		See	Arundel	Valley,	LLC,	

2016	ME	175,	¶	11,	151	A.3d	938.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	      	     	    	
	
Richard	Charest,	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	
	
	
Lewiston	District	Court	docket	number	PC-2015-69	
FOR	CLERK	REFERENCE	ONLY	




request	a	continuance	or	seek	to	participate	by	video	or	telephone.		See	M.R.	Civ.	P.	43(a)	(stating	
that	 “for	 good	 cause	 shown,”	 a	 court	 may	 “permit	 presentation	 of	 testimony	 in	 open	 court	 by	
contemporaneous	transmission	from	a	different	location”).		
