MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision:    2019 ME 154
Docket:      Aro-19-162
Submitted
  On Briefs: October 24, 2019
Decided:     October 31, 2019

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



                               IN RE CHILDREN OF TROY H.


PER CURIAM

         [¶1] Troy H. appeals from a judgment entered by the District Court

(Presque Isle, Nelson, J.) finding that two of his children are in circumstances of

jeopardy pursuant to 22 M.R.S. § 4035(2) (2018) and that returning those

children to his custody is likely to cause them serious emotional or physical

damage pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C.S.

§§ 1901-1963 (LEXIS through Pub. L. No. 116-65). He contends that the court’s

factual findings do not support its determination that the children are in

jeopardy. We affirm the judgment.

                                      I. BACKGROUND

         [¶2]     In November of 2018, the Department of Health and Human

Services filed a petition for a child protection order and preliminary protection
2

order for the two children, who were then fourteen and sixteen years old.1 The

petition alleged that the children were at risk due to the emotional instability

and homelessness of their father—who had sole custody at that time pursuant

to a Florida child protection order—which caused him to neglect the children’s

health and safety. The court entered a preliminary protection order that day,

placing the children in the Department’s custody. The father waived the

opportunity for a summary preliminary hearing, and he consented to their

foster placement pursuant to ICWA. See 25 U.S.C.S. § 1915(a), (c); 22 M.R.S.

§ 4034(4) (2018).

        [¶3] The court conducted a contested jeopardy hearing in January and

March of 2019. Based on the evidence presented at the hearing, by order dated

April 11, 2019, the court determined by clear and convincing evidence that the

children were in jeopardy to their health or welfare due to physical and

emotional abuse and that returning the children to the father’s custody would

likely result in serious emotional or physical damage to the children.2 See




    1The children, through their mother, are affiliated with the Aroostook Band of Micmac Indians
and ICWA therefore applies, 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No. 116-65); the Band
has been involved since before the Department filed its initial petition in this case.

    The court also entered an agreed-to jeopardy order as to the mother, and she does not appeal
    2

from that order.
                                                                               3

25 U.S.C.S. § 1912(e); 22 M.R.S. §§ 4002(6), 4035(2) (2018). The father timely

appealed. See 22 M.R.S. § 4006 (2018); M.R. App. P. 2B(c)(1).

                                II. DISCUSSION

      [¶4] We note initially that Maine law and federal law apply concurrently

to this proceeding, resulting in a “dual burden of proof.” In re Denice F., 658

A.2d 1070, 1072 (Me. 1995). Pursuant to ICWA, the Department was required

to prove by clear and convincing evidence “that the continued custody of the

child[ren] by the parent or Indian custodian is likely to result in serious

emotional or physical damage to the child[ren].” 25 U.S.C.S. § 1912(e). Maine

law, however, requires that the Department prove by a preponderance of the

evidence that the children are in circumstances of jeopardy, which includes the

“threat of serious harm.” 22 M.R.S. §§ 4002(6)(A), 4035(2); In re Danielle H.,

2019 ME 134, ¶ 2, 215 A.3d 217.

      [¶5] The father does not purport to dispute any of the court’s underlying

factual findings, but instead asserts that those facts do not support the court’s

conclusion that the children are in circumstances of jeopardy pursuant to the

Maine statute. 22 M.R.S. § 4035(2). We review the court’s factual findings for

clear error and will affirm its jeopardy determination pursuant to section

4035(2) “unless there is no competent record evidence that can rationally be
4

understood to establish as more likely than not that the child was in

circumstances of jeopardy to his or her health and welfare.” In re Nicholas S.,

2016 ME 82, ¶ 9, 140 A.3d 1226 (alterations omitted) (quotation marks

omitted); see also In re Chelsey B., 499 A.2d 137, 139 (Me. 1985).

      [¶6] The court made the following findings of fact, all of which are

supported by competent evidence in the record.

             [Soon after moving to Maine in the summer of 2017, the
      father] would respond or react to [the older child] in a physical
      manner. . . . On or about January 21, 2018, after a physical
      altercation with [the father, the older child] was taken to the
      hospital and then placed in [a crisis unit]. . . . The incident started
      with arguing, then [the older child] kicked or put his foot on his
      father’s chair. [The father] pulled [the older child] by his hair down
      the hallway and put him in his room. . . . Upon leaving the crisis
      unit, [the older child] was supposed to have follow up services.
      [The father] did not like the lady who came to the house for this . . . .
      [The older child] did not receive any other services.

             At the end of June 2018, . . . [the older child] reported his
      father threw him into a wall in his bedroom. . . . [The police]
      brought [the child] to the hospital, thereafter [the child] was placed
      back in [the crisis unit]. No follow up services were set up for [the
      child].

             On July 9, 2018, [the older child and the father] were in a
      physical altercation wherein [the father] responded by taking [the
      child] to the ground and putting him in a chokehold. . . .

             During the same time period that [the father] was having
      significant difficulties with the boys, [the father] was abusing
      substances, including methamphetamine. . . . [The older child]
                                                                          5

developed a belief that [the father] was engaged in significant
methamphetamine use.

      [The children] lived with their mother for a few months
beginning in the fall of 2018, while [the father] lived in a car for a
period of time and then in a house/cabin . . . . The house/cabin was
not suitable for the children to live in. . . . [The children] were not
attending school consistently at that time.

       . . . They had no stable housing, were bouncing around from
place to place, and [the older child’s] relationship with [the father]
had completely deteriorated. [The older child] did not want to go
back with his father. He described his father as a “psychopath” and
that [the father] was “always hitting me and yelling at me.”

       [The father] had no place to take the boys and no money. The
children’s world was in utter chaos. [The father] had no viable plan
moving forward. His swift and severe reactions to [the older child]
were causing [the younger child] to withdraw and [the older child]
to rebel. [The father] was responding to [the older child] by yelling
and swearing or being physical with [the older child]. [The father]
had a complete and total lack of understanding as to how this
instability and the volatile relationship with [the older child] was
affecting [the younger child]. . . .

       Since coming into care, [the older child’s] situation has
improved. . . . He is having daily telephone contact with [his
mother] but indicated he wants no contact with [the father]. This
is due in large part to [the father] blaming [the older child] for the
situation now confronting the family . . . .

      [The younger child] needs structure, supervision, and a
parent that works with entities such as the school system and
providers.

      [The father] . . . has difficulty maintaining his composure and
communicating effectively. He is very rigid in his way of
thinking. . . . He perseverates on blaming others for his actions and
6

        reactions, and cannot or will not see how his role contributes to
        escalating situations, especially with [the older child].

        [¶7] Contrary to the father’s contention, we conclude that these findings

establish as more likely than not that returning the children to the father’s

custody would cause the children “[s]erious harm or [the] threat of serious

harm.”3 22 M.R.S. § 4002(6)(A).

        [¶8] The entry is:

                           Judgment affirmed.



Allan Hanson, Esq., Caribou, for appellant Father

Aaron M. Frey, Attorney General, and Zack Paakkonen, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services


Presque Isle District Court docket number PC-2018-27
FOR CLERK REFERENCE ONLY




    3 The father does not appear to challenge the court’s determination, by clear and convincing
evidence, that returning the children to his custody “is likely to result in serious emotional or physical
damage to the child[ren].” 25 U.S.C.S. § 1912(e). To the extent that he does, however, we also
conclude that the court’s findings are supported by competent record evidence and are a sufficient
basis for its conclusion that returning the children to the father’s custody would likely result in their
“serious emotional or physical damage.” Id.; see State v. Cookson, 2019 ME 30, ¶ 8, 204 A.3d 125.
