MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2015 ME 58
Docket:   Som-14-341
Argued:   April 8, 2015
Decided:  May 7, 2015

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



                                 JANA GEHRKE et al.

                                           v.

                                   CHAD GEHRKE

SAUFLEY, C.J.

         [¶1] Following a pattern of violence, threats, suicide threats, and failure to

comply with increasingly restrictive court orders, Chad Gehrke appeals from a

judgment entered in the District Court (Skowhegan, Benson, J.) extending a

protection from abuse order protecting his ex-wife, Jana Gehrke, and the parties’

three sons for an additional two years. He argues that the court erred in relying on

evidence of conduct that occurred before the original protection from abuse order

was entered in finding that the extended order was “necessary” to protect Jana and

the children, and that the extended protection order violates his constitutional due

process rights as a parent.       19-A M.R.S. § 4007(2) (2014).        We affirm the

judgment.
2

                               I. BACKGROUND

A.    Procedural History

      [¶2] In July 2012, Jana Gehrke filed a complaint against Chad Gehrke

seeking protection from abuse for herself and their three sons (then ages twelve,

nine, and seven). The parties agreed to the entry of a protection order without

findings of abuse, and the court (Stanfill, J.) entered an order on July 20, 2012.

The order authorized Chad to contact Jana only indirectly through identified

individuals and only regarding the children, and it authorized contact with the

children under the supervision of identified individuals, at counseling as

recommended by professionals, and at the children’s extracurricular school events.

      [¶3] Jana moved to modify the order in January 2013, seeking to add a

requirement that Chad attend counseling, Menswork, or an anger management

program. The resulting order, entered by agreement without findings of abuse on

February 22, 2013, required Chad to obtain such services and authorized him to

send text messages to Jana but only regarding the children.

      [¶4] Six months later, in late August 2013, Jana again moved to modify the

order, this time on the ground that Chad had engaged in conduct that had

frightened the children. The court’s resulting order, entered on September 13,

2013, again by agreement of the parties without findings of abuse, further
                                                                                 3

constrained Chad’s contact with the children and eliminated the provision that

Chad could contact Jana indirectly through others or by sending text messages.

      [¶5] On November 1, 2013, Jana filed her third motion to modify the

protection order, seeking a complete prohibition on contact between Chad and the

children. After a full, contested hearing, the court found that Chad had committed

abuse and entered an amended order on January 3, 2014, prohibiting Chad from

having any contact with Jana or the children, including at school and sporting

events attended by the children. That amended order was set to expire on July 20,

2014. Chad did not request further findings or appeal from the judgment.

      [¶6] In mid-July 2014, Jana moved to extend the order of protection from

abuse for two more years. See 19-A M.R.S. § 4007(2). She alleged that she

remained in fear for herself and her children because Chad had repeatedly violated

protection orders and had engaged in other conduct that frightened her and the

children. The court (Benson, J.) held a contested hearing on July 18, 2014, during

which it heard testimony from Jana and two of her relatives. The court advised

Chad of his Fifth Amendment rights. Chad elected not to testify, and he offered no

additional evidence.

      [¶7] The court entered a judgment extending the order of protection from

abuse due to an “ongoing pattern of abuse” that had “continued even through the

existence of a previous order.” The court stated, “based on the evidence that I’ve
4

heard, I feel I have no choice but to continue the current order for another two

years.”1

B.       Facts Supporting the Court’s Judgment

         [¶8] Because Chad did not, after the court entered its judgment, “request

additional findings of fact pursuant to M.R. Civ. P. 52, we assume that the trial

court made all of the necessary subsidiary findings that can be supported by

competent record evidence to support its decision.” Sullivan v. Doe, 2014 ME 109,

¶ 19, 100 A.3d 171. The evidence supporting the court’s decision is as follows.

         [¶9] Jana met Chad when she was twenty-two years old and already had two

daughters, ages two and five.                Chad had a four-year-old child but had only

supervised contact with that child and was required to attend an anger management

program. After Jana had been with Chad for about a year, he began to break and

throw things, and to push her. When she was pregnant with one of their children,

he made a threat through a friend that he was going to “take a coat hanger to [Jana]

and deliver[] that baby dead.”

         [¶10] Chad once tackled Jana’s oldest daughter in a neighbor’s yard, and in

2009, he hit one of their boys when the boy did not want to wear the shirt his

mother had chosen. When one of Jana’s daughters attempted to intercede, Chad hit
     1
      Although Chad argues that this statement by the court evidenced a misunderstanding on the part of
the court that it lacked discretion, the court’s words, viewed in context, can only be understood to indicate
that the facts that the court found met the legal standard for extending the order of protection and were so
compelling that a substantial extension was necessary to protect Jana and the boys.
                                                                                      5

her. Jana began to accommodate Chad’s every request in an effort to prevent him

from hurting her children. The parties’ oldest son witnessed Chad’s intrusive and

humiliating actions in challenging Jana’s fidelity. Chad threw a lit cigarette at Jana

when her younger daughter and one of the boys were in the car. He pushed Jana

down the stairs in front of the children. He went to Jana’s workplace, which

resulted in an emergency room visit for Jana and the loss of her job. He also went

to the home of the children’s maternal grandmother late at night to take the

children, which led to his arrest.

      [¶11]    Significantly, Chad once told Jana, while holding a gun and in

possession of knives, and in the presence of the boys, that he was going to end it all

that night and she would never have to worry about him and the boys again. He

told Jana he “had five bullets and [he was] going to end it all and it was going to be

done.” He made similar threats to kill them all many times.

      [¶12] The children have been traumatized. The youngest, nine years old at

the time of trial, could not sleep by himself because he was scared that someone

would break into the house. All of the children feel guilty because of things that

they witnessed Chad do to Jana. One of Jana’s daughters dropped out of high

school because things got so bad. The boys have been in counseling, and Jana

thinks that it is too early to trust that Chad is doing what he must to make it safe for

the children to see him. Chad often used his visitation with his children to try to
6

find out what Jana was doing, who Jana was talking to, who Jana was dating, and

when Jana got out of work.                   He has repeatedly violated court orders, as

demonstrated by a series of probation revocations and convictions entered upon

guilty pleas for violating protective orders or conditions of release.2

        [¶13] After his most recent release from jail in September 2013, Chad

contacted Jana by email; blew her a kiss from across the street at a child’s sporting

event; showed up at a sporting event disguised in a wig, which upset the children

because they thought that he might kidnap them; and asked a friend of Jana’s if

Chad could put his paycheck in the friend’s mailbox to go toward child support.

        [¶14] Chad now appeals from the trial court’s extension of the order of

protection from abuse. See 14 M.R.S. § 1901 (2014); M.R. App. P. 2.

                                         II. DISCUSSSION

        [¶15] Chad’s arguments concern (A) the court’s consideration of evidence

of abuse that predated the initial protection from abuse order in determining

whether an extension of the order was necessary and (B) the constitutionality of the

protection from abuse statute’s infringement on his parental rights. We address

each issue separately.



    2
       Although not presented as exhibits at the hearing, copies of docket entries and judgments
demonstrating probation revocations and convictions entered between 2010 and 2013 are contained in the
record as a result of prior proceedings in the case, and Jana asked the court to take judicial notice of the
probation revocations and convictions.
                                                                                 7

A.    Evidence of Prior Abuse

      [¶16] Chad argues that the court erred in relying on any evidence that

predated the first protection order entered in this matter in 2012. He argues that

the court erred in determining that an extended protection order was “necessary” to

protect Jana and the children from abuse, 19-A M.R.S. § 4007(2), when there was

little evidence of new conduct since the last modification of the order.

      [¶17] “A protective order or approved consent agreement is for a fixed

period not to exceed 2 years.” Id. “At the expiration of that time, the court may

extend an order, upon motion of the plaintiff, for such additional time as it

determines necessary to protect the plaintiff or minor child from abuse.” Id. “[A]n

extension granted in response to a plaintiff’s motion to extend is the exclusive

means to extend a protection order beyond the two-year durational limit.” O’Brien

v. Weber, 2012 ME 98, ¶ 9, 48 A.3d 230.

      [¶18]   The findings required for an extension of an existing order of

protection differ from the findings required for a court to issue a new order of

protection. See 19-A M.R.S. §§ 4002(1), 4005(1), 4007(1), (2) (2014). Whereas a

plaintiff bringing a new action must demonstrate “that the defendant has

committed the alleged abuse or engaged in the alleged conduct described in section

4005, subsection 1,” id. § 4007(1), a plaintiff seeking to extend an order must
8

demonstrate that the additional time is “necessary to protect the plaintiff or minor

child from abuse,” id. § 4007(2).

      [¶19] When a court’s order of protection has expired, some new conduct

meeting the definition of abuse must be shown for the court to issue a new order of

protection. See O’Brien, 2012 ME 98, ¶¶ 9-10, 48 A.3d 230. By contrast, when a

party, before an order of protection has expired, requests the extension of that

order, a court can, and often will, base its determination in part on the underlying

reasons that the initial order was entered. See, e.g., Dyer v. Dyer, 2010 ME 105,

5 A.3d 1049. Evidence demonstrating a history of abuse, as defined by statute to

include actual or attempted infliction of bodily injury or offensive physical contact,

see 19-A M.R.S. § 4002(1)(A), and threats of such conduct made in an attempt to

place another in fear of bodily injury, see id. § 4002(1)(B), is relevant and

admissible to demonstrate that an extended order of protection is “necessary,” id.

§ 4007(2). In this context, a court’s consideration of evidence of earlier abuse is

appropriate, particularly when preceding orders were entered without the court

making particularized factual findings or were entered by agreement of the parties

without any finding of abuse. See Dyer, 2010 ME 105, ¶¶ 3-5, 11, 5 A.3d 1049.

      [¶20] The matter before us stands as a vivid example of a case in which

evidence of earlier abuse was essential to the court’s understanding of whether an

extension of the order was “necessary to protect the plaintiff or minor child from
                                                                                   9

abuse.” 19-A M.R.S. § 4007(2). Without evidence of the pattern of persistent

intrusive and frightening conduct when Chad was allowed access to Jana and the

children, the court would not have been in a position to understand why Jana and

the children would be frightened by Chad’s more recent behavior.

      [¶21] Although the evidence of recent conduct might not, taken in isolation,

demonstrate that new abuse occurred, see 19-A M.R.S. §§ 4002(1), 4007(1), the

record contains ample evidence of a pattern of abuse by Chad supporting the

court’s conclusion that an extension of an existing order was necessary for Jana’s

and the boys’ protection, see 19-A M.R.S. § 4007(2). Specifically, the record

contains evidence that Chad was violent with Jana and at least one of the boys in

the past; that he threatened Jana, the children, and himself while in possession of

deadly weapons; that he repeatedly violated protection orders; and that Jana and

the children remain frightened of him, especially because he recently behaved in

ways that continued the pattern of intimidating or threatening conduct. Chad did

not offer any evidence that the risk he posed to Jana and the children had

diminished.

      [¶22] Brandishing weapons, threatening suicide, making graphic threats of

violence, and persistently violating court orders all demonstrate a serious potential

for lethality.   See 19-A M.R.S. § 4001(1) (recognizing that such conduct

“frequently culminates in intrafamily homicide”). Given this evidentiary record,
10

the court did not err in finding that Chad’s recent actions, viewed in context,

demonstrate a continued threat of abuse, and that continued protection is necessary.

See id.; see also Walton v. Ireland, 2014 ME 130, ¶ 22, 104 A.3d 883; O’Brien,

2012 ME 98, ¶ 9 & n.2, 48 A.3d 230.

      B.     Constitutionality of Intrusion on Parental Rights

      [¶23] Chad argues that, to safeguard his constitutionally protected parental

rights, any restructuring of his rights of contact with the boys should have been

undertaken in the divorce proceeding, not through a protection from abuse

complaint.    Accordingly, we must determine whether the order of extension

entered here comported with the purposes of the protection from abuse statute in

allocating “temporary parental rights and responsibilities” for purposes of

protection from abuse. 19-A M.R.S. § 4007(1)(G); see 19-A M.R.S. § 4001 (2014)

(identifying statutory purposes of protection from abuse statutes).

      [¶24] “The law is firmly established that parents have a fundamental liberty

interest to direct the care, custody, and control of their children.” Griffin v. Griffin,

2014 ME 70, ¶ 26, 92 A.3d 1144 (quotation marks omitted). Consistent with this

legal principle, we presume that fit parents act in the best interests of their children,

and due process requires that any interference with parental interests pass the

strict-scrutiny test. Pitts v. Moore, 2014 ME 59, ¶¶ 11-12, 90 A.3d 1169. That test
                                                                                         11

“requires that the State’s action be narrowly tailored to serve a compelling state

interest.” Id. ¶ 12 (quotation marks omitted).

       [¶25] The protection from abuse statutes permit a court, upon a finding of

abuse, to temporarily infringe on parental discretion over the care and custody of a

child. See 19-A M.R.S. § 4007(1)(G). The Legislature authorized this interference

in recognition of “domestic abuse as a serious crime against the individual and

society, producing an unhealthy and dangerous family environment, resulting in a

pattern of escalating abuse, including violence, that frequently culminates in

intrafamily homicide and creating an atmosphere that is not conducive to healthy

childhood development.”         19-A M.R.S. § 4001(1); see id. § 4007(1).              The

protection from abuse process serves to “support the efforts of law enforcement

officers, prosecutors and judicial officers to provide immediate, effective

assistance and protection for victims of abuse and to recognize the crucial role of

law enforcement officers in preventing further incidents of abuse and in assisting

the victims of abuse.” Id. § 4001(4).3

       [¶26]    When a party has established abuse pursuant to the statutory

definition of that term, see id. § 4002(1), the State has a “compelling interest” in

limiting or restricting a parent’s rights, because harm or a threat of harm to the


  3
     See generally Maine Domestic Abuse Homicide Review Panel, 10th Report, Building Bridges
Towards Safety and Accountability to End Domestic Violence Homicide (April 2014).
12

child will result from the absence of such governmental interference. Sparks v.

Sparks, 2013 ME 41, ¶¶ 21-22, 65 A.3d 1223. As we have held before, the statute

survives strict scrutiny because it is narrowly tailored to authorize relief only when

the person bringing the petition is a person who is responsible for the child, there

has been a finding of abuse as that term is specifically defined by statute, and the

rights awarded are temporary. See id. ¶¶ 23-26.

      [¶27] Here, based on findings reached after a full evidentiary hearing, the

court ordered an extension of two years. Although the order results in an intrusion

on Chad’s parental rights, both the statutory scheme and the particular order

entered here are narrowly tailored to serve the State’s interest of protecting

children from abuse and harm.        The extended order is not final but instead

modifiable if the circumstances change, and unlike a parental rights and

responsibilities judgment, see 19-A M.R.S. § 1653 (2014), the provisions of the

order are limited in duration, here to two additional years, and are enforceable by

law enforcement, see 19-A M.R.S. § 4011 (2014), which is necessary in a case

where threats of lethal conduct have been made in the presence of firearms. Chad

has not been deprived of due process by the application of section 4007(2) of the

protection from abuse statute in these circumstances.

      The entry is:

                      Judgment affirmed.
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On the briefs:

       Walter F. McKee, Esq., and James A. Billings, Esq., McKee Billings, LLC,
       P.A., Augusta, for appellant Chad Gehrke

       Paul Sumberg, Esq., Wright & Mills, P.A., Skowhegan, for appellee Jana
       Gehrke


At oral argument:

       James A. Billings, Esq., for appellant Chad Gehrke

       Lawrence Bloom, Esq., Bloom & Bloom, Skowhegan, for appellee Jana
       Gehrke



Skowhegan District Court docket number PA-2012-271
FOR CLERK REFERENCE ONLY
