MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	 2018	ME	19	
Docket:	   Kno-17-328	     	
Argued:		  December	14,	2017	     	      	      	      	      	
Decided:	  January	30,	2018	
                                                                    	          	 	        	
Panel:	      SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	   SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:	SAUFLEY,	C.J.	
	
	
                               ADOPTION	OF	PAISLEY	
	
	
ALEXANDER,	J.	

      [¶1]	 	 The	 appellants,	 the	 adoptive	 parents	 of	 two	 of	 Paisley’s	 five	

biological	 siblings,	 appeal	 from	 a	 judgment	 of	 the	 District	 Court	 (Rockland,	

Sparaco,	J.)	denying	their	petition	to	adopt	Paisley	and	granting	the	petition	of	

the	appellees,	Paisley’s	foster	parents,	to	adopt	her.	

      [¶2]	 	 The	 appellants	 argue	 that	 they	 have	 standing	 to	 appeal	 the	 trial	

court’s	adoption	decree	granting	the	foster	parents’	petition	to	adopt	Paisley.		

They	 challenge	 the	 trial	 court’s	 finding	 that,	 pursuant	 to	 18-A	 M.R.S.	

§	9-302(a)(3)	 (2017),	 the	 Department	 of	 Health	 and	 Human	 Services	 acted	

unreasonably	in	withholding	consent	to	the	adoption	of	Paisley	by	the	foster	
2	

parents.		The	appellants	also	challenge	the	trial	court’s	admission	of	testimony	

by	the	foster	parents’	expert	witness,	a	child	attachment	specialist.1	

        [¶3]	 	 In	 this	 appeal,	 we	 consider	 the	 application	 of	 the	 consent	 to	

adoption	 statute,	 18-A	 M.R.S.	 §	 9-302	 (2017),	 to	 contested	 adoption	

proceedings	 heard	 in	 the	 District	 Court	 following	 a	 District	 Court	 judgment	

terminating	parental	rights	concerning	that	child.		See	22	M.R.S.	§§	4050-4056	

(2017).	 	 Adoption	 proceedings	 following	 State	 initiated	 proceedings	 to	

terminate	 parental	 rights	 are	 heard	 in	 the	 District	 Court.	 	 See	 4	 M.R.S.	

§	152(5-A)	(2017);	18-A	M.R.S.	§	9-103	(2017).		See	also	Adoption	of	Isabelle	T.,	

2017	ME	220,	¶	9	n.2,	---	A.3d	---.	

        [¶4]		As	relevant	to	this	appeal,	18-A	M.R.S.	§	9-302(a)	states:	

        (a)			Before	an	adoption	is	granted,	written	consent	to	the	adoption	
        must	be	given	by:	
        	
        .	.	.	.	

        (3)	 The	person	or	agency	having	legal	custody	or	guardianship	
        of	 the	 child	 or	 to	 whom	 the	 child	 has	 been	 surrendered	 and	
        released,	 except	 that	 the	 person’s	 or	 agency’s	 lack	 of	 consent,	 if	
        adjudged	 unreasonable	 by	 a	 judge	 .	 .	 .	 may	 be	 overruled	 by	 the	
        judge.		In	order	for	the	judge	to	find	that	the	person	or	agency	acted	
        unreasonably	in	withholding	consent,	the	petitioner	must	prove,	by	
        a	preponderance	of	the	evidence,	that	the	person	or	agency	acted	
        unreasonably.	 	 The	 court	 may	 hold	 a	 pretrial	 conference	 to	
        determine	who	will	proceed.		The	court	may	determine	that	even	

     1		The	appellants	further	argue	that	the	court	erred	in	admitting	a	photo	and	video	collage	offered	

by	the	foster	parents.		This	argument	is	not	persuasive	and	will	not	be	discussed	further.	
                                                                                        3	

      though	 the	 burden	 of	 proof	 is	 on	 the	 petitioner,	 the	 person	 or	
      agency	should	proceed	if	the	person	or	agency	has	important	facts	
      necessary	to	the	petitioner	in	presenting	the	petitioner’s	case.		The	
      judge	shall	consider	the	following:	
	
                 (i)	 Whether	the	person	or	agency	determined	the	needs	
                       and	interests	of	the	child;	
                     	
                 (ii)	 Whether	the	person	or	agency	determined	the	ability	
                       of	 the	 petitioner	 and	 other	 prospective	 families	 to	
                       meet	the	child's	needs;	
	
                 (iii)	 Whether	 the	 person	 or	 agency	 made	 the	 decision	
                        consistent	with	the	facts;	
	
                 (iv)	 Whether	 the	 harm	 of	 removing	 the	 child	 from	 the	
                       child's	 current	 placement	 outweighs	 any	
                       inadequacies	of	that	placement;	and	
	
                 (v)	 All	 other	 factors	 that	 have	 a	 bearing	 on	 a	
                      determination	of	the	reasonableness	of	the	person’s	
                      or	agency's	decision	in	withholding	consent.	
	
      .	.	.	.	
	
      A	 petition	 for	 adoption	 must	 be	 pending	 before	 a	 consent	 is	
      executed.	
	
      [¶5]		Here,	Paisley’s	parents’	rights	had	been	terminated,	and	because	the	

Department	 had	 legal	 custody	 of	 Paisley,	 section	 9-302(a)(3)	 required	 that,	

before	any	adoption	could	be	granted,	the	Department’s	written	consent	had	to	

be	 obtained.	 	 The	 Department’s	 refusal	 to	 grant	 consent	 to	 adoption	 by	 the	

appellees	 and	 its	 consent	 to	 adoption	 by	 the	 appellants	 was	 the	 focus	 of	 the	
4	

District	 Court	 hearing.	 	 After	 the	 hearing,	 the	 court,	 applying	 section	

9-302(a)(3),	 found	 that	 the	 appellees—the	 foster	 parents—had	 met	 their	

burden	to	prove	“by	a	preponderance	of	the	evidence”	that	the	Department	had	

acted	unreasonably	in	withholding	its	consent	to	their	adoption	of	Paisley.	

      [¶6]	 	 Because	 the	 evidence	 admitted	 at	 the	 trial	 on	 the	 competing	

petitions	 for	 adoption	 supports	 the	 trial	 court’s	 findings	 and	 discretionary	

determinations,	we	affirm	the	judgment.	

                                  I.		CASE	HISTORY	

      [¶7]	 	 The	 following	 findings,	 all	 of	 which	 are	 fully	 supported	 by	 the	

record,	 were	 made	 by	 the	 court	 in	 its	 decision.	 	 Paisley	 was	 born	 in	

October	2015.	 	 When	 she	 was	 just	 twelve	 days	 old,	 the	 Department	 took	

custody	 of	 her	 and	 placed	 her	 into	 the	 home	 of	 licensed	 foster	 parents,	 the	

appellees.	

      [¶8]		Title	22	M.R.S.	§	4036-B	requires	the	Department	to	notify	relatives	

when	a	child	enters	foster	care.		See	22	M.R.S.	§	4036-B(3-A)	(2017)	(requiring	

the	Department	to	notify	the	following	relatives:	all	grandparents	of	the	child;	

all	parents	of	a	sibling	of	the	child	who	have	legal	custody	of	the	sibling;	and	

other	adult	relatives	of	the	child).	
                                                                                                                  5	

        [¶9]	 	 When	 Paisley	 was	 placed	 in	 foster	 care,	 the	 appellants,	 who	 had	

previously	 adopted	 two	 of	 Paisley’s	 biological	 siblings2	 and	 who	 live	 in	

Massachusetts,	 received	 the	 Department’s	 notification,	 pursuant	 to	 22	 M.R.S.	

§	4036-B(3-A).	 	 They	 immediately	 contacted	 the	 Department,	 stating	 their	

interest	in	serving	as	a	placement	for	Paisley.	

        [¶10]		At	that	time,	the	Department’s	plan	for	Paisley	was	reunification	

with	her	mother,	who	resided	in	mid-coast	Maine.		Accordingly,	the	Department	

chose	to	leave	Paisley	in	the	care	of	her	foster	parents.		The	record	indicates	

that	the	Department	was	concerned	that	placing	Paisley	with	the	appellants	in	

southern	Massachusetts	would	make	its	efforts	toward	reunification	with	the	

mother	in	mid-coast	Maine	much	more	difficult.	

        [¶11]	 	 While	 Paisley	 resided	 with	 her	 foster	 parents,	 the	 Department	

engaged	in	reunification	efforts	with	Paisley’s	mother.3		During	this	time,	the	

appellants	 were	 in	 regular	 contact	 with	 the	 Department,	 seeking	 to	 set	 up	

visitation	 with	 Paisley	 and	 to	 make	 the	 Department	 aware	 that	 they	 were	

interested	in	being	the	permanent	adoptive	placement	for	Paisley.		In	January	


    2    The	 record	 reflects	 that	 Paisley	 has	 five	 biological	 siblings:	two	 sisters	 who	 live	 with	 their	
adoptive	 parents,	 the	 appellants,	 in	southern	 Massachusetts;	a	 brother	 and	a	 sister	who	 live	 with	
Paisley’s	paternal	grandmother,	near	Paisley’s	foster	parents	in	mid-coast	Maine;	and	a	half-brother	
who	lives	with	his	biological	father	in	Maine.	
    	
    3	 	 Paisley’s	 father	 was	 incarcerated	 and	 did	 not	 participate	 in	 any	 reunification	 efforts	 with	

Paisley.		
6	

of	2016,	a	Department	supervisor	notified	the	appellants	that	the	Department	

was	“going	to	look	into	getting	an	Interstate	Compact	on	Placement	of	Children	

(‘ICPC’)”	evaluation	started.		The	Department	initiated	that	process	in	March	of	

2016.	

      [¶12]		On	June	1,	2016,	the	Department	filed	its	petition	for	termination	

of	the	parents’	rights	and,	in	that	month,	the	appellants	had	their	first	visit	with	

Paisley.	 	 Despite	 the	 filing	 of	 the	 termination	 petition,	 reunification	 efforts	

continued,	and	the	Department	remained	“hopeful”	that	the	mother	would	be	

able	 to	 reunify.	 	 In	 December	 of	 2016,	 however,	 the	 mother	 relapsed,	 was	

incarcerated,	and	reunification	efforts	with	the	mother	ceased.	

      [¶13]	 	 On	 December	 16,	 2016,	 a	 Department	 supervisor	 directed	 the	

caseworker	 to	 tell	 Paisley’s	 foster	 parents	 that,	 if	 the	 mother’s	 rights	 were	

terminated,	 the	 Department	 intended	 to	 place	 Paisley	 in	 Massachusetts	 with	

the	appellants.		The	foster	parents	told	the	caseworker	that	they	had	called	an	

attorney	 “to	 possibly	 fight	 DHHS’s	 placement	 decision.”	 	 The	 Department	

attempted	to	have	the	two	families	meet	but,	when	that	meeting	did	not	occur,	

and	“with	the	threat	of	litigation	looming,”	the	Department	backed	off	on	any	

firm	decision	about	Paisley’s	placement.		Soon	thereafter,	both	the	appellants	

and	 the	 appellees	 moved	 to	 intervene	 in	 the	 child	 protection	 action.	 	 In	
                                                                                                    7	

February	of	2017,	before	any	termination	order	issued,	the	foster	parents	filed	

a	petition	for	adoption.	

       [¶14]	 	 Paisley’s	 parents	 consented	 to	 a	 termination	 of	 their	 parental	

rights	 on	 March	 6,	 2017,	 and	 the	 permanency	 plan	 for	 Paisley	 became	

adoption.4	 	 The	 appellants	 filed	 a	 competing	 petition	 to	 adopt	 Paisley	 on	

April	10,	2017.	

       [¶15]		On	April	24,	2017,	the	court	issued	a	case	management	and	pretrial	

order	that	listed	all	three	docket	numbers:	the	child	protection	docket	number	

and	the	two	family	matter	docket	numbers	assigned	to	the	competing	adoption	

petitions.		 The	order	granted	intervenor	status	to	both	the	appellees	and	the	

appellants.		The	matters	were	then	set	for	a	contested	adoption	hearing.	

       [¶16]		In	late	May,	approximately	two	weeks	before	the	date	set	for	the	

contested	 adoption	 hearing,	 the	 Department	 decided	 that	 Paisley	 should	 be	

placed	with	the	appellants	in	Massachusetts	with	two	of	her	siblings	and	that	it	

would	not	consent	to	adoption	by	the	foster	parents.	

       [¶17]		At	about	the	same	time	as	the	Department’s	consent	decision,	the	

foster	parents	notified	the	appellants	and	the	court	that	they	intended	to	offer	

at	 trial	 the	 expert	 witness	 testimony	 of	 a	 specialist	 in	 early	 childhood	


   4		At	the	termination	hearing,	both	parents	expressed	to	the	court	their	belief	that	Paisley	should	

stay	with	the	appellees	because	of	Paisley’s	bond	with	the	appellees’	family.	
8	

attachment.		On	May	30,	2017,	the	District	Court	held	a	telephone	conference	

to	address	the	objection	by	the	appellants	to	the	foster	parents’	late	designation	

of	the	expert	witness.		After	the	conference,	the	court	issued	an	order	allowing	

the	foster	parents	to	call	their	witness.		The	court	also	indicated	that	it	would	

leave	the	record	open	to	allow	the	appellants	to	call	their	designated	rebuttal	

witness.		The	appellants	never	called	their	identified	rebuttal	witness,	and	there	

is	no	 evidence	in	the	record	that	the	appellants	sought	to	have	their	witness	

testify	at	another	time,	an	opportunity	offered	by	the	court.	

      [¶18]		On	June	6	and	June	7,	2017,	the	District	Court	held	a	hearing	on	the	

competing	petitions	for	adoption.		During	the	hearing,	all	prospective	adoptive	

parents	 testified	 and	 described	 their	 plans	 and	 commitment	 to	 the	 care	 of	

Paisley.	 	 The	 Department’s	 witnesses	 testified	 that	 the	 decision	 that	 Paisley	

should	be	placed	with	the	appellants	and	that	it	would	not	consent	to	adoption	

by	the	foster	parents	was	made	in	late	May,	approximately	two	weeks	before	

the	date	set	for	the	contested	adoption	hearing.		In	its	decision,	the	court	noted	

that	the	supervisor	who	testified	about	this	issue	did	“not	know	who	actually	
                                                                                                          9	

made	the	decision	but	understood	that	it	was	made	because	of	DHHS’s	sibling	

policy.”5	

        [¶19]	 	 The	 appellees	 called	 their	 expert	 witness,	 a	 specialist	 in	 early	

childhood	attachment.		The	appellants	renewed	their	objection	to	this	witness,	

arguing	 again	 that	 her	 designation	 was	 untimely.	 	 The	 court	 overruled	 the	

objection	and	allowed	the	testimony.	

        [¶20]		Paisley’s	guardian	ad	litem	recommended	that	the	court	grant	the	

foster	parents’	petition	to	adopt	Paisley.		In	its	decision,	the	court	quoted	from	

the	 GAL’s	 most	 recent	 report,	 in	 which	 she	 stated	 that	 Paisley	 “regards	 her	

foster	parents	as	her	parents	.	.	.	.”	

        [¶21]		On	June	29,	2017,	the	District	Court	issued	a	single	order	that	was	

entered	 in	 all	 three	 cases:	 (1)	 finding	 that	 the	 Department	 unreasonably	

withheld	its	consent	to	the	foster	parents’	adoption	petition;	(2)	granting	their	

petition	 to	 adopt	 Paisley;	 and	 (3)	 denying	 the	 appellants’	 petition	 to	 adopt	

Paisley.		In	the	order,	the	court	found:	

              [The	Department’s]	consideration	of	Paisley’s	needs	and	best	
        interest	 was,	 at	 best,	 narrowly	 confined	 to	 the	 fact	 that	 the	
        [appellants]	 have	 adopted	 two	 of	 Paisley’s	 biological	 siblings.		
        There	 is	 no	 evidence	 that	 [the	 Department]	 gave	 weight	 to	 any	

    5		This	policy	states:	“Placement	of	siblings	together	should	be	made	a	priority	in	case	planning	

and	 implementation	 of	 the	 case	 plan.	 	 Valid	 reasons	 must	 be	 identified	 and	 documented	 for	 not	
placing	siblings	together.”	
    	
10	

      other	factor	relevant	to	Paisley’s	best	interest,	including	the	bond	
      that	 had	 formed	 between	 Paisley	 and	 the	 [foster	 parents].	 	 This	
      conclusion	 is	 reinforced	 by	 [the	 permanency	 supervisor’s]	
      admission	 that	 she	 did	 not	 even	 read	 the	 GAL	 report	 and	
      recommendation.	
               	
	     .	.	.	.	
	
            The	court	finds	that	the	harm	of	removing	Paisley	from	the	
      [foster	 parents’]	 home	 outweighs	 any	 inadequacies	 of	 that	
      placement,	specifically	the	fact	that	Paisley	will	not	be	living	with	
      biological	siblings.		Paisley	has	formed	a	strong	attachment	to	the	
      [foster	parents’]	family	.	.	.	.		For	Paisley,	[the	foster	parents]	are	her	
      parents	and	their	two	children	are	her	siblings.	
	
	     .	.	.	.	
              	
              While	 the	 court	 recognizes	 the	 importance	 and	 purpose	 of	
      [the	Department’s]	sibling	policy,	the	court	notes	that	some	of	the	
      important	reasons	for	that	policy	are	not	present	in	this	case.	.	.	.		
      Here,	the	policy	is	being	applied	to	unite	Paisley	with	some	of	her	
      biological	siblings	at	the	cost	of	separating	her	from	those	persons	
      with	whom	she	has	come	to	know	as	her	family.		Here,	Paisley	can	
      still	 have	 a	 meaningful	 sibling	 relationship	 with	 her	 biological	
      siblings	and	the	[appellants’]	entire	family	without	subjecting	her	
      to	the	trauma	of	separating	her	from	the	[foster	parents],	the	family	
      that	she	has	come	to	know	as	her	own.	
	
	     .	.	.	.	
	
             Paisley’s	 relationship	 with	 [the	 foster	 parents]	 is	 one	 of	
      parent	 and	 child.	 	 Paisley	 does	 not	 have	 the	 same	 depth	 of	 bond	
      with	the	[appellants].		The	court	finds	that	it	would	be	in	Paisley’s	
      best	interest	for	[the	foster	parents]	to	adopt	her.	
	
      [¶22]		The	appellants	timely	filed	a	notice	of	appeal.	
                                                                                          11	

                                  II.		LEGAL	ANALYSIS	

A.	    Standing	

       [¶23]		We	review	the	threshold	issue	of	a	party’s	standing	to	sue	de	novo.		

Lowry	v.	KTI	Specialty	Waste	Servs.,	Inc.,	2002	ME	58,	¶	4,	794	A.2d	80.		Standing	

requires	that	the	party	seeking	review	have	a	sufficient	personal	stake	in	the	

controversy	 and	 have	 suffered	 an	 injury	 that	 is	 likely	 to	 be	 redressed	 by	 the	

judicial	 relief	 sought.	 	 Halfway	 House,	 Inc.	 v.	 City	 of	 Portland,	 670	 A.2d	 1377,	

1380	(Me.	1996).	

       [¶24]		Here,	the	 appellants	were	granted	intervenor	status	in	the	child	

protective	 proceeding	 that	 gave	 the	 District	 Court	 jurisdiction	 over	 the	

subsequent	 adoption	 petitions.	 	 They	 participated	 in	 that	 child	 protection	

proceeding	and,	by	virtue	of	their	own	adoption	petition,	were	parties	to	the	

consolidated	 action	 in	 which	 the	 court	 considered	 the	 competing	 adoption	

petitions.		As	parties	in	the	underlying	proceeding	who	have	demonstrated	that	

they	suffered	a	“particularized	injury,”	the	appellants	have	standing	to	pursue	

this	appeal.		N.E.	Ins.	Co.	v.	Young,	2011	ME	89,	¶	11,	26	A.3d	794.	

B.	    The	 Department’s	 Unreasonableness	 in	 Withholding	 Consent	 to	 the	
	      Adoption	of	Paisley	by	the	Foster	Parents		
       	
       [¶25]	 	 The	 Department’s	 refusal	 to	 consent	 to	 an	 adoption	 can	 be	

overridden	 by	 the	 court	 if	 the	 court	 finds	 that	 the	 Department	 acted	
12	

unreasonably	 in	 withholding	 consent.	 	 18-A	 M.R.S.	 §9-302(a)(3);	 see	 also	

Adoption	of	Michaela	C.,	2004	ME	153,	¶	3,	863	A.2d	270.	

      [¶26]		Pursuant	to	18-A	M.R.S.	§	9-302(a)(3),	the	court	must	consider	the	

following	factors	in	determining	whether	the	Department	acted	unreasonably	

in	withholding	consent:	(1)	whether	the	Department	determined	the	needs	and	

interests	of	the	child;	(2)	whether	the	Department	determined	the	ability	of	the	

petitioner	and	other	prospective	families	to	meet	the	child’s	needs;	(3)	whether	

the	Department’s	decision	was	consistent	with	the	facts;	(4)	whether	the	harm	

of	 removing	 the	 child	 from	 the	 child’s	 current	 placement	 outweighs	 any	

inadequacies	of	that	placement;	and	(5)	all	other	factors	that	have	a	bearing	on	

a	 determination	 of	 the	 reasonableness	 of	 the	 Department’s	 decision	 in	

withholding	consent.		Id.		The	adoption	petitioner,	from	whom	the	Department	

has	withheld	consent,	bears	the	burden	of	proving,	“by	a	preponderance	of	the	

evidence,”	that	the	Department	acted	unreasonably.		See	id.	

	     [¶27]	 	 The	 appellants	 argue	 that	 the	 court	 erred	 by	 finding	 that	 the	

Department	 acted	 unreasonably	 when	 it	 withheld	 consent	 from	 the	 foster	

parents	 to	 adopt	 Paisley.	 	 We	 review	 findings	 of	 fact	 for	 clear	 error	 and	

discretionary	determinations	for	an	abuse	of	discretion.		See	In	re	Thomas	H.,	

2005	 ME	 123,	 ¶¶	 16-17,	 889	 A.2d	 297;	 In	 re	 Morris	 D.,	 2000	ME	122,	 ¶	 6,	
                                                                                    13	

754	A.2d	993.		 Further,	where,	 as	here,	 the	court	made	findings	on	all	 issues	

required	 to	 be	 addressed	 by	 the	 relevant	 statute	 and	 the	 appellants	 did	 not	

request	further	findings	of	fact,	we	will	infer	that	the	trial	court	found	all	the	

facts	 necessary	 to	 support	 its	 judgment,	 if	 those	 findings	 are	 supported	 by	

competent	evidence	in	the	record.		See	In	re	Guardianship	of	Ard,	2017	ME	12,	

¶	15,	154	A.3d	609.	

	     [¶28]	 	 The	 court’s	 finding	 that	 the	 Department	 acted	 unreasonably	 is	

supported	by	competent	evidence	in	the	record.		The	court	applied	18-A	M.R.S.	

§	9-302(a)(3),	addressed	each	statutory	factor	individually,	and	made	findings	

as	to	each	factor	that	support	the	court’s	ultimate	finding	that	the	Department	

acted	 unreasonably	 in	 withholding	 its	 consent	 to	 adoption	 by	 the	 foster	

parents.	

      [¶29]	 	 The	 court	 specifically	 found	 that	 (1)	 the	 Department’s	 decision	

that	Paisley	should	be	placed	with	the	appellants	was	primarily	based	on	the	

Department’s	policy	of	placing	siblings	together;	(2)	the	Department	failed	to	

consider	other	factors	relevant	to	Paisley’s	needs	and	best	interest,	including	

the	 bond	 between	 Paisley	 and	 her	 long-term	 foster	 family;	 and	 (3)	 the	

Department	 failed	 to	 give	 adequate	 consideration	 to	 the	 harm	 Paisley	 would	

experience	if	removed	from	the	care	of	the	foster	parents.		The	court	found	that	
14	

“the	 harm	 of	 removing	 Paisley	 from	 [her	 current	 home]	 outweighs	 any	

inadequacies	 of	 that	 placement,	 specifically	 the	 fact	 that	 Paisley	 will	 not	 be	

living	 with	 biological	 siblings.”	 	 Additionally,	 the	 court	 found	 that	 Paisley,	 if	

adopted	by	her	foster	parents,	will	be	able	to	have	a	meaningful	relationship	

with	 her	 biological	 siblings	 without	 being	 subjected	 to	 the	 trauma	 of	 being	

removed	from	the	appellees,	the	only	caregivers	she	has	known.6	

          [¶30]	 	 The	 court’s	 finding	 that	 the	 Department	 acted	 unreasonably	 in	

withholding	 consent	 of	 the	 adoption	 of	 Paisley	 by	 the	 foster	 parents	 is	

supported	by	competent	evidence	in	the	record.		When	the	Department’s	own	

representative	at	trial	was	unable	to	identify	the	Department’s	decision-maker	

or	 the	 details	 of	 the	 analysis	 that	 went	 into	 the	 decision,	 the	 Department’s	

position	became	less	than	compelling.	

          [¶31]		The	court	demonstrated	that	it	understood	the	distinct	roles	it	and	

the	Department	played	in	this	proceeding.7		The	Department,	as	the	child’s	legal	




      6	 	 There	 is	 ample	 record	 evidence	 indicating	 the	 commitment	 of	 the	 foster	 parents	 and	 the	

appellants	 to	 maintaining	 strong	 sibling	 relationships	 between	 Paisley	 and	 her	 five	 biological	
siblings,	regardless	of	Paisley’s	adoptive	placement.	
    	
    7	 	 Section	 9-302	directs	that	 the	 burden	 of	 proof	 to	 be	 applied	 in	 determining	whether	 “[t]he	

person	 or	 agency	 having	 legal	 custody”	 has	 unreasonably	 denied	 consent	 for	 adoption	 is	 a	
preponderance	of	evidence.		18-A	M.R.S.	§	9-302(a)(3)	(2017).		This	low	standard	can	be	applied	only	
because	 the	 Department	 does	 not	 have	 any	 “fundamental”	 parental	 rights	and	 responsibilities;	 in	
acting	as	the	child’s	caretaker,	its	responsibility	is	to	assist	the	court	in	making	a	wise	decision	about	
the	child’s	future.	
                                                                                         15	

guardian,	has	an	obligation	to	find	an	appropriate	adoptive	home	for	the	child.		

Having	done	so,	it	is	then	in	a	position	solely	to	offer	its	expertise	to	assist	the	

court	in	determining	whether	the	actual	adoption	of	that	child	into	that	home	

is	 in	 the	 child’s	 best	 interest.	 	 See	 Stout	 v.	 Tippecanoe	 County	 Dep't	 of	 Pub.	

Welfare,	395	N.E.2d	444,	450-451	(Ind.	 Ct.	App.	 1979).		In	the	end,	however,	

only	the	court	may	grant	an	adoption	based	on	its	independent	determination	

of	what	is	in	a	child’s	best	interest.	

C.	    Expert	Witness	Testimony		

       [¶32]	 	 The	 appellants	 argue	 that	 the	 trial	 court	 erred	 and	 abused	 its	

discretion	 by	 allowing	 the	 foster	 parents’	 untimely	 designation	 of	 an	 expert	

witness.	 	 Specifically,	 they	 argue	 that	 they	 were	 unfairly	 prejudiced	 as	 they	

were	unable	to	prepare	for	the	witness	given	the	late	designation.	

       [¶33]		“We	review	a	court’s	foundational	finding	that	expert	testimony	is	

sufficiently	 reliable	 for	 clear	 error	 and	 review	 for	 an	 abuse	 of	 discretion	 a	

court’s	decision	to	admit	an	expert’s	opinion	after	finding	it	reliable.”		State	v.	

Maine,	2017	ME	25,	¶	16,	155	A.3d	871.		Further,	we	have	held	that	a	court	does	

not	abuse	its	discretion	by	permitting	the	testimony	of	a	late	designated	expert	

witness	 when	 the	 opposing	 party	 is	 not	 “unfairly	 surprised.”	 	 See	 Estate	of	
16	

O’Brien-Hamel,	 2014	 ME	 75,	 ¶¶	 23-24,	 93	 A.3d	 689;	 Bray	 v.	 Grindle,	

2002	ME	130,	¶	9,	802	A.2d	1004.	

      [¶34]		Here,	the	court	did	not	err	or	abuse	its	discretion	by	allowing	the	

foster	 parents’	 expert	 witness,	 identified	 nearly	 two	 weeks	 prior	 to	 trial,	 to	

testify.		Nothing	in	the	testimony	of	the	specialist	in	early	childhood	attachment	

was	an	unfair	surprise	to	the	appellants.		Upon	a	motion	by	the	appellants,	the	

court	 held	 a	 telephonic	 hearing	 on	 the	 late	 expert	 witness	 designation—a	

designation	made	nine	days	after	the	deadline.	

      [¶35]	 	 The	 court	 issued	 an	 order	 the	 day	 of	 the	 telephonic	 hearing	

allowing	 the	 expert	 to	 testify	 and	 keeping	 the	 record	 open	 to	 allow	 the	

appellants	to	present	their	own	expert	witness	at	a	later	date,	which	they	never	

sought	to	do.		Although	the	foster	parents	made	their	expert	witness	available	

to	 the	 appellants	 for	 questioning	 on	 an	 informal	 basis	 prior	 to	 hearing,	 the	

appellants	did	not	take	advantage	of	that	opportunity.		The	court	did	not	err	or	

abuse	 its	 discretion	 by	 allowing	 the	 testimony	 of	 the	 foster	 parents’	 expert	

witness.	

      The	entry	is:	

                    Judgment	affirmed.		

                              	      	      	      	      		
                                                                                       17	

SAUFLEY,	C.J.,	concurring.	

	     [¶36]		I	must	reluctantly	concur	in	the	court’s	opinion,	particularly	given	

the	 child’s	 attachment	 to	 her	 foster	 family	 in	 Maine.	 	 I	 write	 separately,	

however,	 because	 the	 State’s	 delays	 in	 establishing	 a	 solid	 contact	 schedule	

with	 the	 Massachusetts	 family	 have	 led	 to	 the	 sad	 result	 that	 Paisley	 will	 be	

deprived	 of	 the	 opportunity	 to	 grow	 up	 in	 an	 available	 family	 with	 her	

biological	siblings.	

	     [¶37]		I	do	not	underestimate	the	complexity	of	scheduling	visits	between	

an	infant	and	a	family	that	is	not	local,	nor	do	I	question	the	reasons	for	placing	

a	child	in	a	location	close	to	her	parent	for	reunification	purposes.		And	Paisley	

is	certainly	fortunate	to	have	been	placed	in	a	foster	home	where	she	is	loved	

and	has	been	well	cared	for.	

	     [¶38]	 	 Nonetheless,	 had	 the	 Department	 acted	 more	 expeditiously	 and	

more	assertively	to	establish	a	relationship	between	Paisley	and	the	family	of	

her	 sisters,	 she	 could	 have	 been	 adopted	 into	 the	 same	 family	 and	 had	 the	

benefit	of	a	childhood	and	adolescence	spent	with	her	own	sisters.		The	value	

of	that	family	connection	appears	to	have	been	lost	in	the	Department’s	slow	

response	to	the	Massachusetts	family’s	availability,	and	those	actions	have	cost	

this	child	dearly.	
18	

	         [¶39]		The	Legislature	has	explicitly	established	kinship	placement	as	a	

high	priority	for	children	who	cannot	be	raised	by	their	parents:	“Recognizing	

that	the	health	and	safety	of	children	must	be	of	paramount	concern	and	that	

the	right	to	family	integrity	is	limited	by	the	right	of	children	to	be	protected	

from	abuse	and	neglect	and	recognizing	also	that	uncertainty	and	instability	are	

possible	in	 extended	foster	home	or	institutional	living,	it	is	the	intent	of	the	

Legislature	that	this	chapter	.	.	.[p]lace	children	who	are	taken	from	the	custody	

of	their	parents	with	an	adult	relative	when	possible.”		22	M.R.S.	§	4003(3-A)	

(2017).	 	 By	 urging	 the	 consideration	 of	 kinship	 care,	 the	 Legislature	 has	

certainly	 signaled	 that	 a	 home	 where	 a	 child’s	 siblings	 reside	 should	 be	

considered	for	placement	when	possible.8			

	         [¶40]		Especially	in	light	of	the	tragedies	caused	by	the	opioid	addiction	

epidemic,	it	is	important	to	honor	the	Legislature’s	purpose	to	provide	for	the	

early	 placement	 of	 children	 whose	 parents	 cannot	 care	 for	 them	 with	 other	

family	members	so	that	the	children	can	grow	up	with	a	strong	sense	of	family	

identity	and	are	not	deprived	of	the	lifetime	connection	that	a	childhood	and	

adolescence	shared	with	siblings	or	other	relatives	can	provide.	

	


      8		A	more	explicit	consideration	of	sibling	placement	by	the	Legislature	would	be	helpful.		See	also	

22	M.R.S.	§§	4036-B(3-A),	4038-C(3)	(2017).	
                                                                                     19	

	        	        	         	   	   	

Kevin	 P.	 Sullivan,	 Esq.	 (orally),	 Sullivan	 Law,	 P.C.,	 Augusta,	 for	 appellants,	
adoptive	parents	of	two	of	Paisley’s	biological	siblings	
	
Sarah	 Irving	 Gilbert,	 Esq.	 (orally),	 Elliott,	 MacLean,	 Gilbert	 &	 Coursey,	 LLP,	
Camden,	for	appellee	foster	parents	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	
Human	Services	
	
	
Rockland	District	Court	docket	numbers	FM-2017-31,	72	
FOR	CLERK	REFERENCE	ONLY	
	
