MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	1	
Docket:	   Cum-18-178	
Argued:	   November	7,	2018	
Decided:	  January	3,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                          IN	RE	CHILDREN	OF	SHIRLEY	T.	
	
	
GORMAN,	J.	

      [¶1]		Shirley	T.	and	David	W.	appeal	from	an	order	of	the	District	Court	

(Portland,	 Powers,	 J.)	 denying	 their	 and	 the	 Oglala	 Sioux	 Tribe’s	 motions	 to	

transfer	jurisdiction	of	this	child	protection	matter	to	the	Oglala	Sioux	 Tribal	

Court	 pursuant	 to	 the	 Indian	 Child	 Welfare	 Act	 of	 1978	 (ICWA),	 25	 U.S.C.S.	

§§	1901-1963	 (LEXIS	 through	 Pub.	 L.	 No.	 115-277).	 	 Shirley	 T.	 and	 David	 W.	

challenge	the	court’s	determination	that	there	is	good	cause	within	the	meaning	

of	ICWA	not	to	transfer	the	matter	to	the	Tribal	Court.		We	affirm	the	court’s	

denial	of	the	motion	to	transfer	jurisdiction.	

                                   I.		BACKGROUND	

      [¶2]		There	are	two	children	at	issue	in	this	consolidated	child	protection	

matter—the	son	(the	son)	of	Shirley	T.	(the	mother)	and	David	W.	(the	father),	

and	 Shirley	 T.’s	 niece	 (the	 niece),	 for	 whom	 Shirley	 T.	 has	 served	 as	 legal	
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guardian	since	2011.1		On	July	21,	2016,	the	Department	of	Health	and	Human	

Services	 initiated	 child	 protection	 proceedings	 as	 to	 both	 children	 in	 the	

District	Court	(Bridgton)	with	allegations	involving	substance	abuse,	domestic	

violence,	insufficient	supervision,	mental	health	issues,	the	unexplained	death	

of	another	of	the	mother’s	children,	verbal	and	physical	aggression	toward	the	

children,	 the	 father’s	 prior	 conviction	 for	 sexual	 abuse	 of	 a	 minor,	 and	 the	

father’s	lack	of	involvement	in	the	son’s	life.2		The	court	(MG	Kennedy,	J.)	granted	

preliminary	 protection	 orders	 that	 day	 placing	 the	 children	 in	 Department	

custody.			

          [¶3]		The	mother	waived	her	right	to	a	summary	preliminary	hearing	as	

to	both	children	and	later	agreed	to	the	entry	of	a	jeopardy	order	by	the	court	

(Powers,	J.)	based	on	her	substance	abuse	and	mental	health	issues.		The	father	

also	agreed	to	the	entry	of	a	jeopardy	order	as	to	the	son	on	grounds	that	the	

father	was	convicted	of	sexual	abuse	of	a	minor	in	2006,	resides	on	the	Tribe’s	

reservation	in	South	Dakota,	and	has	not	had	contact	with	the	son	for	several	




     1		The	Department	has	twice	used	a	title	22	action	to	protect	this	child	from	her	legal	guardian.		If	

the	 mother’s	 guardianship	 of	 the	 niece	 is	 not	 in	 the	 niece’s	 best	 interest,	 the	 Department	 should	
petition	to	terminate	the	guardianship	pursuant	to	18-A	M.R.S.	§	5-212	(2017).		
   	
   2		The	two	matters	were	transferred	to	the	District	Court	(Portland).		

   	
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years.3	 	 In	 the	 jeopardy	 proceedings,	 the	 court	 also	 determined	 that	 ICWA	

applies	 to	 both	 matters	 because	 the	 children	 are,	 or	 are	 eligible	 to	 become,	

registered	members	of	the	Oglala	Sioux	Tribe	of	South	Dakota.		See	25	U.S.C.S.	

§	1903(4).			

	       [¶4]		In	December	of	2017,	the	mother,	the	father,	and	the	Tribe	(as	an	

interested	party)	requested	that	the	matter	be	transferred	to	the	jurisdiction	of	

the	Tribal	Court	in	South	Dakota	pursuant	to	ICWA;	the	Tribe	also	filed	an	order	

from	the	Tribal	Court	accepting	jurisdiction	as	to	both	children.			

        [¶5]	 	 The	 court	 conducted	 a	 testimonial	 hearing	 on	 the	 motions	 to	

transfer	jurisdiction,	at	which	both	children,	the	niece’s	counselor,	the	niece’s	

foster	 mother,	 the	 son’s	 foster	 father	 (who	 is	 the	 father	 of	 the	 son’s	

half-siblings),	 the	 Department	 supervisor,	 the	 guardian	 ad	 litem	 (GAL),	 a	

qualified	 ICWA	 expert,	 and	 the	 Tribe’s	 ICWA	 technician	 testified.	 	 The	

Department,	the	GAL,	both	children,	and	the	ICWA	expert	opposed	the	transfer.		

By	 order	 dated	 April	 13,	 2018,	 the	 court	 made	 the	 following	 findings	 of	 fact,	

which	are	supported	by	competent	evidence	presented	at	the	motion	hearing.			

        [¶6]		The	son	was	thirteen	years	old	at	the	time	of	the	hearing	and	lives	

with	the	father	of	his	three	half-siblings,	who	are	also	Indian	children.		The	son	


    3		The	court	entered	a	jeopardy	order	as	to	the	niece’s	mother	after	an	evidentiary	hearing.		The	

niece’s	mother	is	not	participating	in	this	appeal,	and	the	identity	of	the	niece’s	father	is	unknown.			
4	

is	happy	in	this	household	and	wishes	to	stay.		The	son’s	biological	father	has	

never	been	active	in	the	son’s	life.			

      [¶7]		The	niece,	who	was	twelve	years	old	at	the	time	of	the	hearing,	was	

born	in	South	Dakota	but	moved	to	Maine	at	a	young	age.		The	niece	lived	with	

the	 mother	 since	 at	 least	 2011,	 but	 was	 placed	 in	 foster	 care	 from	 2015	 to	

March	of	2016	and	again	in	July	of	2016.		She	and	the	son	go	to	the	same	school	

and	interact	there;	the	niece	also	maintains	a	close	relationship	with	the	rest	of	

her	cousins—the	son’s	half-siblings—who	live	in	the	area	with	their	father.			

      [¶8]		The	niece	has	been	in	counseling	since	2015,	with	a	short	break	in	

2016.	 	 She	 has	 disclosed	 to	 her	 counselor	 a	 history	 of	 various	 forms	 of	

significant	abuse,	some	of	which	occurred	when	she	was	young	and	living	on	

the	 reservation	 in	 South	 Dakota.	 	 The	 niece	 has	 developed	 a	 trusting	

relationship	 with	 her	 counselor,	 with	 whom	 she	 should	 continue	 working	 to	

process	her	grief	from	her	traumatic	history	and	to	decrease	her	anxiety.			

      [¶9]		Both	children	are	doing	well	in	their	current	placements,	where	they	

are	growing	up	as	part	of	their	Indian	family	in	Maine,	that	is,	with	strong	ties	

to	the	son’s	half-siblings/the	niece’s	cousins.		They	have	also	been	exposed	to	

Indian	culture	while	living	with	the	mother.			
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      [¶10]		The	children	were	the	subject	of	prior	child	protection	proceedings	

initiated	in	2014.		During	those	proceedings,		the	Tribe	also	moved	to	transfer	

jurisdiction	to	the	Tribal	Court,	but	the	mother	opposed	the	transfer,	and	the	

court	 (Bridgton,	 Darvin,	 J.)	 also	 found	 good	 cause	 to	 deny	 the	 requested	

transfer.		The	GAL	opined	that	the	mother’s	support	of	the	motion	to	transfer	in	

the	 present	 matter	 is	 premised	 on	 her	 wish	 to	 “circumvent	 the	 safety	

requirements	 of	 DHHS	 in	 the	 reunification	 process	 by	 enlisting	 intervention	

from	the	Oglala	Sioux	Tribal	Court.”		The	Tribe	has	no	presence	in	Maine.			

      [¶11]		The	Department	has	been	providing	services	to	the	children	and	

their	 family	 for	 an	 extended	 period	 of	 time.	 	 The	 children	 have	 extensive	

connections	 to	 Maine,	 including	 education	 services.	 	 Thus,	 the	 court	

determined,	“Most	of	the	relevant	people	with	knowledge	of	the	children’s	lives,	

including	 teachers	 and	 counselors,	 are	 in	 the	 local	 Maine	 area.”	 	 The	 niece’s	

mother	 and	 the	 son’s	 father	 live	 elsewhere,	 and	 they	 have	 had	 almost	 no	

interaction	with	the	children.		The	court	concluded,	“The	State	of	Maine	courts	

and	 Maine	 [Department]	 with	 its	 consistent	 history	 of	 involvement	 with	 this	

family	are	in	the	best	position	to	determine	the	issues	presented	for	review	in	

this	case	now	and	in	the	near	future.		All	knowledgeable	witnesses	needed	to	

adjudicate	 this	 case	 further	 are	 in	 southern	 Maine.	 	 It	 would	 be	 a	 relative	
6	

hardship	to	the	parties	and	interven[ors]	were	these	cases	moved	almost	2,000	

miles	away	despite	any	possible	audio/video	accommodations.”			

         [¶12]		On	this	basis,	the	court	found,	by	clear	and	convincing	evidence,	

that	 there	 was	 good	 cause	 to	 deny	 the	 transfer	 of	 jurisdiction	 to	 the	 Tribal	

Court.		The	mother	and	father	each	appealed	as	to	the	son,	and	the	mother	also	

appealed	as	to	her	niece.4			

                                           II.		DISCUSSION	

         [¶13]	 	 ICWA	 was	 enacted	 in	 1978	 to	 address	 concerns,	 among	 others,	

“that	 an	 alarmingly	 high	 percentage	 of	 Indian	 families	 are	 broken	 up	 by	 the	

removal,	 often	 unwarranted,	 of	 their	 children	 from	 them	 by	 nontribal	 public	

and	private	agencies	and	that	an	alarmingly	high	percentage	of	such	children	

are	placed	in	non-Indian	foster	and	adoptive	homes	and	institutions,”	and	“that	

the	 States	 .	 .	.	 have	 often	 failed	 to	 recognize	 the	 essential	 tribal	 relations	 of	

Indian	 people	 and	 the	 cultural	 and	 social	 standards	 prevailing	 in	 Indian	

communities	 and	 families.”	 	 25	 U.S.C.S.	 §	 1901(4)-(5);	 see	 In	 re	 Trever	 I.,	

2009	ME	 59,	 ¶	 15,	 973	A.2d	 752;	 In	 re	 Denice	 F.,	 658	 A.2d	 1070,	 1072	

(Me.	1995).	 	 Based	 upon	 its	 determination	 that	 “there	 is	 no	 resource	 that	 is	

more	vital	to	the	continued	existence	and	integrity	of	Indian	tribes	than	their	



     4		The	two	matters	were	consolidated	on	appeal.		The	Tribe	is	not	participating	in	the	appeal.			
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children,"	 25	 U.S.C.S.	 §	1901(3),	 Congress	 established	 “minimum	 Federal	

standards	 for	 the	 removal	 of	 Indian	 children	 from	 their	 families	 and	 the	

placement	of	such	children	in	foster	or	adoptive	homes,”	25	U.S.C.S.	§	1902.			

        [¶14]		Among	ICWA’s	requirements	are	jurisdictional	provisions	for	child	

custody	 proceedings	 regarding	 Indian	 children.	 	 25	 U.S.C.S.	 §	 1911;	 see	

25	U.S.C.S.	 §	1903(1)	 (defining	 “child	 custody	 proceeding”);	 25	 U.S.C.S.	

§	1903(4)	(defining	“Indian	child”).		Pursuant	to	25	U.S.C.S.	§	1911(b),	when	an	

Indian	child	subject	to	child	custody	proceedings	is	“not	domiciled	or	residing	

within	 the	 reservation	 of	 the	 Indian	 child’s	 tribe,”	 the	 State	 court	 and	 tribal	

court	have	concurrent	jurisdiction5	over	that	proceeding:	

        In	any	State	court	proceeding	for	the	foster	care	placement	of,	or	
        termination	of	parental	rights	to,	an	Indian	child	not	domiciled	or	
        residing	within	the	reservation	of	the	Indian	child’s	tribe,	the	court,	
        in	 the	 absence	 of	 good	 cause	 to	 the	 contrary,	 shall	 transfer	 such	
        proceeding	 to	 the	 jurisdiction	 of	 the	 tribe,	 absent	 objection	 by	
        either	 parent,	 upon	 the	 petition	 of	 either	 parent	 or	 the	 Indian	
        custodian	 or	 the	 Indian	 child’s	 tribe:	 Provided,	 that	 such	 transfer	
        shall	be	subject	to	declination	by	the	tribal	court	of	such	tribe.	
	
The	 tribal	 court’s	 jurisdiction	 is	 “presumptive[]”	 unless	 a	 parent	 objects,	 the	

tribe	 declines	 jurisdiction,	 or	 good	 cause	 to	 maintain	 the	 matter	 in	 the	 state	




   5		A	tribal	court	has	exclusive	jurisdiction	over	a	child	custody	proceeding	regarding	an	Indian	

child	 “who	 resides	 or	 is	 domiciled	 within	 the	 reservation”	 or	 who	 is	 a	 ward	 of	 a	 tribal	 court.		
25	U.S.C.S.	§	1911(a)	(LEXIS	through	Pub.	L.	No.	115-277).	
8	

court	is	established.		Miss.	Band	of	Choctaw	Indians	v.	Holyfield,	490	U.S.	30,	36	

(1989).		

          [¶15]		Here,	there	is	no	dispute	that	these	are	“child	custody	proceedings”	

to	which	ICWA	applies,	25	U.S.C.S.	§	1903(1);	the	children	are	“Indian	children”	

within	the	meaning	of	ICWA,	25	U.S.C.S.	§	1903(4);	the	children	do	not	reside	

on	 the	 reservation,	 see	 25	U.S.C.S.	 §	 1911(a);	 the	 parents	 do	 not	 oppose	 the	

Tribe’s	motion	to	transfer,	see	25	U.S.C.S.	§	1911(b);	and	the	Tribe	has	agreed	

to	accept	jurisdiction,	see	25	U.S.C.S.	§	1911(b).		The	issue	in	this	appeal	is	the	

application	of	the	good	cause	exception	to	deny	the	transfer	of	jurisdiction.6			

          [¶16]		We	interpret	de	novo	section	1911—and,	in	particular,	the	good	

cause	 requirement—by	 first	 evaluating	 its	 plain	 language.	 	 See	 Curtis	 v.	

Medeiros,	2016	ME	180,	¶	14,	152	A.3d	605.		Section	1911	does	not	define	“good	

cause,”	 does	 not	 set	 out	 the	 procedure	 for	 determining	 good	 cause,	 does	 not	

establish	 the	 burden	 or	 standard	 of	 proof	 necessary	 to	 find	 good	 cause,	 and	




     6	 	 Our	 consideration	 of	this	appeal	 does	not	 conflict	 with	 our	 prior	decisions	 holding	that	 only	

jeopardy	 orders,	 termination	 of	 parental	 rights	 judgments,	 and	 medical	 treatment	 orders	 may	 be	
appealed	pursuant	to	22	M.R.S.	§	4006	(2017).		See	In	re	L.R.,	2014	ME	95,	¶¶	5-9,	97	A.3d	602;	In	re	
B.C.,	2012	ME	140,	¶¶	12-14,	58	A.3d	1118;	In	re	Kristy	Y.,	2000	ME	98,	¶¶	5,	12,	752	A.2d	166.		The	
decision	 at	 issue	 here	 is	 not	 a	 child	 protection	 order	 issued	 pursuant	 to	 title	 22;	 it	 is	 instead	 a	
jurisdictional	order	entered	pursuant	to	ICWA.		See	In	re	Jacob	C.,	2009	ME	10,	¶	12,	965	A.2d	47	
(holding	that	a	parental	rights	and	responsibilities	order	entered	pursuant	to	title	19-A	in	the	context	
of	a	title	22	child	protection	proceeding	may	be	appealed).		Although	the	appeal	is	interlocutory,	we	
consider	it	pursuant	to	the	collateral	order	exception	to	the	final	judgment	rule.		See	Bond	v.	Bond,	
2011	ME	105,	¶	11,	30	A.3d	816;	infra	n.12.			
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does	not	suggest	how	a	good	cause	determination	is	reviewed	on	appeal.		We	

therefore	conclude	that	the	statute	is	ambiguous,	and	we	look	to	other	indicia	

of	legislative	intent	to	determine	its	meaning.		See	Manirakiza	v.	Dep’t	of	Health	

&	Human	Servs.,	2018	ME	10,	¶	8,	177	A.3d	1264.	

      [¶17]		The	primary	sources	of	aid	in	the	interpretation	and	application	of	

ICWA	 are	 the	 interpretive	 guidelines	 issued	 by	 the	 federal	 Bureau	 of	 Indian	

Affairs	(BIA).		Although	not	binding,	see	Indian	Child	Welfare	Act	Proceedings,	

81	Fed.	Reg.	38,778,	38,782	(June	14,	2016)	(codified,	in	part,	at	25	C.F.R.	pt.	23	

(2018))	[hereinafter	Supplement	to	2016	Rule],	other	states	have	afforded	the	

guidelines	“great	weight”	in	the	interpretation	of	ICWA,	In	re	Armell,	550	N.E.2d	

1060,	1065	(Ill.	App.	Ct.	1990);	accord	In	re	Larissa	G.,	51	Cal.	Rptr.	2d	16,	19	

(Cal.	Ct.	App.	1996);	People	ex	rel.	T.I.,	707	N.W.2d	826,	834	(S.D.	2005);	see	also	

Batterton	 v.	 Francis,	 432	 U.S.	 416,	 424	 (1977)	 (“Ordinarily,	 administrative	

interpretations	 of	 statutory	 terms	 are	 given	 important	 but	 not	 controlling	

significance.”).	

      [¶18]		The	current	version	of	the	BIA	guidelines	was	issued	in	2016.		U.S.	

Dep’t	of	the	Interior,	Bureau	of	Indian	Affairs,	Guidelines	for	Implementing	the	

Indian	 Child	 Welfare	 Act	 (Dec.	 2016),	 https://www.bia.gov/sites/bia.gov/	

files/assets/bia/ois/pdf/idc2-056831.pdf	[hereinafter	2016	Guidelines].		The	
10	

2016	Guidelines	provide	no	examples	of	what	constitutes	good	cause.		See	id.	

§	F(5)	 at	 49-51.	 	 Instead,	 they	 set	 out	 a	 list	 of	 prohibited	 grounds	 for	 finding	

good	cause,	including,	among	others,	“whether	the	 Tribal	court	could	change	

the	child’s	placement.”7		Id.	§	F(5)	at	50;	see	Notice,	Guidelines	for	State	Courts	

and	Agencies	in	Indian	Child	Custody	Proceedings,	80	Fed.	Reg.	10,146,	10,156	

(Feb.	 25,	 2015)	 [hereinafter	 2015	 Guidelines];	 see	 also	 25	 C.F.R.	 §	23.118	

(2018).		The	mother	and	father	argue	that	the	court	erred	as	a	matter	of	law	by	

basing	its	finding	of	good	cause	on	precisely	this	ground,	that	is,	the	likelihood	

or	effect	of	the	Tribal	Court	moving	the	children	to	South	Dakota	if	the	transfer	

were	granted.8			



   7		In	2016,	the	BIA	promulgated	a	binding	rule	for	interpreting	ICWA	in	25	C.F.R.	§	23.118	(2018).		

See	Indian	Child	Welfare	Act	Proceedings,	81	Fed.	Reg.	38,778,	38,784	(June	14,	2016);	U.S.	Dep’t	of	
the	Interior,	Bureau	of	Indian	Affairs,	Guidelines	for	Implementing	the	Indian	Child	Welfare	Act	at	4	
(Dec.	 2016),	 https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf.	 	 We	
need	not	evaluate	whether	the	binding	rule	applies	to	this	matter,	however,	given	that	it	contains	the	
exact	 same	 list	 of	 prohibited	 bases	 on	 which	 to	 find	 good	 cause	 as	 found	 in	the	 2016	 Guidelines.		
Compare	25	C.F.R.	§	23.118,	with	2016	Guidelines	§	F(5)	at	49-51.	
   	
   8	 	 Courts	 in	 some	 other	 jurisdictions	 have	 imported	 a	 best	 interest	 analysis	 into	 a	 good	 cause	

determination.		E.g.,	In	re	Adoption	of	T.R.M.,	525	N.E.2d	298,	308	(Ind.	1988);	In	re	M.E.M.,	635	P.2d	
1313,	1317	(Mont.	1981);	In	re	Adoption	of	S.W.,	41	P.3d	1003,	1013	(Okla.	Civ.	App.	2001);	In	re	
Interest	of	J.L.,	654	N.W.2d	786,	791-93	(S.D.	2002).		Contra	2016	Guidelines	§	M(1)	at	89;	Supplement	
to	2016	Rule,	81	Fed.	Reg.	at	38,826-27;	see	Notice,	Guidelines	for	State	Courts	and	Agencies	in	Indian	
Child	 Custody	 Proceedings,	 80	 Fed.	 Reg.	 10,146,	 10,149	 (Feb.	 25,	 2015);	 In	 re	 Armell,	 550	N.E.2d	
1060,	1065	(Ill.	App.	Ct.	1990).		Because	the	Department	does	not	suggest	that	a	best	interest	analysis,	
or	some	modified	version	of	it,	see	Thompson	v.	Fairfax	Cty.	Dep’t	of	Family	Servs.,	747	S.E.2d	838,	
850-51	(Va.	Ct.	App.	2013),	is	an	appropriate	basis	for	finding	good	cause,	and	because	we	conclude	
that	the	court	did	not	premise	its	denial	of	the	motion	to	transfer	on	a	best	interest	determination,	
we	do	not	consider	whether	and	to	what	extent	the	child’s	best	interest	may	or	should	be	considered	
in	determining	good	cause	within	the	meaning	of	ICWA.	
   	
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        [¶19]		Although	the	court	issued	some	findings	that	superficially	appear	

to	 regard	 the	 children’s	 placement—their	 desire	 to	 remain	 in	 Maine,	 their	

substantial	 contacts	 to	 Maine,	 and	 the	 preservation	 of	 the	 children’s	 familial	

relationships	in	Maine—a	more	fulsome	review	of	the	record	establishes	that	

the	court’s	focus	was	instead	the	difficulty	in	the	presentation	of	evidence	that	

would	 occur	 if	 jurisdiction	 were	 transferred.9	 	 In	 its	 findings,	 the	 court	


   9		ICWA	is	silent	as	to	the	burden	and	standard	of	proof	applicable	to	transfers.		Here,	the	District	

Court	imposed	on	the	Department,	as	the	party	opposing	the	transfer,	the	burden	of	establishing	good	
cause	by	clear	and	convincing	evidence.		The	imposition	of	this	burden	is	supported	by	both	the	BIA	
Guidelines	and	decisions	of	other	jurisdictions.		See	2016	Guidelines	§	F(5)	at	49-50;	Supplement	to	
2016	 Rule,	 81	 Fed.	 Reg.	 at	 38,827;	 2015	 Guidelines,	 80	 Fed.	 Reg.	 at	 	 10,156;	 Guidelines	 for	 State	
Courts;	Indian	Child	Custody	Proceedings,	44	Fed.	Reg.	67,584,	67,591	(Nov.	26,	1979)	[hereinafter	
1979	Guidelines];	People	ex	rel.	J.L.P.,	870	P.2d	1252,	1257	(Colo.	App.	1994);		In	re	Adoption	of	T.R.M.,	
525	N.E.2d	at	307;	In	re	Interest	of	A.P.,	961	P.2d	706,	713	(Kan.	Ct.	App.	1998);	In	re	M.E.M.,	635	P.2d	
at	1317;	In	re	Adoption	of	S.W.,	41	P.3d	at	1013;	People	ex	rel.	T.I.,	707	N.W.2d	826,	834	(S.D.	2005);	
Thompson,	747	S.E.2d	at	848.	
   		
       No	party	has	challenged	the	court’s	use	of	that	standard,	and	we	do	not	address	it	here,	except	
to	 note	 that	 such	 a	 standard	 suggests	 that	 a	 court’s	 decision	 as	 to	 good	 cause	 is	 a	 factual	
determination	that	would	be	reviewed	for	clear	error.		See	Guardianship	of	Grenier,	2018	ME	66,	¶	8,	
185	A.3d	728	(holding	that	factual	findings,	“reached	by	clear	and	convincing	evidence,	are	reviewed	
for	clear	error”	(quotation	marks	omitted));	see	also	People	ex	rel.	T.E.R.,	305	P.3d	414,	416	(Colo.	
App.	 2013)	 (reviewing	 a	 good	 cause	 determination	 for	 substantial	 supporting	 evidence);	 In	 re	
Interest	of	A.P.,	961	P.2d	at	713	(reviewing	a	good	cause	determination	for	“substantial	competent	
evidence	to	support	the	trial	court’s	decision	that	good	cause	existed	not	to	transfer	the	case	to	the	
tribal	court”);	People	ex	rel.	J.J.,	454	N.W.2d	317,	330	(S.D.	1990)	(evaluating	the	trial	court’s	finding	
of	good	cause	for	clear	error).		The	father	acknowledged	this	in	his	brief	to	us.			
   			
       Other	 courts	 have	 employed	 the	 abuse	 of	 discretion	 standard	 in	their	 review	 of	 good	 cause	
determinations.		See,	e.g.,	People	ex	rel.	J.L.P.,	870	P.2d	at	1258;	In	re	S.B.C.,	340	P.3d	534,	539	(Mont.	
2014);	In	re	Interest	of	D.M.,	685	N.W.2d	768,	771	(S.D.	2004);	Thompson,	747	S.E.2d	at	844	(stating	
that	 the	 abuse	 of	 discretion	 standard	 “requires	 a	 reviewing	 court	 to	 show	 enough	 deference	 to	 a	
primary	decisionmaker’s	 judgment	 that	the	 court	 does	 not	 reverse	 merely	 because	 it	 would	 have	
come	to	a	different	result	in	the	first	instance”	(quotation		marks	omitted)).		Contra	People	ex	rel.	T.I.,	
707	N.W.2d	at	834	(declining	to	apply	the	abuse	of	discretion	standard	of	review	because,	“[i]f	the	
presumption	is	in	favor	of	tribal	jurisdiction,	then	mere	discretion	to	override	an	ICWA	transfer	is	
inconsistent	with	congressional	intent”).	
	
12	

expressly	 considered	 the	 availability	 of	 the	 witnesses—including	 the	 niece’s	

counselor,	 both	 children’s	 foster	 families,	 the	 Department	 caseworkers,	 the	

children’s	 teachers,	 and	 the	 mother	 herself—and	 concluded	 that	 “[a]ll	

knowledgeable	witnesses	needed	to	adjudicate	this	case	further	are	in	southern	

Maine”	and	that	a	transfer	of	jurisdiction	to	the	Tribal	Court	would	therefore	

cause	a	“relative	hardship”	to	the	parties	and	the	Tribe.		The	court	also	noted	

that	the	son’s	father,	who	lives	in	South	Dakota,	and	the	niece’s	mother,	who	

lives	in	Texas,	have	played	“virtually	no	parental	role”	in	the	children’s	lives—

findings	 that	 are	 relevant	 to	 the	 court’s	 determination	 that	 there	 are	 no	

witnesses	outside	Maine	who	have	any	significant	knowledge	of	or	testimony	

to	offer	about	the	children.			

        [¶20]	 	 The	 court	 further	 determined	 that	 “any	 possible	 audio/video	

accommodations”	that	would	allow	the	presentation	of	Maine-based	evidence	

to	the	Tribal	Court	in	South	Dakota	 did	 not	mitigate	the	evidentiary	burdens	




       Given	the	various	components	of	a	good	cause	determination,	we	apply	a	mixed	standard	of	
review	in	this	case.		As	with	other	mixed	questions	of	fact	and	law,	including	those	in	child	and	family	
matters,	 we	 consider	 issues	 of	 law	 de	 novo,	 review	 for	 clear	 error	 the	 court’s	 underlying	 factual	
findings,	 and	 otherwise	 review	 the	 ultimate	 decision	 for	 an	 abuse	 of	 discretion.	 	 See	 Efstathiou	 v.	
Aspinquid,	Inc.,	2008	ME	145,	¶	52,	956	A.2d	110	(stating	that	we	review	a	divorce	court’s	factual	
findings	for	clear	error,	whether	the	court	properly	applied	the	spousal	support	statute	de	novo	as	a	
question	of	law,	and	the	ultimate	determination	of	spousal	support	for	an	abuse	of	discretion);	see	
also	Wong	v.	Hawk,	2012	ME	125,	¶	14,	55	A.3d	425	(applying	the	three-part	standard	of	review	to	
child	 support	 decisions);	 In	 re	 S.B.C.,	 340	 P.3d	 at	 539	 (discussing	 the	 application	 of	 a	 three-part	
standard	of	review	to	ICWA	good	cause	determinations).	
                                                                                     13	

created	 by	 the	 2,000	 miles	 between	 the	 Maine	 court	 and	 the	 Tribal	 Court.		

Although	the	father	points	to	the	testimony	of	the	Tribe’s	ICWA	technician—

that	she	is	able	to	“reach	out”	to	attorneys,	including	state	attorneys—and	of	

the	GAL	and	the	son’s	foster	father—that	they	would	be	willing	to	speak	with	

the	 Tribal	 Court	 by	 telephone—the	 court	 was	 not	 required	 to	 believe	 that	

evidence,	even	if	uncontroverted	and	even	if	offered	by	an	expert	witness,	nor	

was	the	court	required	to	place	any	great	weight	on	it.		See	Rice	v.	Cook,	2015	ME	

49,	 ¶	 16,	 115	A.3d	 86.	 	 The	 evidence	 presented	 also	 supports	 a	 reasonable	

inference	 that	 it	 would	 be	 impractical,	 expensive,	 and	 burdensome	 for	 the	

witnesses—all	 of	 whom	 are	 in	 Maine—to	 maintain	 the	 connection	 with	 the	

Tribal	 Court	 that	 this	 case	 demands,	 particularly	 when	 the	 Tribe’s	 own	

representative	testified	that	the	Tribal	Court	likely	would	conduct	the	required	

hearings	 in	 South	 Dakota.	 	 See	 Ma	 v.	 Bryan,	 2010	ME	 55,	 ¶	 7,	 997	 A.2d	 755	

(defining	“reasonable	inferences”).		The	quality	of	portions	of	the	transcript	of	

the	 motion	 hearing	 held	 in	 Maine,	 which	 involved	 the	 telephonic	

participation—or	the	attempted	participation—by	the	Tribe’s	representative,	

the	son’s	father,	and	the	niece’s	mother	fully	supports	the	court’s	holding	that	

audio/visual	accommodations	simply	would	not	be	effective.			
14	

       [¶21]	 	 Aside	 from	 its	 supported	 findings	 regarding	 the	 evidentiary	

hardships	created	by	a	transfer,	the	court’s	focus	on	the	question	of	jurisdiction	

rather	than	placement	is	also	demonstrated	by	a	review	of	the	motion	hearing	

transcript	 itself.	 	 The	 transcript	 shows	 that	 the	 hearing	 was	 complicated	 by	

continuing	 attempts	 by	 the	 Department	 and	 the	 GAL	 to	 inject	 into	 the	

proceeding	questions	about	the	physical	transfer	of	the	children	from	Maine	to	

South	Dakota.		Nevertheless,	the	court	properly	stressed	over	and	over	again	

that	 the	 question	 it	 had	 to	 address	 was	 whether	 jurisdiction	 should	 be	

transferred	to	the	Tribal	Court,	not	whether	the	children	should	be	moved	to	

South	Dakota.		For	example,	when	the	Department	asked	the	niece’s	counselor,	

“Assume	that	[the	niece]	may	be	moved	to	the	reservation.	.	.	.	Based	on	your	

work	with	[the	niece],	what	impact	would	that	have	on	her?”	the	court	stated,	

“I	don’t	think	I	can	go	down	that	road.		This	is	an	unusual	statute	but	--	I	mean,	

I	 think	 it	 directly	 relates	 to	 what	 could	 happen	 to	 her	 if	 placement	 was	

transferred.”		When	the	Assistant	Attorney	General	pressed	the	court,	arguing	

that	“the	Court	is	allowed	to	consider	the	impact	on	[the	niece]	if	she	is	moved.	

.	 .	 .	 That’s	 good	 cause.	 	 That’s	 the	 basic	 issue	 before	 the	 Court,”	 the	 court	

correctly	declined	to	consider	that	factor.			
                                                                                       15	

      [¶22]	 	 The	 court	 sustained	 the	 objections	 by	 the	 parents’	 attorneys	 to	

evidence	regarding	the	mother’s	intent	to	take	the	children	out	of	the	country	

if	 the	 children	 are	 moved	 to	 the	 reservation,	 the	 niece’s	 progress	 with	 her	

therapist	and	her	future	therapy	goals,	the	niece’s	fears	of	being	moved	to	South	

Dakota,	whether	the	niece	has	had	any	contact	with	her	proposed	placement	in	

South	Dakota,	whether	the	niece	would	suffer	“any	trauma	related	to	being	back	

in	the	process	of	a	courtroom	not	in	the	State	of	Maine,”	the	teen	suicide	rate	on	

the	reservation,	whether	the	niece’s	current	foster	family	is	willing	to	continue	

with	her	placement,	whether	the	son’s	foster	father	is	willing	to	continue	with	

his	 placement,	 whether	 the	 son’s	 foster	 father	 is	 willing	 to	 continue	 to	 allow	

contact	between	the	son	and	his	half-siblings	and	the	niece,	“what	the	transition	

[of	jurisdiction]	looks	like	for	the	children,”	and	the	Department	supervisor’s	

testimony	that	it	is	“in	the	kids’	best	interest	to	remain	where	they	are	staying	

right	now.”		The	court	concluded	the	hearing	by	noting,	“Unusual	case,	as	I	said.		

Different	 law	 from	 what	 we’re	 used	 to	 dealing	 with,	 a	 strongly	 worded	 law.		

Obviously	 [it]	 has,	 you	 know,	 intent	 clearly	 behind	 it,	 and	 you	 have	 to	 apply	

whatever	the	law	is.”		The	trial	court	thus	expressly	and	correctly	recognized,	

consistent	with	the	2016	Guidelines,	that	placement	considerations	are	not	a	

proper	basis	for	determining	good	cause,	and	it	made	repeated	rulings	designed	
16	

to	 maintain	 the	 proper	 focus	 of	 the	 hearing	 on	 the	 jurisdictional	 issues.		

2016	Guidelines	 §	F(5)	 at	 50;	 see	 2015	 Guidelines,	 80	Fed.	 Reg.	 at	 10,156;	

see	also	 25	 C.F.R.	 §	23.118(c)(3);	 In	 re	 Wayne	 R.N.,	 757	 P.2d	 1333,	 1336-37	

(N.M.	Ct.	App.	1988)	(“An	appellate	court	may	look	to	the	remarks	or	opinions	

of	 the	 trial	 judge	 for	 clarification	 of	 ambiguities,	 as	 long	 as	 such	 remarks	 or	

opinions	are	not	made	the	basis	for	error	on	appeal.”).	

        [¶23]	 	 Unlike	 placement	 considerations,	 the	 evidentiary	 hardships	

imposed	 by	 a	 transfer	 of	 jurisdiction	 are	 an	 acceptable	 basis	 for	 a	 finding	 of	

good	cause.		The	BIA	stated	as	much	in	its	first	iteration	of	ICWA	guidelines	in	

1979	by	setting	out,	as	one	example	of	 an	 approved	ground	for	finding	good	

cause,	that	“[t]he	evidence	necessary	to	decide	the	case	could	not	be	adequately	

presented	with	the	tribal	court	without	 undue	hardship	to	the	 parties	or	the	

witnesses.”10	 	 Guidelines	 for	 State	 Courts;	 Indian	 Child	 Custody	 Proceedings,	

44	Fed.	Reg.	67,584,	67,591	(Nov.	26,	1979).		As	the	BIA	noted,	“Application	of	

this	criterion	will	tend	to	limit	transfers	to	cases	involving	Indian	children	who	


    10		We	do	not	consider	the	fact	that	the	BIA	removed	evidentiary	hardship	as	an	approved	ground	

for	finding	good	cause	in	issuing	revised	guidelines	in	2015,	compare	2015	Guidelines,	80	Fed.	Reg.	
at	 10,149,	 10,156,	 with	 1979	 Guidelines,	 44	 Fed.	 Reg.	 at	 67,591,	 to	 imply	 that	 the	 BIA	 no	 longer	
considered	 such	 evidentiary	 hardship	 to	 be	 a	 supportable	 basis	 for	 denying	 a	 transfer.	 	 See	 In	 re	
Interest	 of	 Tavian	 B.,	 874	 N.W.2d	 456,	 466-68	 (Neb.	 2016)	 (Stacy,	 J.,	 dissenting).	 	 In	 the	 2015	
Guidelines,	the	BIA	removed	the	entire	list	of	approved	grounds	for	finding	good	cause	and	instead	
focused	on	enumerating	which	grounds	for	finding	good	cause	violated	the	letter	or	spirit	of	ICWA.		
2015	 Guidelines,	 80	 Fed.	 Reg.	 at	 10,156.	 	 The	 2016	 Guidelines	 maintained	 this	 same	 format.		
2016	Guidelines	§	F(5)	at	49-51.		
                                                                                                         17	

do	 not	 live	 very	 far	 from	 the	 reservation.”	 	 Id.	 	 That	 the	 geographic	 distance	

between	a	state	court	and	a	tribal	court	remains	an	approved	basis	for	finding	

good	cause	is	further	established	by	the	commentary	accompanying	the	2016	

Guidelines,	in	which	the	BIA	declined	the	invitation	of	some	commenters	to	list	

the	distance	between	the	state	court	and	the	tribal	court	as	a	prohibited	basis	

for	finding	good	cause.		2016	Guidelines	§	F(5)	at	51;	see	Supplement	to	2016	

Rule,	81	Fed.	Reg.	at	38,827.		The	BIA	noted	only	that	“[i]f	a	State	court	considers	

the	 distance	 of	 the	 parties	 from	 the	 Tribal	 court,	 it	 must	 also	 weigh	 any	

available	accommodations	that	may	address	the	potential	hardships	caused	by	

the	 distance.”	 	 2016	Guidelines	 §	F(5)	 at	 51;	 see	 Supplement	 to	 2016	 Rule,	

81	Fed.	Reg.	at	38,827.		The	court	did	just	that	in	this	matter.	

        [¶24]		Indeed,	as	the	BIA	stated	in	the	1979	Guidelines,	44	Fed.	Reg.	at	

67,591,	the	legislative	history	of	ICWA	refers	to	the	good	cause	determination	

as	a	modified	forum	non	conveniens	analysis:	“[Section	1911(b)]	is	intended	to	

permit	a	State	court	to	apply	a	modified	doctrine	of	forum	non	conveniens,	in	

appropriate	cases,	to	insure	that	the	rights	of	the	child	as	an	Indian,	the	Indian	

parents	or	custodian,	and	the	tribe	are	fully	protected.”		H.R.	Rep.	No.	95-1386,	

at	21	(1978).11		Forum	non	conveniens	regards	whether	one	court	“‘is	a	seriously	


   11	 	 We	 are	 also	 not	 persuaded	 by	 the	 mother’s	 and	 father’s	 contentions	 that	 the	 Department	

violated	its	obligation	to	disclose	on	the	record	its	reasons	for	objecting	to	the	motion	to	transfer.		A	
18	

inconvenient	forum	for	the	trial	of	the	action’”	and	“‘a	more	appropriate	forum	

is	 available.’”12	 	 Corning	 v.	 Corning,	 563	 A.2d	 379,	 380	 (Me.	 1989)	 (quoting	

Restatement	(Second)	of	Conflict	of	Laws	§	84	(Am.	Law	Inst.	1971)).		Much	as	

a	forum	non	conveniens	analysis	demands,	the	BIA	has	identified	the	crux	of	the	

good	cause	inquiry	as	one	of	“which	court	is	best	positioned	to	adjudicate	the	

child-custody	proceeding.”		2016	Guidelines	§	F(5)	at	49.		Which	court	is	best	

positioned	 to	 adjudicate	 a	 child	 protection	 proceeding—or	 any	 matter—

necessarily	 involves	 a	 case-by-case	 consideration	 of	 the	 availability	 of	 the	

evidence,	as	the	court	performed	here.13		See	Shanoski	v.	Miller,	2001	ME	139,	



plain	language	reading	of	the	2016	Guidelines	supports	the	Department’s	contention	that	it	was	not	
required	to	disclose	the	basis	of	its	objection	in	any	particular	manner	or	at	any	particular	time	other	
than	“on	the	record	or	provided	in	writing,”	as	it	did	during	the	motion	hearing.		2016	Guidelines	
§	F(5)	at	49;	see	also	25	C.F.R.	§	23.118(a);	2015	Guidelines,	80	Fed.	Reg.	at	10,156.			
    	
    12		We	recognize	that	the	denial	of	a	motion	to	transfer	jurisdiction	as	forum	non	conveniens	is	

generally	held	to	be	an	interlocutory	appeal	to	which	none	of	the	exceptions	to	the	final	judgment	
rule	applies.		See	Van	Cauwenberghe	v.	Biard,	486	U.S.	517,	527	(1988)	(“We	conclude,	.	.	.	as	have	the	
majority	of	the	Courts	of	Appeals	that	have	considered	the	issue,	that	the	question	of	the	convenience	
of	the	forum	is	not	completely	separate	from	the	merits	of	the	action,	and	thus	is	not	immediately	
appealable	as	of	right.”	(footnote	omitted)	(citation	omitted)	(quotation	marks	omitted));	Fitzgerald	
v.	Bilodeau,	2006	ME	122,	¶	5,	908	A.2d	1212	(“[A]bsent	extraordinary	circumstances,	the	denial	of	a	
motion	to	dismiss	for	forum	non	conveniens	.	.	.	is	interlocutory,	not	a	final	judgment,	and	therefore	
not	immediately	appealable.”).		When	the	forum	non	conveniens	decision	is	based	on	a	determination	
that	good	cause	exists	to	deny	a	transfer	of	jurisdiction	to	a	tribal	court	pursuant	to	ICWA,	however,	
extraordinary	circumstances	do	exist.		See	supra	n.6.	
	
    13		In	MacLeod	v.	MacLeod,	383	A.2d	39,	42	(Me.	1978),	we	adopted	the	factors	to	be	considered	in	

a	forum	non	conveniens	analysis	as	set	out	by	the	 United	States	Supreme	Court	in	Gulf	Oil	Corp.	v.	
Gilbert,	330	U.S.	501,	508	(1947):	
	
          An	 interest	 to	 be	 considered,	 and	 the	 one	 likely	 to	 be	 most	 pressed,	 is	 the	 private	
          interest	 of	 the	litigant.		 Important	 considerations	are	 the	 relative	 ease	 of	access	to	
          sources	of	proof;	availability	of	compulsory	process	for	attendance	of	unwilling,	and	
                                                                                                            19	

¶	22,	780	A.2d	275;	see	also	In	re	Robert	T.,	246	Cal.	Rptr.	168,	174	(Cal.	Ct.	App.	

1988);	In	re	Interest	of	J.W.,	528	N.W.2d	657,	660	(Iowa	Ct.	App.	1995).	

       [¶25]		Numerous	other	jurisdictions	have	held	that	“[g]ood	cause	to	deny	

transfer	 of	 the	 proceedings	 to	 the	 tribal	 court	 may	 arise	 from	 geographical	

obstacles.”		In	re	Interest	of	J.R.H.,	358	N.W.2d	311,	317	(Iowa	1984).		In	In	re	

Interest	of	J.R.H.,	for	example,	the	Iowa	Supreme	Court	considered	the	denial	of	

a	 motion	 filed	 by	 the	 Oglala	 Sioux	 Tribe	 in	 South	 Dakota	 to	 transfer	 child	

protection	proceedings	initiated	in	Iowa.		Id.	at	314,	317.		The	court	upheld	the	

denial	on	the	ground	that	“[t]he	bulk	of	the	evidence	and	the	 majority	of	the	

witnesses	will	come	from	Iowa.”		Id.	at	317;	accord	In	re	Robert	T.,	246	Cal.	Rptr.	

at	174,	176	(affirming	the	denial	of	a	motion	to	transfer	from	a	state	court	in	

California	to	a	tribal	court	in	New	Mexico);	People	ex	rel.	T.E.R.,	305	P.3d	414,	

418-19	 (Colo.	 App.	 2013)	 (Colorado	 to	 Michigan);	 In	 re	 Adoption	 of	 S.S.,	

657	N.E.2d	 935,	 943	 (Ill.	 1995)	 (Illinois	 to	 Montana);	 In	 re	 Interest	 of	 A.P.,	



       the	cost	of	obtaining	attendance	of	willing,	witnesses;	possibility	of	view	of	premises,	
       if	view	would	be	appropriate	to	the	action;	and	all	other	practical	problems	that	make	
       trial	of	a	case	easy,	expeditious	and	inexpensive.		There	may	also	be	questions	as	to	
       the	 enforceability	 of	 a	 judgment	 if	 one	 is	 obtained.	 	 The	 court	 will	 weigh	 relative	
       advantages	and	obstacles	to	fair	trial.		It	is	often	said	that	the	plaintiff	may	not,	by	
       choice	 of	 an	 inconvenient	 forum,	 “vex,”	 “harass,”	 or	 “oppress”	 the	 defendant	 by	
       inflicting	upon	him	expense	or	trouble	not	necessary	to	his	own	right	to	pursue	his	
       remedy.		But	unless	the	balance	is	strongly	in	favor	of	the	defendant,	the	plaintiff’s	
       choice	of	forum	should	rarely	be	disturbed.	
	
(Footnote	omitted);	see	Corning	v.	Corning,	563	A.2d	379,	380	(Me.	1989).	
20	

961	P.2d	 706,	 712-13	 (Kan.	 Ct.	 App.	 1998)	 (Kansas	 to	 South	 Dakota);	 In	 re	

Interest	 of	 Bird	 Head,	 331	 N.W.2d	 785,	 790	 (Neb.	 1983)	 (Nebraska	 to	 South	

Dakota);	In	re	Wayne	R.N.,	757	P.2d	at	1336-37	(noting	that	“the	tribal	court’s	

subpoena	power	was	limited,	and	the	tribal	court	[in	Oklahoma]	would	not	be	

able	 to	 subpoena	 witnesses	 in	 New	 Mexico”);	 In	 re	 C.J.,	 108	 N.E.3d	 677,	 695	

(Ohio	Ct.	App.	2018)	(“Good	cause	to	deny	transfer	has	been	found	where,	as	

here,	almost	all	the	parties	and	witnesses	reside	in	the	county	of	the	state	court	

and	have	no	contact	with	the	tribal	court.”);	Chester	Cty.	Dep’t	of	Soc.	Servs.	v.	

Coleman,	399	S.E.2d	773,	775-77	(S.C.	1990)	(South	Carolina	to	South	Dakota);	

People	 ex	 rel.	 J.J.,	 454	 N.W.2d	 317,	 330	 (S.D.	 1990)	 (South	 Dakota	 to	 North	

Dakota);	see	also	In	re	Guardianship	of	J.C.D.,	686	N.W.2d	647,	650	(S.D.	2004)	

(gathering	cases).	

      [¶26]		Here,		the	court’s	denial	of	the	motion	to	transfer	is	fully	supported	

by	its	findings	and	conclusions	regarding	the	evidentiary	burdens	that	would	

be	imposed	by	the	fact	that	all	relevant	witnesses	and	evidence	are	currently	

located	in	Maine.		The	court’s	analysis	of	the	challenges	posed	by	the	geographic	

distance	between	the	location	of	the	Tribal	Court	and	the	location	of	all	of	the	

evidence	about	and	the	witnesses	with	information	concerning	these	children	
                                                                                        21	

is	 supported	 by	 ample	 evidence,	 contains	 no	 legal	 errors,	 and	 does	 not	

represent	an	abuse	of	discretion.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	      	      	
	
Lindsay	 M.	 Allen,	 Esq.	 (orally),	 Fairfield	 and	 Associates,	 P.A.,	 Lyman,	 for	
appellant	Shirley	T.	
	
Todd	 H.	 Crawford	 Jr.,	 Esq.	 (orally),	 Law	 Office	 of	 Todd	 H.	 Crawford	 Jr.,	 P.A.,	
Raymond,	for	appellant	David	W.	
	
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	
	
	
Portland	District	Court	docket	numbers	PC-2016-104	and	PC-2016-105	
FOR	CLERK	REFERENCE	ONLY	
