MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2015 ME 131
Docket:   Wal-14-500
Argued:   May 14, 2015
Decided:  October 13, 2015

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



                                                 C.L.

                                                  v.

                                                L.L.1

                                               ******

                                            IN RE A.L.

SAUFLEY, C.J.

         [¶1]     C.L. sought de facto parent status regarding his ex-wife’s then

eight-year-old daughter, A.L. He appeals from a judgment entered by the District

Court (Belfast, Worth, J.) ruling on two motions that were consolidated for

consideration: (A) a motion in a child protection matter concerning A.L. and (B) a

post-judgment motion in C.L.’s divorce from A.L.’s mother, L.L.2 C.L. argues that

the court made insufficient factual findings and erred in determining that C.L. was

not a de facto father to A.L. We dismiss the appeal from the order entered in the

   1
      Because the court consolidated motions filed in a child protection and a divorce matter for
consideration, we avoid the use of full names here in compliance with the statutory directive that, with
respect to child protection matters, “[a]ll proceedings . . . be closed to the public” unless otherwise
ordered by the court. 22 M.R.S. § 4007(1) (2014).
   2
     C.L. filed a single document raising the two motions and listed the docket numbers for both
proceedings in the document heading.
2

child protection matter and affirm the court’s judgment entered in the divorce

action.

                                 I. BACKGROUND

      [¶2] C.L. and L.L. were married and had a daughter in 2001. Several years

later, L.L. became pregnant with another man’s child, and the child—A.L.—was

born in August 2005. C.L. knew that he was not A.L.’s biological father.

      [¶3] C.L. filed a complaint for divorce in April 2012 when A.L. was six

years old. In that complaint, he alleged that he was A.L.’s parent. During the

proceedings, the issue of A.L.’s paternity was raised, and C.L. asserted that he was

A.L.’s de facto parent. The court entered a divorce judgment in October 2012 that

provided, by the parties’ agreement, for shared parental rights and responsibilities

but did not adjudicate C.L.’s claim of de facto parenthood.        Pursuant to the

judgment, L.L. provided primary residence for both A.L. and the parties’

biological daughter, and C.L. had rights of contact with them. Based on the

parties’ agreement, the court’s judgment made C.L. responsible for paying child

support for both children.      The court indicated that the judgment could be

reconsidered after the receipt of genetic testing results.

      [¶4] In March 2013, the Department of Health and Human Services became

involved with L.L. and her children, and a safety plan was put in place that called

for A.L. and her older sister to stay with C.L. Two months later, the Department
                                                                                  3

filed a petition for a child protection order with respect to A.L. The court entered

an order of preliminary protection granting the Department custody of A.L. A.L.

was placed in C.L.’s home.

      [¶5] The results of a paternity test confirmed that another man is A.L.’s

biological father, and within a week after the preliminary protection order was

issued, the court entered an order establishing that man’s parenthood in the child

protection proceeding. L.L. waived the opportunity for a summary preliminary

hearing, and the court ordered that A.L. remain in the Department’s custody and in

C.L.’s home.    After conducting a separate summary preliminary hearing with

respect to the newly established father, the court found that A.L. would be in

immediate risk of serious harm if placed in her father’s care. Based on that

finding, the court maintained custody with the Department, and A.L. remained in

C.L.’s home.

      [¶6] The court entered a jeopardy order on October 21, 2013, in which it

found that A.L. was in circumstances of jeopardy with L.L. The court entered a

separate jeopardy order with respect to the biological father in which it found

jeopardy on the basis that he had not been able to protect A.L. from serious harm,

was only beginning to form a relationship with her, and had a criminal history that

raised concerns. Also on October 21, 2013, the court entered an order in the
4

divorce matter determining that C.L. is not A.L.’s father. The court order ended

his obligation to continue paying child support for her.

          [¶7] A gradual, therapeutically guided transition of A.L. to her paternal

grandmother’s house was then planned. C.L.—who was receiving no services

from the Department other than as a foster placement where home and community

treatment services were provided for A.L.—became increasingly distressed about

the transition. He raised allegations about the biological father’s conduct with A.L.

          [¶8]   In April 2014, the Department immediately relocated A.L. to her

paternal grandmother’s house after an incident with C.L. at a family team meeting.

After a judicial review hearing held on April 14, 2014, the court ordered the child’s

continued placement with the grandmother.

          [¶9] C.L. filed a motion for determination of de facto parent status in both

the child protection and the family matter cases. A.L.’s biological father moved to

intervene in the family matter case, and that motion was granted. In the child

protection case, the Department objected to C.L.’s motion for de facto parent

status.

          [¶10] After appropriately consolidating the motions for hearing, the court

held a two-day trial on C.L.’s motions in July 2014. Based on the evidence

presented, the court determined, in an order entered in September 2014, that C.L.

was not a de facto parent for purposes of the child protection proceeding because
                                                                                     5

he had not previously been determined to be a de facto parent in a family matter.

The court further found that C.L. was not a de facto parent for purposes of the

family matter, concluding that C.L. failed to meet his burden to establish that

(1) he had “undertaken a permanent, unequivocal, committed, and responsible

parental role in the child’s life,” and (2) “there are exceptional circumstances

sufficient to allow the court to interfere with the legal or adoptive parent’s rights.”

Pitts v. Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169 (quotation marks omitted).

      [¶11] In support of its judgment, the court made extensive findings by clear

and convincing evidence, see id., all of which are supported by competent evidence

in the record. The court’s findings, taken together, demonstrate that, although C.L.

loves A.L., C.L. is unable to fulfill a responsible parental role for A.L. When she

lived with C.L., A.L. lacked a routine and structure, suffered from chronic lice,

appeared at school dirty and tired, came to supervised visits hungry because there

was no food at C.L.’s home, and wore the same clothes for days. C.L.’s housing

was crowded with stored items and in a state of disrepair, he smoked indoors, and

his twelve-year-old daughter would be out of the home for days “house surfing” at

friends’ homes without C.L. knowing where she was. Caseworkers and other

professionals often found it difficult to reach C.L., and he declined to address any

of the identified problems or improve his ability to take care of A.L.
6

      [¶12] C.L.’s inability to function as a responsible parent, his unwillingness

to learn the necessary parenting skills, and the ensuing chaos in the home all

harmed A.L. The court found that A.L.’s behavior at school was so serious while

she was staying at C.L.’s home that she repeatedly had to go to a “time-out room”

to de-escalate. Even at a young age, she needed one-on-one support at school, and

C.L. did not assist in upholding the rules and structure that the school sought to

provide, once yelling at the school principal in front of A.L. C.L. refused to meet

with A.L.’s biological father as recommended by service providers and would not

encourage A.L. to attend visits with her father or show support for the reunification

efforts that were part of A.L.’s case plan. After A.L. moved to her grandmother’s

home, C.L. inappropriately raised adult concerns with her at his visits, asking A.L.

how often she visited with her biological father and telling her that she should not

be seeing her father more often than she was seeing him.

      [¶13] The court found that, although A.L. expressed a desire to live with

“Daddy [C.L.],” she also said that she wanted to live with her grandmother, her

father, and her mother. C.L. told the Department’s caseworker, “that little girl

would never turn against me,” and said that he had been very nice but things could

take a different route if things did not go right in court, and that he was “willing to

go to jail” for A.L.
                                                                                  7

      [¶14]     In A.L.’s placement with her grandmother, there are no safety

concerns. The grandmother has followed the advice of professionals, including

school staff, and the child has flourished with the reasonable routine and structure

of the home. A.L. is clean; is better able to control her behavior, including at

school; has made significant academic gains; and is more rested, happy, and

self-assured.

      [¶15] Based on its findings, the court determined that C.L. had failed to

establish de facto parenthood for purposes of the family matter. Specifically, the

court determined that C.L. had not shown that he had undertaken a permanent,

unequivocal, committed, and responsible parental role in her life and that

exceptional circumstances justified an intrusion on the parental rights of L.L. and

the biological father. See id. The court maintained A.L.’s placement with her

grandmother.

      [¶16] C.L. moved for the court to make additional findings of fact, primarily

regarding his role in A.L.’s upbringing before the child protection proceeding

began, and to amend the order to determine that he is a de facto parent. The court

denied his motion and entered an amended order only to correct clerical errors.

C.L. appealed to us.
8

                                       II. DISCUSSION

A.       Child Protection Matter

         [¶17] Pursuant to the chapter of Title 22 that governs child protection

proceedings, “[o]rders entered under this chapter under sections other than section

4035, 4054 or 4071 are interlocutory and are not appealable.” 22 M.R.S. § 4006

(2014). Because of this statutory provision crafted by the Legislature, we do not

apply “the traditional judge-made exceptions to the final judgment rule” in child

protection cases “absent any constitutional infirmity in the statute.” In re L.R.,

2014 ME 95, ¶ 9, 97 A.3d 602.

         [¶18] C.L. does not raise any constitutional infirmity in the child protection

statute. He contends only that the court misapplied the common law de facto

parent doctrine. Accordingly, the appeal from the judgment in the child protection

matter is interlocutory, and we dismiss it.3 See 22 M.R.S. § 4006; In re L.R., 2014

ME 95, ¶ 9, 97 A.3d 602.

B.       Family Matter

         [¶19] With respect to the judgment entered in the divorce case, from which

C.L. properly appealed, see 14 M.R.S. § 1901 (2014), C.L. contends that the court

misapplied the standard for determining de facto parenthood by failing to take into


     3
     Given the interlocutory nature of this appeal, we do not opine on whether a de facto parenthood
could be established through a child protection case.
                                                                                                     9

account the evidence of his involvement as a parent during the years of A.L.’s life

that preceded the child protection proceeding. He further argues that “exceptional

circumstances” warrant a determination of de facto parenthood.

       [¶20]      We review the court’s findings of fact for clear error and its

conclusions of law de novo. Pitts, 2014 ME 59, ¶ 9, 90 A.3d 1169. To obtain

parental rights as a de facto parent, an individual must show that (1) “he or she has

undertaken a permanent, unequivocal, committed, and responsible parental role in

the child’s life,” and (2) “there are exceptional circumstances sufficient to allow

the court to interfere with the legal or adoptive parent’s rights.” Id. ¶ 27 (quotation

marks omitted).4

       [¶21] Here, the court found that C.L. failed to meet both parts of this test.

With respect to the first prong, the court found that C.L. did not occupy a

responsible parental role with respect to A.L. Specifically, the court found that he

had failed and refused to set necessary limits to assist A.L. at school, had not

provided adequate housing or food, had not enabled A.L. to maintain basic

hygiene, and had declined to stop smoking in the home where A.L. resided with

him. Although most of these findings concern C.L.’s most recent conduct, they


   4
     This common-law test will soon be superseded because the Legislature adopted the Act to Update
Maine’s Family Law. See P.L. 2015, ch. 296, § A-1 (adopting the Maine Parentage Act, which includes a
subchapter regarding de facto parentage) (effective July 1, 2016) (to be codified, in relevant part, at
19-A M.R.S. § 1891).
10

support the court’s determination that C.L. had failed, as of the time of hearing, to

undertake a “permanent, unequivocal, committed, and responsible parental role in

the child’s life.” Id. (emphasis added) (quotation marks omitted). We therefore

affirm the court’s determination that he failed to meet the first required element for

establishing de facto parenthood.

      [¶22] The creation by a court of an additional, legally recognized parental

relationship with a child permanently alters the relationships among the child and

the other parents. Introducing another adult into the group of adults who will care

for and make decisions about the child should not occur in instances where that

adult is unable to act as a responsible parent. C.L.’s relationship with A.L. does

not “entitle” him to de facto parenthood if he cannot, or will not, undertake a

permanent responsible parental role in her life.

      [¶23] Because we affirm the court’s finding that C.L. failed to establish the

first element of de facto parenthood, we do not reach or review the court’s finding

that C.L. failed to satisfy the second necessary element by establishing

“exceptional circumstances” sufficient to allow the court to interfere with the legal

parents’ rights. Id. Nor is it necessary for us to reach the biological father’s

equitable arguments against a determination that C.L. is a de facto parent.
                                                                           11

        The entry is:

                           Appeal from child protection order dismissed.
                           Judgment in family matter affirmed.



On the briefs:

        Sean Ociepka, Esq., Belfast, for appellant C.L.

        Janet T. Mills, Attorney General, and Meghan Szylvian, Asst.
        Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine

        Logan E. Perkins, Esq., Silverstein-Law, P.A., Bangor, for
        appellee biological father of A.L.


At oral argument:

        Sean Ociepka, Esq., for appellant C.L.

        Meghan Szylvian, Asst. Atty. Gen., for appellee State of Maine

        Logan E. Perkins, Esq., for appellee biological father of A.L.



Belfast District Court docket numbers FM-2012-100 and PC-2013-13
FOR CLERK REFERENCE ONLY
