MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2014 ME 25
Docket:   Pen-12-537
Argued:   November 21, 2013
Decided:  February 18, 2014

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



                GUARDIANSHIP OF ZACHARIA HARTLEY STEVENS

LEVY, J.

         [¶1] This appeal causes us to consider the scope of the Probate Court’s

discretion regarding transitional arrangements to reunite a child under a

guardianship with his biological parent. Kristy Lynn Bouchard Hill appeals from a

judgment entered in the Penobscot County Probate Court (Woodcock, J.) denying

her petition to terminate the guardianship of her son, Zacharia.        Because we

conclude that the court erred in denying Hill’s petition without providing for

transitional arrangements to restore Zacharia to Hill’s custody, we vacate the

judgment.

                                          I. BACKGROUND

         [¶2] Zacharia was born to Kristy Hill and Benjamin Stevens in January

2009.1 Hill was transient at the time of Zacharia’s birth, and Zacharia soon came

to live with Linda and Gordon Walls, Hill’s grandparents. The Wallses became

   1
       Benjamin Stevens is not a party to this appeal.
2

temporary guardians of Zacharia in May 2009, and Zacharia has resided with them

ever since. Hill saw Zacharia infrequently during the first year of his life, and in

March 2010, with Hill’s consent, the court appointed the Wallses as full guardians

and granted Hill visitation rights. Hill did not see Zacharia from about April of

2010 until February of 2011, when she filed a petition to terminate the

guardianship.

        [¶3] After Hill petitioned to terminate the guardianship, a guardian ad litem

(GAL) was appointed and ultimately submitted three reports to the court regarding

Hill’s petition.2 The first report, issued in June 2011, concluded that Hill was unfit

to regain custody of Zacharia due to her inappropriate parenting methods, her lying

to the GAL, and her continued contact with her mother, who had been living with a

convicted sex offender. The GAL expressed concern about Hill’s “ability to keep

Zacharia safe . . . and about her ability in general to parent Zacharia.”

        [¶4] Following the submission of her first report, the GAL provided a set of

recommendations for Hill, including substance abuse and mental health

counseling, parenting classes, and regular supervised visits with Zacharia. The

GAL’s second and third reports, submitted in March and October of 2012, detailed

Hill’s full compliance with the recommendations and the positive steps Hill had

    2
     The GAL’s reports also refer to a petition for adoption and termination of parental rights filed by the
Wallses in 2011 that is not at issue in this appeal.
                                                                                  3

taken to prepare for reunification with Zacharia. In spite of Hill’s efforts and the

GAL’s recommendation that her visits with Zacharia be increased, the reports

noted that the Wallses had “stonewalled” Hill’s attempts at reunification by

cancelling visits and making Zacharia unavailable. While the GAL preferred for

Zacharia to remain in a limited guardianship with increased visitation by Hill while

Hill continued counseling and parenting services, the GAL felt that terminating the

guardianship was the only option given the Wallses’ refusal to facilitate a more

gradual transition. Accordingly, the GAL’s third report concluded that terminating

the guardianship was in Zacharia’s best interest.

      [¶5] On October 4, 2012, the court held a hearing on Hill’s petition for

termination of the guardianship. At the hearing, the GAL testified, consistent with

her reports, that the relationship between the Wallses and Hill had made it unlikely

that a gradual transition of Zacharia to Hill’s custody would occur as long as a

guardianship remained in effect. Accordingly, the GAL recommended terminating

the guardianship so that Hill could voluntarily work with parenting services

providers and the Wallses to transition Zacharia to her custody.

      [¶6] The court also heard testimony from the Wallses, who expressed their

openness to Hill visiting Zacharia and did not dispute that Hill was capable of

providing for Zacharia’s physical needs. The Wallses were instead concerned that

Zacharia had begun experiencing severe anxiety since starting regular supervised
4

visits with Hill. The Wallses testified that Zacharia was afraid of visiting Hill and

had developed stuttering and sleeping problems since his visits with her began.

Linda Walls testified:

      Q      You have concerns about him going to Kristy’s home for visits,
             correct?
      A      I have concerns about him going there for a visit because
             Zacharia has never been away from home and, just like now,
             with all these visits at NOE [a social services provider] and he
             has to go to counseling at -- he doesn’t want to go anywhere
             now. He just wants to stay at home. I think he would do better
             -- I have -- I would like to see him, in time, go there to visit at
             her house, but I would like to see it when he is old enough to
             understand where he’s going and want to go. I don’t want him
             to have to go and do something. I want him to not have to be
             afraid everyday that I’m going to have to go here or I’m going
             to have to go there. I would like to have him want to go and be
             comfortable to go there.
      Q      And if he wanted to go, you would support his --
      A      If he wanted to go, I would be happy to take him.
      Q      And would you support his working with the [parenting]
             service providers?
      A      Yes, I would.
      Q      If he wanted to?
      A      And I told Kristy that.
      Q      And how do you feel about Zacharia developing a bond with
             Kristy and her family?
      A      I have no problem with that. We are family. We are all family.
             She’s my granddaughter. We’re family.

      [¶7] The court heard similar testimony from Verna Boyington, Zacharia’s

mental health therapist, who was presented as a witness by the Wallses. Boyington

testified that she had observed Zacharia’s anxiety when he was separated from the

Wallses during visits with Hill, and that the child recognized the Wallses, not Hill,
                                                                                 5

as his parents. The court also received in evidence a report prepared by Boyington

opining that separating Zacharia from the Wallses could result in severe and

irreversible attachment problems for the child, such as reactive attachment

disorder. Boyington also testified, however, that “Zacharia needs to establish a

relationship with his biological mom,” and her report recommended transitional

services for Zacharia under a continued guardianship:

      [I]f Zacharia remains with Linda and Gordon and the adults all work
      together, attending training, going to counseling, [parenting] services
      are implemented and Zacharia begins to have home visits with his
      biological mother and family, Zacharia would then be able to establish
      a real connection to his other family. It is then that I believe the
      chances of everyone winning are high . . . especially for this
      wonderful little three-year-old boy, named Zacharia.

      [¶8] Finally, Hill testified regarding the steps she had taken to prepare for

reunification with Zacharia and her intention to keep Zacharia in counseling to

help with his transition. While Hill recognized that the transition would not be

easy for Zacharia, she did not believe that the child’s attachment to the Wallses

would “be a problem.” Hill’s testimony also revealed that she was unfamiliar with

various details of Zacharia’s life and that she had never been with Zacharia for

more than two hours at a time.

      [¶9] On November 1, 2012, the Probate Court entered a judgment denying

Hill’s petition to terminate the guardianship. The court, after making detailed

findings of fact, concluded that the Wallses had met their burden of proving by a
6

preponderance of the evidence that Hill is unfit because she is unable to meet

Zacharia’s needs:

            The Respondents have met their burden of establishing by a
      preponderance of the evidence [that] Kristy is not a fit parent for
      Zacharia at this time and that it is not in Zacharia’s best interest to
      terminate the guardianship. Zacharia . . . has been living with [the
      Wallses] since May of 2009 when he was four months old and Kristy
      Hill has not provided for his physical and emotional needs since that
      time. By all reports and testimony he is a happy, active child. He is
      bonded with . . . Gordon and Linda Walls and considers them his
      family – he is safe and secure and all his physical and emotional needs
      are being met. His contact with his mother has been limited to
      supervised visitation. He has only been to her home once, for a
      two-hour visit. The Guardian ad Litem testified she had “no
      problems” with [the Wallses] as caregivers for the child.

             Witnesses raised significant concerns about Kristy’s ability to
      meet Zacharia’s needs, including the GAL who testified that Kristy
      would need in-home services. While Kristy [has] been cooperative in
      taking steps required of her, several witnesses testified that the
      increase in Zacharia’s anxious and nervous behavior coincides with
      the increase in visitation with Kristy. The presence of a newborn in
      the Hill household raises additional concerns. While the guardians
      have not encouraged increased visitation, their hesitancy to do so must
      be viewed in light of the evidence presented. Their concerns are for
      Zacharia’s safety and physical and emotional well-being.

      [¶10] The court also rejected the GAL’s and Boyington’s recommendations

that transitional efforts be put in place, either upon termination of the guardianship

(as recommended by the GAL) or under a continued guardianship (as

recommended by Boyington):

             Title 18-A MRSA § 5-213 authorizes the Court to provide for
      transitional arrangements “if it determines that such arrangements will
                                                                                  7

      assist the minor with a transition of custody and are in the best
      interests of the child.” The Court declines to do so in this case. Based
      on the evidence presented, the GAL’s recommendation for a
      transitional arrangement and a limited guardianship supported by
      in-home services is not in the best interests of the child. As she
      testified herself, thus far a “slow transition has not worked.”

      [¶11]    Accordingly, the court denied Hill’s petition to terminate the

guardianship. Hill timely appealed from the judgment.

                                II. DISCUSSION

      [¶12] Hill contends that the court’s denial of her petition to terminate the

guardianship was based on an erroneous finding that she is unfit to parent

Zacharia. Intertwined with the question of Hill’s fitness was the court’s decision

not to provide for transitional arrangements pursuant to 18-A M.R.S. § 5-213

(2013). As explained below, because all competent evidence at trial demonstrated

that Hill would be fit to parent Zacharia with the assistance of transitional

arrangements, and that the implementation of such arrangements could lead to the

termination of the guardianship and the return of Zacharia to Hill’s custody, the

court’s refusal to provide for transitional arrangements had the practical effect of

preventing Hill from becoming a fit parent. Accordingly, the court abused its

discretion by denying transitional arrangements for Zacharia and clearly erred in
8

finding that Hill was unfit.3 We proceed by discussing the respective standards for

instituting and terminating guardianships before turning to the issue of the court’s

failure to implement transitional arrangements for Zacharia.

A.       Statutory Framework Governing the Institution and Termination of
         Guardianships

         [¶13] The Probate Court may appoint a guardian or coguardians for an

unmarried minor if certain conditions are met, including if “[a]ll parental rights of

custody have been terminated or suspended by circumstance or prior court order,”

18-A M.R.S. § 5-204(a) (2013), or if “[e]ach living parent whose parental rights

and responsibilities have not been terminated . . . consents to the guardianship and

the court finds that the consent creates a condition that is in the best interest of the

child,” 18-A M.R.S. § 5-204(b) (2013). The court may also appoint a guardian

without a parent’s consent if

         the court finds by clear and convincing evidence that . . . a living
         situation has been created that is at least temporarily intolerable for
         the child even though the living situation does not rise to the level of
         jeopardy required for the final termination of parental rights, and that
         the proposed guardian will provide a living situation that is in the best
         interest of the child.

18-A M.R.S. § 5-204(c) (2013).




     3
     Because we vacate the judgment on this basis, we do not address Hill’s separate contention that the
standard for parental unfitness established by 22 M.R.S. § 4055(1)(B)(2)(b) (2013) applies in this case.
                                                                                               9

        [¶14] Once a guardianship is established, “[a]ny person interested in the

welfare of a ward . . . may petition for removal of a guardian on the ground that

removal would be in the best interest of the ward.” 18-A M.R.S. § 5-212(a)

(2013).4      In the absence of the guardian’s consent, the party petitioning for

termination of the guardianship bears the burden of proving, by a preponderance of

the evidence, that termination would be in the best interest of the ward.

18-A M.R.S. § 5-212(d) (2013); Guardianship of David C., 2010 ME 136, ¶ 3, 10

A.3d 684. Although section 5-212(d), on its face, indicates that the sole criterion

for terminating a guardianship is the best interest of the child, we have held that the

statute must be read to require courts to also address parental fitness in any

guardianship termination proceeding. Guardianship of Jeremiah T., 2009 ME 74,

¶¶ 26-28, 976 A.2d 955; see also Osier v. Osier, 410 A.2d 1027, 1029 (Me. 1980)

(“[A]ny decision terminating or limiting the right of a parent to physical custody of

his child also affects his constitutionally protected liberty interest in maintaining

his familial relationship with the child.”). Accordingly, “although a parent seeking

to terminate a guardianship in order to regain custody bears the burden of proving

that termination is in his or her child’s best interest pursuant to 18-A M.R.S.

§ 5-212(d), the party opposing the termination of the guardianship bears the burden

of proving, by a preponderance of the evidence, that the parent seeking to

  4
      A guardian’s authority terminates upon his or her removal. 18-A M.R.S. § 5-210 (2013).
10

terminate the guardianship is currently unfit to regain custody of the child.”

Guardianship of David C., 2010 ME 136, ¶ 7, 10 A.3d 684. “If the party opposing

termination of the guardianship fails to meet its burden of proof on this issue, the

guardianship must terminate for failure to prove an essential element to maintain

the guardianship.” Id. Section 5-212(d) further provides that “[i]f the court does

not terminate the guardianship, the court may dismiss subsequent petitions for

termination of the guardianship unless there has been a substantial change of

circumstances.”

      [¶15] Although the parties have asked us to determine the standard of

parental fitness to apply when a parent petitions to terminate a guardianship, this

appeal does not require us to define parental unfitness for purposes of all

guardianship termination proceedings.     Instead, this case presents a narrower

question related to the court’s refusal to implement transitional arrangements,

where such a refusal has the practical effect of preventing the parent from

becoming fit and could result in a de facto termination of the parent’s parental

rights. We therefore turn to the statute governing transitional arrangements, as it

applies to this case.
                                                                                   11

B.    Transitional Arrangements Pursuant to 18-A M.R.S. § 5-213 and the Court’s
      Finding of Unfitness

      [¶16] Title 18-A M.R.S. § 5-213 provides:

             In issuing, modifying or terminating an order of guardianship
      for a minor, the court may enter an order providing for
      transitional arrangements for the minor if the court determines that
      such arrangements will assist the minor with a transition of custody
      and are in the best interest of the child. Orders providing for
      transitional arrangements may include, but are not limited to, rights of
      contact, housing, counseling or rehabilitation.

Section 5-213 thus vests discretion in the Probate Court to decide whether to

implement transitional arrangements for a minor under a guardianship.            Such

discretion is not without limits, however. “The critical test in determining the

propriety of the exercise of judicial discretion is whether, under the facts and

circumstances of the particular case, it is in furtherance of justice.” Matter of

Howes, 471 A.2d 689, 691 (Me. 1984). For the following reasons, we conclude

that, under the facts and circumstances of this case, the court’s decision not to

provide for transitional arrangements for Zacharia was not in furtherance of justice

and that the court abused its discretion by refusing to terminate the guardianship

without also implementing transitional arrangements.

      [¶17] First, the uncontested evidence indicated that, with the assistance of

transitional arrangements, Hill would be fit to parent Zacharia. Verna Boyington,

Zacharia’s mental health therapist, recommended that the Wallses retain custody of
12

Zacharia, but that the Wallses and Hill work together to attend training, counseling,

and parenting services in order for Zacharia to establish a relationship with Hill.

Similarly, the GAL recommended that, given Hill’s record of participating in

services, the guardianship be terminated so that Hill may voluntarily work with

parenting services and counselors to ensure a smooth transition for Zacharia to her

custody. Linda Walls likewise expressed her openness to Zacharia forming a bond

with Hill with the help of transitional arrangements.

         [¶18] In spite of this evidence, the court declined to implement transitional

services for Zacharia and found Hill unfit to regain custody because of “concerns

about [Hill’s] ability to meet Zacharia’s needs”; because of evidence indicating

that “the increase in Zacharia’s anxious and nervous behavior coincide[d] with the

increase in visitation with [Hill]”; and because Zacharia has bonded with the

Wallses and “considers them family.” The court rejected the recommendations for

transitional arrangements as being “not in the best interests of the child” because

“thus far a ‘slow transition has not worked.’”5

         [¶19] In so ruling, the court placed Hill in a catch-22: the court deemed Hill

unfit because the transition had not yet been successful, but Hill cannot become fit

without further transitional arrangements and services. Absent the court ordering

     5
     The court also found that Hill “has not demonstrated her ability to appropriately and safely parent
Zacharia.” This finding is both contrary to the applicable burden of proof, see Guardianship of David C.,
2010 ME 136, ¶ 7, 10 A.3d 684, and is not supported by competent evidence in the record.
                                                                                   13

transitional arrangements, there is little prospect of Hill becoming fit because the

guardians have obstructed her contact with Zacharia and are unwilling to allow

him to visit Hill in her home until Zacharia, who is five, decides that he wants to

go. Because the court may dismiss subsequent petitions for termination of the

guardianship unless there has been a substantial change of circumstances,

18-A M.R.S. § 5-212(d), the court’s refusal to implement any transitional

arrangements, coupled with the Wallses’ resistance to making Zacharia available

for visitations with Hill, creates a barrier to any prospective substantial changes of

circumstances that would support termination of the guardianship. This result

contravenes the purpose of 18-A M.R.S. § 5-213, which is to “give the Probate

Courts another tool in fashioning an appropriate plan for the restoration of

custodial care to the parents.”        Maine Probate and Trust Law Advisory

Commission, Report to the 125th Maine Legislature, Joint Standing Commission

on Judiciary, on L.D. 170, “An Act to Extend the Maximum Time Period for

Powers of Attorney for Minors and Incapacitated Persons” 2 (Mar. 2011).

      [¶20] When all competent evidence indicates that a parent petitioning to

terminate a guardianship has fully complied with the recommendations of the

guardian ad litem, is capable of providing for her child’s physical care, and either

is or will become capable of providing for her child’s emotional needs if she is

permitted to engage in transitional services, a court abuses its discretion when it
14

refuses to implement such arrangements. Because we conclude that the court

abused its discretion in declining to implement transitional arrangements pursuant

to 18-A M.R.S. § 5-213, see Matter of Howes, 471 A.2d at 691, it follows that the

court committed clear error in finding Hill unfit, because that finding was premised

upon the court’s erroneous denial of transitional arrangements. For these reasons,

we vacate the judgment and remand for the Probate Court to structure a transitional

arrangement pursuant to 18-A M.R.S. § 5-213 that will lead toward the timely

termination of the guardianship.

        The entry is:

                           Judgment vacated. Remanded for the Probate
                           Court to structure a transitional arrangement that
                           will lead toward the timely termination of the
                           guardianship.



On the briefs and at oral argument:

        Kirk D. Bloomer, Esq., Bloomer Law Office, P.A., Bangor, for
        appellant Kristy Lynn Bouchard Hill

        Barbara A. Cardone, Esq., Lanham Blackwell, P.A., Bangor,
        for appellees Linda and Gordon Walls



Penobscot County Probate Court docket number 2009-238-2
FOR CLERK REFERENCE ONLY
