MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision:    2020 ME 21
Docket:      Sag-19-272
Submitted
  On Briefs: November 21, 2019
Decided:     January 30, 2020

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



                                    IN RE CHILD OF RYAN F.


PER CURIAM

         [¶1] The mother and the father of a child each appeal from a judgment

entered by the District Court (West Bath, Dobson, J.) finding that the child is in

jeopardy pursuant to 22 M.R.S. § 4035 (2018). Both parents contend that the

evidence was insufficient to support the court’s finding of jeopardy, arguing

that jeopardy did not exist at the time of the hearing, and that they have

participated in all services required of them. The mother also contends that the

court erred in applying the statutory presumption contained in to 22 M.R.S.

§ 4035(2-A), arguing that the court’s application of the statute violated the

parents’ due process rights. We affirm the judgment.




  *   Although Justice Hjelm participated in the appeal, he retired before this opinion was certified.
2

                                       I. BACKGROUND

        [¶2] The following facts are drawn from the court’s findings, which are

supported by competent evidence in the record, and from the procedural

record. See In re Child of Radience K., 2019 ME 73, ¶ 2, 208 A.3d 380.

        [¶3] The Department of Health and Human Services filed a petition for a

child protection order for the child on December 14, 2018, one day after the

child was born.1 The Department alleged that the child was in jeopardy due to

the father’s prior convictions for gross sexual assault and unlawful sexual

contact involving two of his other children, the father’s failure to complete sex

offender treatment, and the mother’s inability and unwillingness to

acknowledge the threat posed by the father.

        [¶4] On that same day, the court entered an order of preliminary

protection, placing the child in the Department’s custody. The parents later

waived the opportunity for a summary preliminary hearing and the court

entered an order maintaining custody of the child with the Department. On

February 7, 2019, in order to provide time for the father to complete a


    1 At the time of the child’s birth, the Department was already involved in a separate child
protection proceeding with the mother and her other three children with a different father. In that
proceeding, a jeopardy order was entered by the District Court (Wiscasset, Sparaco, D.C.J.), in which
the court determined that the children should remain in the custody of the Department and found
that the mother’s three children were in jeopardy based, in part, on the mother permitting her
children to spend time with a convicted sex offender—the father in this appeal.
                                                                              3

psychological evaluation, the parents filed a motion to excuse the 120-day

requirement for the court to issue a jeopardy order, which the court (Field, J.)

later granted. See 22 M.R.S. § 4035(4-A).

      [¶5] The court (Dobson, J.) held a contested jeopardy hearing on May 31,

2019, at which, among others, the parents, the guardian ad litem, and the

father’s psychologist testified. At the hearing, the court denied the father’s

motion for judgment as a matter of law. See M.R. Civ. P. 50. On June 12, 2019,

the court entered a jeopardy order, finding by a preponderance of the evidence

that the child was in jeopardy. The court also determined that, because of the

father’s prior convictions for sexual offenses against minor children, the

statutory rebuttable presumption in 22 M.R.S 4035(2-A) applied to the parents

and that “the parents must rebut the presumption.” After, the father filed a

motion for additional findings of fact, see M.R. Civ. P 52(b), which the court

granted in part.

      [¶6] In support of its determination that the child was in jeopardy, the

court made the following findings of fact, which are supported by competent

evidence in the record. With regard to the father, the court found:

      In this case the threat of serious harm asserted by the State with
      respect to [the father] is the threat that he poses due to his past
      sexual offense history and his substance abuse disorder, now in
      remission for 23 years, but which if it returned could contribute to
4

      sexual offending as it has in the past. There was no testimony or
      evidence that [the father] has been drinking, and he has taken
      significant steps to keep his alcohol abuse in remission.

      ....

      [The father] presented the report and testimony of the agreed
      expert, [a psychologist]. Her report and her testimony supported
      her conclusion, based primarily on . . . [test] results that [the father]
      presented a very low risk of reoffending, 2.5%, at this time. This
      risk was reduced substantially from what existed at the time of his
      release (20.5%). . . . [The psychologist] also testified that [these
      tests] . . . should not be used to predict that any specific person will
      re-offend. She also noted that this does not mean there is no risk of
      re-offense. According to [the psychologist], there are no other sex
      offender risk assessments that are as widely used or equally valid
      to the ones . . . used. [The psychologist] also acknowledged that sex
      offenses are substantially under reported, thus it is possible,
      although there is no evidence, that [the father] has re-offended.

      [¶7] Following the father’s motion for further findings, the court found

that the psychologist “testified that there is nothing [the father] can do to

further reduce his risk of reoffense.”

      [¶8] In its jeopardy order, the court also found:

      [The father] has associated with known sex offenders which is
      concerning and probation officers advise against it, [and] this
      would be especially important if the sex offenders were around
      young children. [The father] does have rules for himself to protect
      against the risk of re-offense. . . . It is of concern to the court . . . that
      there is some risk—although according to [the psychologist] no
      greater risk than someone convicted of even a non-sexual criminal
      offense—that he will re-offend. Additionally, there will be 4 young
      children . . . living in the household. [The father] has many
      protective factors including stable employment, a solid
                                                                                                        5

        relationship with [the mother], friends, ties to the community and
        long-term sobriety.

        [The father] was required to participate in Sex Offender treatment
        during the 5 years of his probation. [The father’s] son is a sex
        offender, lifetime registrant. [The father] works with his son but
        [the son] has no contact with the children. For a period of time two
        other sex offenders . . . resided on the [the parents’] property in a
        separate mobile home or trailer [until September 2018]. After
        [these two sex offenders left] the property, [one of these
        individuals and his son] returned to the residence [and] a conflict
        ensued.[2]

        [¶9] With regard to the mother, the court found:

        [A]t first, [the mother] was not fully aware of the extent of [the
        father’s] sexual offense criminal history, but she certainly is now.
        It also appears that [the mother] did not initially appreciate the risk
        that his sex offense convictions presented to [the child]. [The
        mother] also has completed a 16 week non-offender program to
        help her to recognize the risk presented by a sex offender being
        around children and how to avoid or reduce that risk, including
        being wary of someone who favors one child or spends time solely
        or mostly with one child to the exclusion of others. She recognizes
        bathing and diaper changing and changing clothes as presenting a
        risk of re-offense. While she can articulate these very appropriate
        aids in identifying risk of re-offense, it is not apparent that she
        accepts that [the father] presents any risk and it is unclear how . . .
        she would be able to be present and awake at all times when she is
        with the children and never leave the children alone with him given
        the need to do routine errands, make medical appointments, etc on
        a 24/7 basis.

   2 Following the father’s motion for further findings, the court found that this conflict involved the
individual and his son being intoxicated at the property. Although the individual’s son had previously
lived on the parents’ property in a camper, he was, at the time of the incident, living in a tent near the
property. Additionally, when the parents returned home and discovered the individual and his son
intoxicated, the police were called and the parents “cooperated . . . and gave written statements” to
the police. No children were on the property at the time of the incident.
6



      [The mother] has had ongoing weekly mental health counseling
      sessions, has completed substance abuse and parental capacity
      evaluations, (including a protective capacity component),
      medication and case management and clean random drug screens.
      The parental capacity evaluation was done May 17, 2019, but no
      report [w]as available at time of hearing. She and [the father] have
      perfect attendance at their weekly visits with [their child].

      [¶10] In granting the father’s motion for further findings of fact, the court

found that the father “told [the mother] of his convictions, . . . made her aware

of warnings signs, . . . and informed her that she should make him aware of any

such conduct if she became aware of it.” Despite these actions by the father, the

court found that the mother was not “fully aware of [the father’s] history and .

. . not fully aware of the risks that history posed or whether [the father] had

completed all sex offender treatment required of him.”

      [¶11] Additionally, the court found:

      [The mother] and her three older children lived with [the father]
      for approximately one year before [the older children were] taken
      into DHHS custody, [and] at no time during or since [being placed
      in the Department’s custody] did any of the children report any
      improper or problematic conduct by [the father]. Following their
      removal to DHHS custody, all three children were subjected to
      evaluations . . . which also disclosed no evidence of abuse.

      [¶12] With regard to both parents, the court found:

      The risk analysis presented by [the psychologist] apparently
      represents the best available measures of risk of re-offense and
      alone would present a fair prima facie case to rebut the
                                                                               7

      presumption of [j]eopardy provided by [22 M.R.S. § 4035(2-A)].
      However, the court finds it has not been established that [the
      mother] has the necessary protective capacity (to be determined in
      part by the parental capacity evaluation) nor logistical capability
      needed to overcome the presumption at this time.

      It is clear that both parents have made tremendous gains in
      addressing the issues they face and in complying with the
      requirements DHHS has identified and have a good and bonded
      relationship with [the child]. It is very clear that both parents have
      done everything they have been asked to do to date to reunify with
      [the child].

      ....

      [U]nless [the Department and the Guardian ad litem] are prepared
      to conclude that even a sex offender with a “very low risk” of
      re-offense should never be around children, then there must be a
      path forward identified to assist the [parents] to reunify with [the
      child].

      [¶13] Based on these findings and its determination that the child was in

jeopardy, the court concluded that additional services were required in order

to achieve the goal of reunification. These services included, among others, a

reassessment of the mother’s protective capacity after the completion of the

psychologist’s evaluation; a second evaluation of the father’s risk of

reoffending; further sex offender treatment for the father; and “the

development of clear protocols for coverage for [the mother] when she is not

able to be present in the home with her children.”
8

         [¶14] The parents each filed timely notices of appeal. See M.R. App. P.

2B(c)(1), (2); 22 M.R.S. § 4006 (2018).

                                        II. DISCUSSION

A.       Rebuttable Presumption

         1.    Title 22 M.R.S. § 4035(2-A)

         [¶15] Pursuant to 22 M.R.S. §4035(2-A), a person’s convictions or

adjudications for certain sex offenses against minors give rise to a rebuttable

presumption that any custody or contact by that person with a child would

create circumstances of jeopardy. The statute provides in part

         There is a rebuttable presumption:

         A. That the person seeking custody or contact with the child would
         create a situation of jeopardy for the child if any contact were to be
         permitted and that contact is not in the best interest of the child if
         the court finds that the person:

               (1) Has been convicted of an offense listed in [19-A M.R.S.
               § 1653(6-A)(A) (2018)]3 in which the victim was a minor at
               the time of the offense and the person was at least 5 years
               older than the minor at the time of the offense except that, if
               the offense was gross sexual assault under [17-A M.R.S.
               § 253(1)(B)-(C) (2018)] . . . and the minor victim submitted
               as a result of compulsion, the presumption applies regardless

     These offenses include sexual exploitation of a minor, 17-A M.R.S. § 282 (2018); gross sexual
     3

assault, 17-A M.R.S. § 253 (2018); sexual abuse of minors, 17-A M.R.S. § 254 (2018); unlawful sexual
contact, 17-A M.R.S. § 255-A (2018); visual sexual aggression against a child, 17-A M.R.S. § 256
(2018); sexual misconduct with a child under 14 years of age, 17-A M.R.S. § 258 (2018); solicitation
of a child to commit a prohibited act, 17-A M.R.S. § 259-A (2018); or any offense in another
jurisdiction that “involves conduct that is substantially similar.” 19-A M.R.S. § 1653(6-A)(A) (2018).
                                                                                                9

               of the ages of the person and the minor victim at the time of
               the offense;

       . . . and

       B. That the parent or person responsible for the child would create
       a situation of jeopardy for the child if the parent or person allows,
       encourages or fails to prevent contact between the child and a
       person who:

               (1) Has been convicted of an offense listed in [19-A M.R.S.
               § 1653(6-A)(A)] in which the victim was a minor at the time
               of the offense and the person was at least 5 years older than
               the minor at the time of the offense except that, if the offense
               was gross sexual assault under [17-A M.R.S. § 253(1)(B)-(C)]
               and the minor victim submitted as a result of compulsion, the
               presumption applies regardless of the ages of the person and
               the minor victim at the time of the offense[.]

22 M.R.S. § 4035(2-A)(A)-(B). In each instance, the parent or person seeking

custody or contact with a child “may produce evidence to rebut the

presumption.” Id.

       2.      Parental Rights and Due Process

       [¶16]       The mother contends that the court erred in applying this

presumption regarding the father’s prior convictions for sex offenses against

children, arguing that the court impermissibly shifted the burden of proof to

the parents in violation of their due process rights.4 We review de novo


   4 The Department contends that the mother did not adequately preserve her argument regarding
the application of the statutory rebuttable presumption because it was not raised before the trial
court. Contrary to the Department’s contention, we conclude that the issue was sufficiently raised
10

whether a statute is unconstitutional as applied. In re Evelyn A., 2017 ME 182,

¶ 25, 169 A.3d 914.

       [¶17]       To address the constitutionality of the application of this

presumption during a jeopardy hearing, we first consider the interests at stake

and the protections afforded parents in a child protection proceeding. Only

then can we evaluate the extent to which the presumption at issue here affects

the parents’ due process rights and whether any evidentiary burden to rebut

the presumption may be placed on the parents during a jeopardy hearing.

       [¶18] In the context of child protection proceedings, “due process is a

function of the private interest affected, the risk of error inherent in the process,

and the nature of the governmental interest at issue in the process being

challenged.” In re Emma B., 2017 ME 187, ¶ 18, 169 A.3d 945. Because these

factors vary depending on the interests at stake in each stage of a protection

proceeding, “[t]he nature of that process” will vary among the stages. Id.

       [¶19] It is well established that “parents have a fundamental liberty

interest ‘to make decisions concerning the care, custody, and control of their

children,’” Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291 (quoting


before the court and, thus, properly preserved for discussion on appeal, because the Department’s
petition for a protection order cited the father’s prior convictions, the court addressed the statutory
presumption, and the mother sought, in effect, to rebut the presumption during the jeopardy hearing.
                                                                                 11

Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)), and

that such a “fundamental and important right to raise one’s children” is

protected by the due process clause of both the United States Constitution and

the Maine Constitution, In re Robert S., 2009 ME 18, ¶ 13, 966 A.2d 894; see In

re Christmas C., 1998 ME 258, ¶ 10, 721 A.2d 629 (“the relationship between

parent and child is constitutionally protected and . . . due process must be

afforded to a parent before the state may interfere with that relationship.”).

      [¶20] A parent’s “constitutional liberty interest in family integrity is not,

however, absolute, nor forever free from state interference,” Rideout, 2000 ME

198, ¶ 19, 761 A.2d 291, and “[t]his is true in great part because the rights of

another person—the child—must also be protected by the State,” Pitts v. Moore,

2014 ME 59, ¶ 12, 90 A.3d 1169; see In re Emma B., 2017 ME 187, ¶ 12, 169

A.3d 945 (quotation marks omitted) (noting that the State has a

“well-established parens partriae interest in guarding the well-being of

children”); 22 M.R.S. § 4003 (2018) (“the right to family integrity is limited by

the right of children to be protected from abuse and neglect.”). Thus, the State

has “a compelling interest in limiting, restricting, or even terminating a parent’s

rights when harm to the child will result from the absence of such governmental

interference.” Pitts, 2014 ME 59, ¶ 14, 90 A.3d 1169.
12

       [¶21] Accordingly, in addressing these varying interests, we have held

that “judicial decisions affecting parenting rights fall on a continuum based on

the nature and extent of the interests and rights affected, and the degree of

finality of the different types of decisions." In re Emma B., 2017 ME 187, ¶ 19,

169 A.3d 945 (emphasis added) (quotation marks omitted).

       [¶22] A hearing on a petition to terminate a person’s parental rights, for

instance, falls on one end of this “continuum,” see Guardianship of Chamberlain,

2015 ME 76, ¶ 23, 118 A.3d 229, at which the State “seeks not only to infringe

on a fundamental liberty interest, but to end it,” In re Christmas C., 1998 ME

258, ¶ 12, 721 A.2d 629 (alterations omitted) (quotation marks omitted). At

that stage of the child protection proceedings, “the court’s focus must be on the

[state’s] allegations of parental unfitness.” In re Scott S., 2001 ME 114, ¶ 21, 775

A.2d 1144. Thus, a court‘s termination of a person’s parental rights is subject

to a higher burden of proof—clear and convincing evidence—because such a

decision “may lead to a complete and final severance of the parent’s

relationship with [a] child.” In re Christmas C., 1998 ME 258, ¶ 13, 721 A.2d

629.

       [¶23] Our analysis of the application of a rebuttable presumption during

a termination proceeding in In re Evelyn A., 2017 ME 182, ¶¶ 24-32, 169 A.3d
                                                                             13

914, was therefore guided by the finality of termination and the fundamental

interests at stake in such a proceeding. There, in analyzing a presumption from

which a court “may presume” a finding of parental unfitness, see 22 M.R.S.

§ 4055(1-A) (2018), we concluded that the presumption at issue was “akin to a

‘presumption’ in a criminal case” that allows a court to infer a finding of

unfitness, but does not shift the burden of proof to the parents. Id. ¶¶ 30-31;

see In re Addilyn R., 2017 ME 236, ¶ 4, 176 A.3d 184 (stating that a court may

treat the presumption as a “pathway to an inference”). When doing so, a court

“may reach an ultimate finding of unfitness only if the evidence in its entirety

supports that finding by clear and convincing evidence.” In re Evelyn A., 2017

ME 182, ¶ 31, 169 A.3d 914. As such, we held that the burden to demonstrate

a finding of unfitness “remains always on the Department, and the parents have

neither a burden of production nor a burden of persuasion or proof” regarding

the statutory presumption in section 4055(1-A). Id. ¶ 32.

      [¶24] In this case, the parents appeal from a jeopardy order, a judicial

decision that “provide[s] protection to [a] child,” In re Christmas C., 1998 ME

258, ¶ 4, 721 A.2d 629, and, accordingly, is “on the less-intrusive end of [the]

continuum” of decisions affecting parental rights, In re Emma B., 2017 ME 187,

¶ 19, 169 A.3d 945. This is true because, unlike a proceeding for termination
14

of parental rights, the court’s entry of a jeopardy order “infringes upon the

parents’ fundamental rights rather than terminates them.” In re Matthew W.,

2006 ME 67, ¶ 8, 903 A.2d 333, overruled on other grounds by In re B.C., 2012

ME 140, ¶ 14 n.2, 58 A.3d 1118. Such an order allows the State to “interced[e]

in the family to protect the child,” In re Emma B., 2017 ME 187, ¶ 19, 169 A.3d

945 (quotation marks omitted), when a child is subject to “serious abuse or

neglect, as evidenced by . . . serious harm or threat of serious harm,” including

the threat of “sexual abuse or exploitation,” 22 M.R.S. § 4002(6), (10) (2018).

At a jeopardy hearing, “[a] child not only has an interest in family integrity . . .

[but] has a substantial interest in protection from a jeopardous environment.”

In re Emma B., 2017 ME 187, ¶ 18, 169 A.3d 945 (quotation marks omitted).

Thus, a parents’ interests in the care and custody of their child is balanced

against the state’s interest in the welfare of that child, an interest that “is

particularly acute in a jeopardy proceeding, where the immediate risk to the

child’s safety and welfare is at issue.” Id. ¶ 20. As such, due process requires a

lower burden of proof—preponderance of the evidence—when balancing the

interests at stake at a jeopardy hearing. See 22 M.R.S. § 4035(2); In re Christmas

C., 1998 ME 258, ¶ 13, 721 A.2d 629; In re Sabrina M., 460 A.2d 1009, 1015-17
                                                                                 15

(Me. 1983). In support of the standard of preponderance of the evidence, we

have previously explained that

      [a]lthough a stricter standard creates a smaller risk that parental
      rights will be erroneously curtailed in a child protection
      proceeding, it also creates a greater risk that the child will be forced
      to remain in or return to a jeopardous environment.

In re Sabrina M., 460 A.2d at 1017.

      [¶25] Further, a jeopardy order does not entail the same degree of

finality as a termination proceeding. As a “nonpermanent interim order,”

Guardianship of Chamberlain, 2015 ME 76, ¶ 26, 118 A.3d 229, jeopardy orders

“are neither final nor irrevocable . . . and may be, and frequently are, modified,”

In re Emma B., 2017 ME 187, ¶ 19, 169 A.3d 945 (alterations omitted)

(quotation marks omitted); see In re Christmas C., 1998 ME 258, ¶ 13, 721 A.2d

629 (stating that “rehabilitating and reunifying the family is a normal part of [a

jeopardy] order”). Statutory protections require continued review of a court’s

jeopardy order, see 22 M.R.S. § 4038(1) (2018), and the development of a

reunification plan for a family, see 22 M.R.S. § 4041(1-A) (2018), increasing the

chances that a parent’s interests will only be “temporarily curtailed,” In re

Sabrina M., 460 A.2d at 1017, after the issuance of a jeopardy order.

      [¶26] Therefore, having determined that “the nature and extent of the

interests and rights affected, and the degree of finality,” In re Emma B., 2017 ME
16

187, ¶ 19, 169 A.3d 945, in a jeopardy hearing are distinguishable from those

in a termination proceeding, we decline to extend to a jeopardy proceeding our

holding in In re Evelyn A., 2017 ME 182, ¶¶ 24-32, 169 A.3d 914, a termination

case, that “parents have neither a burden of production nor a burden of

persuasion or proof” to rebut the statutory presumption.5 Rather, we conclude

that at a jeopardy hearing, where a court must determine whether a child faces

circumstances of jeopardy to the child's health or welfare, the presumption in

section 4035(2-A) does not violate the parents’ due process rights by placing a

part of the evidentiary burden on the parent—that is, a burden to produce

evidence to rebut the presumption that some risk of jeopardy to a child is

present as a result of a person’s prior convictions for certain sexual offenses

against minors. Cf. In re Child of Nicholas G., 2019 ME 13, ¶¶ 23-24, 200 A.3d

783 (applying an analogous presumption pursuant to 19-A M.R.S. § 1653(6-B)

(2018) in an order establishing parental rights and responsibilities, and

affirming the court’s finding that a parent did not rebut the presumption).

Accordingly, at this stage of a child protection proceeding, where a child “has a



   5  We recognize, too, that the statutory language in the presumptions applicable to each
proceeding allows for different levels of discretion in the court’s application of the presumption.
Compare 22 M.R.S. § 4035(2-A) (2018) (in a jeopardy proceeding, “[t]here is a rebuttable
presumption . . . .”) (emphasis added), with 22. M.R.S. § 4055(1-A) (2018) (in a termination
proceeding, “[t]he court may presume . . . .”) (emphasis added).
                                                                                                     17

substantial interest in protection from a jeopardous environment,” In re

Emma B., 2017 ME 187, ¶ 18, 169 A.3d 945 (quotation marks omitted), a parent

or person seeking contact or custody may be required to produce some

evidence to rebut the presumption that a person’s convictions or adjudications

for certain sexual offenses would create a situation of jeopardy for the child.6

The ultimate burden—the burden of persuasion or proof—remains with the

Department, however, and it is the Department that must prove, by a

preponderance of the evidence, that a child faces circumstances of jeopardy.

See 22 M.R.S. 4035(2).

        3.      Court’s Application of the Presumption

        [¶27] In this case, after finding that the father had been convicted of

sexual offenses against minor children, the court applied the statutory

presumption and stated that “the parents must rebut the presumption.” In

applying the presumption, the court found that

        [t]he risk analysis presented by [the psychologist] apparently
        represents the best available measures of risk of re-offense and
        alone would present a fair prima facie case to rebut the
        presumption of [j]eopardy provided by [22 M.R.S. § 4035(2-A)].


   6 We do not disturb our holding in In re Evelyn A., 2017 ME 182, ¶¶ 24-32, 169 A.3d 914, and we

reiterate that, in light of the finality of a termination of parental rights proceeding, no burden may be
placed on the parents at that stage of a child protection proceeding. The burden in a termination
hearing “remains always on the Department, and the parents have neither a burden of production
nor a burden of persuasion or proof.” Id. ¶ 32.
18

         However, the court finds it has not been established that [the
         mother] has the necessary protective capacity (to be determined in
         part by the parental capacity evaluation) nor logistical capability
         needed to overcome the presumption at this time.

Thus, contrary to the mother’s contention, the court did not conclude that the

father rebutted the statutory presumption. Rather, the court determined that

the psychologist’s risk analysis “alone would present a fair prima facie case [for

the father] to rebut the presumption of jeopardy” (emphasis added). However,

the psychologist’s report and testimony were not the only evidence before the

court. The Department presented additional evidence that supports the court’s

determination that the child was then in circumstances of jeopardy based on

the father’s convictions, and the mother’s inability to protect the child from

harm.7 In light of the court’s findings, it is clear that the court did not shift—to

either the mother or the father—the Department’s burden to prove, by a

preponderance of the evidence, that the child was in circumstances of jeopardy.

         [¶28] Therefore, the court did not err in applying the presumption in

section 4035(2-A), nor did it violate the parents’ due process rights.




     At the time of the hearing, the court was awaiting the results of a parental capacity evaluation
     7

of the mother.
                                                                              19

B.    Sufficiency of the Evidence

      [¶29] Having concluded that the court did not err in applying the

presumption in section 4305(2-A), we now address whether the court’s

ultimate determination, by a preponderance of the evidence, of jeopardy was

clearly erroneous. See 22 M.R.S. § 4035(2); In re Nicholas S., 2016 ME 82, ¶ 9,

140 A.3d 1226. Each parent contends that the evidence was not sufficient to

support the court’s findings determining that the child was in circumstances of

jeopardy.

      [¶30] We review the court’s findings for clear error and “will affirm the

decision unless there is no competent record evidence that can rationally be

understood to establish as more likely than not that the child was in

circumstances of jeopardy to his [or her] health and welfare.” In re Nicholas S.,

2016 ME 82, ¶ 9, 140 A.3d 1226 (quotation marks omitted).

      [¶31] A court’s determination that a child is in circumstances of jeopardy

must be supported by a preponderance of the evidence. 22 M.R.S. § 4035(2).

“Jeopardy” is defined as “serious abuse or neglect, as evidenced by . . . serious

harm or threat of serious harm.” 22 M.R.S. § 4002(6). “Serious harm” means

serious physical injury, “serious mental or emotional injury,” or “sexual abuse

or exploitation.” Id. § 4002(10), (11).
20

      [¶32] When determining jeopardy, a court may rely on both past and

prospective evidence of serious harm to a child. See In re E.L., 2014 ME 87, ¶ 14,

96 A.3d 691; see also In re Tabitha R., 2003 ME 76, ¶ 7, 827 A.2d 830 (“Evidence

of past jeopardy is relevant to the future, and in the case of a custodial parent it

is highly probative, but the question before the court is necessarily whether

there is prospective jeopardy.”). “In child protection proceedings, what is past

is often prologue regarding the threat of serious harm posed by [a] parent.”

In re E.L., 2014 ME 87, ¶ 14, 96 A.3d 691.

      [¶33]    Contrary to the parents’ contentions, the court properly

considered all of the evidence presented, and this evidence was sufficient to

support the court’s determination that jeopardy existed.                Here, that

determination was supported by past evidence of the father’s convictions for

sexual offenses against minor children and the mother’s willingness to allow

her children to spend time with convicted sex offenders. Additionally, there

was evidence of the prospective risk of reoffense by the father and evidence

that the mother would be unable, at the time of the hearing, to exhibit the

“protective capacity . . . []or logistical capability” necessary to adequately

protect her child from the risk of serious harm. Although the psychologist

testified that the father presented a “very low risk of reoffending,” there is,
                                                                              21

nonetheless, sufficient evidence in the record to support the court’s findings

establishing jeopardy, by a preponderance of the evidence, as to both parents.

See 22 M.R.S. § 4035(2); In re E.A., 2015 ME 37, ¶¶ 8-9, 114 A.3d 207.

      [¶34]   We reiterate that, in applying the presumption in section

4035(2-A), the ultimate burden of persuasion in a jeopardy hearing must

always remain with the Department. See 22 M.R.S. § 4305(2). It is only the

burden of production—a burden to produce evidence to rebut the presumption

that some risk of jeopardy to a child is present as a result of a person’s prior

convictions for certain sexual offenses against minors—that may be shifted to

a parent in a jeopardy hearing, and this burden only arises when the court

applies the presumption in section 4035(2-A). Here, there was “competent

record evidence that can rationally be understood to establish as more likely

than not that the child was in circumstances of jeopardy to his or her health and

welfare,” In re Nicholas S., 2016 ME 82, ¶ 9, 140 A.3d 1226 (alterations omitted)

(quotation marks omitted), and this evidence demonstrated a risk of serious

harm to the child. As such, the court did not clearly err in determining that the

child was at risk of “serious harm or [a] threat of serious harm” in the custody

of the parents. 22 M.R.S. §§ 4002(6), 4035(2).
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C.    Jeopardy Order

      [¶35] We note, too, that the court’s jeopardy order provided a balanced,

measured response to the interests at stake in this proceeding and to the level

of risk to the child. The court found that “there must be a path forward

identified to assist the [parents] to reunify with [the child]” and ordered

additional services for the parents in order to achieve this goal of reunification,

including “[i]ncreased monitored or supervised visits,” further evaluations of

the parents, and the development of “clear protocols” to provide care for the

child when the mother will not be present in the home. Participation in such

services ensures that, through the continued reunification efforts of the

Department and the parents, this “path forward” for the mother and father will

help alleviate any circumstances of jeopardy and adequately protect the child’s

health and safety.

      The entry is:

                     Judgment affirmed.
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Julian Richter, Esq., Richter Law, LLC, Gardiner, for appellant mother

James M. Mason, Esq., Handelman & Mason LLC, Brunswick, for appellant father

Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services


West Bath District Court docket number PC-2018-24
FOR CLERK REFERENCE ONLY
