MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	208	
Docket:	      Cum-17-143	
Submitted	
  On	Briefs:	 September	27,	2017	
Decided:	     October	24,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                 IN	RE	ALIYAH	A.	et	al.	
	
	
SAUFLEY,	C.J.	

       [¶1]		The	question	presented	in	this	appeal	is	whether	the	court	erred	in	

finding	an	aggravating	factor	as	to	the	father	of	Aliyah	A.	and	her	five	younger	

siblings	based	on	conduct	that	is	“heinous	or	abhorrent	to	society,”	22	M.R.S.	

§	4002(1-B)(A)(1)	 (2016),	 when	 the	 father	 left	 the	 children	 living	 with	 their	

mother	 in	 squalid	 conditions	 without	 adequate	 food	 or	 heat.	 	 The	 father	

appeals	from	the	finding	of	an	aggravating	factor	as	part	of	a	jeopardy	order	

entered	 by	 the	 District	 Court	 (Portland,	 Powers,	 J.)	 after	 a	 contested	 hearing.		

We	 discern	 no	 error	 in	 the	 court’s	 finding	 of	 an	 aggravating	 factor,	 and	 we	

affirm	the	judgment.	

	      [¶2]		Based	on	competent	evidence	in	the	record,	the	court	found,	by	a	

preponderance	 of	 the	 evidence,	 that	 the	 six	 children	 in	 this	 matter	 were	 in	

circumstances	 of	 jeopardy	 to	 their	 health	 or	 welfare	 if	 placed	 in	 either	
    2	

parent’s	care.1		See	22	M.R.S.	§	4035(2)	(2016).		The	court	found	the	existence	

of	an	aggravating	factor	as	to	the	father	for	his	treatment	of	the	children	in	a	

manner	 that	 was	 “heinous	 or	 abhorrent	 to	 society”	 because	 he	 left	 the	 six	

children	 in	 the	 mother’s	 care	 for	 weeks,	 without	 providing	 support	 or	

checking	 on	 them,	 when	 he	 knew	 that	 the	 conditions	 in	 the	 home	 were	

unsanitary	and	unsafe.		Id.	§	4002(1-B)(A)(1).		Accordingly,	the	court	entered	

an	order	authorizing	the	Department	of	Health	and	Human	Services	to	cease	

reunification	 efforts	 with	 the	 father.	 	 See	 22	M.R.S.	 §§	4036(1)(G-2),	

4041(2)(A-2)(1)	(2016).2			

	            [¶3]	 	 The	 court	 based	 its	 determinations	 on	 detailed	 findings	 of	 fact,	

including	the	following:	

             The	 three	 oldest	 children	 were	 in	 DHHS	 custody	 in	 2011	 due	 to	
             neglect	and	returned	to	the	parents	with	a	dismissal	of	the	case	in	
             2013.		Jeopardy	in	that	case	in	2011	was	“significant	neglect	based	
             on	 unsafe	 and	 unhealthy	 living	 conditions,	 exposure	 to	 unsafe	
             people,	 and	 the	 developmental	 delays	 of	 Aliyah	 and	 [the	 next	
             oldest	 child].”	 	 [The	 guardian	 ad	 litem	 in	 this	 case]	 was	 also	
             involved	in	the	2011	case.			
             	


   1		The	mother	has	not	brought	an	appeal,	and	we	do	not	discuss	the	court’s	decision	with	respect	

to	her	further.	
         2		“Although	the	determination,	at	the	time	of	the	jeopardy	proceeding,	that	aggravating	factors	

exist	is	appealable	because	it	comprises	a	portion	of	the	jeopardy	finding,	the	disposition	ordered	
by	a	court	after	it	makes	that	finding	is	not	appealable.”		In	re	B.C.,	2012	ME	140,	¶	12,	58	A.3d	1118;	
see	22	M.R.S.	§	4006	(2016).	
3	

     	      On	 December	 2,	 2016	 [the	 mother]	 was	 at	 home,	 arrested,	
     and	 jailed	 for	 violating	 bail	 conditions.	 	 [The	 father]	 was	 not	
     around.	 	 He	 later	 said	 he	 had	 left	 them	 5	 months	 ago.	 	 DHHS	
     entered	 the	 home	 and	 found	 it	 to	 be	 in	 a	 “deplorable”	 condition.		
     There	 were	 feces	 on	 walls,	 cat	 urine	 on	 the	 floor,	 and	 garbage	
     piled	 high.	 	 The	 house	 smelled	 of	 feces	 and	 urine	 and	 trash	 was	
     everywhere.	 	 [The	 two	 youngest	 children]	 were	 purple,	 swollen,	
     and	 cold	 .	 .	 .	 .	 	 [One	 of	 them]	 was	 face	 down	 on	 a	 mattress	 in	 a	
     soiled	diaper	and	had	no	pants	or	socks	on.		The	four	children	at	
     home	 were	 taken	 for	 evaluation	 to	 Maine	 Medical	 Center.	 	 The	
     two	 youngest	 had	 frostbite	 and	 stayed	 a	 few	 days	 there.	 	 The	
     other	two	were	medically	fine.		Portland	 Water	 District	 had	 shut	
     off	 water	 to	 the	 home	 several	 weeks	 before	 December	 2.	 	 The	
     home	 itself	 was	 cold,	 certainly	 under	 60	 degrees.	 	 There	 were	
     some	 broken	 windows	 in	 the	 home.	 	 The	 Portland	 Police	
     Department	 civilian	 coordinator	 who	 also	 went	 to	 the	 home	 on	
     December	2,	and	described	its	condition	as	“disgusting,	filthy,	and	
     cluttered.”	 	 She	 said	 it	 was	 the	 worst	 building	 she	 had	 entered	
     during	 her	 15	 years	 of	 employment.	 	 She	 noted	 [that	 one	 of	 the	
     younger	 children]	 picked	 up	 crumbs	 .	 .	 .	 and	 tried	 to	 eat	 them.		
     [The	 mother]	 said	 the	 children	 were	 not	 hungry.	 	 The	 children	
     needed	socks	and	shoes.		The	oldest	two	also	came	to	the	hospital	
     from	school	later	that	day.	
     	
     	      The	 Portland	 code	 enforcement	 officer	 had	 gone	 to	 this	
     home	in	January	2015	and	the	family	vacated	for	5	days	to	clean	
     up	the	home.		He	went	again	on	December	2,	2016.	.	.	.	He	saw	the	
     cluttered	 home,	 which	 had	 a	 space	 heater	 inside	 with	 broken	
     windows	to	the	outside.		Shards	of	glass	were	within	reach	of	the	
     children.		It	was	very	dark	and	cold	inside.		He	said	the	home	was	
     unsafe	 due	 to	 life	 safety	 issues,	 including	 no	 functioning	 smoke	
     detector.		He	described	the	home	as	being	in	the	“top	two”	he	has	
     seen	 in	 terms	 of	 its	 bad	 condition.	 	 The	 building	 has	 not	 been	
     inhabited	 since	 then	 and	 remains	 boarded	 up	 with	 no	 water	 or	
     power.	 	 The	 water	 had	 been	 shut	 off	 for	 at	 least	 a	 week	 before	
     December	2,	2016.	.	.	.	
     	
4	

     	       These	 parents	 have	 been	 in	 a	 relationship	 for	 about	 10	
     years.		Their	relationship	developed	problems	earlier	in	2016,	and	
     [the	 father]	 would	 be	 gone,	 probably	 out	 of	 state,	 for	 days	 at	 a	
     time.		He	says	he	has	not	been	staying	in	the	Portland	home	since	
     September	 6,	 2016.	 	 He	 has	 a	 new	 girlfriend,	 with	 whom	 he	 has	
     been	 staying	 since	 October	 2016.	 	 The	 mother	 says	 he	 left	 the	
     home	on	October	27,	2016.		He	has	not	been	a	primary	caregiver	
     and	has	had	some	recent	one	hour	supervised	visits	with	children.		
     [The	 father]	 claims	 to	 want	 to	 reunify.	 	 He	 signed	 an	 updated	
     reunification	plan	at	a	team	meeting	on	January	24,	2017.		He	says	
     the	 children	 were	 all	 in	 good	 health,	 that	 the	 home	 was	 not	 a	
     mess,	 and	 that	 he	 was	 unaware	 of	 the	 youngest	 children’s	
     developmental	delays	when	he	left	on	September	6,	2016.		Those	
     comments	are	not	likely	accurate	based	on	other	evidence	in	this	
     case.	
     	
     	       .	 .	 .	 .	 Neither	 parent	 accepts	 any	 responsibility	 for	 the	
     serious,	long-term	neglect	and	its	impact	on	all	the	children.	.	.	.	
     	
     	       .	.	.	.		
     	
     	       The	 GAL	 concludes	 that	 the	 children	 are	 in	 jeopardy	 and	
     have	 suffered	 from	 long-term	 neglect,	 which	 has	 been	 most	
     obvious	in	the	four	youngest	children.		The	two	youngest	showed	
     signs	of	malnutrition	as	well.		He	notes	all	six	have	some	level	of	
     special	 needs	 and	 have	 not	 received	 regular	 medical	 and	 other	
     services	 to	 meet	 their	 individual	 needs.	 	 The	 needs	 are	 likely	
     related	 to	 their	 long-term	 neglect.	 	 The	 parents	 have	 taken	 no	
     responsibility	 for	 their	 role.	 	 The	 GAL	 [indicated]	 “this	 lack	 of	
     understanding	 is	 dangerous	 and	 unlikely	 to	 change	 without	 an	
     extreme	 shift	 in	 thinking	 by	 each	 parent.”	 	 The	 children’s	 recent	
     situation	is	worse	than	it	was	four	years	ago.		He	concludes	that	it	
     is	 unlikely	 either	 parent	 can	 ever	 care	 for	 the	 children	 and	 meet	
     their	needs.		All	the	children	are	doing	better	in	foster	care	even	
     though	all	have	issues.			
     	
     	       .	.	.	.	
     	
5	

     	        These	 same	 parents	 had	 issues	 involving	 their	 serious	
     neglect	 of	 the	 three	 oldest	 children	 in	 2011.	 	 They	 regained	
     custody	 in	 2013	 with	 the	 case	 being	 dismissed.	 	 In	 December	
     2016	all	six	children,	ranging	from	9	months	to	9	years	old,	were	
     found	living	in	a	cold,	unsanitary,	and	unsafe	home.		The	mother	
     felt	 there	 was	 essentially	 nothing	 wrong	 with	 the	 situation.	 	 The	
     father	has	been	in	and	out	of	the	home	since	the	summer	of	2016	
     and	 totally	 out	 of	 the	 home	 since	 either	 September	 6,	 2016	 or	
     October	27,	2016.		He	has	given	no	financial	support	since	he	left	
     at	 least.	 	 He	 also	 says	 the	 children	 were	 fine	 when	 he	 last	 saw	
     them	in	the	fall	of	2016,	which	cannot	be	accurate.			
     	
     	        The	 photos	 and	 testimony	 demonstrate	 that	 the	 family	
     home	 owned	 since	 2011	 was	 in	 disgusting	 condition	 and	 not	
     suitable	for	raising	these	children.	.	.	.	That	condition	was	clearly	
     in	existence	for	some	time,	not	just	on	December	2,	2016.		Home	
     cleanliness	 issues	 were	 also	 present	 in	 this	 family’s	 2011	 child	
     protection	case.		There	had	been	no	water	in	the	home	for	several	
     days	 or	 weeks.	 	 The	 temperature	 was	 cold	 enough	 to	 cause	
     frostbite.	 	 At	 least	 two	 of	 the	 children	 did	 not	 appear	 well.	 	 The	
     parents	did	not	take	the	children	regularly	to	medical	and	dental	
     visits.	 	 They	 did	 not	 recognize	 the	 numerous	 developmental	
     delays	 which	 are	 ongoing	 and	 in	 need	 of	 serious	 services.	 	 The	
     father	and	mother	were	oblivious	to	these	serious	issues	and	were	
     not	getting	services	to	those	children.		The	father	gave	no	support	
     and	 moved	 in	 with	 his	 new	 girlfriend	 in	 October	 2016,	 not	
     spending	 any	 real	 time	 with	 the	 children	 before	 this	 case	 began.	
     .	.	.	 He	 should	 have	 been	 present	 at	 least	 enough	 to	 check	 on	 his	
     children	 even	 if	 he	 had	 left	 the	 home.	 	 His	 responsibility	 for	 the	
     horrible	neglect	is	as	clear	to	the	court	as	the	mother’s,	who	was	
     present	daily	in	the	home.		No	child	should	live	under	the	squalid	
     conditions	 shown	 above,	 and	 no	 parent	 should	 allow	 such	
     conditions	to	exist.	
     	
     	        .	.	.	.	
     	
     	        This	case	presents	one	of	the	worst	factual	backgrounds	this	
     court	 has	 ever	 seen	 regarding	 long-term	 poor	 parenting,	
    6	

         deplorable	 living	 conditions,	 and	 significant	 negative	 impacts	 on	
         the	 children.	 	 These	 parents	 have	 shown	 that	 they	 cannot	
         recognize	their	liabilities	and	the	impact	on	their	children.		They	
         are	not	likely	to	be	rehabilitated	by	participating	in	services,	nor	
         are	 they	 likely	 to	 be	 able	 to	 meet	 their	 children’s	 needs,	 protect	
         them,	 and	 reunify	 with	 any	 of	 them.	 	 There	 is	 no	 sense	 under	
         these	 facts	 to	 spend	 additional	 time,	 energy,	 and	 money	 on	
         reunification	that	has	almost	no	chance	of	success.			
         	
	        [¶4]	 	 The	 father	 does	 not	 contest	 the	 finding	 of	 jeopardy,	 which	 is	

supported	by	the	court’s	findings	and	the	evidence	presented	at	the	jeopardy	

hearing.	 	 See	 id.	 §	 4035(2).	 	 He	 contests	 only	 the	 finding	 of	 an	 aggravating	

factor,	 arguing	 that	 his	 conduct	 was	 not	 “heinous	 or	 abhorrent	 to	 society”	

because	he	was	not	the	person	responsible	for	the	conditions	in	the	mother’s	

home	and	that	there	is	no	evidence	showing	that	he	was	aware	the	water	had	

been	shut	off.		Id.	§	4002(1-B)(A)(1).			

	        [¶5]	 	 The	 court’s	 findings	 of	 jeopardy	 and	 an	 aggravating	 factor	 are	

supported	by	competent	evidence	in	the	record.		See	In	re	B.C.,	2012	ME	140,	

¶	11,	58	A.3d	1118.		The	evidence	supports	the	court’s	findings	that	the	father	

knew	 about	 the	 unsafe	 and	 unsanitary	 conditions	 in	 the	 mother’s	 home,	 but	

that	he	nonetheless	entrusted	the	mother	with	the	children’s	primary,	and	at	

times	 exclusive,	 care	 over	 a	 course	 of	 weeks,	 months,	 and	 years—even	 after	

previous	 involvement	 by	 the	 Department—without	 acting	 to	 support	 the	

children	or	protect	them	from	harm.		See	id.	¶¶	4,	11,	58	A.3d	1118	(affirming	
    7	

finding	of	conduct	heinous	or	abhorrent	to	society	when	a	parent	left	the	child	

with	 a	 significant	 other	 she	 knew	 to	 be	 incapable	 of	 handling	 the	 infant,	

resulting	in	a	life-threatening	injury	to	the	child);	In	re	Jamara	R.,	2005	ME	45,	

¶¶	4,	15-16,	870	A.2d	112	(affirming	finding	of	conduct	heinous	or	abhorrent	

to	society	when	the	mother	left	the	child	in	the	care	of	her	boyfriend,	who	had	

been	convicted	of	assaulting	a	child	before,	and	the	seventeen-month-old	child	

suffered	a	spiral	fracture,	facial	bruises,	a	bite	mark,	and	scratches),	overruled	

in	part	on	other	grounds	by	In	re	B.C.,	2012	ME	140,	¶	14	n.2,	58	A.3d	1118.			

	        [¶6]	 	 As	 the	 court	 found,	 the	 father’s	 “responsibility	 for	 the	 horrible	

neglect	 is	 as	 clear	 .	 .	 .	 as	 the	 mother’s,	 who	 was	 present	 daily	 in	 the	 home.”		

The	 court	 did	 not	 err	 in	 finding	 an	 aggravating	 factor	 based	 on	 the	 father’s	

extraordinary	neglect	of	the	children,	which	ultimately	resulted	in	long-term	

deprivation	 of	 medical	 and	 dental	 care,	 failure	 to	 thrive,	 frostbite,	

malnutrition,	 significant	 and	 possibly	 irreversible	 developmental	 delays,	 and	

long-term	 special	 needs	 for	 the	 children.	 	 See	 In	 re	 Ashley	 S.,	 2000	 ME	 212,	

¶¶	4-10,	 16-22,	 762	 A.2d	 941	 (affirming	 finding	 of	 conduct	 heinous	 or	

abhorrent	to	society	when	the	child	was	subjected	to	“extraordinary	neglect”	

in	a	squalid	apartment	where	she	was	ignored,	unfed,	and	unwashed,	and	was	

found	covered	in	feces),	overruled	in	part	on	other	grounds	by	In	re	B.C.,	2012	
    8	

ME	140,	¶	14	n.2,	58	A.3d	1118;	see	also	In	re	B.C.,	2012	ME	140,	¶¶	4,	11,	58	

A.3d	1118;	In	re	Jamara	R.,	2005	ME	45,	¶¶	4,	15-16,	870	A.2d	112.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	     	    	
	
Amy	McNally,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	P.A.,	
Biddeford,	for	appellant	father	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Portland	District	Court	docket	number	PC-2016-101	
FOR	CLERK	REFERENCE	ONLY	
	
