MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision:    2020 ME 89
Docket:      Cum-19-450
Submitted
  On Briefs: May 12, 2020
Decided:     June 18, 2020

Panel:       MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.



                                  STATE OF MAINE

                                           v.

                                          A.I.


JABAR, J.

         [¶1] The mother of A.I. appeals from an order of the juvenile court

placing A.I. in the custody of the Department of Health and Human Services. She

argues that the juvenile court used the wrong standard of proof by applying the

preponderance of the evidence standard rather than a clear and convincing

evidence standard. We disagree and affirm the juvenile court’s order.

                                  I. BACKGROUND

         [¶2] A.I. is a youth with a constellation of cognitive challenges. A.I. had

been detained—in oscillating fashion—in Long Creek Youth Development

Center since the age of eleven and had been declared incompetent to stand trial

several times. A.I. v. State, 2020 ME 6, ¶ 14, 223 A.3d 910. Prior to his detention,

A.I. was in his mother’s custody.
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          [¶3] On September 6, 2019, the juvenile court (Portland, Powers, J.)

    issued an order finding that A.I. was not competent to stand trial in his

    then-pending juvenile matters and concluding that there was no substantial

    probability that A.I. would regain competence in the near future.

          [¶4] Pursuant to 15 M.R.S. § 3318-B (2020), the juvenile court held a

    dispositional hearing on September 24, 2019. The court took judicial notice of

    the guardian ad litem’s report, which recommended against placing A.I. in the

    custody of the Maine Department of Health and Human Services. The court

    then heard from the Department’s Children’s Behavior Health Program

    Coordinator, who testified that A.I.’s challenges required residential care, but

    that his mother did not intend to continue having him placed in a residential

    treatment facility. The court additionally heard from a Juvenile Community

    Corrections Officer who had worked with A.I. since 2016. The officer testified

    that A.I. had several case management referrals, all of which were closed

    because his mother could not be reached or failed to engage with the

    Department. The witnesses agreed that A.I.’s mother struggles to understand

    the severity of his behaviors.

          [¶5] The court then heard testimony from A.I.’s mother. She explained

    that she would be leaving Maine in December and planned to take A.I. with her.
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The court asked the mother, “You would take your son out of the [residential]

program at the end of December because you have to move even if he needs

more services there?” She responded, “Yeah, that’s my plan. And you are the

judge.”1

       [¶6] The court then heard testimony from the guardian ad litem, who

stated, “I came to court prepared to recommend what I recommended in my

report . . . . I’m concerned though about whether [the] mother would actually

keep [A.I.] in his residential program . . . . So reluctantly, I think a safer course

of action, although it’s difficult, would be to place [A.I.] in State custody.”

       [¶7] The court announced that it would issue a written order and

explained that it is “contrary to the welfare of the child for him to stay in his

mother’s custody currently. DHHS, over time, has made reasonable efforts to

try to prevent removal of him from the home . . . . I’m placing [A.I.] in DHHS

custody as of now.”

       [¶8] Following the dispositional hearing, the juvenile court issued an

order placing A.I. in the Department’s custody and dismissed all twelve pending

juvenile complaints against A.I. The court applied a preponderance of the



   1 The mother explained, however, that if the court placed A.I. in Department custody, she would
not move in December.
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    evidence standard to the Department’s petition for custody of A.I. The court

    explained that the September 24, 2019, hearing presented it with three options.

    “It could take no action, it could order DHHS to evaluate the juvenile for mental

    health and behavioral services, or it could order the juvenile into DHHS custody

    under 15 M.R.S. § 3314(1)(C-1) [(2020)].” A.I.’s mother, the court expounded,

    “generally could not control him, and he often refused to obey the rules.” The

    court determined that placing A.I. in the Department’s custody represented the

    best way “to ensure that he is properly evaluated, treated, and monitored

    regarding his behavioral and mental health needs.” The court added, “His

    mother is still free to see and communicate with him, but she will not be making

    legal and significant parental decisions until there is a custody change.”

           [¶9] A.I.’s mother timely appealed on October 25, 2019. See 15 M.R.S

    §§ 3402(1)(B), 3405 (2020); M.R. App. P. 2B(c)(1).

                                            II. DISCUSSION

           [¶10] A.I.’s mother argues that the matter be remanded to the juvenile

    court so that findings2 be addressed under a clear and convincing standard

    rather than a preponderance of the evidence standard.


       2  A.I.’s mother does not challenge the juvenile court’s findings that A.I. was not competent and
    that there was no substantial probability that A.I. would regain competence in the near future. See
    15 M.R.S § 3318-B (2020).
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      [¶11] Here, the juvenile court concluded that, absent specific statutory

guidance, it would apply a preponderance of the evidence standard. The court,

in determining a juvenile disposition, must decide whether “continuation [in

the juvenile’s home] would be contrary to the welfare of the juvenile.” 15 M.R.S.

§ 3314(1)(C-1) (2020).

      [¶12] Instructively, however, “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 Child of Ryan F., 2020 ME 21, ¶ 21, 224 A.3d 1051 (quotation

marks omitted). Thus, for instance, because a court’s termination of a person’s

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

relationship with [a] child,” that decision “is subject to a higher burden of

proof—clear and convincing evidence.” Id. ¶ 22 (quotation marks omitted); see

also 22 M.R.S. § 4055(B)(2) (2020). By contrast, given the government interest

in protecting a child from an immediate risk of harm and the lack of finality in

a jeopardy determination in a child protection matter, the lower standard of

proof by a preponderance of the evidence applies at that stage. In re Child of

Ryan F., 2020 ME 21, ¶¶ 24-26, 224 A.3d 1051; see 22 M.R.S. §§ 4002(6), 4035

(2020).
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          [¶13] A dispositional hearing, which is initiated to address a child’s

    immediate welfare and results in an order that is revocable and modifiable and

    thus lacks finality, is more akin to a jeopardy proceeding in the child protection

    context than it is to a proceeding to terminate parental rights. See In re Child of

    Ryan F., 2020 ME 21, ¶ 25, 224 A.3d 1051; compare 22 M.R.S. § 4035(2) with

    22 M.R.S. § 4055(1) (2020). Here, in addition to the lack of finality of the order,

    the State holds a compelling interest in protecting the rights of the child. See In

    re Child of Ryan F., 2020 ME 21, ¶ 20, 224 A.3d 1051. Accordingly, “the nature

    and extent of the interests and rights affected, and the degree of finality,” in a

    dispositional hearing are distinguishable from those in a termination

    proceeding. See id. ¶ 26 (quotation marks omitted).

          [¶14] We therefore conclude that A.I.’s dispositional hearing falls on the

    “less-intrusive end of [the] continuum.” See id. ¶¶ 21-24 (alteration in original)

    (quotation marks omitted). Because the interests protected by a dispositional

    hearing are akin to the interests protected by a jeopardy hearing, and because

    the disposition is modifiable and not final, the juvenile court correctly applied

    the preponderance of the evidence standard when it determined whether to

    place A.I. in the custody of the Department. See id.
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        The entry is:

                           Judgment affirmed.



Nathaniel Seth Levy, Esq., Portland, for appellant mother of A.I.

Jonathan Sahrbeck, District Attorney, and Christine Thibeault, Asst. Dist. Atty.,
Cumberland County District Attorney’s Office, Portland, for appellee State of
Maine



Portland District Court docket numbers JV-18-208, JV-18-229, JV-18-230, JV-18-288, JV-18-289,
JV-18-290, JV-19-18, JV-19-19, JV-19-75, JV-19-76, JV-19-93, and JV-19-147
FOR CLERK REFERENCE ONLY
