MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	 2018	ME	63	
Docket:	   Ken-17-408	    	
Argued:	   March	7,	2018	 	
Decided:	  May	8,	2018	
                                                                                             	
Panel:	      	SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	   	SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:		JABAR,	J.	
	
	
                              ADOPTION	OF	PARKER	J.	
	
	
ALEXANDER,	J.	

      [¶1]		This	appeal	arises	from	an	adoption	proceeding	in	the	District	Court	

(Augusta,	 Nale,	 J.)	 following	 the	 termination	 of	 the	 parental	 rights	 of	 the	

biological	 parents	 of	 Parker	 J.	 	 During	 the	 pendency	 of	 the	 child	 protective	

proceeding	and	following	the	termination	of	parental	rights,	the	Department	of	

Health	 and	 Human	 Services	 placed	 Parker	 in	 the	 care	 of	 his	 maternal	

grandmother.		Beginning	approximately	a	year	after	the	termination	of	parental	

rights,	 competing	 petitions	 for	 adoption	 of	 Parker	 were	 filed	 by	 (1)	Parker’s	

paternal	 grandmother,	 (2)	 Parker’s	 maternal	 grandmother,	 and	 (3)	 Parker’s	

maternal	grandfather	and	his	wife.		

      [¶2]		The	competing	adoption	petitions	were	consolidated,	and	a	hearing	

was	held	in	the	District	Court.		At	the	hearing,	

      1.		Parker’s	paternal	grandmother	was	represented	by	counsel.		The	same	
      attorney	 also	 apparently	 represented	 an	 individual	 who	 was	 in	 a	
2	

      long-term	 relationship	 with	 Parker’s	 paternal	 grandmother	 and	 who	
      testified	 that	 he	 wanted	 to	 adopt	 Parker,	 although	 he	 had	 filed	 no	
      adoption	petition	signifying	a	commitment	to	adoption.			
      	
      2.	 	 Parker’s	 maternal	 grandmother	 was	 represented	 by	 counsel.	 	 Her	
      petition	 for	 adoption	 was	 supported	 by	 the	 Department,	 which	 was	
      separately	represented	by	an	assistant	attorney	general	who	played	the	
      primary	role	in	presenting	the	case	supporting	adoption	by	the	maternal	
      grandmother.		The	maternal	grandmother	and	the	Department	are	each	
      represented	by	different	counsel	on	this	appeal.			
      	
      3.		Parker’s	maternal	grandfather	and	his	wife,	who	jointly	petitioned	for	
      adoption,	were	unrepresented	but	actively	participated	in	the	hearing.			
      	
      [¶3]	 	 The	 court	 generally	 allowed	 the	 competing	 petitioners	 to	 fully	

present	 their	 cases	 and	 to	 examine	 opposing	 parties	 and	 witnesses	 at	 the	

hearing.			

      [¶4]	 	 At	 the	 conclusion	 of	 the	 three-day	 hearing,	 and	 without	 taking	 a	

recess,	the	court	announced	its	decision	from	the	bench,	denying	the	adoption	

petition	of	the	maternal	grandmother,	denying	the	joint	adoption	petition	of	the	

maternal	 grandfather	 and	 his	 wife,	 and	 granting	 the	 adoption	 petition	 of	 the	

paternal	 grandmother	 while	 also	 granting	 an	 adoption	 to	 the	 partner	 of	 the	

paternal	grandmother,	although	that	individual	had	not	petitioned	for	adoption	

or	 otherwise	 signaled	 any	 formal	 commitment	 to	 the	 adoption.	 	 The	 court	

requested	that	the	prevailing	party	prepare	a	written	decision	consistent	with	

the	decision	it	had	stated	orally	on	the	record.			
                                                                                         3	

      [¶5]		When	the	written	decision	was	entered,	Parker	was	transferred	to	

the	 care	 of	 the	 paternal	 grandmother	 and	 her	 partner.	 	 The	 maternal	

grandmother	 and	 the	 Department	 petitioned	 the	 trial	 court	 for	 a	 stay	 of	 its	

order	pending	appeal.		The	trial	court	denied	the	petition.		Although	allowable	

in	 appellate	 practice,	 no	 petition	 seeking	 a	 stay	 of	 the	 trial	 court	 decision	

pending	 appeal	 was	 filed	 with	 this	 Court.	 	 See	 M.R.	 App.	 P.	 6(a)(4);	

Bangor	Historic	Track,	Inc.	v.	Dep’t	of	Agric.,	Food	&	Rural	Res.,	2003	ME	140,	¶¶	

9-12,	837	A.2d	129;	see	also	Respect	Me.	PAC	v.	McKee,	622	F.3d	13,	15	(1st	Cir.	

2010).	

      [¶6]	 	 The	 Department	 and	 the	 maternal	 grandmother	 of	 Parker	 now	

appeal	 from	 the	 judgment	 denying	 the	 maternal	 grandmother’s	 petition	 to	

adopt	Parker,	granting	the	adoption	to	Parker’s	paternal	grandmother	on	her	

petition,	 and	 also	 granting	 adoption,	 despite	 the	 lack	 of	 any	 petition,	 to	 the	

paternal	grandmother’s	partner.		The	maternal	grandmother	contends,	among	

other	 points	 on	 appeal,	 that	 the	 court	 erred	 in	 granting	 an	 adoption	 to	 the	

paternal	grandmother’s	partner.			

      [¶7]	 	 Because	 the	 paternal	 grandmother’s	 partner	 did	 not	 petition	 for	

adoption	and	has	no	formal	commitment	to	the	child	or	even,	as	conceded	at	

oral	 argument,	 to	 the	 paternal	 grandmother,	 and	 because	 the	 trial	 court	
4	

considered	and	decided	the	matter	treating	the	paternal	grandmother	and	her	

partner	as	if	they	were	joint	petitioners,	a	decision	that	we	cannot	now	sever	

on	appeal,	we	must	vacate	the	judgment	and	remand	for	further	proceedings.	

                                I.		CASE	HISTORY	

      [¶8]		The	record	contains	the	following	procedural	history.		Parker	was	

born	 drug-affected	 in	 May	 2013	 to	 his	 mother	 and	 father,	 who	 were	 not	

married.		At	the	time,	Parker’s	parents	were	living	in	housing	arranged	by	the	

paternal	grandmother.		When	he	was	approximately	four	months	old,	Parker’s	

mother	 voluntarily	 placed	 him	 with	 her	 mother,	 Parker’s	 maternal	

grandmother.				

      [¶9]	 	 In	 December	 2013,	 the	 Department	 filed	 a	 petition	 for	 a	 child	

protection	order.		The	District	Court	(Dow,	J.)	granted	the	petition	and	issued	

an	order	placing	Parker	in	the	custody	of	the	Department.		Parker	remained	in	

the	care	of	his	maternal	grandmother,	and	the	Department	facilitated	visitation	

with	Parker’s	paternal	grandmother.		After	Parker’s	mother	and	father	failed	to	

successfully	engage	in	reunification	services,	the	Department	petitioned	for	the	

termination	of	their	parental	rights	in	June	2015.			
                                                                                                       5	

       [¶10]	 	 Two	 years	 after	 Parker	 was	 placed	 in	 the	 custody	 of	 the	

Department,	the	court	(E.	Walker,	J.)	terminated	Parker’s	parents’	rights.1		The	

court	continued	to	hold	judicial	review	and	permanency	planning	hearings,	and	

Parker	 remained	 in	 the	 custody	 of	 the	 Department	 and	 in	 the	 care	 of	 his	

maternal	grandmother.		The	relationship	between	the	maternal	grandmother	

and	 the	 paternal	 grandmother	 was	 contentious.	 	 Visitation	 with	 the	 paternal	

grandmother	ceased	for	several	months	in	2016	but	later	resumed.		

       [¶11]	 	 In	 August	 2016,	 without	 the	 consent	 of	 the	 Department,	 the	

paternal	grandmother	filed	a	petition	to	adopt	Parker.		See	18-A	M.R.S.	§§	9-301	

to	9-303	(2017).		Although	the	petition	form	provided	space	in	several	locations	

for	 the	 name	 of	 a	 joint	 petitioner,	 the	 paternal	 grandmother	 affirmatively	

crossed	 out	 the	 provided	 spaces,	 filled	 in	 her	 own	 name,	 or	 wrote	 “N/A	 at	

present	 time.”	 	 Around	 the	 same	 time,	 the	 maternal	 grandmother	 signed	 an	

adoptive	placement	agreement	with	the	Department.			

       [¶12]	 	 In	 October	 2016,	 the	 Department	 consented	 to	 adoption	 by	 the	

maternal	grandmother,	see	18-A	M.R.S.	§	9-302(a)(3),	and	she	filed	a	petition	to	

adopt	Parker.		In	March	2017,	Parker’s	maternal	grandfather	and	his	wife	filed	



   1		The	father	consented,	in	writing,	to	the	termination	of	his	parental	rights.		The	mother’s	parental	

rights	were	terminated	after	notice	and	a	hearing.			
6	

a	 petition	 to	 adopt	 Parker.	 	 The	 three	 competing	 adoption	 petitions	 were	

consolidated	for	a	final	hearing	(1)	to	determine	whether	the	Department	acted	

unreasonably	by	withholding	consent	from	the	paternal	grandmother	or	from	

the	 maternal	 grandfather	 and	 his	 wife,	 and	 (2)	to	 grant	 an	 adoption	 after	

determining	which	petitioner	would	serve	the	best	interest	of	the	child.			

      [¶13]		The	court	(Nale,	J.)	held	a	three-day	hearing	on	July	11-13,	2017.		

The	court	heard	the	testimony	of	a	dozen	witnesses	and	 admitted	 numerous	

exhibits.		One	of	the	witnesses	was	the	paternal	grandmother’s	partner	of	ten	

years	 who,	 in	 a	 two	 question	 and	 answer	 colloquy	 with	 his	counsel,	 testified	

that	he	would	like	to	adopt	Parker	with	the	paternal	grandmother.			

      [¶14]		At	the	close	of	evidence,	the	court	announced	its	decision	from	the	

bench,	 stating	 oral	 findings	 on	 the	 record.	 	 The	 court	 concluded	 that	 the	

Department	 acted	 unreasonably	 by	 withholding	 consent	 from	 the	 paternal	

grandmother	and	her	partner	and	from	the	maternal	grandfather	and	his	wife.		

The	court	then	considered	the	requirements	of	18-A	M.R.S.	§	9-308(a)	(2017)	

and	 found	 that	 each	 of	 the	 petitioners	 had	 satisfied	 each	 of	 the	 statutory	

requirements.	 	 Specifically,	 the	 court	 found	 that	 the	 petition	 of	 the	 paternal	

grandmother	and	her	partner	was	in	order.		
                                                                                     7	

      [¶15]	 	 Considering	 the	 best	 interest	 factors	 listed	 in	 18-A	M.R.S.	

§	9-308(b)	(2017),	the	court	granted	an	adoption	to	the	paternal	grandmother	

and	her	partner.		The	court	found	that	all	of	the	parties	“love	and	are	loved	by”	

Parker	and	that	“there	is	a	tremendous	amount	of	affection	and	emotional	ties	

between	the	petitioners	and	the	child.”		The	court	further	found	that	all	of	the	

parties	 have	 the	 capacity	 to	 meet	 Parker’s	 needs,	 but	 that	 the	 paternal	

grandmother	 and	 her	 partner	 have	 the	 proper	 “disposition.”	 	 In	 reaching	 its	

decision,	the	court	did	not	consider	the	four-year	bond	between	Parker	and	the	

maternal	grandmother	resulting	from	her	caring	for	Parker	after	he	was	placed	

with	her	by	the	Department.			

      [¶16]	 	 At	 the	 court’s	 request,	 the	 paternal	 grandmother	 submitted	 a	

proposed	 final	 decree	 of	 adoption	 after	 the	 hearing.	 	 The	 proposed	 decree	

submitted	 by	 the	 paternal	 grandmother	 included	 a	 finding	 that	 she	 had	 the	

capacity—“along	with	the	support	and	assistance	of	her	long	term	partner”—

to	 meet	 Parker’s	 needs,	 but	 the	 proposed	 decree	 purported	 to	 grant	 the	

adoption	to	her	alone.			

      [¶17]		After	the	court	stated	its	decision	on	the	record,	the	parties	filed	

several	 post-judgment	 motions.	 	 The	 Department	 filed	 a	 motion	 to	 stay	

pursuant	to	M.R.	Civ.	P.	62(a),	arguing	that	the	Department	and	other	parties	
8	

would	 likely	 file	 an	 appeal	 and	 additional	 post-judgment	 motions	 and	 that	

maintaining	 the	 current	 custody	 and	 visitation	 arrangement	 would	 avoid	

disruption	of	Parker’s	life.		The	maternal	grandmother	filed	a	response	to	the	

proposed	 decree	 challenging	 the	 court’s	 grant	 of	 adoption	 to	 the	 paternal	

grandmother’s	partner	when	he	did	not	file	a	petition,	was	not	married	to	the	

paternal	grandmother,	and	did	not	live	with	her.		The	maternal	grandmother	

also	 filed	 a	 motion	 to	 reconsider	 pursuant	 to	 M.R.	 Civ.	 P.	 59(e).	 	 The	 court	

denied	all	of	the	motions	without	comment.			

	     [¶18]		On	August	15,	2017,	the	court	issued	a	written	judgment	granting	

the	 adoption	 to	 the	 paternal	 grandmother	 and	 her	 partner.	 	 The	 court	

reaffirmed	 its	 determination	 that	 the	 Department	 acted	 unreasonably	 by	

withholding	 consent.	 	 Reviewing	 the	 five	 statutory	 considerations,	 the	 court	

found	 that	 (1)	 the	 Department	 relied	 too	 heavily	 on	 the	 amount	 of	 time	 that	

Parker	 had	 been	 in	 the	 maternal	 grandmother’s	 care,	 (2)	 the	 paternal	

grandmother	 and	 her	 partner	 are	 more	 financially	 secure	 than	 the	 maternal	

grandmother,	 (3)	 the	 Department’s	 decision	 was	 inconsistent	 with	 the	 facts,	

and	(4)	the	harm	of	leaving	Parker	in	the	maternal	grandmother’s	home	would	

be	greater	than	the	harm	of	removing	him.			
                                                                                         9	

      [¶19]	 	 The	 court	 added	 that	 stability	 was	 a	 significant	 factor	 in	 its	

determination.		Specifically,	the	court	found	that	the	paternal	grandmother	and	

her	 partner	 have	 been	 in	 a	 relationship	 for	 a	 decade,	 have	 lived	 together	 for	

nearly	a	decade,	and	are	financially	secure,	whereas	the	maternal	grandmother	

has	lived	in	multiple	residences	in	recent	years,	has	had	several	male	partners,	

has	 indicated	 that	 she	 would	 move	 out	 of	 Maine,	 and	 receives	 assistance	 in	

caring	for	Parker.		The	court	found	that,	although	all	of	the	petitioners	have	the	

capacity	to	address	the	physical,	medical,	and	educational	needs	of	Parker,	the	

paternal	grandmother	and	her	partner	have	the	greatest	capacity.			

      [¶20]		After	the	court	entered	its	written	decision,	the	Department	timely	

filed	a	motion	for	reconsideration	and	for	further	findings	of	fact	pursuant	to	

M.R.	 Civ.	 P.	 52(b),	 59(e),	 and	 60(b)(6),	 which	 the	 court	 denied	 without	

comment.		The	Department	and	the	maternal	grandmother	timely	filed	notices	

of	appeal.		See	18-A	M.R.S.	§	9-309	(2017);	M.R.	App.	P.	2A(a),	(b)(1),	2B(c).	

                                 II.		LEGAL	ANALYSIS	

      [¶21]	 	 The	 Department	 and	 the	 maternal	 grandmother	 raise	 several	

issues	on	appeal.		Both	the	Department	and	the	maternal	grandmother	argue	

that	 the	 court	 abused	 its	 discretion	 in	 finding	 that	 the	 Department	 acted	

unreasonably	 by	 withholding	 consent	 from	 the	 paternal	 grandmother.	 	 The	
10	

Department	further	argues	that	the	court	abused	its	discretion	by	denying	its	

motion	 to	 stay	 the	 judgment	 pending	 appeal.	 	 The	 maternal	 grandmother	

argues	 that	 the	 court’s	 factual	 findings	 are	 not	 supported	 by	 competent	

evidence	 in	 the	 record;	 that	 the	 court	 abused	 its	 discretion	 in	 weighing	 the	

evidence;	 and	 that	 the	 court’s	 findings	 are	 insufficient,	 as	 a	 matter	 of	 law,	 to	

support	 the	 court’s	 best	 interest	 determination.	 	 She	 further	 argues	 that	 the	

court	 erred	 by	 granting	 an	 adoption	 to	 the	 paternal	 grandmother’s	 partner	

when	 he	 did	 not	 petition	 for	 adoption.	 	 Because	 we	 conclude	 that	 the	 court	

erred	in	granting	an	adoption	to	the	paternal	grandmother’s	partner	and	that	a	

redetermination	 of	 the	 factual	 findings	 is	 necessary,	 we	 reach	 only	 that	

argument	and	do	not	address	the	parties’	remaining	arguments.2	

       [¶22]	 	 The	 grant	 or	 denial	 of	 an	 adoption	 petition	 is	 among	 the	 most	

serious	 and	 final	 actions	 any	 court	 can	 take.	 	 Such	 petitions	 invoke	 the	

fundamental	 constitutional	 rights	 of	 petitioners	 and	 of	 the	 child	 or	 children	

addressed	 in	 the	 proceeding.	 	 The	 effects,	 commitments,	 and	 relationships	

resulting	from	the	grant	of	an	adoption	petition	are	lifelong.		Accordingly,	the	


   2		Despite	an	order	issued	by	this	Court	(Gorman	J.)	after	the	parties	filed	their	notices	of	appeal	

requesting	briefing	of	the	issue	of	standing,	the	Department	failed	to	address	in	its	brief	whether	it	
had	standing	to	challenge	the	trial	court’s	denial	of	its	motion	to	stay.		Furthermore,	the	Department	
did	not	seek	an	order	from	this	Court	to	stay	the	trial	court’s	judgment.		See	M.R.	App.	P.	6(a)(4).		
Accordingly,	the	issue	is	deemed	waived.		See	Bayview	Loan	Servicing,	LLC	v.	Bartlett,	2014	ME	37,	
¶	15	n.5,	87	A.3d	741.	
                                                                                       11	

procedural	 prerequisites	 for	 adoption	 are	 rigorous	 and	 must	 be	 strictly	

followed.		

      [¶23]		“A	legal	adoption	results	if	the	statutory	procedures	are	followed,	

but	 an	 adoption	 fails	 if	 any	 essential	 requirement	 of	 the	 operative	 adoption	

statute	is	not	fulfilled.”		In	re	Melissa	C.,	516	A.2d	946,	947	(Me.	1986);	accord	

Blue	 v.	 Boisvert,	 143	 Me.	 173,	 178,	 57	 A.2d	 498	 (1948).	 	 Title	 18-A	 M.R.S.	

§§	9-301	 to	 9-308	 (2017)	 provides	 the	 procedure	 by	 which	 a	 person	 may	

petition	to	adopt	and	by	which	a	court	may	grant	an	adoption.		Section	9-301	

states	 that	 a	 husband	 and	 wife	 jointly	 or	 an	 unmarried	 person	 may	 file	 a	

petition	 for	 adoption.	 	 Two	 unmarried	 persons	 may	 jointly	 petition	 for	

adoption.		Adoption	of	M.A.,	2007	ME	123,	¶	31,	930	A.2d	1088. The	petition	for	

adoption	 must	 be	 sworn	 to	 by	 the	 petitioner	 and	 must	 include	 certain	

biographical	 information,	 statements,	 and	 acknowledgments.	 	 18-A	 M.R.S.	

§	9-303.	

      [¶24]		Upon	the	filing	of	a	petition,	the	court	must	order	a	background	

check	and	direct	the	Department	to	conduct	a	home	study	and	to	make	a	report	

to	 the	 court.	 	 18-A	 M.R.S.	 §	 9-304.	 	 Under	 certain	 defined	 circumstances,	 the	

court	 may	 waive	 the	 background	 check	 and	 home	 study	 requirements.	 	 Id.	

§	9-304(a-1)(1)(i)-(ii),	 (2).	 	 The	 court	 may	 take	 other	 measures	 such	 as	
12	

appointing	a	guardian	ad	litem	or	requiring	that	the	child	live	for	one	year	in	

the	home	of	the	petitioner	before	the	 petition	is	granted.	 	Id.	§	 9-304(c),	 (d).		

After	 “the	 petitioner	 who	 filed	 the	 petition”	 has	 been	 heard	 or	 has	 waived	 a	

hearing,	the	court	shall	grant	an	adoption	only	if	the	court	is	satisfied	that	

       (1)	 	 all	 necessary	 consents,	 relinquishments,	 or	 terminations	 of	
       parental	rights	have	been	duly	executed	and	filed	with	the	court;	
       	
       (2)		an	adoption	study,	when	required	by	section	9-304,	has	been	
       filed	with	the	court;	
       	
       (3)		a	list	of	all	disbursements,	when	required	by	section	9-306,	has	
       been	filed	with	the	court;	
       	
       (4)	 	 the	 petitioner	 is	 a	 suitable	 adopting	 parent	 and	 desires	 to	
       establish	a	parent	and	child	relationship	with	the	adoptee;	
       	
       (5)		the	best	interests	of	the	adoptee	are	served	by	the	adoption;	
       	
       (5-A)	 the	 petitioner	 has	 acknowledged	 that	 the	 petitioner	
       understands	that	the	transfer	of	the	long-term	care	and	custody	of	
       the	 child	 without	 a	 court	 order	 is	 prohibited	 under	 Title	 17-A,	
       section	553,	subsection	1,	paragraphs	C	and	D;	and	
       	
       (6)		all	other	requirements	of	the	Adoption	Act	have	been	met.	
       	
Id.	§	9-308(a).	

  	   [¶25]	 	 Here,	 the	 paternal	 grandmother’s	 partner	 did	 not	 file,	 either	

individually	or	jointly,	a	petition	to	adopt	Parker.		See	id.	§	9-301.		The	paternal	

grandmother	purposely	omitted	the	name	of	a	joint	petitioner	by	crossing	out	

the	spaces	provided	for	a	joint	petitioner’s	name	and	by	writing	that	there	was	
                                                                                        13	

no	joint	petitioner	“at	[the]	present	time,”	even	though	she	and	her	partner	had	

been	in	a	relationship	for	a	decade	when	she	filed	the	petition.		The	court	and	

the	parties	proceeded	to	trial	as	if	the	paternal	grandmother’s	partner	was	a	

petitioner;	 however,	 it	 was	 not	 until	 the	 third	 day	 of	 trial	 that	 the	 paternal	

grandmother’s	partner	first	expressed	to	the	court	an	interest	in	becoming	an	

adoptive	parent.		The	issue	was	not	addressed	during	his	cross-examination	by	

the	Department,	and	the	maternal	grandmother	did	not	cross-examine	him	at	

all.		In	fact,	the	issue	was	raised	for	the	first	time	in	the	maternal	grandmother’s	

post-trial	 response	 to	 the	 paternal	 grandmother’s	 proposed	 decree.	 	 In	 a	

hearing	to	determine	the	best	interest	of	a	child	and	to	establish	parental	rights,	

it	is	concerning	that	none	of	the	parties	raised	this	issue	prior	to	or	during	the	

trial.	

   	      [¶26]	 	 Nevertheless,	 the	 trial	 court	 was	 required	 to	 ensure	 that	 all	

conditions	of	the	Adoption	Act	had	been	met.		See	id.	§	9-308(a)(6).		Although	

the	 trial	 court	 purported	 to	 have	 reviewed	 a	 petition	 filed	 by	 the	 paternal	

grandmother	and	her	partner	and	concluded	that	that	petition	was	“in	order,”	

the	paternal	grandmother’s	partner	did	not	file	a	petition	or	join	the	paternal	

grandmother’s	petition	as	required	by	sections	9-301	and	9-303.		The	paternal	

grandmother’s	 partner’s	 testimony—that	 he	 intended	 to	 establish	 a	 parental	
14	

relationship	with	Parker—is	insufficient	to	establish	his	status	as	a	petitioner.		

See	18-A	M.R.S.	§	9-102(i)	(2017)	(defining	a	“petitioner”	as	“a	person	filing	a	

petition	to	adopt	an	adult	or	child,	and	includes	both	petitioners	under	a	joint	

petition,	except	as	otherwise	provided”).			

        [¶27]	 	 If	 testimony	 alone	 were	 sufficient,	 without	 filing	 a	 petition	 and	

undergoing	the	rigorous	prehearing	review	required	by	law,	any	witness	at	the	

hearing	could	have	expressed	a	desire	to	become	an	adoptive	parent	and	the	

court	would	have	been	required	to	entertain	that	request.		Such	a	low	standard	

would	 lead	 to	 absurd	 results	 and	 would	 not	 comply	 with	 the	 rigorous	

requirements	of	the	Adoption	Act.	

	       [¶28]		Because	the	paternal	grandmother’s	partner	did	not	file	a	petition,	

he	 did	 not	 undergo	 a	 mandatory	 background	 check	 or	 participate	 in	 a	 home	

study,	and	the	record	does	not	include	a	waiver	of	these	requirements.3		See	id.	

§	9-304.	 	 Furthermore,	 by	 not	 filing	 a	 petition,	 the	 paternal	 grandmother’s	

partner	did	not	submit	a	confidential	statement	to	accompany	the	petition	for	

adoption.		The	confidential	statement	would	have	provided	information	about,	

inter	alia,	his	family	history	and	financial	resources	and	obligations,	including	


    3		The	trial	court	file	indicates	that	background	checks	for	both	the	paternal	grandmother	and	her	

partner	were	not	requested	and	received	until	after	the	trial	court	entered	its	written	judgment.		This	
information	was	not	before	the	trial	court,	and,	thus,	is	not	a	part	of	the	record	on	appeal.	
                                                                                   15	

his	 marital	 history,	 income,	 net	 worth,	 real	 property	 holdings,	 and	 ongoing	

support	obligations,	if	any.			

      [¶29]		The	trial	court’s	best	interest	determination	relied,	in	part,	on	the	

combined	 financial	 resources	 of	 the	 paternal	 grandmother	 and	 her	 partner.		

The	 evidence	 in	 the	 record,	 however,	 falls	 materially	 short	 regarding	 the	

paternal	 grandmother’s	 partner’s	 financial	 resources	 and	 obligations.		

Cf.	Adoption	of	Isabelle	T.,	2017	ME	220,	¶¶	45-46,	175	A.3d	639.		The	report	

submitted	by	the	court-appointed	guardian	ad	litem	indicated	that	the	paternal	

grandmother’s	partner	has	previously	been	married	four	times,	has	one	child,	

and	 owns	 several	 parcels	 of	 real	 property.	 	 The	 paternal	 grandmother’s	

partner’s	testimony	on	these	issues	was	limited.		Moreover,	as	conceded	at	oral	

argument,	the	record	does	not	indicate	that	the	paternal	grandmother’s	partner	

has	any	obligation	to	financially	support	her.		Although	it	is	appropriate	for	a	

trial	 court	 to	 consider	 a	 prospective	 adoptive	 parent’s	 support	 system	 in	

determining	the	best	interest	of	the	child,	it	is	the	exclusive	responsibility	of	the	

adoptive	parent	or	parents	to	meet	the	child’s	needs.		Therefore,	the	court	erred	

by	considering	the	paternal	grandmother’s	partner’s	financial	resources	when	

he	 was	 not	 a	 petitioner	 and	 is	 not	 obligated	 to	 support	 the	 paternal	

grandmother.	
16	

      [¶30]	 	 Because	 the	 court’s	 decision	 was	 based	 on	 its	 erroneous	

assumption	that	the	paternal	grandmother’s	partner	was	a	petitioner,	and	that	

error	is	not	harmless,	we	 vacate	the	judgment	and	remand	the	 matter	to	the	

District	Court	for	a	redetermination	of	the	findings	and	for	a	reconsideration	of	

its	decision.		See	Remick	v.	Martin,	2014	ME	120,	¶	10,	103	A.3d	552.		Because	

we	remand	for	the	court	to	reconsider	its	decision	free	of	the	error	we	address	

in	this	opinion,	we	do	not	reach	the	other	challenges	to	the	judgment,	including,	

for	example,	the	 assertion	of	the	 Department	and	the	 maternal	grandmother	

that	 the	 court	 erred	 as	 a	 matter	 of	 law	 by	 concluding	 that	 the	 Department	

unreasonably	 withheld	 its	 consent	 to	 the	 paternal	 grandmother’s	 petition,	

when	the	Department’s	position	was	supported	by	expert	testimony	and	by	the	

guardian	 ad	 litem,	 and	 given	 Parker’s	 long-term	 stable	 placement	 with	 the	

maternal	grandmother.	

	     The	entry	is:	

                    Judgment	 vacated.	 	 Remanded	 for	 further	
                    proceedings	consistent	with	this	opinion.		
                    	


JABAR,	J.,	concurring	

	     [¶31]	 	 I	 concur,	 but	 I	 write	 separately	 to	 discuss	 what	 I	 believe	 is	 a	

shortcoming	 in	 18-A	 M.R.S.	 §	 9-302	 (2017).	 	 Specifically,	 section	 9-302(a)(3)	
                                                                                       17	

fails	to	adequately	address	the	 Department’s	obligation	in	cases	where	 more	

than	one	suitable	party	petitions	to	adopt	a	child	placed	in	the	Department’s	

custody.		We	must	either	interpret	the	statute	to	allow	the	Department	to	give	

consent	 to	 each	 suitable	 party	 that	 has	 petitioned	 to	 adopt	 the	 child,	 or	 the	

Legislature	must	act	in	order	to	remedy	the	deficiency	within	section	9-302.			

A.	   The	Statute	and	the	Department’s	Interpretation	
	
	     [¶32]		The	statute	at	issue	in	this	case	provides,	in	relevant	part,		
	
      §	9-302.	Consent	for	adoption		
	
        (a)	 Before	 an	 adoption	 is	 granted,	 written	 consent	 to	 the	
      adoption	must	be	given	by:	
      	
        .	.	.	.	
               	
        (3)	The	person	or	agency	having	legal	custody	or	guardianship	
        of	 the	 child	 or	 to	 whom	 the	 child	 has	 been	 surrendered	 and	
        released,	except	that	the	person’s	or	agency’s	lack	of	consent,	if	
        adjudged	unreasonable	by	a	judge	of	probate,	may	be	overruled	
        by	the	judge.		In	order	for	the	judge	to	find	that	the	person	or	
        agency	 acted	 unreasonably	 in	 withholding	 consent,	 the	
        petitioner	must	prove,	by	a	preponderance	of	the	evidence,	that	
        the	person	or	agency	acted	unreasonably.		The	court	may	hold	a	
        pretrial	conference	to	determine	who	will	proceed.		The	court	
        may	determine	that	even	though	the	burden	of	proof	is	on	the	
        petitioner,	the	person	or	agency	should	proceed	if	the	person	or	
        agency	 has	 important	 facts	 necessary	 to	 the	 petitioner	 in	
        presenting	 the	 petitioner’s	 case.	 	 The	 judge	 shall	 consider	 the	
        following:	
         	
                 (i)	Whether	the	person	or	agency	determined	the	needs	
                 and	interests	of	the	child;	
18	

                   	
                   (ii)	Whether	the	person	or	agency	determined	the	ability	
                   of	 the	 petitioner	 and	 other	 prospective	 families	 to	 meet	
                   the	child’s	needs;	
                   	
                   (iii)	 Whether	 the	 person	 or	 agency	 made	 the	 decision	
                   consistent	with	the	facts;	
                   	
                   (iv)	 Whether	 the	 harm	 of	 removing	 the	 child	 from	 the	
                   child’s	current	placement	outweighs	any	inadequacies	of	
                   that	placement;	and	
                   	
                   (v)	 All	 other	 factors	 that	 have	 a	 bearing	 on	 a	
                   determination	 of	 the	 reasonableness	 of	 the	 person’s	 or	
                   agency’s	decision	in	withholding	consent.	
	
	     	      .	.	.	.		
	
      A	 petition	 for	 adoption	 must	 be	 pending	 before	 a	 consent	 is	
      executed.			
                	
The	statute	as	written	fails	to	set	forth	a	procedure	for	the	Department	to	follow	

in	those	cases	where,	like	this	case,	more	than	one	suitable	petitioner	seeks	to	

adopt	 a	 child.	 	 Although	 section	 9-302(a)(3)(ii)	 contemplates	 a	 situation	 in	

which	other	“prospective	families”	might	exist,	no	part	of	the	statute	clarifies	

whether	 the	 Department	 may,	 or	 may	 not,	 grant	 consent	 to	 more	 than	 one	

prospective	 suitable	 family.	 	 Because	 the	 Department	 and	 the	 court	 have	

distinct	 roles	 in	 adoption	 proceedings,	 the	 Department	 should	 not	 have	 to	

decide	 which	 of	 several	 suitable	 parties	 should	 be	 given	 consent	 to	 the	

exclusion	of	the	others;	it	is	for	the	court	to	decide	which	petitioner	would	serve	
                                                                                   19	

the	 child’s	 best	 interest.	 	 See	 Adoption	 of	 Paisley,	 2018	ME	 19,	 ¶	 31,	

178	A.3d	1228.	

	     [¶33]		Unfortunately,	in	this	case,	the	Department	felt	that	it	had	to	make	

a	 choice	 among	 competing	 suitable	 parties.	 	 The	 assistant	 program	

administrator	for	the	Office	of	Child	and	Family	Services	stated	at	the	hearing	

that	he	believed	the	Department	can	provide	consent	to	only	one	party.		There	

is	no	reason	why,	following	the	termination	of	the	parental	rights	of	the	parents,	

the	Department	could	not	have	given	consent	to	all	three	petitioning	parties.	

Then,	 the	 court	 would	 have	 been	 in	 the	 position	 to	 decide	 which	 petitioner	

would	serve	the	child’s	best	interest.		If	there	are	numerous	parties	requesting	

an	adoption,	and	one	of	them	is	not	suitable,	the	Department	can	and	should	

withhold	consent.		However,	where	more	than	one	suitable	petitioner	exists,	as	

here,	the	Department	can	and	should	provide	its	consent	to	all	suitable	parties.		

In	this	case,	there	is	no	question	that	if	any	of	the	three	grandparents	were	the	

only	petitioning	party,	the	Department	would	have	granted	its	consent.		It	was	

only	because	the	Department	mistakenly	believed	that	it	had	to	make	a	choice	

that	it	withheld	consent	to	the	other	two	petitioners.			
20	

B.	   The	Result	of	the	Department’s	Interpretation		

	     [¶34]		 This	 position	taken	by	the	 Department	forces	it	to	 pick	winners	

and	losers	when	there	are	several	suitable	parties,	and	as	a	result	of	choosing	

sides,	the	Department	puts	its	thumb	on	the	scale	in	favor	of	the	party	that	it	

selects.		The	chosen	party	then	has	the	weight	and	resources	of	the	State	on	its	

side,	 and	 due	 to	 the	 Department’s	 early	 position	 in	 a	 given	 case,	 the	 chosen	

party	gains	an	unfair	advantage.		In	this	case,	due	to	the	Department’s	decision	

to	 choose	 the	 maternal	 grandmother	 early	 on,	 she	 was	 afforded	 a	 great	 deal	

more	contact	with	the	child	during	the	pendency	of	the	case.		The	guardian	ad	

litem’s	report	included	the	following	synopsis:	

             [The	maternal	grandmother]	has	been	[the	child’s]	primary	
     caregiver,	 almost	 since	 his	 birth.	 	 It	 is	 difficult	 to	 overstate	 the	
     importance	 of	 this	 factor.	 .	 .	 .	 	 Further,	 that	 [the	 paternal	
     grandmother	 and	 her	 partner]	 actively	 sought	 to	 be	 as	 involved	
     with	 [the	 child]	 as	 they	 could	 be.	 	 For	 a	 period	 of	 time,	 he	 was	
     spending	overnights	and	nearly	half	of	each	week	with	them.		Over	
     their	strenuous	objection,	some	combination	of	[the	Department]	
     and	 [the	 maternal	 grandmother]	 severely	 curtailed	 that	 contact.		
     For	 a	 while,	 it	 dwindled	 to	 almost	 nothing	 until	 an	 order	 by	 [the	
     District	Court]	established	regular	visitation	late	last	year.		It	may	
     well	be	that	the	curtailment	of	their	contact	was	an	unwarranted	
     mistake.			
     	
The	court,	after	reading	this	portion	of	the	report	aloud,	stated	on	the	record,	

“That	bothers	me.		I	believe	that	a	rush	to	judgment	was	made.		I	believe	that	a	

mistake	was	made.”		As	a	result	of	the	Department’s	early	intervention	on	the	
                                                                                    21	

maternal	grandmother’s	behalf,	she	became	the	primary	caregiver	of	the	child,	

and	this	exclusive	relationship	led	to	many	of	the	witnesses	indicating	that	the	

reason	 they	 thought	 that	 the	 maternal	 grandmother	 was	 the	 best	 choice	 for	

adoption	was	due	to	the	amount	of	time	he	had	already	spent	with	the	maternal	

grandmother.		Specifically,	the	clinical	psychologist	and	one	of	the	guardians	ad	

litem	 indicated	 that	 all	 three	 potential	 parties	 were	 adequate	 to	 parent	 the	

child.		However,	both	testified	that	it	would	be	best	for	the	child	to	remain	with	

the	maternal	grandmother	because	he	had	been	living	with	her	throughout	this	

case.			

	      [¶35]	 	 Another	 problem	 with	 the	 Department’s	 early	 choice	 was	 the	

failure	to	consider	other	potentially	better	placements.		One	guardian	ad	litem	

never	considered	the	other	two	sets	of	grandparents	because	the	Department	

had	 already	 made	 a	 decision	 regarding	 the	 maternal	 grandmother,	 and,	 she	

stated,	her	primary	concern	“is	not	necessarily	to	try	to	discern	better	preferred	

placements	for	[the	child],	if	where	he	is	seems	like	a	loving	and	suitable	home.”		

The	ultimate	goal,	however,	is	the	child’s	best	interest,	not	merely	an	acceptable	

interest.			

       [¶36]	 	 It	 is	 easy	 to	 see	 how	 the	 maternal	 grandmother’s	 extensive	

contact—to	 the	 detriment	 and	 exclusion	 of	 the	 other	 grandparents,	 in	 which	
22	

the	Department	played	a	significant	role—led	many	of	the	witnesses	to	favor	

adoption	by	the	maternal	grandmother.		There	was	 no	reason	in	this	case	to	

deprive	 the	 other	 loving	 and	 capable	 grandparents	 of	 extensive	 contact	 with	

the	child	during	the	pendency	of	the	case.		One	guardian	ad	litem	and	the	court	

agreed,	 stating	 that	 in	 a	 “perfect	 world,”	 time	 could	 have	 been	 divided	 more	

equally	between	all	three	petitioners.				

        [¶37]		Although	in	this	case	the	court	recognized	the	early	role	that	the	

Department	played,	and	did	ultimately	find	for	the	paternal	grandmother,	such	

an	outcome	will	not	always	be	forthcoming.		In	many	cases,	the	Department’s	

early	decision	to	weigh	 in	on	the	side	of	one	of	the	competing	 parties	would	

unfairly	support	one	party’s	petition	over	another’s.4		Such	a	decision,	and	the	

deprivation	 of	 access	 to	 the	 child	 that	 it	 results	 in,	 could	 have	 a	 significant	

impact	on	the	witnesses’	perception	of	which	petitioner	has	a	deeper	bond	with	




   4	 	 In	 fact,	 in	 our	 recent	 case	 Adoption	 of	 Paisley,	 that	 is	 exactly	 what	 happened.	 	 2018	ME	 19,	

178	A.3d	1228.		In	Paisley,	the	Department	delayed	and	equivocated	in	its	granting	of	consent	when	
there	was	more	than	one	suitable	petitioner,	and	ultimately,	we	concluded	that	its	withholding	of	
consent	was	unreasonable.		Id.	¶¶	13-17,	30.		Speaking	to	the	Department’s	delay,	the	Chief	Justice	
stated	 that	 “had	 the	 Department	 acted	 more	 expeditiously	 and	 more	 assertively	 to	 establish	 a	
relationship	between	Paisley	and	the	family	[that	Paisley	had	not	been	placed	with	during	the	case],”	
the	outcome	may	well	have	been	different	for	Paisley.		Id.	¶	38	(Saufley,	C.J.,	concurring).		Although	
Parker’s	 case	 is	 not	 overlaid	 by	 the	 same	 kinship	 considerations	 we	 addressed	 in	 Paisley’s	 case,	
because	 any	 placement	 for	 Parker	 will	 be	 a	 kinship	 placement,	 the	 Department’s	 withholding	 of	
consent	 when	 there	 are	 multiple	 suitable	 petitioners	 is	 nonetheless	 problematic	 whenever	 it	
deprives	suitable	petitioners	of	visitation	and	access	to	the	child	during	the	pendency	of	the	case.			
                                                                                      23	

the	child,	and	ultimately,	the	court’s	decision	on	which	placement	would	serve	

the	child’s	best	interest.			

	     [¶38]		I	believe	the	court’s	decision	was	correct	as	to	the	three	competing	

grandparents.		The	court	found	that	all	of	the	parties	love	and	are	loved	by	the	

child	and	that	all	three	parties	have	the	capacity	to	adopt	the	child.		The	court	

properly	 considered	 all	 of	 the	 necessary	 factors	 and	 ultimately	 found	 that	 it	

would	be	in	the	child’s	best	interest	to	be	adopted	by	the	paternal	grandmother	

and	 her	 partner.	 	 In	 this	 respect,	 I	 disagree	 with	 the	 Court	 that	 the	 issue	

surrounding	the	withholding	of	consent	for	the	paternal	grandmother	should	

be	reconsidered	on	remand.		Court’s	Opinion	¶	30.	

	     [¶39]	 	 Although	 the	 parties	 litigated	 the	 case	 as	 if	 the	 paternal	

grandmother	and	her	partner	were	requesting	adoption,	I	agree	with	the	Court	

that	it	is	necessary	to	remand	in	order	to	correct	the	record	and	secure	more	

information	 regarding	 the	 paternal	 grandmother’s	 partner	 and	 his	

commitment	to	Parker.					

	     	      	      	      	      	

	                          	
24	

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellant Department of Health and
Human Services

Deirdre M. Smith, Esq., Carolyn Liegner, Stud. Atty., and Kurt Peterson, Stud. Atty.
(orally), Cumberland Legal Aid Clinic, Portland, for appellant maternal grandmother

Dennis L. Jones, Esq. (orally), Farmingdale, for appellees paternal grandmother and
her partner


Augusta District Court docket numbers FM-2016-272, 384
FOR CLERK REFERENCE ONLY
	

	
