The Law Court and Child Protection Law: a Failure to Protect
| Publication year | 2013 |
| Pages | 0136 |
| Citation | Vol. 28 No. 3 Pg. 0136 |
Summer 2013
Seth Berner
Imagine that you are a parent and one day your child is with you and the next day she isn’t. Imagine that you lost her, not because of illness or accident, but because of a court order. Imagine that you and professionals representing the state child-protective department and the guardian representing your daughter all thought that your daughter should stay with you, and not only believed that she would, but were unaware that any other outcome was even possible. Finally, imagine that the court granted custody of your daughter to a person with a recent history of alcoholism and domestic violence. Now put aside your imagination and accept this scenario as a real possibility. Because under a 2012 decision of the Maine Supreme Judicial Court, this could happen to you.
Practice Pointer 1: Do not leave a civil case management conference without an order identifying the issues that can be presented at trial, or you may find yourself having to deal with an issue you are unprepared for.
Part I: Parental Rights
Brooke B. and Christopher G.[1] had a rocky relationship from the beginning. By the time their daughter Adrianna was born the two were so dysfunctional that a family matter court declined to award joint parental rights to the separated couple on the ground that they would not get along well enough to make it work. Instead, the court gave sole parental rights and responsibilities to Brooke, with specified rights of contact to Christopher.
The Maine Department of Health and Human Services ("DHHS" or the "Department") became concerned that this arrangement was not protecting the child either, and invoked the Maine Child and Family Services and Child Protection Act.[2] When DHHS feels that a child is in trouble, it files a child protection petition stating its concerns.[3] If the parent does not consent to whatever short-term relief the Department is seeking, a contested hearing is held in the district court, at which the Department attempts to prove by a preponderance of the evidence that a child is "in circumstances of jeopardy to [his or her] health or welfare."[4]
In Adrianna's case, the Department filed a child protection petition alleging that both parents were neglecting their daughter. Following a testimonial hearing at which the Department sought an order of jeopardy against Brooke, the child-protection court found that she was responsible for circumstances of jeopardy and entered two orders affecting Adrianna: a child protection order dismissing the child protection petition, and a family matter order switching sole parental rights to Christopher.
The Law Court denied Brooke's appeal from the family matter order, holding in a Memorandum of Decision:
Contrary to [Brooke's] contentions, the court acted within its authority in amending the parental rights order based on the entry of a jeopardy order against her; the court's finding that placing primary care of the child with [her father] is in the child's best interests is also supported by the record.[5]
In its decision the Law Court cites a statute authorizing a child protection court to enter a family matter order "upon request of a parent ... if the court determines that the order will protect the child from jeopardy and is in the child's best interest."[6]The Court also cites the statute authorizing a family matter court to modify a prior order "as circumstances require: A. Upon the petition of one or both of the parents; or B. Upon the motion of an agency or person who has been granted parental rights and responsibilities or contact with a child under this chapter."[7]
The issue before the Law Court had not been whether a child protective court has authority to act as a family matter court in the abstract, but whether the district court in Brooke and Christopher's case exceeded its authority in reassigning sole parental rights from Brooke to Christopher. In an earlier case, the Law Court had remarked on a family matter order entered by a child protection court: "In this case, the court entered the order without a request by one of the parents. However, because neither party objects to the order on this basis the issue of whether the court could have entered the order is not before us."[8]This suggested that if a parent should contest such an order on that ground, the Law Court would consider the issue of the district court's authority to enter it. Hence, Brooke argued on appeal that no request for a family matter order had been made, and therefore the district court lacked authority to act.
The applicable statutes are clear that there must be a request or petition before a child protection court can enter a family matter order.[9]DHHS has some authority to seek such an order, but the Department did not ever petition, request, or otherwise ask the child protection court to amend the existing family matter order. Nor did Brooke make such a request. The question was whether Christopher had done so.
At no time prior to the district court hearing did Christopher make a request of any sort for a family matter order. The only thing that could conceivably be construed as such a request was the fol-lowing brief exchange between Christopher and his counsel on the second day of the hearing:
Q: So, you're willing to be the full-time Dad for Adrianna?
A: Absolutely.
Q: Okay. And you're asking the Court today to grant you custody?
A: Please. Yes.[10]
Did these three words uttered by Christopher in the course of his examination constitute a request or petition within the meaning of applicable law?
The statute authorizing a child protection court to enter a family matter order of any sort requires a "request." A request for modification of a family matter order must be made by "petition."[11]There is no obvious reason why the manner of seeking relief should differ depending on whether the request is directed to a family matter court with original jurisdiction, or to a child protection court authorized to exercise the powers of a family matter court. No court has ruled on the meaning of these terms in these statutes. Intuitively, "request" and "petition" in this context should mean the same thing.
A plain reading of the statutes suggests that the Legislature intended that both a request and a petition be in writing. The statute authorizing a child protective court to enter a family matter order "upon request" of a parent also provides that "[a]ny person who requests a modification or termination of the order must serve the department with the motion or petition."[12]In other words, a request must be in writing.
Petition is not defined in the family matter statutes. But a different section of Title 19-A that also provides for the modification or termination of an order of parental rights and responsibilities "upon the petition of one or both of the parents"[13]requires that a petition be "filed."[14]There is no use of the term petition in Title 19-A where advance notice is not required.
Rule 7 of the Maine Rules of Civil Procedure covers the obligations of a party seeking an order from a court:
An application to the court for an order shall be by motion which, unless made during a hearing, or trial, or under Rule 26(g), shall be made in writing, shall state with particularity the grounds therefor and the rule or statute invoked if the motion is brought pursuant to a rule or statute, and shall set forth the relief or order sought.[15]
The purpose of this requirement is to provide advance notice to other parties and to the court of the issues to be contested.[16]"The Legislature is presumed to be aware of the state of the law and decisions of [the Law] Court when it passes an act, "[17]meaning that when the Legislature imposed on a parent the need to "request" or "petition" the court, it was aware of the presumption of Rule 7 that applications for relief are to be in writing. The Legislature is perfectly capable of loosening the strictures of notice, [18]but since there is no pre-hearing exception to Rule 7, it must be presumed that the Legislature understood that a request or a petition would be in writing absent special circumstances.
As a general proposition, issues should be raised in advance and not sprung by surprise at hearing. Civil cases in Maine are required to go through a Case Management Conference, [19]a procedure that rejects the "sporting theory of justice" in favor of ad- v ance disclosure of what is to come.[20]"The purpose of a pre-trial order is to make specific the legal theories on which each party is proceeding and to crystallize and formulate the issues to be litigated at the trial. . . . If the order did not control the ensuing proceedings it would be rendered meaningless."[21]A pre-trial order is not carved in stone, and may be modified, but only when justice so requires.[22] Thus the Law Court has held that a party waived the argument that a contract was ambiguous by failing to advance that theory at the pre-trial conference.[23]
In Adriana's case, Christopher never made a written application to the child protection court to modify the existing family matter order. According to the Case Management Conference Order of September 9, 2011, Christopher never indicated that he would be seeking a family matter order in the child protection proceeding. Christopher therefore failed to comply with Rule 7 or Rule 16A (requiring written notice and/or advance disclosure of issues to be litigated at trial).
Rule 7 does include an exception waiving the requirement of written submission for motions made during hearing or trial.[24] But this exception is not a get-out-of-jail card for attorneys or litigants who failed to make motions that should have been made prior to trial. Rather, it is intended to provide an expedited way of dealing with issues...
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