In re Ryan F.

224 A.3d 1051

IN RE CHILD OF RYAN F.

Docket: Sag-19-272

Supreme Judicial Court of Maine.

Submitted on Briefs: November 21, 2019

Decided: January 30, 2020

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

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

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.

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 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 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 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.

[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 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

...