Guardianship of Ella M. Grenier
Guardianship of Ella M. Grenier
Opinion
[¶ 1] Nicole Grenier, the mother of Ella M. Grenier, appeals from a judgment entered by the Penobscot County Probate Court ( R. Bradford, J. ) granting the petition of Ella's maternal grandmother, Tammy Hopkins, for temporary guardianship pursuant to 18-A M.R.S. §§ 5-204(c), 5-207(c) (2017). Nicole contends that the evidence does not support the court's finding of a temporarily intolerable living situation for Ella. We agree and vacate the judgment.
I. BACKGROUND
A. Procedural History
[¶ 2] In April 2016, Tammy Hopkins and her husband, Marlyn Hopkins, filed a petition for guardianship of Tammy's maternal granddaughter, Ella. In October 2016, by agreement between Nicole, Tammy, and Marlyn, the court entered an interim order granting temporary placement of Ella with Tammy and Marlyn. The court then entered another interim, agreed-upon order in February 2017, maintaining that arrangement.
[¶ 3] On July 11, 2017, at the hearing on the petition for guardianship, the court observed at the outset that Marlyn had not appeared for the proceedings. 1 The court then heard testimony from Tammy; Nicole; and Ella's guardian ad litem, Earl Brown, Esq. After the hearing, the court issued the judgment that is the subject of this appeal. Without making any findings of fact, the court granted Tammy's petition and concluded that she had proved, by clear and convincing evidence, that a temporarily intolerable living situation for Ella existed as to Nicole, and that Tammy would provide a living situation that was in Ella's best interest.
B. Motion for Findings
[¶ 4] Four days after the judgment was entered, Nicole filed a motion for findings of fact and conclusions of law pursuant to M.R. Civ. P. 52(a). See M.R. Prob. P. 52 (providing that M.R. Civ. P. 52 applies in probate proceedings). The court then issued findings of fact and conclusions of law that included, in relevant part, the following:
4. Nicole has lived with her mother and step-father at various times during the course of this litigation but at the time of the hearing was living on her own with her children, outside her mother and step-father's home.
....
6. Approximately two months prior to the hearing in this case on July 11, 2017, petitioner Tammy Hopkins requested that Nicole and both her children leave her home because of conflict between Nicole and petitioner Marlyn Hopkins. That conflict involved physical confrontation between Nicole and Marlyn Hopkins, in front of both children, and that conflict was upsetting to Ella. Petitioner Tammy Hopkins removed a crying Ella from the area of conflict.
7. Marlyn Hopkins consumes amounts of alcohol daily and sometimes his alcohol use increases his anger, irritability and abusive behavior against Nicole, according to the testimony of both Nicole and his wife Tammy.
....
9. The presence of Marlyn Hopkins in petitioner Tammy Hopkin[s]'s environment does not by itself render Tammy's home unsafe and not appropriate to the residence of Ella.
10. Nicole has experienced periods of instability in her life. Nicole's home is not appropriate in the view of the guardian ad litem and the GAL's concerns relate primarily to the amount of time that Nicole has been in the environment as well as the presence of at least one pit bull dog. Nicole testified that her intention is to stay in the environment and she has no plans to move. The Court concludes, on the evidence presented, that Nicole's environment is "temporarily intolerable."
11. At the time of the hearing Nicole was living with both her children and there was evidence to suggest that her living situation created a risk for Ella. This Court concludes that Tammy Hopkins'[s] (but not Marlyn Hopkins'[s] ) petition for guardianship as the proposed guardian has met her burden to demonstrate, by clear and convincing evidence, that Nicole's current living situation creates an environment that is "temporarily intolerable" for Ella.
Nicole timely appealed from the judgment. See 18-A M.R.S. § 1-308 (2017) ; M.R. App. P. 2B(c)(2)(B).
II. DISCUSSION
[¶ 5] Nicole argues that the record lacks sufficient evidence to support the court's finding that her living situation is "temporarily intolerable" for Ella.
Title 18-A M.R.S. § 5-204(c) provides, in pertinent part,
The court may appoint a guardian or guardians for an unmarried minor if ... the court finds by clear and convincing evidence that ... a living situation has been created that is at least temporarily intolerable for the child even though the living situation does not rise to the level of jeopardy required for the final termination of parental rights, and that the proposed guardian will provide a living situation that is in the best interest of the child ....
18-A M.R.S. § 5-204(c). Although section 5-204(c) does not define the term "temporarily intolerable ... living situation," our "construction of that term is informed ... by the fundamental liberty interest parents have in parenting their children."
Guardianship of Jewel M.
(
Jewel I
),
[¶ 6] This means that a parent's interest in parenting his or her child "may not be infringed simply by proof that a grandparent might provide a 'better' living arrangement for the child."
Guardianship of Jewel M.
(
Jewel II
),
A. Standard of Review
[¶ 7] Where a motion for findings of fact has been filed pursuant to M.R. Civ. P. 52(a), "we review the original findings and any additional findings made in response to the motion for findings to determine if they are sufficient, as a matter of law, to support the result and if they are supported by the evidence in the record."
Bayberry Cove Childrens' Land Tr. v. Town of Steuben
,
[¶ 8] "When reviewing sufficiency challenges for clear and convincing evidence, we examine whether the trial court could have reasonably been persuaded on the basis of evidence in the record that the required factual findings were highly probable."
In re M.S.
,
B. Parental Unfitness
[¶ 9] Nicole contends that the court's finding that her environment is "temporarily intolerable" is not supported by clear and convincing evidence, but rather that the evidence established she "is doing well, as both her mother and the [guardian ad litem] acknowledge[,] and has been doing well for some time." This case raises an issue we recently contemplated in
Thayer
,
[¶ 10] Responding to the father's argument that the court was not permitted to consider his past lack of participation when determining "consistent participation," id. ¶ 21, we concluded that, although the standard is whether the parent is unfit "at the time of the hearing," id. ¶ 25, the trial court had "correctly and appropriately considered both the father's past actions and his recent actions in determining that he is currently unfit," id. ¶ 27. Specifically, we affirmed the court's consideration of its findings "that the father demonstrated a lack of consistent participation in [his daughter's] life during the time that she lived with the maternal grandparents, and that the father remained unable to care for [his daughter] at the time of the hearing on the petition ." Id. (emphasis added).
[¶ 11] Turning to the case at hand, the court's factual findings do not, as a matter of law, support a determination that Nicole is "currently unable to meet the child's needs and [that] that inability will have an effect on the child's well-being that may be dramatic, and even traumatic, if [Ella] lives with [Nicole]."
Jewel I
,
[¶ 12] Accordingly, unlike in Thayer , where the court supported its finding of current parental unfitness by referencing specific findings of past unfitness-thereby employing that past unfitness to inform the father's lack of consistent participation at the time of the hearing-the court here made only the nebulous finding that, in the past, "Nicole has experienced periods of instability in her life." This finding does little to inform the court's finding that, at the time of the hearing, "Nicole's home is not appropriate in the view of the guardian ad litem ... primarily [due] to the amount of time that Nicole has been in the environment." Thus, it is unclear why, in the court's view, Nicole's lack of time in her present environment rendered her an unfit parent.
[¶ 13] Absent clarifying findings of past unfitness, the court's finding that a temporarily intolerable situation existed as to Nicole rests on (1) its recitation that her home was not appropriate-in the view of the guardian ad litem-due to both the limited amount of time she had been there and the existence of at least one pit bull dog;
3
and (2) Nicole's testimony that she intended to stay at that home. These reasons are insufficient, as a matter of law, to justify an intrusion into Nicole's fundamental liberty interest in the care, custody, and control of her child. Moreover, we may not infer that the court made additional findings necessary to support its judgment.
See
Tucker
,
[¶ 14] Furthermore, we also consider whether-independent of the sufficiency of the court's stated findings to support its order and even in the absence of a proper Rule 52(a) motion-this record contains sufficient evidence of Nicole's parental unfitness such that the court "
could have
reasonably been persuaded on the basis of evidence in the record that [a temporarily intolerable living situation was] highly probable."
See
In re K.M.
,
[¶ 15] In
Dunning v. Dunning
, we emphasized that a clear error analysis necessarily requires our review of the entire evidence, reasoning, "[T]his record contains such evidentiary weight and it has led us to such convictional certainty that we do not feel able to escape the view that the trial court has failed to make a sound survey of or to accord the proper effect to all of the cogent facts ...."
[¶ 16] In light of these positive developments, the fact that Nicole is living with the boyfriend after having known him briefly-seemingly the basis for the GAL's concern that she has not spent a sufficient period of time in her current environment-is not the "exceptional circumstance[ ] affecting [Ella]" that would justify an intrusion into their parent-child relationship.
Pitts
,
The entry is:
Judgment vacated. Remanded with instructions to terminate the guardianship order. Mandate to issue forthwith.
Tammy testified that Marlyn elected not to attend the hearing because "he wants it to be my decision because I'm the one stuck between my daughter and granddaughter, and he thought I should make that decision, not him." Accordingly, the court held in its order that "the evidence supports a finding of default and a denial as to his being appointed co-guardian."
Title 18-A M.R.S. § 5-204(d) (2017) provides that a court may appoint a guardian for an unmarried minor if it "finds by clear and convincing evidence that there is a de facto guardian and a demonstrated lack of consistent participation by the nonconsenting parent."
The guardian ad litem did not offer any testimony that the dogs displayed violent characteristics, and the court properly sustained an objection to the question, posed by Tammy's counsel to the guardian ad litem, "[B]ased on your experience, do you have concerns about pit bull dogs?"
Because we determine that the court erred in finding parental unfitness as to Nicole, it is not necessary to address the best interest element of the guardianship analysis.
See
In re Scott S.
,
Reference
- Full Case Name
- GUARDIANSHIP OF Ella M. GRENIER
- Cited By
- 3 cases
- Status
- Published