In re Nicholas G.
In re Nicholas G.
Opinion of the Court
[¶1] Nicholas G. appeals from a family matter judgment entered in the District Court (Biddeford, Driscoll, J. ) after a judicial review hearing in a child protection matter. The court dismissed the child protection matter without prejudice, opened a family matter, and entered an order in that family matter that conferred sole parental rights and responsibilities for the child on the child's mother and denied rights of contact to the father, who had been convicted of multiple sex crimes against a child and of possession of sexually explicit materials depicting children. We dismiss the appeal from the child protection matter and affirm the judgment entered in the family matter.
I. BACKGROUND
[¶2] The facts are drawn from the procedural record and from the court's findings, which are supported by competent evidence in the record. See 22 M.R.S. § 4036(1-A) (2017) ; Vibert v. Dimoulas ,
[¶3] The court (Janelle, J. ) ordered a trial placement of the child with her maternal grandparents, and in 2004, the court (Foster, J. ) held a hearing and found that the child was in circumstances of jeopardy with each of her parents. See 22 M.R.S. § 4035 (2017). In July of 2006, the court entered an agreed-upon order granting custody to the maternal grandparents and ordering that parental reunification efforts cease and judicial reviews be held only upon motion. See 22 M.R.S. § 4038(1-A)(A) (2017).
[¶4] A year later, the father moved for judicial review, seeking visitation rights. In December of 2007, the court (Mulhern, J. ) held an evidentiary hearing and ordered that any visits with the father be supervised.
[¶5] In April of 2012, during a time of inactivity in the child protection matter, the father was convicted of unlawful sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2017), sexual exploitation of a minor under age twelve (Class A), 17-A M.R.S. § 282(1)(C) (2010),
[¶6] Four years after his convictions, in March of 2016, the father moved for the appointment of counsel and for judicial review in the child protection matter. The court (Foster, J. ) appointed new counsel and a new guardian ad litem. Five months later, the father's counsel moved to withdraw on the grounds that the father and counsel could not agree on how to proceed and that the father had asked that he withdraw. The court granted the motion and appointed new counsel that September. When the court held a case management conference in anticipation of judicial review in April of 2017, the father requested that his recently appointed counsel withdraw and new counsel be appointed. The court granted the motion, though it "could find no fault with the representation [counsel] had provided."
[¶7] A judicial review hearing was scheduled for July 9, 2018. Just before that hearing, on June 22, 2018, the father's counsel moved to withdraw on the grounds that the attorney-client relationship had broken down and that the father was seeking other counsel. The court (Duddy, J. ), noting a pattern of the father delaying the process through his multiple requests for new counsel, denied counsel's motion to withdraw on June 25, 2018.
[¶8] The father, in a pro se pleading, moved to continue the hearing and to appear by video. As grounds for the motion to appear by video, he asserted that the county jail to which he would have been transported refused to dispense necessary medication and make "disability accommodations," though he offered no description of what specific medication and accommodations he would lack. The court denied the motion, stating, "See the Court's order dated 6-25-2018."
[¶9] Although the court had issued a writ of habeas corpus for the father to testify at the July 9, 2018, hearing, the father refused to be transported and was not present for the hearing. The court (Driscoll, J. ) held the judicial review hearing and afforded the father's counsel the opportunity to cross-examine the witnesses-the mother, the fifteen-year-old child, and the GAL-and to present evidence and argument.
[¶10] The court dismissed the child protection matter without prejudice and opened a family matter in which it entered a parental rights and responsibilities judgment-consented to by all parties except for the father-awarding the mother sole parental rights and responsibilities with no rights of contact for the father. See 22 M.R.S. § 4036(1-A). The court found that the father had not rebutted the statutory presumption that, due to his convictions, ordering his contact with the child would create a situation of jeopardy and not be in the child's best interest. See 19-A M.R.S. § 1653(6-A)(A)(1), (4), (5), (6-B)(A) (2017).
[¶11] The father appealed from both judgments. The Department moved to dismiss his appeal from the decision in the child protection matter on the ground that the statute authorizing appeals in such *787matters, 22 M.R.S. § 4006 (2017), does not authorize an appeal from an order of dismissal. We ordered that the motion be considered with the merits of the appeal and required the parties to "address in their briefs the proper procedure for an appeal from a parental rights order entered in a child protection case and docketed as the initiating document in a family matters case, given that the child protection matter contains the only available record for review on appeal."
II. DISCUSSION
[¶12] In this opinion, we (A) consider the Department's motion to dismiss; (B) review whether the father, who was found to be indigent, has a right to court-appointed counsel on appeal; and (C) review the court's decision entered in the family matter.
A. Motion to Dismiss Child Protection Matter
[¶13] In a previous "hybrid" situation in which a court issued both a jeopardy order and an order in a family matter, we held that a notice of appeal must be filed in each matter for the appeal to proceed. In re Paige L. ,
[¶14] Thus, although the father challenges the process employed in the hearing in the title 22 matter, it is not an issue that he can raise in a title 22 appeal. See 22 M.R.S. §§ 4006, 4038 (2017). As we have said, "When a parental rights and responsibilities order is issued as the disposition after an order that cannot be appealed, e.g., a judicial review order, the notice of appeal must identify the parental rights order as the order being appealed and must be filed in the parental rights and responsibilities action." In re Paige L. ,
B. Right to Counsel on Appeal
[¶15] Given that the child protection appeal has been dismissed, we next consider whether the Department is correct that an indigent parent does not retain the right to court-appointed counsel for the appeal from a family matter judgment entered pursuant to 22 M.R.S. § 4036(1-A). In contrast to In re Paige L. , where we held that counsel for the father "appropriately continued to represent him in th[e] appeal, because the appeal [was] taken from a title 22 jeopardy order,"
[¶16] An indigent parent has a due process right, now also codified in section 4005(2), to appointed counsel in a child protection proceeding. In re T.B. ,
[¶17] In the child protection matter, the father had the right to counsel up to and including the time of the entry of the child protection judgment. See 22 M.R.S. § 4005(2). As we have already discussed, the dismissal of the child protection case is nonappealable. See
C. Family Matter Appeal
[¶18] The father challenges the denial of his motion to testify by video link and the court's denial of his request for rights of contact with the child.
1. Denial of Motion to Participate by Video Link
[¶19] We review decisions related to the mode of presentation of evidence for an abuse of discretion, any factual findings for clear error, and alleged constitutional violations de novo. See Sparks v. Sparks ,
[¶20] "In every trial, the testimony of witnesses shall be taken in open court, unless a statute, these rules or the Rules of Evidence provide otherwise." M.R. Civ. P. 43(a). "The court may, on its own motion or for good cause shown upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location."
[¶21] The party moving for authorization for contemporaneous transmission from another location has the burden of establishing good cause. See
[¶22] Because the father had notice of the time and nature of the hearing and the opportunity to appear and be heard, there was no violation of the father's right to due process. It was the father's decision not to avail himself of the opportunity to appear that kept him from participating. See Haskell v. Haskell ,
2. Order of No Rights of Contact
[¶23] We review findings of fact for clear error and the determination of the best interest of a child for an abuse of discretion. See Boyd v. Manter ,
[¶24] Contrary to the father's contention, evidence was offered at trial indicating that the child is strongly negatively affected when she fears she will have contact with the father and does not want any contact with him, including by mail. The record does not compel a finding that the father rebutted the presumption that allowing him contact with the child would create a situation of jeopardy and would not be in the child's best interest. See
The entry is:
Motion to dismiss the appeal from the judgment entered in the child protection matter granted. Judgment entered in the family matter affirmed.
This statute was amended after the father committed the crime, though not in any way that affects this appeal. See P.L. 2015, ch. 394, § 1 (effective July 29, 2016) (codified at 17-A M.R.S. § 282(1)(C) (2017) ).
This statute was amended after the father committed the crimes, though not in any way that affects this appeal. See P.L. 2011, ch. 50, § 2 (effective April 25, 2011) (codified at 17-A M.R.S. § 284(1)(C) (2017) ).
The Department appropriately and successfully moved to seal the appendix given that the proceedings leading up to the entry of the family matter judgment were held in a child protection matter. See 22 M.R.S. § 4036(1-A)(A-1).
The record from the title 22 matter is, however, part of the record on appeal from the title 19-A judgment.
For the same reasons, the parent is not entitled to transcripts at state expense. Due to the confidential nature of all proceedings leading up to the family matter judgment, however, we adhere to the title 22 standards for access and confidentiality in such proceedings. See 22 M.R.S. §§ 4005-D, 4008 (2017) (constraining access to child protection proceedings and records). The Department's motion ensured that those safeguards were in place in this appeal.
Cf. In re A.M. ,
Reference
- Full Case Name
- IN RE CHILD OF NICHOLAS G.
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- 3 cases
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- Published