MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 96 Docket: Ken

- 18

- 8 Argued : May	16 ,	2018 Decided: July	12,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN , JABAR , HJELM, and HUMPHREY, JJ.

IN	RE	CHILDREN	OF	BETHMARIE	R.

HUMPHREY ,	J. [¶1] Bethmarie	R. appeals	from	a	judgment entered	by the	District	Court (Waterville, Stanfill,	J. ) finding	jeopardy to	two	of	her	children pursuant	to 22 M.R.S.	 §	 4035 (2017)	 and	 ordering	 the	 Department	 of	 Health and Human Services	(the	Department)	to	cease	reunification efforts pursuant	to 22	M.R.S. § 4041(2)(A

- 2) (2017).		The	mother	contends	that	(1)	the court	erred when	it concluded that the	 doctrine of	 res	 judicata did	 not	 bind	 the	 Department	 to orders issued by	 the	Probate	Court concluding	 that	 the	children	were	not	in jeopardy , and	(2) her	due	process	rights	were	violated

. We affirm	the	judgment

.2 I. CASE	HISTORY [¶2 ] The	record	contains	the	following	procedural history. 1 In	January
2010 , the	 Somerset	 County	 Probate	 Court	 ( Alsop,	 J. )	 granted	 the	 mother’s petition	 to	 appoint	 the maternal grandmother to	 be full	 guardian	 of	 the two children at	issue	in	 this	case

. Between	2010	and	2016,	 the	mother	 filed four petiti ons	to	terminate	the	guardianship.		The	first two	petitions	were	denied, and	on	 the	 third	petition , the	court	limited	 the	guardianship	 to	allow	contact and	permit the	mother to	participate	in	decision

- making	for	the	children. [¶3 ] During	 a	 supervised	 vi sit	in	 August	 2013,	 the	mother	 absconded with	the	children	and	they	were	located	near	the South	Carolina	and Georgia border	 the	 next	 day. The	 mother	 was	 convicted	 of	 two	 counts	 of	 criminal restraint	in	February	2015	in	the	Superior	Court	(Kennebec	County, Horton,	J. ) and	 sentenced	 to	 two	 and	 one

- half	 years ’ imprisonment,	 with	 all	 but	 five months	suspended. [¶4 ] In	June	2016,	following a	series	of	motions	and	orders	concerning visitation,	the	mother	filed her	fourth petition in the P robate C ourt to termina te the guardianship. O n	 August	 18,	 2017 ,	 t he	 Kennebec	 County	 Probate	 Court

1 The	procedural	history	is	drawn	from	the	records	of	the	District	Court	and	the	Probate	Court. We may	 take	 judicial	 notice	 of the	 Probate	 Court’s	 records ,	 including the pleadings	 and	 docket entries. See Guardianship	of	Jewel	M., 2010	ME	80,	¶	24,	2	A.3d 301 ;	M.R.	Evid.	201.3 ( E. Mitchell,	J. ) 2 held	a	final	hearing	on	the	mother’s	petition	and	on	motions she filed to	enforce	and	compel	visitation.		In an August	28,	2017,	order , the	court conclud ed that	 it	 could	 not	 find	 the	 mother	 unfit and	 terminated	 the guardianship,	subject to	a	one
- month	transition of	the	children to	the	mother’s custody. [¶5 ] On September	1,	2017, the	grandmother filed	a	motion	 to	reopen the	evidence,	for	amended	findings	of	fact	and	conclusions	of	law,	and	to	stay enforcement	 based	 on four alleged incidents	 that had occurred since	 the August 18	 hearing: (1)	 the	 mother’s former boyfriend 3 was	 seen near	 the mother’ s	house,	(2 ) the	mother	bit her son,	(3)	the	mother sat	by	and did	not intervene	while	another	child	stomped	on her	son’s head, and (4) the mother pulled	bandages off	of her	son’s face in	a	way	that	inflicted	unnecessary	pain	to the	child

. The	mother	file d	a	motion	for	contempt that	same	day , alleging	that the	 grandmother was	 not	 complying	 with	 the August	 28,	 2017, order	 for

contact

.

2 The	matter	was	transferred	from	the	Somerset	County	Probate	Court	to	the	Kennebec	County Probate	Court	in	August	2016.

3 In	March	2013, the	grandmother ,	on	behalf	of	the	children, had petitioned	the	District	Court	for protection from	h arassment	orders	against this boyfriend,	and	the	court	(Waterville, Dow ,	J. )	ordered protection	after	a	hearing	in	July	2013. The	protection	order	expired	in	July	2014.4 [¶6 ] On	September	28,	2017,	 t he Probate	Court held	a	hearing	 on	 the new	evidence	and the issues	raised	by	the	motions. A Department caseworker testified	 at	 the	 hearing, but it	 is	 not	 clear whether	 and	 to	 what	 extent the Probate	 Court received	 information	 from	 the	 Department concerning	 the mother. 4 The	following	day,	t he	court	entered	an	intermediate	order requiring supervi sed	visits	with	the	mother. [¶7 ] On Saturday, October	 7,	 2017, before	 the	 Probate	 Court	issued	 a final	decision, the	Department	sought,	and t he	District	Court	(Augusta, Ende,	J. ) granted , a	 preliminary	 protection order pursuant	 to	 the	 Child	 and	 Family Services	and	Child	Pr otection	Act,	22	M.R.S.	§§	4001	to 4099

- H	(2017)

. In	its order,	 t he	 District	 Court granted	 custody	 to the	 grandmother ,	 ordered	 no contact	 with	 the	 mother,	 and	 relieved	 the	 Department	 of	 providing reunification	services. Pursuant	 to	M .R.	Civ.	P.	126	and 4	M.R.S.	§§ 152(5

- A) , 251

- A (2017) , t he	District	Court (Waterville, Stanfill,	J. ) conferenced	with	 the Probate	 Court and determined	 that ,	 because	 the	 Probate	 Court	 had	 already heard	 the	 pending	 motions	 and	 soon	 would	 issue	 its	 judgment, the	 probate

4 Although	the	Probate	Court	r ecord	indicates	that	the	guardian	ad	litem	reviewed a Departmen t file	concerning	a	2012	child	protection matter ,	that	proceeding	was	in	regard	to one	of	the	mother’s other	children.		Further,	there is	no	indication in	the	record that	the	Probate	Court issu ed	a Clifford Order,	22	M.R.S.	§	4008(3)(B) (2017) , to	obtain	the	Department’s	records	concerning	the	children	at issue.5 matter	would	be	transferred to	the	Waterville	District	Court after the Probate Court	 issued	 its amended	 order on	 the mother’s motion	 to	 terminate the guardianship.		After	conferencing	with	the	parties,	the	District	Court continued the	child	pr otection	hearing	until	November	because	it	would	be	“impracticable to	hold	a	summary	pre liminary	hearing	at	this	stage .” [¶8 ] O n October	18,	2017 ,	the	Probate	Court	denied	the	mother’s	motion to	terminate	the	guardianship, 5 “ but add[ed]	limitations	to” the	guardianship	to require	 supervised	 visits	 with	 the	 mother	 at	 least	 twice	 weekly , ordered transitional	services ,	and	ordered the	guardianship	to	be	further	reviewed	after three	months. The	court emphasized that the	grandmother had “consistently refuse d	 to	 work	 toward	 reunification	 of	 the	 children	 with	 their	 mother,” “willfully	ignored	this	court’s	initial	order	and [] made	a	transition	beneficial	to the	 children	 impossible	 by	 refusing	 to	 allow	 the	 children	 to	 follow	 the scheduled	visits,”	did	not	prese nt	“convincing	evidence	on	her	four	allegations against	 [the	 mother],”	 and did	 not	 present	 “ evidence	 that	 suggested

5 In	its	order,	 the	Probate	Court	stated	that	 “[a]t	no	point	during	this	case	did	 this	court	hear evidence	that	suggested	‘circumsta nces	of	jeopardy	to	the	children’s	health	and	welfare.’” Because the	court	did	not	terminate	the	guardianship,	however,	it	had	to	have	determined	that	the	mother was	unfit	in	some	way. See 18

- A	M.R.S.	§	5

- 212	(2017) ; Guardianship	of	Stevens ,	2014	ME	25, ¶	14, 86	A.3d	1197

.6 circumstances	 of	jeopardy	 to	 the	 children’s	 health	 and welfare. ” (Quotation marks	omitted

. ) [¶9 ] On	November	8 6 and	16,	2017,	a few	wee ks	after	the Probate	Court order	was	issued , the	District	 Court (Waterville, Stanfill,	J. ) held	 a combined summary	preliminary	hearing	and	jeopardy	hearing.		The	District	Court found jeopardy , see 22	 M.R.S.	 §	 4035(2)	 (2017) ,	 and issued an order	 on	 the Department’s	 petition	 on	December	 21,	 2017. The	District	 Court’s	jeopardy determination relied in	part on	the	biting,	stomping , and	bandage	allegations that	the	Probate	Court heard	and	adjudicated in	its	October 18,	2017 , judgment. In	stark contrast to	the	Probate	Court’s	order	for	transitional	services	to	return the	children	to	the	mother’s	care,	t he District	Court ordered	the	Department	to cease	 reunification with	 the	mother based	 on	 the	aggravating	 factor that	 the mother	had	subjected the children	to	treatment	that	was	“heinous	or	abhorrent to	 society” because	 she had	 been	 convicted	 of criminally	 restrain ing the se children and had abandoned her	other	children, 22	M.R.S.	§ 4002 (1

- B)(A)(1)

6 At	the	hearing	on	November	8,	2017,	the	preliminary	protection	order	was	amended	to	grant custody	 to	 the	Department	after	 the	grandmother	voluntarily	relinquished	her	guardianship.		The grandmother	was	thereafter	granted	intervenor	status	in	the	child	pr otection	proceedings. See 22 M.R.S.	§	4005

- D(5) (2017)

.7 (2017). 7 The	permanency	plan identified	by	the District	Court	was termination of	the	mother’s	rights	and	adoption	by the	grandmother

. [¶1 0 ] Based	on	the	evidence	before	the	District	Court,	the	court	made	the following	findings	of	fact	to	support	its	jeopardy	determination : [The	mother]	has	a	number of	children,	none	of	whom are	in her	custody. [ T he	children]	have	lived	with	 [their	grandmother ] since	2009, which	is	most	of	their	lives.		Although their	contact	and visits	with	 [their	mother]	have	waxed	and	waned	over	 the	years, the	children	have	not	b een	in	the	primary	care	of	their	mother	for over	eight	years. The	last	time	[the	mother]	got	close	to	regaining	custody	was in	2013.		She	was	regularly	seeing	the	children	under	a	transition plan.		For	reasons	unknown	to	this	court,	she	decided	to abscond with	the	children	from	a	supervised	visit.

. . . Although	the	children were	 physically	 unharmed,	 the	 “kidnapping”	 continues	 to	 loom large	in	their	minds,	especially	for	[the	boy]. The	children	began	 to	 transition	again	 to	 their	mother	 this summe r	 and	 were	 having	 regular	 visits.	 	 However,	 once	 again events	occurred	which	halted	the	transition.		The	behaviors	of	the children	after	visits	were	concerning.		[The	girl],	who	is	typically	a shy	and	quiet	girl,	became	increasingly	angry,	defiant	and	agit ated after	visits.		[The	boy]	did	not	want	to	go,	saying	he	was	afraid	his mother	 would	 take	 them	 again	 wher e	 no	 one	 would	 ever	 find them.

. . .

. . . . [The	 girl]	 was	 coming	 home	 from	 visits	 with	 her	 mother saying	 things	 to [the	 grandmother] like	 “y ou	 hate	 me	 and	 my

7 The	District	Court	order	also	cites	22	M.R.S.	 §	4002(1

- B)(D)	 (2017),	but	the	court’s	analysis leading	to	the	finding makes	clear	that	this	was	a	clerical	error.8 mother ,” “I	don’t	have	to	listen	to	you ,” “you’re	a	decrepit	old	Nana ,” and	 denying	 [the	 boy]	 is	 her	 brother.	 	 [The	 girl’s]	 behaviors culminated	in	 the	beginning	of	October	when	she	became	violent and	 threatening	 and	 taken	 into	 crisis. [ The	 grandm other’s	 ex

husband, ] who	remain s	very	involved	with	the	family[,] found	that [the	 girl]	 had	 a	 tape	 recorder	 hidden	 in	 her	 shirt.	 	 [The	 girl] reported	 that	she	got	it	 from	 [the	mother]	in	order	 to	record	 the conversations	at	 the [grandmother’s] ho me. [The	grandmother’s ex - husband] took	it	away,	and	[the	girl’s]	behavior	escalated.

. . .

. . . . [A	psychologist]	evaluated	[the	mother]	in	2011,	diagnosing her	with	a	personality	disorder	with	paranoid	features	as	well	as an	adjustment	disorde r.		He	noted	at	the	time	her	pattern	of	self

defeating	behaviors,	her	inability	to	do	what	needed	to	be	done	to get	 her	 children	 back.	 	 After	 reviewing	 documents	 concerning recent	events,	he	felt	that	her	actions	continue	to	be	consistent	with his	 2011	 eva luation:	 she	 still	 does	 not	 understand	 the	 issues	 or demonstrate	 any	 insight,	 she	 has	 not	 accepted	 services,	 and	 she continues	 her	 self

- defeating	 behaviors.	 	 [The	 psychologist’s] testimony	 and	 opinions	 are	 consistent	 with	 [the	 mother’s] presentation	 in	 cou rt.	 	 Her	 affect	 in	 the	 court	 was	 flat, demonstrating	 no	 emotion.	 	 She	 seemed	 incapable	 of understanding	 a	 viewpoint	 different	 from	 her	 own,	 of understanding	the	risks	and	benefits	of	different	courses	of	action, or	of	even	making	decisions.		She	has	her	lo ng - held	views	and	sees no	reason	to	even	consider	services	or	change. The	testimony	of	the	children’s	therapist	and	of	the	Guardian ad	litem	ultimately	is	very	persuasive	to	this	court.		[The	therapist] has	been	seeing	the	children	in	therapy	since	2015 .		The	children ordinarily	function	quite	well,	until	they	are	stressed	by	the	visits with	 their	 mother.	 	 During	 the	 stress	 of	 visits	 and	 reunification, their	 behaviors	 become	 problematic.	 	 [The	 girl]	 becomes	 angry, threatening	 and	 yells.	 	 [The	 boy’s]	 anxi ety	 increases	 and	 he	 has sleep	 difficulties.	 	 Even	 though	 they	were	 not	 physically	 harmed when	[the	mother]	illegally	took	the	children,	there	has	never	been9 any	 resolution	 of	 this	 for	 the	 children.	 	 They	 worry	 that	 it	 will happen	 again. [The	 grandmother] has	 provided	 stability	 and consistency,	and	they	feel	safer	with	her.		Such	uncertainty	is	not healthy	for	the	children,	and	their	behaviors	speak	volumes. The	court	has	no	question	that [the	grandmother	and	her	ex

husband] have	frequently	involved	the	children	in	the	conflict	and adult	issues,	and	have	not	always	followed	through	with	visits	and transition	 plans.	 	 They	 have	 unilaterally	 made	 decisions	 to	 the detriment	of	the	children’s	relationship	with	their	mother.		But	[t he mother’s]	actions	have,	without	more,	put	the	children	in	jeopardy. They	 have	 suffered	 serious	 emotional	 harm	 at	 her	 hands,	 and would	continue	to	do	so	if	returned	to	her	care. [¶1 1 ] In	 its	 findings,	 t he	 District	 Court also describe d three	 of	 the incidents	 that	 served	 as	 the	 basis	 for	 the	 grandmother’s	 September	 1,	 2017,
motion to	the	Probate	Court : In	 late	 August,	 [the	 boy]	 came	 downstairs	 to	 his grandmother;	[the	mother]	was	upstairs.		He	had	bite	marks	on	his right	 shoulder,	 and	 r eported	 that	 his	 mother	 bit	 him.	 	 This	 was confirmed	by	 [the	girl].		While	apparently	 [the	mother]	regularly playfully	nipped	the	children	on	the	ear	and	the	like,	this	biting	left marks	and	was	not	appropriate. Later	that	same	evening, [the	grandmother ] was	downstairs and	 [the	boy]	was	 playing	with	 another	child	in	 a	bedroom	with [the	mother]. [The	grandmother] heard	[the	boy]	screaming	and rushed	upstairs	to	the	bedroom.		There	she	found	[the	boy]	on	the floor,	the	other	child	“stomping”	on	[the	boy’s ]	head ,	blood	under him,	and	[the	mother]	sitting	there	and	not	intervening	while	[the boy]	 screamed. [The	 grandmother] was	 able	 to	 separate	 the children	 and	 [the	 boy]	 did	 not	 suffer	 any	 serious	 injury.	 	 When asked	why	she	did	not	intervene	to	protect	[th e	boy],	the	mother said	 she	 cannot	 touch	 another	 child.	 	 Even	 afterwards	 she maintained	that	she	would	not	h ave	done	anything	differently.10
A	few	days	later,	on	August	30,	[the	boy]	placed	band

- aids	on his	face	before	a	visit	with	his	mother. [The	grandm other] gave	him a	magic	marker,	and	he	wrote	on	 the	bandages	 something	 to	 the effect	of	“why	are	you	kidnapping	me	again.”		Rather	than	consoling him	 or	 talking	 about	 his	 concerns,	 [the	 mother]	 ripped	 the bandages	off,	apparently	oblivious	to	any	problem. [¶1 2 ] Unlike	 the	District	 Court,	 the	 Probate	 Court	 previously	 rejected accounts	 of these	 incidents	 because	 the	 grandmother	 did	 not	 present “convincing	evidence” of her	allegations and the	Probate	Court concluded	that the	 evidence	 did	 not	 “suggest[] circumstances	 of	 jeopardy	 to	 the	 children’s health	and	welfare.”		(Quotation	marks	omitted

. ) [¶1 3 ] The	mother	timely	appealed the	District	Court’s	judgment

. See 22 M.R.S.	§	4006 (2017);	M.R.	App.	P.	2B(c)(1).
II.		DISCUSSION
A. Res	Judicata [¶1 4 ]		Th e	mother	argues	that	the District	Court	erred	when	it	concluded that	the	doctrine	of	res	judicata	did	not	make	the	orders	of	the	Probate	Court binding	on	the	Department. She asserts that	the	Department	was	barred	from relitigating	i ts	claim	that	the mother	exposed the	children	to	jeopardy	and that the	Department	was estopped	 from	contesting	 factual	 findings	issued	by	 the11 Probate	Court. We	review de	novo	a	determination	that	res	judicata	does	not bar	litigation. See Guardianship	of	Jewel	M., 2010	ME 80,	¶	38,	2	A.3d	301

. [¶1 5 ] “The	doctrine	of	res	judicata	.	.	.	is	a	court

- made	collection	of	rules designed	to	ensure	that	the	same	matter	will	not	be	litigated	more	than	once.” Pushard	v.	Bank	of	Am.,	N.A. ,	2017	ME	230,	¶	19,	175	A.3d	103 (quotation	m arks omitted).	 	 Res	 judicata	 encompasses	 two	 different	 legal	 theories:	 claim preclusion	 (bar)	 and	 issue	 preclusion	 (collateral	 estoppel). See	 id. “Claim preclusion	prohibits	relitigation	of	an	entire	cause	of	action	between	the	same parties	 or their privi es,	 once	 a	 valid	 final	judgment	has	been	 rendered	in	an earlier	suit	on	the	same	cause	of	action

. ” Id. (quotation	mark s	omitted). “Issue preclusion

. . . prevents	the	relitigation	of	factual	issues	already	decided	if	the identical	 issue	 was	 determined	 by a	 prior	 final	 judgment,	 and	 .	 .	 .	 the	 party estopped	 had	 a	 fair	 opportunity	 and	 incentive	 in	 an	 earlier	 proceeding	 to present	 the	 same	 factual	 issue	 or	 issues	 it	 wishes	 to	 litigate	 again	 in	 a subsequent	 proceeding.	 	 Collateral	 estoppel	 arises	 only	if	 the identical	issue necessarily	 was	 determined	 by	 a	 prior	 final	 judgment.” Guardianship	 of Jewel M., 2010	ME	 80,	¶ 39 ,	2	A.3d	301 (citations	 omitted)	 (quotation	marks omitted).		“ Principles	of	res	judicata	must	be	applied	with	caution	in	domestic relations	ca ses,	as	new	developments	often	inform	decisions	as	to	what	may	be12 in	 the	 best	 interest	 of	 a	 child	 in	 circumstances	 where	 relationships	 must continue	and	will	change	over	time	until	a	child	reaches	majority. ” I d. ¶ 41. [¶1 6 ] Common	to	both legal	theorie s is	the require ment that	the	party sought to	be	barred	or	estopped from	litigating	the	claim	or	issue was	a	party or	privy to	a	party	in the	earlier	case. See In	re	M.M. ,	2014	ME	15,	¶	16,	86	A.3d
622 (explaining	 that	claim	preclusion	 requires	 that	 the	same	parties	or	 their privies	are	involved	in	both	actions); Beal	v.	Allstate	Ins.	Co. ,	2010	ME	20,	¶ 18, 989	 A.2d	 733 (explaining	 that	 where,	 as	 here ,	 “a	 party	 asserting	 nonmutual collateral	estoppel

— whe re	the	parties	are	not	the	same	parties	or	privies	to	the prior	proceeding

— must	establish	that	the	party	to	be	estopped	was	a	party or in	privity	with a	party	in	the	prior	proceeding ”)

. Because	t he Department	was not	 a	 party	 to	 the	 probate	 proceeding , we will	 not	 apply	 res	 judicata	 to	 the probate	 proceedings	 unless	we	 conclude	 that the	Department was	in	 privity with	the	grandmother. [¶1 7 ] “Privity	exists	when	two	parties	have	a	commonality	of	ownership, control , and	interest	in	a	proceeding.” In	re M.M. ,	2014	ME	15,	¶	16,	86	A.3d
622 (quotation	 marks	 omitted). We	 agree	 with	 the	 District	 Court	 that	 the grandmother	and	 the	Department	did	not	have	 the	same	ownership,	control, and	interest	in	 the	probate	proceedings. Although	 the	Department	ha s	been13 in volved	 with	 the	 family over	 the	 years	 and a	 Department	 caseworker	 was called	to	testify	at the	September	2017	probate	hearing,	the	court	was	correct when	 it	 determined	 that “[t]he	 Department	 could	 advise	 and	 inform [the grandmother] ,	but [it] could	not	con trol	her	actions	or	interests	in	the	probate proceeding.” [¶1 8 ]	 	 Contrary	 to	 the	 mother’s	 contention s ,	 the	 Department	 and	 the grandmother	did	not	have	the	same	interest	in	the	proceeding,	either. We	agree with	the	District	Court	that “[t]he	Department’s interest	is	defined	by	statute; even	if	 [ the	grandmother had]	 the	best	interest	 of	 the	children	at	heart, [the grandmother had]	her	 own	interest	at	 stake.” By	 statute,	 t he	Department	is required	 “to	 protect	 abused	 and	 neglected	 children	 and	 children	 in circumstances	that	present	a	substantial	risk	of	abuse	and	neglect,	to	prevent further	abuse	and	neglect,	 to	enhance	 the	welfare	of	 these	children	and	 their families	 and	 to preserve	 family	 life	 wher ever	 possible.” 22 M.R.S.	 §	 4004 (2) (2017). The	Departmen t	is also	required	to	file	petitions	for	child	protection	if, after	investigation,	 the	 Department	 “ determines	 that	 a	 child	is	 in	immediate risk	 of	 serious	harm	 or in jeopardy	 as	defined	i n	 [chapter	1071].”		 22	M.R.S. § 4004(2)(F).		At	the	jeopardy	hearing, the	court	must	make	a	determination	of the	 question	 of	 jeopardy. See 22	 M.R.S.	 §	 4035(2) (2017).	 	 Thus,	 the14 Department’s	interest	in	a	child	protection	proceeding	can	be	characterized	as protecting	 the	 child	 from	 jeopardy	 and	 enhancing	 the	 child’s	 welfar e,	 and because	 the	 Department	 must	 preserve	 family	 life	 whenever	 possible,	 the Department	must	 aid	 the	court	in	 reaching	 the proper determination	 on	 the question	of	jeopardy. [¶1 9 ] In	 contrast,	 t he	 statute	 governing	 guardians	 does	 not	 compel	 a guardian	 to align	her	interests	with	 the	Department ’s	interests and	statutory obligation s . See 18

- A	M.R.S.	§	5

- 209	(2017) (explaining	that	the	guardian	has the	powers	and	responsibilities	of	a parent ).		The	guardian	is	permitted	to	act with	 the	 goal	 of	 retaining	 custody, and	 that	 interest may	 conflict	 with	 the Department’s	 interest in protecting	 children	 and	 preserving	 family	 life whenever	possible. In	this	case, the	District	Court	found	that the grandmother has	 involved	 the	 children	 in the	 conflict	 with	 the	 mother	 and	 has	 made decisions	 to	 the	 “detriment	 of	 the	children’s	 relationship	with	 their	mother,” which	suggests	that	she	was	not	interested	in	preserving	the	family	and	has	not always	acted	to “ enhance	the	welfare ” of	the	children

. See 22 M.R.S.	§ 4004(2)

. [¶20 ] The	court	did	not	err	when	it	declined	to	apply	res	judicata in this case	because	the	Department	and	the	grandmother	were	not	in	privity	in	the probate	proceedings. In	order	to	fulfill	its	legislative	mandate,	the	Department15 was	not	barred	from	litigating its	claim	that	the	children	were	in	jeopardy	and present ing evidence	on	issues	already	decided	by	the	Probate	Court

. B. Due	Process [¶ 2 1] The	mother next argues that	the	Department and	the District	Court violated	 her	 due	 process	 rights	when she	was subjected	 to	 a	 second	judicial proceeding	on	the	same	claims	and	facts	that	the	Probate	Court	decided	in	her favor	while	the	child	protection	proceedings	were	pending. [¶22 ]		We	described	a	parent’s	right	 to	due	process	in	child	protection proceedings	and	the applicable test	in our	d ecision	in In	re	M.P. : When	 analyzing	whether	 a	 party	was	 afforded	 the	 process that	is	due, we balance the	three	factors	articulated	by	the	Supreme Court	 of	 the	 United	 States	 in Mathews	 v.	 Eldridge ,	 424	 U.S.	 319 [ (1976) ] : First,	 the	 private	interest	 that will	 be	 affected	 by	 the official	 action;	 second,	 the	 risk	 of	 an	 erroneous deprivation	 of	 such	 interest	 through	 the	 procedures used,	 and	 the	 probable	 value,	if	 any,	 of	 additional	 or substitute	 procedural	 safeguards;	 and	 finally,	 the Government ’ s	interest,	i ncluding	the	function	involved and	 the	 fiscal	 and	 administrative	 burdens	 that	 the additional	 or	 substitute	 proce dural	 requirement would	entail.
In	re	M.P

. ,	2015	ME	138, ¶ ¶ 30

- 31,	126	A.3d	718	(citations	omitted)	(quotation marks	omitted) .		Our	review	of	a n	alleged	constitutional	violation	is	de	novo.
See State	v.	Jones, 2012	ME	126,	¶	35,	55	A.3d	432.16 [¶23 ] With	 regard	 to	 the	 first	 factor,	 the mother’s	 right	 “to	 make decisions	 concerning	 the	 care,	 custody,	 and	 control	 of	 [her	 children]”	 is	 a fundamental	liberty	interest	that	is	protected	by	the	Due	Process	Clause. See Rideout	 v.	 Riendeau, 2000	 ME	 198,	 ¶	 18,	 761	 A.2d	 291 (quotation	 marks omitted ).		That	constitutional	liberty	interest	is	not	absolute	or	free	from	state interference,	 and although the	 Due	 Process	 Clause	 provides	 heightened protection	 against	 state	 intervention,	 it	 is	 “not	 an	 impenetrable	 wall	 behind which	parents	may	shield	their	c hildren.” Id. ¶	19.		As	to	the	third	factor, “ the State	 has	 a	 compelling	interest	in	limiting,	 restrictin g,	 or	 even	 terminating	 a parent’ s	 rights	 when	 harm	 to	 the	 child	 will	 result	 from	 the	 absence	 of	 such governmental	interference ,” Pitts	v.	Moore ,	2014 ME	59,	¶	14,	90	A.3d	1169 ,	as well	as	“ a	significant	interest	in	obtaining	stability	and	permanency	for	ch ildren within	a	reasonable	time, ” In	re	M.P

. ,	2015	ME	138,	¶ 32,	126	A.3d	718

. [¶24 ]		Bearing	these	competing	interests	in	mind,	we	consider the	second factor	 and what	 due	 process necessitates in	 child	 protection	 proceedings:

“ notice	of	the	issue s ,	an	opportunity	to	be	heard, the	right	to	introduce	evidence and	 present	 witnesses,	 the	 right	 to	 respond	 to	 claims	 and	 evidence,	 and	 an impartial	 fac t
- finder.” In	 re	 Robert	 S. ,	 2009	 ME	 18,	 ¶	 14,	 966	 A.2d	 894 (quotation	 marks	 omitted)

. The mother	 argues	 that	 the	 District	 Court17 proceedings	“deprived	her	of	a	meaningful	process	to	vindicate	her	rights,”	but she	does	not point	to a deprivation	of	any	par ticular	procedural	right.		Indeed, the	record	shows	that the mother	had	notice	of	the	issues, was	represented	by counsel, was	present	at	 the	District	Court	hearing s ,	introduced	evidence	and presented	witnesses,	cross

- examined	the	Department’s	witnesses,	and had	an impartial	 fact

- finder	 who	 ensured	 that	 she	 understood	 the	 potential consequences	 associated	 with	 the	 proceedings

. See	 id. It	 is	 true	 that	 the Probate	 Cou rt	 and	District	 Court reached	 different	 conclusions	 after	 hearing some	of	the	same	evidence and from	some	of	the	same	witnesses ,	but	this	does

not amount	 to	 a	 deprivation	 of	 being heard	 in	 a	 meaningful	 time	 and	 in	 a meaningful	manner. See In	re	M.P. , 2015 ME	138,	¶	38,	126	A.3d	718

. III. CONCLUSION [¶25 ]		We	conclude	 that	 the	procedures	 followed	by	 the	District	Court were	adequate	to	protect	the	mother’s	liberty	interest	while	at	the	same	time safeguarding	 the	 State’s	interest	in	 protecting	 these	 children	 and	 promoting stability	and	permanency	without	fu rther	delay. See	id. ¶	37.		No	due	process violation	has	been	demonstrated	on	this	record.		Further,	although	not	argued by	 the	 mother,	 the District	 Court’s findings	 are	 supported	 by	 competent evidence	in	the	record	that	can	rationally	be	understood	to	es tablish	as	more18 likely	 than	 not	 that	 the	 children	 were	 in	 circumstances	 of	 jeopardy	 to	 their health	and	welfare. See 22	M.R.S.	§ 4035(2); In	re	Nicholas	S. ,	2016	ME	82,	¶ 9, 140	A.3d	1226

. Accordingly,	we	affirm	the	court’s	jeopardy	determination. [¶26 ] Finally,	 we	 note	 that,	 in	 spite	 of	 the	 significant	 benefits	 and protections	 provided	 by	 the	 Home	 Court	 Act,	 4	 M.R.S.	 §	 152(5

- A),	 this	 case highlights	 a	 problem	 that	 may	 recur	 because the	 District	 Court	 and	 Probate Court	continue	to	have	jurisdiction over child

- related	litigation	that may	permit nearly	simultaneous	proceedings	in	each	forum concerning	custody	of	the	same children

. See 4	M.R.S.	 §	152(5

- A); see,	e.g. ,	18

- A	M.R.S.	 § 5

- 102	 ( granting the Probate	 Court	 exclusive	 jurisdiction	 over	 guardianship	 p roceedings,	 subject only	 to	 the	 H ome	 Court	 Act,	 4	 M.R.S.	 § 152(5

- A));	 22	 M.R.S.	 § 4031	 (2017) (giving	 the	 District	 Court	 exclusive	 jurisdiction	 over	 child	 protection proceedings,	except	that	the	Probate	Court	and	Superior	Court	have	concurrent jurisdiction to	act	on	requests	for	preliminary	child	protection	orders	pursuant to	 22	 M.R.S.	 §	 4034	 (2017)). Because the	 Department did not	 file	 a	 child protection	proceeding	in	the	District	Court	until the	Probate	Court	was	about to	issue	a	final	order	in	the	proba te	case , even	under	the	Home	Court	Act,	the District	Court	had	no	occasion	to	consolidate	the	proceedings until	there	had already	been	a	significant	litigation	event

.19 [¶27 ] In	the	end, the	jurisdictional	overlap	le d	to	the	situation	in	this	case where	much	of	the	same	evidence	regarding	the	custody	and	best	interests	of the	same	children	was	heard	in	two	different forums,	applying	similar	but	not identical	 standards.	 	 Given	 the	 separately	 created	 jurisdictions	 of	 th e	 two courts,	 the	differing	parties,	and	 the	different	standards	at	play	as	between	a guardianship	and	a	child	protection	proceeding,	the	resulting	determinations of	the	District	Court	could	lawfully	vary	substantially	from	those	of	the	Probate Court.	 	 The fact	 that	 the	 children	 were	 the	 subject	 of	 five	 different	 custody orders	between	August	and	December	2017,	and	 that	 the	courts	could	 reach such	 substantially	 different	 results , creates	 an	 understandable	 sense	 of frustration	 for	 the	 families	 involved.	 	 Unt il	 a	 unified	 system	 of	 child

- related litigation	 is	 established	 by	 the	 Legislature,	 these	 distressing events	 may
continue	to	occur. The	entry	is: Judgment	affirmed.20 Rory	A .	McNamara,	Esq. (orally) ,	Drake	La w,	LLC,	Berwick,	for	appellant	m other Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen. (orally) , Office	of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and Human	Services Elyse	 Marye	 Apantaku,	 E sq.,	 Schneider	 &	 Brewer,	 Waterville,	 for	 appellee grandmother

Waterville	District	Court	docket	numbers	PC

- 2017

- 41	and	PC

- 2017

- 42 F OR C LERK R EFERENCE O NLY