MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017	ME	54 Docket: Yor

- 16

- 72 Argued: September	15,	2016 Decided: February	24,	2017 Re issued : March	16,	2017 Corrected: July	27 ,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and HUMPHREY ,	JJ.

GUARDIANSHIP OF	ALISHA	K.	GOLODNER

PER	CURIAM [¶1]	 	 Daniel	 Golodner	 appeals	 from	 a	 judgment	 of	 the	 York	 County Probate	Court	( Longley,	J. )	denying	his	petition	to	terminate	the guardianship of	his	now fourteen

- year - old	daughter,	Alisha K.	Golodner , upon finding	 that (1) the	guardian ,	Gail	Golodner, proved,	by	clear	and	convincing	evidence,	that Daniel	 is	 unfit	 to	 parent	 Alisha;	 and	 (2)	 Daniel	 failed	 to	 prove,	 by	 a preponderance of	the	evidence,	that	termination	of	the	guardianship	wou ld	be in	Alisha’s	best	interest. 1 We	affirm	the	judgment	denying	Daniel’s	petition	to terminate	the	guardianship ,	but	we remand	the	case	for	the	court	to	reconsider

1 Daniel also	appeals	from the court’s denial	of	his	motion , filed pursuant	to Maine	Rule	of	Probate Procedure 60(b)	and	M aine	Rule	of	Civil	Procedure 60(b)(3),	(4) , and	(6), for	relief	from	the	judgment appointing	Gail	as	Alisha’s	guardian .		This	challenge	is	grounded	on	his	arguments	that the court’s decision was based	on erroneous	evidentiary and	discovery ruling s and	violated	his	constitutional right to	due	process.		Because	his	arguments	are	unpersuasive,	we	discuss	them	no	further	and	affirm the	court’s	denial	of	his	motion

.2 the	portion	of its	order requiring	Daniel	to	pay	guardian	ad	litem	(GAL)	fees	as
a	sanction.
I.		BACKGROUND [¶2]		Alisha	Golodner	was	born	in	Germany	in	2003	to	Daniel	Golodner and	 Frauke	 Sawaha.	 	 The	 family	 moved	 to	 Connecticut	 and,	 after	 Frauke returned	to	Germany,	a Connecticut	court	awarded	Daniel	sole	le gal	custody	of Alisha	in	2006. In	2010,	facing	criminal	charges	and	the	possibility	of	jail	time, Daniel	 arranged	 for	 Alisha	 to	 live in	 Maine with	 his	 recently	 widowed stepmother,	 Gail	 Golodner. Gail	 filed ,	 in	 the York	 County	 Probate	 Court, a petition	to	be	appointed as Alisha’s	guardian

. A fter	an	uncontested	hearing,	the

court ( Bailey,	 J. ) granted	 Gail’s	 motion	 and appointed her as	 Alisha’s	 full, permanent	 guardian. See 18

- A M.R.S.	 §	 5

- 204	 (2016)

. The	 order	 made no specific	provision	for	ongoing	contact	between	Daniel	and	Alisha. 2 [¶ 3 ]		For	the	first	three	years	of	the	guardianship,	Gail	permitted	Daniel to	 have	 extended	 visits	 with	 Alisha	 at	 Gail’s	 home	 and	 to	 speak	 with	 his daughter	on	the	telephone. In	late 2013,	however,	after	an	altercation	between Daniel	and	Alisha	that	prompted	Gail	to	call	the	police,	Gail	told	Daniel that he

2 Although	Frauke	was	notified	of	the	proceedings,	she	did	not	participate	in	them	and	is	not	a party	to	this	appeal.3 was	no	longer	welcome	at	the	home	and	she	denied	him	contact	with	Alisha. On	June 23,	2014,	pursuant	to 18

- A	M.R.S.	§	5

- 212	(2016 ) ,	Daniel	filed	a	petition to	terminate	the	guardianship,	alleging	that	the	“[g]uardian	ha[d]	denied	[him] normal	contact	rights	in	an	effort	to	alienate	[him]	and	his	fam ily	from	[Alisha].” [¶ 4 ]	 	 The	 court	 ( Nadeau,	J. )	 appointed	 a	 GAL	 and,	 on	 Daniel’s	mot ion, entered	 an	 interim	 order	 in	 October	 2014	 providing	 for	 ongoing	 contact between	Daniel	and	Alisha	as	coordinated	by	the	GAL,	including	telephone	calls twice	per	week.		The	court	ordered	Gail	to	“ensure	that	[Alisha]	will	speak	and listen	to	[Daniel]	du ring	such	telephone	calls”	and	author ized	Gail	to	record	the calls. [¶ 5 ]		On	January	15	and	25,	2016,	the	court ( Longley,	J. ) held	a	hearing	on Daniel’s	 petition	 to	 terminate	 the	 guardianship. The	 court	 heard	 testimony from	Daniel,	Gail,	the	GAL,	and	a	c lose	friend	of	Daniel.		Alisha	also	testified,	on the	record	but	outside	the	presence	of	the	parties	and	the	attorneys. The	court admitted	in	evidence,	inter	alia,	several	recordings	of	telephone	calls	between Daniel	 and	 Alisha. On	 the	 second	 day	 of	 the hearing,	 the	 GAL	 testified	 that Daniel	had	left	a	voicemail	for	him	after	the	first	day	of	the	hearing	accusing	the GAL	of	“slander”	and	“libel”	and	threatening	to	“fil[e]	a	grievance	with	the	Maine4 Bar”	depending	on	“how	[the	GAL]	perform[ed]	between	now and	the	end	of the	tr ial	or	the	end	of	the	matter.” [¶ 6 ]		After	the	hearing,	by	order	dated	January	28,	2016,	the	court	denied Daniel’s	 petition	 to	 terminate	 the	 guardianship	 upon	 finding	 that	 (1)	 Gail proved,	by	clear	and	convincing	evidence,	that	Daniel is	unfit	to	parent	Alisha; and	 (2)	 Daniel	 failed	 to	 prove,	 by	 a	 preponderance	 of	 the	 evidence,	 that termination	of	the	guardianship	wou ld	be	in	Alisha’s	best	interest .		The	court, however,	 imposed	 conditions	 on	 the	 guardian,	 requiring	 Gail	 to	 arrange
cont inued	counseling	for	Alisha,	“look	for	healthy	opportunities	for	[Alisha]	to have	routine	telephone	conversations	with”	Daniel,	and	ensure	that	Daniel	has reasonable	 access	 to	 Alisha’s	 report	 cards	 and	 extra

- curricular	 information. The	court	also	ordered that	Daniel	pay	fees	for	work	performed	by	the	GAL	as “a	necessary	consequence”	for	Daniel’s	threa tening	conduct	toward	the	GAL. [¶ 7 ]		Daniel	timely	appealed. 3

3 On	February	17,	2017, we	were	notified	that	Gail	died	on	February	13,	2017.		Daniel	filed	with us	a	motion	for	relief	from	the	Probate	Court’s	order , suggesting	that	his	appeal	was	moot	but	asking us	to	“clarify	and	settle	his	status	as	sole	custodian.” On	February	24,	2017,	we	issued	an	opinion denying	Daniel’s	motion	 for	relief	and	concluding	 that	 the	substance	of	Daniel’s	appeal	was	moot. See Guardianship	of	Golodner ,	2017	ME	31 ( withdrawn	upon	motion	 for	reconsideration	by	order dated	March	16,	2017 ). Daniel	moved	for	reconsideration	pursuant	to	M.R.	App.	P.	14(b).		For	the reasons	 set	 forth	 in	 our	 order	 on	 that	 motion,	 we	 concluded	 that	 the	 “collateral	 consequences” exception	to	the	mootness	doctrine	applies in	the	unique	circumstances	of	this case .		We	therefore granted	Daniel’s	motion	for	reconsideration	and	withdrew	our	original	opinion,	which	is	replaced	by this	opinion.5
II. DISCUSSION [¶ 8 ]		Daniel	argues	that	there	was	insufficient	evidence	in	the	record	to
supp ort	the	court’s	denial	of	his	petition	to	terminate	the	guardianship,	and	that the	 court’s	 decisions	 denying	 “transitional	 arrangements”	 and	 ordering payment	 of	 the	 GAL’s	 fees	 constituted	 abuses	 of	 discretion.	 	We	 address	 his arguments	in	turn.
A. Sufficie ncy	of	the	Evidence [¶ 9 ] We	review	the	Probate	Court’s	findings	for	clear	error,	which	occurs “if	there	is	no	competent	evidence	in	the	record	to	support	[the	finding],	if	the fact

- finder	clearly	misapprehends	the	meaning	of	the	evidence,	or	if	the	findi ng is	so	contrary	to	the	credible	evidence	that	it	does	not	represent	the	truth	and right	of	the	case.” Guardianship	of	Hailey	M. ,	2016	ME	80,	¶ 15,	140 A.3d	478 (citations	 omitted)	 (quotation	 marks	 omitted).	 	 “In	 guardianship	 cases, determinations	 of	 the weight,	 credibility,	 and	 significance	 of	 evidence	 are primarily	for	the	trial	court	as	the	finder	of	fact.” Id. [¶ 10 ] The	Probate	Code	authorizes	“any	person	interested	in	the	welfare of	a	[child]	.	.	.	[to]	petition	for	removal	of	a	guardian	on	the	ground	that	removal would	 be	 in	 the	 best	 interest	 of	 the	 [child].” 18

- A	 M.R.S.	 §	 5

- 212(a) .	 	 “The petitioner	has	the	burden of	showing	by	a	preponderance	of	the	evidence	that6 termination	 of	 the	 guardianship	 is	 in	 the	 best	 interest	 of	 the	 [chi ld].”
18

- A M.R.S.	§	5

- 212(d). 4 [¶ 11 ] Although	the	Legislature	has	provided	no	other	express	criteria, we	have	determined	that	where	th e	petitioner	is	the	child’s	parent,	in	order	to protect	 the	 parent’s	 fundamental	 liberty	 interest	 in	 directing	 the	 care	 and upbringing	of	his	or	her	child,	the	court	must	delve	beyond	consideration	of	the child’s	best	interest	to	consider	the	petitioning	p arent’s	fitness. Guardianship of	Jeremiah	T. ,	2009	ME	74,	¶¶	26

- 28,	976	A.2d	955 ; see Rideout	v.	Riendeau , 2000	ME	198,	¶	12,	761	A.2d	291 (“[T]he	best	interests	of	the	child	standard, standing	alone,	is	an	insufficient	standard	for	determining	when	the	S tate	may intervene	 in	 the	 decision	 making	 of	 competent	 parents.”	 (citing Troxel	 v. Granville ,	530	U.S.	57,	67

- 69	(2000) )).		We	have	further	held	that	it	is	the	party opposing	termination	of	the	guardianship	who	bears	the	burden	of	proving	that the	 petition ing	 parent	 is	 currently	 unfit	 to	 regain	 custody	 of	 the	 child. Guardianship	of	David	C. ,	2010	ME	136,	¶¶ 4,	7,	10	A. 3d	684.

4 Daniel	 appears	 not	 to	 challenge	 the	 court’s	 determination	 that	 he	 failed	 to	 prove,	 by	 a preponderance	 of	 the	 evidence,	 that termination	 of	 the	 guardianship	 is	 in	 Alisha’s	 best	 interest. See 18

- A	M.R.S.	§	5

- 212(d) (2016) .		In	any	event,	we	conclude	that	the	court was	not	compelled	by the	evidence	to	find	in	Daniel’s	favor	on	that	point. See	Guardianship	of	Gionest ,	2015	ME	15 4,	¶	5, 128 A.3d	1062.7 [¶ 12 ]	 	 Although	 the	 Legislature	 has	 established	 the	 standard	 of	 a preponderance	of	the	evidence	for	addressing	the	best	interest	of the	child	in	a proceeding	 to	 terminate	 a	 guardianship,	 neither	 we	 nor	 the	 Legislature	 has made	clear	what	specific	standard	of	proof	the	existing	guardian	must	meet	in proving	 the	 petitioning	 parent’s unfitness in	 order	 for	 the	 guardianship	 to
continue. 5 Nor	 has	 the	 Legislature	 defined	 “fitness”	 for	 purposes	 of
termination

- of

- guardianship	 cases.	 	 The	 law	 in	 these	 areas	 is	 unsettled	 and evolving .	 	 See Guardianship	 of	 Reena	 D. ,	 35	 A.3d	 509,	 514

- 15	 (N.H.	 2011) (collecting	 cases	 and	 holding	 that	 where	 a	 guard ianship	 was	 established	 by consent,	 for	 the	 court	 to	 order	 continuation	 of	 the	 guardianship	 over	 the petitioning	 parent’s	 objection,	 the	 guardian	 must	 prove,	 by	 clear	 and convincing	 evidence,	 that	 the	 guardianship	 is	 “necessary	 to	 provide	 for	 the essential physical	and	safety	needs	of	the	minor”	and	that	terminating	it	would “adversely	 affect	 the	 child’s	 psychological	 well

- being”	 (quotation	 marks omitted)); see	also Tourison	v.	Pepper ,	51	A.3d	470,	473

- 74	(Del.	2012) (holding that	 on	 a	 parent’s	 petition,	 th e	 guardianship	 must	 terminate	 unless	 the

5 We	referred	to	a	preponderance

- of

- the

- evidence	standard	in Guardianship	of	David	C. and	cases that	followed. See Guardianship	of	David	C. ,	2010	ME	136,	¶	7,	10	A.3d	684 ; see	also Guardianship	of Chamberlain ,	2015	ME	76,	¶	28,	118 A.3d	229 ; Guardianship	of	Stevens ,	2014	ME	25,	¶	14,	86	A.3d 1197 .		In Guardianship	of	David	C. ,	however,	we	were	concerned	primarily	with	the allocation of	the burden to	prove	unfitness	as	opposed	to	the	standard	of	proof. 2010	ME	136,	¶¶	4,	7,	10	A.3d 684

.8 guardian	 proves,	 by	 clear	 and	 convincing	 evidence,	 that	 terminating	 the guardianship	would	result	in	physical	or	emotional	harm	to	the	child); Boddie v.	Daniels ,	702	S.E.2d	172,	174

- 75	(Ga.	2010) (same); In	re	Guard ianship	of	D.J. , 682	 N.W.2d	 238,	 243

- 46	 (Neb.	 2004) (holding	 that	 the	 guardianship	 must terminate	unless	the	guardian	proves,	by	clear	and	convincing	evidence,	that the	petitioning	parent	is	either	unfit	or	has	forfeited	the	right	to	custody). [¶ 13 ]		We	need	not	decide	the	applicable	burden	in	this	case	because	the court	in	fact	applied	the	more	stringent	standard	of	proof

— namely,	clear	and convincing	 evidence,	 which	 is	 more	 favorable	 to	 Daniel

— and	 the	 court’s findings	are	supported	by	the	evidence even	under	that	standard	of	proof.		The evidence	 admitted	 during	 the	 hearing	 on	 Daniel’s	 petition	 to	 terminate	 the guardianship	amply	supports	the	court’s	finding, whether	by	a	preponderance of	 the	 evidence	 or	 by	 the	 more	 stringent	 standard	 of clear	 and	 co nvincing evidence,	that	Daniel	is	unfit	to	parent	Alisha.		That	evidence	demonstrates	that Daniel’s	interactions	with	Alisha	are	dominated	by	his	shouting,	insults,	threats, and	emotional	abuse,	and	have	involved	phys ical	aggression ;	that	his	behavior

towa rd	 Alisha	 causes	 her	 fear	 and	 emotional	 distress;	 and	 that	 his understanding	of	her	needs	is,	as	the	GAL	testified,	“woefully	lacking.” Daniel’s own	 testimony	 at	 the	 hearing	 demonstrates his	 inability	 to	 understand	 the9 harm	that he has	caused	his	daughter ,	or	even	how his	behavior	toward	Alisha
is problematic. On	this	record,	the	court’s	findings	do	not	constitute	clear	error, and	 we	 decline	 to	 disturb	 the	 court’s	 decision	 to	 deny	 Daniel’s	 petition	 to terminate	the	guardianship.
B

. Transitional	Arrangemen ts [¶ 14 ]		Daniel	next	contends	 that	 the	court	abused	its	discretion	by	not ordering	certain	transitional	arrangements,	such	as	increased	visitation. When the	 Probate	 Court	 “issu[es],	 modif[ies],	 or	 terminat[es]	 an	 order	 of guardianship	 for	 a	 minor,”	 it	 m ay	 also,	 in	 its	 discretion,	 “provid[e]	 for transitional	 arrangements	 for	 the	 minor	 if	 the	 court	 determines	 that	 such arrangements	will	assist	the	minor	with	a	transition	of	custody	and	are	in	the best	interest	of	 the	child.” 18

- A	M.R.S.	 §	5

- 213	 (2016) .		W e	review	a	court’s decision	as	to	whether	to	implement	transitional	arrangements	for	an	abuse	of discretion. Guardianship	of	Stevens ,	2014	ME	25,	¶¶	16,	20,	86	A.3d	1197

. [¶ 15 ]		Contrary	to	Daniel’s	contention,	this	case	is	not	like Stevens ,	where we	held	both	that	the	Probate	Court’s	finding	that	the	petitioner	was	unfit	was clear	error	and	that	the	court	abused	its	discretion	by	refusing	to	implement transitional	arrangements. Id. ¶¶	12,	16

- 20.		Our	conclusion	was	based	on	the facts	that “ all	competent	evidence	at	trial	demonstrated	that	[the	mother]	would10 be	fit	to	parent	[the	child]	with	the	assistance	of	transitional	arrangements ,	and that	the	implementation	of	such	arrangements	could	lead	to	the	termination	of the	guardianship	and	the return	of	[the	child]	to	[the	mother]’s	custody.” Id. ¶ 12	(emphasis	added); see	id. ¶¶	17,	20. [¶ 1 6 ]	 	Here,	 there	 was	 no	 competent	 evidence	 at	 trial	 suggesting	 that Daniel	 will	 become	 fit	 if	 permitted	 to	 engage	 in	 transitional	 services	 or increased	cont act	with	Alisha.		The	court	decided	not	 to	order	“a	 transition,”

see 18

- A	 M.R.S.	 §	 5

- 213,	 and	 that	 decision	 is	 supported	 by	 the	 evidence	 of Daniel’s	ongoing	difficulty	in	engaging	in	respectful	communication	with	Alisha. See	Guardianship	of	Hailey	M. ,	201 6	ME	80,	¶¶	27

- 28,	140	A.3d	478.		The	court acted	 well	 within	 the	 bounds	 of	 its	 discretion	 when	 it	 declined	 to	 order transitional	 arrangements	 and	 instead	 ordered	 the	 guardian	 to	 encourage routine	telephone	contact

— a	condition	on	the	guardianship	that	did not	exist previously.
C. GAL	Fees	as	a	Sanction [¶ 1 7 ]		Finally,	Daniel	challenges	the	portion	of	the	court’s	order	regarding GAL	fees. The	court	stated,	in	relevant	part: Concerning	 a	 necessary	 consequence	 for	 [Daniel]’s	 threat	 to	 the [GAL],	this	[c]ourt	also	orders	that	the	GAL	tally	his	hours	in	writing his	 [r]eport	 for	 this	 [c]ourt	 and	 his	 post

- Jan.	 15,	 2015	 hours	 in fielding	 [Daniel]’s	 threatening	phone	messages	and	his having	 to11 appear	in	court	today	as	a	witness,	use	his	usual	professional	rate of	 compensation	 and	 add	 the	 total	 resulting	 amount	 to	 his	 bill, which	this	[c]ourt	orders	[Daniel]	to	pay. [¶ 1 8 ]	 	 In	 general,	 we	 review	 an	 award	 of	 fees	 based	 on	 a	 party’s
mis conduct	for	an	abuse	of	discretion. Wool d ridge	v.	Wool d ridge ,	2008	ME	11, ¶ 11,	 940	 A.2d	 1082 .	 	 Several	 aspects	 of	 the	 court’s	 order	 in	 this	 case compromise	our ability	to	undertake	meaningful review.		First,	the	court	has not	 yet	 entered	 an	 order	 stating the	 specific	 amount	 owed	 as	 a	 sanction.
See Conservatorship	 &	 Guardianship	 of	 Ann	 B.	 Thomas ,	 2017	 ME	 11, ¶ 10,

--- A.3d

--- .		Second,	the	order	does	not	make	clear	what	rate	of	pay	is	to be	used	or	what	hours	are	to	be	compensated.		It	is	unclear	whether the	court intended	to	require	Daniel	to	pay	only	the	fees	associated	with	the	specific	tasks mentioned	(one	of	which

— preparing	the	GAL	report

— is	unrelated	to	Daniel’s threatening	telephone	message),	or	whether	it	intended	to	require	him	to	pay for	all	GAL fees	generated	throughout	the	proceedings. 6 [¶ 1 9 ]		Third,	the	nature	of	the	sanction

— the	court’s	source	of	authority

— is	also	unclear.		We	cannot	tell,	from	the	order	or	the	transcript	of	the	hearing, whether	 the	court	intended	 to	impose	 the	sanction	pursuant	 to	its	contempt

6 The	issue	is	further	confused	by	the	fact	that	the order	appointing	the	GAL	provided	that	Daniel was	to	be	responsible	for	one	hundred	percent	of	the	GAL’s	fees

.12
power, see M.R.	Civ.	P.	66,	p ursuant	to	its	“inherent	authority	to	sanction	parties .	.	.	for	abuse	of	the	litigation	process,” see Cimenian	v.	Lumb ,	2008	ME	107,	¶	11, 951	A.2d	817 (quotation	marks	omitted),	or	pursuant	 to	some	other	basis	of authority.		In	any	case,	in	order	to	prot ect	Daniel’s	due	process	rights, see,	e.g. , Kirkpatrick	v.	City	of	Bangor ,	1999	ME	73,	¶	15,	728 A.2d	1268 ,	the	court	should have	afforded	him	an	opportunity	to	respond	to	the	evidence	against	him	that led	to	the	court’s	sanction. See M.R.	Civ.	P.	66(c), (d)	(setting	forth	procedures, including	 notice	 and	 hearing,	 that	 apply	 when	 contempt	 occurs	 outside	 the presence	 of	 the	 court); Guardianship	 of	 Isabella	 Ard ,	 2017	 ME	 12, ¶¶ 17

- 24 , --- A.3d

--- (vacating	a	sanction	sounding	in	contempt	where	the	court did not	implement	the	process	required	by	M.R.	Civ.	P.	66); see	also Chambers	v. NASCO,	Inc. ,	501	U.S.	32,	57	(1991) (“As	long	as	a	party	receives	an	appropriate hearing,	 .	 .	 .	 the	 party	 may	 be	 sanctioned	 [pursuant	 to	 the	 court’s	 inherent authority]	for	abuses of	process	occurring	beyond	the	courtroom	.	.	.	.”). [¶ 20 ]		Although	we	 otherwise	affirm	 the	judgment,	we	must	 therefore

vacate that portion	 of	 the	 court’s	 order	 relating	 to	 payment	 of	GAL	 fees	and remand	 the	 matter	 for	 the	 court	 to	 reconsider	 the	 issue and	 for	 further proceedings,	if	necessary.13 The	entry	is: That	 portion	 of	 the	 court’s	 order	 requiring Daniel	Golodner	to	pay	guardian	ad	litem	fees	as a	sanction	is	vacated	and	the	matter	is	remanded to	 the	 Probate	 Court	 for	 further	 proceedings consistent	 w ith	 this	 opinion.	 	 In	 all	 other respects,	the	judgment	is	affirmed.

David	 P.	 Mooney,	 Esq.	 (orally),	 Portsmouth,	 New	 Hampshire,	 for	 appellant Daniel	Golodner Dana	E.	Prescott,	Esq.	(orally),	Prescott	Jamieson	Murphy	Law	Group,	LLC,	Saco, for	appell ee	Gail	Golodner

York	County	Probate	Court	docket	number	2010

- 0676(1) F OR C LERK R EFERENCE O NLY