MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017	ME	54

Docket: Yor-16-72

Argued: September	15,	2016

Decided: February	24,	2017

Reissued: 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	would	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	Maine	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	rulings 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	legal	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. After	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	family	from	[Alisha].”

[¶4]	 	 The	 court	 (Nadeau,	J.)	 appointed	 a	 GAL	 and,	 on	 Daniel’s	motion,	

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]	during	such	telephone	calls”	and	authorized	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	close	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	Maine	
4

Bar”	depending	on	“how	[the	GAL]	perform[ed]	between	now	and	the	end	of	

the	trial	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	would	be	in	Alisha’s	best	interest.		The	court,	

however,	 imposed	 conditions	 on	 the	 guardian,	 requiring	 Gail	 to	 arrange	

continued	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	threatening	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.
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II.		DISCUSSION

[¶8]		Daniel	argues	that	there	was	insufficient	evidence	in	the	record	to	

support	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. Sufficiency	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	finding	

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	that	
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termination	 of	 the	 guardianship	 is	 in	 the	 best	 interest	 of	 the	 [child].”		

18-A M.R.S.	§	5-212(d).4

[¶11]		Although	the	Legislature	has	provided	no	other	express	criteria,	

we	have	determined	that	where	the	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	parent’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	State	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	 petitioning	 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	154,	¶	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	 guardianship	 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,	 the	 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	Guardianship	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	 convincing	

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	physical	aggression;	that	his	behavior	

toward	 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	 the	
9

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	Arrangements

[¶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	 may	 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).		We	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]	would	
10

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.

[¶16]	 	Here,	 there	 was	 no	 competent	 evidence	 at	 trial	 suggesting	 that	

Daniel	 will	 become	 fit	 if	 permitted	 to	 engage	 in	 transitional	 services	 or	

increased	contact	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.,	2016	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

[¶17]		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	 to	
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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.

[¶18]	 	 In	 general,	 we	 review	 an	 award	 of	 fees	 based	 on	 a	 party’s	

misconduct	for	an	abuse	of	discretion.		Wooldridge	v.	Wooldridge,	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

[¶19]		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,	pursuant	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	protect	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	 with	 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	appellee	Gail	Golodner

York	County	Probate	Court	docket	number	2010-0676(1)

FOR	CLERK	REFERENCE	ONLY