MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	58

Docket: Pen-19-475

Submitted

On	Briefs: May	4,	2020

Decided: May	12,	2020

Panel: MEAD,	GORMAN,	JABAR, HUMPHREY, HORTON,	and	CONNORS, JJ.

IN	RE	CHILDREN	OF	ALECIA	M.

PER	CURIAM

[¶1]	 	 Alecia	 M.	 appeals	 from	 an	 order	 of	 the	 District	 Court	 (Bangor,	

Jordan,	 J.)	 finding	 that	 her	 four	 children	 are	 in	 circumstances	 of	 jeopardy	

pursuant	to	22	M.R.S.	§	4035(2)	(2020).		She	contends	that	the	evidence	was	

insufficient	 to	 support	 the	 court’s	 determination	 that	 the	 children	 are	 in	

jeopardy.1		We	affirm.

[¶2]	 	In	 this	matter,	 the	 trial	 court	 consolidated	 three	 child	 protection	

cases	 for	a	jeopardy	hearing.		The	 first	 child	protection	proceeding began	in	

July 2017,	when	the	Department filed	a	petition	for	a	child	protection	order as	

to	the	mother’s	two older children.		See	22	M.R.S.	§	4032 (2020).		The	petition	

 1		At	the	jeopardy	hearing,	the	Department	of	Health	and	Human	Services	did	not	seek	to	establish

jeopardy	as	to	the	father	of	the	two	older	children, and	the	court	ordered	that	he	continue	to have

custody	of	those	children	following	the	hearing.		The	court	found	both	jeopardy	and	the	existence	of	

an	aggravating	factor,	see 22	M.R.S.	§§ 4002(1-B),	4036(1)(G-2) (2020),	as	to	the	father	of	the	two	

younger	children.		That	father did	not	appeal	from	the	court’s	order.		Therefore,	neither	father	is	a	

party	to	this	appeal.
2

alleged	that	the	mother	had	problems	with	substance	abuse	and	that	she	was	

in	a	relationship	with	a	man—not	 the	 father	of	 the	 two	older	children—who	

had	 a	 history	 of	 violence.	 	 On	 December	 17,	 2017,	 the court	 entered	 an	

agreed-to	 finding	 that	 the	 children	were	in	 circumstances	 of	jeopardy	in	the	

mother’s care and placed the	 children	in	 the	 custody	 of	 their	 father,	 against	

whom	the	Department	did	not	allege jeopardy.

[¶3]	 	 The	 mother	 gave	 birth	 to	 her third	 child in March	 2018.	 	 In	

June 2018,	 the	 mother’s	 second	 oldest	 child sustained and	 was	 treated	 for

significant	injuries,	including	a	broken	clavicle	and	multiple	bruises	on	various	

parts	 of	 her	 body.	 	 The	 next	 day,	 the	 Department	 filed	 a request	 for	 a	

preliminary	protection	order	(PPO)	and	a	new petition	 for	a	child	protection	

order	as	to	all	three of	the	mother’s children,	alleging	that	they were	threatened	

with	 the	 immediate	 risk	 of	 serious	 harm	 due	 to	 the	 threat	 of	 neglect	 and	

physical	abuse.2		See	id.		In	this	petition,	the	Department	alleged	jeopardy	as	to	

 2	 	Although	 the	 court	 had	 already	 found	 that	 the	 two	 older	 children	were	in	 circumstances	 of	

jeopardy	in	their	mother’s	care	and	had	placed	the	children	in	the	custody	of	their father,	the	request	

for	a	PPO	included	an	affidavit	that	indicated	that	those	children	had	been	living,	at	least	part time,	

in	 the	 mother’s	 household.	 	 The	 Department’s	 second	 petition	 alleged	 additional	 grounds	 for	

jeopardy	as	to	those	children	and	asked	the	court	to	make	a	new	finding	of	jeopardy	based	on	the	

injuries	suffered	by	the	second	oldest	child.
3

the	mother,	the	father	of	the	two	older	children,	and	an	individual	who	was	then

identified	as	the	putative	father	of	the	third	child.3

[¶4]		That	day,	the court	granted	the	PPO	and	placed	all three	children	in	

the	 Department’s	 custody.	 	 See 22 M.R.S.	 §§ 4034(2),	 4036(1)(F)	 (2020).	 	In	

December	2018, six	months	after	 the	children	had	been	 removed	 from	 their	

parents’	custody, but	before	a jeopardy	hearing, the	court	returned	custody	of	

the	two	older children	to	their	father	after	the	Department	informed	the	court	

that	it	was	amending	its	petition	to	no	longer	allege that	those	children	were	in	

circumstances	of jeopardy	in	their	father’s	care.

[¶5]		The	mother	had	a	fourth	child	in	May	2019.		The	Department	filed	a	

third	petition	for	a	child	protection	order,	accompanied	by	a	request	for	a	PPO,

the	following	day,	alleging	that	this child	was	in	circumstances	of	jeopardy	in	

the	mother’s	care	for	the	reasons	set	forth	by	the	Department	in	its	previous	

petitions.		The petition	also	identified the	father	of	the	third	child	as	the	father	

of	 the	 fourth	child.		The	court	issued	a	PPO that	day,	placing	 the	child	in	 the	

Department’s	custody.

[¶6]		By	agreement	of	the	parties,	the	three	petitions	were	consolidated

for	 a	 single	 jeopardy	 hearing	 regarding	 all four children.	 	 The	 court	 held	 a

 3		That	individual	was	later	identified	as	the	father of	the	mother’s	third	child.
4

five-day	contested	hearing	in	May,	July,	and	September	2019.4		At	the	hearing,	

the	mother	and	the	Department	presented	competing	expert	witnesses,	both	of	

whom	 testified	 as	 to	 the	 likely	 cause	 of	 the	 injuries	 suffered	 by	 the	 second	

oldest	 child.	 	 The	Department’s	 expert	 testified	 that,	 upon	 his	 review	 of	 the	

child’s	injuries,	he	had	determined	 “with	appropriate	medical	certainty”	 that	

the	injuries	were	inflicted.		In	contrast,	the	mother’s	expert	testified	that	“there	

is	more	evidence	for	accidental	injury	than	there	is	for	abuse.”

[¶7]	 	 Based	 on	 the	 evidence	 at	 the	 hearing,	 the	 court	 found	 that the	

children	are in	circumstances	of	jeopardy	due	 to	neglect	and	 the	infliction	of	

serious	injury	upon	one	of	the	children.		See	22	M.R.S.	§ 4002(1),	(6)(A),	(10)(A)

(2020).	 	 The	 mother	 timely	 appealed.	 	 See 22	 M.R.S.	 §	 4006 (2020);	 M.R.	

App. P. 2B(c)(1).

[¶8]	 	 In	 its	written	 order	 finding	 jeopardy	 as	 to	 the	 mother,	 the	 court	

made	 the	 following	 findings	of	 fact,	all	of	which	are	supported	by	competent	

record	evidence.		See	In	re Child	of Whitney	M.,	2020	ME	29,	¶	5,	--- A.3d	---.

In	June	of	2018,	[the	second	oldest	child]	was	found	to	have	

injuries	 to	 her	 mouth,	 both	 sides	 of	 her	 jaw,	 a	 fracture	 of	 her	

clavicle	and	numerous	bruises.		The	issues	before	the	Court	center	

upon	whether	the	injuries	were	accidental	or	inflicted.

 4		The	substantial	delays	in	this	case	appear	to	have	been	caused	by	the	court’s	willingness	to	allow	

the	mother	to	attempt	to	find	an	expert	witness	to	counter	the	State’s	assertion	that	the	second	oldest	

child’s	injuries	had been	inflicted.
5

.	.	.	.

The	 Court	 concludes	 that	 more	likely	 than	 not	 the	injuries	

were	inflicted.		The	fact	that	there	are	possible	accidental	ways	for	

the	injuries	to	have	occurred does not	change	the	conclusion	that	

more	likely	than	not	they	were	inflicted. The	multitude	of	injuries,	

the	 locations	 of	 the	 injuries,	 the	 patterns	 of	 bruising,	 and	 the	

broken	clavicle	all	support	a	finding	that	the	injuries	were	inflicted.

The	 rest	 of	 the	 testimony	 and	 supporting	 evidence	

strengthens	 the	 conclusion	 that	 more	 likely	 than	 not	 these	 are	

inflicted	 injuries.	 	 The	 [oldest	 child]	 repeatedly	 volunteered	 the	

same	accounts	of	[the	father of	the two younger	children]	hurting	

[the	 second	 oldest	 child]	 and	 assaulting	 [the	 mother].	 The	

circumstances	 surrounding	 those	 revelations	 are	 supportive	 of	

[the	 oldest	 child’s]	 credibility.	 	 The	 child	 has	 previously	 said	 her	

mother	 told	 her	 not	 to	 talk	 to	 people	 about	 what	 happened.		

Although	 the	 mother	 denies	 that [the	 father of	 the two younger	

children]	 was	 present,	 she	 has	 acknowledged	 lying	 on	 other	

occasions	about	his	being	present	at the	home.

.	.	.	.

The	Court	concludes	that	more	likely	than	not	[the	father of	

the	two	younger	children]	inflicted	the	broken	clavicle	injury.		The	

fact	that	[the	mother]	is	protecting	him	demonstrates	that	she	lacks	

protective	capacity	for	her	children.	. . .

.	.	.	.

The	Court	finds	that	jeopardy	exists	for	[all	four	children]	as	

regards	to	[the	mother]. .	.	.

[¶9]	 	 We	 review the	 court’s	 factual	 determinations	 for	 clear	 error.		

See In re	Nicholas	S.,	2016	ME	82,	¶	9,	140	A.3d	1226.		We	will	affirm	the	court’s	
6

jeopardy	determination	“unless	there	is	no	competent	record	evidence	that	can	

rationally	be	understood	to	establish	as	more	likely	than	not	that	the	child[ren]	

[are]	in	circumstances	of	jeopardy	to	[their]	health	and	welfare.”		Id. (quotation	

marks	omitted).

[¶10]	 	 Contrary	 to	 the	 mother’s	 contention,	 the	 court	 did	 not	 err	 in	

crediting	the	testimony	of	the	Department’s	expert	witness over	the	testimony	

of	the	 mother’s competing expert	 witness.	 	 See	In	 re	 Child	 of	 Dawn	 B.,	 2019	

ME 93,	¶	10,	210 A.3d	169	(“[T]he	assessment	of	the	weight	and	credibility	of	

the	evidence	[is]	for	the	trial	court	alone.”).		The	court’s	supported	findings of	

the	mother’s	history	and	the	nature	of	the	second	oldest	child’s	injuries were

sufficient	 for	 the	 court	 to	 find	 by	 a	 preponderance	 of	 the	 evidence	 that	 the	

children	would	be	in	circumstances	 of	jeopardy	if	 they	were	 returned	 to	the	

mother’s care.		See 22 M.R.S.	§§ 4002(6)(A),	(10)(A),	4035(2).

The	entry	is:

Judgment	affirmed.
7

Joseph	P.	Belisle,	Esq.,	Bangor,	for	appellant	mother

Aaron	M.	Frey,	Attorney	General,	and	Meghan	Szyvian,	Asst.	Atty.	Gen.,	Office	of	

the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	

Services

Bangor	District	Court	docket	numbers	PC-2017-73;	PC-2018-139;	PC-2019-61

FOR	CLERK	REFERENCE	ONLY