MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	154

Docket: Aro-19-162

Submitted

On	Briefs: October	24,	2019

Decided: October	31,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and HUMPHREY,	JJ.

IN	RE	CHILDREN	OF	TROY	H.

PER	CURIAM

[¶1]	 Troy	 H.	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	 Court	

(Presque	Isle,	Nelson,	J.)	finding	that	two	of	his	children	are in	circumstances	of	

jeopardy pursuant	 to	 22	 M.R.S.	 §	 4035(2)	 (2018)	 and	 that	 returning	 those	

children	 to	his	custody	is likely	 to	cause	 them	 serious	 emotional	 or	physical	

damage pursuant	 to	 the	 Indian	 Child	 Welfare	 Act	 (ICWA),	 25 U.S.C.S.	

§§ 1901-1963	(LEXIS	through	Pub.	L.	No.	116-65).		He	contends that	the	court’s	

factual	 findings	 do not	 support	 its	 determination	 that	 the	 children	 are in	

jeopardy.		We	affirm the	judgment.

I.		BACKGROUND

[¶2]	 	 In	 November	 of	 2018,	 the	 Department	 of	 Health	 and	 Human	

Services	filed	a	petition	for	a	child	protection	order	and	preliminary	protection	
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order	for	the	two	children,	who	were	then	fourteen	and	sixteen years	old.

1		The	

petition	alleged	that	the	children	were	at	risk	due	to	the	emotional	instability	

and	homelessness of their	father—who	had	sole	custody	at	that	time pursuant	

to	a	Florida	child	protection	order—which	caused	him	to	neglect	the	children’s	

health	and	safety.		The	court	entered	a	preliminary	protection	order	that	day,	

placing	 the	 children	 in	 the	 Department’s	 custody.	 	 The	 father waived	 the	

opportunity	 for	 a	 summary	 preliminary	 hearing,	 and	 he	 consented	 to	 their	

foster	 placement	 pursuant	 to	 ICWA.	 	 See 25 U.S.C.S.	 §	 1915(a),	 (c);	 22	M.R.S.	

§ 4034(4)	(2018).		

[¶3]		The	court	conducted	a contested	jeopardy	hearing	in	January	and	

March	of	2019.		Based	on	the	evidence	presented	at	the	hearing,	by	order	dated	

April	11,	2019, the	court	determined	by	clear	and	convincing	evidence	that	the	

children	 were	 in	 jeopardy	 to	 their	 health	 or	 welfare	 due	 to	 physical	 and	

emotional	abuse	and	that	returning	the	children	to	the	father’s	custody	would	

likely	 result	 in	 serious	 emotional	 or	 physical	 damage	 to	 the	 children.2	 	 See

 1		The	children,	through	their	mother,	are	affiliated	with	the	Aroostook	Band	of	Micmac	Indians	

and	ICWA	therefore	applies,	25	U.S.C.S.	§§	1901-1963	(LEXIS	through	Pub. L. No.	116-65);	the	Band

has	been	involved	since	before	the	Department	filed	its	initial petition	in	this	case.		

2		The court	also	entered	an	agreed-to	jeopardy	order	as	to	the	mother,	and	she	does	not	appeal	

from	that	order.		
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25 U.S.C.S.	§	1912(e);	22	M.R.S.	§§	4002(6),	4035(2) (2018).		The	father	timely	

appealed.		See 22	M.R.S.	§	4006	(2018);	M.R.	App. P.	2B(c)(1).		

II.		DISCUSSION

[¶4]		We	note initially that	Maine	law	and	federal	law apply	concurrently	

to	 this	proceeding,	resulting	in a	“dual	burden of	proof.”		In	re	Denice	F.,	658	

A.2d	1070,	1072	(Me.	1995).		Pursuant	to	ICWA,	the	Department	was	required

to	prove	by	clear	and	convincing	evidence	“that	the	continued	custody	of	the	

child[ren]	 by	 the	 parent	 or	 Indian	 custodian	 is	 likely	 to	 result	 in	 serious	

emotional	or	physical	damage	to	the	child[ren].”		25	U.S.C.S.	§	1912(e).		Maine	

law,	however,	requires	that	the	Department	prove	by	a	preponderance	of	the	

evidence	that	the	children	are	in	circumstances	of	jeopardy,	which	includes	the	

“threat	of	serious	harm.”		22	M.R.S.	§§ 4002(6)(A),	4035(2);	In	re	Danielle H.,	

2019	ME	134, ¶	2,	215 A.3d	217.

[¶5]		The	father	does	not	purport	to	dispute	any	of	the	court’s	underlying	

factual	findings,	but	instead	asserts that	those facts	do	not support	the	court’s	

conclusion	that	the	children	are	in	circumstances	of	jeopardy pursuant	to	the	

Maine	statute.		22	M.R.S.	§	4035(2).		We	review	the	court’s	factual	findings	for	

clear	 error and	 will	 affirm	 its	 jeopardy	 determination pursuant	 to section

4035(2) “unless	there	is	no	competent	record	evidence	that	can	rationally	be	
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understood	 to	 establish	 as	 more	 likely	 than	 not	 that	 the	 child	 was	 in	

circumstances	of	jeopardy	to	his	or	her	health	and	welfare.”		In	re	Nicholas	S.,	

2016 ME	 82,	 ¶	 9,	 140 A.3d	 1226 (alterations	 omitted) (quotation	 marks	

omitted); see	also	In	re	Chelsey	B.,	499	A.2d	137,	139	(Me.	1985).

[¶6]	 	 The	 court	 made	 the	 following	 findings	 of	 fact,	 all	 of	 which	 are	

supported	by	competent	evidence	in	the	record.

[Soon	 after	 moving	 to	 Maine	 in	 the	 summer	 of	 2017,	 the	

father]	 would	 respond	 or	 react	 to	 [the	 older	 child]	 in	 a	 physical	

manner.	 .	 .	 .	 	 On	 or	 about	 January	 21,	 2018,	 after	 a	 physical	

altercation	 with	 [the	 father,	 the	 older	 child] was	 taken	 to	 the	

hospital	and	then	placed	in	[a	crisis	unit].	.	.	.		The	incident	started	

with	arguing,	 then	 [the	 older	child]	 kicked or	 put	his	 foot	 on	his	

father’s	chair.		[The	father]	pulled	[the	older	child]	by	his	hair	down	

the	hallway	and	put	him	in	his	room. .	.	 .		Upon	leaving	 the	crisis	

unit,	 [the	 older	 child]	 was	 supposed	 to	 have	 follow	 up	 services.		

[The	father]	did	not	like	the	lady	who	came	to	the	house	for	this	. . . .		

[The	older	child]	did	not	receive	any	other	services.	

At	 the	 end	 of	 June	 2018,	 .	 .	 .	 [the	 older	 child]	 reported	 his	

father	 threw	 him	 into	 a	 wall	 in	 his	 bedroom.	 .	 .	 .	 	 [The	 police]	

brought	[the	child]	to	the	hospital,	thereafter	[the	child]	was	placed	

back	in	[the	crisis	unit].		No	follow	up	services	were	set up	for	[the	

child].		

On	 July	 9,	 2018, [the	 older	 child	 and	 the	 father]	 were	 in	 a	

physical	altercation	wherein	[the	father]	responded	by	taking	[the	

child]	to	the	ground	and	putting	him	in	a	chokehold. .	.	.		

During	 the	 same	 time	 period	 that	 [the	 father]	 was	 having	

significant	 difficulties	 with	 the	 boys,	 [the	 father]	 was	 abusing	

substances,	 including	 methamphetamine.	 .	 .	 .	 	 [The	 older	 child]	
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developed	 a	 belief	 that	 [the	 father]	 was	 engaged	 in	 significant	

methamphetamine	use.		

[The	 children]	 lived	 with their	 mother	 for	 a	 few	 months	

beginning	in	the	fall	of	2018,	while	[the	father]	lived	in	a	car	for	a	

period	of	time	and	then	in	a	house/cabin	.	.	.	.		The	house/cabin	was	

not	suitable	for	the	children	to	live	in.	.	.	.		[The	children]	were	not	

attending	school	consistently	at	that	time.		

.	.	.	They	had	no	stable	housing,	were	bouncing	around	from	

place	to	place,	and	[the	older	child’s]	relationship	with	[the	father]	

had	completely	deteriorated.		[The	older	child]	did	not	want	to	go	

back	with	his	father.		He	described	his	father	as	a	“psychopath” and	

that	[the	father]	was	“always	hitting	me	and	yelling	at	me.”		

[The	father]	had	no	place	to	take	the	boys	and	no	money.		The	

children’s	world	was	in	utter	chaos.		[The	father]	had	no	viable	plan	

moving	forward.		His	swift	and	severe	reactions	to	[the older	child]	

were	causing	[the	younger	child]	to	withdraw	and	[the	older	child]	

to	rebel.		[The	father]	was	responding	to	[the	older	child]	by	yelling	

and	swearing	or	being	physical	with	[the	older	child].		[The	father]	

had	 a	 complete	 and	 total	 lack	 of	 understanding	 as	 to	 how	 this	

instability	and	the	volatile	relationship	with	[the	older	child]	was	

affecting	[the	younger	child]. .	.	.		

Since	 coming	 into	 care,	 [the	 older	 child’s]	 situation	 has	

improved.	 .	 .	 .	 	 He	 is	 having	 daily	 telephone	 contact	 with	 [his	

mother]	but	indicated	he	wants	no	contact	with	[the	father].		This	

is	due	in	large	part	to	[the	father]	blaming	[the	older	child]	for	the	

situation	now	confronting	the	family	.	.	.	.		

[The	 younger	 child]	 needs	 structure,	 supervision,	 and	 a	

parent	 that	 works	 with	 entities	 such	 as	 the	 school	 system	 and	

providers.		

[The	father]	.	.	.	has	difficulty	maintaining	his	composure	and	

communicating	 effectively.	 	 He	 is	 very	 rigid	 in	 his	 way	 of	

thinking. . . .		He	perseverates	on	blaming	others	for	his	actions	and	
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reactions,	 and	cannot	 or	will	not	 see	 how	his	 role	contributes	 to	

escalating	situations,	especially	with	[the	older	child].		

[¶7]		Contrary	to	the	father’s	contention,	we	conclude	that	these	findings	

establish	 as	 more	 likely	 than	 not that	 returning	 the	 children	 to	 the	 father’s	

custody	 would	 cause	 the	 children	 “[s]erious	 harm	 or	[the] threat	 of	 serious	

harm.”3		22	M.R.S.	§	4002(6)(A).

[¶8]		The	entry	is:

Judgment affirmed.

Allan	Hanson,	Esq.,	Caribou,	for	appellant	Father

Aaron	M.	Frey,	Attorney	General,	and	Zack	Paakkonen,	Asst.	Atty.	Gen.,	Office	of	

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

Services

Presque Isle	District Court	docket	number	PC-2018-27

FOR	CLERK	REFERENCE	ONLY

 3	 	The	 father	 does	 not	 appear	 to	 challenge	 the	 court’s	 determination,	by	 clear	 and	 convincing	

evidence,that	returning	the	children	to	his custody	“is	likely	to	result	in	serious	emotional	or	physical	

damage	 to	 the child[ren].”	 	 25	 U.S.C.S.	 §	 1912(e).	 	 To	 the	 extent	 that	 he	 does,	 however,	we	 also	

conclude	that	the	court’s	findings	are	supported	by	competent	record	evidence	and	are	a	sufficient	

basis	for	its	conclusion	that	returning	the	children	to	the	father’s	custody	would	likely	result	in	their	

“serious	emotional	or	physical	damage.” Id.;	see State	v.	Cookson,	2019	ME 30,	¶	8,	204	A.3d	125.