MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	15

Docket: Som-18-271

Submitted

On	Briefs: January	17,	2019

Decided: January	29,	2019

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

IN	RE	CHILDREN	OF	BRADFORD W.

PER CURIAM

[¶1]		Katie	and	Bradford	W.	appeal	from	a	judgment	of	the	District	Court	

(Skowhegan,	 Nale,	 J.)	 terminating	 their	 parental	 rights	 to	 their children	

pursuant	to	22	M.R.S.	§§	4050-4056 (2017).		The	father	advances	no	arguments	

on	appeal,	and	the	mother	argues	that	the	District	Court erred	in	taking	judicial	

notice	 of	 prior	 proceedings.	 	 We	 conclude	 that	 the	 court	 independently	

assessed	 all	 facts	 presented	 and	 that	 its	 determination	 that	 termination	 of	

parental	rights	was established	by	clear	and	convincing	evidence	is	supported	

by	the	record.		We	therefore	affirm.

I.		BACKGROUND

[¶2]	 	 Following	 a	 four-day	 termination hearing	 that	 concluded	 on	

May 11, 2018, the	 court	 issued	 a	 judgment dated	June	 13,	 2018,	 in	 which	 it	

found	by	clear	and	convincing evidence that	the	mother	and	father	were unable	

to	take	responsibility	for their	children	within	a	time	reasonably	calculated	to	
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meet	their	children’s	needs and	that	it	was	in	the	best	interests of	the	children	

that	parental	rights	be	terminated.		See 22	M.R.S.	§ 4055(1)(B)(2)(a),	(b)(ii).	 At	

the	 hearing,	 the	Department	 requested	 that	 all	 guardian	 ad	litem	 reports	 be	

admitted	in	evidence	and	 that	 the	court	 take	judicial	notice	of	all	prior	court	

orders	in	the case.		Counsel	for	both	the	mother	and	the	father	stated	that	they	

had	no	objection.		The	court	accordingly	took	judicial	notice	of	its	prior	orders,

the	 findings	 and	 conclusions	 of	 law	 in	 those	 orders,	 see In	 re	 Scott S.,	

2001 ME 114,	¶	13,	775	A.2d	1144,	and	the	reports of	the	guardian	ad	litem,	see

In	re	Children	of	Melissa	F.,	2018	ME	110,	¶	2,	191 A.3d 348.

[¶3]		The	District	Court	included	in	its	findings	detailed	descriptions	of	

the	 children’s	 medical	 and	 dental	 conditions,	 which	 were	 both	 numerous	

significant, and of	 each	 child’s	 serious	 behavioral	 challenges.	 	 The	 court’s

finding	 of	 parental	 unfitness	 and	 its	 determination	 of	 the	 children’s	 best	

interests were	based	upon the	following	findings	of	fact:	

[A]t	trial	the	mother	and	father	did not	believe that	they	played	any	

role	in	the	Department removing	the children from	their	care. .	.	.

.	 .	 .	 [T]he	 father	 accepts	 very	 little	 responsibility	 for	 his	

children	being	in	State	custody.	.	.	.	[T]he	father	is	unaware	of	any	

diagnoses	of	his	son . .	.	.

During	 the	 term	 of	 the	 Department’s	 involvement	 in	 this	

matter,	 the	 father	did	very	little,	if	anything	at	all,	 to	learn	of	 the	

many	needs	of	his	children.		The	father	was	provided	all	the	medical	
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provider	reports	of	his	children.		He	failed	to	read	any	of	them.	.	.	.	

[T]he	 mother	 and	 father	 have	 very	 little	 insight	 as	 to	 the	 many	

needs	of	their	children.		Their	lack	of	insight	is	their	own	doing.	

.	.	. .

Despite	all	of the	assistance the	Department has offered,	the	

parents,	 very	 late	 in	 the	 process,	 have	 only	 recently	 [begun]

counseling	with	qualified	mental	health	counselors	and	 have	 not	

yet	come	to	fully	understand	or	accept	how	their	behavior has	so	

badly	impacted	their	children.	.	.	.	[T]here	is	no	time-line	as	to	when	

the	parents	will	have	their	own	issues	addressed	to	a	level	where	

they	can	begin	to	address	the	many	issues	that	have	burdened	their	

children.		

II.		DISCUSSION

[¶4]		“We	review	the	trial	court’s	factual	findings	for	clear	error	and	its	

ultimate	determination	to	terminate	parental	rights	for	an	abuse	of	discretion.”		

In	 re	 Child	 of	 Ronald	W.,	 2018	 ME	 107,	 ¶	 6,	 190	 A.3d	 1029.	 	On	 appeal,	 the	

mother	challenges	the	sufficiency	of	the	evidence	supporting	the	court’s	factual	

findings,	 arguing	 that	 the	 court	 impermissibly	 adopted	 facts	 from	 prior	

proceedings.		The	father	advances	no	arguments	on	appeal.

[¶5]		At	the	outset,	we	note	that	the	father’s	appellate	counsel	followed

the	appropriate	briefing	process	for	when	counsel	does	not	believe	that	there	

are	any	arguable	issues	on	appeal in	a	termination	of	parental	rights	case:

When	 a	 parent’s	 attorney	 in	 a	 child	 protection	 case	 believes,	 in	

good	faith,	that	there	are	no	arguable	issues	of	merit	in	an	appeal,	

counsel	should:	[(1)	f]ile	with	the	Court,	with	a	copy	to	the	client,	a	
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brief	 outlining	 the	 factual	and	 procedural	history	 of	 the	case, .	 .	 .

including	 a	 statement	 that	 counsel	 believes	 that	 there	 are	 no	

arguable	issues	of	merit	for	an	appeal[;	(2)	p]rovide	the	client	with	

notice	 that,	 if	 the	 client	 believes	 that	 there	 is	 a	 valid	 ground	 for	

appeal,	the	client	should	file	(a)	a	brief	with	this	Court	identifying	

the	issues	the	client	wishes	to	raise	on	appeal,	and	(b)	a	request	for	

the	 appointment of	 new	 counsel	 if	 the	 client	 desires	 new	

representation[;	 and	 (3)	 r]equest	 from	 this	 Court	 a	 reasonable	

extension	of	time	for	filing	the	appellant’s	brief	to	allow	the	client	

time	to	prepare	and	file	a	separate	brief	addressing	the	issues	on	

appeal	from	the	client’s	perspective.

In	re	M.C.,	2014	ME	128,	¶	7,	104 A.3d	139.

[¶6]	 	 Here, on	 September	 17,	 2018,	 counsel	 for	 the	 father	 filed	 an	

appellate	 brief containing	 only	 a	 procedural	 history	 and	 statement	 of	 facts,	

accompanied	 by	 a	 motion	 for	 enlargement	 of	 time	 to	 permit	 the	 father	 to	

personally	file	a	supplemental	brief.		Counsel’s	brief	concluded that	he	did	not	

believe	that	there	were any	arguable	issues	on	appeal.		We granted	the	motion	

to	 allow	 the	 father	 to	 personally	 file	 a	 supplemental	 brief	 on	 or	 before	

October 19,	2018.		Although	he	had	 the	 opportunity,	 the	 father	did	not	 file	a	

supplemental	brief.		See id. ¶	8.

[¶7]		Regarding the	issue	on	appeal,	the	mother,	without	citing	authority

and	 notwithstanding	 her	 counsel’s	 waiver	 of	 any	 objection at	 the	 hearing,

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contends that	 the	 District	 Court erred	 in	 taking	 judicial	 notice	 of	 prior	

 1		The	mother	had	the	same	counsel	at	trial and	on	appeal.
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proceedings	 because	 in	 those proceedings	 the	 burden	 of	 proof	 was	 a	

preponderance	of	the	evidence,	whereas	at	the	termination	of	parental	rights	

stage	the	standard	was	clear	and	convincing	evidence.		See 22 M.R.S.	§§	4035,	

4055 (2017).

In	Scott	S.,	we held:

When	a	court	enters	a	judgment	containing	 findings	of	 fact	

and	conclusions	of	law,	those	findings	become	a	matter	of	judicial	

record.		A	judge	may	 take	judicial	notice	 of	any	matter	 of	 record	

when	 that	 matter	 is	 relevant	 to	 the	 proceedings	 at	 hand.		

Particularly	in	 the	context	of	child	protective	proceedings,	where	

the	entire	procedure	occurs	as	a	unified	proceeding,	a	 trial	judge	

may,	 at	 any	 stage	 of	 the	 proceeding,	 take	 judicial	 notice	 of	 the	

findings	 and	 conclusions	 contained	 in	 any	 prior	 judgments	 or	

orders.

2001	ME	114,	¶	13,	775	A.2d	1144	(citation	omitted).2		We	explained	that	the	

Department’s	burden	at	most	stages	of	a	child	protective	case	is	to	prove	the	

necessary	 elements	 by	 a	 preponderance	 of	 the	 evidence,	whereas	 “the	 court	

may	 not	 terminate	 a	 parent’s	 rights	 unless	 it	 is	 persuaded	 by	 clear	 and	

convincing	evidence	that	the	Department	has	met	its	burden.”		Id. ¶ 14	(citing	

22	M.R.S.	§§	4035,	4055).		We thus	concluded	that	“although	the	 [trial]	court	

 2		A	trial	judge’s	authority	to	take	judicial	notice	of	findings	of	fact	and	conclusions	of	law	is	distinct

from	the	judge’s	authority	 to	consider	evidence presented in	a	previous	stage	of	a	child	protective	

proceeding—the	latter	is	limited	to	cases	where	the	same	trial	judge	heard	the	evidence	presented.		

See In	 re	 Caleb	 M.,	 2017	 ME	 66,	 ¶¶ 23-24,	 159	 A.3d	 345;	 In	 re	 Scott	 S.,	 2001	 ME	 114,	 ¶	 12,	

775 A.2d 1144.		At	issue	in	this	case	is	the	consideration	of	factual	findings,	not	evidence.
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may	take	judicial	notice	of	prior	findings	in	a	termination	proceeding,	it	must	

independently	assess	all	facts	presented	and	must	be	confident	to	a	clear	and	

convincing	standard	that	the	evidence	taken	as	a	whole	is	sufficient	to	meet	the	

strict	statutory	prerequisites	for	terminating	parental	rights.”		Id.

[¶8]	 	 That	 standard	 was	 met	 in	 Scott	 S. when	 the	 trial	 court	 heard	

evidence	 of	 the	 mother’s	 continuing	 inability	 to	 protect	 her	 children	 from	

jeopardy.	 	 Id. ¶	 15.	 	 We reasoned	 that	 the	 “evidence	 related	 to	 events	 that	

occurred	after	 the	jeopardy	order	was	entered”	and	 that	“[t]he	court	did	not	

rely	 on	 the	 original	 findings,	 instead	 it	 had	 before	 it	 new	 evidence	 of	 the	

parents’ abilities.”		Id.

Similarly,	in	this	case the	court	stated	that	it

subjected	all	the	evidence	it	considered	to	the	scrutiny	required	for	

the	 clear	 and	 convincing	 evidence	 standard	 used	 during	 a	

termination	of	parental	rights	proceeding.		

The	 [c]ourt	 reviewed	 the	 circumstances	 surrounding	 the	

filing	of	the	Petition	for	Termination	of	Parental	Rights,	the	actions	

taken	 by	 the	Department	 to	 date	 to	 rehabilitate	 and	 reunify,	 the	

recommendations	 of	 the	 guardian	 ad	 litem,	 the	 safety	 of	 the	

children,	and	the	actions	taken	by	the	parents	to	engage	themselves	

in	a	timely	manner	in the	many	services	provided	them.		

[¶9]		The	court	heard	ample	evidence	regarding	the	parents’	actions	since	

the	jeopardy	order	was	entered.		Specifying	again	that	all	findings	were	made	

by	 clear	 and	 convincing	 evidence,	the	 court	 found	 that	“[w]hen	 the	 children	
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came	into	care,	the	parents	continued	their	unsafe	[lifestyle],	failed	to	alleviate	

jeopardy,	and	 failed	 to	recognize	 their	need	 to	understand	 the	needs	of	 their	

children	and	what	role	they	play	in	the	Department	taking	their	children	into	

care.”	 	The	 record	 supports	 the	 court’s	 findings,	 to	 the	 clear	 and	convincing

evidence standard,	 that	 at	 least	 one ground	 of	 parental	 unfitness	 had	 been

proved,	 see 22	 M.R.S.	 § 4055(1)(B)(2)(b)(ii),	 and	 that	 termination	 of	 the	

parents’	 rights	 was	 in	 the	 children’s	 best	 interests,	 see 22	 M.R.S.	

§ 4055(1)(B)(2)(a);	In	re	Thomas	H.,	2005 ME	123,	¶	30,	889	A.2d	297.

The	entry	is:

Judgment affirmed.

Harold	J.	Hainke,	Esq.,	Hainke	&	Tash,	Whitefield,	for	appellant	father

Aaron	B.	Rowden,	Esq.,	Waterville,	for	appellant	mother

Janet	T.	Mills,	Attorney	General,	and	Hunter	C.	Umphrey, Asst.	Atty.	Gen.,	Office	

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

Services

Skowhegan	District	Court	docket	numbers	PC-2017-19	and	-20

FOR	CLERK	REFERENCE	ONLY