MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 15 Docket: Som

- 18

- 271 Submitted

On	Briefs: January	17,	2019 Decided: January	2 9 ,	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	 the ir children

pursuant	to 22	M.R.S.	§§ 4050

- 405 6 (2017).		The	father advances no	arguments
on	appeal ,	and	t he	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	an d	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	to2

meet	their children’s needs and	that	it	was	in	the	best	interest s of	the	children
that	parental	rights	be	terminated

. See 22 M.R.S.	§ 4055 (1)(B)(2) (a), (b)(ii). At
the	 hearing,	 t he	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	th e case.		Counsel	for	both	the	mother and	the	fat her 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 behavi oral c hallenges

. The	 court ’s

f

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

interest s 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	 involvem ent	 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	medical3
provider	reports	of	his	children.		He	failed	to	read	any	of	them.	.	.	. [T]he	 mother	 and	 father	 have	 ve ry	 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	suffici ency	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	arguab le	issues	of	merit	in	an	appeal, counsel	should:	[(1)	f]ile	with	the	Court,	with	a	copy	to	the	client,	a4
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	C ourt	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	bri ef	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,	10 4 A.3d	139.
[¶ 6 ] Here, o n	 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 conclude d that he did	not

believe that there were any	arguable	issu es	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
, 1

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

1 The	mother	had	the	same	counsel at	trial and	on	appeal.5
proceedings	 because	 in those proceedings	 the	 burden	 of	 proof	 w as	 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,	wher e 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 explain ed 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

convinc ing	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	iss ue	in	this	case	is	the	consideration	of	factual	findings,	not	evidence.6
may	take	judicial	notice	of	prior	findings	in	a	termination	proceeding,	it	must
independently	assess	all	f acts	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	 tri al	 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	 o riginal	 findings,	 instead	 it	 had	 before	 it	 new	 evidence	 of	 the
parents’ abilities.” Id.
Similarly,	in	this	case t he	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	Te rmination	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 ] T he	court	heard ample evidence	regarding	the	parents’	actions	since
the	jeopardy	order	was	entered. S pecifying again that	all	findings	were	made
by	 clear	 and	 convincing	 evidence, the	 court	 f ound	 that “[w]hen	 the	 c hildren7
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	 interest s , 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 f ather
Aaron	B.	Rowden,	Esq.,	Waterville,	for	appellant m other
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 F OR C LERK R EFERENCE O NLY