MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2016 ME 52

Docket: Yor-15-238

Argued: November 3, 2015

Decided: April 12, 2016

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

HUMPHREY, JJ.

GUARDIANSHIP OF AUBREE THAYER

JABAR, J.

[¶1] The father of Aubree Thayer appeals from a judgment of the York 

County Probate Court (Longley, J.)

1

awarding a limited guardianship of Aubree to 

her maternal grandmother pursuant to 18-A M.R.S. § 5-204(d) (2015). The father 

primarily challenges the court’s determination that he demonstrated a lack of 

consistent participation in Aubree’s life. We are satisfied that the evidence 

supports the court’s conclusions that the father demonstrated a lack of consistent 

participation by failing to consistently care for and support Aubree, and that the

father remained unable to care for Aubree at the time of the hearing on the petition. 

We affirm the judgment. 

I. BACKGROUND

[¶2] The following findings of fact made by the trial court are supported by 

competent evidence in the record. When the mother became pregnant with

 1

 The case was heard on judicial interchange pursuant to 4 M.R.S. § 306 (2015).
2

Aubree, she was living with the father in Colorado. The young couple was not 

able to support a child on their own, and the mother soon returned to Maine to 

finish her pregnancy in the home of the maternal grandparents. The father 

remained in Colorado, where he was on probation for drug-related crimes. Due to 

the terms of his probation, the father was able to visit Aubree only twice during the 

first nine months of her life.

[¶3] In February 2014, when Aubree was nine months old, the father moved 

to Maine. For the next month, the father lived with the mother and Aubree in the 

home of the maternal grandparents and received parenting instruction from the 

maternal grandparents. During this time, the father participated in caring for 

Aubree only occasionally, and only when prompted, while the mother and the 

maternal grandparents continued to share equal responsibility for Aubree’s care.

[¶4] In May 2014, approximately two months after the father left Aubree in 

the care of her mother and maternal grandparents, Aubree’s mother died of a 

heroin overdose. Throughout the following summer, the maternal grandparents 

provided nearly all of Aubree’s care and support,

2 while the father maintained an 

irresponsible existence that consisted of drinking; smoking marijuana; and, at 

times, driving while under the influence with Aubree in the vehicle. During this 

 2

 The father did take Aubree to spend the weekends with her paternal grandparents.
3

period, the father admitted that he did not know how to care for Aubree and that he 

thought the maternal grandparents were “far better for [her].”

[¶5] In August 2014, after an argument with the maternal grandfather, the 

father removed Aubree from the maternal grandparents’ care. The maternal 

grandparents then petitioned for coguardianship of Aubree. See 18-A M.R.S. 

§ 5-204 (2015). In support of their petition, the maternal grandparents alleged that 

the father had never provided direct care for Aubree; had maintained only limited 

contact with her; and was unable to care for her or provide her with a stable, 

drug-free home. The petitioners claimed that the father had demonstrated a lack of 

consistent participation in Aubree’s life within the meaning of 18-A M.R.S. 

§ 5-204(d); they did not assert that he had created a temporarily intolerable living 

situation within the meaning of 18-A M.R.S. § 5-204(c).

[¶6] While the petition was pending, the father allowed Aubree’s health 

issues to worsen through neglect. When Aubree developed a cough, the father 

neglected her symptoms for several weeks before taking her to see a doctor; in the 

meantime, Aubree’s condition worsened into an ear and sinus infection. After 

taking Aubree from the maternal grandparents’ home, the father continued to 

demonstrate limited job-retention skills and failed to secure stable, independent 

housing for himself and his daughter. At the time of the hearing, the father

remained without a permanent home. He claimed that he and Aubree sometimes 
4

stayed with his parents and sometimes stayed with his aunt. In these homes, the 

father fed Aubree and changed her diapers when others were not available to do so.

[¶7] In March 2015, after a testimonial hearing, the court entered a 

judgment granting the petition for Aubree’s guardianship as to the maternal 

grandmother and denying it as to the maternal grandfather. The court determined 

that the father had demonstrated a lack of consistent participation with Aubree

within the meaning of section 5-204(d) by engaging in a pattern of substance abuse 

that rendered him unable to consistently meet Aubree’s needs. The court also

explained its decision by stating that the father “has ongoing needs and issues that 

currently render [him] unable to meet the physical, mental and emotional health 

and developmental needs of his child and to keep her out of harm’s way. This 

father simply is not yet able to meet the child’s needs.” (Footnote omitted). The 

court determined that Aubree’s best interest would be served by the appointment of 

the maternal grandmother as a limited guardian, reasoning that the father and the 

maternal grandmother had demonstrated an ongoing ability to work together, while 

the father and the maternal grandfather had not. In structuring and limiting the 

guardianship, the court required the maternal grandmother to assist the father in the 

acquisition of parenting skills, to prioritize and ensure Aubree’s regular contact 

and visitation with the father, and to honor the prospect of Aubree living with the 
5

father once he acquired the ability to meet her needs. See 18-A M.R.S. §§ 5-105, 

5-213 (2015). 

[¶8] The father timely moved for further findings of fact and conclusions of 

law, and to alter or amend the judgment. See M.R. Prob. P. 52, 59; see also M.R. 

Civ. P. 52, 59. In so doing, he argued that the court, in determining whether there 

was a demonstrated lack of consistent participation, had failed to make adequate 

findings regarding the factors enumerated in 18-A M.R.S. § 5-101(1-C) (2015). 

He also asserted that the petition could not be granted because the evidence did not 

suggest that he was currently demonstrating a lack of consistent participation.

[¶9] In April 2015, the court entered an order making further findings and 

conclusions, emphasizing that it had applied a high standard of proof to the 

grandparents’ petition and found the facts supporting its decision upon the basis of 

highly credible evidence. The court clarified that the maternal grandparents 

qualified as “de facto guardians” within the meaning of section 5-204(d) because 

Aubree had resided with them for fifteen months, during which time the father had 

demonstrated a lack of consistent participation by chronically abusing substances 

and failing to maintain stable employment or independent housing, while 

depending upon the maternal grandparents to provide the majority of Aubree’s care 

and support. The court determined that this behavior reflected a failure by the 

father to recognize Aubree’s needs, and a failure to comply with the “duties 
6

imposed upon a parent by the parent-child relationship, including but not limited 

to, providing the child necessary food, clothing, shelter, health care, education, a 

nurturing and consistent relationship and other care and control necessary for the 

child’s physical, mental and emotional health and development.” 

[¶10] Although the court appeared to interpret section 5-204(d) to require 

the maternal grandparents to show a lack of consistent parental participation only 

during the time that the child resided with them, the court’s explanation of its 

determination of parental unfitness referred not only to the father’s actions during 

the time that Aubree was living with her grandparents, but also to his actions 

during the months when Aubree was primarily in his care. The court explicitly 

found that the father’s actions had continued to harm Aubree after he removed her 

from the maternal grandparents’ care. Specifically, the court found that the father 

had “subjected Aubree to his bouncing around lifestyle” and delayed in “getting 

the child the immediate medical treatment that her worsening infections required.” 

Correctly reflecting the necessity of assessing the father’s “current” parental 

fitness, the court concluded that the “father’s actions dramatically, and even 

traumatically, affect his young and very dependent child’s well-being.” 

[¶11] The father timely appealed to us. See 18-A M.R.S. § 1-308 (2015); 

M.R. App. P. 2(b)(3).
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II. DISCUSSION

[¶12] On appeal, the father primarily contends that the court erred in 

interpreting the de facto guardian statute and violated his fundamental rights by 

granting the petition.3 He argues that the element of a lack of consistent 

participation must be interpreted to allow the appointment of a guardian only 

(1) when a parent’s physical absence threatens the welfare of a child and (2) when 

that physical absence exists at the time that the petition is being considered. He 

asserts that this bright-line construction is both compelled by the language of the 

statute and necessary to protect the fundamental rights at stake. We disagree with 

his assertion concerning the requirement of a parent’s physical absence, but do 

agree that the parent’s lack of consistent participation—i.e., the parent’s 

unfitness—must exist at the time the petition is being considered.

[¶13] Statutory construction is a question of law that we consider de novo. 

Guardianship of Jewel M. (Jewel I), 2010 ME 17, ¶ 10, 989 A.2d 726. “In 

 3

 At oral argument, the father argued that the court violated his right to procedural due process by 

employing, without notice, the legal standard applicable to guardianship proceedings brought pursuant to 

18-A M.R.S. § 5-204(c) (2015). We reject this contention as a mischaracterization of the court’s analysis. 

In determining the nature of the parental deficiency that constitutes a lack of consistent participation, 

the court looked to our decisions explicating the meaning of section 5-204(c). The court appropriately 

looked to this related body of law in deciding, without prior guidance from us, the meaning of 

18-A M.R.S. § 5-204(d) (2015), and it then proceeded to apply the standard set by section 5-204(d) to the 

evidence presented at trial. There is no indication that the father lacked notice of the nature of the 

allegations against him. Although the evidence might have supported the imposition of a guardianship 

based upon a temporarily intolerable living situation, the maternal grandparents did not assert section 

5-204(c) as an alternative basis for their petition.
8

interpreting a statute, we first examine the plain meaning of the statutory language 

seeking to give effect to the legislative intent . . . .” Guardianship of Zachary Z., 

677 A.2d 550, 552 (Me. 1996) (quotation marks omitted). We also “consider the 

provision at issue in light of the entire relevant statutory scheme” in order to arrive 

at a harmonious result. Adoption of Tobias D. (Tobias D.), 2012 ME 45, ¶ 15, 

40 A.3d 990. We consider an alleged constitutional violation de novo, as a matter 

of law, but confine our review of a statute’s application to the facts in the case 

before us. Rideout v. Riendeau, 2000 ME 198, ¶¶ 14-15, 761 A.2d 291.

A. A Lack of Consistent Participation

[¶14] Pursuant to 18-A M.R.S. § 5-204(d), a Probate Court may appoint a 

guardian for a child if the petitioner establishes, by clear and convincing evidence, 

that “there is a de facto guardian and a demonstrated lack of consistent 

participation by the nonconsenting parent,” and that the appointment of the 

de facto guardian is in the child’s best interest.4 See Guardianship of 

Chamberlain, 2015 ME 76, ¶ 33, 118 A.3d 229 (interpreting section 5-204(d) to 

require proof by clear and convincing evidence).

 4

 The text of section 18-A M.R.S. § 5-204(d) provides in relevant part:

The court may appoint a guardian . . . for an unmarried minor if . . . [the parents or the 

legal custodian of the minor] do not consent, but the court finds by a preponderance of 

the evidence that there is a de facto guardian and a demonstrated lack of consistent 

participation by the nonconsenting parent or legal custodian of the unmarried minor. The 

court may appoint the de facto guardian as guardian if the appointment is in the best 

interest of the child.
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[¶15] Title 18-A M.R.S. § 5-101(1-C) defines “[d]emonstrated lack of 

consistent participation” as a

refusal or failure to comply with the duties imposed upon a parent by 

the parent-child relationship, including but not limited to providing 

the child necessary food, clothing, shelter, health care, education, a 

nurturing and consistent relationship and other care and control 

necessary for the child’s physical, mental and emotional health and 

development. 

The statute further requires that the court consider “at least the following factors” 

in determining whether a petitioner has shown that a parent has demonstrated a 

lack of consistent participation:

(a) The intent of the parent . . . in placing the child with the person 

petitioning as a de facto guardian;

(b) The amount of involvement the parent . . . had with the child 

during the parent’s . . . absence; 

(c) The facts and circumstances of the parent’s . . . absence;

(d) The parent’s . . . refusal to comply with conditions for retaining 

custody set forth in any previous court orders; and

(e) Whether the nonconsenting parent . . . was previously prevented 

from participating in the child’s life as a result of domestic violence or 

child abuse or neglect.

18-A M.R.S. § 5-101(1-C).

[¶16] Section 5-101(1-C) thus mandates the court’s consideration of at least 

five specific criteria in a proceeding for guardianship pursuant to section 5-204(d). 

The father asserts that these statutory factors establish that a lack of consistent 
10

participation can be demonstrated only during periods when the child’s parent is 

physically “absent.” We disagree.

[¶17] The criteria in subsection 1-C constitute a nonexhaustive framework 

for the court’s analysis of the evidence in a particular proceeding. The factors 

must be considered at a minimum, but do not establish a definitive test for 

application of the demonstrated lack of consistent participation element. The 

criteria are instead itemized considerations that, if relevant in a given case, inform 

the ultimate determination of whether the nonconsenting parent refused or failed to 

comply with the duties imposed upon the parent by the parent-child relationship.

[¶18] As defined by the Legislature, parental duties include, but are not 

limited to, “providing the child necessary food, clothing, shelter, health care, 

education, a nurturing and consistent relationship and other care and control 

necessary for the child’s physical, mental and emotional health and development.”

18-A M.R.S. § 5-101(1-C). Providing for a child’s physical, mental, and 

emotional needs is a multifaceted responsibility that necessarily requires some 

degree of active, hands-on involvement in the child’s life. See Pitts v. Moore, 

2014 ME 59, ¶ 28, 90 A.3d 1169 (distinguishing between “parenting functions” 

that benefit but do not necessarily involve direct contact with a child and 

“caretaking functions” that involve direct participation in a child’s daily care, in 

discussing the elements of de facto parenthood). To read section 5-101(1-C) as the 
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father recommends would render superfluous the list of active parental functions 

that the Legislature apparently considered when contemplating the obligations that 

bind a parent to his child. Based on the plain language of the statute, we conclude 

that a lack of consistent participation is demonstrated by a parent’s failure or 

refusal to meet his parental obligations. Although such neglect may be shown by a 

parent’s physical absence, it is not necessarily restricted to that circumstance.

B. Timeframe

[¶19] Having examined the type of parental conduct that statutorily 

qualifies as a lack of consistent participation, we now consider the timeframe 

within which that conduct must occur in order for a petitioner to prevail on a claim 

for de facto guardianship. Section 5-101(1-C) defines the conduct that constitutes 

a demonstrated lack of participation, but does not define the timeframe within 

which that conduct must occur. However, the definition of de facto guardian 

provides that the parent’s lack of consistent participation must occur at a certain 

time in order for the petitioner to qualify as a de facto guardian. 18-A M.R.S.

§ 5-101(1-B) (2015). In relevant part, section 5-101(1-B) defines a de facto 

guardian as a person with whom a child, if under the age of three, has resided for a 

period of at least six months, which need not be consecutive, of the twenty-four 

months immediately preceding the filing of the petition, “and during which period 
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there has been a demonstrated lack of consistent participation by the parent.” 

18-A M.R.S. § 5-101(1-B)(a).

[¶20] The text of section 5-101(1-B) tethers the temporal scope of a period 

of a lack of consistent participation to the “applicable period”—the timeframe, 

dependent upon the child’s age, that the child must reside with an individual in 

order for that individual to qualify as a de facto guardian. As in this case, when the 

child is under the age of three at the time the petition is filed, the applicable period 

of residency must total at least six of the twenty-four months immediately 

preceding the filing of the petition. 18-A M.R.S. § 5-101(1-B)(a).

[¶21] The father contends that, even if we decide that the plain language of 

section 5-204(d) does not require a petitioner to prove a “current” lack of 

consistent participation by the nonconsenting parent, the statute must be interpreted 

and applied in a manner that imposes a “current” requirement on the lack of 

consistent participation element in order to provide adequate protection for a 

parent’s fundamental rights. Before addressing this contention in the context of the 

facts found by the trial court, we discuss the fundamental nature of the rights 

implicated by a contested guardianship proceeding and the substantive safeguards 

that must attend those rights.

[¶22] Like all parents, the father has a fundamental liberty interest in the 

care, custody, and control of his child that is entitled to constitutional protection. 
13

Pitts, 2014 ME 59, ¶ 11, 90 A.3d 1169. The government may interfere with this 

familial relationship only through procedures that satisfy the rigors of the 

Due Process Clause, which necessarily include the establishment of a compelling 

government interest related to the welfare of the child. Id. ¶ 12; Guardianship of 

Jewel M. (Jewel II), 2010 ME 80, ¶ 4, 2 A.3d 301. Out of deference to the 

importance of the fundamental interest at stake, “we have limited the State’s 

intrusions into the parent-child relationship to those instances in which there is 

some urgent reason or there are exceptional circumstances affecting the child that 

justify the intrusion.” Pitts, 2014 ME 59, ¶ 12, 90 A.3d 1169 (footnote omitted).

[¶23] In a proceeding for guardianship pursuant to 18-A M.R.S. § 5-204(c)

based upon an allegation that a parent has created a temporarily intolerable living 

situation, “proof of parental unfitness is a required element to support the 

establishment of a guardianship over the parent’s objection.” Jewel I, 

2010 ME 17, ¶ 12, 989 A.2d 726. The standard for unfitness is less stringent in 

guardianship proceedings than in proceedings to terminate parental rights because 

a guardianship is not permanent, but both types of cases interfere with a protected 

interest in liberty. See id. ¶ 13; In re Amberley D., 2001 ME 87, ¶ 23,

775 A.2d 1158. We have accordingly held that section 5-204(c)’s requirement of a 

temporarily intolerable living situation can only be satisfied by proof that “the 

parent is currently unable to meet the child’s needs and that inability will have an 
14

effect on the child’s well-being that may be dramatic, and even traumatic, if the 

child lives with the parent.” Jewel I, 2010 ME 17, ¶ 13, 989 A.2d 726. 

[¶24] As we indicated in In re Krystal S., the court’s obligation in a 

contested guardianship proceeding is to determine whether the child’s parent is fit 

to care for the child at the time of the hearing. 584 A.2d 672, 674 (Me. 1991); see 

also Guardianship of Jeremiah T., 2009 ME 74, ¶ 28, 976 A.2d 955 (mandating 

consideration of a parent’s current fitness in a guardianship termination case).

[¶25] Section 5-204(d) authorizes the appointment of a guardian over the 

objection of a parent, and must accordingly be interpreted to require a showing of 

parental unfitness that may dramatically and even traumatically affect the child’s 

well-being if the child lives with the parent. See Jewel I, 2010 ME 17, ¶¶ 12-13, 

989 A.2d 726. Section 5-204(d) establishes a parent’s “lack of consistent 

participation” as the type of parental deficiency that may justify the appointment of 

a de facto guardian as a child’s guardian. Because a lack of consistent 

participation must, as a matter of due process, relate to a parent’s current unfitness, 

we conclude that element may be satisfied only by proof that the parent is, at the 

time of the hearing on the guardianship petition, unable or unwilling to care for the 

child, and that the parent’s inability or unwillingness to parent may dramatically 

and even traumatically affect the child’s welfare if the child remains with the 

parent. See Jewel I, 2010 ME 17, ¶ 13, 989 A.2d 726.
15

[¶26] The concept of parental duties, as defined by section 5-101(1-C), 

plainly includes a parental obligation to meet a child’s basic needs for food, 

shelter, and health care—needs that, if unmet, are likely to seriously harm the 

child. See Laurence D. Houlgate, The Child and the State: A Normative Theory of 

Juvenile Rights 112 (1980) (distinguishing between needs that are “basic” and 

those that are not). Where a parent demonstrates an ongoing inability to meet the 

child’s basic needs at the time of the hearing on the petition, parental unfitness is 

established and section 5-204(d) permits state intervention in the parent-child 

relationship without offense to fundamental parental rights. See Tobias D., 

2012 ME 45, ¶ 22, 40 A.3d 990 (suggesting that a parent may be unfit if “he is 

unable or unwilling to ensure that the child’s basic needs are met”).

[¶27] Here, the court correctly and appropriately considered both the 

father’s past actions and his recent actions in determining that he is currently unfit. 

The court found that the father demonstrated a lack of consistent participation in 

Aubree’s life during the time that she lived with the maternal grandparents, and 

that the father remained unable to care for Aubree at the time of the hearing on the 

petition. As we discussed above, a careful review of the evidence in this matter 

confirms these findings in a manner that validates the court’s ultimate decision to 

grant the petition. See In re K.M., 2015 ME 79, ¶ 9, 118 A.3d 812 (per curiam)

(explaining that when the applicable standard of proof is clear and convincing 
16

evidence, “we examine whether the trial court could have reasonably been 

persuaded on the basis of evidence in the record that the required factual findings 

were highly probable” (quotation marks omitted)). We conclude that the court’s 

well-supported findings provide a sufficient basis for the court’s conclusion that 

the father has demonstrated an historical and ongoing inability to meet Aubree’s

basic needs. This failure constitutes a lack of consistent participation that threatens 

Aubree’s welfare, and is consequently sufficient to support the appointment of the 

maternal grandmother as Aubree’s guardian.5

[¶28] In this case, the court granted the maternal grandmother a limited 

guardianship. As we recently noted in Guardianship of Doe, 2016 ME 29, 

¶ 19, --- A.3d ---, when it did so, the court was required to specify “the duties and 

powers of the guardian, as required [by 18-A M.R.S. § 5-105], and the parental 

rights and responsibilities retained by the parent of the minor” pursuant to

18-A M.R.S. § 5-204. Here, the court specified that the father retained the right to 

have regular telephonic and in-person contact with Aubree, including overnight 

visits. The court also specified that the father retained the right to have access to 

 5

 We do not discuss the father’s contentions that the court erroneously awarded the guardianship 

without first requiring the maternal grandparents to exhaust the remedy provided by the Grandparents 

Visitation Act, 19-A M.R.S. §§ 1801-1805 (2015). The record here does not suggest that a domestic 

relations matter was proceeding in the District Court at the same time that the Probate Court considered 

the petition for guardianship. Cf. Guardianship of Jewel M. (Jewel II), 2010 ME 80, ¶¶ 50-51, 

2 A.3d 301. Moreover, we agree with the court’s determination that an award of grandparent visitation 

would not have met Aubree’s need for safety and stability. See id. ¶ 51.
17

all of Aubree’s medical, educational, and extracurricular records; retained the right 

to participate in medical decision-making; and retained “all remaining parental 

rights and responsibilities” not specifically allocated to the guardian.

III. CONCLUSION

[¶29] With the guardianship in place, Aubree will benefit from the stability 

that her maternal grandmother has consistently afforded her. In addition, because

the court has specified the respective rights and obligations of the maternal 

grandmother and the father, we expect that they will work together for the benefit 

of the child they both love.

The entry is:

Judgment affirmed.

On the briefs:

Tara A. Rich, Esq., Libby O’Brien Kingsley & Champion, 

Kennebunk, for appellant father

Heather T. Whiting, Esq., and Michael T. Devine, Esq., 

Drummond & Drummond, LLP, Portland, for appellee maternal 

grandmother

At oral argument:

Tara A. Rich, Esq., for appellant father

Heather T. Whiting, Esq., for appellees maternal grandmother

York County Probate Court docket number 2014-695

FOR CLERK REFERENCE ONLY