MAINE SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 50 Docket: Aro

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On	Briefs: July	20,	2016 Decided: March	16,	2017 Corrected: June	29 ,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER, MEAD , GORMAN ,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

KENNETH	CABRAL

v. DANIELLE	L'HEUREUX

MEAD ,	J. [¶1] Danielle	 L’Heureux	 appeals	 from	 a judgment	 entered	 in the
District Court	 (Houlton, O’Mara,	 J. )	 that	 established	 parental	 rights	 and responsibilities	and	awarded	Kenneth	Cabral	primary	physical	residence of	the parties’	two	daughters. L’Heureux	argues	that	the	court	erred	in	considering and	 relying	 upon	 evidence	 offered	 in	 a separate	 proceeding	 co ncerning	 the same	 parties.	 	 We	 agree	 and	 vacate	 the	 order	 and	 remand	 for	 further proceedings.
I.		BACKGROUND [¶ 2 ] The	 following	 facts	 are	 established	 in	 the	 record	 in	 this	 matter. L’Heureux	and	Cabral	are	the	parents	of	two	daughters,	ages	nine	and	twelve	at2 the time	 of	 the	District	 Court’s	October	 1 4 ,	 2015,	 order .	 	 At	 the	 time	 Cabral commenced	 a	 complaint	 for	 determ ination	 of	 parental	 rights	 and responsibilities	and	child	support	in	 the District	Court	at	Lewiston	in	August
2012 ,	 the	 girls	 were	 residing	 with	 him	 at	 his	 home	 in	 Aroostook	 County. L’Heureux	resided	in	Auburn,	and	the	children	had	been	residing	with	her until the	 month	 before	 Cabral’s	 filing .	 	 After	 multiple	 continuances,	 the	 case	 was transferred	to	the	District	Court	at	Houlton	in March 2014.		A	hearing	was	held on	the	complaint	on	September	28,	2015,	and	the	court	issued	its decision	on October	14,	2015

. [¶ 3 ] Cabral ,	his daughters, and	his	partner	and	her	three	children	live	in a	 mobile	 home	 that	 suffers	 from	 a	 significant	 lack	 of	 adequate	 heating	 and sanitation	 facilities,	including	a	lack	 of	 running	water	in	 the	 past.	 	The	elder daughter	testified	to her	distress	in	living	under	the	conditions	in	the	mobile home.		The	mother	of	a	friend	of	one	of	the	daughters	testified	to	the	conditions within	 the	 trailer	 after	 briefly	 observing	 them	 when	 bringing	 the	 daughter home.	 	 She	 reported	 that	 Cabral	 prohibite d	 his	 daughter	 from	 visiting	 the friend’s	house	after	the	visit. [¶ 4 ] L’Heureux	resides	in	an	apartment	in	Auburn.		She	testified	that	she had	 been	engaged	in	an	 “unhealthy	 relationship”	 that	 concluded	 three	 years3 prior	to	the	hearing.		She	was	arrested	a t	her	apartment	for	disorderly	conduct, but	the	charges	were	later	dropped. [¶ 5 ] During the	period	between	the	filing	of	the	parental	rights	complaint by	 Cabral	 in	 2012	 and	 the	 issuance	 of	 the	 court’s October	 14,	 2015 , order , Cabral	 obtained	 two	 protectio n orders	 against	 L’Heureux:	 an	 order	 for protection	 from	abuse	 from	 the	District	 Court	at	 Lewiston,	and	an	 order	 for protection	 from	 harassment	 from	 the	 District	 Court	 at	 Houlton.	 	 At	 the conclusion	of	the	evidence	in	the	parental	rights	case,	the	court	an nounced	that
it	was going	to	take	judicial	notice	of	the	protection	from	harassment	case	that it	had	presided	over	in	April	and	June	2014. 1 The	October	2015	parental	rights and	responsibilities	order	includes	the	following	statement: The	 court	 has	 carefully	 considered	 the	 evidence,	 and	 has	 taken judicial	 notice	 of	 the	 pleadings, testimony and	 orders	 in HOUDC

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- 10	and hereby renders	its J udgment

. . . . (Emphasis added .) [¶ 6 ] After	the	issuance	of	the	order	and the	denial	of	L’He ureux’s motion for	amended	or	additional	findings,	L’Heureux	timely	appealed.

1 The	 court’s	 statement	 and the text	 of	 the	 parental	 rights	 and	 responsibilities	 order	 make reference	to	a	protection	from	abuse	case.		Although	the	record	is	not	altogether	clear,	it	appears	that the	matter	was	actually	a	protection	 from	harass ment	complaint	commenced pursuant	to 5 M.R.S. § 4653 (201 6 ), and	we	will	refer	to	it as	such throughout	this decision

.4 II.		DISCUSSION [¶ 7 ] The	 court’s judgment includes	 three	 findings	 that	 could	 be perceived	as	adverse	to	L’Heureux	on	issues	regarding	primary	residence	and parental	contact:	(1) s he	was	arrested	on	a	disorderly	conduct	charge

— which was	later	dismissed

— for	an	unknown	circumstance	at	her	apartment;	(2) s he was	involved	in	an	“unhealthy	relationship”

— the	circumstances	of	which	are not	elucidated	in	the	record

— that	concluded	three	year s	prior	to	the	hearing; and	(3) she supported	a	man who	reportedly	was	charged	with	abusing	one	of Cabral’s	partner’s	children. 2 [¶ 8 ] The	first	two	findings,	while	adverse	to	L’Heureux’s	position , are	not overwhelming	or	dispositive.		By	contrast,	the	th ird	raises	profound	questions regarding	L’Heureux’s	judgment	and	interactions	with	minor	children. [¶ 9 ] None	of	the	facts	supporting	this	third	finding	appear	in	the	record of	the	parental	rights	proceedings.		They	are	drawn,	as	noted	in	the judgment , wh olly	 from	 testimony	 presented	in	 the	 earlier	 protection	 from	 harassment hearing.		The	court	incorporated	the	testimony	from	the	separate	action	under the	rubric	of	judicial	notice.

2 The	c ourt	found ,	without	evidence	in	the	record	of	this	matter, that	L’Heureux	called	her own daughter	a	liar	and	expressed	great	disappointment	that	she would	testify	against	the	man. The	court further	 found	 that	 L’Heureux	went	 to her children’s	 school	and	 caused	a	 scene	 that	 resulted	in	a p artial	lockdown	of	the	school.5 [¶ 1 0 ] The	 doctrine	 of	 judicial	 notice	 is	 we ll	 established	 in	 Maine. Rule 201	of	the	Maine	Rules	of	Evidence,	which	codifie s prior	Maine	practice, defines	the	type	of	adjudicative	facts	that	may	be	judicially	noticed	as	follows: (b) Kinds	of	facts	that	may	be	judicially	noticed. The	court may	judicially	notice	a	fact	that	is	not	subject	to	reasonable	dispute because	it: (1) Is	 generally	 known	 within	 the	 trial	 court’s	 territorial jurisdiction;	or (2) Can	 be	 accurately	 and	 readily	 determined	 from	 sources whose	accuracy	cannot	r easonably	be	questioned. M.R.	Evid.	201(b).		Maine	courts	have	historically	applied	judicial	notice	 to	a wide	variety	of indisputable facts. See Field	&	Murray, Maine	Evidence §	201.2 at	 55

- 57 (6 th e d. 2007 ) (providing illustrative	 examples ) .	 	 Courts may take judicial	 notice	 of	 pleadings,	 dockets,	 and	 other	 court	 records	 where	 the existence	 or	 content	 of	 such	 records	 is	 germane	 to	 an	 issue	 in	 the	 same	 or separate	proceedings. 3 See Finn	v.	Lipman ,	5 2 6	A.2d	1380 ,	1381 (Me.	1987);
Union Mu t. Fire	Ins

. Co

. v . Town	of Topsham ,	441	A.2d	1012 ,	1016 (Me. 1982).

3 The	case	of In	re	Scot t	S. , 2001	ME	114,	¶¶	12

- 13 , 775	A.2d	1144,	confirms	a unique	evidentiary treatment that	is	applicable	only	to	child	protective	proceedings	wherein	a	judge	may	consider	and rely	upon	evidence	submitted	in	earlier	hearings

— as	long	as	the	same	judge	heard	th e	evidence

— because	such	proceedings	are	unitary	in	nature.6 [¶ 1 1 ] The	 doctrine	 of	 judicial	 notice,	 as	 defined	 in	 Rule	 201	 and	 our precedents,	does	not,	however,	open	the	door	to	the	consideration	of	testimony and	exhibits	offered	in	separate	proceedings.		A	clear	line	of	demarcation	exists between	 the fact that	 a	 pleadin g,	 docket	 entry, or order	 exists	 in	 separate proceedings

— all	of	which	are	subject	to	judicial	notice	if	germane	to	an	issue in	later	judicial	proceedings

— and	the actual evidence submitted	in	the	earlier proceedings. A	court	may incorporat e evidence	submitted	in	earlier,	separate proceedings by agreement	of the partie s,	or	admit	pertinent findings made	in	a different	 proceeding	 if	 those	 findings	 meet	 the	 requirements	 of	 collateral estoppel,	but	it	cannot ,	under	 the	 rubric	 of	judicial	notice, simply sua	 sponte import	and	rely	upon	evidence	presented	in	an	earlier	judicial proceeding

. 4 [¶ 1 2 ] Upon	 this	 record,	 it	 appears	 that	 the	 prior,	 separate	 body	 of evidence	relied	upon	by	the	court	loomed	large	in	its	decision	to	award	primary physical	 re sidence	 to	 Cabral	 despite	 the	 circumstances	 in	 his	 home	 and	 the expressed	wish	by	the	older	child	to	live	with	her	mother.		Because	the	court’s

4 We	note	the	occasional,	but	inaccurate,	shorthand	use	of	the	term	“judicial	notice”	by	counsel who	simply	wish	the	court	to	accept	facts	or	evidence	that	is	outside	the	actual	evidentiary	record

— for	example,	where	a	companion	case	has	already	proceeded	to trial	and	incorporation	of	the	record in	 that	 first	 case	 would	 create	 efficiencies	 in the	 second.	 	 Although	 the	 parties	 may	 agree	 to submission	of	that	record	in	evidence	in	the	newer	matter,	it	is	not	done	through	the	application	of judicial	notice. Judi cial	notice	is	a	narrow	concept	that	requires	specific	findings	as	provided	in M.R. Evid. 201(b);	it	should	not	be	referenced	except	in	circumstances	that	truly	constitute	judicial	notice. In	re	Jonas , 2017	ME	115 ,	¶	38	n.10 , --- A.3d

--- .7 error	in	relying upon	that	evidence	absent	the	consent	of	the	parties	or	another legitimate	 evidentiary	 basis ca nnot	 be	 deemed	 harmless,	 we	 vacate	 the judgment and	remand	the	matter	for	further	proceedings	that	may	include,	at the	court’s	discretion,	further	hearing	or	rehearing. The	entry	is: The	 judgment	 establishing	 parental	 rights	 and responsibilities	 is	 vacate d	 and	 the	 matter	 is remanded	 to	 the	 District	 Court	 for	 further proceedings.

Richard	L.	Rhoda,	Esq.,	Houlton,	for	appellant	Danielle	L’Heureux Kenneth	Cabral	did	not	file	a	brief

Houlton	District	Court	docket	number	FM

- 2014

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