MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	50

Docket: Aro-16-6

Submitted

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	 concerning	 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	at	
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the	time	 of	 the	District	 Court’s	October	 14,	 2015,	 order.	 	 At	 the	 time	 Cabral	

commenced	 a	 complaint	 for	 determination	 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	 prohibited	 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	 years	
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prior	to	the	hearing.		She	was	arrested	at	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	 protection	 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	announced	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-PA-14-10	and	hereby	renders	its	Judgment . . . .

(Emphasis	added.)

[¶6]		After	the	issuance	of	the	order	and	the	denial	of	L’Heureux’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	harassment	complaint	commenced	pursuant	to	5	M.R.S.	

§ 4653	(2016), and	we	will	refer	to	it	as	such	throughout	this	decision.
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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)	she	was	arrested	on	a	disorderly	conduct	charge—which	

was	later	dismissed—for	an	unknown	circumstance	at	her	apartment;	(2)	she	

was	involved	in	an	“unhealthy	relationship”—the	circumstances	of	which	are	

not	elucidated	in	the	record—that	concluded	three	years	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	third	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,	

wholly	 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	court	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	

partial	lockdown	of	the	school.
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[¶10]	 	 The	 doctrine	 of	 judicial	 notice	 is	 well	 established	 in	 Maine.		

Rule 201	of	the	Maine	Rules	of	Evidence,	which	codifies 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	reasonably	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	(6th ed.	 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,	526	A.2d	1380,	1381	(Me.	1987);	

Union	Mut.	Fire	Ins. Co. v. Town	of	Topsham,	441	A.2d	1012,	1016	(Me.	1982).

 3		The	case	of	In	re	Scott	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	the	evidence—

because	such	proceedings	are	unitary	in	nature.
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[¶11]	 	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	 pleading,	 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 incorporate evidence	submitted	in	earlier,	separate	

proceedings	by agreement	of	the	parties,	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.

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[¶12]	 	 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	 residence	 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.		Judicial	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	---.
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error	in	relying	upon	that	evidence	absent	the	consent	of	the	parties	or	another	

legitimate	 evidentiary	 basis	 cannot	 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	 vacated	 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-2014-33

FOR	CLERK	REFERENCE ONLY