MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 127 Docket: Cum

- 19

- 52 Submitted

On	B riefs : July	18,	2019 Decided: August 6 , 2019
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , and HJELM , JJ.

IN	RE	CHILDREN	OF	PHILIP	M.

PER	CURIAM [¶1] Philip	M.	appeals from	a	judgment	of	the	District	Court	(Portland, Eggert,	J. )	 finding	 that	 his	 children are in	 circumstances	 of	jeopardy to	 their
health	 or	welfare in	his care. See 22	M.R.S.	 §§	4002(6),	4035(2)	 (2018). He argues	that	the	court violated	his	due	process	rights in	entering	the	jeopardy
order because the	matter	was	initiated as	a	direct	consequence	of	the	failure of the	 Department	 of	 Health	 and	 Human	 Service s to continue	 to pay	 for	 his family’s	temporary	housing	in	a	timely	manner,	which	resulted	in	the	father’s arrest	 for	criminal	 trespass.		He also contends	 that	 the	court	erred	in	 finding
that	the	children were in	circumstances	of	jeopardy to	their	health	o r	welfare

. We	affirm	the	judgment. [¶ 2 ]	 	 In	 October	 2018,	 the	 Department	 filed	 a	 petition	 for	 a	 child protection	 order	 and sought a	 preliminary	 protection	 order	 for	 the	 father’s three	 children	 based	 on	 neglect	 by	 the	 father,	 who had	 been caring	 for	 the2 ch ildren until	he	was	arrested	for	criminal	trespass ,	and by the	mother,	whose
whereabouts	 are	 unknown. See 22	M.R.S.	 §§	 4032,	 4034	 (2018). The	 court ( Darvin,	J. )	entered	a	preliminary	protection	order,	and	the	children	entered	the Department’s	custody. 22	M.R.S.	§ §	4034(2) ,	4036(1)(F)	(2018)

. [¶ 3 ]	 	 After	 an	 agreed to continuance,	 the	 father	 did	 not	 attend	 the rescheduled	 November	 summary	 preliminary	 hearing	 due	 to	 weather conditions,	and	the	court ( Eggert,	J. ) scheduled	a	case	management	conference

to be	 held	 in	 early	 December. See	 id. §	 4034(4). At	 the	 c ase	 management
conference , the	 parties were	 unable	 to reach an agreement ,	 and	 the	 court ( Powers, J. )	 scheduled	 a contested jeopardy	 hearing for	 January 2019. See
22 M.R.S.	§ 4035	(2018). [¶ 4 ]		The court	( Eggert,	J. )	held	a	two

- day	j eopardy	hearing as	scheduled

. The	father	was	present	and	was	represented	by	counsel.		The	guardian	ad	litem was	present	and	participated	in	the	hearing. [¶ 5 ]		Based	on	the	evidence	presented,	t he	court entered an	order finding that	the	children	were	in	circumstances	of	jeopardy to	their	health	or	welfare

. Id. § § 4002(6),	4035(2). The	court	reached	the	following	findings,	all	of	which are	supported	by	competent	evidence	in	the	record: Father	 has	 been	 unable	 to	 provide a	 stable,	 consistent	 living situation	for	the	three	children.		The	reason	for	that	is	his	erratic3 and	 explosive	 behavior	 when	 he	 is	 confronted	 with	 situations which	 he	 does	 not	 control	 require [s] him	 to	leave	 present	living situations	and	move	on	to	anothe r.		He	does	not	appear	to	have	had an[y]	 gainful	 employment	 recently.	 	 He	 has	 been	 living	 in	 an apartment	 for	 the	past	 two	months	without	 the	children,	but	 the rent	for	January	2019	is	not	paid	and	it	is	unclear	if	he	will	be	able to	remain	in	that	apartme nt. Father	 has	 used	 excessive	 physical	 discipline	 with	 the	 children. Father	has	been	emotionally	abusive	to	the	children. The	children claim	some	food	insecurity	in	their	travels	and	[the	middle	child] was	shoplifting	to	obtain	money	for	food	while	in [another	state]. The	court	ordered	the	Department	to engage	in	reunification	efforts	with	the
father and	ordered	the	father	to	participate	in	identified	services,	obtain	stable housing,	 and	 continue	 to	 visit	 with	 the	 children	 as	 scheduled to	 facilitate	 a permanency	plan	of	family	reunification

. The	father	timely	appealed	from	this judgment. See 22	M.R.S.	§ 4006	(2018) ;	M.R. App.	P.	2A,	2B(c)(1 ). [¶ 6 ] T he	father ’s	primary	contention	is that	the	children	would	not	have
been	removed from his	care	if	not	for	the	Department’s	failure	to continue	the payments	 for his	 family’s temporary	housing as	he expected , resulting in	his arrest	for	criminal	trespass when	he	failed	to	leave	the	housing	previously	paid for	 by	 the	 Department

. T he court was	 required	 by	 statute	 to consider	 the circumstances	that	led	to	the	children’s	removal	from	the	father’s	care,	and	all other	relevant	evidence,	to reach	findings	regarding	the	existence	of jeopardy
as	of	the date of	the	jeopardy	hearing. See 22	M.R.S.	§ 4035(2).4 [¶ 7 ] At	th e trial, the Department caseworker and	the	father both	testified that	there	had	been	confusion	surrounding whether	the	family	could	remain in the	temporary	housing at	a	hotel .		The caseworker agreed that	a	delay	in	the approval	of	a	second	day’s	hotel	payment	resulted	in	the	father	being	asked by
hotel	staff to	leave	the	hotel	with	his	children	at	the	check

- out	time.		However,
there	is	 also	 evidence	 that ,	 after	 the	 hotel	 called	 the	 police	 for	 assista nce	 in asking	 the	 father	 to	 leave	 the	 hotel, the	 father’s	 belligerence	 and ultimate challeng e to	 the	 police	 officer

— “ go	 ahead	 and	 arrest	 m e ”

— e x acerbated	 the problem. The	father was arrest ed for criminal	trespass and	spent	three	days	in jail,	though	the	ch arge	was , ultimately , not	prosecuted. This	evidence supports the	court’s	finding	that the	father’s	volatility	when	he	faces	a	situation	that	he does	not	control	contributes	to	his	family’s inability	to	retain	stable	housing

. [¶ 8 ] Thus,	a lthough	the father	is	correct that the	Department ’s	delay in payment contributed	to the	confusing situation , 1 the	circumstances upon	which
the	 court based	 its	 finding	 of jeopardy	 are	 well	 supported	 in	 the	 record

. Specifically,	 t he	 court	 found	 jeopardy	 based on the	 fa ther’s physical	 and
emotional	mistreatment	of	the	children ; his chronic	volatility ,	including	“erratic

1 The	Department	supervisor	testified	that	she	“felt	badly	about”	the	events	that	transpired	on the	day	of	the	father’s	arrest.5 and	explosive	behavior,” resulting	in	unstable	housing	for	the	children ; and the
children’s need	to have	a	stable	home	and	stop	moving	from	place	to	plac e. In support	of	these	findings,	the	record contained	evidence that	the	father	moved
with	 the	children many times and	across	multiple	 states ; that the	 father had disputes , with a roommate, neighbors, shelter	 residents,	 and	 others , that repeatedly led	the	family	to	leave	housing ; that the	children therefore attend ed a	different	school	every	year	of	their	lives	and sometimes	liv ed in	a	vehicle; and
that	the	children fear ed the	father’s emotional	volatility	and	physical	violence
toward	them. 2 [¶ 9 ] The	father,	represented	by	counsel,	received	notice	of	the	jeopardy hearing	and	had	the	opportunity	to	be	heard	about	the	events	that	brought	the children	into	the	custody	of	the	Department	and	about	all	other	facts	pertaining
to	the	health	and	welfare	o f	the	children. See In	re	Emma	B. ,	2017	ME	187,	¶	21, 169	A.3d	945.		Only	after	a	trial	that	satisfied	these	dictates	of	due	process	did the	court	reach	findings	of	jeopardy. The	court	did	not	violate	principles	of	due process	 and	 did	 not	 err	 in	 finding	 an	 existing	 threat	 of	 serious	 harm	 to	 the

2 Some	of	t he	father’s	arguments	focus	on	the	weight	and	meaning	of other	evidence presented	at trial ,	some	of	which	was	unrelated	to	the	bases	for	the	court’s	finding	of	jeopardy.		To	the	extent	that any	 evidence	 conflicted	 with	 the	 court’s	 findings	 of	 fact,	 however,	 we	 defer	 to	 the	 court’s determination	of	the	weight	and credibility	of	the	evidence. See In	re	Child	of	Dawn	B. ,	2019	ME	93, ¶	10,

--- A.3d

--- .6 children that	necessitated	the	entry	of	a	jeopardy	order	to protect the	children’s health	 and	 welfare	 while	 the	 father	 participates	 in rehabilitation	 and reunification	services,	with	the	assistance	of	the	Department, as	he	endeavors
to	alleviate the circumstances	of	jeopardy

. See 22 M.R.S. § § 4002(6)(A),	(10), 4035(2) ,	4041 (2018); In	re	Emma B. ,	2017	ME	187,	¶ 21,	169	A.3d	945

. The entry	is: Judgment affirmed.

James	S.	Hewes,	Esq.,	South	Portland,	for	appellant f ather Aaron	M.	Frey,	Attorney	General,	and	Zack	Paakkonen,	Asst.	Atty.	Gen

. ,	Office	of the	Attorney	General,	Augusta,	for	appellee Department	o f	Health	and	Human Services

Portland	District	Court	docket	number	PC

- 2018

- 71 F OR C LERK R EFERENCE O NLY