MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	127

Docket: Cum-19-52

Submitted

On	Briefs: 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	 Services	 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	or	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	 the	
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children 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	 case	 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	jeopardy	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,	the	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	erratic	
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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	another.		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	apartment.		

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]		The	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.	 	 The	 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).		
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[¶7]		At	the 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	 assistance	 in	

asking	 the	 father	 to	 leave	 the	 hotel, the	 father’s	 belligerence	 and	 ultimate	

challenge to	 the	 police	 officer—“go	 ahead	 and	 arrest	 me”—exacerbated	 the	

problem.		The	father	was	arrested for	criminal	trespass and	spent	three	days	in	

jail,	though	the	charge	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,	although	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,	 the	 court	 found	 jeopardy	 based on the	 father’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.		
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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	place.		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	attended

a	different	school	every	year	of	their	lives	and sometimes	lived	in	a	vehicle; and	

that	the	children	feared 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	of	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	the	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	---.
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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	father

Aaron	M.	Frey,	Attorney	General,	and	Zack	Paakkonen,	Asst.	Atty.	Gen.,	Office	of	

the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	

Services

Portland	District	Court	docket	number	PC-2018-71

FOR	CLERK	REFERENCE	ONLY