MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 54 Docket: Kno

- 19

- 425 Submitted

On	Briefs: February	2 6 ,	2020 Decided: April	28,	2020 Panel: MEAD, GORMAN,	JABAR , HUMPHREY, HORTON,	and	CONNORS, JJ.
IN	RE	CHILD	OF	JILLIAN	T.

GORMAN ,	J. [¶1] Jillian	T.	appeals	from	a	judgment	of	the	District	Court	(Rockland, Sparaco,	 C.J. )	 finding that	 she	 presents jeopardy	 to	 her	 child	 pursuant	 to
22 M.R.S.	§	4035	(2018) .		The mother	challenges	the	court’s	finding	of	the	date on	which	the	child	is	considered	to	have	entered	foster	care	within	the	meaning of	 22	 M.R.S.	 §§ 4038

- B(1)(B) , 4041(1

- A) , 4052(2

- A)(A)(1) (2018). The Department	of	Health	and	Human	Services	has	moved	 to	dismiss	 the	appeal, arguing	that	the court’s	finding	is	not appealable. We deny	the	Department’s motion	to	dismiss because	the	jeopardy	order	is	an	appealable	final	judgment , and	we agree	with	the	m other	that	the	court	miscalculated the date on	which her child i s	considered	 to	have	entered	 foster	care.		W e therefore vacate the judgment	in	part.2 I.		BACKGROUND [¶ 2 ] The	 Department initiated child	 protection proceedings and request ed a	preliminary	prot ection	order	(PPO) as	to	this	child	on	July 4 ,	2019, alleging	 that	 the	 child

— then eleven	 months old

— had	 suffered	 from	 several nonaccidental	 and	 unexplained	 bone	 fractures	 and	 an	 injury	 to	 his	 ear ,	 for which	 the	 mother	 had	 not	 provided	 adequate	 medical	 care

. 1 See 22	 M.R.S. § § 40 32 , 4034(1) (2018). The	 court	 ( E.	 Walker,	 J. )	 entered	 a	 preliminary protection	order	that	day	placing	the	child	in	the	Department’s	custody. See 22 M.R.S.	 §	 4034(2)	 (2018)

. The	 mother	 waived	 her	 right	 to	 a	 summary preliminary	hearing. See 22	M.R.S.	§	4034(4)	(2018)

. [¶ 3 ] With	 the	mother’s	agreement,	 the	court	( Sparaco,	C.J. )	entered	an order	on	October 10 ,	2019,	finding,	by	a	preponderance	of	the	evidence,	that the	 child is	 in	 jeopardy to	 his	 health	 or	 welfare based	 on	 his	 serious	 and unexplained	physical	injuries , a threat	of	serious	emotional	injury posed	by	the mother , and	the mother’s deprivation	of	adequate	medical	and	developmental care	to	the	child. See 22	M.R.S.	§ 4035.		In	the	jeopardy	order,	the	court	also found	that	the	child	entered	foster	care	on	July	4,	2019,	the	date	that	the	PPO

1 The	Department also alleged	jeopardy	to	the	child	by the father.		The	court	later	found	jeopardy as	 to	 the	 father,	 but	 because	 he	 does	 not	 appeal	 from	 that	 judgment,	 we	 address	 the	 facts	 and procedure	only	as	to	the	mother.3

was signed .		On	 the	mother’s	motion,	 the	court	later	clarified	by a corrected jeopardy	order	dated	November	8,	2018, that , although	the	mother	had	agreed to	the	jeopardy	findings, the	mother	had	not	agreed	to	the finding	regarding	the child’s	date	of	entry	into foster	care. The	mother	appeal s ,	challenging	only	the finding	of	the date	of	the child’s entry	into foster	care

. 2 S ee 22	M.R.S.	§	4006 (2018) ;	M.R.	App.	P.	2B(c)(1)

. II.		DISCUSSION [¶ 4 ]		The	date	on	which	a	child	is	“considered	to	have	entered	foster	care” is	the	basis	for	the	calculation	of three	statutory deadlines in	a	child	protection matter:	(1)	the	Department (and	the	parents)	must	initiate	rehabilitation	and reunification efforts on	 that	 date ,	 22 M.R.S.	 §	 4041(1

- A);	 (2)	 the	 court	 must conduct	a	permanency	planning	hearing	within	twelve	months after	that	date , 22 M.R.S.	§ 4038

- B(1)(B);	and	(3)	the	Department must	file	a	petition	seeking the	termination	of	parental	rights	before	the	end	of	the	fifteenth	month after

2 T he	Department has moved	to	dismiss	the	appeal	a s interlocutory ,	arguing	that	a	challenge	to the	court’s	finding	of the	date	of	entry	into foster	care	is	not	an	appealable	final	judgment	pursuant to 22 M.R.S.	 §	 4006	 (2018) because	 it	 is	 not	 necessary	 to	 the entry	 of	 an	 otherwise	 appealable jeopardy	order. See In	re	L.R. ,	2014	ME	95,	¶	9,	97	A.3d	602 (“ Section	4006	unequivocally	provides that	 in	 child

- protective	 cases	 orders	 other	 than	 termination	 orders,	 jeopardy	 orders,	 or	 orders authorizing	medical treatment	are	not	appealable. ” (quotation	marks	omitted)).		We	disagree.		The mother	challenges	a	factual	finding	in	a	jeopardy	order	entered	pursuant	to 22	M.R.S.	§	4035	(2018) , and	a	jeopardy	order	entered	pursuant	to	section	4035	is	appealable	pursuant to	section	4006. See In	 re	B.C. ,	2012	ME	140,	¶¶	9

- 11,	15,	58	A.3d	1118 (allowing	a	parent	 to	challenge	 on	appeal	an aggravating	 factor	 finding	 that	 was	 made	 within,	 but	 not	 necessary	 to,	 a	 jeopardy	 order) .	 	 We therefore	deny	the	Department’s	motion	to	di smiss	the	appeal.4 that	 date if	 the	 child	 has	 been	 in	 foster	 care	 for	 fifteen	 of	 the	 most	 recent twenty
- two	 months,	 22 M.R.S.	 §	 4052(2

- A)(A)(1). B ecause	 the	 date	 carr ies such	important	consequences,	we	must	be	precise	in	determining	it. [¶ 5 ]		The	statute	defines	the	date	on	which	a	child	is	“considered	to	have entered	foster	care”	as	the	earlier	of	two	dates

— “the	date	of	the	first	judicial finding	that	the	child	has	be en	subjected	to	child	abuse	or	neglect”	or	“the	60th day	 after	 the	 child	 is	 removed	 from	 the	 home.”	 	 22	 M.R.S.	 §§	 4038

- B(1)(B), 4041(1

- A).		Here,	there	is	no	dispute	that	the	child	was	removed	from	the	home on	July	4,	2019. T he	court found	that	the	child entered	foster	care	on that	date , meaning	that	it	interpreted	“the	date	of	the	first	judicial	finding	that	the	child has	been	subjected	to	child	abuse	or	neglect”	to	refer	to	the	date	on	which	the PPO	 was	 granted. 22	 M.R.S.	 § § 403 8

- B(1)(B);	 4041(1

- A); s e e 22	 M.R.S. § 4034(2).	 	 The	 mother	 contends	 that	 the	 first	 judicial	 finding	 of	 abuse	 or neglect	instead	occurred	upon	the	entry	of	the	jeopardy	order	on	October	10,
2019. 3 [¶ 6 ]		Thus,	although	the	jeopardy	order	was	entered	with	the	agreement of	the	moth er,	the	mother	challenges	the	court’s	determination	that	the	child entered	foster	care	on	July	4,	2019,	a	finding	to	which	the	mother	did	not	agree.

3 Sixty	days	after	the	PPO	was	signed	was	September	2,	2019. See 22	M.R.S.	§ § 4038

- B(1)(B) , 4041(1

- A) (2018).5 We	review	the	court’s	factual	findings	for	clear	error,	and	we	will	not	disturb those	findings	if	there	is any	competent	record	evidence	to	support	them. In	re Child	 of	 Ryan	 F. ,	 2020	 ME	 21,	 ¶¶	 29

- 30, 224 A.3d 1051 .	 	 The	 court’s determination	 of	 the	 date	 on	which	 the	 child	 entered	 foster	 care	 reflects	its interpretation	of	statutory	provisions,	however,	which we	consider	de	novo	as a	 matter	 of	 law,	 first	 by	 examining their plain	 language. See In	 re	 Alivia	 B. , 2010 ME	112,	¶¶	7,	9,	8	A.3d	625

. [¶ 7 ] T he	plain	language	of	the	statute	provides	an	unambiguous	answer. Not	infrequently , children	who	are	subject	to child	protection	orders	are first removed	from	the ir home s and	placed	in	foster	care as	a	result	of	PPO s . See 22 M.R.S.	§§	4034(2), 4036(1)(F) (2018)

. To	construe a	PPO	as the	first	judicial finding	of	abuse	or	neglect	would	mean	 that	the date	a	child	is considered	to have	entered	foster	care	refers	to	the	earlier	of	a	particular	event	(the	entry	of the	PPO that	resulted	in	the	child’s	removal	from	the	home )	or	sixty	days	after that	 same	 event	 (sixty	 days	 after	 the	 entry	 of	 the	 PPO).	 	 This	 reading	 of	 the statute	 creates	 patently	 absurd	 results	 by	 which	 two	 alternatives	 are categorically	narrowed	to	one;	if	the	PPO	triggers	the	operative	date,	then	sixty days	after	the	PPO	is	entered	will always be	later	than	the	date	on	which	the PPO	is	entered. Determini ng	that the	child has entered	foster	care	on	the	earlier6 of	 the	 two	 alternatives	 render s the	 sixty

- day	 alternative	 to	 be	 entirely meaningless.		This	contradicts	one	of	our	basic	rules	of statutory construction

— that	no	language	should	be	rendered	surplusage. See	In	re	Child	of	Nicholas	P. , 2019	ME	152,	¶	36,	218	A.3d	247 (“A statute	should	be	interpreted	 to	avoid surplusage,	 which	 occurs	 when	 a	 construction	 of	 one	 provision	 of	 a	 statute renders	 anot her	 provision	 unnecessary	 or	 without	 meaning	 or	 force.” (quotation	marks	omitted)). [¶ 8 ]		Instead, we	read the	plain	language	to	preserve	the	two	alternatives for	 calculating	 the	 date	 in	 a	 way	 that	 avoids	 absurd	 results	 and	 creates	 no surplusage. 4 This	is	accomplished	by	interpreting	the	“date	of	the	first	judicial

4 If	 this analysis	of	 the plain	meaning	were	not	sufficiently	dispositive, an	examination	of	 the history	of	 the	language	woul d	be. See In	re	Child	of	Nicholas	P. ,	2019	ME	152,	¶	32,	218	A.3d	247 (stating	that	we	consider	legislative	history	and	other	indicia	of	legislative	intent	when	the	statutory language	is	ambiguous). T he	language	at	issue	is	directly	quoted	from	federal law.		The	Child	and Family	 Services	 and	 Child	 Protection	 Act ,	 22	 M.R.S.	 §§ 4001	 to	 4099

- I	 (2018) ,	 was	 enacted	 in compliance	with	numerous	provisions	in	the	federal	Social	Security	Act, 42 U.S.C.S.	§§	301

- 1397mm (LEXIS	through	Pub.	L.	No.	116

- 108) ,	as	amend ed	by the	Adoption	and	Safe	Families	Act	of	1997, Pub. L.	No.	105

- 89,	111	Stat.	2115

. See P.L.	1979,	ch.	733,	§	18	(effective	July	3,	1980) .		In	particular,	Title IV

- E	 of	 the	 Social	 Security	 Act	 provides	 federal	 funding	 to	 states ,	 like	 Maine, whose	 foster care systems	 meet	 certain	 requirements,	 42 U.S.C.S.	 §§	 670

- 679c,	 which	 requirements	 are	 further elucidated	in	federal	regulations, see 45	C.F.R.	§§ 1356.21 , 1356.22 (LEXIS	through	Mar. 23,	2020)

. Among	 other	 funding	 eligibility	 requirements,	 a	 state must	 enact	 procedural	 safeguards regarding	the	time	by	which	permanency	hearings	must	be	held	and	termination	of	parental	rights petitions	must	be	filed,	both	of	which are	established	by	reference	to the	date	the	child	is	“considered to	 have	 entered	 foste r	 care.”	 	 42	 U.S.C.S.	 §	 675(5)(C); see 45	 C.F.R .	 §§	 1356.21(b)(2),	 (i)(i)(A), 1356 .22(a); see	also New	York	ex	rel.	N.Y. State Office	of	Children	&	Family	Servs.	v.	U.S.	Dep’t	of	Health &	Human	Servs.’	Admin.	for	Children	&	Families ,	556	F.3d	90,	100	(2d	C ir.	2009)

. The	Social	Security Act	defines	the	date	that	a	child	is	considered	to	have	entered	foster	care as “ the	earlier	of	.	.	.	(i) the date	of	the	first	judicial	finding	that	the	child	has	been	subjected	to	child	abuse	or	neglect;	or	(ii) the date	 th at	 is	 60	 days	 after	 the	 date	 on	 which	 the	 child	 is	 removed	 from	 the	 home

. ” 42 U.S.C.S. § 675(5)(F). The	Code	of	Federal	Regulations	contains	the	same language ,	along	with	the	additional7 finding	that	the	child	has	been	subjected	to	child	abuse	or	neglect ” as	the	date on	which	a	jeopardy	order	is	entered. 5 22	M.R.S.	§§ 4038

- B(1)(B), 4041(1

- A). This is	also	the method	o f	calculation	that	we	have	used	in	earlier	decisions.		In In	 re	 Thomas	 D. ,	 for	 example,	 we	 concluded	 that	 the	 first	 judicial	 finding	 of abuse	 or	neglect	 occurred	 via	 the	jeopardy	 order	 rather	 than	 the	PPO:	 “[The child]	entered	foster	care	for	purposes	of	s ection	4041(1

- A)(A)(1)(a)	no	later than	 February	27,	2002,	 the	date	 of	 the	jeopardy	 order,	which	was	less	 than

explanation that “[ a ] title	IV

- E	agency	may	use	a	date	earlier	than	that	required	in	this	definition,	such as	 the	 date	 the	child	is	 physically	 removed	from	 the	home .” 45	C.F.R.	 § 1355.20(a)	 (LEXIS	through Mar. 23,	2020) (emphasis	added)

. Here	 lies	 the	 rub.	 	 This	 federal regulation	 expressly	 provides	 that	 the	 date	 that	 a	 child	 is physically	removed	from	the	home may	be earlier	than	that	for	which	either	existing	date	alternative provides in	calculating	the	date	on	which	a	child	is	considered	to	have	entered	foster	care. Because the	federal	language	has	already	been	expressly	explained not to	refer	to	the	date	that	the	child	is physically	removed	from	the	home

— an	event	that,	in	Maine,	usually	occurs	as	the	result	of	a	PPO

— Maine’s	 identical	 language	 must	 be	 interpreted	 the same	 way. See Caribou	 Sch.	 Dep’t	 v.	 Caribou Teachers	Ass’n ,	402	A.2d	1279,	1285	(Me.	1979) (interpreting	a	Maine	statute	“in	a	similar	manner” as	a	federal	statute	with	“nearly	identical	language”); Weeks	v.	State ,	267	A.2d	641,	646	(Me.	1970) (stating	th at	“practically	identical	language”	in	a	Maine	provision	and	a	federal	provision	render	the two	provisions	“coextensive	in	meaning”); cf. Levis	v.	Konitzky ,	2016	ME	167,	¶	14	n.5,	151	A.3d	20 (distinguishing	the	result	in	matters	decided	based	on	a	federal rule	because	Maine’s	version	of	that rule	contained	different	language).		Although	states	are	free	to	adopt	the	date	on	which	the	child	is physically	removed	from	the	home	as	the	date	on	which	the	child	is	considered	to	have	entered	foster care pursuant	t o 45	C.F.R.	§ 1355.20(a),	any	state	doing	so	would	obviously	have	to	use	language different	from	the	federal	provisions

.
5 Interpreting	 the	 jeopardy	 order	 as	 the	 first	 finding	 of	 abuse	 or	 neglect	 need	 not	 delay	 the provision	of	rehabilitation	and	reuni fication	services. See 22	M.R.S.	§ 4041(1

- A). In	the	vast	majority of	cases	involving	PPOs,	the	Department	has already been	providing	services	to	the	family.		Even	if the	Department	does	wait	to	provide	services	until	after	a	jeopardy	proceeding

— an	unlik ely	event

— measuring	the	date	the	child	is	considered	to	have	entered	care	as	the	jeopardy	date	or	sixty	days after	the	PPO	also	extends	the	time	within	which	the	Department	is	required	to	seek	a	permanency planning	order	and	file	a	termination	of	parental rights	petition,	an	extension	that	may	well	benefit family	reunification. See 22	M.R.S.	§§ 4038

- B(1)(B), 4052(2

- A)(A)(1) (2018).8 sixty	days	after	he	was	 taken	into	 the	Department ’ s	custody	pursuant	 to	 the

ex parte	preliminary	protection	order	entered	January 7,	2002.” 2004 ME	104, ¶ 27,	854	A.2d	195

. [¶ 9 ] We conclude that	the	first	judicial	finding	of	abuse	or	neglect	was on	October	10,	2019,	the	date	that	the	jeopardy	order	was	entered.		The	child was	removed	from	the	home	on	July	4,	2019;	sixty	days	after	the	child’s removal from	the	home	was	therefore	September	2,	2019.		As	between	the	October	10, 2019,	jeopardy	date	and	the	September	2,	2019,	sixty

- day	date,	September	2, 2019,	is	earlier

. The September	2,	2019, date is therefore the	date	on	which	this child	is	consi dered	to	have	entered	foster	care	within	the	meaning	of	sections
4038

- B(1)(B) , 4041(1

- A) ,	and	4052(2

- A)(A)(1)

. We	therefore	vacate only th e portion	of	the	jeopardy	order containing	that	finding, and we remand	for	entry of	a n	order that	reflects	September 2,	2019,	as	the	date	on	which	this	child	is considered	 to	have	entered	 foster	care. 6 We affirm the	jeopardy	 order in	all other	respects

. The	entry	is: Judgment vacated .	 	 R emanded	 for	 entry	 of	 a jeopardy	order consistent	with	this	opinion.

6 Because	we	vacate	the	judgment	on	the	issue	of	the	date	the	child	is	considered	to	have	entered foster	care,	we	need	not	address	the	mother’s	additional	argument	regarding	due	process.9

Paula	Hopkins,	Esq.,	West	Rockport,	for	appellant m other 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

Roc kland District	Court	docket	number	PC

- 20 19

- 17 F OR C LERK R EFERENCE O NLY