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In re Melissa T.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2002 ME 31
Docket: Som-01-445
Submitted
on briefs: December 4, 2001
Decided: February 21, 2002
Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
IN RE MELISSA T. et al.
CLIFFORD, J.
[¶1] The father of Melissa T., William T. III, and Patricia T. and the
mother of William T. III and Patricia T. appeal from a final protection order
entered in the District Court (Skowhegan, Clapp, J.), pursuant to 22 M.R.S.A.
§ 4035 (1992 & Supp. 2001), finding jeopardy as to the children, and placing
them in the custody of the Department of Human Services. The issues raised
by the father are without merit, and warrant little discussion. Although we are
sympathetic with the contention of the mother that the court improperly
denied her the opportunity to meaningfully participate in the disposition phase
of the jeopardy hearing concerning her children, because the mother failed to
file a proper notice of appeal, we dismiss her appeal.
[¶2] On January 25, 2001, the Department filed a petition for child
protection order concerning the children, alleging, in part, an "ongoing pattern"
of domestic abuse. On March 12, 2001, through counsel, the mother
consented to the entry of a final protection order. That order found jeopardy as
to William and Patricia and placed custody of the children with the
Department. The father denied the allegations in the petition and a jeopardy
hearing as to him was scheduled.
[¶3] At the hearing on the final protection order as to the three children,
the mother was allowed to state her position and testify as a witness on behalf
of the father. The court refused, however, to allow the mother to present
evidence of her own and barred her from affirmatively advocating for a position
on the disposition of the children upon a finding of jeopardy as to the father.
The court found all three of the father's children to be in jeopardy and
determined that custody should be with the Department. The father filed a
notice of appeal. Although the mother filed an appellate brief, she failed to file
a notice of appeal.
[¶4] Contrary to the father's assertions, the evidence was sufficient to
find jeopardy, In re David W., 568 A.2d 513, 515 (Me. 1990) (a finding of
jeopardy for one child can be founded on actions toward another child based
on competent evidence in the record); the state has a compelling interest to
seek to protect his children from jeopardy, Rideout v. Riendeau, 2000 ME 198, ¶
23, 761 A.2d 291, 300-01 (threat of harm is a compelling interest); and the trial
judge properly refused to recuse, In re Michael M., 2000 ME 204, ¶ 14, 761 A.2d
865, 868 (judge should recuse if the judge cannot discharge responsibilities
neutrally or if impartiality may be reasonably questioned).
[¶5] In her appellate brief, the mother contends that the District Court
improperly denied her the opportunity to advocate for her wishes in the
disposition phase of the jeopardy hearing concerning her children. Although
the mother's contention appears to have some merit,{1} she has not filed any
notice of appeal or cross appeal as required by M.R. App. P. 2. Accordingly, we
lack jurisdiction to review her claim and dismiss her appeal. See Rice v.
Amerling, 433 A.2d 388, 390 (Me. 1981) ("compliance with [M.R. App. P. 2] is
mandatory and jurisdictional for purposes of appeal"); Littlefield v. Littlefield,
292 A.2d 204, 207-08 (Me. 1972) (in order for an appellee to attack an order or
judgment and do more than defend the judgment, the appellee must file a cross
appeal).
The entry is:
Judgments affirmed. Appeal of the mother is
dismissed.
Attorney for appellant:
Anthony P. Shusta II, Esq.
P O Box 170
Madison, ME 04950
Attorneys for appellee:
G. Steven Rowe, Attorney General
Matthew Pollack, Asst. Attorney General
Pat Stevens, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006
Guardian ad Litem:
Michelle Dolley, Esq.
24 Boston Avenue
Winslow, ME 04901
Attorneys for mothers:
Ferdinand A. Slater, Esq.
5 School Street
Ellsworh, ME 04605
(for Anne T.)
Michael Wiers, Esq.
P O Box 395
Hartland, ME 04950
(for Nancy T.)
FOOTNOTES******************************** {1} . The mother has a substantial
interest in her family's integrity and as to where her children are placed.
In re Nikolas E., 1998 ME 243, ¶ 10, 720 A.2d 562, 565; In re Sabrina
M., 460 A.2d 1009, 1016 (Me. 1983). She has standing to meaningfully participate
in proceedings affecting the placement of her children.
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