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In re Ashley M.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 120
Docket:	Aro-99-498
Submitted 
on briefs:	April 26, 2000
Decided:	June 26, 2000

Panel:CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.




IN RE ASHLEY M.
CLIFFORD, J.

	[¶1]  Pursuant to 22 M.R.S.A. § 4006 (Supp. 1999), the father of
Ashley M. appeals from a child protection order entered the District Court
(Houlton, Griffiths, J.) in which the court found that the child would be in
jeopardy if she was returned to the father and awarded custody of Ashley to
the Department of Human Services.  See 22 M.R.S.A. §§ 4035, 4036 (1992
& Supp. 1999).  The court further found the presence of an aggravating
factor and ordered that the Department be relieved of any obligation to
provide reunification services to the father.  See 22 M.R.S.A. § 4036(1)(G-2)
(Supp. 1999).
	[¶2]  The father contends that the court erred in finding that there
was an aggravating factor that justified its determination that the
Department was to be relieved of any obligation to provide reunification
services to him.  He also argues that he was unfairly surprised that such a
determination was made because the Department did not make a request
that the court find an aggravating factor until the time of the child
protection hearing.  We affirm the judgment.
	[¶3]  Ashley was born in November of 1998.  She was admitted to the
hospital in February of 1999 after her father had shaken her with sufficient
force to cause injury.  In March of 1999, Ashley was readmitted to the
hospital and diagnosed with shaken baby syndrome.  At that point, the
Department took custody of Ashley and petitioned for a preliminary child
protection order.  See 22 M.R.S.A. § 4032 (1992).  The petition alleged that
the child had been seriously injured and suffered from shaken baby
syndrome.  The Department further alleged that neither parent could
explain the injuries and that the father had admitted to shaking the baby.  In
a preliminary protection order, consented to by the parents, the court
ordered that custody of Ashley remain with the Department.  See 22
M.R.S.A. §§ 4034(2), 4036(1)(F) (1992).
	[¶4]  A child protection hearing was held on June 10, 15, and 17,
1999.  See 22 M.R.S.A. § 4035 (1992 & Supp. 1999).  In its child protection
order the court found the following facts:
[The father], age 19 years, while caring for his 2 month old
daughter Ashley . . . on February 7, 1999 shook the child with
sufficient violence to cause sub-dural bleeding and acute and
chronic retinal hemorrhaging requiring surgical intervention to
relieve the retinal hemorrhaging and a sub-dural tap to relieve
the increase of cerebrospinal fluid which had caused the child's
head to increase 3 cm. in circumference in a period of 6 weeks. 
The injuries suffered by the child are typical of infants diagnosed
with Shaken Baby's Syndrome, a potentially life-threatening
condition.  The child had also sustained several unexplained
bruises while in the care of her father as well as an abrasion of
her right hand.  These findings reflect a pattern of reckless and
violent conduct by the father toward the child which has
subjected the child to life-threatening jeopardy.
	[¶5]  Finding that Ashley would be in circumstances of jeopardy if
returned to her father and that the father had subjected Ashley to
aggravating circumstances as defined in 22 M.R.S.A. § 4002(1-B)(A) (Supp.
1999), the trial court ordered that custody remain with the Department and
that the Department be relieved of its duty to provide reunification services
to the father.  See 22 M.R.S.A. §§ 4035(3), 4036(1)(G-2) (1992 & Supp.
1999).
I.
	[¶6]  Pursuant to 22 M.R.S.A. § 4002(1-B)(A) (Supp. 1999), a court
may find the existence of an aggravating factor when:
The parent has subjected the child to aggravating circumstances
including, but not limited to, the following:
(1) Rape, gross sexual misconduct, gross sexual assault,
sexual abuse, incest, aggravated assault, kidnapping,
promotion of prostitution, abandonment, torture, chronic
abuse or any other treatment that is heinous or abhorrent
to society.
The trial court concluded that the father's conduct amounted to aggravated
assault as defined in 17-A M.R.S.A. § 208 (1983).  The Department agrees
with that finding and also contends that the father subjected the child to
treatment that is both heinous and abhorrent to society within the meaning
of 22 M.R.S.A. § 4002(1-B)(A)(1) (Supp. 1999).
	[¶7]  The father contends that there is insufficient evidence to
support a finding of aggravated assault.  We disagree.  The elements of
aggravated assault are defined in 17-A M.R.S.A. § 208 (1983):
A person is guilty of aggravated assault if he intentionally,
knowingly, or recklessly causes:

	A.Serious bodily injury to another.
	[¶8]  All of elements of aggravated assault were present in this case. 
That Ashley suffered serious bodily injury is not in doubt.  She has been
hospitalized twice, she has suffered sub-dural bleeding.  She has suffered a
"[l]arge intraretinal hemorrhage" in her left eye, and she has been
diagnosed with "chronic shaken impact baby syndrome."  The father argues,
however, that there was insufficient evidence on which to base a finding of
recklessness.
	[¶9]  As support for his argument, the father notes that the
Department, in its literature regarding shaken baby syndrome, states that
between 25%-50% of the population is not aware of the dangers of shaking a
baby.  Even if we were to consider such evidence, offered as it is on appeal,
the determination of recklessness is not a statistical calculation.
	A person acts recklessly with respect to a result of his
conduct when he consciously disregards a risk that his
conduct will cause such a result. . . .  [T]he disregard of
the risk, when viewed in light of the nature and purpose
of the person's conduct and the circumstances known to
him, must involve a gross deviation from the standard of
conduct that a reasonable and prudent person would
observe in the same situation.
17-A M.R.S.A. § 35(3)(A), (C) (1983).

	[¶10]  A reasonable and prudent person would not forcefully shake a
baby because that person would recognize that babies are fragile.  Shaking a
baby with the degree of force sufficient to cause shaken baby syndrome,
therefore, can constitute a gross deviation from a reasonable person's
standard of conduct.
	[¶11]  The father also challenges the court's finding of a "pattern of
reckless and violent conduct . . . toward the child," arguing that a pattern of
behavior requires more than one act and that the only finding that is
supported by the evidence is the court's finding that he shook the baby on
one occasion.  He also disputes the finding that Ashley "sustained several
unexplained bruises while in the care of her father as well as an abrasion of
her right hand," arguing that finding is not supported by the evidence.  The
father's contentions are unpersuasive.
	[¶12]  There is medical evidence in the record to suggest that Ashley
was also shaken after her February hospitalization.  Moreover, although there
was no eyewitness testimony to incidents that may have caused the bruises,
circumstantial evidence adequately supports the findings of the court.  The
February hospitalization occurred after the father shook the baby with
sufficient force to cause sub-dural bleeding and retinal hemorrhaging.  At the
time, doctors also noticed that Ashley had sustained several bruises and an
abrasion.  When Ashley was readmitted to the hospital in March, her doctor
noted that
[t]he bruising at the time of the [February] hospitalization is also
bruising that I believe is most consistent with non-accidental
inflicted trauma, particularly the number of bruises involving the
buttocks and perineal area, as well as the bruising under the
chin which is particularly suspicious.  With regard to the lesion
on the hand, although I cannot state whether this is inflicted or
accidental or even speculate as to mechanism, I can state that
this is not consistent with a self-inflicted scratch mark.
	[¶13]  The father stated to the police that only he, the mother, and a
babysitting aunt, were ever alone with Ashley and that he knew of no other
person who could have caused the child's injuries.  Moreover, the father,
who changed his story several times, reported that his experience as a
parent was a stressful one, and he admitted to dropping the child into her
crib on one occasion when he came home from work with a headache.  This
evidence, viewed in its entirety, adequately supports the court's finding of a
"pattern of reckless and violent conduct . . . toward the child" by the father,
and it also supports a determination that the father subjected Ashley to
aggravated assault.  See State v. Discher, 597 A.2d 1336, 1342-43
(Me. 1991).
	[¶14]  Such treatment of a child, in addition to constituting an
aggravated assault, is both "heinous" and "abhorrent to society" within the
meaning of 22 M.R.S.A. § 4002(1-B)(A)(1) (Supp. 1999).{1}  The evidence,
therefore, supports the court's finding that there was an aggravating factor
and the court's order relieving the Department of its obligation to provide
reunification services to the father.  See 22 M.R.S.A. § 4036(1)(G-2)
(Supp. 1999).
II.
	[¶15]  The father also contends that because the petition for child
protection filed by the Department did not specifically include a request
that the court relieve the Department of its duty to provide reunification
services, and because the pretrial order issued by the court pursuant to
M.R. Civ. P. 16A did not mention cease reunification, he was unfairly
surprised by the court's finding of an aggravating factor.  He argues that the
finding should be set aside and, accordingly, that the cease reunification
order be vacated.  We disagree.
	[¶16]  Pursuant to 22 M.R.S.A. § 4032(2) (1992), child protection
petitions must contain certain information, including:
D.  A summary statement of the facts which the petitioner
believes constitute the basis for the petition;

E.  An allegation which is sufficient for court action;

F.  A request for specific court action;

. . . .

H.  A statement that petition proceedings could lead to the
termination of parental rights, under section 4051 et seq.
	[¶17]  The statute does not expressly state that the Department must
make explicit in its petition a request for a finding of an aggravating factor
and a cease reunification order.  Moreover, the court has the statutory
authority to order that reunification efforts be discontinued if the court finds
the existence of an aggravating factor.  See 22 M.R.S.A. §§ 4036(1)(G-2),
4041(2)(A-1) (Supp. 1999).
	[¶18]  Pursuant to section 4032(2)(F), if the Department is aware of
aggravating factors that would justify an order to cease reunification, and the
Department intends to seek such an order, it should include in its child
protection petition a request that the court order the Department to be
relieved of any obligation to provide reunification services to the parents. 
That every petition explicitly include such a request, however, is not
required by the statute.  The purpose of the statute is to provide parents
with fair notice of the Department's intentions so that parents can
adequately prepare to defend their rights.  See Security Pac. Nat'l Trust Co.
v. Reid, 615 A.2d 241, 243 (Me. 1992).  Here, though the Department's
petition contained no explicit request to cease reunification efforts, the
father's statutory and constitutional rights to notice were suitably protected.
	[¶19]  In ruling on the father's objection to the Department's request
at trial that the court find an aggravating factor and the father's motion for a
continuance, the court concluded that it was obvious to the father that the
issue of an aggravating factor would be before the court, and it found the
father's claim of surprise not to be credible.  Those findings are amply
supported in the record.
	[¶20]  The Department's petition alleged the very facts that formed
the basis of the court's finding of an aggravating factor.
On 2/7/99 DHS received a referral from the Houlton Regional
Hospital regarding suspicion of child abuse in the form of
Shaken Baby Syndrome. . . .  [The] father of Ashley admitted to
shaking the baby gently in an attempt to regulate her
breathing. . . .  In addition, the baby had a slightly smaller than
dime size wound on her right hand, just below the index
knuckle, a scratch on her upper torso, a faint bruise on her
lower back torso and a brownish colored bruise on her left
buttock. . . .  [I]t was discovered that Ashley had labial bruising
with an unknown cause. . . .  On a followup on March 11, 1999, it
was determined that Ashley's head had increased in
circumference by 3 cm.  There was an additional increase of 1
cm when measured on 3/25/99.  There was also an increase in
cerebrospinal fluid.  Both of these findings were significant
enough changes to warrant a follow-up sub-dural tap.

On 3/25/99, the Department was informed that Ashley had been
found to have both acute and chronic retinal hemorrhaging. 
There is sub dural bleeding in the frontal area of the brain.  Both
are indicative of Shaken Baby Syndrome.
	[¶21]  The father was well aware of the facts alleged by the
Department, and he contested them at the hearing.  Although he argues that
he was surprised by the aggravated factor finding and contends that the
issue would require additional research, trial preparation and presentation
of evidence, he cannot demonstrate what that additional evidence might be
or how it would alter the court's decision.
	[¶22]  The trial court found there was no prejudice in this case.  Nor
has the father demonstrated any concrete prejudice resulting from the
absence of an explicit cease reunification request in the Department's
petition.  Because we discern no error in those findings, we conclude that
the notice given to the father was satisfactory.
	The entry is:
			Judgment affirmed.

Attorney for appellant: Richard W. Rhoda, Esq. P O Box 743 Houlton, ME 04730 Attorneys for appellee: Andrew Ketterer, Attorney General Patrick Downey, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Suzanne Russell Lilley, Asst. Dist. Atty. 25 School Street Houlton, ME 04730 Guardian ad Litem: Robert F. Ward, Esq. P O Box 689 Houlton, ME 04730 Attorney for mother: Richard C. Cleary, Esq. 21 Military Street Houlton, ME 04730
FOOTNOTES******************************** {1} . We are unpersuaded by the father's contention that the heinous or abhorrent to society language is unconstitutionally vague. See Irish v. Gimbel, 1997 ME 50, ¶ 6, 691 A.2d 664, 669 (holding that the party challenging the constitutional validity of a statute bears a heavy burden to overcome the presumption that the statute is constitutionally valid); Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn Shoeworkers Protective Ass'n, 320 A.2d 247, 253 (Me. 1974) (holding that due process requires that a statute "provide [a] reasonable and intelligible standard[] to guide the future conduct of individuals and to allow the courts and enforcement officials to effectuate the legislative intent in applying [the law]"), quoted in Maine Real Estate Comm'n v. Kelby, 360 A.2d 528, 531 (Me. 1976).