Skip Maine state header navigation

Agencies | Online Services | Help
In re Jon N.
Download as PDF
Back to the Opinions page

MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 123
Docket:	Oxf-99-443
Submitted
on Briefs:	May 25, 2000
Decided:	June 30, 2000

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




In re JON N.


DANA, J.

	[¶1]  The mother of Jon Daniel N. (Danny) appeals from the judgment
of the District Court (South Paris, Cote, J.) terminating her parental rights. 
She raises numerous issues on appeal, including a challenge to the
sufficiency of the evidence supporting the court's judgment, and a challenge
to the court's reliance on the report of the guardian ad litem and testimony
of one of the experts presented by the Department of Human Services.  The
mother also argues that DHS failed to meet its reunification obligations and
that the court erred by adopting the proposed order prepared by DHS. 
Because we find the mother's arguments to be without merit, we affirm the
judgment.
I.
	[¶2]  The evidence produced at the termination hearing reflects the
fact that Danny's mother has a history of dependence on narcotics and
numerous psychological difficulties.{1}  Despite the recommendations of
professionals that she engage in sustained and integrated therapy, the
mother has been inconsistent with her treatment.  She has dropped out of
therapy on several occasions without the recommendation of her counselor,
with two of the most recent gaps in treatment occurring within the six
months prior to the termination hearing.  Also, although the lack of a stable
living arrangement had been one of the concerns that initially prompted
Danny's removal from her custody, Danny's mother moved three times in
the year prior to the termination hearing.
	[¶3]  Although the mother sought treatment for her narcotics
addiction and attended the Spaulding Clinic in Massachusetts to deal with
the pain disorders that led to her dependence on narcotics, she did so
without informing DHS that she would be leaving the state and without
consulting her treatment providers here in Maine.  Only one of the mother's
treatment providers opined that reunification was a realistic possibility, but
even she recommended a very guarded approach and could not give an
estimate of a time frame within which reunification could be accomplished. 
The forensic psychologist who performed one of the psychological
evaluations of Danny's mother indicated that reunification should not and
could not occur in the circumstances as they existed at the time of the
termination hearing.
	[¶4]  Furthermore, because of past neglect, Danny now has special
needs and faces future developmental hurdles that will demand additional
attention from his caregivers.  He has spent roughly half of his life in foster
care.  The mother's two older sons, who now are in their paternal
grandparents' custody, have been diagnosed with, inter alia, post-traumatic
stress disorder as a result of past neglect while in their mother's care. 
Although the mother was able to reunify with her children following
involvement by social services in Massachusetts, the children's situation
after the family's move to Maine again deteriorated to the point where their
removal was necessary.  Danny's mother admitted that it was necessary for
DHS to "rescue[]" her children at that point.  Danny's counselor testified
that because of his emotional issues, it is particularly important that he
remain in a stable living environment.
II.
	[¶5]  Contrary to the mother's argument that the trial court adopted
the proposed order of DHS "wholesale" and "virtually verbatim," the trial
court made extensive revisions to the proposed order submitted by DHS,
including omitting portions of the order and adding substantially to it. 
Therefore, this is not an instance in which we must direct particular
scrutiny to the court's role in the proceedings.  Compare Weeks v. Weeks,
650 A.2d 945, 946 (Me. 1994) (trial court adopted party's proposed
findings of fact and conclusions of law verbatim, necessitating closer
scrutiny on appeal).  Furthermore, the extensive changes and additions
reflect the fact that the termination order in this case is "the original
product of a disinterested mind."  Id.
	[¶6]  Notwithstanding the extensive hyperbole employed in the
mother's brief, overstating the evidence in favor of her position, there is
competent evidence in the record to support the trial court's findings in
this case.  See In re David G., 659 A.2d 859, 861 (Me. 1995) (noting that if
there is competent support in the record for the trial court's findings, this
Court must sustain them).  The record supports the court's determinations
that, despite the mother's willingness and efforts toward taking
responsibility for Danny, she is nevertheless simply unable to do so in a time
frame reasonably calculated to meet his needs and that termination of the
mother's parental rights is in Danny's best interest.
	[¶7]  The mother also argues that the guardian ad litem "did nothing"
in this case and therefore the court's reliance on the guardian's
recommendation was error.  Again, the record belies this assertion.  The
two reports submitted by the guardian reflect his more than adequate
performance, including consistent and sustained contact with relevant
parties and a comprehensive review of the extensive documentary evidence
in this case.  Because the guardian fulfilled his statutory duties pursuant to
22 M.R.S.A. § 4005(1)(A), the court was not precluded from taking into
account his testimony and recommendation regarding the disposition of this
case.
	[¶8]  With respect to the mother's argument that the court erred in
admitting the testimony of DHS's expert, Dr. Schetky, on factitious disorder,
we review the court's determination that a witness is qualified to testify as
an expert for an abuse of discretion.  See Pelky v. Canadian Pacific Ltd., 586
A.2d 1248, 1254 (Me. 1991).  Given that Dr. Schetky testified on voir dire
that she was very familiar with factitious disorder and the literature
regarding it, and had seen several cases of it, coupled with her general
qualifications as a forensic psychiatrist, the court did not abuse its discretion
when it determined that she was qualified to testify as an expert.{2}  Although
at the time the mother objected to Dr. Schetky's testimony, she did so
solely based on Dr. Schetky's qualifications to give expert testimony, she
now argues on appeal that the court also failed to properly evaluate the
quality of the evidence presented.  We therefore review this latter claim for
obvious error.  See State v. Boucher, 1998 ME 209, ¶ 18, 718 A.2d 1092,
1096.
	[¶9]  To be admissible pursuant to M.R. Evid. 702, scientific opinion
evidence must be both relevant and reliable.  See State v. Fleming, 1997 ME
158, ¶ 14, 698 A.2d 503, 507.  Given that Danny's mother had potential
diagnoses of factitious disorder and factitious disorder by proxy, both of
which would affect her ability to parent Danny appropriately, testimony
regarding the disorders was relevant.  The mother's attorney also elicited
testimony from Dr. Schetky regarding various articles and books published
on the subject and the questioning indicated that the disorder has recently
been included in the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV) used by psychiatrists.{3}  Therefore, it appears that the disorder is
generally accepted as a diagnosis in the field of psychiatry.  Cf. Field &
Murray, Maine Evidence  702.4 at 359 (2000 ed.) (noting that general
acceptance in a scientific community can be used as an indicator of
reliability).  As a result, the court did not commit obvious error by admitting
testimony regarding factitious disorder.
	[10]  We find the remainder of the mother's arguments to be without
merit.  Accordingly, we affirm the judgment of the District Court
terminating her parental rights with respect to Danny.
	The entry is:
			Judgment affirmed.
             
Attorney for appellant: E. Chris L'Hommedieu, Esq. 65 East Avenue Lewiston, ME 04240 Attorneys for appellee: Andrew Ketterer, Attorney General Matthew Pollack, Asst. Attorney General David Hathaway, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: David Veilleux, Esq. P O Box 665 Lewiston, ME 04243
FOOTNOTES******************************** {1} . The following psychological conditions have been identified as diagnoses or potential diagnoses for her: anxiety disorder, dysthymic disorder, somataform disorder, factitious disorder, factitious disorder by proxy, substance abuse disorder, malingering and mixed personality disorder. {2} . The mother also argues, without citing any authority, that the court employed the wrong standard when evaluating whether Dr. Schetky was qualified as an expert. The court had noted that Dr. Schetky possessed knowledge superior to that of a lay person. This characterization of the inquiry, however, is entirely consistent with commentators' descriptions. See, e.g., 31A Am. Jur. 2d Expert and Opinion Evidence § 59 at 65-66 (1989) ("generally all that is required is that the expert have skill and knowledge superior to that of the general populace"). {3} . Because Danny's mother failed to object to the testimony based on its reliability, DHS did not have the opportunity or the occasion to make an offer of proof on the matter. Nevertheless, information that supports the reliability of the testimony was present in the record in the context of both attorneys' questioning on the subject as discussed above.