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Scott & Kaleb: end of majority opinion, dissenting opinion, attorneys, footnotes.


D.  Application of Harmless Error Standard

	[¶31]  Here, the parents were not prejudiced in the presentation of
their case.  The court applied the law, in error, to the facts after the parties
had presented their case in full.  Nothing the court did compromised their
opportunity for a full and fair hearing on the merits of the State's
allegations.{18} 
	[¶32]  We look then to the parents' claim that the court's error in
legal analysis may have affected its final conclusions on the pending petition
for termination of parental rights.  The record reflects, without doubt, the
continuing inability of the mother to parent her children.  Despite extensive
services, including psychological treatment and "hours of parental
education," the mother's history of personal trauma has prevented her from
progressing in her efforts to change.  Her emotional maturity has been
stunted to approximately twelve years of age.  Her volatility, resulting in
screaming and violence with the children and other adults, has not
improved.  She does not understand basic children's needs and has never
developed an ability to be affectionate with her own children.  The record
demonstrates no reasonable prospective ability on the mother's part to be a
safe parent for her boys.  Because no other conclusion was possible, we are
persuaded that it is highly probable that the error did not affect the court's
judgment regarding the mother.
	[¶33]  Regarding the father, however, we are not able to determine
that it is highly probable that the court would have terminated his parental
rights in the absence of its misunderstanding regarding the role of the best
interest factor.  The father testified that he was beginning to understand the
need to protect the children from his wife, that he would now abide by the
requirements that he not allow her to be alone with the children, and that
he would try to be less rigid in viewing the limitations on his own
responsibilities as a father.  Also contrasting with the evidence of the
father's lack of progress was his testimony that he would enlist the aid of
friends and family to help him supervise his wife if the children were with
him, that he would abide by the Department's other recommendations, and
that he was apparently successful in caring for his eight-year-old son by
another marriage every other weekend.
	[¶34]  Although the court may have, in the absence of the error,
rejected the father's last minute assertions and concluded that he continued
to lack the ability to care for the children himself, on this record, we cannot
say that it is highly probable that the court's use of the best interest factor
did not affect its conclusions regarding the father's fitness as a parent.  
	[¶35]  It is the trial court's role to weigh and credit the evidence
before it.  Because it is possible that the court would reach a different
conclusion regarding parental fitness on remand, we should not usurp the
trial court's role.  Thus, we must vacate the judgment regarding the father's
son, Kaleb.  Because, upon further review, it is possible that the court could
conclude that the father is capable of safely parenting Kaleb, thus
eliminating the need for foster care or adoption, we also vacate the
judgment terminating the mother's parental rights to Kaleb.
	[¶36]  Finally, we note the urgency of finality in this matter.  The
children have been in a preadoptive foster placement since August of 1999. 
Kaleb, who is now two years old, has been in that home since he was five
months old.  The record reflects that the parents have not had the boys with
them for a full day since they were placed in care.  Time is of the essence. 
Upon remand, the court shall hear argument on an expedited basis and may,
in its discretion, open the record for presentation of new evidence.  In the
event of further appeal, an expedited briefing schedule may be established.
	The entry is:
Judgment as to Scott S. affirmed.  Judgment
regarding Kaleb C. vacated.  Remanded to the
same trial judge for further proceedings
consistent with this opinion.


ALEXANDER, J., with whom CLIFFORD, J., joins, dissenting.

	[¶37] I concur with the Court that the termination hearing judge
properly considered the findings and conclusions entered by other judges at
earlier stages of this proceeding.  I also concur with the Court that the
termination hearing judge erred in interpreting 22 M.R.S.A. § 4055 to
require that:  "The best interest factor takes precedence over the fault
factors . . . ."  However, I do not agree with the Court that, in this case, the
trial court's misallocation of the order of factfinding requires that the
termination decision be vacated.  Therefore, I respectfully dissent.
	[¶38]  Based on the findings made by the trial court regarding the
parental unfitness prerequisites for termination, which were supported by
clear and convincing evidence, there is no way that we can conclude that
the trial court's result was "inconsistent with substantial justice" under the
civil standard, M.R. Civ. P. 61, or that the trial court's misordering of the
findings affected "substantial rights" under the criminal standard.  M.R.
Crim. P. 52(a).
	[¶39]  Our precedent applying the harmless error standard in both
civil and criminal cases is not significantly different.  For civil cases, error is
harmless if it is highly probable that the error did not affect the judgment. 
Lawton v. Richmond, 1997 ME 34, ¶ 14, 690 A.2d 953, 956; Midland
Fiberglass, Inc. v. L. M. Smith Corp., 581 A.2d 402, 403 (Me. 1990).  For
criminal cases, "error is harmless when it is highly probable that it did not
affect the jury's verdict."  State v. DeMass, 2000 ME 4, ¶ 17, 743 A.2d 233,
237.  We have also said that error is not harmless if a "substantial right" of
the party is affected.  State v. Phillipo, 623 A.2d 1265, 1268 (Me. 1993).  To
determine if error is harmless, we review the whole record of the case.  See
State v. York, 1997 ME 156, ¶ 11, 705 A.2d 692, 695.  
	[¶40]  The termination hearing judge's misallocation of the order of
factfinding, an allocation invited by the order for findings set in section
4055 itself, must be examined in the context of the whole record of this
case and the termination hearing judge's extensive decision.  The entire
paragraph of the decision, where the trial court opined that "the best
interest factor takes precedence," reads as follows:
The best interest factor takes precedence over the fault
factors under existing law as amended a few years ago. 
Obviously the court must find that in addition to the best
interests factor, there must be clear and convincing
evidence that the parent or parents are unwilling or unable
to protect the child from jeopardy within a reasonable
time that meets the children's needs or that the parent or
parents are unwilling or unable to take responsibility for
the child within a time which is reasonably calculated to
meet the child's needs; or the parent has failed to make a
good faith effort to rehabilitate and reunify with the child
pursuant to section 4041 of T22.
	[¶41]  From this paragraph, it is apparent that, despite stating that
best interest "takes precedence," the trial court acknowledged that, as a
prerequisite to termination of parental rights, the trial court was required to
find parental unfitness by clear and convincing evidence.  With the necessity
for finding parental unfitness by clear and convincing evidence
acknowledged, the trial court then proceeded to find the mother an unfit
parent.  The Court agrees that this finding was appropriate with regard to
the mother and not a basis to vacate, even if the order of findings was
misplaced.  
	[¶42]  Regarding the father's fitness, the trial court, after
addressing best interests, made the following findings:
This court further concludes that [the father] is both
unwilling and unable to protect his child from jeopardy
even to this day.  The evidence is clear and convincing
concerning this conclusion as well.  The Department has
provided an abundance of services to [the father] as it did
with [the mother] in an effort to reunify and rehabilitate
[the father].  He has not complied with the services by
refusing to accept the fact and conclusion that [the
mother] cannot care for her children without the
implementation of extensive and long term services.  The
child Kaleb cannot wait for his father to come around and
become realistic.  He still insists that [the mother] can
parent his child.  Time is of the essence.
This is a finding of parental unfitness consistent with the terms of 22
M.R.S.A. § 4055 (1)(B)(2)(b)(i).
	[¶43]  The record developed from the Department's year and a half
involvement with the parents, including findings by another judge at an
earlier stage of the proceeding,{19} provides virtually undisputed support{20} for
the trial judge's findings.  From the Department's initial involvement with
the family in April 1999, significant efforts were made through many
caseworkers and counselors to get the father to realistically understand the
mother's problems and to take leadership in parenting the children and
protecting them from the mother.  Despite all of these efforts, over eighteen
months, the father continually refused to take a leadership role, to
acknowledge and address the mother's significant problems, or to assure
that the children would be protected from the mother.  No caseworker, no
counselor, no one who had had significant involvement with the case
indicated that, with this record, they believed that the father was likely to
soon change direction and become willing and able to protect Scott and/or
Kaleb from jeopardy or that the father's obdurate refusals to recognize and
address the mother's problems were likely to change within a time which
was reasonably calculated to meet Scott or Kaleb's needs.  The trial court's
finding of parental unfitness pursuant to section 4055(1)(B)(2)(b)(i) was not
effected by its error in referencing best interests-beyond any doubt.
	[¶44]  Because of the court's finding that the father "still insists
that [the mother] can parent his child," it is also evident that the court
could have found, had it addressed the issue, that the father was "unwilling
or unable to take responsibility for the child within a time which is
reasonably calculated to meet the child's needs."  22 M.R.S.A.
§ 4055(1)(B)(2)(b)(ii).  This also appears established, without dispute, from
the parents' eighteen-month track record prior to the termination order.
	[¶45]  This is not a case where a trial court, or a jury, did not make
an essential finding.  Cf. Neder v. United States, 527 U.S. 1 (1999); State v.
Griffin, 487 A.2d 247, 249 (Me. 1984).  Although, even such a failure to find
an essential fact may be harmless error.  	Neder, 527 U.S. at 18-20.  Here,
the trial court found all the essential facts.  It applied the proper standard of
proof, and its findings are fully supported by the record.  Its only error is its
rhetorical reference to the primacy of the best interest issue.
	[¶46]  Last year in In re William S., 2000 ME 34, 745 A.2d 991, we
recognized that "[c]hild protection cases are unique.  Everyone involved in
the case must act in an expeditious manner for the best interest of the
child."  Id. ¶ 13, 745 A.2d at 996.  We also observed that "[a]ny delay
potentially harms a child who has already endured significant trauma and is
in dire need of permanency.  Id.{21}
	[¶47]  To remand the case now only delays what the factual history
suggests is the inevitable.  As the court found last year:  "The child Kaleb
cannot wait for his father to come around and become realistic. . . .  Time is
of the essence."  We ignore those findings if we now vacate and remand to
the trial court for what will have to be a reopened testimonial hearing, since
the facts testified to by every person who had significant involvement with
the case point to the result reached by the trial court.  The trial court may
have erred in stating that the best interest factor "takes precedence" over
the parental fitness factors.  But the trial court then proceeded to address
the parental fitness factors with findings adverse to the parents by clear and
convincing evidence. 
	[¶48]  In reaching its findings, the trial court followed the order
suggested by the statute.  There is nothing in the trial court's opinion to
suggest that the "best interest" findings led to, or controlled, the unfitness
findings.  The Court's opinion does not and could not suggest that the
evidence is insufficient to support the independent findings of parental
unfitness which the trial court reached by clear and convincing evidence. 
Because those findings are independent and adequately supported by the
record, any error which the court made in rhetorically discussing the best
interest standard is, without any doubt, harmless.  Accordingly, I would
affirm the judgment of the trial court. 
          
Attorney for appellants: Stephen C. Whiting, Esq. 75 Pearl Street, suite 207 Portland, ME 04101 Attorneys for appellee: G. Steven Rowe, Attorney General Matthew Pollack, Asst. Attorney General Nancy Henry, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Tracy Phillips, CASA 95 Range Road Durham, ME 04222-5206
FOOTNOTES******************************** {1} . Scott has a different father. {2} . The mother was arrested by the Lewiston Police Department for assaulting her husband. It is not clear from the record how the charges were resolved. {3} . The record reflects that, as a child, the mother was violently and repeatedly sexually abused by her father. She suffers from posttraumatic stress disorder, dependent personality disorder, and postpartum affective difficulties. Her behavior becomes increasingly unpredictable and her judgment becomes poor in times of stress. {4} . The father does not suffer from any psychopathological problems, but he lacks basic knowledge concerning child development, and he has felt overwhelmed with the task of parenting. He ascribes to "traditional family roles in which the mother is the primary (day-to- day) parenting figure for the children while the father assumes the role of being the provider as well as family leader." The father has strong religious beliefs and has testified to his belief that his wife is a paradigm of motherhood and that God will take care of everything. {5} . Judge Gorman presided over this hearing as well. {6} . Shortly after the first day of hearings on the petition to terminate parental rights involving Scott and Kaleb, the mother gave birth to a third son, Philip. The mother's husband, Kaleb's father, is the biological father of Philip. The Department immediately filed a petition for child protection order, and took Philip into custody. The case, In re Philip C., PC-00-040, is separate from the one before us. After a contested preliminary hearing on August 3, 2000, the court concluded that Philip was in immediate risk of harm and in need of a child protective order. The court ordered that the child remain in the custody of the Department and that the parents continue to follow the original service plan pending the outcome of this termination hearing. {7} . The court found that the father "has not complied with the services by refusing to accept the fact and conclusion that [his wife] cannot care for her children without the implementation of extensive and long term services." {8} . Whenever possible, it is best that a single judge hear all stages of the child protection proceedings related to a family. Here, Judge Gorman was appointed to the Superior Court after presiding at the earlier stages of this matter and was no longer available to conduct the termination proceedings regarding Scott and Kaleb. {9} . See also In re Charles G., 2001 ME 3, ¶ 4, 763 A.2d 1163, 1165 (citing In re Leona T., 642 A.2d 166, 168 (Me. 1994)); In re Heather C., 2000 ME 99, ¶ 6, 751 A.2d 448, 451 (citing In re David W., 568 A.2d 513, 515 (Me. 1990)). {10} . An exception exists when the judgment at issue has been vacated on appeal. {11} . The parents also contend that the court erred when it referred in the judgment to a separately docketed case involving their youngest child, Philip. We find no error. {12} . There can be no question that both the Maine and federal constitutions recognize a fundamental and important right of parents to the care, custody, and control of their children. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Rideout v. Riendeau, 2000 ME 198, ¶ 12, 761 A.2d 291, 297. "[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 530 U.S. at 65. {13} . The best interest standard is primarily used in judicial proceedings where equal or similar rights of parties must be balanced. Cf. Troxel, 530 U.S. at 67; Rideout, 2000 ME 198, ¶ 12, 761 A.2d at 297. {14} . This does not mean that the facts relating to the children's needs should not be considered in determining the parents' capacity to care for them. To the contrary, the parents' actions and abilities must be understood and judged in the context of the health, ages, and needs of the children. It is important, however, to distinguish between the children's best interests and their needs. Although the needs of the children cannot be disentangled from determinations of parental fitness, the best interests of the children must be. It may be in the "best interests" of a child to be raised in a home with richer, smarter, or more socially adept parents. That is not, however, and cannot be, a basis for removing children from their families. {15} . Cf. In re Elijah R., 620 A.2d 282, 285 (Me. 1993); In re Jason B. & Jessica B., 552 A.2d 9, 10 (Me. 1988). {16} . Child protection proceedings do not fit neatly into either the civil or criminal category. The proceedings appear on their face to be civil. The goal of the Child Protection Act is to guard the safety of children, not to punish parents. It is crafted in terms of protecting children at risk of harm rather than accusing parents of wrongdoing or finding "fault" with the parents. The focus is remedial, not punitive. Consistent with that focus, the proceedings are treated administratively as civil, rather than criminal, in nature. On the other hand, the fundamental rights at stake in child protection proceedings are similar to the important rights at stake in criminal proceedings. The gravity of the State's intervention into the family's life is similar to the potential deprivation of liberty in criminal proceedings, particularly in matters relating to the termination of parental rights. Also similar to criminal proceedings, the State has significant resources that may be brought to bear against parents thought to create a risk of harm to their children. In recognition of the serious nature of the proceedings, the Legislature has assured that parents will be represented by counsel at all significant stages of the judicial proceedings. 22 M.R.S.A. § 4005(2) (1992). {17} . We have similarly recognized that constitutional error may be harmless in criminal cases. "Pursuant to the harmless error analysis we review the entire record as a whole and ignore errors that are harmless, even some constitutional violations." State v. York, 1997 ME 156, ¶ 11, 705 A.2d 692, 695. {18} . A limited class of constitutional errors, sometimes referred to as structural errors, defy analysis by harmless error standards and require reversal without regard to their effect on the outcome of the case. See Neder v. United States, 527 U.S. 1, 34-35 (1999). No such error is extant here. {19} . The findings in the jeopardy order dated November 1, 1999, compared with the trial court's finding nearly a year later, October 5, 2000, indicate little change and little progress in the father's situation in the intervening year. {20} . Fairly read, the testimony offered to support the parents by members of their church reflected some problems seen, even in the narrow context in which they were familiar with the parents' home life and parenting skills. {21} . In William S., a child protective case, we found error, but affirmed applying an "obvious error" analysis.

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