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In re Scott S. et al.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 114
Docket:	And-00-563
Submitted 
on Briefs:	May 25, 2001
Decided:	July 19, 2001

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



IN RE SCOTT S. et al.


SAUFLEY, J.

	[¶1]  The mother and father appeal from the judgment of the
District Court (Lewiston, Beliveau, J.) terminating the mother's parental
rights to Scott S. and terminating both parents rights to Kaleb C.{1}  The
parents contend, among other things, that the District Court erred (1) in
giving the determination of the best interests of the children precedence
over the determination of parental unfitness under 22 M.R.S.A.
§ 4055(1)(B)(2)(b) (1992), and (2) in considering the findings of fact and
conclusions of law made by another judge in prior hearings regarding this
matter.  Because we conclude that the court erred in holding that its
determination regarding the best interests of the children took precedence
over considerations of parental capacity, and that the error was not harmless
as to Kaleb, we vacate the judgment in part and affirm in part.
I. BACKGROUND
	[¶2]  The mother of Scott and Kaleb is married to Kaleb's father. 
Scott's biological father opposed termination of his parental rights but has
not appealed from the court's decision to terminate his parental rights to
Scott.   
	[¶3]  The mother and father were married in 1998 when Scott was
three years old.  When Scott was almost four, the mother gave birth to Kaleb. 
Approximately two weeks after Kaleb was born, the mother called the
Department of Human Services and said that she could not take care of her
children any longer, particularly Scott.  She admitted hitting him and telling
him that she was going to give him up for adoption.  The mother also
admitted that she had physically abused Scott and her husband{2} and that she
was in no condition to care for her newborn child, Kaleb.  The mother was
then hospitalized for psychiatric reasons.  At the time of hospitalization, she
said that she did not want her children and that she was afraid she was
going to hurt them.  
	[¶4]  The Department filed a petition for a child protection order,
but did not seek to have the children immediately removed from the home. 
Instead, the Department urged the father to assume responsibility for the
children's care.  The caseworker arranged for day care for the children and
parenting assistance for both parents.  Although the father had considered
himself a "traditional father" and believed that it was his wife's
responsibility to take care of the children, he agreed to take care of the
children when they returned from day care and to continue as their primary
caretaker.  He also agreed to be responsible for ensuring that his wife would
have no unsupervised contact with the children until the Department felt
that she was emotionally and mentally stable enough to return home and be
with the children.  
	[¶5]  In the days leading to the jeopardy hearing, the father
struggled to take care of the children and was not always successful.  The
guardian observed that when she visited the home, it was uncared for, with
"stuff" covering the stove top, the sink filled with dirty dishes and soured
food, open containers of food, cat feces overflowing the litter box, an open
third floor window with the children leaning out, and prescription
medication on a nightstand where the children could easily get hold of it.  In
addition, the father allowed the mother to be alone with the children after
she left the hospital.
	[¶6]  After a contested hearing, the District Court (Gorman, J.)
entered a judgment finding the children to be in jeopardy and concluding
that the mother possessed "deficits in her knowledge of child development
and her ability to care for children."  The court also took into consideration
the mother's statement that she would hurt the children if they remained in
her care.{3}  As to the father, the court found that his failure to protect the
children and himself from the mother's behavior had placed Scott and Kaleb
in circumstances of jeopardy.  The court also found that marital discord
between the parents jeopardized the children.  The court ordered that the
children be placed in the custody of the Department.  The Department
placed the boys with their day care provider. 
	[¶7]  In its jeopardy order, the court required that both the mother
and father follow the recommendations of their psychological evaluations
and participate in counseling and parenting classes.  The plan developed by
the Department anticipated that the father would need preparation to
become the children's primary caretaker.{4}  The plan further provided that
the mother and father would continue in individual therapy, that they would
continue in parenting education and couple's counseling, that the father
would continue supervised visitation in the foster parent's home as long as it
was in the best interests of the children, and that the mother would
continue supervised visitation at the Department as long as it was in the
children's best interests. 
	[¶8]  After a judicial review and permanency planning hearing held
on January 14, 2000,{5} the court found that the Department had made
reasonable efforts to rehabilitate and reunify the family, but that the children
continue to be in need of a child protection order.  The parties agreed that
Scott and Kaleb would remain in the custody of the Department and that
efforts would be made to reunify Kaleb with his parents and reunify Scott
with his mother as long as his stepfather remains in the household.  
	[¶9]  The Department filed a petition for termination of the
mother's parental rights to Scott and Kaleb and the father's parental rights
to Kaleb on May 10, 2000.{6}  The petition alleged that the mother had not
been able to progress in treatment and that she would not likely ever be able
to care for her children.  The Department also alleged that the father had
made only minimal progress and that he believed that his wife did not have
any problems that would keep her from being able to parent the children. 
After a contested hearing, the District Court entered an order terminating
both parents' parental rights.  The court first found that termination of
parental rights would serve the best interests of the children.  Regarding
the mother, the court found that she is unable to meet her children's needs
within a reasonable time and that she is unable to protect the children from
jeopardy.  As for the father, the court found that he is unwilling and unable
to protect Kaleb from jeopardy.{7}  This appeal followed.
II. DISCUSSION
	[¶10]  We review the District Court's findings of fact to determine
whether they are clearly erroneous, and we review de novo the conclusions
of law for clear error.  In re Ashley S., 2000 ME 212, ¶ 11, 762 A.2d 941,
945; In re Christina H., 618 A.2d 228, 229 (Me. 1992).  "Deference is paid
to that court's superior perspective for evaluating the weight and credibility
of evidence."  In re Leona T., 609 A.2d 1157, 1158 (Me. 1992).

A.  Judicial Notice of Prior Findings of Fact and Conclusion of Law

	[¶11]  We first address the parents' contention that the court
should not have considered the findings of fact and conclusions of law
previously entered by a different judge at the jeopardy and judicial review
hearings. The parents argue that because the judge "could not consider the
evidence presented at those former hearings, he also could not consider the
findings of fact and conclusions of law reached at those prior hearings."{8} 
	[¶12]  That contention is simply wrong.  The authority of the trial
judge to take judicial notice of matters of record is distinct from the
authority of a single judge to consider evidence presented in a previous
stage of a child protective proceeding when that evidence was presented to
the same trial judge.  See In re Heather C., 2000 ME 99, ¶ 6, 751 A.2d 448,
451; Finn v. Lipman, 526 A.2d 1380, 1381 (Me. 1987); see also In re
Michael A., 552 A.2d 368, 369-70 (R.I. 1989).  When the trial judge has
actually heard the evidence presented in prior stages of a child protection
proceeding, that judge may consider the evidence in the following stages
because the process is, in fact, a unified proceeding.  In re Leona T., 642
A.2d 166, 168 (Me. 1994); In re David W., 568 A.2d 513, 515 (Me. 1990).{9}  
When a different trial judge presides at a later stage of the process, that trial
judge may not rely on the evidence presented to the prior judge, but may
consider and rely on the findings of fact and conclusions of law contained in
the orders or judgments entered by the prior judge.
	[¶13]  When a court enters a judgment containing findings of fact
and conclusions of law, those findings become a matter of judicial record.  A
judge may take judicial notice of any matter of record when that matter is
relevant to the proceedings at hand.{10}  Particularly in the context of child
protective proceedings, where the entire procedure occurs as a unified
proceeding, see In re Leona T., 642 A.2d at 168, a trial judge may, at any
stage of the proceeding, take judicial notice of the findings and conclusions
contained in any prior judgments or orders.  In re Heather C., 2000 ME 99,
¶ 6, 751 A.2d at 451.
	[¶14]  Because of the shifting burdens of proof in these unique
proceedings, however, a cautionary note is important.  Although the
proceedings in child protective matters are unified, the burden of proof is
more stringent at the termination of parental rights stage.  See Santosky v.
Kramer, 455 U.S. 745, 769-70 (1982).  The Department's burden at most
stages is to prove the necessary elements by a preponderance of the
evidence.  See 22 M.R.S.A. § 4035 (1992 & Supp. 2000) (requiring a
preponderance of the evidence standard in jeopardy hearings); In re
Christmas C., 1998 ME 258, ¶ 7, 721 A.2d 629, 631 (holding that cease
reunification orders require the preponderance of the evidence standard). 
In contrast, the court may not terminate a parent's rights unless it is
persuaded by clear and convincing evidence that the Department has met its
burden.  22 M.R.S.A. § 4055 (1992 & Supp. 2000); see also Santosky, 455
U.S. at 769.  The trial court must, therefore, be vigilant in requiring that the
evidence offered in support of a petition to terminate parental rights is clear
and convincing.  Thus, although the court may take judicial notice of prior
findings in a termination proceeding, it must independently assess all facts
presented and must be confident to a clear and convincing standard that the
evidence taken as a whole is sufficient to meet the strict statutory
prerequisites for terminating parental rights.  See Taylor v. Comm'r of
Mental Health & Mental Retardation, 481 A.2d 139, 153 (Me. 1984)
(defining the clear and convincing evidence standard to require that the
fact-finder find the operative factual conclusion to be "highly probable").
	[¶15]  Here, the court heard a significant amount of evidence
regarding the mother's continuing inability to protect Scott and Kaleb from
jeopardy and her inability to take responsibility for her children within a
time which is reasonably calculated to meet their needs.  That evidence
related to events that occurred after the jeopardy order was entered.  The
court did not rely on the original findings, instead it had before it new
evidence of the parents' abilities.  The Department also presented current
evidence of the father's inability to protect Kaleb from jeopardy and his
unwillingness to believe that his wife presented a threat to the children. 
Indeed, the hearing focused, as it should, not on the original reason for the
children's removal from the parents' home, but on the parents' actions
since that time and their ability, contemporaneous with the termination
hearing and into the future, to provide safe care for the boys. 
	[¶16]  Thus, it was not error for the trial judge to take judicial
notice of the prior judge's findings in order to understand the context of the
parties' positions at the termination hearing.{11}

B.  The Role of the Best Interest Determination in Termination Proceedings

	[¶17]  We next address the parents' contention that the District
Court erred in its consideration of the best interests of the children.  In its
written opinion, the court commented on the best interests of the children
before addressing the parental capacity factors.  We have not previously
found error on the sole basis that the court made best interests findings
before making parental capacity findings.  
	[¶18]  Here, however, the court's analysis goes beyond such a
scrivener's error.  The court held that it "must find by clear and convincing
evidence that termination is first, in the best interest of the child and that
one or more of the socalled [sic] four fault factors are present and have been
proven under said standard. . . .  The best interest factor takes precedence
over the fault factors under existing law as amended a few years ago."
(Emphasis added.)  Thus, the court did not merely recite its factual findings
in the order set out in the statute; it concluded that the best interest factor
was the paramount factor in determining whether to sever the parents'
rights.
	[¶19]  Although the Legislature has placed the best interest factor
numerically prior to the parental unfitness factors enumerated in section
4055, we have held that the District Court must first find that the State has
met its burden of proving parental unfitness under one of the four prongs of
22 M.R.S.A. § 4055(1)(B)(2)(b) before it can consider the best interests of
the children.  In re Melanie S., 1998 ME 132, ¶ 5, 712 A.2d 1036, 1037; In
re Ashley A., 679 A.2d 86, 89 (Me. 1996); In re Leona T., 609 A.2d at
1158-59.   Specifically, we have held that "'[n]otwithstanding the sequence
in the statute, the trial court must find, by clear and convincing evidence,
one of the four bases of parental fitness . . . before it may consider the best
interests of the child.'"  In re Melanie S., 1998 ME 132, ¶ 5, 712 A.2d at
1037 (citation omitted).  If the court finds that the Department has not met
its burden of demonstrating lack of parental capacity, it does not reach the
best interest analysis at all.  See In re Leona T., 609 A.2d at 1158-59
(concluding that the court erred in reaching the best interest factor when it
had found that the Department failed to sustain its burden of proof regarding
parental fitness); see also Rideout v. Riendeau, 2000 ME 198, ¶ 23, 761
A.2d 291, 301 n.15.  Only if the court has concluded that the Department
has proved one or more of the parental unfitness factors does it ever reach
the best interest determination.
	[¶20]  Our holding on this issue is not based on mere semantics. 
Rather, it springs from the mandates of the federal and state constitutions. 
Because of the fundamental importance of parents' rights to raise and
nurture their children, the State may not interfere with those rights absent
compelling overriding interests.{12}  Accordingly, except in the context of a
dispute between the parents in a divorce or a similar proceeding,{13} the
State may not remove children from a parent's care solely on the basis of the
best interests of the children.  Troxel v. Granville, 530 U.S. 57, 68-69
(2000); Rideout, 2000 ME 198, ¶ 23, 761 A.2d at 301 & n.15; In re
Leona T., 609 A.2d at 1158.  The words of Justice Stewart articulate this
concept best:  "If a State were to attempt to force the breakup of a natural
family, over the objections of the parents and their children, without some
showing of unfitness and for the sole reason that to do so was thought to be
in the children's best interest, I should have little doubt that the State
would have intruded impermissibly on 'the private realm of family life which
the state cannot enter.'"  Smith v. Org. of Foster Families for Equal. &
Reform, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring) (citation
omitted).  
	[¶21]  Thus, in termination of parental rights proceedings, the
court's focus must be on the Department's allegations of parental unfitness. 
Only if the court is convinced that the State has proven one or more of the
factors demonstrating that the parents cannot safely provide care for their
children does the court consider the children's best interests.  The result is
that, although the best interest factor alone may prevent the termination of
parental rights, it will never, standing alone, be a basis for a termination.{14}
	[¶22]  Here, the court expressly stated that the best interests of
the children "takes precedence" over parental capacity or unfitness
findings.  That holding constituted clear error.  We must determine whether
the error was harmless.

C.  The Harmless Error Standard

	[¶23]  Because we have not had occasion to address the harmless
error standard in detail in the context of child protective proceedings, we
take this opportunity to do so.{15}  We must first determine whether there is
any meaningful distinction between the civil, criminal, and constitutional 
standards of review regarding error which may have been harmless, and if
so, which standard should be applied in child protective cases.{16}
	[¶24]  The rules defining ordinary harmless error do not vary
significantly in civil and criminal proceedings.  In civil proceedings, "[t]he
court at every stage of the proceeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the parties." 
M.R. Civ. P. 61 (emphasis added); accord Midland Fiberglass, Inc. v. L.M.
Smith Corp., 581 A.2d 402, 403 (Me. 1990) (holding that an error is
harmless if the Court believes that it is highly probable that the error did not
affect the judgment). In criminal proceedings, "[a]ny error, defect,
irregularity or variance which does not affect substantial rights shall be
disregarded."  M.R. Crim. P. 52(a) (emphasis added); accord State v.
DeMass, 2000 ME 4, ¶ 17, 743 A.2d 233, 237 ("Error is harmless when it
is highly probable that it did not affect the jury's verdict.").  
	[¶25]  Accordingly, we have held that in civil matters, the
reviewing court must be convinced that it is highly probable that the error
did not affect those substantial rights.  In re Elijah R., 620 A.2d 282, 285
(Me. 1993) (holding that the admission of hearsay evidence is harmless
error because "it is highly probable that admission of the evidence did not
affect the judgment").  Similarly, in criminal matters, we have also required
the conclusion that it is highly probable that the error did not affect
substantial rights, see State v. Phillipo, 623 A.2d 1265, 1268 (Me. 1993),
and any doubt must be resolved in favor of the defendant, see O'Neal v.
McAninch, 513 U.S. 432, 436 (1995).  Therefore, we have not articulated
any significant distinction between the level of certainty the reviewing court
must afford when reviewing a claim of harmless error in civil and criminal
cases.
	[¶26]  When the error in a criminal proceeding is of constitutional
dimension, however, a heightened degree of certainty has been required by
the United States Supreme Court.  The Court addressed the harmless error
standard in the context of a claimed federal constitutional error in a
criminal matter in Chapman v. California, 386 U.S. 18 (1967).  In Chapman,
the Court rejected the petitioners' argument that any federal constitutional
error must result in an automatic reversal of the judgment, thus establishing
that even constitutional error may be harmless.{17}  Chapman, 386 U.S. at
21-22.  
	[¶27]  The Court nevertheless held that the party asserting the
harmlessness of the error has the burden of persuading the reviewing court
that the error did not affect the substantial rights of the complaining party
and that it must demonstrate "beyond a reasonable doubt" that the error did
not contribute to the result in the case.  Id. at 24.  The Court concluded that
the level of appellate court confidence articulated in that standard contained
"little, if any, difference" from the standard earlier announced in Fahy v.
Connecticut, 375 U.S. 85 (1963).  Chapman, 386 U.S. at 24.  There, the
Court had framed the question as: "whether there is a reasonable possibility
that the [error] complained of might have contributed to the conviction." 
Fahy, 375 U.S. at 86-87.  Refashioning that standard to "beyond a reasonable
doubt" in Chapman, the Court noted that although "appellate courts do not
ordinarily have the original task of applying such a test, . . . it is a familiar
standard to all courts, and we believe its adoption will provide a more
workable standard."  Chapman, 386 U.S. at 24 (footnote omitted).  In
adopting the "beyond a reasonable doubt" standard for review of the
harmlessness of federal constitutional errors, the Court utilized the same
standard by which fact-finders in criminal matters must be convinced of the
accused's guilt.  
	[¶28]  The Supreme Court has not had occasion to address a
standard for review of constitutional errors in child protective proceedings. 
It has, however, required a significant level of certainty on the part of the
fact-finder.  In Santosky, the Court balanced the competing interests of the
parties and concluded that states may not permanently deprive a parent of
rights to a child without evidence that is clear and convincing.  Santosky,
455 U.S. at 769.  Recognizing the important state interests in the safety of
children, however, it declined to mandate the higher standard of proof of
"beyond a reasonable doubt," leaving states free to undertake their own
assessment of the standard to be required.  Id. at 769-70.  Maine's
Legislature chose to impose a clear and convincing standard, thereby
requiring the fact-finder to be convinced that it is "highly probable" that the
operative facts exist as the State alleges.  See 22 M.R.S.A. § 4055; see also
Taylor, 481 A.2d at 153.  We conclude that the same standard should be
applied to alleged error in these matters, even when the error is of
constitutional magnitude. 
	[¶29]  Applying these concepts, we hold that, in the context of a
termination of parental rights proceeding, if the court errs, whether or not
that error can be framed in terms of a constitutional violation, the State has
the burden of persuading us that it is highly probable that the error did not
prejudice the parents or contribute to the result in the case.  The State's
burden of persuasion is high.  Any doubt will be resolved in favor of the
parent.
	[¶30]  Thus, when an error has occurred in a termination of
parental rights proceeding, and the party alleging the error has preserved
his or her objection to the error, we review the entire record to determine
whether the error prejudiced the parents in the presentation of their case
or had the potential to affect the outcome of the case.  In the absence of
substantial certainty, that is, a determination that it is highly probable, that
the error had no prejudicial effect and did not affect the outcome, we will
vacate the judgment.
 

On to the rest of this case.