Skip Maine state header navigation

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

MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	2002 ME 17
Docket:	Aro-01-471
Submitted 
     on Briefs:	October 15, 2001
Decided:	January 31, 2002


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



IN RE EBONY P.

DANA, J.

	[¶1]	The father of Ebony P. appeals from a judgment of the District
Court (Presque Isle, Griffiths, J.) denying his motion for relief from two orders
providing, inter alia, that he have no contact with his child.  He contends that
the two orders were void because he did not receive notice of the hearings that
resulted in those orders.  The Department of Human Services contends that
the appeal should be dismissed as moot and we agree.
	[¶2]	In 1997 the court found Ebony to be in immediate risk of serious
harm and ordered that she be removed from the custody of her parents and
placed in DHS custody.  The court appointed counsel for the father.  After a
hearing, the court found that Ebony was in circumstances of jeopardy
primarily from the father, and placed the child in her mother's custody, with
supervision by the DHS.  After a second hearing in 1998 the court found and
the parties agreed that Ebony was still in need of a child protective order and
ordered the father to have no contact with Ebony and to pay forty-five dollars
per week in child support.
	[¶3]	The court sent the father's attorney notice of a judicial review
scheduled for February 1999, with a case management conference set for late
January.  Neither the father nor his attorney appeared at the case management
conference.  In early February, the father's attorney moved to withdraw, stating
that the father told him "a number of months ago" that he no longer wished to
have an attorney, and the attorney had had no contact with the father after
that statement.  The court granted the motion.  
	[¶4]	Following the February judicial review hearing, which neither the
father nor any attorney on his behalf attended, the court ordered in March that
the father have no contact with Ebony and that he pay forty-five dollars per
week in child support; the mother was to retain custody.  The court stated in
that order that "[a]ll parties were duly and seasonably notified of the pendency
of the proceeding," but the order, which included notice of the next judicial
review hearing, was not served on the father or a legal representative on his
behalf.  Another judicial review hearing took place in July; the father did not
attend.  The court entered an order that month that was identical to the March
order as to the father, but placed Ebony in a therapeutic foster home.  Again,
the court stated that "[a]ll parties were duly and seasonably notified of the
pendency of the proceeding," but again the recitation was inaccurate because
neither the father nor his representative was served.
	[¶5]	In November, the court issued a continuance of the next hearing,
but did not provide notice to the father or an attorney representing him.  The
case status report from the hearing, which took place in December, indicates
that neither the father nor an attorney appeared for him.  In late December,
the father addressed a letter to the court requesting that the court reschedule a
January 2000 hearing so his new attorney could attend.  In January, the court
issued a judicial review order again prohibiting any contact between the father
and Ebony and ordering the father to pay forty-five dollars a week in child
support.  Following a June hearing at which both the father and his attorney
were present, the court ordered, inter alia, that the father "shall have visits with
Ebony as deemed appropriate by DHS," and that the amount of child support
remain the same.  In February 2001, the court issued another order following
judicial review that made long term foster care the permanency plan for Ebony.
	[¶6]	In March 2001, the father filed a motion for relief from the two
1999 orders pursuant to M.R. Civ. P. 60(b) on the ground that the orders are
void because he had not received notice of the hearings that preceded them. 
The court denied the father's motion and the father appeals from that
decision.{1}
	[¶7]	The State contends that subsequent orders supersede the 1999
orders and render this appeal of the motion for relief from judgment moot.  The
father contends that because of the 1999 orders, the court did not permit him
to challenge the decision to place Ebony in foster care in subsequent
proceedings.
	[¶8]	An appeal is moot if our decision "would not provide . . . any
effective relief."  Gordan v. Cummings, 2000 ME 68, ¶ 11, 756 A.2d 942, 945. 
We must examine the record to determine "whether there remain sufficient
practical effects flowing from the resolution of [the] litigation to justify the
application of limited judicial resources." Monroe v. Town of Gray, 1999 ME
190, ¶ 4, 743 A.2d 1257, 1258 (internal quotation marks omitted).  In the child
protective context, we have stated that a challenge to a judgment or order is
moot if the judgment or order automatically expired because the same issue
was adjudicated in a subsequent proceeding in the case.  In re Misty B., 2000
ME 67, ¶ 7, 749 A.2d 754, 756.  
	[¶9]	Because we lack transcripts of any of the proceedings below, the
record cannot support the father's contention that at the 2000 and 2001
judicial review hearings, he was not allowed to challenge the decision to place
Ebony in foster care in 1999.  The father did not appeal from, nor did he move
for relief from the orders entered in 2000 and 2001.  These orders superseded
and replaced the 1999 orders that the father contends are void.  We cannot,
therefore, provide any effective relief to the father even if his contentions have
merit.  We dismiss this appeal as moot.
	The entry is:
			Appeal dismissed.

Attorney for appellant: Frank H. Bishop, Sr. Stevens, Engels & Bishop P O Box 311 Presque Isle, ME 04769 Attorneys for appellee: G. Steven Rowe, Attorney General Matthew Pollack, Asst. Atty. General Michael G. Keefe, Asst. Atty. General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: James M. Dunleavey, Esq. P O Box 33 Presque Isle, ME 04769 Attorney for mother: Francis Bemis, Esq. P O Box 427 Presque Isle, ME 04769
FOOTNOTES******************************** {1} . . DHS moved to dismiss the appeal on the ground that the appeal really challenges the 1999 orders for which the appeal period has expired and which are not final judgments subject to review. Because we dismiss the appeal as moot, we do not address this ground for dismissal.