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In re Thomas B.
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Decision:	1998 ME 236 
Docket:	Aro-98-207	
Argued:	October 8, 1998
Decided:	October 29, 1998


IN RE THOMAS B. et al.


	[¶1]  The mother of Thomas and Anthony B. appeals from an order of
the Superior Court (Aroostook County, Pierson, J.) affirming an order of the
District Court (Presque Isle, Griffiths, J.) issuing a final child protection
order that, inter alia, placed custody of the boys with the Department of
Human Services.  On appeal she argues that the District Court erred: (1) by
finding by a preponderance of the evidence that Thomas and Anthony were
in circumstances of jeopardy to their health or welfare, (2) by reopening the
record to admit additional evidence in the form of the assault conviction of
her fiancé, Dan B., and (3) by failing to recuse himself when told during the
hearing that he had once represented Dan B. in an unrelated matter.  We
affirm the decision of the District Court.{1}
	[¶2]  A final protection order may issue if the District Court finds that
the children are in circumstances of jeopardy to their health or welfare.  See
22 M.R.S.A. § 4035 (1992 & Supp. 1997).  When, as here, the Superior
Court acts as an intermediate appellate court, we directly review the
decision of the District Court.  See Department of Human Servs. v. Sabattus,
683 A.2d 170, 171 (Me. 1996).  On appeal of a final child protection order,
when "determining the sufficiency of the evidence presented to the District
Court, 'any finding, whether express or assumed, is tested under the
"clearly erroneous" standard by determining whether there is any
competent evidence in the record to support it.'"  In re Paul W., 563 A.2d
1105, 1106 (Me. 1989) (quoting Harmon v. Emerson, 425 A.2d 978, 981
(Me. 1981)).  
	[¶3]  The District Court heard testimony from twelve witnesses,
among them Drs. Jonathan Friedman and Franklin Thompson, psychologists
who evaluated the children.  Dr. Friedman testified that both children
reported high levels of violence in the home and both showed extreme
levels of social anxieties.  Dr. Friedman testified that Thomas, age 12, was
already showing signs of obsessive-compulsive disorder, and Dr. Thompson
testified that Anthony, age 10, had the lowest level of self-esteem he had
ever observed, which in his opinion was caused by "life experience." 
Dr. Friedman also evaluated the mother, concluding that she had a
narcissistic personality disorder, that she had difficulty bonding with her
children, and that it was likely she would put her needs ahead of those of
her children.  DHS also presented evidence that the mother failed to
appreciate the harm to her children caused by allowing her fiancé, Dan B., to
administer a "spanking" so forceful that it left bruises on Anthony's
	[¶4]  "Jeopardy" is defined by statute to mean "serious abuse or
neglect," as evidenced by, inter alia, "[s]erious harm or threat of serious
harm."  22 M.R.S.A. § 4002(6)(A) (1992).  "Serious harm" is defined to
include, in addition to "serious injury":
Serious mental or emotional injury or impairment which now or
in the future is likely to be evidenced by serious mental,
behavioral or personality disorder, including severe anxiety,
depression or withdrawal, untoward aggressive behavior,
seriously delayed development or similar serious dysfunctional
22 M.R.S.A. § 4002(10) (1992).  According to the testimony of experts, both
boys have shown evidence of such "serious mental or emotional injuries." 
The evidence presented, therefore, was certainly sufficient to support the
District Court's findings and its conclusion that the boys were in
circumstances of jeopardy to their health or welfare.
	[¶5]  The mother also asserts that the District Court erred by
reopening the evidence to admit the assault conviction of the mother's
fiancé, Dan B.  The decision to reopen a record is left to the sound
discretion of the trial judge, and we conclude that the court acted within
that discretion.  See Glidden v. Belden, 684 A.2d 1306, 1316 (Me. 1996). 
Unfortunately, the purpose for which the conviction was offered is not clear
from the record.  If offered for certain purposes--e.g. as evidence of
information available to the mother regarding the safety of her children--the
misdemeanor conviction may have been admissible.  Under other
circumstances, however, its admission would be error.  See Morrell v.
Marshall, 501 A.2d 807, 808-09 (Me. 1985); cf. M.R. Evid. 803(22)
(providing specific exception to hearsay rule only for felony convictions).  To
the extent its admission was error, we find that error was harmless.  See
Lawton v. Richmond, 1997 ME 34, ¶ 14, 690 A.2d 953, 956.   There was
compelling evidence in the record to support the District Court's findings,
even without the additional evidence of the conviction.  
	[¶6]  Finally, the argument that the trial judge erred in failing to
recuse himself, where neither party sought recusal after being apprised that
the judge may have represented one of the witnesses years ago, is without
	The entry is:
Judgment affirmed.
Attorney for appellant: E. Christopher L'Hommedieu, Esq., (orally) 506 Main Street Lewiston, ME 04240 Attorneys for appellee: Andrew Ketterer, Attorney General Janice S. Stuver, Asst. Atty. Gen. Carrie L. Linthicum, Asst. Dist. Atty. 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Margaret T. Johnson, Esq. 87 DuPont Drive Presque Isle, ME 04769 Attorney for father: Francis E. Bemis, Esq. P O Box 427 Presque Isle, Me 04769
FOOTNOTES******************************** {1} . DHS has also moved to dismiss the appeal as moot because, during the pendency of this appeal, the father sought and received custody of the children through an amendment to the divorce decree and DHS has placed the children with their father. Contrary to DHS's argument, the amendment to the divorce decree does not render this appeal moot. The order entered under 22 M.R.S.A. § 4035 (1992 & Supp. 1997) takes precedence over any order entered pursuant to the court's authority under Title 19. See 22 M.R.S.A. § 4031(3) (Supp. 1997). Accordingly, even if we were to dismiss the appeal, the child protection order would nonetheless remain valid. Nothing in this opinion, however, would prevent the District Court from dissolving the child protection order on DHS's motion or on agreement of the parties.