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In re Christmas C., revised 1-8-99
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 258
Docket:		Yor-98-69
Submitted
on Briefs:		September 2, 1998
Decided :		December 4, 1998	

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


IN RE CHRISTMAS C. et al.
CLIFFORD, J.

	[¶1]  The mother of Christmas C., Ronald C., and Stephen C. appeals
from a judgment entered in the Superior Court (York County, Studstrup, J.)
affirming a District Court (Springvale, Humphrey, J.) determination that the
children are in circumstances of jeopardy and that the Department of
Human Services may cease reunification and rehabilitation efforts pursuant
to 22 M.R.S.A. § 4036(1)(G-1) (1992 & Supp. 1997).  The mother contends
that the court erred when it applied a preponderance of the evidence
standard in determining that the Department may cease reunification and
rehabilitation efforts, that due process requires the application of a clear and
convincing standard of proof, and that the Department failed to meet that
standard.  Because we conclude that the court correctly applied the
preponderance of the evidence standard of proof in its determination, we
affirm the judgment.
I.
	[¶2]  The mother first contends that the statute providing for the
court to allow the Department to cease efforts to reunify and rehabilitate the
family of a child who has been removed from his or her home,
22 M.R.S.A. § 4036(1)(G-1), requires that the burden of proof applicable to
that determination is clear and convincing evidence.{1} 
	[¶3]  Statutory interpretation is a question of law.  See Cook v. Lisbon
School Comm., 682 A.2d 672, 676 (Me. 1996).  When interpreting a statute,
we look to its language and consider the "whole statutory scheme for which
the section at issue forms a part so that a harmonious result, presumably the
intent of the legislature, may be achieved."  Estate of Whittier, 681 A.2d 1, 2
(Me. 1996).
	[¶4]  If the court determines that a child is in circumstances of
jeopardy, the court may issue an order providing protection to that child. 
The finding of jeopardy is made by a preponderance of the evidence.{2} 
Several remedies are available to the court in fashioning such a protection
order, including removal of the child from his or her home and granting
custody to the Department.  22 M.R.S.A. § 4036(1)(F).  If the child is
removed from the home, the statute places on the Department a
responsibility to aid in reunification of the child's family and in the family's
rehabilitation.  22 M.R.S.A. § 4041(1)(A).  The statute also places on 
the child's parents a responsibility to rectify and resolve the "problems 
which prevent the return of the child to the home" and requires them 
to "take part in a reasonable rehabilitation and reunification plan." 
22 M.R.S.A. § 4041(1)(B).
	[¶5] In certain circumstances, however, the obligation imposed on
the Department to aid in the reunification and rehabilitation of the family
need not be undertaken, or if undertaken, may be ended.  Pursuant to
22 M.R.S.A. § 4036(1)(G-1), the court may order that the Department has
no further responsibility to reunify and rehabilitate.  See also 22 M.R.S.A.
§ 4041(2)(A).{3} 
	[¶6]  The mother contends that the court can authorize the
Department to discontinue rehabilitation and reunification efforts only if the
court is persuaded by clear and convincing evidence as to one or more of the
factors set out in section 4041(2)(A).  If the mother's contention is correct,
the legislature would have intended for two separate burdens of proof to
apply in a single hearing for a final protection order. 
	[¶7]  The statute clearly states that a preponderance of the evidence
standard is appropriate before a protection order is issued. 
22 M.R.S.A. § 4035(2).  One of the options available to the court to best
protect the interests of the child is to allow the Department to cease
rehabilitation and reunification efforts.  In the absence of statutory language
specifying otherwise, the same preponderance of the evidence standard
governing the issuance of a protection order should govern the court's
determination of whether to allow the Department to cease its efforts to
reunify and rehabilitate.  The legislature was mindful of the clear and
convincing evidence standard of proof and explicitly made that 
standard applicable to proceedings to terminate parental rights.  See
22 M.R.S.A. § 4055(1)(B)(2) (1992 & Supp. 1997).  If it was the intent of
the legislature to make a clear and convincing standard applicable to any
portion of a protection order, it could have articulated that standard within
the statute.  It did not do so.  To allow the Department to discontinue its
efforts to reunify the family and rehabilitate its members is an integral and
essential part of the court's authority in child protection proceedings.  When
it is not in the best interests of the child that such efforts continue, the
court has authority to permit the Department to cease the efforts.  See
22 M.R.S.A. § 4038(7) (when two placements with the parent have failed,
the court shall order discontinuance of reunification and rehabilitation
efforts unless the parents demonstrate that reunification should be
continued) (emphasis added).  There is no basis to conclude that the
legislature intended that authority to be exercised only on a showing of clear
and convincing evidence.  See In re Denise M., 670 A.2d 390, 394 (Me.
1996) (good faith effort on the part of the Department to effect reunification
of the family pursuant to section 4041 established by preponderance of the
evidence).
II.
	[¶8]  The mother also contends that even if the statutory language
cannot be construed to support the application of a standard of proof higher
than a preponderance of the evidence, the due process requirements of the
Fourteenth Amendment of the United States Constitution and Article 1,
Section 6-A of the Maine Constitution mandate the application of a clear and
convincing standard when the Department seeks to cease rehabilitation and
reunification efforts pursuant to 22 M.R.S.A. § 4036(1)(G-1). 
	[¶9]  "This Court has long adhered to the principle that the Maine
Constitution and the Constitution of the United States are declarative of
identical concepts of due process."  State v. Rosado, 669 A.2d 180, 182
(Me. 1996) (quoting Penobscot Area Hous. Dev. Corp. v. Brewer,
434 A.2d 14, 24 n. 9 (Me. 1981)).  "The fundamental requirement 
of due process is an opportunity to be heard upon such notice and 
proceedings as are adequate to safeguard the right which the particular
pertinent constitutional provision purports to protect."  In re Alexander D.,
1998 ME 207, ¶ 13, 716 A.2d 222.  
	[¶10]  In a procedural due process challenge, we must first
determine whether the governmental action has resulted in a deprivation of
life, liberty, or property.  See Mahaney v. State, 610 A.2d 738, 742 (Me.
1992).  We have recognized and the parties agree that the relationship
between parent and child is constitutionally protected and that due process
must be afforded to a parent before the state may interfere with that
relationship.  See Danforth v. State Dep't of Health and Welfare, 303 A.2d
794, 796 (Me. 1973).  
	[¶11]  There is no dispute that ceasing rehabilitation and
reunification efforts affects an important liberty interest that implicates due
process.  Due process is a flexible concept that in this context requires us to
consider:  (1) the private interest affected; (2) the risk of error created by
the standard of proof used; and (3) the countervailing state interest
supporting use of the challenged standard.  See State v. Stade, 683 A.2d
164, 166 (Me. 1996).  Due process requires, and the statute dealing with
terminating parental rights provides, that parental rights may be terminated
only upon a showing, by clear and convincing evidence, of parental unfitness
and that termination is in the best interest of the child.  22 M.R.S.A.
§ 4055(1)(B)(2)(a); In re Merton R., 466 A.2d at 1268, 1269 (Me. 1983). 
The mother contends that because ceasing efforts to rehabilitate and to
reunify the parent with her child involves the closest relationship between
them, the interests and risks implicated are commensurate with the liberty
interests at stake in a termination of parental rights case.  Because the
interests and risks at stake are not the same, however, the due process
requirements are different as well.
	[¶12]  In Santosky v. Kramer, 455 U.S. 745 (1982), the United States
Supreme Court determined that before parental rights to a child can be
terminated, due process requires that the requisite findings be proven by a
clear and convincing evidence standard.   As we have noted, the overriding
factor considered by the Supreme Court in Santosky was the finality of the
decision.  See Guardianship of Hughes, 1998 ME 186, ¶ 13, 715 A.2d 919. 
In a termination proceeding, the state seeks "not only to infringe [on a]
fundamental liberty interest, but to end it."  Id.  (citing Santosky, 455 U.S. at
758-59).  Unlike a termination order, an order allowing the Department to
cease rehabilitation and reunification efforts is "neither final nor
irrevocable."  In re Sabrina M., 460 A.2d at 1015-17 (rejecting mother's
contention that due process requires clear and convincing standard of proof
in child protection proceeding).  Child protective proceedings are ongoing
and protection orders may be, and frequently are, modified.  Title 22
M.R.S.A. § 4038 provides for mandated review of a final protection order. 
Moreover, the parent has a right to have the order allowing the Department
to cease its rehabilitation and reunification efforts periodically reviewed by
the court.  Id.; see In re Alexander D., 1998 ME 207, ¶ 9, 716 A.2d 222
(parent may file motion for judicial review to increase contact with
children). 
	[¶13] A protective order is issued if the Department proves by a
preponderance of the evidence that the children are in jeopardy. 
Rehabilitating and reunifying the family is a normal part of such an order.  If
reunification and rehabilitation efforts fail, or if they would be fruitless, the
Department may seek to be relieved of its obligation, or may decide not to
commence reunification and rehabilitation efforts.  See 22 M.R.S.A. §§
4041(2) and 4036(1)(G-1).  Following its being relieved of the obligation to
reunify and rehabilitate, the Department then may take the additional step
of petitioning the court to terminate the parental rights of the parent.  See
22 M.R.S.A. §§ 4050, 4052, 4055 (1992).  Because it is the last procedural
step in the child protective statutory scheme, taken only after a
determination that efforts to reunify children with their parents would be
fruitless, and because it may lead to a complete and final severance of the
parent's relationship with her child, it is appropriate that such a
termination proceeding be subjected to a higher clear and convincing
standard of proof.  In re Dean A., 491 A.2d 572, 573 (Me. 1985).  Due
process, however, does not compel the application of that elevated standard
to earlier, nonfinal, proceedings to protect children.  In re Sabrina M., 460
A.2d at 1015-17.
	[¶14]  Here, the Department made considerable efforts to rehabilitate
the mother, including individual counseling, transportation for visitation
with her children, substance evaluations, homemaker services, parenting
groups and meetings, both at Counseling Services, Inc. and Roy House, and
psychological evaluations.  There is no indication that the Department
shirked its responsibility under 22 M.R.S.A. § 4041(1).  While we agree that
the mother has a legitimate interest in reuniting with her children, the
Department, pursuant to section 4041(2) justifiably sought to be relieved of
its duty to provide these services.  The application of a preponderance of the
evidence standard to the court's determination to permit the Department to
end those services provided adequate due process to the mother.
	The entry is:
			Judgment affirmed.

Attorney for appellant: Donna A. Bailey, Esq. 88 North Street Saco, ME 04072 Attorneys for appellee: Andrew Ketterer, Attorney General Janice S. Stuver, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Glenda Lovell, Esq. P O Box 1229 Kennebunkport, ME 04046 Attorney for father: Katharine S. Forte, Esq. 26 Adams Road Kittery, ME 03904
FOOTNOTES******************************** {1} Pursuant to a clear and convincing standard of proof, the party with the burden of persuasion prevails only if that party places in the ultimate factfinder an abiding conviction that the truth of the factual contentions advanced are "highly probable." In re Dean A. 491 A.2d 572, 573 (Me. 1985). {2} Title 22 M.R.S.A. § 4035(2) (1992 & Supp. 1997) provides that in a hearing for a final protection order, "the court shall make a finding, by a preponderance of the evidence whether the child is in circumstances of jeopardy to his health or welfare." (Emphasis added). {3} Title 22 M.R.S.A. § 4041(2)(A) provides: The department may either decide to not commence or to discontinue rehabilitation and reunification efforts with either parent or the court may order that rehabilitation and reunification efforts need not commence or that the department has no further responsibilities for rehabilitation and reunification with either parent when: . . . . (3) The parent is unwilling or unable to rehabilitate and reunify with the child within a time which is reasonably calculated to meet the child's needs; . . .