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In re Joseph C.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1997 ME 143
Docket:	Pen-96-475
Submitted 
on Briefs:	February 14, 1997
Decided	June 30, 1997

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




In re JOSEPH C.


LIPEZ, J.

	[¶1] The mother of Joseph C. appeals from the entry of the judgment
in the District Court (Bangor, Hjelm, J.) terminating her parental rights as
to her son, Joseph.  She contends that the court erred by refusing to leave
the record open to allow her court-appointed expert a reasonable time to
complete his psychological examination.  We agree, and we vacate the
judgment.
I.
	[¶2]  Joseph C., age 9, has been in the custody of the Department of
Human Services (DHS) since 1993.  On February  27, 1996, DHS filed a
petition for termination of the mother's parental rights.{1}  At a pre-trial
conference on April 3, the court scheduled the DHS petition for a hearing
on June 10 and June 12.  On April 17, the mother filed a motion for an
independent psychological examination of Joseph by psychologist Thomas
Gaffney at state expense.  In that motion she stated that Joseph had had
"psychological diagnoses and treatment by providers selected by the
adversary party, Maine Department of Human Services."  She disputed "the
validity of the diagnoses of Joseph [C] as Fetal Alcohol Effects (FAE) on the
basis that she was not allowed to provide a parental and early childhood
history, which Dr. Gaffney opines is necessary," and she asserted that the
evaluation could not be done "without cooperation from the department, for
presentation of [Joseph C.] and for transportation of all participants." She
added that "this family and individual psychological evaluation is reasonable
and necessary for a mother to fairly and effectively present her position."
	[¶3]  On May 1 the court orally granted the motion, with the
restriction that Dr. Gaffney would not be permitted to interview any of the
mother's children unless the therapists for the children determined that an
independent evaluation was in the best interest of the children.{2}  On May 10
the court issued its written order approving $1400 for Dr. Gaffney's
examination and removing the restriction on Dr. Gaffney's access to her
children.  In its order, the court noted the importance of In re Michael V.,
513 A.2d 287 (Me. 1986) to its decision to remove the limitation:
 
The Law Court there suggested that the statutory right of a
parent to obtain an evaluation of the child is rooted in the
parent's "fundamental liberty interest" arising from the parent-
child relationship . . . .  This basis appears to be of constitutional
dimension . . . .

The termination hearing was conducted as scheduled on June 10 and 12. 
On the second day of the hearing, the court refused to keep the record open
to allow Dr. Gaffney to submit his psychological evaluation of Joseph and his
family at the end of July.  The court entered a judgment terminating the
mother's parental rights to Joseph.  She now appeals.
II.
	[¶4]  The court correctly noted the importance of In re Michael V. to
an analysis of this case.  We concluded there that the court had erred by
denying the motion for a psychiatric examination of Michael by the mother's
own expert witness:

The Department had filed a petition for termination of parental
rights, which Clarion L. opposed, and the Department took an
adversarial stance against her.  The Department had allowed its
expert to examine Michael, and Clarion had reason to believe
that the psychological profile of Michael would be used against
her in the termination proceeding.  These facts alone
demonstrate by the clear and convincing standard the necessity
for a psychological examination of Michael by Clarion's own
expert witness.  This need stems from her fundamental liberty
interest in the care and custody of her son and her right to a
fundamentally fair procedure in defending that interest.  See
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982).

513 A.2d at 288.
In response to this decision, the Legislature amended section 4007(3) in
1989{3} to eliminate the evidentiary burden on the parent set forth in the
statute to establish the need for an independent evaluation.  22 M.R.S.A.
§ 4007(3) now provides:

Motion for examination.  At any time during the proceeding, the
court may order that a child, parent, alleged parent, person
frequenting the household or having custody at the time of the
alleged abuse or neglect, any other party to the action or person
seeking care or custody of the child be examined pursuant to the
Maine Rules of Civil Procedure, Rule 35.

The Statement of Fact to L.D. 415, the bill that prescribed the changes to
section 4007(3), states that the Legislature was cognizant that

because of the recent Law Court decision in In re Michael V.,
there have been some questions about motions for examinations. 
This revision makes it clear that the court has the discretion to
deal with such requests and connects this section to established
rules regarding discovery.

L.D. 415, Statement of Fact (114th Legis. 1989).
	[¶5]  The court initially recognized that Michael V. required it to grant
the mother's request for an independent psychological examination of
Joseph by her own expert.  Although it so ruled on May 1, 1996, it included
the condition already noted precluding Dr. Gaffney from interviewing Joseph
without a determination by his therapist that such an evaluation was in his
best interest.  That condition was removed in the written order of May 10. 
Dr. Gaffney sent a request for releases to DHS on May 29.  DHS gave the
releases to the mother's counsel on the first day of the termination hearing
on June 10.  Obviously, Dr. Gaffney's report was not available for the hearing.
	[¶6]  Recognizing this fact, the State's attorney advised the court at
the outset of the hearing as follows: "I can assume that the hearing which is
scheduled to be completed this Wednesday will not happen." The court did
not share that assumption:

I wouldn't make that assumption.  I mean, there's been no
request for a continuance at this point, and the matter's been
scheduled for some time.  If somebody moves for a continuance,
then we'll deal with it then.

Instead of asking for a continuance, the mother asked the court to keep the
record open until Dr. Gaffney could complete his examination by the end of
July.  The State and the guardian ad litem objected.  The court denied the
mother's request, stating that although the court was "reluctant" to
proceed, the "urgency" of Joseph's need for resolution to the pending
petition made it "inappropriate to allow the case to be . . . delayed any more
than it already has." In its analysis of the events prior to the termination
hearing, the court saw too much delay by the mother's counsel and Dr.
Gaffney:

The petition for termination was filed in February of this year,
four or five months ago, and the matter was pre-tried in April, I
think, April 3rd.  And at that point, Dr. Gaffney was listed as a
potential expert for the mother.  The motion for funds was not
filed until about two weeks after that, April 16th.  A motion
hearing was held on May 1st, and that's when I indicated on May
1st that I would approve the amount that [the mother's counsel]
asked for.  I did at that point impose some restrictions on
whether-on the people to whom Dr. Gaffney might have access. 
But then by a written order dated May 10th, I basically vacated
those limitations or those restrictions.  So at least as of May 1st,
[the mother's counsel], at least, was aware of the fact that I was
approving money for Dr. Gaffney's work.  And apparently, he
didn't send out requests for information to the Department until
the end of the month.

	[¶7]  Although we recognize the difficult situation facing the court, and
the importance of its concern for a permanent home for Joseph, we
conclude that the court exceeded the bounds of its discretion in refusing to
allow more time for the preparation of Dr. Gaffney's report and its
submission to the court.  There was no unreasonable delay in filing the
motion for the appointment of Dr. Gaffney.  The order authorizing Dr.
Gaffney's work was not finalized until May 10.  Even if Dr. Gaffney had sought
releases from DHS earlier than May 29, the court could not reasonably
expect that Dr. Gaffney's evaluation, authorized to encompass interviews
with the mother and three of her children, would be completed only 30
days after the court authorized funds for and removed an obstacle to his
evaluation of Joseph.  The court was advised by the mother that Dr. Gaffney's
report would be available at the end of July, a little more than six weeks
from the second hearing date of June 12.  The request to keep the record
open for this period of time was modest and reasonable.  There was no
request for an indefinite delay.  The taking of additional evidence might have
been limited to Dr. Gaffney's report.
	[¶8]  At the termination hearing, the State relied in part on the
testimony of a licensed clinical social worker, who had been providing
therapy to Joseph C. since January 1995.  She described the play therapy,
the behavioral interventions and the medications used to deal with Joseph's
problems, which included aggression, self-abusive behaviors, anxiety
symptoms, nightmares and "just having difficulty coping with the stresses in
his life." She was asked: "In your professional opinion what-in regards to
permanency, what does this child need?" She responded: "He needs to
know where he's going to be forever, and not have to be moved again.  He
needs to know that now."
	[¶9] Joseph's mother does not dispute this need for permanency and
its importance to the best interest of her son.  She argues, simply, that she
was entitled to have her own expert witness evaluate the psychological
condition of her son and her ability to meet his need for permanence, and
present this evaluation to the court before it made a decision on the
termination of her parental rights.  She is correct.  Given the facts in this
case and our holding in Michael V., the court's decision to terminate the
parental rights of the mother to her son Joseph, without allowing a
reasonable time for the submission of the authorized psychological
evaluation, deprived the mother of the fair hearing to which she was
constitutionally entitled.
	The entry is:
Judgment vacated.  Remanded to the District
Court for further proceedings consistent with
the opinion herein.

Attorney for appellant: Thomas F. Shehan, Jr., Esq. P O Box 164 Orono, ME 04473-0164 Attorneys for appellee: Andrew Ketterer, Attorney General Diane E. Doyen, Asst. Atty. Gen. Janice S. Stuver, Asst. Atty. Gen. Geoffrey Goodwin, Asst. Atty. Gen. 6 State House Station Augusta, Me 04333-0006 Jacqulyn Dodge, CASA guardian ad litem
FOOTNOTES******************************** {1} DHS also petitioned for termination of the parental rights of the father of Joseph C. The father consented to the petition and his parental rights were terminated in April of 1996. {2} The psychological evaluation authorized by the court involved more than the evaluation of Joseph C. Four other children of the mother were in the protective custody of the State. Two of those children, Nicholas H. and Andrew H., were also the subject of the motion for a mental examination. Although the cases of these two children had not moved to a termination stage, the court had to review the continuation of their protective custody status. The evaluation to be conducted by Dr. Gaffney was to assist the court with that issue as well as the termination decision on Joseph C. Dr. Gaffney's mandate was to evaluate the three children individually as well as the family relationship between the mother and her children. {3} At that time, 22 M.R.S.A. § 4007(3) provided as follows: Motion for Examination. At any time during the proceeding, after a clear and convincing showing of the necessity for information that cannot be obtained by other means, a court may order that a child, parent, person frequenting the household or having custody at the time of the alleged abuse or neglect be examined by a physician, psychologist or psychiatrist.