In re Children of Bethmarie R. — 2018 ME 96

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2018 ME 96
Docket: 	Ken-18-8
Argued: 	May 16, 2018
Decided: 	July 12, 2018
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILDREN OF BETHMARIE R.
HUMPHREY, J.
[¶1] Bethmarie R. appeals from a judgment entered by the District Court
(Waterville, Stanfill, J.) finding jeopardy to two of her children pursuant to 22
M.R.S. § 4035 (2017) and ordering the Department of Health and Human
Services (the Department) to cease reunification efforts pursuant to 22 M.R.S.
§ 4041(2)(A-2) (2017). The mother contends that (1) the court erred when it
concluded that the doctrine of res judicata did not bind the Department to
orders issued by the Probate Court concluding that the children were not in
jeopardy, and (2) her due process rights were violated. We affirm the judgment.

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I. CASE HISTORY
[¶2] 	The record contains the following procedural history.1 In January
2010, the Somerset County Probate Court (Alsop, J.) granted the mother’s
petition to appoint the maternal grandmother to be full guardian of the two
children at issue in this case. 	Between 2010 and 2016, the mother filed four
petitions to terminate the guardianship. 	The first two petitions were denied,
and on the third petition, the court limited the guardianship to allow contact
and permit the mother to participate in decision-making for the children.
[¶3] 	During a supervised visit in August 2013, the mother absconded
with the children and they were located near the South Carolina and Georgia
border the next day. 	The mother was convicted of two counts of criminal
restraint in February 2015 in the Superior Court (Kennebec County, Horton, J.)
and sentenced to two and one-half years’ imprisonment, with all but five
months suspended.
[¶4] 	In June 2016, following a series of motions and orders concerning
visitation, the mother filed her fourth petition in the Probate Court to terminate
the guardianship. 	On August 18, 2017, the Kennebec County Probate Court
1 The procedural history is drawn from the records of the District Court and the Probate Court.
We may take judicial notice of the Probate Court’s records, including the pleadings and docket
entries. See Guardianship of Jewel M., 2010 ME 80, ¶ 24, 2 A.3d 301; M.R. Evid. 201.

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(E. Mitchell, J.)2 held a final hearing on the mother’s petition and on motions she
filed to enforce and compel visitation. In an August 28, 2017, order, the court
concluded 	that 	it 	could 	not 	find 	the 	mother 	unfit 	and 	terminated 	the
guardianship, subject to a one-month transition of the children to the mother’s
custody.
[¶5] 	On September 1, 2017, the grandmother filed a motion to reopen
the evidence, for amended findings of fact and conclusions of law, and to stay
enforcement based on four alleged incidents that had occurred since the
August 18 hearing: (1) the mother’s former boyfriend3 was seen near the
mother’s house, (2) the mother bit her son, (3) the mother sat by and did not
intervene while another child stomped on her son’s head, and (4) the mother
pulled bandages off of her son’s face in a way that inflicted unnecessary pain to
the child. The mother filed a motion for contempt that same day, alleging that
the grandmother was not complying with the August 28, 2017, order for
contact.
2 The matter was transferred from the Somerset County Probate Court to the Kennebec County
Probate Court in August 2016.
3 In March 2013, the grandmother, on behalf of the children, had petitioned the District Court for
protection from harassment orders against this boyfriend, and the court (Waterville, Dow, J.) ordered
protection after a hearing in July 2013. The protection order expired in July 2014.

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[¶6] 	On September 28, 2017, the Probate Court held a hearing on the
new evidence and the issues raised by the motions. A Department caseworker
testified at the hearing, but it is not clear whether and to what extent the
Probate Court received information from the Department concerning the
mother.4 The following day, the court entered an intermediate order requiring
supervised visits with the mother.
[¶7] 	On Saturday, October 7, 2017, before the Probate Court issued a
final decision, the Department sought, and the District Court (Augusta, Ende, J.)
granted, a preliminary protection order pursuant to the Child and Family
Services and Child Protection Act, 22 M.R.S. §§ 4001 to 4099-H (2017). 	In its
order, the District Court granted custody to the grandmother, ordered no
contact 	with 	the 	mother, 	and 	relieved 	the 	Department 	of 	providing
reunification services. 	Pursuant to M.R. Civ. P. 126 and 4 M.R.S. §§ 152(5-A),
251-A (2017), the District Court (Waterville, Stanfill, J.) conferenced with the
Probate Court and determined that, because the Probate Court had already
heard the pending motions and soon would issue its judgment, the probate
4 Although the Probate Court record indicates that the guardian ad litem reviewed a Department
file concerning a 2012 child protection matter, that proceeding was in regard to one of the mother’s
other children. Further, there is no indication in the record that the Probate Court issued a Clifford
Order, 22 M.R.S. § 4008(3)(B) (2017), to obtain the Department’s records concerning the children at
issue.

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matter would be transferred to the Waterville District Court after the Probate
Court issued its amended order on the mother’s motion to terminate the
guardianship. After conferencing with the parties, the District Court continued
the child protection hearing until November because it would be “impracticable
to hold a summary preliminary hearing at this stage.”
[¶8] On October 18, 2017, the Probate Court denied the mother’s motion
to terminate the guardianship,5 “but add[ed] limitations to” the guardianship to
require supervised visits with the mother at least twice weekly, ordered
transitional services, and ordered the guardianship to be further reviewed after
three months. 	The court emphasized that the grandmother had “consistently
refused to work toward reunification of the children with their mother,”
“willfully ignored this court’s initial order and [] made a transition beneficial to
the children impossible by refusing to allow the children to follow the
scheduled visits,” did not present “convincing evidence on her four allegations
against 	[the 	mother],” 	and 	did 	not 	present 	“evidence 	that 	suggested
5 In its order, the Probate Court stated that “[a]t no point during this case did this court hear
evidence that suggested ‘circumstances of jeopardy to the children’s health and welfare.’” Because
the court did not terminate the guardianship, however, it had to have determined that the mother
was unfit in some way. See 18-A M.R.S. § 5-212 (2017); Guardianship of Stevens, 2014 ME 25, ¶ 14,
86 A.3d 1197.

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circumstances of jeopardy to the children’s health and welfare.” 	(Quotation
marks omitted.)
[¶9] On November 86 and 16, 2017, a few weeks after the Probate Court
order was issued, the District Court (Waterville, Stanfill, J.) held a combined
summary preliminary hearing and jeopardy hearing. The District Court found
jeopardy, 	see 	22 	M.R.S. § 4035(2) (2017), 	and 	issued 	an 	order on the
Department’s petition on December 21, 2017. 	The District Court’s jeopardy
determination relied in part on the biting, stomping, and bandage allegations
that the Probate Court heard and adjudicated in its October 18, 2017, judgment.
In stark contrast to the Probate Court’s order for transitional services to return
the children to the mother’s care, the District Court ordered the Department to
cease reunification with the mother based on the aggravating factor that the
mother had subjected the children to treatment that was “heinous or abhorrent
to society” because she had been convicted of criminally restraining these
children and had abandoned her other children, 22 M.R.S. § 4002(1-B)(A)(1)
6 At the hearing on November 8, 2017, the preliminary protection order was amended to grant
custody to the Department after the grandmother voluntarily relinquished her guardianship. The
grandmother was thereafter granted intervenor status in the child protection proceedings. See 22
M.R.S. § 4005-D(5) (2017).

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(2017).7 The permanency plan identified by the District Court was termination
of the mother’s rights and adoption by the grandmother.
[¶10] Based on the evidence before the District Court, the court made the
following findings of fact to support its jeopardy determination:
[The mother] has a number of children, none of whom are in
her custody. 	[The children] have lived with [their grandmother]
since 2009, which is most of their lives. Although their contact and
visits with [their mother] have waxed and waned over the years,
the children have not been in the primary care of their mother for
over eight years.
The last time [the mother] got close to regaining custody was
in 2013. She was regularly seeing the children under a transition
plan. For reasons unknown to this court, she decided to abscond
with the children from a supervised visit. . . . Although the children
were physically unharmed, the “kidnapping” continues to loom
large in their minds, especially for [the boy].
The children began to transition again to their mother this
summer and were having regular visits. 	However, once again
events occurred which halted the transition. The behaviors of the
children after visits were concerning. [The girl], who is typically a
shy and quiet girl, became increasingly angry, defiant and agitated
after visits. [The boy] did not want to go, saying he was afraid his
mother would take them again where no one would ever find
them. . . .
. . . .
[The girl] was coming home from visits with her mother
saying things to [the grandmother] like “you hate me and my
7 The District Court order also cites 22 M.R.S. § 4002(1-B)(D) (2017), but the court’s analysis
leading to the finding makes clear that this was a clerical error.

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mother,” “I don’t have to listen to you,” “you’re a decrepit old Nana,”
and denying [the boy] is her brother. 	[The girl’s] behaviors
culminated in the beginning of October when she became violent
and threatening and taken into crisis. 	[The grandmother’s ex-
husband,] who remains very involved with the family[,] found that
[the girl] had a tape recorder hidden in her shirt. 	[The girl]
reported that she got it from [the mother] in order to record the
conversations at the [grandmother’s] home. 	[The grandmother’s
ex-husband] took it away, and [the girl’s] behavior escalated. . . .
. . . .
[A psychologist] evaluated [the mother] in 2011, diagnosing
her with a personality disorder with paranoid features as well as
an adjustment disorder. He noted at the time her pattern of self-
defeating behaviors, her inability to do what needed to be done to
get her children back. 	After reviewing documents concerning
recent events, he felt that her actions continue to be consistent with
his 2011 evaluation: she still does not understand the issues or
demonstrate any insight, she has not accepted services, and she
continues 	her 	self-defeating 	behaviors. 	[The 	psychologist’s]
testimony 	and 	opinions 	are 	consistent 	with 	[the 	mother’s]
presentation 	in 	court. 	Her 	affect 	in 	the 	court 	was 	flat,
demonstrating 	no 	emotion. 	She 	seemed 	incapable 	of
understanding 	a 	viewpoint 	different 	from 	her 	own, 	of
understanding the risks and benefits of different courses of action,
or of even making decisions. She has her long-held views and sees
no reason to even consider services or change.
The testimony of the children’s therapist and of the Guardian
ad litem ultimately is very persuasive to this court. [The therapist]
has been seeing the children in therapy since 2015. The children
ordinarily function quite well, until they are stressed by the visits
with their mother. 	During the stress of visits and reunification,
their behaviors become problematic. 	[The girl] becomes angry,
threatening and yells. 	[The boy’s] anxiety increases and he has
sleep difficulties. 	Even though they were not physically harmed
when [the mother] illegally took the children, there has never been

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any resolution of this for the children. 	They worry that it will
happen again. 	[The grandmother] has provided stability and
consistency, and they feel safer with her. Such uncertainty is not
healthy for the children, and their behaviors speak volumes.
The court has no question that [the grandmother and her ex-
husband] have frequently involved the children in the conflict and
adult issues, and have not always followed through with visits and
transition plans. 	They have unilaterally made decisions to the
detriment of the children’s relationship with their mother. But [the
mother’s] actions have, without more, put the children in jeopardy.
They have suffered serious emotional harm at her hands, and
would continue to do so if returned to her care.
[¶11] 	In its findings, the District Court also described three of the
incidents that served as the basis for the grandmother’s September 1, 2017,
motion to the Probate Court:
In 	late 	August, 	[the 	boy] 	came 	downstairs 	to 	his
grandmother; [the mother] was upstairs. He had bite marks on his
right shoulder, and reported that his mother bit him. 	This was
confirmed by [the girl]. 	While apparently [the mother] regularly
playfully nipped the children on the ear and the like, this biting left
marks and was not appropriate.
Later that same evening, [the grandmother] was downstairs
and [the boy] was playing with another child in a bedroom with
[the mother]. 	[The grandmother] heard [the boy] screaming and
rushed upstairs to the bedroom. There she found [the boy] on the
floor, the other child “stomping” on [the boy’s] head, blood under
him, and [the mother] sitting there and not intervening while [the
boy] screamed. 	[The grandmother] was able to separate the
children and [the boy] did not suffer any serious injury. 	When
asked why she did not intervene to protect [the boy], the mother
said 	she 	cannot 	touch 	another 	child. 	Even 	afterwards 	she
maintained that she would not have done anything differently.

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A few days later, on August 30, [the boy] placed band-aids on
his face before a visit with his mother. [The grandmother] gave him
a magic marker, and he wrote on the bandages something to the
effect of “why are you kidnapping me again.” Rather than consoling
him 	or 	talking 	about 	his 	concerns, 	[the 	mother] 	ripped 	the
bandages off, apparently oblivious to any problem.
[¶12] 	Unlike the District Court, the Probate Court previously rejected
accounts 	of 	these 	incidents 	because 	the 	grandmother 	did 	not 	present
“convincing evidence” of her allegations and the Probate Court concluded that
the evidence did not “suggest[] circumstances of jeopardy to the children’s
health and welfare.” (Quotation marks omitted.)
[¶13] The mother timely appealed the District Court’s judgment. See 22
M.R.S. § 4006 (2017); M.R. App. P. 2B(c)(1).
II. DISCUSSION
A. 	Res Judicata
[¶14] The mother argues that the District Court erred when it concluded
that the doctrine of res judicata did not make the orders of the Probate Court
binding on the Department. She asserts that the Department was barred from
relitigating its claim that the mother exposed the children to jeopardy and that
the Department was estopped from contesting factual findings issued by the

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Probate Court. We review de novo a determination that res judicata does not
bar litigation. See Guardianship of Jewel M., 2010 ME 80, ¶ 38, 2 A.3d 301.
[¶15] “The doctrine of res judicata . . . is a court-made collection of rules
designed to ensure that the same matter will not be litigated more than once.”
Pushard v. Bank of Am., N.A., 2017 ME 230, ¶ 19, 175 A.3d 103 (quotation marks
omitted). 	Res 	judicata 	encompasses 	two 	different 	legal 	theories: claim
preclusion (bar) and issue preclusion (collateral estoppel). 	See id. “Claim
preclusion prohibits relitigation of an entire cause of action between the same
parties or their privies, once a valid final judgment has been rendered in an
earlier suit on the same cause of action.” Id. (quotation marks omitted). “Issue
preclusion . . . prevents the relitigation of factual issues already decided if the
identical issue was determined by a prior final judgment, and . . . the party
estopped had a fair opportunity and incentive in an earlier proceeding to
present the same factual issue or issues it wishes to litigate again in a
subsequent proceeding. 	Collateral estoppel arises only if the identical issue
necessarily was determined by a prior final judgment.” 	Guardianship of
Jewel M., 2010 ME 80, ¶ 39, 2 A.3d 301 (citations omitted) (quotation marks
omitted). “Principles of res judicata must be applied with caution in domestic
relations cases, as new developments often inform decisions as to what may be

12
in the best interest of a child in circumstances where relationships must
continue and will change over time until a child reaches majority.” Id. ¶ 41.
[¶16] 	Common to both legal theories is the requirement that the party
sought to be barred or estopped from litigating the claim or issue was a party
or privy to a party in the earlier case. See In re M.M., 2014 ME 15, ¶ 16, 86 A.3d
622 (explaining that claim preclusion requires that the same parties or their
privies are involved in both actions); Beal v. Allstate Ins. Co., 2010 ME 20, ¶ 18,
989 A.2d 733 (explaining that where, as here, “a party asserting nonmutual
collateral estoppel—where the parties are not the same parties or privies to the
prior proceeding—must establish that the party to be estopped was a party or
in privity with a party in the prior proceeding”). Because the Department was
not a party to the probate proceeding, we will not apply res judicata to the
probate proceedings unless we conclude that the Department was in privity
with the grandmother.
[¶17] “Privity exists when two parties have a commonality of ownership,
control, and interest in a proceeding.” 	In re M.M., 2014 ME 15, ¶ 16, 86 A.3d
622 (quotation marks omitted). 	We agree with the District Court that the
grandmother and the Department did not have the same ownership, control,
and interest in the probate proceedings. 	Although the Department has been

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involved with the family over the years and a Department caseworker was
called to testify at the September 2017 probate hearing, the court was correct
when it determined that “[t]he Department could advise and inform [the
grandmother], but [it] could not control her actions or interests in the probate
proceeding.”
[¶18] 	Contrary to the mother’s contentions, the Department and the
grandmother did not have the same interest in the proceeding, either. We agree
with the District Court that “[t]he Department’s interest is defined by statute;
even if [the grandmother had] the best interest of the children at heart, [the
grandmother had] her own interest at stake.” 	By statute, the Department is
required 	“to 	protect 	abused 	and 	neglected 	children 	and 	children 	in
circumstances that present a substantial risk of abuse and neglect, to prevent
further abuse and neglect, to enhance the welfare of these children and their
families and to preserve family life wherever possible.” 22 M.R.S. § 4004(2)
(2017). The Department is also required to file petitions for child protection if,
after investigation, the Department “determines that a child is in immediate
risk of serious harm or in jeopardy as defined in [chapter 1071].” 	22 M.R.S.
§ 4004(2)(F). At the jeopardy hearing, the court must make a determination of
the question of jeopardy. 	See 	22 M.R.S. § 4035(2) 	(2017). 	Thus, the

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Department’s interest in a child protection proceeding can be characterized as
protecting the child from jeopardy and enhancing the child’s welfare, and
because the Department must preserve family life whenever possible, the
Department must aid the court in reaching the proper determination on the
question of jeopardy.
[¶19] 	In contrast, the statute governing guardians does not compel a
guardian to align her interests with the Department’s interests and statutory
obligations. 	See 18-A M.R.S. § 5-209 (2017) (explaining that the guardian has
the powers and responsibilities of a parent). The guardian is permitted to act
with the goal of retaining custody, and that interest may conflict with the
Department’s 	interest 	in 	protecting 	children 	and 	preserving 	family 	life
whenever possible. In this case, the District Court found that the grandmother
has involved the children in the conflict with the mother and has made
decisions to the “detriment of the children’s relationship with their mother,”
which suggests that she was not interested in preserving the family and has not
always acted to “enhance the welfare” of the children. See 22 M.R.S. § 4004(2).
[¶20] The court did not err when it declined to apply res judicata in this
case because the Department and the grandmother were not in privity in the
probate proceedings. In order to fulfill its legislative mandate, the Department

15
was not barred from litigating its claim that the children were in jeopardy and
presenting evidence on issues already decided by the Probate Court.
B. 	Due Process
[¶21] The mother next argues that the Department and the District Court
violated her due process rights when she was subjected to a second judicial
proceeding on the same claims and facts that the Probate Court decided in her
favor while the child protection proceedings were pending.
[¶22] 	We described a parent’s right to due process in child protection
proceedings and the applicable test in our decision in In re M.P.:
When analyzing whether a party was afforded the process
that is due, we balance the three factors articulated by the Supreme
Court of the United States in Mathews v. Eldridge, 424 U.S. 319
[(1976)]:
First, the private interest that will be affected by the
official 	action; 	second, 	the 	risk 	of 	an 	erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute 	procedural 	safeguards; 	and 	finally, 	the
Government’s interest, including the function involved
and the fiscal and administrative burdens that the
additional 	or 	substitute 	procedural 	requirement
would entail.
In re M.P., 2015 ME 138, ¶¶ 30-31, 126 A.3d 718 (citations omitted) (quotation
marks omitted). Our review of an alleged constitutional violation is de novo.
See State v. Jones, 2012 ME 126, ¶ 35, 55 A.3d 432.

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[¶23] 	With regard to the first factor, the mother’s right “to make
decisions concerning the care, custody, and control of [her children]” is a
fundamental liberty interest that is protected by the Due Process Clause. 	See
Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291 (quotation marks
omitted). That constitutional liberty interest is not absolute or free from state
interference, 	and 	although 	the 	Due 	Process 	Clause 	provides 	heightened
protection against state intervention, it is “not an impenetrable wall behind
which parents may shield their children.” Id. ¶ 19. As to the third factor, “the
State has a compelling interest in limiting, restricting, or even terminating a
parent’s rights when harm to the child will result from the absence of such
governmental interference,” Pitts v. Moore, 2014 ME 59, ¶ 14, 90 A.3d 1169, as
well as “a significant interest in obtaining stability and permanency for children
within a reasonable time,” In re M.P., 2015 ME 138, ¶ 32, 126 A.3d 718.
[¶24] Bearing these competing interests in mind, we consider the second
factor and what due process necessitates in child protection proceedings:
“notice of the issues, an opportunity to be heard, the right to introduce evidence
and present witnesses, the right to respond to claims and evidence, and an
impartial fact-finder.” 	In re Robert S., 2009 ME 18, ¶ 14, 966 A.2d 894
(quotation marks 	omitted). 	The 	mother 	argues 	that 	the District 	Court

17
proceedings “deprived her of a meaningful process to vindicate her rights,” but
she does not point to a deprivation of any particular procedural right. Indeed,
the record shows that the mother had notice of the issues, was represented by
counsel, was present at the District Court hearings, introduced evidence and
presented witnesses, cross-examined the Department’s witnesses, and had an
impartial 	fact-finder 	who 	ensured 	that 	she 	understood 	the 	potential
consequences associated with the proceedings. 	See id. 	It is true that the
Probate Court and District Court reached different conclusions after hearing
some of the same evidence and from some of the same witnesses, but this does
not amount to a deprivation of being heard in a meaningful time and in a
meaningful manner. See In re M.P., 2015 ME 138, ¶ 38, 126 A.3d 718.
III. CONCLUSION
[¶25] 	We conclude that the procedures followed by the District Court
were adequate to protect the mother’s liberty interest while at the same time
safeguarding the State’s interest in protecting these children and promoting
stability and permanency without further delay. 	See id. ¶ 37. No due process
violation has been demonstrated on this record. Further, although not argued
by the mother, the District Court’s findings are supported by competent
evidence in the record that can rationally be understood to establish as more

18
likely than not that the children were in circumstances of jeopardy to their
health and welfare. See 22 M.R.S. § 4035(2); In re Nicholas S., 2016 ME 82, ¶ 9,
140 A.3d 1226. Accordingly, we affirm the court’s jeopardy determination.
[¶26] 	Finally, we note that, in spite of the significant benefits and
protections provided by the Home Court Act, 4 M.R.S. § 152(5-A), this case
highlights a problem that may recur because the District Court and Probate
Court continue to have jurisdiction over child-related litigation that may permit
nearly simultaneous proceedings in each forum concerning custody of the same
children. 	See 4 M.R.S. § 152(5-A); see, e.g., 18-A M.R.S. § 5-102 (granting the
Probate Court exclusive jurisdiction over guardianship proceedings, subject
only to the Home Court Act, 4 M.R.S. § 152(5-A)); 22 M.R.S. § 4031 (2017)
(giving 	the 	District 	Court 	exclusive 	jurisdiction 	over 	child 	protection
proceedings, except that the Probate Court and Superior Court have concurrent
jurisdiction to act on requests for preliminary child protection orders pursuant
to 22 M.R.S. § 4034 (2017)). 	Because the Department did not file a child
protection proceeding in the District Court until the Probate Court was about
to issue a final order in the probate case, even under the Home Court Act, the
District Court had no occasion to consolidate the proceedings until there had
already been a significant litigation event.

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[¶27] In the end, the jurisdictional overlap led to the situation in this case
where much of the same evidence regarding the custody and best interests of
the same children was heard in two different forums, applying similar but not
identical standards. 	Given the separately created jurisdictions of the two
courts, the differing parties, and the different standards at play as between a
guardianship and a child protection proceeding, the resulting determinations
of the District Court could lawfully vary substantially from those of the Probate
Court. 	The fact that the children were the subject of five different custody
orders between August and December 2017, and that the courts could reach
such 	substantially 	different 	results, 	creates 	an 	understandable 	sense 	of
frustration for the families involved. 	Until a unified system of child-related
litigation is established by the Legislature, these distressing 	events may
continue to occur.
The entry is:
Judgment affirmed.

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Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant mother
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Department of Health and
Human Services
Elyse Marye Apantaku, Esq., Schneider & Brewer, Waterville, for appellee
grandmother
Waterville District Court docket numbers PC-2017-41 and PC-2017-42
FOR CLERK REFERENCE ONLY