Adoption of Matthew R.(corrected 5-19-00)

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 86
Docket:	Wal-99-749
Argued:	May 1, 2000
Decided:	May 16, 2000		

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



			

IN RE ADOPTION OF MATTHEW R.

CALKINS, J.

	[¶1]  The Department of Human Services (DHS) appeals from the
order of the Waldo County Probate Court (Mallioux, J.) finding that DHS
unreasonably withheld its consent to the adoption of Matthew R. by Earl and
Bonnie L.  See 18-A M.R.S.A. § 9-302(a)(3) (1998).  Because the order is
interlocutory and no exceptions to the final judgment rule apply, we dismiss
the appeal.

I.  FACTS

	[¶2]  Matthew was born prematurely on August 6, 1998, and spent his
first three months in the hospital.  On October 28, 1998, the District Court
(Belfast, Anderson, J.) entered an order of preliminary child protection
granting custody of Matthew to DHS.  Matthew was placed in the therapeutic
foster home of Karen F.  On November 4, 1998, Matthew's mother, Christina
R., consented to a preliminary child protection order, and Matthew
remained in the custody of DHS.  
	[¶3]  On December 8, 1998, Christina's relatives, Earl and Bonnie L.,
moved to intervene in the District Court proceedings.{1}  On January 19,
1999, Earl and Bonnie filed a petition in the Waldo County Probate Court to
adopt Matthew.{2}  Christina consented to the petition.  The District Court
(Vafiades, J.) issued a final child protection order in August 1999, granting
custody of Matthew to DHS and relieving DHS of reunification efforts with
Christina.   Matthew's foster parent, Karen, filed an
adoption petition in the Waldo County Probate Court, and the court
consolidated the two competing adoption petitions.  DHS refused to consent
to the adoption petition filed by Earl and Bonnie, and on October 21, 1999,
the Probate Court held a hearing to determine whether DHS unreasonably
withheld its consent.{3}

II.  FINAL JUDGMENT RULE

	[¶4] "Generally, only final judgments are ripe for appellate review."
Musson v. Godley, 1999 ME 193, ¶ 5, 742 A.2d 479, 481.  "The final
judgment rule is a prudential rule, designed to avoid piecemeal litigation
and to preserve our limited judicial resources."  Moore v. Central Maine
Power Co., 673 A.2d 699, 701 (Me. 1996).  It is a judicially-created rule to
which we have long adhered.  See State v. Maine State Employees Ass'n, 482
A.2d 461, 463-64 (Me. 1984);  Fidelity & Cas. Co. v. Bodwell Granite Co.,
102 Me. 148, 152, 66 A. 314, 316 (1906).
	[¶5]  The Probate Court's finding that DHS unreasonably withheld
consent to Matthew's adoption is not a final judgment.

An appeal is final, as opposed to interlocutory, if (1) the trial
court's action fully decides and disposes of the whole matter
leaving nothing further for the consideration and judgment of
the trial court; and (2) no subsequent proceedings in the case
will render the appellate court's decision immaterial.

In re Erica B., 520 A.2d 342, 343-44 (Me. 1987).   In this case there has
been no final decree of adoption entered by the Probate Court.  See 18-A
M.R.S.A. § 9-308 (1998).  Regardless of the outcome of this appeal, there
will be further proceedings in the Probate Court in which DHS, as the
custodian of Matthew, will be a participant.  If the Probate Court grants
Karen's adoption petition, DHS will have no reason to appeal from the order
finding its withholding of consent to the relatives' adoption petition
unreasonable.  The final judgment rule exists to prevent needless appeals
which may be rendered meaningless by further proceedings in the trial
court.  See Erica B., 520 A.2d at 343.	  
	[¶6]  DHS argues that the Probate Code provides an exception to the
final judgment rule by allowing an appeal from "any order" of the Probate
Court in an adoption proceeding.  The Probate Code provides:

Appeals from all final judgments, orders and decrees of the
court shall lie to the Supreme Judicial Court, sitting as the law
court, as in other civil actions.

18-A M.R.S.A. § 1-308 (1997).  The adoption article of the Probate Code
further states:

(a) Any party may appeal from any order entered under this
article to the Supreme Judicial Court sitting as the Law Court, as
in other civil actions, . . . .

18-A M.R.S.A. § 9-309 (1998).

	[¶7]  We conclude that these statutes do not create an exception to
the final judgment rule.  Instead, the Legislature demonstrated its intention
that the final judgment rule be followed in probate matters, including
adoptions, by its utilization of the phrase "as in other civil actions" in the
appeal statutes.  In other civil actions, appeals are authorized only from final
judgments unless one of the exceptions to the final judgment rule applies. 
See Department of Human Servs. v. Lowatchie, 569 A.2d 197, 199 (Me.
1990).{4} 
	[¶8] This case does not fit within one of the "few, narrow and well-
defined" exceptions to the final judgment rule.  Maine State Employees
Ass'n, 482 A.2d at 464.  The most common of these exceptions are the
"death knell" exception, the "collateral order" exception, and the "judicial
economy" exception.  See id.  The inapplicability of the death knell and
collateral order exceptions is obvious.  Likewise, the judicial economy
exception does not assist DHS.  This exception "is reserved for those rare
cases in which appellate review of a nonfinal order can establish a final or
practically final, disposition of the entire litigation."  Id. at 465.  Because the
Probate Court must hold further proceedings, our decision cannot create a
final, or near final, disposition of this case.  Judicial economy is hampered,
rather then aided by this appeal, which has prolonged the time that
Matthew must wait for adoption.{5}

	The entry is:
Appeal dismissed.  Remanded to the Waldo 
County Probate Court.

Attorneys for appellant:

Andrew Ketterer, Attorney General
Matthew Pollack, Asst. Attorney General (orally)
Marina E. Thibeau, Asst. Attorney General
Charistopher C. Leighton, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Attorneys for appellees:	

Clark D. Kimball, Esq., (orally)	
Carver, Kimball & Baiungo	
10 Church Street	
Belfast, ME 04915
(for Earl and Bonnie L.)

Jay H. Otis, Esq.	
P O Box 907
Brewer, ME 04412-0907
(for Karen F.)

Guardian ad Litem:

Clare Godholm, Esq.
P O Box 1182
Belfast, ME 04915-1182

FOOTNOTES******************************** {1} . The motion to intervene was withdrawn, and a later motion to intervene was denied by the District Court (Vafiades, J.). {2} . At about the same time, Earl and Bonnie obtained guardianship of Christina's seven-year-old son who was also the subject of a child protection proceeding. The older son began living with Earl and Bonnie in January 1999, and he has since been adopted by them. {3} . The relevant subsection of the Probate Code states that before an adoption is granted, written consent must be given by: (3) The person or agency having legal custody or guardianship of the child or to whom the child has been surrendered and released, except that the person's or agency's lack of consent, if adjudged unreasonable by a judge of probate, may be overruled by the judge. In order for the judge to find that the person or agency acted unreasonably in withholding consent, the petitioner must prove, by a preponderance of the evidence, that the person or agency acted unreasonably. The court may hold a pretrial conference to determine who will proceed. The court may determine that even though the burden of proof is on the petitioner, the person or agency should proceed if the person or agency has important facts necessary to the petitioner in presenting the petitioner's case. The judge shall consider the following: (i) Whether the person or agency determined the needs and interests of the child; (ii) Whether the person or agency determined the ability of the petitioner and other prospective families to meet the child's needs; (iii) Whether the person or agency made the decision consistent with the facts; (iv) Whether the harm of removing the child from the child's current placement outweighs any inadequacies of that placement; and (v) All other factors that have a bearing on a determination of the reasonableness of the person's or agency's decision in withholding consent[.] 18-A M.R.S.A. § 9-302(a)(3) (1998). {4} . The general statute authorizing appeals in civil cases contains no language limiting appeals to final judgments. It speaks of "any judgment, ruling or order." 14 M.R.S.A. § 1851 (1980). It has not been interpreted as eliminating the judge-made final judgment requirement. {5} . We note that this interlocutory appeal may have been prevented if the Probate Court had not bifurcated the hearing on the consent issue from the hearing on the petitions themselves.