In re Brandi C
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1999 ME 68 
Docket:	Cum-98-561
Submitted
on Briefs:	April 15, 1999
Decided:	April 28, 1999

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

IN RE BRANDI C.

ALEXANDER, J.

	[¶1] The natural parents of Brandi C. appeal from a judgment entered in
the District Court (Portland, Goranites, J.) terminating their parental rights
pursuant to 22 M.R.S.A. § 4055(1)(B)(2)(b)(i) (1992).  The parents challenge the
court's finding that they acted in a "manner that is heinous and abhorrent to
society" pursuant to 22 M.R.S.A. § 4055(1-A)(A) (Supp. 1998).  Both parents
further argue that by denying that they caused the death of their younger
daughter, Jenna C., they rebutted the presumption applied by the court that
they "were unwilling or unable to protect the child from jeopardy and the
circumstances were unlikely to change within a time reasonably calculated to
meet the child's needs" pursuant to 22 M.R.S.A. § 4055(1-A) (Supp. 1998).  We
affirm the judgment.
	[¶2] The record indicates that DHS first took custody of Brandi on
August 23, 1996, following the discovery of the death of her younger sister,
Jenna.  At the time of her death, Jenna was four months twenty-three days
old.  She had been born prematurely and her parents had only brought her
home from the hospital on July 12, 1996. 
	[¶3] The Medical Examiner's Office concluded that Jenna's death resulted
from a fractured skull, and classified the death as a battered baby homicide. 
The Medical Examiner's Report further revealed that the child had several
injuries in addition to the fatal head injury.  These included a broken left wrist,
nine broken ribs, a broken leg, and bruises on her face and body. The evidence
established that a responsible caregiver would have noticed these injuries while
diapering or bathing the baby, because the injuries would have been painful
and swollen and the fractured left leg was shorter than the right leg. 
	[¶4] Both parents acknowledged that they had the sole caretaking
responsibility for Jenna.  Neither admitted to having caused her death.   Each
accused the other of having done so. 
	[¶5]  The evidence that DHS presented at trial established that both
parents have the potential to act with aggressive or violent behavior and either
parent could have caused the child's death.  The evaluation completed by the
Spurwink Clinic Child Abuse Program concluded that both parents presented
significant risks of harm to Brandi because no method exists to eliminate
concern about either parent without knowing which one is responsible for the
child's death.  According to the evaluation, even the parent not responsible for
the child's death shared the responsibility for not noticing her injuries and had
significant work to do to become a safe and protective parent.  Consequently,
the evaluation recommended that Brandi remain in foster care.  
	[¶6] The statutory presumption at issue reads, in relevant part:

1-A.  Rebuttable Presumption.  The court may presume that the
parent is unwilling or unable to protect the child from jeopardy
and these circumstances are unlikely to change within a time
which is reasonably calculated to meet the child's needs if:

	A.  The parent has acted toward a child in a manner that is
heinous or abhorrent to society or has failed to protect a child in a
manner that is heinous or abhorrent to society, without regard to
the intent of the parent;

22 M.R.S.A. § 4055(1-A)(A) (Supp. 1998).  
	[¶7]  Contrary to the parents' argument, the court did not err in finding
pursuant to section 4055(1-A)(A) that the parents acted "in a manner that is
heinous or abhorrent to society" when neither parent noticed that Jenna
suffered from multiple, severe injuries and one of them caused her death. 
Having made this finding, the court acted in accordance with section 4055(1-A)
by applying the rebuttable presumption of jeopardy against the parents.    
	[¶8] The application of a rebuttable presumption requires that the party
against whom it is directed prove "that the nonexistence of the presumed fact is
more probable than its existence."  M.R. Evid. 301.  If that party does not
present any evidence that the presumed fact is not true, then that fact must be
taken as true.  See In re Sarah T., 629 A.2d 53, 54 (Me. 1993) (presumption
that parents were unwilling or unable to protect children from jeopardy and
circumstances were unlikely to change within a reasonable time); Lamb v.
Town of New Sharon,606 A.2d 1042, 1046-1047 (Me. 1992) (presumption of
abandonment of a road); Estabrook v. Town of Bowdoin, 568 A.2d 1098, 1099
(Me. 1990) (presumption that town tax collector filed a true copy of a lien
certificate with the town treasurer); and Toomey v. City of Portland, 391 A.2d
325, 331-32 (Me. 1978) (presumption that injury arose out of and in the course
of employment).
	[¶9] Here, neither parent offered any evidence to rebut the jeopardy
presumption beyond denying responsibility for their younger daughter's death
and accusing the other of having caused her death.  Given the abundant
evidence offered by DHS that supports the court's application of the jeopardy
presumption and the lack of rebuttal evidence offered by the parents, the court
did not err in terminating parental rights upon concluding that the parents
were unwilling or unable to protect Brandi from jeopardy and that the
circumstances were unlikely to change within a time reasonably calculated to
meet her needs.  See  22 M.R.S.A. § 4055(1)(B)(2)(b)(i) (1992).
	The entry is:
			Judgment affirmed.
Attorneys for appellants:

Kevin T. Cole, Esq.
Lundgren & Cole
33 Fessenden Street
Portland, ME 04103-4817
(for the father)

Rubin G. Segal, Esq.
97A Exchange Street
Portland, ME 04101
(for the mother)

Attorneys for appellee:

Andrew Ketterer, Attorney General
Michael C. Kearney, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006

Guardian ad Litem:

Kevin Gordon, Esq.
Pierce Atwood
One Monument Square
Portland ME 04101