In re Dorothy V., corrected 7-2-01
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME   97
Docket:	Pen-00-630
Submitted
on briefs:	June 12, 2001	
Decided:	June 28, 2001

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

IN RE DOROTHY V.

ALEXANDER, J.

	[¶1]  The adoptive parents of Dorothy V. appeal from a judgment of the
District Court (Newport, MacMichael, J.) finding that Dorothy was in
circumstances of jeopardy to her health and welfare.  See 22 M.R.S.A.
§§ 4035 & 4036 (1992 & Supp. 2000).  The parents contend that the court
erred in determining that (i) the corporal punishment inflicted upon
Dorothy exceeded reasonable parental discipline, and (ii) the evidence was
sufficient to support a finding that circumstances of jeopardy existed.  We
affirm the judgment.

I.  CASE HISTORY

	[¶2] The record supports the following facts:  Dorothy's parents
adopted Dorothy and her brother Patrick in January 1998.  Dorothy is twelve
years old.  The parents also have one biological son, Jason, who is twenty-
three years old.  Jason is more than six feet tall and weighs in excess of
three hundred pounds.
	[¶3]  In the early afternoon of June 22, 2000, Dorothy was preparing
for lunch when she hit the spray nozzle on the sink causing water to spray
on some clean dishes.  Jason then asked his mother if she wanted him to
spank Dorothy.  The mother replied: "if you have time . . . then, yuh, that
would be a good idea."  She instructed Jason to "beat" Dorothy thirty-five
times with a leather belt as a punishment for spraying the water.  The
court's findings reflect what followed:

After Jason had hit Dorothy approximately five (5) times with
the belt, Dorothy was told by her mother to change into lighter
clothes as the clothes she was wearing were providing too much
protection from the blows from the belt.  Dorothy left the room
to change her clothes and ran out of the house.

Dorothy's brother, Patrick, was sent to catch her.  A motorist
saw Dorothy on the ground, by the side of Lower Main Street in
Dexter, with Patrick on top of her.  Dorothy broke away from her
brother, ran in front of the motorist's car to stop the motorist,
jumped inside of the car, and locked the door.  Dorothy
appeared frightened to the point of being frantic.  She was
screaming, 'Get him away from me.'  Her brother came to the
door of the car and advised the motorist that Dorothy had to
return home to finish her beating.  The motorist took Dorothy to
the Dexter Police Department.  Dorothy had large welts on her
outer thigh which were linear in shape and which extended to
her buttocks.  Those welts were caused by the blows from the
belt.  She also had numerous scratches on her arms.  The welts
were visible for approximately three weeks after Dorothy was
struck with the belt.

Dorothy's mother . . . told an investigating officer that she had
asked her son, Jason, to administer the beating with the belt
because, if [the mother] had administered the beating, there
would have been nothing left of Dorothy.

Dorothy had been beaten with a belt as a form of punishment
several times in the past.  Other forms of punishment which
Dorothy's parents had administered to her included locking her
in her room and included requiring her to stand for lengthy
periods of time while holding books in her outstretched hands. 
When locked in her room, Dorothy had to call to a family
member to let her out if she had to go to the bathroom.  Once,
when no one answered her call, she went to the bathroom in the
cat's litter box in her room.  Another form of punishment was
having her bedroom be a room with no light, either natural or
artificial, and little heat.  Among other things for which Dorothy
had been punished were failing to write in her journal and not
doing well in school.

Dorothy was required by her parents to do a large number of
household chores on a regular basis.  Dorothy's parents have told
her they shouldn't have adopted her and they were sorry they
did.

These findings are fully supported by evidence in the record.

	[¶4]  Dorothy's caseworker testified that the parents were unwilling to
keep Dorothy in their home unless they could continue to discipline her
with a belt.  The caseworker also testified that the parents showed no
remorse for the beatings and were unwilling to explore alternative forms of
discipline.  The parents refused to enter into a safety plan whereby they
would agree not to inflict corporal punishment on Dorothy.
	[¶5]  As a result of the June 22 events, the Department of Human
Services (DHS) obtained a temporary child protection order and received
temporary custody of Dorothy.  The court conducted a hearing on the final
protection order on October 26, November 7, and November 21, after which
it issued an order finding, by a preponderance of the evidence, that Dorothy
was in circumstances of jeopardy to her health and welfare.  See 22 M.R.S.A.
§ 4036.  This appeal followed.

II.  DISCUSSION

A.	Parental Discipline Justification	

	[¶6]  Relying on State v. Wilder, 2000 ME 32, 748 A.2d 444, Dorothy's
parents contend that the punishments inflicted on Dorothy constitute
reasonable parental discipline.  Applying Wilder, the trial court ruled that
the parents' actions exceeded any justifiable discipline.
	[¶7] Wilder addressed criminal law justifications pursuant to 17-A
M.R.S.A. § 106(1) (1983).{1}  There, we recognized a parent's limited
privilege to apply a reasonable degree of force that he or she reasonably
believes necessary to prevent or punish a child's misconduct.  Wilder, 2000
ME 32, ¶ 44, 748 A.2d at 455.  In criminal prosecutions where the facts
generate the parental control justification defense, the State bears the
burden of proving beyond a reasonable doubt that either:  (1) the degree of
force used caused physical injury greater than transient pain and/or minor
temporary marks; or (2) the parent's belief that the degree of force used
was necessary to control the child's misconduct "was grossly deviant from
what a reasonable and prudent parent would believe necessary in the same
situation."  State v. York, 2001 ME 30, ¶ 15, 766 A.2d 570, 574-75 (citing
Wilder, 2000 ME 32, ¶ 45, 748 A.2d at 455).  In a criminal case, once the
facts place a justification defense in issue, the State "must disprove its
existence beyond a reasonable doubt."  Id. ¶ 12, 766 A.2d at 574 (quoting
17-A M.R.S.A. § 101(1) (1983 & Supp. 2000)).
	[¶8]  The present case, however, is not a criminal prosecution.  In this
case, the court needed only to find, as a matter of fact, that it was more
likely than not that Dorothy would incur serious harm, or be subject to a
threat of serious harm, if she was returned to the custody of her parents. 
22 M.R.S.A. § 4002(6) (1992).{2}  Unlike the State's burden in a criminal
prosecution, DHS was not required to produce evidence disproving the
parents' claimed parental control justification.  Jeopardy to the health and
welfare of the child was the proper focus of the court's inquiry.  Thus, the
criminal parental control justification defense does not apply to the
circumstances of this child protection case.
	[¶9]  Even if the criminal standard discussed in Wilder did apply to
this case, as suggested by the trial court, the result would not change. 
Dorothy had welts and bruises that lasted for three weeks.  She was beaten
with a belt by a very large man as a common form of punishment.  She
incurred additional extraordinary forms of punishment including isolation in
an unheated room and being forced to relieve herself in a litter box.  The
parents' consistent use of excessive discipline in this case is far more severe
than the three discrete instances of parental discipline analyzed in Wilder. 
See Wilder, 2000 ME 32, ¶¶ 47-49, 748 A.2d at 456 (discussing father
quieting his son by twice grabbing his shoulder and once grabbing his face
and telling him to "shut up").  
	[¶10]  The evidence in this case is sufficient to establish, as the trial
court found, that the harm Dorothy incurred involved something more than
transient pain or minor temporary marks, and that the degree of force used
was grossly deviant from what a reasonable parent would believe to be
necessary in a similar situation.  See, e.g., State v. Dodd, 503 A.2d 1302,
1303-04 (Me. 1986).  The trial court did not need to apply Wilder, and in so
doing found more than it was required to find.  A determination that
circumstances of jeopardy existed could have been supported even absent
any findings of physical abuse.  See, e.g., In re Ashley S., 2000 ME 212,
¶¶ 16-17, 762 A.2d 941, 947-48 (concluding that a showing of severe
neglect, absent affirmative abuse or assaultive behavior, is sufficient to
support a finding of aggravated circumstances).
 
B.	Sufficiency of the Evidence

	[¶11]  After the trial court has conducted a hearing on the petition for
final protection order, it must "make a finding, by a preponderance of the
evidence, whether the child is in circumstances of jeopardy to his health
and welfare."  22 M.R.S.A. § 4035(2).  Jeopardy is defined as "serious abuse
or neglect," evidenced by "serious harm," the "threat of serious harm," or
the "deprivation of adequate . . . shelter, supervision or care."  22 M.R.S.A.
§ 4002(6).
	[¶12]  When reviewing a challenge to the sufficiency of the evidence
on an appeal of a final child protection order, we will not disturb the District
Court's findings unless such findings are clearly erroneous.  In re Kaleb D.,
2001 ME 55, ¶ 13, 769 A.2d 179, 185 (citing In re Thomas B., 1998 ME
236, ¶ 2, 719 A.2d 529, 530).  We must uphold the findings, therefore, "if
any evidence in the record can rationally be read to establish," as more
likely than not, that Dorothy was in circumstances of jeopardy to her health
and welfare.  In re Chesley B., 499 A.2d 137, 139 (Me. 1985) (discussing the
appellate standard of review governing factual findings in the context of a
termination of parental rights action).
	[¶13]  In this case, the evidence is sufficient to support the court's
jeopardy finding.  As discussed above, Dorothy's parents employed
extraordinary disciplinary measures.  In addition, the parents have refused
to alter their disciplinary practices and have refused to agree to any form of
a safety plan that excepts corporal punishment.  Accordingly, the evidence
in the record is sufficient to support the court's finding that Dorothy would
be in circumstances of jeopardy to her health and welfare if she was
returned to the custody of her parents.{3}
	The entry is:
			Judgment affirmed.

Attoneys for appellants:

Ferdinand Slater, Esq.
HC 77 Box 190
Hancock, ME 04640

Schuyler Steele, Esq.
P O Drawer F
Newport, ME 04953

Attorneys for appellee:

G. Steven Rowe, Attorney General
Patrick Downey, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Guardian ad Litem:

Wayne Doane, Esq.
P O Box 60 
Exeter, ME 04435-0060

FOOTNOTES******************************** {1} . The statute provides, in pertinent part, that a "parent . . . responsible for the long term general care and welfare of a person is justified in using a reasonable degree of force against such person when and to the extent that he reasonably believes it necessary to prevent or punish such person's misconduct." {2} . Serious harm is defined, in one alternative, as a "serious mental or emotional injury or impairment . . . evidenced by serious mental, behavioral or personality disorder, including severe anxiety, depression or withdrawal, untoward aggressive behavior, seriously delayed development or similar serious dysfunctional behavior . . . ." 22 M.R.S.A. § 4002(10)(B) (1992). Under this definition, a court could find serious harm based on neglect or emotional abuse or deprivation, without any evidence of assault or other physical injuries to the child. {3} . The parents also contend that the court abused its discretion in denying three pre- trial motions they filed seeking Dorothy's out-of-state medical records. The court was satisfied that all medical records in DHS's possession had been supplied to the parents. The parents cite no evidence establishing that DHS had medical information that it neglected to release. Accordingly, despite the parents' assertions to the contrary, the court's denial of the motions was not an abuse of discretion. See In re Kayla S., 2001 ME 79, ¶ 9, --- A.2d ---. The final issue the parents raise on appeal, an alleged burden shift on the visitation issue, lacks merit. See 22 M.R.S.A. § 4041(1)(A)(1)(e) (Supp. 2000).