In re Ashley S.
on Briefs:	October 18, 2000
Decided:	December 14, 2000
SAUFLEY, J.
[¶1]  The father of Ashley S. appeals from the judgment of the District
Court (Lewiston, Gorman, J.) finding Ashley to be in circumstances of
jeopardy and awarding custody of Ashley to the Department of Human
Services.  22 M.R.S.A. §§ 4035, 4036 (1992 & Supp. 2000).  The father
does not challenge the court's jeopardy finding but contends that the court
erred when it found that "aggravated circumstances" existed pursuant to 22
M.R.S.A. §§ 4002(1-B)(A)(1), 4036(1)(G-2) (Supp. 2000) and that
reunification efforts would be inconsistent with Ashley's permanency plan,
22 M.R.S.A. § 4041(2)(A-1) (Supp. 2000).  We affirm the judgment.
I.  BACKGROUND
[¶2]  On December 13, 1999, the Department of Human Services filed
a petition for child protection order concerning two-year-old Ashley,
alleging that Ashley was in circumstances of jeopardy based on her parents'
severe neglect, domestic violence, and mental health problems.  The
Department also sought a preliminary protection order allowing Ashley's
immediate removal from her parents' home.  The court granted the
preliminary protection order, and the Department removed Ashley from her
parents' care on the same date.
[¶3]  The father waived his right to hearing on the preliminary
protection order, and two months later, the court held hearings over the
course of three days on the Department's petition for a protection order and
its request for an order allowing the Department not to undertake
reunification efforts.  At trial, the father disputed only the Department's
request to be relieved of its reunification obligations.  The District Court
found that Ashley was in circumstances of jeopardy, awarded custody of
Ashley to the Department, and relieved the Department of its obligation to
provide reunification services to the father.
[¶4]  The facts relevant to the father's appeal can be summarized as
follows.{1}  On December 13, 1999, at approximately 1:13 in the afternoon,
the Lewiston Police Department received a phone call from Ashley's mother
indicating that her two-month-old son, Eric Jr., had died in his sleep.  Upon
arriving at the apartment, the two responding detectives found the baby's
corpse and Ashley in a shockingly unsanitary and dangerous apartment.
[¶5]  According to the investigating detectives, the apartment was in
complete disarray, with dog excrement on the floor and garbage and trash
piled everywhere.  Although it was winter, the temperature inside the
apartment was unusually warm, later reported to be above eighty degrees,
and the odor of feces, urine, body odor, animals, and decaying food was
overwhelming.  Cockroaches were observed in the vicinity of Ashley's room
and little bugs were flying around the trash and crawling on the walls.  In
the bathroom, there were gnats, and the tub was filled with trash bags full of
clothing and other items.  Dirty dishes and rotting foods filled the kitchen
area.  In sum, the two investigating detectives, who had almost twenty years
of experience between them, described the apartment as one of the worst
they had seen in their law enforcement careers.
[¶6]  The DHS caseworker who was called to the scene observed that
the children's conditions reflected the shocking condition of the apartment
and that Ashley looked and smelled as if she had not been bathed in days, if
not weeks, and was dressed in clothes that were covered with feces.
I held her, and I immediately felt that her clothing was wet, so
much that it had soaked through the arm that I was holding her
by . . . .  [W]hen we went to the police department, and upon
takin[g] the clothes off of her, it was discovered that [the pants
had] feces completely coating the inside, front and back . . . .  It
was very overwhelming . . . .  [S]he had feces inside and outside
of her stocking, shoes.  It was all over-it was all over her body.
In her hair.
According to Ashley's guardian ad litem, Ashley had to be "taken for medical
treatment several times to try to determine why she was emitting a
noticeable body odor even weeks after her removal from the [father's]
home."  Photographs and a video tape recording confirmed the testimony of
the officers and the DHS caseworker.
[¶7]  Ashley's baby brother, Eric Jr., had been dead for approximately
eight to twelve hours when the officers arrived.  The previous evening,
Eric Jr. had been put to bed, still in his car seat, in a bassinet inside the
parents' bedroom.  He was dressed in sweatpants and sweatshirt, and
completely covered with a blanket.  According to the father, it was routine
for the parents to place the blanket over the baby's face to keep his pacifier
from falling out.
[¶8]  Although it was typical for Eric Jr. to wake up one or more times
during the night, he did not wake up that night.  The next morning, when
the mother left the apartment with Ashley's five-year-old stepsister, Katie,
to run some errands, she did not feed or change the baby.  From 7:30 a.m.
until the mother's return just after 1:00 p.m., the father took no action to
tend to Eric Jr. or Ashley's needs.  Therefore, from approximately 11:00 p.m.
until the next afternoon at 1:15 p.m., the two-month-old infant received no
food, no care, and no attention whatsoever from his father.  During those
hours, Eric Jr. laid fully covered beneath a blanket in a sweltering
apartment, right beside his father's bed, and died.{2}  During the same period
of time, Ashley was penned in a small room, covered in her own feces,
unattended, and prevented from contact with her parents by a fence in the
doorway of her room.
[¶9]  An evaluation of the father, completed after the baby's death,
disclosed that the father "seems to feel no responsibility for his son's death,
and did not seem to think it out of line to allow a small child like his
youngest daughter to languish for hours in her room behind a locked gate."
Ultimately, the court found that the father's "failure to even notice that [his]
child was dead is clear and convincing evidence of deprivation of
supervision."
[¶10]  In a detailed and thoughtful opinion, the court concluded that
the father had subjected Ashley to "chronic abuse or any other treatment
that is heinous or abhorrent to society" and that reunification efforts would
be inconsistent with her permanency plan.  In light of the evidence that the
father had the financial resources and the skills necessary to provide a clean
and safe environment for his children,{3} the court concluded that the father
willfully and grossly neglected the needs of his children.  In so concluding,
the court granted the Department's request not to commence reunification
efforts.  The father filed a timely appeal of the court's order.
[¶11]  The father contends that the court erred when it concluded
that his treatment of Ashley met the statutory definition of "aggravated
circumstances," as defined in 22 M.R.S.A. § 4002(1-B)(A)(1), and that
providing reunification services would be inconsistent with Ashley's
permanency plan.  22 M.R.S.A. § 4041(2)(A-1).{4}  Specifically, the father
argues that the court erred in interpreting the term "treatment that is
heinous or abhorrent to society" as applied to the facts before it.  22
M.R.S.A. § 4002(1-B)(A)(1).  We review de novo the court's interpretation of
the statute for errors of law, and review the court's application of the
statutory language to the facts at issue for abuse of discretion.  See In re
Heather C., 2000 ME 99, ¶ 26, 751 A.2d 448, 455; In re Christmas C., 1998
ME 258, ¶ 3, 721 A.2d 629, 630.
[¶12]  Ordinarily, when children are removed from their parents'
custody, the Department is required to develop a rehabilitation and
reunification plan designed to safely reunite the parents and children.  22
M.R.S.A. § 4041(1) (Supp. 2000).  Because families that enter the child
protective system often suffer from a lack of resources, we have recognized
the Department's role in this process as "important" in rehabilitating
families for reunification.  See In re Daniel C., 480 A.2d 766, 769 (Me.
1984).  Without the Department's efforts in this regard, families may not
receive the help they need to correct the circumstances that brought their
children into the State's custody in the first instance.  See 22 M.R.S.A.
§ 4003(3) (Supp. 2000).  This aspect of the Department's responsibilities is
even more crucial in light of the expedited timeframes recently enacted by
the Legislature.  22 M.R.S.A. §§ 4038(1), 4052(2-A)(A) (Supp. 2000).
[¶13]  The Legislature has recognized, however, that under certain
circumstances, children cannot be returned home safely within a reasonably
calculated time, even if reunification services are provided.  See 22 M.R.S.A.
§§ 4002(1-B), 4041(2)(A-1); In re Heather C., 2000 ME 99, ¶ 28, 751 A.2d
at 456.  Specifically, if the court finds the existence of an "aggravating
factor," determines that continuation of reunification efforts is inconsistent
with the permanency plan for the child, or if two placements of the child
with the same parent have failed, the Department may be relieved of its
reunification responsibilities.  22 M.R.S.A. § 4041(2)(A-1).
[¶14]  The Legislature adopted the "aggravating factors" language as
part of an Act designed to facilitate "expeditious actions in child protection
cases" in compliance with the federal Adoption and Safe Families Act.
Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115
(codified as amended at 42 U.S.C. 671(a)(15)(D) (2000)); L.D. 2246,
Summary (118th Legis. 1998); see also In re Heather C., 2000 ME 99, ¶ 27,
751 A.2d at 455-56.{5}  Section 4002 defines "aggravating factors," and
provides, in relevant part:
1-B. Aggravating factor.  "Aggravating factor" means any of the
following circumstances with regard to the parent.
A. The parent has subjected the child to aggravated
circumstances including, but not limited to, the following:
(1) Rape, gross sexual misconduct, gross sexual assault,
sexual abuse, incest, aggravated assault, kidnapping,
promotion of prostitution, abandonment, torture, chronic
abuse or any other treatment that is heinous or abhorrent
to society;  or
(2) Refusal for 6 months to comply with treatment
required in a reunification plan.
22 M.R.S.A. § 4002(1-B)(A) (emphasis added).{6}  If one of the "aggravating
factors" is found, the court has the discretion to order the Department not
to commence or to cease reunification efforts.  In re Christmas C., 1998 ME
258, ¶ 7, 721 A.2d at 631; 22 M.R.S.A. § 4036(1)(G-2).  Thus, the Act gives
courts the discretion to identify the most egregious cases, from early stages
of the child protective process, thereby allowing the Department to move
towards achieving children's permanency without providing fruitless
reunification services.  22 M.R.S.A. §§ 4002(1-B)(A), 4036(1)(G-2),
4041(2)(A-1).
[¶15]  The father contends that his actions cannot meet the statutory
definition of "aggravated circumstances," because the statutory language
encompasses only affirmative, criminal acts by a parent against a child.  See
22 M.R.S.A. § 4002(1-B)(A)(1).  Because he only grossly neglected his
daughter, and because he was not convicted of any crime, the father
contends that his actions, as a matter of law, cannot meet the statutory
definition of "treatment that is heinous or abhorrent to society."  See id.
[¶16]  Contrary to the father's assertions, the plain language of the
statute does not limit the statute's reach to only affirmative or criminal acts.
See Kimball v. Land Use Regulation Comm'n, 2000 ME 20, ¶ 18, 745 A.2d
387, 392.  The statute provides courts with discretion to find an
"aggravating factor" when "[t]he parent has subjected the child to . . .
treatment that is heinous or abhorrent to society."  22 M.R.S.A.
§ 4002(1-B)(A) (emphasis added).{7}  The word "subjected" has the plain
meaning to "subdue," "expose," or "cause to undergo or experience."
Webster's II New Riverside Dictionary 671 (Office Ed. 1996).  Parental
treatment of a child that merely exposes the child to "heinous or abhorrent"
circumstances may meet the statutory definition of an "aggravated
circumstance."  22 M.R.S.A. § 4002(1-B)(A)(1).  When a parent's treatment
of a child exposes that child to heinous or abhorrent circumstances, the
court may consider those circumstances, regardless of whether the parent
placed the child in harm's way through action or inaction; it is not necessary
that the parent be found to have somehow assaulted or otherwise
affirmatively abused the child.  It is necessary, however, that the parent's
behavior fall far outside the norm of ordinary, fallible parental behavior.{8}
[¶17]  Neglect, that is, the failure to undertake the necessary and
appropriate actions to keep children safe and well cared for, will rarely
constitute the heinous or abhorrent treatment envisioned by the Legislature.
There can be no question, however, that the severe neglect to which the
father subjected Ashley and her infant brother was abhorrent.  The children
were ignored for hours, if not for days, in a shockingly unsanitary
environment.  They sat in their own excrement, unattended, unfed, and
unwashed.  They received no human contact for hours on end.  Ashley was
penned into a secluded room, where she could be ignored completely by her
father.  Such gross disdain for the needs of the children falls so far outside
the behavior expected of ordinary fallible parents as to be undeniably
abhorrent.
[¶18]  Moreover, this was not the first time that Ashley had been
subjected to such abject neglect.  In 1998, when Ashley and Katie were
living with the mother and father in another apartment in Lewiston, the
Department responded to a referral indicating similar problems of serious
neglect as well as a violent and abusive environment.  The guardian ad litem
reported that the case was eventually closed after Skill Builders praised the
work that the parents had done.  As noted in the guardian's report,
however, the parents ceased making any efforts as soon as the Department
stopped monitoring their care of the girls.  A pattern emerged of parents
who cleaned their home temporarily for the authorities, while in reality,
they did nothing to improve the lives of their children.  The record also
confirms that whenever the parents moved, which they did frequently,{9} they
quickly turned their new living quarters into shambles.
[¶19]  The court recognized the importance of placing the
extraordinary neglect demonstrated on the day of the baby's death into
context before determining whether to grant the Department's request that
no further efforts at rehabilitation be made with the father.  Specifically, the
court found the following:
As horrifying as the conditions in that apartment were, they
must be seen in the context.  If [these] were first time parents
with no resources, and no training, the apartment would have
been no less appalling but, perhaps, not the basis for a cease
reunification order.  However, these parties had a full range of
opportunities offered to them during their previous involvement
with DHS.  In addition, although not wealthy by any stretch of
imagination, [the parents] had many more resources available to
them than many families in this area.
[¶20]  In sum, the evidence of unconscionable neglect by a parent who
has access to his own resources, has had the benefit of rehabilitation
resources, and has, nonetheless, chosen to wholly ignore his children's
needs, is fully sufficient to support the court's findings that the father's
treatment of Ashley was "heinous or abhorrent to society" and that the
Department should be relieved of its reunification responsibilities.
[¶21]  We also reject the father's argument that the Legislature only
intended criminal acts to be included as an "aggravated circumstance."  See
22 M.R.S.A. § 4003 (1992 & Supp. 2000).  The plain language of the statute
specifies that the list of enumerated acts is not an exclusive list.  22 M.R.S.A.
§ 4002(1-B)(A) (". . . including, but not limited to, the following . . .").  By
using the "but not limited to" language, the Legislature intended courts to
determine what constitutes "aggravated circumstances" depending on the
circumstances.  Id.  Although the statute references several criminal acts as
illustrative of "aggravated circumstances," it also references other
acts-abandonment, torture, and chronic abuse-which are not explicitly
crimes.  Id.  Its inclusion of the final phrase, "other treatment that is
heinous or abhorrent to society," evidences its inclusion of unprosecuted
conduct.  See id.{10}  The statute plainly anticipates that certain acts, even
when those acts do not result in a criminal prosecution, may meet the
definition of "aggravated circumstances."  See In re Heather C., 2000 ME
99, ¶¶ 25-26, 751 A.2d at 455.  The extraordinary neglect to which Ashley
and her infant brother were subjected falls within that definition.
[¶22]  Accordingly, applying the statutory definition to the facts at
hand, we conclude that the District Court did not err in its interpretation of
the statute nor exceed the bounds of its discretion when it found that the
father's treatment of Ashley amounted to "treatment that is heinous or
abhorrent to society."  See id.{11}  Moreover, contrary to the father's
assertions, there was sufficient competent evidence in the record to support
the District Court's factual findings.
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