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In re Priscilla S.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1997 ME 16
Docket: HAN-96-135
Submitted on briefs October 10, 1996
Decided January 29, 1997
PANEL: WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
IN RE PRISCILLA S.
LIPEZ, J.
[¶1] Russell S., father of Priscilla S., appeals from the entry of a
judgment in the Superior Court (Hancock County, Mead, J.) affirming the
judgment of the District Court (Ellsworth, Staples, J.) that continued in
effect a child protection order finding that Priscilla was in jeopardy from
both her parents because Russell had sexually abused her. Russell contends
on appeal that the District Court erred by refusing to hear the testimony of
Priscilla before ruling on the protection order.
[¶2] 22 M.R.S.A. § 4007(2) (1992) states that:
<blockquote>The court may interview a child witness in chambers, with only
the guardian ad litem and counsel present, provided that the
statements made are a matter of record.</blockquote>
We review the decision of the trial court to forego an interview with Priscilla
in chambers for an abuse of discretion. In re Shane T., 544 A.2d 1295,
1297-8 (Me. 1988). Although Russell does not contend that 22 M.R.S.A.
§ 4007(2) by its terms limits the discretion of the trial court to forego an in
camera interview with the child, he argues that the trial court violated his
right to due process in this case by improperly balancing the interest of the
State in protecting the child with his interest in maintaining custody of
Priscilla.
[¶3] The court delayed its decision on the in camera interview until
all other witnesses were heard from, stating that "if, after all the evidence,
it appears to the Court that without the child's testimony there would be a
very manifest unfairness to the parents, then the Court . . . may at that time
require that the child be made available to testify." During three days of
hearings, the court heard extensive testimony from numerous witnesses:
Priscilla's mother, her grandparents, her aunt, her foster mother, her
therapist, the DHS Caseworker assigned to Priscilla, a psychologist who
interviewed Russell, and the State's medical expert. After hearing from
every witness except Russell, the Court stated:
I've heard enough testimony at this point to indicate to me that I do
not believe that the considerations of fairness to the parents require
that this child testify. And again, I've heard further from [Priscilla's
therapist] as to this child's fragile emotional stability at this point.
And I think it would be -- I think it would be -- to be perfectly frank, I
think it would be cruel to make the child testify. I really do. This case
has to be decided on the testimony that we have here today and
tomorrow, the total testimony.
The court's decision not to require Priscilla's testimony was well within its
discretion. See In re Shane T., 544 A.2d at 1297-8; 22 M.R.S.A. § 4007(2)
(1992). The ruling also complied with due process in fairly balancing the
interests of the State and Russell.
The entry is:
Judgment affirmed.
Attorney for appellant:
Mary G. Cline, Esq.
Michael Ross Law Offices
P O Box 1123
Ellsworth, ME 04605
Attorney for appellee:
Andrew Ketterer, Attorney General
John H. Hawkes, Asst. Atty. General
96 Harlow Street, Suite A
Bangor, ME 04402
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