## Facts

- Amberley D. (born 1985) lived with her mother, Joann R., and stepfather amid frequent moves and unstable housing across multiple states, including stays in friends’ homes, motels, and a shelter.
- By eighth grade, Amberley had attended approximately twenty-seven schools and stopped attending school after moving to New Hampshire.
- Amberley testified that Joann abused drugs and alcohol, supplied them to Amberley, stayed out drinking overnight, and engaged in sexual activity in Amberley’s presence.
- Amberley also testified she was sexually molested multiple times and that Joann did not respond adequately after being told.
- After multiple runaway episodes, Amberley traveled to Maine and began living with Diana and Richard B., her paternal grandparents/step-grandparents.
- Diana and Richard petitioned the Waldo County Probate Court for temporary co-guardianship; the court granted a six-month temporary guardianship after a hearing, finding Amberley’s home situation with Joann was intolerable and Joann was unable to care for her.
- After notice, Joann moved to dismiss based on lack of notice for the temporary order, lack of jurisdiction/venue, insufficient evidence, and constitutional objections; the Probate Court denied the motion and, after a full evidentiary hearing with Joann’s participation, appointed Diana and Richard as co-guardians.
- Joann appealed to the Maine Supreme Judicial Court.

## Issues

1. Whether appointing temporary guardians without prior notice violated due process under Maine’s temporary guardianship statute.
2. Whether the Maine Probate Court lacked jurisdiction or proper venue given the child’s multi-state history and other proceedings.
3. Whether clear and convincing evidence supported a guardianship over the mother’s objection based on an “intolerable” living situation and inability to provide adequate care.
4. Whether the guardianship statute, as applied, unconstitutionally infringed the mother’s fundamental parental rights.

## Decision

- The Maine Supreme Judicial Court affirmed the Probate Court’s appointment of Diana and Richard B. as co-guardians.
- Any lack of pre-appointment notice for the temporary guardianship did not amount to a due process violation where the relief was emergency in nature and the mother later received notice and a meaningful opportunity to be heard before any continuing deprivation.
- The Probate Court properly exercised jurisdiction and venue because the child was present in Maine and in need of protection, and other out-of-state proceedings did not bar Maine from addressing the child’s immediate welfare.
- Clear and convincing evidence supported the finding that Amberley’s living situation with her mother was intolerable and that the mother was unable to provide adequate care.
- The statute was constitutional as applied because it required a heightened evidentiary standard and was implemented with adequate procedural safeguards, including a full hearing.

## Legal Principles

- A probate court may impose a non-parent guardianship over a parent’s objection only upon clear and convincing evidence that the parent is unfit or that the child’s circumstances with the parent are intolerable such that guardianship is necessary for the child’s welfare.
- Emergency temporary guardianship may be ordered without advance notice in appropriate circumstances, but due process requires a timely, meaningful opportunity for the parent to be heard before any continuing or long-term deprivation of parental custody.
- A child’s physical presence in the state, coupled with a need for protection, can support probate court jurisdiction to address immediate welfare concerns despite multi-state contacts or other pending proceedings.
- Application of a guardianship statute to limit parental custody is constitutionally permissible when supported by heightened proof and procedures sufficient to protect the parent’s fundamental rights.

## Conclusion

The court upheld the co-guardianship because the record showed, by clear and convincing evidence, that the mother could not provide adequate care and the child’s home situation was intolerable, and because the mother received constitutionally adequate process through notice and a full evidentiary hearing following the emergency temporary order.


In re Amberley D., 775 A.2d 1158 (Me. 2001)