In re M.B.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 46
Docket: And-12-330
Argued: April 9, 2013
Decided: May 9, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.

IN RE M.B. et al.

JABAR, J.

[¶1] The mother of M.B. and G.W. and the father of M.B. appeal from a

judgment of the District Court (Lewiston, Beliveau, J.) terminating their parental

rights. The mother and father argue that the court violated the Due Process Clause

of the Fourteenth Amendment by (1) issuing an order terminating their parental

rights before receiving their post-trial briefs and (2) admitting in evidence

statements that M.B. made to the court without counsel for the parents being

present. Additionally, the parents argue that the evidence presented at trial was

insufficient to prove by clear and convincing evidence that they are unfit to parent

and that termination of parental rights is in the best interests of the children. We

affirm the trial court’s judgment.

I. BACKGROUND

[¶2] M.B. was born on February 22, 2004. The mother has a second child,

G.W., who was born on August 8, 2008. At the time of M.B.’s birth, the mother
2

and father lived together in Florida, but they separated two months later. M.B.

remained in Orlando with the mother, and the father moved to Miami but

maintained contact and had visits with M.B.

[¶3] In 2008, when the mother dropped M.B. off at the father’s home for an

overnight visit, the father noticed bruising on the child’s arms and legs. Concerned

that the bruises were not the result of an accident or play, the father called the

mother to determine the cause, but she refused to provide an explanation. Instead,

hours later, at 3:00 a.m., the mother arrived at the father’s home and frantically

demanded that the father hand over M.B., which he did.

[¶4] Despite concerns about M.B.’s safety, the father did not contact Florida

authorities or attempt to obtain custody. He did maintain contact with the mother

and occasionally spoke with M.B., but the father did not see his child after this

early morning incident, and, for the first fifteen months of this case, he did not

have any contact with the child, believing the mother’s untruthful assertions that

the child was around but too busy to talk.1 Soon after G.W. was born, the mother

moved with the children to Massachusetts.

[¶5] On October 2, 2009, the Maine Department of Health and Human

Services received information indicating that the mother had fled to Maine because

1
When asked about whether he thought M.B. was in danger while with the mother, the father stated,
“He had the bruises, and I was mad, but [I did] not [think] that she was going to kill him or anything.”
 3

the Massachusetts Department of Children and Families was attempting to take

custody of M.B. and G.W. The Department was concerned because the mother

had been substantiated as a sex offender in Massachusetts for allegedly inserting a

toothbrush into the vagina of her boyfriend’s two-year-old daughter, had untreated

substance abuse and mental health issues, and exposed her children to domestic

violence. A caseworker with the Department met with M.B. at school, where he

indicated that he was hungry and that he had recently come to Maine with his

sister, his mother, and his mother’s boyfriend. The caseworker also met with the

mother separately. She denied the allegations of sexual abuse relayed from

Massachusetts and indicated that she had forgotten to feed M.B. that day. While at

the meeting, the mother changed G.W.’s diaper and the caseworker noticed blood

in the child’s stool. Later that same day, the children were taken into the

Department’s custody and placed with a foster family. Soon thereafter, G.W. was

examined by Dr. Lawrence Ricci of the Spurwink Child Abuse Program, who

determined that she had suffered “anal injuries consistent with blunt penetrating

trauma.”

[¶6] On October 15, 2009, the mother waived her right to a summary

preliminary hearing; the court reaffirmed the children’s custody with the

Department and recognized that service was incomplete as to the father. The

mother indicated that she believed the father was in Florida but denied knowing
4

how to contact him; she denied knowing the identity of G.W.’s father, claiming

that G.W. was the product of rape.

[¶7] The court entered an agreed-upon jeopardy order as to the mother in

February 2010, requiring her to engage in a variety of services approved by the

Department including a psychological evaluation, mental health counseling, and

random drug and alcohol testing. The children were ordered to remain in foster

care, and the father’s whereabouts were still unknown.

[¶8] Judicial review conferences were held on April 29, 2010, and

July 15, 2010, at which the court found that jeopardy as to the mother was

unresolved because she had been living in Massachusetts2 and the extent of her

participation in Department-approved services was unknown.

[¶9] At the time of the third judicial review conference, held on

October 26, 2010, the mother had returned to Maine and was participating in some

substance abuse and mental health counseling, but she continued to test positive for

marijuana use. The court found that the mother had made little progress regarding

her chaotic lifestyle or the issues surrounding sexual and physical abuse to her

children. By that date, more than a year after M.B. was placed in the State’s

2
In November 2009, the mother was convicted in Massachusetts of possession of crack cocaine with
intent to distribute. At the time of the July 15, 2010, judicial review conference she was still on probation
for that conviction.
 5

custody, the State had not yet served any of the originating documents on the

father.

[¶10] On February 3, 2011, a Department caseworker was contacted by the

father. According to the father, the mother had only recently informed him that

M.B. was in the Department’s custody. On February 11, 2011, the Department

filed a petition to terminate the parental rights of both the mother and the father.

[¶11] In June 2011, the Department dismissed the petition to terminate the

father’s parental rights and the court (Stanfill, J.) entered an agreed-upon jeopardy

order as to him; a hearing on the petition to terminate the mother’s parental rights

was continued. In August 2011, after a judicial review conference, the parties

developed a reunification plan for M.B. and the father, which indicated that the

father, who at the time still lived in Florida, would begin contacting M.B., then

seven years old, via email. At the conference, the mother refused to sign a

reunification plan and refused to submit to drug testing.

[¶12] Pursuant to the reunification plan, contact between M.B. and the

father began through email. Even this limited contact, however, caused extreme

anxiety in M.B. and stress to the father. In the emails, M.B. would tell his father

that he hated him and that he did not want to talk to him. M.B. refused gifts that

his father bought him and drew pictures depicting his father being hurt; the father

suffered a medical event—his girlfriend characterized it as a heart attack—that he
6

claimed was related to the stress of interacting with M.B. As a result of the

father’s medical condition, email contact between the father and M.B. ceased from

November 2011 to February 2012.

[¶13] In December of 2011, over M.B.’s protests, the Department arranged

two phone calls between M.B. and the father.3 Despite M.B.’s reluctance, the first

phone call was conducted without incident, and the two talked for about five

minutes. When the foster mother took M.B. to the Department’s office for a

second phone call, however, “he was laughing insatiably [sic], and crying,” and

eventually curled up on his knees on the floor. After the second phone call, M.B.

began screaming in the middle of the night and having hallucinations. The phone

calls then ceased.

[¶14] Meanwhile, the Department was attempting to convince the father to

move to Maine to help facilitate reunification. Instead, the father moved to

New York to live with his girlfriend and the two other children he has with her.

The father did begin to meet with George Repp, a reunification therapist located in

Maine, but was unable to keep his once-a-month appointments, and Repp

eventually discharged him. Although Repp suggested that the father attempt to

3
With regard to the phone calls, the foster mother testified that M.B. “was crying. He was very
adamant, stood his ground, and just—he did not want to do it.”
 7

receive reunification services from a therapist in New York, neither the father nor

the Department ever pursued that option.

[¶15] On February 6, 2012, the Department filed a petition to terminate the

parental rights of the mother and the father. With respect to the mother, the

Department alleged that she missed meetings and scheduled visitations, failed to

consistently engage in substance abuse and mental health treatment, and failed to

understand why her children had been removed from her care. The Department

alleged that contact with the father caused M.B. extreme anxiety and that the father

refused to put M.B.’s needs for permanency above his own. The court held a

hearing on the petition on May 29 to 31, 2012.

[¶16] At the termination hearing, Julia Cabral, a licensed clinical social

worker who worked with M.B., testified that the increased contact between M.B.

and the father caused M.B. to feel that “his safety was threatened,” and indicated

that on two instances, when faced with the prospect of contacting his father, M.B.

would laugh, then cry, and curl up in a ball on the floor of her office. She also

indicated that M.B. has made it clear that he considers his foster family his real

family, he is extremely fearful of being taken away from that family, and, in her

clinical opinion, removal from the foster family’s home would result in “a

significant disruption of his developmental progress.” She stated that M.B. needed

finality in a short period of time.
8

[¶17] Mark Rains, a licensed psychologist who conducted an evaluation of

M.B., testified that M.B. demonstrated signs of posttraumatic stress disorder and

that he made little progress on this front in therapy because of the uncertainty

associated with his future living situation. Rains also testified that it “would be

probably many months to a year or two” before M.B. and the father could establish

a meaningful relationship, and, in his opinion, M.B. could not wait that long to

have his permanency needs met. Based on the testimony of Cabral and Rains, the

court found that “it would likely take another [six] months to a year to begin

reunifying [M.B.] with [f]ather. Such a timeframe is not reasonably calculated to

meet the [c]hild’s needs; [M.B.] cannot wait any longer.”

[¶18] Over the father’s objection, the guardian ad litem testified that he and

M.B. met privately with the court in chambers, without the attorneys for the parties

present, and in that meeting M.B. indicated that he would like to live with the

foster family. In response to the father’s objection, the court indicated that it

thought the parties agreed to the meeting and that regardless, there was other

evidence in the record indicating the child’s preference to live with the foster

family, including the testimony of the child’s therapist. According to the foster

mother and M.B.’s therapist, M.B. considers the foster family his “real family,”

and sees a relationship with his mother and father as a threat to the security he has
 9

experienced with the foster family. The foster parents testified that they would like

to adopt both M.B. and G.W.

[¶19] At the conclusion of the hearing, the court indicated that in lieu of

closing arguments it would give the parties until June 8, 2012, to file post-trial

briefs. On June 6, 2012, the court entered a judgment terminating the parental

rights of the mother as to M.B. and G.W., and terminating the parental rights of the

father as to M.B. The court concluded that there was clear and convincing

evidence that both parents (1) were unwilling or unable to protect the children from

jeopardy in a time reasonably calculated to meet their needs, (2) were unwilling or

unable to take responsibility for the children within a time reasonably calculated to

meet their needs, and (3) had failed to make good faith efforts to reunify.

[¶20] The court found that the Department made “diligent and reasonable

efforts to rehabilitate and reunify [the] family,” but that the mother failed to

comply with the reunification plan and continued to pose a threat to the children.

Similarly, the court found that the “[f]ather’s complete lack of concern for the well

being of his child and his failure to take action” between the time the mother took

M.B. from Florida and the time he entered the case was “unacceptable” and

“exceptionally unjustifiable.” As evidence of the father’s lack of concern, the

court noted that despite noticing bruising and being concerned for M.B.’s

well-being the last time he saw the child, “for a period of at least [fifteen] months,
10

but probably longer . . . [the f]ather simply took [the m]other’s word that his son

was busy. He neither saw nor spoke to his child.” Further, based on progress the

children made in foster care, the court found that termination of parental rights as

to both parents was in the best interests of the children.

[¶21] With regard to the mother, the court’s findings of jeopardy and failure

to take responsibility stemmed from her substance abuse, unstable lifestyle, and

failure to address the issues that sparked the Department’s initial involvement; the

court found that her efforts to reunify were “sporadic and minimal.”

[¶22] Similarly, with regard to the father, the court found that he failed “to

maintain a meaningful contact with the [c]hild pursuant to the [r]eunification

[p]lan, and failed to seek and utilize appropriate services to assist in rehabilitating

and reunifying with the [c]hild.” The court found that when the father moved from

Florida to New York, the Department “made efforts to overcome” the physical

distance between M.B. and the father, but the “[f]ather did not put in his share of

the effort.” The court also found that “interaction with [f]ather still poses a threat

to [M.B.’s] safety and security.”

[¶23] The court found that although the father was a competent parent for

his other two sons, “the ability of a parent to take responsibility for a child is not

based on the ability to take care of any child, but of the child who is the subject of

the proceedings.” Therefore, despite the father’s willingness to care for M.B.,
 11

“given [M.B.]’s negative feelings toward [the f]ather and the complete lack of

relationship between the two, [the f]ather is unable to provide [M.B.] with the care

he needs.” The court concluded that “any longer of a wait is not a reasonable time

to meet [M.B.’s] needs” and “[t]he Permanency Plan as to both [c]hildren is

adoption.” Both parents timely filed notices of appeal. See 22 M.R.S. § 4006

(2012); M.R. App. P. 2(b)(3).

II. DISCUSSION

[¶24] Both parents argue (A) that the court violated their rights pursuant to

the Due Process Clause of the Fourteenth Amendment of the United States

Constitution and article 1, section 6-A of the Maine Constitution by (1) issuing a

decision prior to receiving their post-trial briefs and (2) interviewing M.B. off the

record and without the parents’ attorneys being present in violation of 22 M.R.S.

§ 4007(2) (2012), and (B) that the court erred in terminating their parental rights.

A. Due Process

[¶25] “[T]he liberty protected by the Due Process Clause includes the right

of parents to establish a home and bring up children . . . .” Troxel v. Granville,

530 U.S. 57, 65 (2000) (plurality opinion) (quotation marks omitted). Thus,

“[w]hen the state seeks to terminate the relationship between a parent and child, it

must do so by fundamentally fair procedures that meet the requisites of due

process.” In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222. “The
12

fundamental requirement of due process is an opportunity to be heard upon such

notice and proceedings as are adequate to safeguard the right which the particular

pertinent constitutional provision purports to protect.” Id. (quotation marks

omitted).

1. Closing Argument

[¶26] The parents argue that the court violated due process by issuing the

judgment before receiving the post-trial briefs for two reasons: first, although

M.R. Civ. P. 51(a) gives trial courts discretion to shorten the time for argument, it

does not allow the court to decide not to receive argument at all; and second,

because the court in this case specifically allowed time for argument, it was error

to issue the decision prior to the deadline for filing post-trial briefs. We review

questions of law, including “issues of statutory and constitutional interpretation[,]”

de novo. In re D.P., 2013 ME 40, ¶ 6, --- A.3d --- (quotation marks omitted). We

also review de novo “a court’s interpretation of the Maine Rules of Civil

Procedure.” Town of Poland v. T & M Mortgage Solutions, Inc., 2010 ME 2, ¶ 6,

987 A.2d 524.

[¶27] Maine Rule of Civil Procedure 51(a) provides that “[c]ounsel for each

party shall be allowed such time for argument as the court shall order.” We have

stated that rule 51(a) provides “that a court may in its discretion hear argument, but

this provision does not provide parties the opportunity to argue as a matter of
 13

right.” Coppersmith v. Coppersmith, 2001 ME 165, ¶ 7, 786 A.2d 602. Arguing

that this interpretation is contrary to longstanding precedent and the plain language

of rule 51(a), the parents urge us to clarify Coppersmith to mean that closing

arguments are mandatory. We decline to do so.

[¶28] Here, the court indicated that although it had received all of the

information that it needed to render a decision, it would allow time for the parties

to file post-trial briefs. Instead, the court issued its decision two days before the

deadline it set for receiving those briefs. Still, the record reveals that rather than

asking the court, in light of closing arguments, to alter or amend the judgment

pursuant to M.R. Civ P. 59(e), or to reconsider the judgment pursuant to

M.R. Civ. P. 60(b), the parents appealed directly to this Court. See Jim Mitchell &

Jed Davis, P.A. v. Lavigne, 2001 ME 67, ¶ 5, 770 A.2d 109 (“It would be

inconsistent with the doctrines of deferential review or judicial economy, and any

of the exceptions to the final judgment rule, to permit a direct appeal . . . to proceed

without the objecting party first having utilized the available opportunity to secure

prompt consideration by the trial court of any objections they may raise.”).

[¶29] Although the parents had avenues through which they could have

sought immediate redress from the trial court, they chose to proceed directly to this

Court, and they did so without alleging how the purported error affected the

underlying judgment. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463; see also
14

Greaton v. Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913. The parents failed to avail

themselves of mechanisms through which the trial court could have provided

relief, see M.R. Civ. P. 59(e), 60(b), failed to demonstrate how the outcome would

have been different had the court considered their briefs, see In re A.M.,

2012 ME 118, ¶ 25, 55 A.3d 463, and they are not entitled to closing argument “as

a matter of right,” Coppersmith, 2001 ME 165, ¶ 7, 786 A.2d 602. They were

provided “notice of the issues, an opportunity to be heard, the right to introduce

evidence and present witnesses, the right to respond to claims and evidence, and an

impartial fact[-]finder.” In re Kristy Y., 2000 ME 98, ¶ 7, 752 A.2d 166 (footnotes

omitted); see In re A.M., 2012 ME 118, ¶ 27, 55 A.3d 463. Therefore, we

conclude that the court did not violate the parents’ due process rights by entering

the judgment terminating their parental rights prior to receiving their post-trial

briefs. See Mathews v. Eldridge, 424 U.S. 319, 335 (1975) (providing the three

factors that must be evaluated to determine whether a state has violated an

individual’s right to due process).

2. Child Interview

[¶30] The parents argue that the court violated their rights to due process by

admitting evidence of statements M.B. made to the court in chambers without the

attorneys for the parents present. The State argues that the court had discretion,

pursuant to 22 M.R.S. § 4007(2), to take the testimony off the record, and,
 15

alternatively, that the parents fail to point out how any purported error prejudiced

them.

[¶31] Although the record indicates that there was some agreement between

the parties that M.B. would be interviewed by the court, the nature and extent of

that agreement is unclear. The court indicated that it was under the impression that

the parents consented to the interview, while the parents maintain that they were

unaware that the interview was going to take place with the court and GAL alone.

The court took statements from M.B. with only the GAL and the judge present;

that interview is not part of the record. Over the father’s objection, the court

allowed the GAL to testify as to the child’s preference for staying with the foster

family, which the GAL indicated that he learned during the child’s interview with

the judge. In response to the father’s objection, the court stated, “I’ll give it

whatever weight—I mean, I speak to a lot of kids, and I give what they say certain

weight and not much weight sometimes. . . . I have enough evidence . . . that

indicates what his preference is at this point.”

[¶32] We note from the outset that the best practice is to follow the strict

confines of 22 M.R.S. § 4007(2), regardless of the existence of any contrary

agreement by the parties. Pursuant to section 4007(2),

[t]he 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. The court may admit and consider oral
16

or written evidence of out-of-court statements made by a child, and
may rely on that evidence to the extent of its probative value.

We have held that the introduction of evidence pursuant to 22 M.R.S. § 4007(2), as

applied in In re Robin T., 651 A.2d 337, 338 (Me. 1994) and In re Charles

Jason R., 572 A.2d 1080, 1081-82 (Me. 1990), does not violate due process. We

have not, however, had an occasion to decide whether, in admitting testimony

obtained in a manner not prescribed in section 4007(2), the court violates the

statute or due process. “Questions of law, including statutory interpretation, are

reviewed de novo.” In re Alivia B., 2010 ME 112, ¶ 7, 8 A.3d 625.

[¶33] The plain language of 22 M.R.S. § 4007(2) indicates two alternatives

pursuant to which a court may admit out-of-court statements of children in

protection proceedings: (i) by interviewing the child with the GAL and counsel

present, then making the statements made during the interview part of the record;

or (ii) by admitting oral or written out-of-court statements. Here, the court

interviewed the child without counsel present and did not make that interview part

of the record. Because the statute makes clear that if the court interviews the child,

the GAL and counsel shall be present and the interview shall be made a part of the

record, taking the statements without counsel and off the record likely violates

22 M.R.S. § 4007(2).
 17

[¶34] Nevertheless, we need not decide whether the violation of 22 M.R.S.

§ 4007(2) violated the parents’ due process rights, because the parents fail to

demonstrate how they were prejudiced by the error, and it is highly probable that

admission of the evidence did not affect the judgment. See In re A.M.,

2012 ME 118, ¶ 25, 55 A.3d 463 (“The mother’s failure to explain on appeal how

her absence or the officer’s testimony [concerning her absence] could have

affected the trial or its outcome is relevant in determining on appeal whether she

has been deprived of due process.”); Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913 (“In

appealing a judgment, it is not enough to challenge procedural errors allegedly

made by the trial court without also showing actual error in the judgment.”);

In re Elijah R., 620 A.2d 282, 285 (Me. 1993) (“Even though the records are

inadmissible hearsay, however, their admission in evidence is harmless error

because under the circumstances it is highly probable that admission of the

evidence did not affect the judgment.”). Even assuming that the child made

statements prejudicial to the parents,4 there is no evidence in the record that the

court considered the child’s statements in rendering the judgment, and the record

contains ample other evidence indicating M.B.’s preference to stay with his foster

family rather than reunite with his parents, including the testimony of his foster
4
Although the GAL testified that during the meeting with the court, the child indicated that he would
prefer to stay with the foster family, at oral arguments before this Court, the parents indicated that the true
danger of the situation is that there is no record of what the child said. Therefore, for the purpose of our
analysis, we will assume that the child made statements prejudicial to the parents.
18

mother and the licensed clinical social worker. See In re Elijah R., 620 A.2d at

285-86 (holding that admission of inadmissible evidence was harmless when the

information was “duplicated by other sources in the record”); cf. In re Morris D.,

2000 ME 122, ¶ 7, 754 A.2d 993 (holding that it was not an abuse of discretion for

a court to refuse to allow a child to testify when the parties, pursuant to 22 M.R.S.

§ 4007(2), introduced other evidence indicating the child’s preference regarding

future placement). Therefore, no violation of the parents’ due process rights

resulted from the court’s interview of the child off the record and without the

attorneys for the parents present. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463.

B. Termination of Parental Rights

[¶35] The parents challenge the sufficiency of the evidence supporting the

court’s findings of unfitness and best interest of the children: the father argues that

the evidence was insufficient to find that he is unfit and that termination of his

parental rights is in the best interest of M.B., and the mother argues that the court

erred in finding that the Department made a good faith effort to reunify her with

her children.

1. Father’s Parental Rights

[¶36] The father challenges the court’s findings of parental unfitness.

Specifically, he argues that because he did everything required of him in the

reunification plan, and because the Department failed to provide a proper
 19

reunification therapist, the court erred in finding that he failed to make a good faith

effort to reunify pursuant to 22 M.R.S. § 4041(1-A)(B) (2012). Similarly, he

challenges the court’s findings that he was unable to protect the child from

jeopardy and unable to take responsibility for the child within a time reasonably

calculated to meet the child’s needs. He also challenges the court’s determination

that termination was in the best interest of the child.

[¶37] Where the court finds multiple bases for unfitness, we will affirm if

any one of the alternative bases is supported by clear and convincing evidence.5

See In re Thomas D., 2004 ME 104, ¶ 38, 854 A.2d 195. “When the burden of

proof at trial is clear and convincing evidence, our review is to determine whether

the fact-finder could reasonably have been persuaded that the required findings

were proved to be highly probable.” Adoption of L.E., 2012 ME 127, ¶ 11,

56 A.3d 1234 (quotation marks omitted). With regard to the best interest

determination, we review the court’s factual findings for clear error, see id., but its

ultimate conclusion for an abuse of discretion, “viewing the facts, and the weight

to be given them, through the trial court’s lens,” In re Alivia B., 2010 ME 112,

¶ 12, 8 A.3d 625.

5
The father persuasively argues that the court erred in finding that he failed to make a good faith
effort to rehabilitate and reunify. Nevertheless, we need not address that issue because there is ample
evidence in the record supporting an alternative basis of unfitness. See In re Leona T., 642 A.2d 166, 168
(Me. 1994).
20

[¶38] The court found that the father’s “failure to take action during a

15-month period in which he did not speak to or see the [c]hild even once is

unacceptable . . . especially in light of his suspicions that the [c]hild was being

physically harmed.” According to the court, as a result of his inaction, the father is

unable to protect M.B. from jeopardy and those circumstances are unlikely to

change within a time reasonably calculated to meet M.B.’s needs. Supporting

these findings, the record demonstrates that after M.B. was taken from the father’s

home in 2008, the mother exposed him to a chaotic and dangerous lifestyle, and

the father failed to make an effort to ensure M.B.’s safety. Cabral, the licensed

clinical social worker who worked with M.B., testified that the child once asked

her, “If he was my [d]ad, why wasn’t he around when bad things were happening

to me?”

[¶39] Further, there is competent evidence in the record to support the

court’s finding that it would take six months to a year for the father and M.B. to

begin to have a relationship. M.B. has been living with the foster family for over

three years and has not seen his father since 2008. Given the extreme anxiety M.B.

demonstrated when faced with interaction with his father and the threat of removal

from his current home, it is highly probable that six months to one year is not

reasonably calculated to meet M.B.’s needs. See In re Charles G., 2001 ME 3, ¶ 7,

763 A.2d 1163 (noting that the time frame is calculated from the child’s
 21

perspective); see also In re Colby E., 669 A.2d 151, 152 (Me. 1995) (“[T]he

emotional difficulties that may attend foster care are included within the statutory

definition of jeopardy. We have previously upheld a finding of jeopardy when a

child, already vulnerable from earlier abuse and instability, faced developmental

regression of serious magnitude if removed from his stable foster home.”

(quotation marks omitted)).

[¶40] Additionally, the court’s findings regarding the developmental

progress that M.B. has demonstrated with the foster family and the foster family’s

intent to adopt the children are supported by competent evidence in the record, the

findings are not clearly erroneous, and the court did not abuse its discretion in

finding that termination of parental rights is in the best interest of the child. See

In re Alivia B., 2010 ME 112, ¶¶ 12-13, 8 A.3d 625 (noting the substantial

deference afforded the trial court regarding best interest determinations).

2. Mother’s Parental Rights

[¶41] The mother does not directly challenge the court’s findings regarding

unfitness and best interest of the children but instead argues that the court erred in

finding that the Department made a good faith effort to rehabilitate and reunify her

with her children. Although the court found “by clear and convincing evidence

that [the Department] . . . made diligent and reasonable efforts to rehabilitate and

reunify this family . . . [and] pursu[ed] other permanency plans,” the mother argues
22

that by frequently changing caseworkers and denying her needed services, the

Department failed to make reasonable reunification efforts.

[¶42] When evaluating parental unfitness, the court should consider any

failure on the part of the Department to provide reasonable reunification services.

See In re Thomas D., 2004 ME 104, ¶ 28, 854 A.2d 195. Here, however, the

record fully supports the court’s finding that the Department made diligent and

reasonable efforts to rehabilitate and reunify the mother with her children, and in

any event the Department’s failure to provide such services does not preclude the

court from terminating parental rights, see id.

[¶43] Furthermore, even assuming for the purpose of the unfitness analysis

that the Department failed to provide reasonable reunification services, the court’s

findings of unfitness as to the mother are amply supported in the record: she was

substantiated as a sex offender in Massachusetts; G.W. displayed signs of sexual

abuse; M.B. displayed symptoms of posttraumatic stress disorder and recalled

feeling unsafe in the care of his mother; and the mother continued to engage in

substance abuse and maintain a chaotic lifestyle. See In re Doris G.,

2006 ME 142, ¶¶ 15-17, 912 A.2d 572 (affirming the termination of a father’s

parental rights despite the Department’s failure to develop a written reunification

plan because the “father’s rights . . . were not terminated for failure to engage in

and complete any specific undisclosed services, but rather because of the father’s
 23

inability to adequately care for, protect, and nurture his children”). Further, the

record supports the court’s finding that termination is in the best interest of the

children. See id. ¶ 18. Therefore, the court did not err in finding that the mother is

unfit or that the termination of her parental rights is in the best interest of the

children.

The entry is:

Judgment affirmed.

On the briefs:

Jason Dionne, Esq., Isaacson & Raymond, P.A., Lewiston, for appellant
father

Richard Charest, Esq., Auburn, for appellant mother

Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and
Human Services

At oral argument:

Jason Dionne, Esq., for appellant father

Richard Charest, Esq., for appellant mother

Nora Sosnoff, Asst. Atty. Gen., for appellee Department of Health and
Human Services