In re Alijah K.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 137
Docket: Cum-15-319
Argued: April 6, 2016
Decided: August 30, 2016

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

IN RE ALIJAH K.

GORMAN, J.

[¶1] The father of Alijah K. appeals from a judgment of the District

Court (Portland, Powers, J.) terminating his parental rights to the child

pursuant to 22 M.R.S. § 4055 (2015).1 The father argues that the court

impermissibly relied on the fact of his incarceration to find that he is unfit to

parent Alijah. We disagree, and affirm the judgment.

I. BACKGROUND

[¶2] The Department of Health and Human Services instituted this child

protection matter on December 18, 2013, roughly one month after the child’s

birth, and while the child was in only his mother’s care. In its child protection

petition and accompanying request for a preliminary protection order, the

Department alleged that the mother had reported to the Department that

1 The mother consented to the termination of her parental rights, and is not a party to this

appeal.
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“[the father] has left the state of Maine after being involved in legal trouble

and she believes [he is] in Philadelphia. He has had no contact or involvement

with Alijah.” The court (Kelly, J.) entered a preliminary protection order

placing Alijah in Department custody that day.

[¶3] The father was finally located and served at a prison in

Pennsylvania in July of 2014.2 In December of 2014, the court (Powers, J.)

entered a jeopardy order with the father’s agreement based on the following

facts: “The father has never met Alijah and is currently incarcerated in

Pennsylvania for the possession of a firearm by a convicted felon. His release

date ranges from September 12, 2016 to March 12, 2019.” See 22 M.R.S.

§ 4035 (2015). The father also agreed in the jeopardy order that, based on his

lengthy incarceration, the Department could be relieved of its obligation to

provide him with rehabilitation and reunification services. See 22 M.R.S.

§ 4041 (2015).

[¶4] On March 6, 2015, the Department filed a petition to terminate

both parents’ rights. The court conducted a hearing on the petition on June 9,

2015; the father participated via telephone from Pennsylvania, and his
2 Meanwhile, the case underwent summary preliminary and jeopardy proceedings as to the

mother alone, while the guardian ad litem reported that the child thrived in foster care. Once the
father was located and served, genetic testing confirmed that the father is, in fact, the child’s
biological father. The court (Powers, J.) entered a paternity order to that effect in December of
2014.
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attorney was present in the courtroom for the hearing. The father testified

and his attorney cross-examined the Department’s witnesses.

[¶5] By judgment dated June 16, 2015, the trial court made the

following findings, which are supported by competent evidence in the record.

The father is currently incarcerated in state prison in Pennsylvania serving a

sentence for being a felon in possession of a firearm. His earliest possible

release date is September of 2016, although he could be in prison until 2019.

The father also pleaded guilty to charges of criminal trespass and disorderly

conduct for entering someone’s home in 2011 and for punching someone in

2012. He is the subject of a protection from abuse order obtained by a former

girlfriend.

[¶6] The father has never met the child, who is now almost three years

old. Although, as the court found, the father “claims not to have known he was

the father until late 2014 through genetic testing,” the father knew that the

woman with whom he had had an intimate relationship was pregnant, and

knew that she had given birth to a child. He also knew that the child had been

taken into custody months before the genetic testing was complete, as is

established by the court’s finding that the father contacted the Department to

inquire about the child as early as March of 2014. The father has spoken with
4

the Department on only two occasions. He has written to the child on only a

handful of occasions, and only in response to letters from the foster parents.

Further, although the father requested placement of the child with his own

parents, none of his family members has agreed to take responsibility for the

child.

[¶7] Based on these findings, the court terminated the father’s parental

rights on grounds that the father is unwilling or unable to protect the child

from jeopardy within a time reasonably calculated to meet the child’s needs, is

unwilling or unable to take responsibility for the child within a time

reasonably calculated to meet the child’s needs, and failed to make a good

faith effort to rehabilitate and reunify with the child; the court also found that

termination is in the best interest of the child. See 22 M.R.S. § 4055(1)(B)(2).

The father appeals. See 22 M.R.S. § 4006 (2015).

II. DISCUSSION

[¶8] The father asserts that the court impermissibly terminated his

parental rights based only on the fact of his incarceration. In support of his

argument, the father relies on In re Cody T., 2009 ME 95, ¶ 28, 979 A.2d 81, for

the proposition that a parent’s incarceration, by itself, does not provide a
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sufficient ground for the termination of parental rights. To guard against any

over-reading of our existing case law, we discuss In re Cody T. in some detail.

[¶9] In re Cody T. involved a child who was born in Texas in 2004 and

lived with both parents until the mother and father separated in 2005. Id. ¶ 3.

The mother moved the child to Maine in 2006 without the father’s knowledge.

Id. ¶ 4. Maine’s Department of Health and Human Services removed the child

from the mother’s custody in 2007. Id. ¶ 7. The father, who was never served

in hand3 with the petition for a child protection order, was incarcerated in

Oklahoma at the time the child was removed from the mother’s custody. Id.

¶¶ 5, 9.

[¶10] The termination hearing ended less than one month before the

father’s release date. Id. ¶ 13. The father’s sister and her husband, who lived

in Texas, appeared at the hearing and offered themselves as a placement for

the child. Id. ¶¶ 13-14. The trial court found, based on competent testimony,

that

had Cody remained in Texas in a location known to the father's
relatives, the relatives would have facilitated his visiting with the
father while the father was incarcerated. However, because the
mother had taken Cody from Texas and not advised the father or

3 Although the mother represented that the father was incarcerated in Texas at the time, he was

“served” by publication of a notice in a small Maine newspaper. In re Cody T., 2009 ME 95, ¶¶ 7, 9,
979 A.2d 81.
6

his family of the location, the father and his family had no
opportunity for contact with Cody for more than two years after
the time that he was taken from Texas.

Id. ¶ 15. The trial court acknowledged that the father was, “through no fault of

his own, a stranger to his son” based on the mother’s actions in failing to

inform the father of the child’s location, but nevertheless terminated the

father’s parental rights based on his incarceration and also apparently placed

the child with the paternal aunt in Texas. Id. ¶¶ 18, 30 (quotation marks

omitted).

[¶11] We vacated the court’s termination of the father’s parental rights,

concluding that

neither the court’s findings, nor the record upon which those
findings are based, can support a determination, by clear and
convincing evidence, that the father is an unfit parent or that, with
support through the court-ordered kinship placement, the father,
now released from incarceration, cannot provide a nurturing
parental relationship with his child once the relationship with the
child can be re-established. Further, considering the recent
significant change in the child's home life, there is no evidence
that fostering a re-established relationship with his father would
promote greater harm to Cody. Accordingly, we must conclude
that the court’s finding of parental unfitness with respect to the
father, in this case, is not sufficiently supported by clear and
convincing evidence in the record.

Id. ¶ 31.
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[¶12] Our decision in In re Cody T. was based on many factors, including

that the mother’s actions prevented the father from having contact or a

relationship with his child, and indeed, denied the father any knowledge of his

child’s whereabouts for almost two years; the lack of notice given to the father

during the first year of child protection proceedings; the availability of family

members who were ready, willing, and able to care for the child while the

father was incarcerated, and who would have facilitated the father’s contact

with and connection to the child; that the father was due to be released from

prison only twenty-two days after the termination hearing was concluded;

that as soon as the father became aware of the pending child protection case

in Maine, he took steps to vacate the jeopardy order that had been issued

without notice to him; and the court’s placement of the child with the father’s

family. Id. ¶¶ 3-31.

[¶13] We review In re Cody T. with an eye toward its unique facts and

many nuances, and decline to adopt the blunt view that it stands for the

proposition that a parent’s incarceration is irrelevant to a determination of

parental unfitness. By stating that incarceration alone cannot provide a basis

for termination, see In re A.M., 2012 ME 118, ¶ 30, 55 A.3d 463; Adoption of

Lily T., 2010 ME 58, ¶ 21, 997 A.2d 722; Adoption of Hali D., 2009 ME 70, ¶ 2,
8

974 A.2d 916; In re Daniel C., 480 A.2d 766, 768-69 (Me. 1984), we have

apparently led the father—and perhaps others—to believe that parents who

are incarcerated are held to a lesser standard than parents who are not

incarcerated.

[¶14] Contrary to the father’s suggestion, neither In re Cody T. nor any

other authority gives a parent a “pass” on parental responsibilities as a result

of being incarcerated. A parent who is unable to fulfill his parental

responsibilities by virtue of being incarcerated is entitled to no more

protection from the termination of his parental rights than a parent who is

unable to fulfill his parental responsibilities as a result of other reasons.

Whether because of mental illness, substance abuse, violence, incarceration,

or some other reason, a parent who is unable to meet his child’s needs—now

and for the foreseeable future—is an unfit parent whose parental rights are

subject to termination.

[¶15] We review a trial court’s findings for clear error, and will vacate a

court’s finding according to the clear error standard of review only if that

finding is not supported by competent record evidence; “is based on a clear

misapprehension by the trial court of the meaning of the evidence”; or “is so

against the great preponderance of the believable evidence” that, based on
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“the force and effect of the evidence, taken as a total entity,” the finding “does

not represent the truth and right of the case.” In re A.M., 2012 ME 118, ¶ 29,

55 A.3d 463 (quotation marks omitted). Here, unlike in In re Cody T., the court

found, by clear and convincing evidence, that the father knew of but never

made any effort to meet his child before he was incarcerated. That finding is

supported by the father’s testimony that he was in touch with the child’s

mother throughout her pregnancy, and spoke with the mother on the day she

gave birth to the child. When asked what he and the mother had discussed,

the father testified:

My discussions with [the mother] was, you know, how she was
doing, where she was at, if she needed any financial support, how
my son was doing. . . . I wanted to know how she was doing as far
as her wellbeing because we were not together and I was so far
away in Pennsylvania and she conveyed to me that, you know, she
felt alone. She felt like I had abandoned her and things along
those lines.

At the termination hearing, the Department established—and the father

acknowledged—that Alijah had been in the State’s custody for all but one

month of his life, the father could not care for—or even act as a resource for—

the child, and the father would be unable to do so for at least one more year

after the termination hearing. The father also could offer no friend or family
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member who could care for or protect the child while the father remained

incarcerated.

[¶16] We agree that a parent’s incarceration is but one factor to be

considered by a court faced with a termination petition, but it is a factor—a

factor that may, in some cases, lead a court to terminate that parent’s rights.

Each case involving an incarcerated parent is different. In each case, the court

is required to consider the underlying parent-child relationship and the effect

incarceration has had, is having, and will continue to have on that

relationship. As one commentator suggested nearly twenty years ago,

In light of the psychological data and due process concerns,
the most beneficial approach is one that analyzes the parent-child
relationship as a whole. Specifically, all states should provide a
full adversarial hearing at which the parent is present and
represented by counsel. At the hearing, the court should consider
several factors in assessing whether to terminate parental rights.
Specifically, the court should examine the parent-child
relationship before and after incarceration as well as the
psychological impact of the parent's incarceration on the child.
The court should also consider the parent’s ability to fulfill his or
her responsibilities as a parent during incarceration. While it is
true that the fact of incarceration is an important factor to
consider in termination proceedings, it should not be dispositive.
States that terminate parental rights based on incarceration status
may permanently sever the important, positive relationship that a
parent and child share. This decision would seem shortsighted in
cases in which the parent will be incarcerated for a relatively
short period of time or wherein the crime committed is not
indicative of the prisoner's parenting skills. Conversely, failure to
undertake a full analysis of the parent-child relationship may
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leave a child in a damaging, harmful relationship with a parent
merely because the parent maintained minimal contacts or
because the parent did not commit the "right" kind of crime to
allow for termination.
Steven Fleischer, Note, Termination of Parental Rights: An Additional Sentence

for Incarcerated Parents, 29 Seton Hall L. Rev. 312, 314-15 (1998).

[¶17] We agree that courts should, whenever possible, preserve and

strengthen families, even when—or perhaps especially when—those families

are most in need of assistance. Here, however, there simply was no “family” to

preserve. At the court’s direction, and with the father’s full support, all of the

Department’s reunification efforts were directed toward the mother. When

those efforts failed, the child was left with no family.

[¶18] When, as here, the child was in the State’s custody for all but one

month of his life; when the anticipated length of the parent’s incarceration

would extend an additional year beyond the termination proceeding; when

the location of the prison where the parent is housed precludes or severely

restricts any opportunity for visits; when the parent has agreed to forego any

State-directed attempts at creating a bond with his child; when all family

members or friends identified as possible caretakers or guardians for the child

have refused to take on the responsibility; and when there is not only no

longstanding parent-child relationship but, in fact, the child has never even
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met his incarcerated parent, the evidence supports the court’s findings that

the father cannot protect his child from jeopardy or take responsibility for the

child in a time reasonably calculated to meet the child’s needs, and therefore

is unfit4 to parent the child.5

The entry is:

Judgment affirmed.

On the briefs:

Lauren Wille, Esq., DeGrinney Law Offices, Portland, for
appellant father

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

E. James Burke, Esq., and Isabel Mullin, Stud. Atty.,
Cumberland Legal Aid Clinic’s Prisoner Assistance Clinic,

4 The father also challenges the court’s finding of unfitness on the ground that he failed to make

a good faith effort to rehabilitate and reunify with the child, as well as its finding that termination is
in the child’s best interest. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(iv) (2015). We discern no clear
error in the court’s finding of this ground of parental unfitness, nor any clear error or abuse of
discretion in the court’s determination that termination is in the child’s best interest, and we do not
discuss them further. See In re J.V., 2015 ME 163, ¶ 13, 129 A.3d 958.
5 We note, also, that the constitutional preference for biological parents may be tested in coming

years, as Maine and other states adopt some version of the Uniform Parentage Act. This law
recognizes—and emphasizes—that the relationships created between children and the nonrelated
adults who care and provide for them may, in some cases, be stronger and more positive for the
children than the relationships created by genetic bonds. See 19-A M.R.S. §§ 1831-1938 (2015).
The emphasis on biological family articulated in Santosky v. Kramer, 455 U.S. 745, 758-59 (1982),
may be abating given that families are no longer limited to one mother, one father, and the children
they beget.
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Portland, for amicus curiae Cumberland Legal Aid Clinic’s
Prisoner Assistance Clinic

Zachary Heiden, Esq., American Civil Liberties Union of
Maine Foundation, Portland, Jamesa J. Drake, Esq., Drake
Law LLC, Auburn, and Danylle Carson, Esq., Boothby Perry,
LLC, Turner, for amicus curiae American Civil Liberties
Union of Maine Foundation

At oral argument:

Lauren Wille, Esq., for appellant father

Meghan Szylvian, Asst. Atty. Gen., for appellee Department
of Health and Human Services

Portland District Court docket number PC-2013-118
FOR CLERK REFERENCE ONLY