In re Cameron Z.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 162
Docket: Yor-16-99
Submitted
On Briefs: September 29, 2016
Decided: November 8, 2016

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

IN RE CAMERON Z. et al.

MEAD, J.

[¶1] The mother and father of Cameron Z., Calvin Z., Cole Z., and

Lawrence Z. appeal from a judgment of the District Court (Biddeford, Foster,

J.) terminating their parental rights to the children pursuant to 22 M.R.S.

§ 4055(1)(B) (2015).1 Both parents contend that the evidence was

insufficient to support the court’s findings, by clear and convincing evidence,

of at least one ground of unfitness as to each parent, and that termination of

their parental rights was in the children’s best interest. See id. The father

additionally contends that the court erred in admitting hearsay statements

made by one of the children, and that the trial judge should have granted his

motion to recuse.2 We affirm the judgment.

1 The mother consented to a termination of her parental rights to Lawrence; she does not
challenge that part of the court’s judgment.

2 We have fully considered the father’s arguments on those issues. We discern no error, and we

conclude that they do not warrant further discussion.
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I. BACKGROUND

A. Procedural History

[¶2] On February 6, 2014, the Department of Health and Human

Services filed a petition for a child protection order and a request for a

preliminary order concerning Lawrence, who was at that point unnamed and

still in the hospital after being born drug-affected on January 21. See 22 M.R.S.

§§ 4032, 4034(1) (2015).3 The Department alleged that the baby had

effectively been abandoned at the hospital by the parents, and that the father’s

six-year-old son from another relationship, D.G., who lived in the parents’

home, had recently received unexplained inflicted injuries. The court granted

a preliminary order the same day giving custody of Lawrence to the

Department. The parents later failed to appear for the summary preliminary

hearing. Also on February 6, the Department petitioned for a child protection

order concerning Cameron, Calvin, and Cole; it did not request a preliminary

order and the children remained in their home pursuant to a safety plan

developed by the Department.

[¶3] On May 15, the court entered a jeopardy order as to the mother by

agreement concerning all four children; the father did not appear for the

3 Title 22 M.R.S. § 4034(1) has since been amended, but not in any way that affects this appeal.

P.L. 2015, ch. 501, § 9 (effective July 29, 2016).
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hearing. See 22 M.R.S. § 4035 (2015). The court found jeopardy based on the

mother’s substance abuse issues, her inadequate supervision of the children,

and her failure to appreciate the risk posed to them by the father. Cameron,

Calvin, and Cole were placed in the mother’s custody subject to several

conditions, one of which was that she “not permit, tolerate or facilitate contact

between the father . . . and any or all of the children without the written

approval of the Department.” Lawrence remained in the Department’s

custody at his foster home.

[¶4] Based on the father’s representation that he was returning to

Maine from Florida to contest a jeopardy finding, the court reset his jeopardy

hearing for May 30. On that date the father again did not appear;

unbeknownst to the court, he had been arrested a few hours before the

scheduled hearing and was in the Cumberland County Jail. The court held a

testimonial hearing in his absence at which he was represented by counsel,

following which it made detailed findings and entered a jeopardy order

against the father as to all of the children, finding that he (1) failed to protect

D.G. from assault in the home in that, “at a minimum he was aware of the

physical violence, did nothing to protect the child, and took active steps to

conceal it from others”; (2) failed to protect Lawrence from the mother’s drug
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use during her pregnancy, resulting in the baby being born drug-affected; and

(3) abandoned the children by leaving the state, having no contact with them,

and “providing no assistance, financial or otherwise.” We affirmed the

jeopardy order when the father appealed. In re D.G., Mem 15-36

(June 9, 2015).

[¶5] On the day of the father’s rescheduled jeopardy hearing, the

Department filed a petition to terminate the parents’ rights to Lawrence.

See 22 M.R.S. § 4052 (2015). The mother consented to the termination of her

parental rights; the father did not.

[¶6] On October 10, the Department requested a preliminary

protection order concerning Cameron, Calvin, and Cole based, in part, on an

allegation that the father had been having unsupervised contact with the

children in violation of the jeopardy order that the mother agreed to. The

court issued a preliminary order granting custody of the children to the

Department. The parents appeared at the summary preliminary hearing and

contested the preliminary order. The court heard evidence that two Assistant

Attorneys General had seen the father in a car with Cameron, Calvin, and Cole.

The court made a finding that it had “no confidence in the parents’
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representations or promises,” and ordered that the preliminary order remain

in effect.

[¶7] On April 10, 2015, the Department filed a petition to terminate the

parents’ rights to Cameron, Calvin, and Cole. A hearing held over three days in

November 2015 resulted in the court issuing a detailed twenty-page order

terminating both parents’ rights to Cameron, Calvin, Cole, and Lawrence. The

father left the courtroom on the afternoon of the first day of the hearing and,

without explanation, never returned; he continued to be represented by

counsel throughout. Both parents appealed.

B. Facts Found in the Termination Order

[¶8] The court found the following facts by clear and convincing

evidence in its order terminating parental rights; the findings are supported

by evidence in the record. See In re K.M., 2015 ME 79, ¶¶ 9, 11, 118 A.3d 812.

1. Father

[¶9] In 2009, five years before this case began, the court (Douglas, J.)

issued a jeopardy order as to the father concerning Cameron4 in which the

court found, reminiscent of the jeopardy order in this case, that the father had

failed to protect Cameron from the mother’s substance abuse, resulting in the

4 The jeopardy order notes that, as in the present case, the father initially appeared for the

hearing and then left.
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child being born drug-affected. The court also found that the father had

inflicted domestic violence on the mother, and noted his “lengthy history of

criminal conduct, including domestic violence against his former wife, as well

as convictions for theft, burglary, and [] disorderly conduct. [He] has spent a

good part of his adult life on probation or in jail.” When reunification efforts

with the mother were successful, the child protection case was dismissed and

replaced with a parental rights and responsibilities order barring the father

from having unsupervised contact with Cameron.

[¶10] In January 2014, the current child protection case began when

six-year-old D.G. came to school with unexplained bruises. Dr. Lawrence Ricci,

co-director of the Spurwink Child Abuse Program, opined that the injuries

were inflicted. The mother was then pregnant with Lawrence, who, like his

brother, was born drug-affected; the father did not visit Lawrence at the

hospital. In January 2015, the Department scheduled a supervised visit with

Lawrence for the father; he confirmed the date and time with the visit

supervisor but did not attend. The father also did not follow through with the

opportunity for approved visits with the other children after last seeing them

in September 2014.
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[¶11] The court further found that throughout the child protection case

the father maintained a relationship with the mother, although he knew that

his actions affected the likelihood of the mother keeping custody of the

children. The children were aware of domestic violence that he perpetrated

occurring in the home. In February 2015 there was a heroin “drug bust” at the

mother’s apartment where the father was present; the father’s brother-in-law

was arrested. The court summarized the factors on which it based its finding

of the father’s parental unfitness:

There is no evidence that he has engaged in any services designed
to address the jeopardy identified by this Court in its order of
June 5, 2014. He actually left the trial in this matter midway
through and did not return. His actions continue to constitute
abandonment of his children. His continued refusal to separate
from [the mother] and provide her the space and opportunity to
address her own issues has seriously impeded her ability to
alleviate jeopardy and regain custody of her sons. There is no
evidence that any of the children has a firm, positive connection to
their father.

2. Mother

[¶12] The mother has a long-standing substance abuse problem, which

she acknowledged in the 2009 and 2014 jeopardy orders, that she has made

some progress in addressing. The court found that “[i]t is likely that she will

continue to have some success if she can remain in opiate replacement

therapy.”
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[¶13] She has done less well, and often failed, in taking advantage of the

many services offered to her by the Department through numerous providers

to address a wide range of other issues affecting potential reunification.

Those services included opportunities for supervised visitation with the

children; case management; psychiatric treatment; medication management;

individual counseling concerning her mental health issues; assistance with

parenting issues; and help with the issue of domestic violence.

[¶14] A central concern for the court—a concern well-supported by the

record—was the mother’s ongoing clandestine relationship with the father:

[The mother] still does not accept that [the father] presents a risk
of harm to her children and has not been willing or able to sever
her ties with him. . . . It was imperative in this matter that [the
mother] demonstrate a relatively long-term, reliable history of
separation from [the father]. . . . In light of [the] history [of their
relationship], as well as [the mother’s] failure to be honest on any
number of issues, the representation that she has been separated
from [the father] for several months, carries virtually no weight
with the Court.

3. Children

[¶15] The court found that the children have significant difficulties

caused, at least in part, by their parents and their parents’ relationship;

however, Cameron, Cole, and particularly Lawrence are doing well in their

current placements. Although Calvin is struggling, the court found that he
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cannot make progress without the chance to become established in a

permanent home. The children have been exposed to domestic violence when

living with their parents. Additionally, the children have sometimes indicated

that they were not to tell the truth to authorities about what went on in the

home and who was there, and have been labeled as liars by the mother when

they have made such reports.

II. DISCUSSION

[¶16] The termination of parental rights is governed by statute.5 When

a court enters a judgment terminating a parent’s rights to a child,

5 The governing statute provides:

1. Grounds. The court may order termination of parental rights if:

. . . .

B. Either:

(1) The parent consents to the termination. Consent shall be written and
voluntarily and knowingly executed in court before a judge. The judge shall
explain the effects of a termination order; or

(2) The court finds, based on clear and convincing evidence, that:

(a) Termination is in the best interest of the child; and

(b) Either:

(i) The parent is unwilling or unable to protect the child from
jeopardy and these circumstances are unlikely to change within a
time which is reasonably calculated to meet the child’s needs;

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[w]e review the court’s factual findings for clear error and its
ultimate conclusion regarding the best interest of the child for an
abuse of discretion, viewing the facts, and the weight to be given
them, through the trial court’s lens. Evidence is sufficient to
affirm an order terminating parental rights when a review of the
entire record demonstrates that the trial court rationally could
have found clear and convincing evidence in that record to
support the necessary factual findings as to the bases for
termination.

In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212 (citations and quotation marks

omitted).

[¶17] Here, the court’s factual findings recited supra have support in

the record and are not clearly erroneous. See State v. Lowden, 2014 ME 142, ¶

8, 106 A.3d 1134. As to the mother, the court found that she had the

opportunity to utilize numerous services offered by the Department in an

effort to reunify with the children; her cooperation with and participation in

those services was insufficient, and she was unwilling to end her relationship

with the father, which the court found to be a compelling factor. As to the

(ii) The parent has been unwilling or unable to take responsibility
for the child within a time which is reasonably calculated to meet the
child’s needs;

(iii) The child has been abandoned; or

(iv) The parent has failed to make a good faith effort to rehabilitate
and reunify with the child pursuant to section 4041.

22 M.R.S. § 4055(1)(B) (2015).

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father, the court found “no evidence he ha[d] engaged in any services

designed to address the jeopardy identified by this Court,” and that he had

abandoned the children, which is sufficient, standing alone, to establish

unfitness. 22 M.R.S. § 4055(1)(B)(2)(b)(iii). The court also properly

considered “the centrality of permanency in child protective proceedings,” In

re Thomas H., 2005 ME 123, ¶ 25, 889 A.2d 297, and had in evidence the

report and testimony of the guardian ad litem supporting the petition for

termination.

[¶18] From those facts and legal authorities, the court could rationally

find by clear and convincing evidence that both parents were unwilling or

unable to protect the children from jeopardy or to take responsibility for

them; that neither of those circumstances is likely to change within a time

reasonably calculated to meet the children’s needs; that the father abandoned

the children; and that termination of the parents’ rights is in the children’s

best interest. See 22 M.R.S. § 4055(1)(B)(2). Accordingly, the court did not err

or abuse its discretion in entering a judgment terminating the parents’ rights.

The entry is:

Judgment affirmed.

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On the briefs:

Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques,
P.A., Biddeford, for appellant mother

Philip Notis, Esq., 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

Biddeford District Court docket number PC-2014-07
FOR CLERK REFERENCE ONLY