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.
2
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).
3
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
4
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’
5
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.
6
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.
7
[¶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.”
8
[¶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
9
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;
10
[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).
11
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.
12
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