In re Caleb M.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 66
Docket: Cum-16-286
Submitted
On Briefs: January 19, 2017
Decided: April 6, 2017

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

IN RE CALEB M. et al.

SAUFLEY, C.J.

[¶1] More than two and a half years after Caleb M. and Ayden R. were

first removed from their mother’s care because of her substance abuse and

consequent neglect, the mother’s parental rights to the children were

terminated by a judgment of the District Court (Portland, Eggert, J.). The

mother appeals, arguing that the court did not independently exercise its

judicial function, that the court improperly relied on the reports of a guardian

ad litem (GAL), and that the evidence was insufficient to support the

termination of her parental rights. We affirm the judgment.

I. BACKGROUND

[¶2] On November 7, 2013, the Department sought child protection

orders on behalf of Caleb M. and Ayden R. due to allegations of neglect caused
2

by the mother’s substance abuse.1 By agreement, on March 3, 2014, the court

(Goranites, J.) made a finding of jeopardy against the mother as to each child,

based on the mother’s exposure of the children to drug use, criminal activity,

and unsafe individuals; and her lack of appropriate housing. While these

proceedings were pending, the mother gave birth to a daughter who is the

subject of a separate child protection proceeding.

[¶3] Judicial reviews were held on March 3 and September 3, 2014;

March 3 and September 9, 2015; and March 8, 2016, and orders were entered

by agreement after each of these reviews. Reports of a GAL were admitted in

evidence at each of the judicial reviews. The September 9, 2015, and March 8,

2016, judicial reviews were presided over by the same judge (Eggert, J.) who

ultimately presided over the termination hearing.

[¶4] On December 14, 2015, the Department filed a petition to terminate

the mother’s parental rights to Caleb, and on February 18, 2016, the

Department filed a petition to terminate her parental rights to Ayden. In both

petitions, the Department alleged that the mother had inconsistently

participated in mental health and substance abuse services, and had continued

1 At the time the Department filed its petition, the children had been placed with their maternal

aunt since September 2013, pursuant to a safety plan.
 3

to permit unsafe individuals, including the three fathers of her children, to be

present around the children.

[¶5] The court conducted a hearing on the petitions on May 12 and 16,

2016, during which the court heard testimony from the mother, the mother’s

and the children’s providers, Department caseworkers, and the GAL. At the

conclusion of the hearing, the court sought proposed orders from both the

mother and the Department. In a judgment entered on June 2, 2016, in which

the court largely adopted the Department’s proposed order, the court

terminated the mother’s parental rights to both children.2 In a footnote, the

court noted that it had used the Department’s proposed order “extensively”

because “the Department’s proposed findings align quite closely with the

court’s view of the evidence.”

[¶6] In its judgment, the court made the following supported findings by

clear and convincing evidence. See In re Hannah S., 2016 ME 32, ¶ 3, 133 A.3d

590. The mother has had a substance abuse problem for several years. She

participated in various treatment programs including outpatient, intensive

outpatient, and residential programs. Her compliance with these treatment

2 The fathers’ parental rights were terminated by judgments entered on May 26, 2016. Neither

father appealed the termination of his parental rights.
4

programs was inconsistent, and she was discharged from one program for her

failure to make progress. Needles were found in her room at one of the

treatment programs.

[¶7] The mother relapsed on several occasions, and recent drug tests

performed by her doctor showed elevated levels of her prescribed medications

and indications that she was also using nonprescribed medications. In

December 2015, the mother admitted that she overused her prescribed

Suboxone. Only two months before her parental rights were terminated, a

Department caseworker found needles in her bedside table.

[¶8] The mother permitted several “unsafe men” to be present with the

children. In early 2016, a Department caseworker making an unannounced

visit to the mother’s home discovered Ayden’s father hiding in a closet despite

the mother’s denial that he was there. Ayden’s father was then arrested on

outstanding warrants. In April 2016, a caseworker visiting the mother’s home

noticed her infant daughter’s father leaving. When the caseworker asked the

mother about needles that were found in a nightstand, she blamed the

daughter’s father and his friend.

[¶9] Caleb was afraid of returning to live with his mother because he

worried that he would be the one who would have had to care for Ayden and
 5

their sister. He worried about having enough food to eat, and he regularly

checked the cupboards in his foster home to see that there was enough food.

Caleb has been diagnosed with autism spectrum disorder, and is on the waiting

list for more intensive in-home support, as well as trauma-focused cognitive

behavioral therapy. Caleb’s therapist believes that returning Caleb to his

mother’s care would “re-traumatize” him.

[¶10] The mother did not consistently attend visits with her children.

The visit supervisor testified that Caleb seemed to “r[u]n the show” during

visits with the mother. When the mother misses visits with Caleb, he becomes

very upset. The Department intends to seek an adoptive placement for Caleb.

[¶11] Ayden has been diagnosed with ADHD. In his foster placement,

Ayden thrived on structure and routine. In late 2015, the mother was given the

opportunity to have Ayden with her again. He was returned to his mother’s

care in a trial placement but had to be removed again in early 2016.

[¶12] Supporting the decision to remove Ayden, the GAL testified that

during the trial placement, Ayden’s “level of care suffered enormously when he

was with his mother.” According to the GAL, he was “falling asleep in class,”

“behind academically,” and “hungry.” “His mother was not picking . . . him up
6

reliably,” and “he was having hygiene issues.” The Department plans to seek an

adoptive placement for Ayden.

[¶13] The court ultimately found that, despite the mother’s access to

services for more than two years, the mother could not rebut the presumption

of unfitness that arose because of her chronic substance abuse. See 22 M.R.S.

§ 4055(1-A)(C) (2016). At the time of the hearing, the mother was unable to

care for the children, and she may never be able to do so. Caleb and Ayden

“need permanency” after having lived in a state of “limbo” for nearly three

years. Both children “deserve the permanency of adoption.” The court found

that adoption is in the best interest of each child. See 22 M.R.S.

§ 4055(1)(B)(2)(a) (2016). The mother timely appealed. See 22 M.R.S. § 4006

(2016); M.R. App. P. 2(b)(3).

II. DISCUSSION

[¶14] The mother contends on appeal that the court failed to exercise its

independent judgment in terminating her parental rights and erred in

considering GAL reports, and that the evidence was insufficient to support the

court’s decision to terminate her parental rights.
 7

A. Trial Court’s Independent Judgment

[¶15] The mother first argues that the court did not exercise its

independent judgment in terminating her parental rights because the court

adopted the Department’s proposed order with minimal changes. We note that

the mother failed to file a motion for further findings or for reconsideration

before raising this issue in her appeal. As we have recently noted, “appeals

challenging orders based upon an alleged lack of independent judgment by a

judge should be preceded by an appropriate motion that identifies the issue and

allows the trial judge an opportunity to address those concerns prior to

appellate review.” Yap v. Vinton, 2016 ME 58, ¶ 9 n.1, 137 A.3d 194. We now

clarify the importance of such a motion in the context of a child protection

proceeding. In order to avoid the delay inherent in a later challenge to the

court’s order that could have been expeditiously addressed by the trial court,

we will no longer entertain a challenge to the trial court’s independent

judgment based on the court’s adoption of a party’s proposed order, absent a
8

parent’s motion for further or clarified findings pursuant to Maine Rule of Civil

Procedure 52(b).3

[¶16] Because we have not previously announced this requirement, we

proceed to consider the merits of the mother’s argument. “In reviewing

whether the trial court performed its judicial function, we must determine

whether the findings adequately indicate the factual basis [for] the ultimate

conclusion.” In re Sabrina M., 460 A.2d 1009, 1013 (Me. 1983). “If the proposed

findings are argumentative or insufficiently objective because they are drafted

by a party, a judgment adopting those findings may be defective.” In re C.P.,

2016 ME 18, ¶ 19, 132 A.3d 174.

[¶17] Although “a verbatim adoption of findings proposed by one party

. . . is disfavored, as such an approach suggests that the court has not applied its

independent judgment in making its findings and conclusions,” draft findings

proposed by either side can aid the court’s fact-finding. In re Marpheen C., 2002

ME 170, ¶ 7, 812 A.2d 972. “[W]hen draft orders are adopted without change

or with little material change,” and the court’s findings have not changed as a

3 Such a motion terminates the running of the time for filing an appeal, with the time for appeal

then commencing to run from the entry of the ruling on that motion. M.R. App. P. 2(b)(3). Therefore,
the Rule 52(b) motion should not be accompanied by a notice of appeal and should be acted on
expeditiously.
 9

result of a properly filed motion for further or clarified findings pursuant to

Rule 52(b), the key question for our review “will be whether the findings and

order reflect the application of judgment by the court and not simply one of the

parties.” See Yap, 2016 ME 58, ¶ 10, 137 A.3d 194.

[¶18] It is evident that the court’s judgment in this matter resulted from

the court’s careful application of its own independent judgment. The judgment

is not a verbatim adoption of the Department’s proposed order. The court

specifically acknowledged that it made extensive use of the proposed order

because it articulated the court’s view of the case. Further, the court made

substantive additions to five paragraphs and made other changes to reflect that

the court did not believe parts of the mother’s testimony. The court’s judgment

was the product of the proper exercise of its judicial function and it was not

defective. See id.; In re Marpheen C., 2002 ME 170, ¶¶ 7-8, 812 A.2d 972.

B. GAL Reports

[¶19] The mother next argues that her due process rights were violated

when the court took judicial notice of all of the GAL reports in the court’s file

and then relied on those reports in its judgment. Specifically, she contends that

the reports were largely hearsay and that she had no opportunity for

cross-examination or rebuttal of the information in the reports. The mother
10

further asserts that the court made six factual findings that were clearly

erroneous because they were supported only by GAL reports that she insists

the court was not permitted to consider.

1. Admission in Evidence

[¶20] The admission of GAL reports in evidence is specifically authorized

by statute. 22 M.R.S. § 4005(1)(D) (2016); see also M.R. Evid. 802 (providing

that hearsay is not inadmissible if a statute provides for its admissibility); In re

Chelsea C., 2005 ME 105, ¶ 10, 884 A.2d 97 (“[T]here is no question that the

Legislature may authorize court consideration of the contents of guardian ad

litem reports as an exception to the hearsay rule.”). Thus, the admission of GAL

reports at earlier stages in the proceedings comported with the law and

allowed the court, at each stage, to rely on the report to the extent it deemed

appropriate in light of all of the evidence presented or the agreement of the

parties. See In re Chelsea C., 2005 ME 105, ¶ 16, 884 A.2d 97.

[¶21] Nor did the admission of those reports at the judicial reviews

violate the mother’s due process rights. “[D]ue process requires: 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.” Id. Judicial reviews provide an opportunity for an evidentiary
 11

hearing. 22 M.R.S. § 4038(5) (2016). At those reviews, the mother had notice

of the hearing, court-appointed counsel, and an opportunity to challenge any

evidence offered through the GAL report or otherwise.

[¶22] The mother agreed to the orders entered at the judicial reviews,

all of which stated that the GAL reports were admitted in evidence, and there is

no indication that she was denied the opportunity for a hearing that provided

each of the essentials of due process. See In re Chelsea C., 2005 ME 105, ¶ 16,

884 A.2d 97.

2. Termination Court’s Consideration of GAL Reports

[¶23] The remaining question is whether the court that held the

termination hearing could consider evidence contained only in previously

admitted GAL reports. When a GAL report was admitted in evidence in a prior

stage of the proceeding, the court conducting a hearing on a later judicial review

or termination petition can consider and rely on that report only if it was

admitted by the same judge in the earlier proceeding. See In re Scott S., 2001

ME 114, ¶ 12, 775 A.2d 1144. “The authority of the trial judge to take judicial

notice of matters of record is distinct from the authority of a single judge to

consider evidence presented in a previous stage of a child protective proceeding

when that evidence was presented to the same trial judge.” Id. “When the trial
12

judge has actually heard the evidence presented in prior stages of a child

protection proceeding, that judge may consider the evidence in the following

stages because the process is, in fact, a unified proceeding.” Id.; cf. Cabral v.

L’Heureux, 2017 ME 50, ¶¶ 10-11 & n.3, --- A.3d --- (in non-unified proceedings,

different rules apply). “When a different trial judge presides at a later stage of

the process, that trial judge may not rely on the evidence presented to the prior

judge . . . .” In re Scott S., 2001 ME 114, ¶ 12, 775 A.2d 1144. The trial judge at

the termination proceeding may, however, take judicial notice of the existence

of prior orders and judgments and the actions taken by the court. See M.R. Evid.

201; Cabral, 2017 ME 50, ¶ 11, --- A.3d ---; see also United States v. Jones, 29 F.3d

1549, 1553 (11th Cir. 1994).

[¶24] In this matter, the court did not explicitly admit any of the GAL’s

prior reports in evidence during the termination hearing. Thus, the only prior

reports available for the court’s potential consideration were those that were

admitted in prior proceedings held by the same judge who presided over the

termination hearing. See In re Scott S., 2001 ME 114, ¶ 12, 775 A.2d 1144.

Specifically, the termination court could consider only those GAL reports that

had been admitted during the September 9, 2015, and March 8, 2016, judicial

reviews that the same judge had held, along with the GAL’s report prepared for
 13

the termination proceeding.4 Consequently, of the six factual findings that the

mother challenges, four were not supported by the record because they were

supported only within GAL reports that this particular judge could not

consider.5 See Guardianship of Hailey M., 2016 ME 80, ¶ 15, 140 A.3d 478 (“A

finding of fact is clearly erroneous if there is no competent evidence in the

record to support it . . . .”).

[¶25] We are not, however, required to vacate the trial court’s judgment

if the court’s factual errors are harmless. See M.R. Civ. P. 61. “In the context of

a termination of parental rights proceeding, a preserved error is harmless if it

is highly probable that the error did not prejudice the parents or contribute to

the result in the case.” In re M.S., 2014 ME 54, ¶ 12, 90 A.3d 443 (quotation

marks omitted).

[¶26] Here, none of the unsupported findings were important in the

court’s findings regarding the mother’s substance abuse or the best interest of

each child—the grounds for the court’s determination to terminate her

4 The court did admit the GAL’s most recent report for each child, both dated May 2, 2016.

Evidence supporting the challenged findings was not contained in either of those reports.
5 Specifically, the evidence that could be considered by the court cannot support the court’s

findings that the mother never had a case manager for housing support, the Department “lost touch”
with the mother for a period of time, the mother explained the presence of a bottle of urine in her
room at one of the treatment programs by asserting that she had been “too lazy” to get up and use
the bathroom, and the mother never participated in mental health treatment.
14

parental rights. As we discuss below, there was ample competent evidence for

the court to have found, by clear and convincing evidence, that the presumption

of unfitness applied and that termination was in the best interest of each child.

Thus, it was highly probable that the erroneous findings did not prejudice the

mother or contribute to the court’s ultimate determination, and the court’s

mistaken reliance on certain GAL reports was harmless error. See id.

Accordingly, we turn to the sufficiency of the evidence supporting the court’s

judgment. In reviewing the mother’s challenge to the sufficiency of the

evidence, we disregard the court’s unsupported findings.

C. Sufficiency of the Evidence

[¶27] Before a court may terminate a parent’s parental rights, the court

must find, “by clear and convincing evidence, at least one ground of parental

unfitness . . . and that termination is in the child’s best interest.” In re C.P., 2016

ME 18, ¶ 30, 132 A.3d 174; see also 22 M.R.S. § 4055(1)(B)(2) (2016). “Evidence

is clear and convincing when the court could reasonably have been persuaded

that the required factual findings were proved to be highly probable.” In re C.P.,

2016 ME 18, ¶ 30, 132 A.3d 174 (quotation marks omitted). “The weight and

credibility of the testimony and other evidence, including GAL reports, is for the

fact-finder’s determination.” In re Cameron B., 2017 ME 18, ¶ 10, --- A.3d ---.
 15

1. Unfitness

[¶28] The trial court may presume that a parent is unfit when

[t]he child has been placed in the legal custody or care of the
department, the parent has a chronic substance abuse problem,
and the parent’s prognosis indicates that the child will not be able
to return to the custody of the parent within a reasonable period of
time, considering the child’s age and the need for a permanent
home. The fact that a parent has been unable to provide safe care
of a child for a period of 9 months due to substance abuse
constitutes a chronic substance abuse problem.

22 M.R.S. § 4055(1-A)(C); see also 22 M.R.S. § 4055(1)(B)(2)(b)(i). The mother

contends that the statute defines “chronic substance abuse problem” to mean

that “a parent has been unable to provide safe care of a child for a period of

9 months due to substance abuse.” Accordingly, the mother argues, because

she cared for her daughter after the daughter was born, and because Ayden was

placed with her on a trial basis until January 2016, she does not have a chronic

substance abuse problem within the meaning of the statute, and therefore the

court erred in applying the presumption of unfitness provided by 22 M.R.S.

§ 4055(1-A)(C). We review the interpretation of a statute de novo. In re

Jacob C., 2009 ME 10, ¶ 9, 965 A.2d 47. “When a statute is not ambiguous, its

plain meaning will govern.” Id.

[¶29] Contrary to the mother’s contention, the plain meaning of the

statutory language that a parent’s inability to provide safe care of a child for
16

nine months “constitutes” a chronic substance abuse problem does not mean

that a “chronic substance abuse problem” is limited to only those

circumstances.

[¶30] It is imperative, however, that we not use the broad brush of

“chronic substance abuse” to enable the continued separation of children from

their parents when the children’s health and safety do not require it. In a time

when far too many young parents struggle with drug and alcohol addictions,

every effort must be made to help those parents find sobriety and return to

their parental roles. To do otherwise risks the separation of children from their

birth families when it could have been avoided. Thus, a trial court must

carefully consider whether the substance abuse of the parent is truly “chronic.”

[¶31] Sadly for the children in the matter before us, there was ample

competent evidence for the court to have found, by clear and convincing

evidence, that the mother has engaged in chronic substance abuse; that she has

been provided many services, including multiple opportunities to work toward

recovery and sobriety; that she was even provided a trial placement of Ayden

and could not keep him safe; and that Caleb and Ayden will not be able to be

returned to her custody within a reasonable time.
 17

[¶32] The mother’s substance abuse made her unable to care for Caleb

and Ayden for a period that far exceeds nine months. At the time of the final

hearing in this matter, Caleb and Ayden had been in the Department’s legal

custody for more than two years, during which time she made little progress in

recovering from her addiction. Despite opportunities, she remained unable to

provide safe care for her children, as demonstrated by the removal of her

daughter from her care, and the removal of Ayden from her care—for the

second time—following the trial placement. The court did not err in finding

that the presumption of unfitness applied and that the mother failed to rebut it.

2. Best Interest of Each Child

[¶33] The mother further asserts that the court erred or abused its

discretion in determining that the termination of her parental rights was in the

best interest of each child.6 We review the court’s factual findings for clear

error and its ultimate conclusion regarding the best interest determination “for

an abuse of discretion, viewing the facts, and the weight to be given them,

6 The mother argues, citing our opinion in In re Thomas H., 2005 ME 123, ¶ 32, 889 A.2d 297, that

the court was required to find a “compelling reason” to terminate her parental rights because Caleb
and Ayden were doing well in foster care and there were no identified adoptive placements. Contrary
to the mother’s argument, in In re Thomas H., we held that the court was required to find a compelling
reason not to terminate parental rights when the children would be “consigned to the instability and
impermanence of long-term foster care.” Id. ¶ 35. The court was not required to find a compelling
reason to terminate the mother’s parental rights in this matter. See id.
18

through the trial court’s lens.” In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260

(quotation marks omitted). “The District Court’s judgment on the issue of best

interest is entitled to substantial deference because that court is able to directly

evaluate the testimony of the witnesses.” In re Michaela C., 2002 ME 159, ¶ 27,

809 A.2d 1245.

[¶34] Here, Caleb and Ayden were first removed from their mother’s

care nearly three years before the hearing and had been in the Department’s

custody for more than two years. During that time, the mother had made no

substantial progress in recovering from her addiction, and she continued to

allow unsafe individuals to be around her children. The court found that Caleb

and Ayden need the permanency of adoption and, because of their young ages

and the length of time they have already spent in foster care, they cannot wait

any longer for their mother to be able to care for them. These findings are

supported by the evidence in the record. The court did not commit clear error

or abuse its discretion in determining that termination was in each child’s best

interest. See In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260.

The entry is:

Judgment affirmed.

 19

Virginia Lee Holt, Esq., Holt Family Law, Saco, for appellant mother

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

Portland District Court docket numbers PC-2013-99 and -100
FOR CLERK REFERENCE ONLY