MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 57
Docket: And-17-476
Submitted
On Briefs: April 10, 2018
Decided: April 26, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF KELCIE L.
PER CURIAM
[¶1] The mother and father appeal from a judgment of the District Court
(Lewiston, Dow, J.) terminating their parental rights to their daughter pursuant
to 22 M.R.S. § 4055(1)(A)(1)(a), and (B)(2)(a), (b)(i), (ii), and (iv) (2017). Both
parents challenge the sufficiency of the evidence supporting the court’s findings
of unfitness. In addition, the father challenges the court’s determination that
termination of his parental rights is in the child’s best interest. The evidence
supports the court’s findings and discretionary determinations, and we affirm
the judgment.
I. BACKGROUND
[¶2] Based on competent evidence in the record, the court found, by clear
and convincing evidence, that both parents are unwilling or unable to protect
the child from jeopardy or take responsibility for her in a time reasonably
calculated to meet her needs, that both parents had failed to make a good faith
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effort to rehabilitate and reunify with the child, and that termination of both
parents’ parental rights is in the child’s best interest. See id.; In re Haylie W.,
2017 ME 157, ¶ 2, 167 A.3d 576. The court based its conclusion on the
following findings of fact:
[T]he Department has made reasonable efforts to
rehabilitate and reunify the family, and has made reasonable
efforts to identify and pursue an alternative permanency plan.
Those efforts include: safety assessment; rehabilitation and
reunification planning; family team meetings; supervised visitation
for the parents; kinship placement foster care; transportation
assistance; referrals for the parents to case management,
individual counseling, medication management, and parenting
education; parental assessment for the mother, and DHHS social
work services.
. . . .
[The mother] has not consistently participated in medication
management or mental health counseling. These services would
have been very important for reunification. . . .
[The mother’s] visits with the child do not go very well. She
was regularly prompted to engage with the child, but she remained
quite withdrawn. . . .
[The mother] is the victim of significant violence and
intimidation by [the father]. . . . They remain together as a couple,
living together in a two-bedroom apartment . . . . [The mother] has
chosen [the father] over [the child]. In the four months prior to the
TPR trial, she had declined to visit with [the child] because [the
father’s] visits had been suspended.
. . . .
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The father failed to participate in the [Court Ordered
Diagnostic Evaluation], which would have been helpful to the Court
in assessing his mental health, cognitive functioning, and parental
capability. However, the TPR trial itself provided the Court some
insight into the father’s behavior . . . . The father is nearly
unmanageable in a courtroom. Despite warnings from the Court
and attentive, professional coddling by his attorney, the father
repeatedly disrupted the proceedings with words and gestures. He
is aggressive, disagreeable, and paranoid. . . .
[The father] has not consistently participated in medication
management. . . . He has not consistently engaged in counseling.
[The father] is reported to be quite attentive to [the child]
during visits, and he loves her. He has a certain warmth towards
the child, and he tries to be a good dad. Still, he says the most
outlandish and despicable things . . . .
During [one] visit, . . . [the father] tried, while he held [the
child] in the car seat, to incite [the maternal grandfather] to hit
him. . . . [The father’s] behavior at that visit resulted in suspension
of the visits for four months. Visits resumed in May, but were
suspended again after two visits because [the father] had been
arrested again for a new aggravated assault, a random attack on a
stranger that left the stranger with a broken jaw. That charge
remains pending. [The mother] was allowed to visit, but she
declined, in solidarity with [the father]. There have been no visits
by either parent with the child in the four months prior to the trial.
[The father] is violent towards [the mother]. He told [the
maternal grandfather, “I almost killed your daughter . . . . I choked
her out to the point where I almost couldn’t bring her back,” and he
described strangling then reviving her by slapping her and
splashing water on her.
The Court now turns to the issue of the child’s best
interest. . . .
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The mother had not received prenatal care during the
pregnancy, and she used marijuana throughout. She did not inform
her mental health medication prescriber [of] her pregnancy, and
she had prescriptions for Ritalin, Klonopin, Seroquel, and Zoloft
during the pregnancy.
[The child] has been in the care of her foster parents, her
maternal grandfather and step-grandmother, since her release
from [the hospital] at 19 days old . . . .
. . . [The child] needs a calm and soothing environment, and
the foster parents provide that. . . .
[The child] absolutely needs permanency. She has been in
her grandparents’ care her whole life, and her parents are not
substantially closer to reunifying with her now than they were at
the inception of this case.
II. DISCUSSION
[¶3] We review the trial court’s factual findings that a parent is unfit and
that termination of parental rights is in the child’s best interest for clear error
and the ultimate decision to terminate parental rights for an abuse of
discretion. Adoption of Isabelle T., 2017 ME 220, ¶ 30, 175 A.3d 639.
A. Unfitness Findings
[¶4] Both parents argue that there was insufficient evidence to support
the court’s findings of parental unfitness. The mother contends that the
Department failed to meet its obligations pursuant to 22 M.R.S. § 4041(1-A)
(2017) and that this failure precludes any finding of unfitness. Contrary to the
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mother’s argument, the evidence in the record fully supports the court’s finding
that the Department satisfied its statutory obligation. In examining all relevant
factors, there is sufficient evidence to support the court’s finding, by clear and
convincing evidence, of at least one ground of unfitness as to the mother. See
In re Aliyah M., 2016 ME 106, ¶ 5, 144 A.3d 50.
[¶5] Although the father contends that he made progress towards
rehabilitation, the evidence was sufficient to support the court’s finding, by
clear and convincing evidence, of at least one ground of his parental unfitness.
See In re Hannah S., 2016 ME 32, ¶ 13, 133 A.3d 590.
B. Best Interest Determination
[¶6] The father also challenges the court’s determination that
termination of his parental rights is in the child’s best interest. He argues that
the court should have ordered a permanency guardianship instead of
terminating his parental rights. See 22 M.R.S. § 4038-C (2017). Because the
father did not argue for a permanency guardianship at trial, we review the
court’s decision not to grant a permanency guardianship for obvious error. See
In re L.T., 2015 ME 94, ¶¶ 19-20, 120 A.3d 650.
[¶7] “Permanency is a dynamic concept that must be fashioned from the
actual circumstances and needs of the child or children before the court.” In re
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Marcus S., 2007 ME 24, ¶ 10, 916 A.2d 225. Here, the court found that the father
avoided evaluation and treatment, used outlandish and despicable language
regarding the child during visits, was violent in the child’s presence, and was so
unable to control himself at trial that the court had to arrange for him to
participate from a separate courtroom. The court also found that the child
“absolutely needs permanency” and requires “a calm and soothing
environment.” Given the father’s circumstances and the specific needs of the
child, the court did not commit obvious error when it determined that
termination of the father’s parental rights, with a permanency plan of adoption,
is in the child’s best interest.
The entry is:
Judgment affirmed.
Heather Gonzales, Esq., Strike, Gonzales & Butler Bailey, Portland, for appellant
mother
Richard Charest, Esq., Lewiston, 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
Lewiston District Court docket number PC-2016-48
FOR CLERK REFERENCE ONLY