MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 143
Docket: Som-18-215
Submitted
On Briefs: October 10, 2018
Decided: October 23, 2018
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF CHARLES V.
PER CURIAM
[¶1] Charles V. appeals from a judgment of the district court (Skowhegan,
Fowle, J.) terminating his parental rights to his child.1 He argues that the record
does not support the court’s finding of parental unfitness. We affirm the
judgment.
I. BACKGROUND
[¶2] In 2017, when the child was two weeks old, the Department of
Health and Human Services filed a child protection petition and a request for a
preliminary protection order. See 22 M.R.S. §§ 4032, 4034 (2017). The petition
alleged that there had been several reports from medical professionals and
Department caseworkers that there was a threat of physical abuse and verbal
1 The mother consented to termination of her parental rights. Accordingly, we focus on the
procedural history and findings regarding the father only.
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aggression by the father. Additionally, the petition alleged that the father’s
home was unsanitary and unsafe for the child’s continued habitation.
[¶3] The court (Benson, J.) entered a jeopardy order, by agreement,
placing the child with a foster family in September 2017. See 22 M.R.S. § 4035
(2017). As part of the jeopardy order, the father was to participate in
medication management; participate in mental health counseling with an anger
management component; complete a court-ordered diagnostic evaluation
(CODE); participate in random drug screens; establish a safe and sanitary
home; and allow unannounced home visits by the Department.
[¶4] From the time of the jeopardy order until December 2017, the father
stopped almost all visitation with the child. In addition, the father ceased his
mental health counseling in October 2017, resuming only after the Department
petitioned for termination of his parental rights on February 2, 2018. See
22 M.R.S. § 4052 (2017).
[¶5] A hearing on the petition was held by the court (Fowle, J.) on
April 26, 2018. Following the hearing, the court entered a judgment granting
the petition to terminate the father’s parental rights after making
comprehensive findings of fact by clear and convincing evidence. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii); In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195.
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[¶6] The court’s decision was based on the following findings of fact, all
of which are supported by competent evidence in the record.
In the present case, the court is concerned that the TPR
petition was filed on February 2, 2018, or approximately seven and
one half months following the removal of the child from the home,
and slightly less than five months following the issuance of the
jeopardy order. Ordinarily, the court would expect that more time
would elapse before the petition for termination was filed. At first
glance, this process seems to be moving very quickly, leaving one
to wonder whether [the father] has been given sufficient time and
opportunity to reunify with his child. The TPR hearing itself was
held 10.5 months following the removal of the child. Additionally,
the uncontroverted evidence presented at hearing established that
the Department had been working with the [father] and [the
mother] for several months prior to the removal of [the child] from
the custody of her parents in June of 2017. While [the mother’s
older child] is not the biological child of the father in the present
case, it is noteworthy that the Department was working with both
parents in an effort to keep [the older child] safely in their home.
According to court documents filed in conjunction with this case,
the Department was quite concerned over [the father’s] treatment
of [the older child], as a number of instances of disturbing conduct
by [the father] toward [the older child] are described. Thus, in
considering parental fitness factors described at 22 M.R.S. [§] 4055,
it is appropriate to do so in the context of well over one-year
involvement by the Department with [the father] and [the mother].
The evidence at hearing, including the testimony of the
father, established conclusively that [the father] made very little
effort toward reunification until February of this year. Then the
TPR petition was filed . . . .
. . . .
Between September and [the end of] December of 2017, the
father chose not to attend any visit with [the child]. Between
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October 16, 2017 and February 9, 2018 the father chose not to
attend any counseling sessions with [his mental health counselor],
or any other providers. Based upon the testimony of [the CODE
evaluator], [the mental health counselor], and other professionals,
it is likely that the father was going to have a very difficult time in
reunifying with [the child] during a timeframe reasonably
calculated to meet [the child’s] needs. His focus on work and lack
of focus on his [child], and his counseling needs during this time
frame caused severe harm toward any realistic prospect of timely
reunification, particularly in light of the uncontroverted evidence
that the [D]epartment had been working with [the mother] and
[the father] for several months before the birth of [the child].
. . . .
The father is sincere in his expressed willingness to protect
his child from jeopardy, and to take responsibility for [the child].
The court concludes that the father loves [the child].
Unfortunately, the evidence is overwhelming, and recited herein,
that the father is not able to protect [the child] from jeopardy, and
to take responsibility for [the child’s] care within a time period
reasonably calculated to meet [the child’s needs]. [The child] has
been in the custody of DHHS for all but sixteen days of her life.
While the court does not doubt the father’s sincerity, the testimony
of [the CODE psychiatrist] and [the mental health treatment
provider] persuade the court, that despite the father’s current best
efforts, it will be a long, long time before he is able to consistently
protect the child from jeopardy and to provide for her needs. One
only has to consider the testimony of these witnesses and others
. . . to conclude that [the father] is simply not ready to be [the
child’s] parent and won’t be for years. Even had [the father] not
dropped out of his efforts toward reunification for an extended
period during the fall of 2017, and even had he not stopped
attending counseling with [his mental health treatment provider]
for nearly four months, the court is at best uncertain[] as to
whether that would have made a dispositive difference. At the
close of the hearing, the court noted the father’s recent progress,
but told the father that he really wished that he had not stopped
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attending visits and counseling. The impact of the father’s decision
to place work and income over the needs of his child, and his
reunification with the child, cast the dye concerning the outcome of
this case. [The child] can simply not afford to wait for at well over
an additional year for her father to be ready to provide for her
needs and protect her from jeopardy. The efforts made by the
Department to assist the father toward responsible parenting
capability have lasted well over one year, and he is closer to the
starting line than he is the finish line. Accordingly this court
determines by clear and convincing evidence that the father . . . is
an unfit parent as determined by statute.
II. DISCUSSION
[¶7] The court did not err in finding that, despite more recent efforts by
the father, he remains unable to protect the child from jeopardy or to take
responsibility for the child within a time reasonably calculated to meet the
child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii); In re Thomas D., 2004 ME
104, ¶ 21, 854 A.2d 195. The father’s main argument is that the court’s finding
that it would be over a year before he was able to safely and successfully parent
his child is not supported by sufficient evidence. He asserts that because the
testimony about that timeframe was inconsistent between the two mental
health professionals, the court could not, by clear and convincing evidence, find
that he was unfit on that basis.
[¶8] Contrary to the father’s assertions, the court succinctly explained
that “[w]hile [it] found [the counselor’s] testimony to be credible and helpful,
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[it] also found [the counselor’s] testimony to border on advocacy to the father.”
Further, the court did not disregard the testimony of the counselor, but rather
viewed it as one piece of the overall larger picture of the father’s fitness as a
parent. See In re Child of James R., 2018 ME 50, ¶ 12, 182 A.3d 1252 (concluding
that the district court did not err when the evidence “fully support[ed] the
court’s assessment of the evidence” despite some conflicting testimony); In re
Cameron B., 2017 ME 18, ¶ 10, 154 A.3d 1199 (stating “[t]he weight and
credibility of the testimony and other evidence . . . [is] for the fact-finder’s
determination”). The court particularly focused on the father’s past
disconnection from services, noting that the father is essentially back at the
starting line in terms of potential reunification.
[¶9] Likewise, the court did not abuse its discretion in determining that
termination of the father’s parental rights was in the child’s best interests. See
22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d
297.
The entry is:
Judgment affirmed.
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Aaron B. Rowden, Esq., Waterville, 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
Skowhegan District Court docket number PC-2017-31
FOR CLERK REFERENCE ONLY