MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 148
Docket: Lin-18-72
Submitted
On Briefs: September 26, 2018
Decided: November 8, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE CHILD OF MATTHEW R.
PER CURIAM
[¶1] Matthew R. appeals from a judgment of the District Court
(Wiscasset, Raimondi, J.) terminating his parental rights to his son. He argues
that the court erred and abused its discretion in finding that he was unwilling
or unable to protect the child from jeopardy and that those circumstances were
unlikely to change within a time reasonably calculated to meet the child’s needs
and in finding that termination of the father’s parental rights was in the child’s
best interest. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i) (2017). We affirm the
judgment.
[¶2] In August 2016, while the child was residing with a family member
pursuant to a safety plan between the Department of Health and Human
Services and the child’s parents, the Department filed a petition for a child
protection order. The petition alleged that the mother had a significant
substance abuse problem with related periods of incarceration and that the
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father was unable to maintain a safe, clean home unaffected by the mother’s
drug abuse. On November 3, 2016, the court entered an agreed-upon jeopardy
order with respect to each parent. Jeopardy as to the father arose from the
father’s failure to protect the child from being exposed to risks resulting from
the mother’s drug abuse, including an unsanitary home visited by unsafe
people. Jeopardy was also based on the father’s inability to exercise
independent judgment, separate from the mother, to protect the child. The
court placed the child in the Department’s custody and maintained the kinship
placement.
[¶3] By August 2017, the mother had been incarcerated for violating
probation and conditions of house arrest, and the Department petitioned to
terminate both parents’ parental rights. The petition alleged that the mother
had proved unable to stop using drugs and that the father, who would not
separate from the mother, was unrealistically confident that she would recover
from her addiction and that she could be trusted with the child’s care.
[¶4] The termination hearing was held over the course of three days—
December 5, 18, and 19, 2017. The court then, upon the mother’s consent,
entered a judgment terminating the mother’s parental rights. After considering
all of the evidence presented, the court carefully considered the facts weighing
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against termination and those weighing in favor of termination and found, by
clear and convincing evidence, the following facts with respect to the father.
See In re Children of Melissa F., 2018 ME 110, ¶ 11, 191 A.3d 348.
There are a number of factors that would support the
conclusion that termination is not appropriate in this case. [The
father] does not have a problem with substance abuse. He has
consistently held down a full-time job . . . for more than 5 years. He
has facially complied with some of the Department’s requirements.
He has obtained safe and appropriate housing. He did participate
in a CODE [court ordered diagnostic] evaluation. He has attended
counseling. He has visited regularly and consistently with [the
child]. He has met and co-operated with the Department’s
caseworker. The CODE evaluator . . . makes it clear that lack of
intelligence and capacity to parent is not an issue here. [The father]
and [the child] have a bond with each other. There is no question
that [the father] cares about [the child]. All those factors weigh
against termination.
The factors that support termination are clearly laid out in
the Guardian’s final summary:
[The father] has a problematic co-dependent relationship
with [the mother] that has spanned over numerous
long-term incarcerations and continued drug use. His
unyielding loyalty to [the mother] comes at the price of
jeopardizing [the child]’s safety. [The father]’s inability
and/or refusal to recognize the extent of [the mother]’s drug
use and take proactive measures to protect [the child] from
the risk [the mother]’s substance abuse poses has caused
[the father] to be an unsafe caregiver for [the child]. The only
reason [the father] is safely able to have unsupervised
visitation with [the child] now is because [the mother] is
incarcerated and [the child] is not at risk of being exposed to
her substance abuse or the effects thereof.
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It is difficult for the court to reconcile [the father]’s
intelligence level and capacity to parent with [the child]’s condition
and the conditions in which [the child] was living when he came
into care. As the Guardian noted in her report dated [August] 2016:
“At almost 5 years old, [the child has significant speech delays].” At
the home visit immediately preceding the filing of the petition,
there was a loaded syringe within [the child]’s reach on the porch.
The home was filthy with trash and feces on the floor. Even during
the pendency of this case unsanitary conditions persisted until the
home was foreclosed upon and [the mother] went to jail. [The
mother] was in jail for two years after [the child]’s birth. During
that time [the father] was responsible for [the child]’s care. [The
child]’s condition as of the filing of the Department’s petition is the
most compelling evidence as to the care and quality of parenting
provided by both [the father] and [the mother].
The question presented to the court is how a competent,
caring parent could allow these things to happen, and if anything
has changed such that [the child] would be safe in [the father]’s
care in the future.
[The father]’s updated reunification plan as of [May 2017]
provided that, among other things:
• He was to attend Al-Anon meetings;
• Demonstrate that he is able to make independent judgments
in the best interest of [the child];
• Know who the people are that are around [the child] and
who associates with [the mother];
• Be involved in [the child]’s pediatrician, dental, eye doctor
and Early Headstart appointments and follow through with
[the child]’s provider’s recommendations; and
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• Make a plan in the event that [the mother] relapses or
associates with people who are known to use drugs and/ or
have criminal involvement.
[The father] never attended Al-Anon meetings. These were
particularly recommended to assist him in dealing with his issues
of co-dependency with respect to [the mother]. He did go to
counseling, but both his counselors were of the opinion that he was
not engaged in the counseling or motivated to change. He was
attending because the Department made it a requirement for
reunification.
[The father] has not demonstrated that he is able to make
independent judgments in the best interest of [the child]. He lost
unsupervised visitation with [the child] because he allowed [the
mother] to have unsupervised contact with [the child] in violation
of DHHS restrictions. . . .
. . . .
[The father] is not a bad man. He would not intentionally
expend energy to commit a bad act or to harm someone. [The
father] lives life in survival mode. Life happens to him. He does
what he can to meet his basic needs. He has support from his family
members who step in to help—if they can—in the event of
catastrophe. [The father] does not appear to have the insight or
emotional energy to care for others or to understand the needs of
others. He addresses [the mother]’s needs because she insists
upon it. Otherwise, [the father] does what he has to do to get by as
best he can. He works. He cares for [the child] in his way, but has
no understanding of [the child]’s needs, and, therefore, no concept
of how to meet them.
[The father]’s most recent counselor testified at hearing that
one of [the father]’s positive qualities was steadfastness and
loyalty. He has been consistently loyal to [the mother]. When [the
mother] is in his life, [the mother] and her needs are the focus of
his attention. The irony of this is that [the father]’s loyalty,
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dependence and deference to [the mother] causes him to be blind
to the safety issues caused by her substance abuse. [The child] has
been put at risk as a result. [The father]’s focus on survival and on
[the mother]’s needs has left no room for understanding or insight
with respect to [the child]’s needs. Nothing about this has changed
during the pendency of this case. [The father]’s continued
dependence on [the mother] and lack of insight compels the finding
that [the child] would continue to be at risk if returned to [the
father]’s care.
. . . .
Therefore, based on the foregoing, the court finds by clear
and convincing evidence that [the father] 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.
The court also finds that it is in [the child]’s best interest to
terminate the parental rights of [the father]. . . .
. . . .
. . . . [The child] . . . is doing very well [in his current
placement], and thriving in his environment. When he first came
to [the placement], he . . . had significant . . . delays. He is now
developmentally on target and his [abilities] ha[ve] improved
immeasurably. . . . [H]e has received all the medical, educational
and special services he needs to address the issues that existed
when he came into care.
[¶5] The father timely appealed from the judgment. See 22 M.R.S. § 4006
(2017); M.R. App. P. 2A(a), 2B(c)(1).
[¶6] Based on these facts, which have strong evidentiary support, the
court did not err in finding that, despite his efforts to comply with the services
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arranged by the Department, the father remains unable to understand the
child’s needs and protect him from the jeopardy presented by the mother’s
substance abuse and related conduct within a time that is reasonably calculated
to meet the child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i); In re Thomas D.,
2004 ME 104, ¶ 21, 854 A.2d 195. The father argues that he was placed in an
untenable position because to retain his parental rights to the child he would
have to implicate the mother in criminal conduct and break off contact with her
while she was in prison and expecting their second child. The findings of the
court were, however, properly focused on the needs of the child as required by
statute. See 22 M.R.S. § 4055(1)(B)(2)(b)(i). The court found, with evidentiary
support, that the father understood and responded to the mother’s clearly
articulated wishes but did not understand the child’s needs and could not
prioritize them—a circumstance that was not likely to change within a time
reasonably calculated to meet the child’s needs. See id.
[¶7] Nor did the court err or abuse its discretion in determining that the
termination of the father’s parental rights was in the child’s best interest. See
22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H., 2005 ME 123, ¶¶ 16-17,
889 A.2d 297. The court’s determination is fully supported by its findings that
the child needs nothing short of permanency as he recovers from a young
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childhood during which the parents exposed him to damaging instability and
living conditions that did not meet his developmental needs.1
The entry is:
Judgment affirmed.
Kristina Dougherty, Esq., Wise Old Law, LLC, Portland, for appellant father
Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services
Wiscasset District Court docket number PC-2016-8
FOR CLERK REFERENCE ONLY
1 The child was so badly deprived of love and support in his early years with both parents that he
was unable to speak in clear words when he was five years old. He has made rapid and remarkable
progress since being placed away from his parents.