In re Child of Mercedes D.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 149
Docket: Yor-18-236
Submitted
on Briefs: October 10, 2018
Decided: November 13, 2018

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

IN RE CHILD OF MERCEDES D.

PER CURIAM

[¶1] The mother and father of a child appeal from a judgment of the

District Court (Biddeford, Foster, J.) terminating their parental rights to the

child pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(ii), (iv)

(2017). The mother challenges the court’s denial of her motion to continue the

termination hearing and appoint a guardian ad litem1 for her. The father

challenges the sufficiency of the evidence supporting the court’s

determinations that he is parentally unfit and that termination of his parental

rights is in the best interest of the child. We affirm the judgment.

1 Although the motion was to continue the termination hearing and appoint a “guardian,” the

court properly treated it as a motion for appointment of a guardian ad litem for the mother.
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I. BACKGROUND

[¶2] The following facts are drawn from the court’s findings, which are

supported by the evidence, and the procedural record. See In re Evelyn A.,

2017 ME 182, ¶ 4, 169 A.3d 914.

[¶3] In July of 2016, days after the child was born, the Department of

Health and Human Services became aware of concerns regarding the

newborn’s safety while in his parents’ care. A safety plan was created for the

family, requiring the parents to move out of the home of the child’s paternal

grandmother—whom the Department had deemed an unsafe person—and live

with another member of the father’s family.

[¶4] The following month, the Department was notified that the father’s

family member could no longer provide housing to the family, and the

Department also discovered that the parents had left the child alone with the

father’s mother in violation of the safety plan. Consequently, on August 17,

2016, the Department filed a petition for preliminary protection and a child

protection petition. See 22 M.R.S. §§ 4032-4033 (2017). The court granted the

preliminary protection order the same day and ordered that the child be placed

in departmental custody.
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[¶5] The court issued agreed-upon jeopardy orders as to the mother and

father in September and December of 2016, respectively. In the jeopardy

orders, the court found that each parent had mental health issues, cognitive

delays, and limited parenting skills, and did not have safe and stable housing.

Additionally, the court found that the father had a history of anger issues. The

child remained in the Department’s custody and was placed with the father’s

aunt, where the child has since lived.

[¶6] In the spring of 2017, acting upon the Department’s motion, the

court directed that each parent undergo a court-ordered diagnostic evaluation

(CODE) in order to assess mental health and cognitive issues. See 22 M.R.S.

§ 4007(3) (2017); M.R. Civ. P. 35. The resulting evaluation of the father did not

indicate cognitive limitations, but the examiner diagnosed him as having “other

specified personality disorder with narcissistic and antisocial features;

attention deficit hyperactivity disorder; . . . and adjustment disorder with

anxiety.”

[¶7] The mother failed to show for the examination when it was

originally scheduled but eventually submitted to the examination a month

before the hearing on the termination petition. The examiner determined that

the mother’s intellectual functioning was “borderline for language-mediated
4

tasks” and “in the average range for non-verbal related intellectual tasks.” He

also determined that her vocabulary was insufficient to undertake the full

battery of psychometric testing. Based on that assessment, the examiner

reported that “it would be important for anybody [who] interacts with [the

mother] to make sure that [the mother] understands what is being said.” The

examiner diagnosed the mother as having a cognitive disorder, not otherwise

specified; attention deficit hyperactivity disorder; and post-traumatic stress

disorder, in partial remission. The examiner’s report did not reflect any explicit

concerns that the mother lacked the capacity to participate meaningfully in the

termination proceedings.

[¶8] On July 14, 2017, the Department filed a petition to terminate the

parental rights of each parent, and the court held a two-day hearing on the

petition in March and April of 2018. Before the presentation of evidence on the

first day of the hearing, the court addressed a motion filed by the mother that

day for the court to continue the termination hearing and order the

appointment of a guardian ad litem for her.2 See M.R. Civ. P. 17(b). The motion

2 Although the attorney representing the mother was present on the first hearing day, the mother

herself did not appear, reportedly because of inclement weather. The mother’s attorney made clear
to the court that she was not requesting a continuance due to the mother’s absence because the
hearing would require a second day, which would allow the mother to be present. The mother
attended the second day of the hearing and in fact presented her testimony then.
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recited counsel’s “concerns about the mother’s competency” based on counsel’s

review of the CODE report, which counsel had received within several weeks

before the hearing. When the court invited counsel to be heard on the motion,

counsel stated to the court that, according to the CODE report, the mother has

“very low vocabulary levels” and, as a result, had been unable to complete the

testing process; that the mother functions at a “fairly low” level, creating

concerns about whether the mother “understands what’s actually happening

today”; and that a “guardian . . . could be helpful,” see supra n.1. The mother did

not present the court with the CODE report itself at that time.

[¶9] After hearing from the parties, the court denied the mother’s

motion, stating,

I have no affidavit from any mental health professional. I don’t
have any relevant portions of the CODE evaluation. I just have an
assertion by counsel that her client is incompetent. . . . Appointing
a guardian is serious business. What you’re saying is a person is so
incapacitated that they don’t know what’s going on. They can’t
actively participate in their presentation of the case, you know.
That might be so, but I have nothing in front of me that confirms
that.

[¶10] The court then proceeded with the termination hearing. The

Department’s first witness was the examiner who performed the mother’s

CODE evaluation. The CODE report for the mother was admitted in evidence,

and the examiner testified extensively about the report’s contents and
6

conclusions. None of the parties inquired about the mother’s capacity to

participate in the proceedings, however, and the motion to continue and for

appointment of a guardian ad litem was not renewed on the basis of the

resulting record.

[¶11] In May of 2018, the court issued a judgment in which it found, by

clear and convincing evidence, that each parent (1) was unwilling or unable to

protect the child from jeopardy and that the underlying circumstances were

unlikely to change within a time reasonably calculated to meet the child’s

needs; (2) was unwilling or unable to take responsibility for the child, a

circumstance that would not be alleviated within a time reasonably calculated

to meet the child’s needs; and (3) failed to make a good faith effort to

rehabilitate and reunify with the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii),

(iv). The court also found that termination of each parent’s parental rights is in

the child’s best interest. See 22 M.R.S. § 4055(1)(B)(2)(a).

[¶12] In its judgment, the court made the following findings of fact, all of

which are supported by competent evidence in the record:

One of the recurrent concerns in this case has been [the
father’s] inconsistent visitation with [the child]. Initially, visits
were offered three times a week and were supervised. [The father]
missed a significant number of visits. The reasons he offered for
that included that he had forgotten, he hadn’t felt well, and his
guinea pig had an abscess, among others. When [the father] didn’t
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call to cancel, [the foster parent] often drove [the child] into the
visitation site, a trip of an hour and fifteen minutes each way. That
lead the caseworker to insist that [the father] contact [the foster
parent] in advance of the visit to confirm he would attend or the
visit would be cancelled. When the visits were supervised by
another agency, they were suspended three or four times due to
[the father’s] inconsistency. Each time they did not resume until
the Department was able to convene a meeting and discuss the
matter.

. . . When questioned at trial about why he had been so
inconsistent with visits, [the father] replied “I guess I don’t really
have a reason why.”

. . . .

. . . [The father] has made little effort to learn about and
understand the medical care for his son. He is more than content
to leave that chore to others. By the same token, he is not receptive
to advice given by or through others. . . .

. . . .

[The father] has struggled throughout this case with
priorities and consistency. Early on he obtained employment. He
has worked hard to keep his job and to increase the hours and
responsibilities. . . . At times, however, he has accorded his
employment priority over the reunification process and, in turn, his
child. It has interfered with his visit schedule. Although not
directly stated, it appears to have interfered with his attendance at
his son’s appointments and, perhaps, his attendance at counseling
as well. Although he was notified of [the child’s] doctor and WIC
appointments over the last nineteen months, [the father] attended
only [the child’s] six-week checkup and one WIC appointment. Not
only was his attendance designed to demonstrate a willingness to
take on all aspects of parenting, it was also intended to keep him
informed about [the child’s] health and development. [The father]
fell short on both those goals, ceding the responsibility back to [the
foster parent]. . . .
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According to [the father], in his sessions with [his counselor,]
they have been working on anger management skills, dealing with
stress, and how to have self-control over his mind and his
emotions. . . . Unfortunately, [the father’s] attendance at counseling
has been spotty. . . . Since he began treatment in the summer of
2016, [the father] has missed approximately 40 sessions—more
than he actually attended. . . .

. . . .

Even now, [the father] is unable to acknowledge that it had
been unsafe to leave [the child] with his mother. At trial, he went
to some lengths to discount what he believed to be the
Department’s most serious complaint about [the paternal
grandmother]—that she had been charged with child
endangerment in the past, a charge he labeled as “really iffy.” . . .

In general, [the father] finds it difficult to hear criticism or
accept feedback/advice from others. In Family Team Meetings, he
would sometimes be visibly angry and bark at others when the
topic of missed visits was addressed. He appears to discount
suggestions or advice from others until his own experience
confirms it is sound. . . .

. . . .

It is true that [the father] has achieved some successes over
the last year and one half. . . . But his participation in counseling
has been sporadic and his visitation has been irregular. He has not
undertaken the requested med management assessment. Those
were tasks designed to alleviate jeopardy and he failed to follow
through. . . .

The truth is, this case has moved forward in spite of [the
father’s] actions, not because of them. Visitation expanded and
became less controlled in large part as an effort on the
caseworker’s part to entice [the father] to more fully engage. At
trial, [the father] proudly pointed out that he has not missed or
cancelled a visit since January 15, 2018. That is certainly an
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accomplishment; however, it remains to be seen if he will maintain
that over time. And it must be said that visitation now requires
little of [the father]. [The foster parent] brings [the child] to [the
father’s] house and retrieves him at the end of the visit. Only
recently has [the father] been asked to return [the child] back to
[the foster parent’s] home at the end of the Friday visit. A visit
requires only that [the father] be at his home at the designated
hour, not a significant burden.

There is evidence that [the father’s] mental health continues
to pose problems for his day to day functioning. Incidents over the
life of this case reveal a young man who is impulsive and struggles
to appropriately manage his emotions. Although he has been
steadily employed, he has been unable until quite recently to
secure housing. He has not accepted the parental responsibilities
that were accorded to him in the reunification process, including
visitation and attending medical appointments. He resists advice
and assistance from others even when they have greater
experience. And he fails to recognize potential risks and take steps
to assess them, including in regard to his mother and his partner.
Even if he made improvements in those aspects of his character
now, there would still be the question of whether [the father] could
sustain that effort over time. Meanwhile, [the child] has been in
foster care, and with [the foster parent], since he was a month and
a half old. . . .

. . . .

[The mother] has done virtually nothing to reunify with [the
child]. She has not maintained contact with the caseworker, visited
with her son, engaged in counseling and parenting education, or
secured safe and stable housing in a timely fashion. [The mother]
has rarely been employed and even then, for only a month or so at
a time. [The CODE examiner’s] evaluation, and [the mother’s]
actions, confirm that she is not able to safely parent a child or even
visit on an unsupervised basis. Much of this inability may be due to
her cognitive limitations, a factor that is not likely to significantly
improve, even with time and intervention. The Court accepts [the
CODE examiner’s] conclusion that the prognosis for [the mother]
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making the necessary changes essential to reducing risk to [the
child] is poor.

. . . .

. . . [The child] is doing very well in the care of [the foster
parents]. He is healthy, developmentally on target, and happy.
There is evidence he is strongly connected to his foster parents and
they to him. As the Guardian [ad litem] reported, [the child] views
himself as part of that family. Terminating [the child’s] contact
with his father would not adversely affect [the child]. Terminating
[the child’s] relationship with the [foster parents], particularly at
this stage of his development, would be traumatic. He would be
separated from the only family he has ever known. That clearly
would not be in his best interest.

(footnotes omitted.)

II. DISCUSSION

[¶13] We address the parents’ arguments in turn, beginning with the

mother’s contention that the court erred by denying her motion to continue the

termination proceedings and appoint a guardian ad litem for her, followed by

our consideration of the father’s assertion that the evidence was insufficient to

terminate his parental rights.

A. Appointment of Guardian Ad Litem

[¶14] The mother asserts that the court erred by denying her motion to

continue the termination hearing and appoint a guardian ad litem.3 We review

3 Although the mother argues on appeal that, in the context of a termination hearing, counsel’s

expression of concern about the parent’s suspected diminished capacity is sufficient by itself to
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for an abuse of discretion both a court’s decision to appoint—or not appoint—

a guardian ad litem, see Kelley v. Snow, 2009 ME 128, ¶ 12, 984 A.2d 1281, and

its decision to deny a motion to continue, see In re Arturo G., 2017 ME 228, ¶ 14,

175 A.3d 91. “A party seeking a continuance has the burden of showing

sufficient grounds for granting the motion . . . .” In re Trever I., 2009 ME 59, ¶ 28,

973 A.2d 752 (quotation marks omitted).

[¶15] Here, the basis for the mother’s motion was limited to counsel’s

expression of concern regarding possible limitations on the mother’s ability to

understand “what’s actually happening today” and to participate in a trial. As

explained by counsel, those concerns arose from her review of the mother’s

CODE report and perhaps her own interactions with the mother. The mother

did not provide the court with the CODE report at that time.4 Counsel explained

warrant an evidentiary hearing to determine the parent’s capacity, she did not request that the court
conduct such a hearing, and consequently she did not preserve this aspect of her argument for
appellate consideration. See In re Anthony R., 2010 ME 4, ¶ 8, 987 A.2d 532 (“To preserve an issue
for appeal, the issue must first be presented to the trial court so that the trial court has the
opportunity to assess and act on the point to which the objection is directed.”). Therefore, we address
only the court’s denial of the mother’s motion to continue and appoint a guardian ad litem.
4 After the court denied the motion and began the hearing, the CODE report was admitted in

evidence, but the mother did not renew her motion or request that the court to reconsider its ruling
in light of the report that was then part of the record.

We also note that on the second hearing date, the mother appeared and testified, allowing the
court to make first-hand observations about her level of functioning. See State v. Dyer, 371 A.2d 1079,
1086 (Me. 1977) (holding that the court acted within its discretion by not inquiring into the
competency of the defendant when the court “had the opportunity to observe the defendant and to
evaluate his rational as well as factual understanding of the . . . proceedings and the sufficiency of his
ability to communicate with his lawyer and assist him in presenting a meaningful allocution.”). Even
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to the court that a guardian ad litem would be “helpful” to assist the mother

“through the process.”

[¶16] As framed in the mother’s motion, the sole justification for a

continuance was the requested appointment of a guardian ad litem. Contrary

to the mother’s contention, the very limited record presented in support of the

motion did not require the court to continue the proceedings and appoint a

guardian ad litem. Counsel did not explain, for example, why a guardian ad

litem would be able to provide the mother with more guidance through the

legal process—which was the focus of counsel’s concern—than counsel herself

could provide. Further, in explaining the reasons for denying the motion, the

court correctly noted that having “limited [cognitive functioning] is not the

same as . . . [being] incompetent to proceed in this matter.” See State v.

Nickerson, 2013 ME 45, ¶ 9, 66 A.3d 568 (stating that “it is well established that

a party may be both mentally ill and competent to stand trial”); see also State v.

Ledger, 444 A.2d 404, 419 (Me. 1982) (“[A] defendant may be mentally

competent to stand trial although in some other respects his mind is

unsound.”).

then, the motion for appointment of a guardian ad litem was not renewed. Beyond that, there is
nothing apparent from her transcribed testimony that raises a question about her competence.
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[¶17] We recognize that an attorney bears the “responsibility to alert a

court to [his or her client’s] possible incompetence,” Middleton v. State,

2015 ME 164, ¶ 15, 129 A.3d 962, and we are not critical of mother’s counsel

for bringing her concerns to the court’s attention. The question before us,

however, is whether, based on the record presented to the court at the time it

was asked to adjudicate the motion, the court abused its discretion by denying

the mother’s motion. We conclude that the court did not do so.

B. Parental Unfitness and the Best Interests of the Child

[¶18] The father asserts that the evidence is insufficient to support the

court’s determinations that he is an unfit parent within the meaning of the child

protection statutes and that termination is in the child’s best interest. “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.”

In re Child of Kelcie L., 2018 ME 57, ¶ 3, 184 A.3d 387.

[¶19] With respect to the issue of parental unfitness, the father argues

that although some deficits identified in the December 2016 jeopardy order

remained uncured at the time of the termination proceedings, those factors do

not constitute parental unfitness. As found by the court, those shortcomings
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included his failure to participate in a medication management assessment for

his mental health issues; his failure to manage his anger appropriately; and a

significant number of unjustified missed visits with the child and counseling

sessions. The court was entitled to find that the nature of these problems,

which impeded the father’s ability to safely and effectively parent the child, and

the persistence of the problems despite more than a year and a half of extensive

reunification efforts by the Department, are material indicia of his parental

unfitness.

[¶20] Beyond that, the court’s findings, which are not limited to the

deficiencies noted above, are supported by the record and are sufficient to

support the court’s determination that the father is unwilling or unable to

protect the child from jeopardy or take responsibility for the child within a time

reasonably calculated to meet the child’s needs, and that he failed to make a

good faith effort to rehabilitate and reunify with the child. See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii), (iv).

[¶21] Next, citing the progress he had made toward alleviating jeopardy

and his “deep bond with the child,” the father asserts that the court abused its

discretion by concluding that termination of his parental rights is in the child’s

best interest. We have held, however, that a strong bond between a parent and
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a child “is only one of several factors that the trial court must consider” in its

best interest determination. In re Michaela C., 2002 ME 159, ¶ 26, 809 A.2d

1245. The court is also required to consider—as it did here—“the needs of the

child, including the child’s age, the child’s attachments to relevant persons,

periods of attachments and separation, the child’s ability to integrate into a

substitute placement or back into the parent’s home and the child’s physical

and emotional needs.” 22 M.R.S. § 4055(2) (2017); see also In re Jacob B.,

2008 ME 168, ¶ 14, 959 A.2d 734. Moreover, the Legislature has stated that the

purposes of the termination statute include “[e]liminat[ing] the need for

children to wait unreasonable periods of time for their parents to correct the

conditions which prevent their return to the family” and “[p]romot[ing] the

adoption of children into stable families rather than allowing children to

remain in the impermanency of foster care.” 22 M.R.S. § 4050(2)-(3) (2017).

[¶22] At the time of the termination proceeding, the child was twenty

months old and had been in foster care since he was six weeks old. Based on

competent evidence in the record, the court determined that the progress made

by the father during that eighteen-month period failed to meet the child’s needs

and the court-ordered rehabilitation and reunification plan, and that, rather

than requiring the child to continue in the transience of foster care for an
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uncertain amount of additional time, the child’s best interest would be served

by freeing him for adoption.5 The court did not abuse its discretion by

concluding that termination of the father’s parental rights is in the best interest

of the child.

The entry is:

Judgment affirmed.

Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A.,
Biddeford, for appellant mother

Corey R. McKenna, Esq., Fairfield & Associates, P.A., 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

Biddeford District Court docket number PC-2016-35
FOR CLERK REFERENCE ONLY

5 The court framed its best interest determination based in part on an expectation that the child’s

current foster parents would become his adoptive parents. As we have stated, the question of
whether termination should be ordered is distinct from the question of who should adopt a child
post-termination, because the latter determination is made in a separate proceeding governed by
18-A M.R.S. §§ 9-301 to 9-315 (2017). In re Kenneth S., 2017 ME 45, ¶ 6, 157 A.3d 244. The discussion
in the judgment about the benefits of adoption by these particular foster parents, however, does not
detract from the court’s fundamental conclusion, which is based on a proper analysis and enjoys
support in the record, that the father will remain parentally unfit for too long as measured from the
child’s perspective, and that the child’s best interest will be served with the permanence that comes
with adoption generally.