MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 162
Docket: Cum-19-250
Argued: November 7, 2019
Decided: December 10, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF SHERRI Y.
MEAD, J.
[¶1] Sherri Y. appeals from a judgment of the District Court
(Portland, Eggert, J.) terminating her parental rights to her child. The mother
challenges the sufficiency of the evidence with regard to the court’s finding that
she is unfit within the meaning of 22 M.R.S. § 4055(1)(B)(2)(b)(i) and (ii)
(2018); disputes the court’s determination that termination of parental rights
was in the child’s best interest, see 22 M.R.S. § 4055(1)(B)(2)(a) (2018); and
asserts that the court violated her constitutional due process rights by refusing
to acknowledge that she was incompetent to participate in the termination
hearing. We affirm the judgment.
I. BACKGROUND
[¶2] The following facts are drawn from the court’s findings, which are
supported by the evidence, and from the procedural record. See In re Child of
Scott A., 2019 ME 123, ¶ 2, 213 A.3d 117. On December 20, 2017, the
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Department of Health and Human Services filed a petition for a child protection
order. On January 3, 2018, the Department requested and was granted a
preliminary child protection order (Portland, Field, J.), see 22 M.R.S. § 4034
(2018), and the child was temporarily placed with the Department and entered
foster care.
[¶3] With the parties’ agreement, the court (Portland, Eggert, J.) entered
a jeopardy order on March 5, 2018, finding that the mother had been unable to
care for the child because she had suffered severe brain injuries, had mental
health and substance use issues, and lacked stable housing. See 22 M.R.S.
§ 4035 (2018). On January 10, 2019, the Department petitioned to terminate
the mother’s and father’s1 parental rights, asserting that neither the mother nor
father could provide a safe environment and stable housing for the child. See
22 M.R.S. § 4052 (2018). On March 6, 2019, the father consented to the
termination of his parental rights.
[¶4] On May 14, 2019, the court held a one-day hearing on the petition
to terminate the mother’s rights, see 22 M.R.S. § 4054 (2018). In two orders
issued May 17, 2019, the court removed the child’s grandfather as guardian2
1 The child’s father is not a party to this appeal.
2 The child’s maternal grandfather had been the child’s legal guardian since the child’s birth. He
is also the mother’s legal guardian.
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and terminated the mother’s parental rights. It also declared the child’s
permanency plan to be adoption. In regard to the mother, the court determined
that there was clear and convincing evidence that the mother failed to alleviate
jeopardy and that circumstances were unlikely to change within a time
reasonably calculated to meet the child’s needs, see 22 M.R.S.
§ 4055(1)(B)(2)(b)(i); that she continued to be unable to take responsibility for
the child in a time reasonably calculated to meet the child’s needs, see 22 M.R.S.
§ 4055(1)(B)(2)(b)(ii); and that it would be in the child’s best interest to
terminate her parental rights, see 22 M.R.S. § 4055(1)(B)(2)(a). The court
based its determination on the following factual findings:
[The child] was placed in the guardianship [of his
grandfather] because his mother . . . was unable to care for him.
[The mother] continued to live with her parents and [the child]
after the guardianship was granted. On December 11, 2017, [the
grandfather] was evicted from his home and he and four other
unrelated individuals were served with no trespass orders to
remove them. There was no report that [the mother] was living
there, but [the child] was and he was placed by [the grandfather]
with [the grandfather’s former daughter-in-law] . . . . During this
time the Department of Health and Human [S]ervices had already
been investigating a report from [the child’s] school concerning his
behaviors in school and a Petition was filed with the Court on
December 20, 2017. . . .
[The child] is an incredibly high needs child. His behavior at
school . . . prompted a referral to the Department in November
2017 . . . . A recent foster parent . . . testified that [the child] required
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a lot of work which was essentially one on one attention on a 24/7
basis. A caregiver could not leave him alone for any length of time
and expect he would be safe. . . .
[The child] is presently placed with . . . a therapeutic foster
parent . . . . She is an elderly and experienced foster parent who
would not be considered for adoption of [the child]. She has a
calming influence on [the child] who appears to be doing well for
the time being in her care.
[The child’s] guardian [his grandfather] has had no contact
with [the child] for over a year. He is presently staying with friends
and does not have any permanent place to live. He was not really
able to care well for [the child] after his wife died in 2016, and [the
child’s] present emotional, medical, and psychological condition
may well be the result of that lack of good care.
. . . Compounding [the mother’s] inability to care for [the
child] was a brain injury suffered in 2012 from an assault. She is
now subject to seizures and admits she has poor impulse control as
demonstrated in the courtroom during this hearing. More
importantly, she has demonstrated her inability to visit with [the
child] and adequately interact with him on a consistent and
appropriate basis.
Mother was subject to a reunification plan that required her
to undergo a substance abuse evaluation, a mental health
evaluation, obtain a medication manager, obtain safe and stable
housing, have a neuropsychological evaluation, and regularly
attend supervised visits with [the child]. She does have a medical
manager, and has done some counseling but has not adequately
performed the other requirements of the plan. She has attended
visits but not all that have been scheduled and often ends them
early. She is not always appropriate at those visits, and has not
been able to progress beyond the once a week supervised visits. At
those supervised hearings she demonstrated that she could not be
left alone and unsupervised with [the child].
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(Footnote omitted). The mother timely appealed the judgment terminating her
parental rights. See 22 M.R.S. § 4006 (2018); M.R. App. P. 2B(d)(1).
II. DISCUSSION
A. Sufficiency of the Evidence
[¶5] The mother contends that the court lacked sufficient evidence to
justify the termination of her parental rights. Terminating a parent’s rights
without her consent requires finding by clear and convincing evidence “at least
one ground of parental unfitness and that termination of the parent’s rights is
in the child’s best interest.” In re Child of Rebecca J., 2019 ME 119, ¶ 5,
213 A.3d 108; see 22 M.R.S. § 4055(1)(B)(2) (2018). We review “the court’s
factual findings of unfitness and best interest for clear error, and we will uphold
those findings if there is any competent record evidence to support them.”
In re Child of Rebecca J., 2019 ME 119, ¶ 5, 213 A.3d 108. “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 B.P.,
2015 ME 139, ¶ 16, 126 A.3d 713 (quotation marks omitted). We review for an
abuse of discretion the court’s ultimate determination that termination is in the
child’s best interest. In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212.
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[¶6] Regarding the court’s unfitness finding, the mother’s challenge
appears to be predicated entirely upon her due process argument that she was
entitled to a competency inquiry, discussed infra Section II.B; she fails to
explain how her competency argument relates in any way to her claim that the
court lacked sufficient evidence to find her unfit.
[¶7] Concerning the court’s best interest finding, the mother asserts that
the court failed to make any findings specific to that element of the termination
standards. See 22 M.R.S. § 4055(1)(B)(2)(a). However, a court may draw from
the same findings in making its unfitness and best interest determinations.
Although parental unfitness and best interest of the child are two separate tests,
the court “may consider the findings of parental unfitness as relevant to best
interests. For example, the parent’s inability to protect the child from jeopardy
is relevant to the child’s best interest[].” In re Ashley A., 679 A.2d 86, 89
(Me. 1996). Further, the structure of the court’s order, which first presented all
of its factual findings and then rendered each of its legal determinations,
supports the conclusion that the court’s findings underlie both elements
required to terminate a parent’s rights.
[¶8] At the termination stage, a court determines a child’s best interest
by considering factors including “the needs of the child, the child’s age,
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attachment to relevant persons, periods of attachment and separation, ability
to integrate into substitute placement or back into [the] parent’s home, and the
child’s physical and emotional needs.” Id.; see 22 M.R.S. § 4055(2). The court
heard evidence demonstrating the child’s high level of need, the many foster
homes that he lived in, and his comparatively strong performance during
periods of routine and consistency. See In re Jason B., 552 A.2d 9, 11 (Me. 1988)
(“Because there is clear and convincing evidence in the record to support the
finding, the trial court properly determined that it is in the best interests of the
children that . . . parental rights . . . be terminated.”). This evidence is reflected
in the court’s factual findings, which are supported by the record. The court
was entitled to find that its findings were “highly probable.” In re Breauna N.,
1999 ME 191, ¶ 19, 742 A.2d 911 (quotation marks omitted).
B. Due Process
[¶9] In three interrelated arguments, the mother contends that the court
violated her due process rights by (1) failing to examine her competency,
(2) declining to postpone the termination hearing when she began to struggle
in the courtroom, and (3) failing to assign her a guardian. We conclude that no
violation of the mother’s due process rights occurred.
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[¶10] The mother did not raise the issue of competency during the
termination hearing, and the mother does not tender a claim of ineffective
assistance of counsel on appeal. We apply the obvious error standard of review
to her constitutional due process claim. See In re Child of Lacy H., 2019 ME 110,
¶ 9, 212 A.3d 320. Obvious error is “seriously prejudicial error tending to
produce a manifest injustice.” Id. (quotation marks omitted).
[¶11] The mother acknowledges that on several occasions during the
hearing she spoke out of turn. On one such occasion, the court temporarily
removed her from the courtroom after she interrupted a caseworker’s
testimony to dispute one of the caseworker’s statements. After the mother was
removed from the courtroom for a short recess, her attorney assured the court
that the mother had “calmed down” a “significant amount.” Nevertheless, after
hearing testimony from the caseworker and the child’s grandfather, the court
stated, “Mother seems to be sort of out of control at this point, and I’m
concerned about trying to put her on the stand in that condition,” and proposed
reconvening at a later date. After the attorneys expressed their schedule
conflicts, however, the court reconsidered and elected to proceed with the
hearing. The mother also identifies an instance in which her lawyer had to
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refocus her while discussing the same issue that had triggered her earlier
interjection.
[¶12] In addition to these examples, the mother isolates a number of
other exchanges at the hearing that speak to her mental health concerns
generally. These include references to her time spent at a psychiatric hospital,
her traumatic brain injury and history of seizures, and portions of her own
testimony in which she experienced difficulty explaining how her medical
conditions affected her daily life.
[¶13] We discussed the issue of a parent’s competency in relation to a
termination hearing in In re David H., 2009 ME 131, ¶ 16, 985 A.2d 490. We
said,
Review of the termination hearing record, including the mother’s
testimony, discloses no event or statement that might have
suggested to the court that the mother could not answer questions
appropriately, did not understand the nature and consequences of
the proceeding, or was otherwise incompetent to assist counsel and
participate in the proceedings.
Id. (emphasis added). We noted that, like in the present matter, “[a]t the
hearing, the mother, assisted by counsel, emphasized her competence, not her
incompetence.” Id.
[¶14] We revisited the issue of competency in the similar context of a
parent’s consent to termination in In re H.C., 2013 ME 97, ¶ 16, 82 A.3d 80. In
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that case, we held that in order for a parent to prevail on a claim of incapacity,
she “must prove that [she] was unable to reasonably understand the nature and
consequences of the consent.” Id. We further concluded that the District Court
may “inquire into whether a party’s act was a departure from the normal
pattern of similar transactions.” Id. In H.C., we decided that the parents’
consent to termination “was not a departure from prior related decisions”
because their “cognitive limitations were disclosed to the court throughout the
child protection process.” Id. Similarly, in the present matter, the court was
familiar with the mother’s health conditions.
[¶15] None of the above instances noted by the mother demonstrates
that she lacked the ability to understand the nature and consequences of the
hearing or to participate in it. In fact, the mother’s own statements suggest that
she well understood the purpose and relevance of the termination hearing.
During her testimony, the mother demonstrated her familiarity with the child’s
particular medical and behavioral conditions, and she asserted that she knew
how to “take care of [her child’s] needs.” Suffering from mental health issues
does not necessarily render one incompetent to participate in a hearing. See
In re David H., 2009 ME 131, ¶ 28, 985 A.2d 490. We have observed that “having
limited cognitive functioning is not the same as being incompetent to proceed
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in [a child protection] matter.” In re Child of Mercedes D., 2018 ME 149, ¶ 16,
196 A.3d 888 (quotation marks and alterations omitted). The incapacity
inquiry focuses instead on a parent’s ability to grasp the consequences of the
present proceeding.
[¶16] Here, like in David H. and in H.C., the court was aware of the
mother’s mental health issues, and the mother did not raise the issue of
incompetence prior to this appeal. See In re H.C., 2013 ME 97, ¶ 16, 82 A.3d 80
(“At no time prior to this appeal did either parent raise any concerns about his
or her mental capacity.”); In re David H., 2009 ME 131, ¶ 36, 985 A.2d 490 (“The
mother’s mental health issues were disclosed and addressed throughout the
child protective proceeding, including the termination hearing.”). We conclude
that on this record the mother has failed to demonstrate that she was unable to
understand the nature and consequences of the termination hearing, could not
answer questions, or was otherwise incompetent to participate in the hearing.
See In re H.C., 2013 ME 97, ¶ 16, 82 A.3d 80; In re David H., 2009 ME 131, ¶ 36,
985 A.2d 490. The court was not required to make a specific inquiry as to the
mother’s competency.3
3 Moreover, the mother’s own guardian, her father, attended the hearing and made no request for
a competency review.
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[¶17] Next, the court did not violate the mother’s due process when it
decided not to terminate the hearing. The mother admitted that her brain
injury impairs her ability to regulate emotions. However, intermittent lack of
emotional control is not the same as incapacity. See In re David H.,
2009 ME 131, ¶¶ 37-38, 985 A.2d 490. The fact that the court considered
postponing the hearing before proceeding does not demonstrate that the
mother was incompetent to participate in the hearing; rather it reflects the
court’s sensitivity toward the mother based upon her emotional responses.
We conclude that, on this record, due process did not require the court to
continue the hearing.
[¶18] Finally, due process did not require the court to sua sponte appoint
an additional support for the mother in the form of a guardian ad litem. The
mother’s counsel did not request a guardian ad litem for the hearing, and the
court had no evidence before it suggesting that a guardian ad litem would have
served a purpose or guided the mother more effectively through the hearing
than her lawyer could. See Child of Mercedes D., 2018 ME 149, ¶ 16,
196 A.3d 888 (concluding that, where the mother’s counsel moved for a
continuance to request appointment of a guardian ad litem, counsel failed to
demonstrate the mother’s need for a guardian).
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The entry is:
Judgment affirmed.
Kristina Dougherty, Esq. (orally), Chester & Vestal, P.A., Portland, for appellant
mother
Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee Department of
Health and Human Services
Portland District Court docket number PC-2017-92
FOR CLERK REFERENCE ONLY
In re Child of Sherri Y.
Combined Opinion