In re Child of Ronald W.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 107
Docket: Ken-18-66
Submitted
On Briefs: June 27, 2018
Decided: July 26, 2018

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

IN RE CHILD OF RONALD W.

PER CURIAM

[¶1] Ronald W. appeals from a judgment of the District Court (Augusta,

Nale, J.) terminating his parental rights to his child pursuant to 22 M.R.S.

§ 4055(1)(A)(1)(a) and (B)(2)(a), (b)(ii) (2017).1 He challenges the adequacy

of the court’s findings to inform the parties of the basis for the judgment as well

as the sufficiency of the evidence supporting the court’s finding of parental

unfitness and the court’s discretionary determination that termination is in the

best interest of the child. See id. § 4055(1)(B)(2) (2017). After reviewing the

record, we conclude that the court met its obligation to issue findings that are

adequate to inform the parties of the basis for the judgment and to allow for

effective appellate review, the evidence supports the court’s factual findings,

1 On January 22, 2018, the District Court (Augusta, Nale, J.) entered a judgment terminating the

mother’s parental rights contingent on the termination of the father’s parental rights after the mother
consented in writing to the termination of her rights. See 22 M.R.S. § 4055(1)(A)(1)(a), (B)(1) (2017).
The mother does not join in this appeal.
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and the court did not exceed its discretion in determining that termination of

the father’s parental rights is in the child’s best interest. Accordingly, we affirm

the judgment.

[¶2] As a preliminary matter, the father contends that the court erred by

failing to make a finding of parental unfitness as required by 22 M.R.S.

§ 4055(1)(B)(2)(b), and, to the extent that the court made such a finding, the

court was unclear regarding which statutory ground of unfitness formed the

basis for its decision. Contrary to the father’s contention, the court expressly

found parental unfitness. The court cited to section 4055(1)(B)(2)(b), listed

the statutory definitions for parental unfitness, and explained that the

Department was required to prove unfitness by clear and convincing evidence

pursuant to at least one of those statutory definitions. Under the heading

“UNFITNESS AS TO FATHER,” the court stated that it “must look at whether [the

father] will be able to take responsibility for [the child] within a time

reasonably calculated to meet [her] needs, and he cannot.”

[¶3] From this language, it is evident that the court found that the father

was unfit pursuant to section 4055(1)(B)(2)(b)(ii), which provides that

parental unfitness may be found when “[t]he parent has been unwilling or

unable to take responsibility for the child within a time which is reasonably
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calculated to meet the child’s needs.” That the court made a finding of parental

unfitness pursuant to section 4055(1)(B)(2)(b)(ii) is further demonstrated by

its specific findings of fact. These findings and conclusions meet the

requirement imposed on a court, see M.R. Civ.P. 52(a), to issue findings and

conclusions that are sufficient to “inform the parties of the reasoning

underlying its conclusions and to provide for effective appellate review.” Young

v. Young, 2015 ME 89, ¶ 10, 120 A.3d 106.

[¶4] The court based its finding of parental unfitness and its

determination of the child’s best interest on the following findings of fact:

[The father’s] drug use, criminal history, . . . and long-term
incarceration are longstanding and significant.

. . . .

The court finds that [the father] has not had consistent or
meaningful contact with his [child] throughout her life. [The
father] has either been incarcerated or living apart from [the child]
. . . for extended periods of time.

[The child] has not seen her father for over 20 months. [The
father’s] earliest release date is projected to be June of 2019.
Approximately 17 more months. The guardian reports that during
her visit with [the child] that [the child] has never made mention of
her father. . . . Each month is a very long time in the life of a child
this age.

The court finds that [the father] failed to initiate any contact with
[the Department of Health and Human Services] regarding his
[child] during the first 10 months [that she was in the custody of
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the Department during] his incarceration for violating his
probation. The one contact that he had was a letter expressing
concern for [the child]. After that contact with [the Department],
there wasn’t any more. He made no request of [the] case worker to
see his [child].

The court finds that [the father] is unable to meet the most basic
needs of his [child]. This situation will not change in the next
17 months. It has not changed since May 2, 2016. The court finds
that this father’s parental rights are not being terminated solely
upon his incarceration. . . .

The court heard testimony from [the father] regarding the steps he
is taking to better himself while he is incarcerated. [The father]
offered no timeline as to when he feels he will be a better person.
The court understands that [the father] does not want to lose his
[child]. The court understands that [the father] loves his [child].
Love alone is not enough.

. . . .

. . . [The father] remains incarcerated [after being] initially
incarcerated on May 2, 2016. He is not in a position now or anytime
soon to be able to care for the immediate needs of his [child].

. . . .

. . . The court carefully listened to and considered all that [the
father] says he is doing to help him be a better person. [The father]
believes he has “the Tools” to take care of his [child]. The court
disagrees. The court finds that [the child] is in immediate need of
a home which will provide safety, comfort, happiness, promise, and
the love she so desperately needs and deserves—NOW. The time
has come for this [child] to have stability in her young life.

[¶5] On appeal, the father challenges the sufficiency of the evidence

supporting the court’s factual findings and discretionary determinations,
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primarily arguing that the court impermissibly relied on the father’s

incarceration to find parental unfitness and the child’s need for permanency in

determining the child’s best interest.

[¶6] We review the trial court’s factual findings for clear error and its

ultimate determination to terminate parental rights for an abuse of discretion.

In re Child of James R., 2018 ME 50, ¶¶ 11, 14, 182 A.3d 1252.

[¶7] Contrary to the father’s contention, the court’s material findings are

supported by competent evidence in the record,2 and the court did not

impermissibly consider the father’s incarceration in reaching its parental

unfitness determination. The court stated that it may not and, in fact, did not

terminate the father’s rights based solely on his incarceration. The court stated

that incarceration was a factor, however, and that it “must consider whether

the length of a parent’s incarceration will prevent the parent from . . . taking

2 The court’s finding on one issue was not supported by the evidence. Several times in the

judgment, the court referred to domestic violence issues affecting the father. There is no support in
the record for a finding that the father engaged in acts of domestic violence. Although the guardian
ad litem’s reports include several repeated references to the Department’s involvement with the
mother regarding domestic violence, the jeopardy order issued in February 2017—an order
judicially noticed by the court—contains a finding that the accounts were “unsubstantiated.”

A factual error in a child protection order is harmless “if it is highly probable that the error did
not prejudice the parents or contribute to the result in the case.” In re Caleb M., 2017 ME 66, ¶ 25,
159 A.3d 345; see M.R. Civ. P. 61. Here, it is evident that the court’s unsupported finding regarding
domestic violence was not important to the court’s analysis. Rather, as we discuss in the text, the
focus of the court’s unfitness and best interest determinations was the father’s overall lack of present
and future capacity and preparedness to care for the child and the father’s failure to maintain a
relationship with child to the degree that he could have.
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responsibility for the child within a time reasonably calculated to meet the

child’s needs.” The court found that the father had been unable to meet the

child’s most basic needs since becoming incarcerated and that the situation

would not change for nearly a year and a half, until June 2019, when the father

was expected to be released from incarceration.

[¶8] Evidence admitted at the termination hearing supports the court’s

finding of parental unfitness. At the termination hearing, the Department

established that the father has been incarcerated since May 2016 for violating

his probation on a 2010 conviction for robbery committed against the child’s

mother. The father failed to take responsibility for his actions, describing his

probation violation as “an impossible situation” because his only “choices”

were either reporting to his probation officer and failing a drug test or failing

to report to the probation officer. The father testified that before deciding not

to report to his probation officer, he considered that he could be incarcerated

for a significant period of time but “went ahead with it anyway.”

[¶9] The Department also established—and the father admitted—that

he contacted the Department only once during the twenty months that the child

had been in the custody of the Department. The court found, with support in

the record, that the father had made no effort to arrange visitation through the
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Department. Although the father expressed to the guardian ad litem that he

wished for the child to have a relationship with his family, the father did not

make any arrangements for his family to visit with or care for the child. In fact,

the father’s testimony at trial was equivocal on this issue. The paternal

grandfather testified that he was willing to become a caretaker for the child for

the remainder of the father’s sentence, but the father testified that, although the

paternal grandfather would be “a good alternative,” he “[doesn’t] mind where

[the child] is now.”

[¶10] Although the father points to evidence that he presented

suggesting that he had a close relationship with the child before his

incarceration, the father has failed to maintain that parent-child relationship

since becoming incarcerated. See In re Cody T., 2009 ME 95, ¶ 28, 979 A.2d 81

(“In considering the parental fitness of an incarcerated parent, the court’s focus

is not on the usual parental responsibility for physical care and support of a

child, but upon the parent’s responsibility or capacity to provide a nurturing

parental relationship using the means available.”); see also In re Alijah K.,

2016 ME 137, ¶ 14, 147 A.3d 1159 (stating that a parent does not receive a

“pass” on his parental responsibilities as a result of being incarcerated). The

court did not err in finding that the father was unfit.
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[¶11] The father also contends that the court placed too much emphasis

on permanency in finding parental unfitness and in determining the child’s best

interest. Contrary to the father’s contention, the court’s order indicates that it

carefully and appropriately considered the child’s needs for stability and

permanency, which were affected by the father’s long-term incarceration and

the father’s failure to plan for the child’s care upon his release. The court

properly noted the Legislature’s policy in favor of permanency and stated that

the time within which a parent must take responsibility for the child is

measured from the child’s perspective. See 22 M.R.S. §§ 4050,

4055(1)(B)(2)(b), (2) (2017). Taking into consideration the father’s efforts to

“make himself a better person,” the court found, based on competent evidence

in the record, that the father did not have the “tools” to take responsibility for

the child and that the father “offered no timeline” for when he would be able to

do so. The weight and credibility of the father’s testimony that he has

participated in substance abuse counseling and parenting classes while

incarcerated was for the fact-finder’s determination. See In re Cameron B.,

2017 ME 18, ¶ 10, 154 A.3d 1199.

[¶12] Again, the court’s findings are supported by the evidence admitted

at trial. At the time of the hearing, the child had already been in the custody of
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the Department for twenty months, and the father was not expected to be

released from incarceration for another seventeen months. As the court noted,

“[e]ach month is a very long time in the life of a child this age.” When asked if

he was prepared and capable of taking care of the child upon his release, the

father testified, “Capable, yes. Prepared, maybe, you know?” Regarding his

plans for taking care of the child, the father testified that there should be

“guidelines” for him and that taking care of the child was not something to “just

jump[ ] right into.” When asked how long he thought it would take before he

could take full responsibility for the child, the father testified, “Who knows?”

[¶13] The court did not err or abuse its discretion by considering the

child’s needs for stability and permanency in finding parental unfitness and in

determining that termination of the father’s parental rights was in the child’s

best interest.3 See In re Thomas H., 2005 ME 123, ¶¶ 22-34, 889 A.2d 297;

see also In re Asanah S., 2018 ME 12, ¶¶ 5-6, 177 A.3d 1273; In re Alijah K.,

2016 ME 137, ¶ 14, 147 A.3d 1159.

3 The father also argues that the court erred by failing to make a finding that the child would be

harmed if she were returned to her father’s care and that the court abused its discretion by
terminating the father’s parental rights when the permanency plan for the child was unsettled. We
disagree. First, the court was not required to make a finding of prospective harm before terminating
the father’s parental rights. See In re Asanah S., 2018 ME 12, ¶ 7, 177 A.3d 1273; In re Jacob B.,
2008 ME 168, ¶ 17, 959 A.2d 734. Second, the court was not required to know which of the
prospective adoptive families would be the child’s permanent placement before determining that
termination of the father’s parental rights was in the child’s best interest. See In re Kenneth S.,
2017 ME 45, ¶ 6, 157 A.3d 244; cf. In re David W., 2010 ME 119, ¶¶ 1, 4-5, 8-10, 8 A.3d 673.
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The entry is:

Judgment affirmed.

Elizabeth S. Gray, Esq., The Law Office of Elizabeth S. Gray, Esq., Augusta, for
appellant father

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Gen. Atty., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services

Augusta District Court docket number PC-2016-76
FOR CLERK REFERENCE ONLY