In re Cameron B.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 18
Docket: Han-16-264
Submitted
On Briefs: November 29, 2016
Decided: January 26, 2017

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

IN RE CAMERON B.

SAUFLEY, C.J.

[¶1] The mother and the father of Cameron B. appeal from a judgment of

the District Court (Ellsworth, Roberts, J.) terminating their parental rights to the

child pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2) (2016). They

contend that the court should have ordered a permanency guardianship

instead of terminating their parental rights. We affirm the judgment.

I. BACKGROUND

[¶2] In January 2014, when Cameron was ten months old, the

Department of Health and Human Services filed a petition for a child protection

order because of the parents’ neglect and the threat of neglect due to their

substance abuse. On February 3, 2014, the Department sought and obtained a

preliminary protection order placing the child in the Department’s custody

after the Department alleged that the child was found alone in a car with the
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parents in contravention of a safety plan. The child was placed in foster care

with the father’s uncle and the uncle’s wife on the same day.

[¶3] By agreement, the court (Mallonee, J.) made a finding of jeopardy as

to both parents based on their substance abuse. A reunification plan required

them to maintain sobriety, refrain from using non-prescribed mood-altering

substances, and submit to random drug testing.

[¶4] After the court repeatedly, and unsuccessfully, ordered the parents

to comply with drug testing requirements, the Department filed a petition to

terminate their parental rights on May 19, 2015. The court denied the petition

on August 25, 2015, giving the parents additional time to recover from their

addictions. The court admonished the parents for failing to comply with drug

testing and warned them that their continued failure to engage in recovery

could result in future termination of their parental rights.

[¶5] On January 28, 2016, almost two years after Cameron was placed

with his relatives, the Department filed a second petition for termination of the

parents’ parental rights. The Department alleged that, in addition to both

parents’ substance abuse, neither was engaged in treatment, they had no stable

housing, and they had made “little or no progress” in the five months that had

elapsed after the first termination petition was denied.
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[¶6] The second termination hearing was held on April 26 and 29, 2016.

The Department caseworker testified that the Department recommended

termination because of the child’s young age and the risk that the parents would

repeatedly bring the matter back into court. The guardian ad litem (GAL) also

recommended termination. Although she believed that permanency

guardianship could also provide permanency for Cameron, she expressed

concern about “tension” between the parents and the foster parents.

[¶7] In a judgment entered on May 17, 2016, the court (Roberts, J.)

terminated both parents’ parental rights to Cameron after making the following

findings by clear and convincing evidence. See In re Hannah S., 2016 ME 32, ¶ 3,

133 A.3d 590. The parents “continually failed” to comply with the drug testing

requirement and never tested clean for a period of thirty days. The Department

requested drug tests from both parents on every weekday between January 22,

2016, and March 3, 2016, but neither parent complied. Permanency was

important for the child. The child had lived with his foster parents for twenty-

seven of the thirty-eight months of his life. The foster parents provided “a

loving and stable home” for him and they planned to adopt him. The parents

did not demonstrate a commitment to maintaining a sober lifestyle despite the

passage of twenty-nine months. The court further found that neither parent
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was willing and able to protect the child from jeopardy, and those

circumstances were unlikely to change within a time reasonably calculated to

meet his needs, nor was either parent willing and able to take responsibility for

the child within a time reasonably calculated to meet his needs. See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii). To achieve permanency for the child, termination

was in his best interest. See id. § 4055(1)(B)(2)(a).

[¶8] Both parents appeal from the judgment. See 22 M.R.S. § 4006

(2016); M.R. App. P. 2(b)(3).

II. DISCUSSION

[¶9] The parents do not challenge the court’s factual findings regarding

their lack of capacity for parenting. Instead, they argue that the court erred in

terminating their parental rights because the child was placed with relatives

who live in the same town and who support visitation. They contend that

termination was not in the child’s best interest and that the court should have

ordered a permanency guardianship instead.

[¶10] Before a court may terminate a parent’s parental rights, the court

must find at least one ground of parental unfitness—which is uncontested here

—and find, “by clear and convincing evidence . . . that termination is in the

child’s best interest.” In re C.P., 2016 ME 18, ¶ 30, 132 A.3d 174; see also
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22 M.R.S. § 4055(1)(B). We review the trial court’s factual findings for clear

error and will reverse a finding only “if there is no competent evidence in the

record to support it, if the fact-finder clearly misapprehends the meaning of the

evidence, or if the finding is so contrary to the credible evidence that it does not

represent the truth and right of the case.” Guardianship of Hailey M., 2016 ME

80, ¶ 15, 140 A.3d 478 (quotation marks omitted) (citations omitted). The

weight and credibility of the testimony and other evidence, including GAL

reports, are for the fact-finder’s determination. See In re I.S., 2015 ME 100, ¶ 11,

121 A.3d 105.

[¶11] “With regard to the best interest determination, we review the

court’s . . . ultimate conclusion for an abuse of discretion, viewing the facts, and

the weight to be given them, through the trial court’s lens.” In re M.B., 2013 ME

46, ¶ 37, 65 A.3d 1260 (quotation marks omitted). “The District Court’s

judgment on the issue of best interest is entitled to substantial deference

because that court is able to directly evaluate the testimony of the witnesses.”

In re Michaela C., 2002 ME 159, ¶ 27, 809 A.2d 1245.

[¶12] As part of a permanency plan, a court may create a permanency

guardianship to establish safe, long-term care for a child who is the subject of a

child protection proceeding. See 22 M.R.S. § 4038-C (2016). When it is
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appropriate, a permanency guardianship allows parents whose children cannot

be returned to them to have a meaningful opportunity to maintain a legal

relationship with their children and to have the court determine their rights to

have contact with their children. See id. The question before the trial court was

whether such an arrangement would serve Cameron’s best interest in the long

term.

[¶13] By the time of the final hearing in this matter, three-year-old

Cameron had been in foster care for more than two-thirds of his life. His

parents had demonstrated their inability and unwillingness to be meaningfully

involved in his life. To achieve permanency, he needed the certainty and

stability of adoption. The potential challenges to Cameron’s stable home and

consistent parenting along with the possible costs and stress on his caretakers

were appropriate for the court to consider. The foster parents similarly needed

clarity in their role. Any tensions between them and the parents could have

created further instability, and, again, were appropriate for the court to

consider in this context. Although there is no legal requirement for the foster

parents to allow visitation in the future, solidifying their roles as legal parents

may enable them to support the parents’ continuing to have sober visitation
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with the child.1 The court did not err or abuse its discretion in determining that

termination was in the best interest of the child.

The entry is:

Judgment affirmed.

Jeffrey C. Toothaker, Esq., Ellsworth, for appellant mother

Charles Helfrich, Esq., Ellsworth, 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

Ellsworth District Court docket number PC-2014-03
FOR CLERK REFERENCE ONLY

1 The foster mother testified that even if the parents’ rights were terminated, and she adopted the

child, she intended to allow them to see him.