MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 198
Docket: Yor-17-194
Submitted
On Briefs: September 27, 2017
Decided: October 5, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE HOPE H. et al.
PER CURIAM
[¶1] The mother and father of Hope H., Jason J., and Kristopher J. appeal
from the judgment of the District Court (Springvale, Foster, J.) terminating their
parental rights to their twin sons pursuant to 22 M.R.S. § 4055(1)(A)(1)(a),
(B)(2)(a), (b)(i)-(ii), (iv)1 (2016). The mother also appeals from the same
judgment terminating her parental rights to her daughter pursuant to the same
statutory provisions. The parents both challenge the sufficiency of the evidence
to support the court’s finding of at least one ground of parental unfitness and
the court’s determination that termination of their parental rights was in their
children’s best interests. The mother also challenges the court’s exclusion of
the children’s grandmother’s testimony as hearsay.
1 The court found, as to the father only, a failure “to make a good faith effort to rehabilitate and
reunify with the children pursuant to 22 M.R.S. § 4041.”
2
[¶2] Contrary to the parents’ contentions, competent evidence in the
record supports the court’s findings that the parents are unwilling or unable to
protect the children from jeopardy and otherwise take responsibility for the
children within a time reasonably calculated to meet the children’s needs and
that the father has failed to make a good faith effort to rehabilitate and reunify
with the children pursuant to 22 M.R.S. § 4041 (2016). The court appropriately
exercised its discretion in concluding that termination of their parental rights
was in the children’s best interests. Furthermore, the record shows that the
court did not abuse its discretion in excluding the grandmother’s proffered
testimony regarding “[s]ome of the stories that Hope has made up.” We affirm
the judgment.
I. BACKGROUND
[¶3] Clear and convincing evidence in the record supports the court’s
findings that the mother and the father are unable or unwilling to take
responsibility for the children and protect them from the risks of harm that
have persisted since the court issued the jeopardy order. 22 M.R.S.
§ 4055(1)(B)(2).
3
[¶4] The initial jeopardy order was based upon the parents’
inability to appropriately address their boys’ behavioral challenges
and mental health needs; emotional harm due to [their] inability to
obtain and maintain adequate, sanitary and stable housing for
[themselves] and the children; and the risk of harm based on the
mother’s lack of support around her daughter[’s] . . . reports [and
the father’s] sexually inappropriate communications with her.
. . . .
. . . Jeopardy also consists of a risk of harm to the boys[ ] based
on [the father’s] conduct to their half-sister.
[¶5] Until July 2016, approximately a year and a half after her daughter’s
disclosure of the father’s sexually inappropriate communications, the mother
maintained that the daughter’s disclosures were the product of a delusion and
insisted on having her evaluated for a delusional disorder. Despite her
daughter’s consistent statements and medical examinations that ruled out the
possibility that her daughter had any disorder, at the termination hearing the
mother maintained doubts about the truth of her daughter’s disclosures
regarding the father. The father continues to deny that anything happened,
although he acknowledges the court’s finding to the contrary and that his
reunification plan requires that he “take responsibility for his actions and how
they have impacted his children and their safety and well[-]being.”
[¶6] Although in July 2016 the mother claimed that she separated from
the father to demonstrate her commitment to getting her children back, the
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mother remains living with a friend in a one-bedroom apartment in the same
building as the father. Competent evidence in the record provides the court
with a firm basis to find that the parents will not take responsibility for their
children’s needs or protect them from jeopardy. As the court found:
The court is not persuaded that [the mother] and [the father]
are truly and finally separated. Certainly, it is not what [the father]
wants and [the mother] has not offered a convincing rationale for
what prompted her to terminate a ten-year relationship. As
recently as . . . October 5, 2016 [the mother] said she needed to talk
with [the father] about bringing a special treat for the children. As
she was leaving, she told the children she would give [the father] a
hug and a kiss for them. The mechanics of the separation, with the
two remaining in the same building but on different floors,
underscores [the mother’s] lack of commitment to the action as
well as its unsustainability. [The mother] remains dependent on
others, most notably [the father]. She has no employment, no
income, and no driver’s license. It is unclear how she is supporting
herself but the Court suspects [the father] assists her to a greater
degree than he acknowledged at trial.
If the parties are, in fact, still a couple, clearly [the daughter]
cannot return to her mother’s care. If the parties are really
separated, neither has the ability to manage the behaviors of their
sons nor to meet their physical, emotional, behavioral and
educational needs. [The father] has engaged in virtually no
services designed to assist him to better parent his children; [the
mother] has attended services but shows no gains in her ability or
insight into her children’s needs.
[¶7] The court relied on the following testimony of the GAL to summarize
its analysis of the children’s best interests:
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We are talking about this window of opportunity, if you will, where
[the children] get to have something, they get to have an education,
they get to have some stability, they get to have some reasonable
feeling of safety. With all that is unknown about their future in the
foster care system it is, at least in my opinion, less unknown as to
what their future would look like if they were to immediately
return to their parents. . . . It is in the best interests of all three of
the children to free them of the uncertainty of whether they might
return to a parent or parents and begin the process of securing
appropriate, loving families for adoption.
See 22 M.R.S. § 4055(1)(B)(2)(a), (3).
II. DISCUSSION
[¶8] We review the court’s findings of fact on parental unfitness for clear
error and its conclusion that termination of parental rights was in the children’s
best interests for an abuse of discretion. In re M.B., 2013 ME 46, ¶ 37,
65 A.3d 1260 (“Where the court finds multiple bases for unfitness, we will
affirm if any one of the alternative bases is supported by clear and convincing
evidence.”).
[¶9] The mother and the father argue that the four months from the time
of the jeopardy order to the filing of the petition to terminate their parental
rights was an inappropriately expedited time frame and that the court failed to
adequately credit their incremental gains toward fulfilling their reunification
plans. Despite any progress the parents have made toward reunification, there
remain significant deficits in their housing; their acknowledgement and
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management of the risk that the father could further harm the children; and
their ability to meet the children’s significant emotional and mental health
needs.
[¶10] Marginal progress toward reunification and a simple desire to
remain parents is not enough to ameliorate jeopardy and meet the children’s
needs. See In re Alana S., 2002 ME 126, ¶¶ 13, 21-23, 802 A.2d 976 (affirming
termination despite parents’ significant progress toward reunification where
full reunification was not possible in the foreseeable future). Expedited
permanency planning, which occasionally presents a challenge to parents’
abilities to overcome their parenting deficits, furthers the Legislature’s intent
to serve children’s interests in promptly moving toward permanency. 22 M.R.S
§ 4050 (2016); In re Jamara R., 2005 ME 45, ¶ 22, 870 A.2d 112, overruled in
part on other grounds by In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d 1118. Here,
the timeline for termination of parental rights was proper given the
circumstances of the case, the children’s best interests, and the intent of the
child protection statute.
[¶11] The mother also contends that the court abused its discretion by
excluding as hearsay the maternal grandmother’s testimony about an instance
when the daughter claimed that she suffered a physical harm that was later
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disproven by a medical examination. She argues that statements by the
daughter’s former school officials, pediatrician, and Massachusetts child
protection workers were non-hearsay statements offered only to show their
effect on the listeners—the grandmother and mother—and thus explain why
they believed the daughter had a predisposition to untruthfulness. The mother
complains that the trial court’s inquiry into the purpose for offering the
grandmother’s testimony “foreclosed this line of testimony as hearsay.”
[¶12] The grandmother’s testimony, which recited information she
heard from others related to specific instances of the daughter’s allegedly
untrue statements,2 constituted inadmissible hearsay and the court
appropriately expressed an intention to exclude it. M.R. Evid. 801(c)(2).
[¶13] The mother argues on appeal that the grandmother’s testimony
was admissible to prove its effect on the listeners’ state of mind. See Field &
Murray, Maine Evidence § 801.3 at 427-28 (6th ed. 2007). This argument
departs from the apparent initial purpose for this testimony, which was to
prove that the daughter was not always credible by offering the hearsay
statements of third parties who refute the statements made by her. Cf. State v.
2 The testimony about specific instances of the daughter’s conduct is also not admissible as
character evidence of the daughter’s untruthfulness. See M.R. Evid. 608(b); State v. Wells,
423 A.2d 221, 225 (Me. 1980).
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Harrigan, 662 A.2d 196, 197-98 (Me. 1995). Therefore, the court correctly
sustained the Department’s first hearsay objection to the initial proffer, insofar
as it was offered for its truth. Contrary to the mother’s assertion that the court
excluded the grandmother’s testimony, which was ostensibly tendered for the
sole purpose of showing the effect that the third party’s statements had on the
mother’s and grandmother’s states of mind,3 the court actually allowed her to
proceed on that basis. See M.R. Evid. 801(c)(2). The fact that the court observed
that the testimony, as offered and allowed in the second instance, had limited
value does not constitute an exclusion of the evidence. The weight afforded to
the evidence is soundly within the discretion of the trier of fact. See In re I.S.,
2015 ME 100, ¶ 11, 121 A.3d 105.
The entry is:
Judgment affirmed.
3 The court notes, in allowing the second portion of the testimony, that “I’ll allow you to do it but
I don’t think it has much value.”
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Carina Cilluffo, Esq., Portland, for appellant mother
Peter M. McGee, Esq., South Portland, 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
Springvale District Court docket numbers PC-2015-02 and PC-2015-03
FOR CLERK REFERENCE ONLY