In re Child of Scott L. , 210 A.3d 845 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 102
Docket: Ken-19-65
Submitted
On Briefs: June 26, 2019
Decided: July 2, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF SCOTT L.
PER CURIAM
[¶1] Scott L. appeals from a judgment of the District Court (Waterville,
Montgomery, J.) terminating his parental rights to his child pursuant to
22 M.R.S. § 4055(1)(B)(2)(a), (b)(ii) (2018).1 He challenges the court’s
determination that termination of his parental rights is in the child’s best
interest. See id. § 4055(1)(B)(2)(a). We affirm the judgment.
I. BACKGROUND
[¶2] The following facts are drawn from the court’s findings, which are
supported by competent record evidence, and from the procedural record. See
In re Children of Corey W., 2019 ME 4, ¶ 2, 199 A.3d 683.
[¶3] In March of 2017, the Department of Health and Human Services
filed a petition for a child protection order and preliminary protection order,
1 The child’s mother consented to termination of her parental rights to the child at issue here and
is not a party to this appeal. The father also has a younger child who is not in his custody and is not
subject to this action.
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requesting that the court place the child—who was three years old at the
time—in the temporary custody of the Department. See 22 M.R.S. §§ 4032,
4034(1) (2018). The petition alleged that the child was in jeopardy due, in part,
to the father’s lengthy criminal history as well as his current unavailability to
parent the child because he was incarcerated. The court (Stanfill, J.) issued a
preliminary protection order and ordered that the child be placed in
departmental custody.
[¶4] In April of 2017, the court entered an agreed-upon jeopardy order
as to the father based on the father’s ongoing incarceration, his never having
been the child’s primary caregiver, and the issuance of an order for protection
from abuse against the father in an action filed by the mother after he
threatened to kidnap the child. See 22 M.R.S. § 4035 (2018).
[¶5] The Department arranged a trial placement of the child in the
father’s home from February to May of 2018, but that placement ended
unsuccessfully for the reasons described below, and the child was returned to
foster care, where she has since remained.
[¶6] During the summer of 2018, the Department petitioned to terminate
the father’s parental rights. See 22 M.R.S. § 4052 (2018). The following
November, the court (Montgomery, J.) held a hearing on the petition. The
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witnesses included several of the child’s therapists and support workers,
departmental caseworkers, the child’s foster mother, the father and his
therapist, and the guardian ad litem. The court subsequently entered a
judgment terminating the father’s parental rights supported by its
determination, based on clear and convincing evidence, that the father had
been unwilling or unable to take responsibility for the child and would be
unlikely to do so within a time reasonably calculated to meet the child’s needs.
See 22 M.R.S. § 4055(1)(B)(2)(b)(ii). The court also determined that
termination of the father’s parental rights is in the child’s best interest. See id.
§ 4055(1)(B)(2)(a).
[¶7] The court made the following factual findings, all of which are
supported by competent record evidence. See In re Child of Jonathan D., 2019
ME 14, ¶ 5, 200 A.3d 799.
At the time of the jeopardy hearing, [the father] was incarcerated
for Aggravated Furnishing of Scheduled Drugs. He was sentenced
to two years, all but six months suspended. [The father] has an
extensive criminal history, which includes multiple theft and
burglary convictions as well as violations of conditions of release.
In 2015, [the mother] obtained a protection from abuse
order against [the father] . . . on the basis of her allegations that
1) [the father] strangled her when she was pregnant with [the
child]; 2) he engaged in abusive, controlling, and coercive behavior
during their relationship; and 3) he threatened to go to [the
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mother]’s home and kidnap [the child]. [The father] disputes these
allegations.
....
. . . [The father] had begun visiting with [the child] in his home
in November 2017. He then began bracketed visits until
February 2018 when the Department began a trial placement with
[the father]. He remained in consistent contact with the
Department and the former foster parents.
During the trial placement, [the father] struggled to get [the
child] to her necessary services and appointments despite
numerous conversations with the Department and changes to
transportation arrangements. While [the father] managed to get
[the child] to [the child development center] more consistently
than to her other appointments, her attendance there still declined
significantly. As for [the child]’s lack of attendance at other
appointments, [the father] maintained that the Department had not
set up transportation for them.
Between February and May 2018, [the child] was attending
[occupational therapy], but [the father] attended with her only
once. As [the child]’s attendance at [the child development center]
declined, so did her attendance at her OT sessions. From February
to May, [the child] attended nine OT sessions but missed 15. The
irregular nature of her attendance made it difficult for [the child]
to make and sustain improvement, especially with regard to her
peer interaction and emotional regulation.
During the trial placement, [the father] struggled to find
appropriate caregivers for [the child] when he was working. On
April 22, 2018, he engaged a friend who was well-known to the
Department (and had not been approved as a caregiver for [the
child]) to care for [the child]. While he was gone to work, this
friend allowed [the mother] into his home to visit with [the child].
After [the father] got home from work, [the child] was awake. She
stayed awake until approximately 2:00 a.m.
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The next day, April 23, 2018, [the father] slept in until
9:30 a.m., leaving [the child] unsupervised. He did not set an alarm
when he went to bed the night before because [the child] had
stayed up so late that he assumed she would sleep late as well.
When [the father] awoke that morning, he could not find [the child]
anywhere in the house. He called the police for help. [The child]
was eventually found on the roof of the apartment building. . . .
When [Department] agents toured [the father]’s home, they were
concerned about the home as it was described as filthy and
smelling like smoke and bleach. There was a marijuana plant on
the floor in [the father]’s bedroom.
Thereafter, [the child]’s internal sense of well-being showed
signs of stress. . . . She also began to have nightmares, and her
behavior declined.
....
Up until May 2018, the evidence suggests that [the father]
consistently attended counseling sessions. However, he stopped
going at all after May 9, 2018. He had not fully reached his
treatment goals when he stopped attending, and then was
discharged in July due to lack of attendance. He likewise withdrew
from communicating with the GAL in May 2018 and did not reach
out at all thereafter. He also stopped participating in random drug
screens once the trial placement began.
The father filed a timely appeal from the judgment. See 22 M.R.S. § 4006
(2018); M.R. App. 2B(c)(1).
II. DISCUSSION
[¶8] The father does not challenge the court’s factual findings or its
determination of parental unfitness, see 22 M.R.S. § 4055(1)(B)(2)(b)(ii), but
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asserts only that the court erred by concluding that termination of his parental
rights is in the child’s best interest, see id. § 4055(1)(B)(2)(a).2 “We review the
court’s factual findings related to the child’s best interest for clear error, and its
ultimate conclusion regarding the child’s best interest for an abuse of
discretion, viewing the facts, and the weight to be given them, through the trial
court’s lens.” In re Children of Christopher S., 2019 ME 31, ¶ 7, 203 A.3d 808
(quotation marks omitted).
[¶9] Here, the court based its best interest determination primarily on
the child’s need for permanency. In determining whether termination of
parental rights is in the child’s best interest, the court is required to consider
“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(1)(B)(2)(a), (2)
(2018); see also In re Child of Mercedes D., 2018 ME 149, ¶ 21, 196 A.3d 888.
Also relevant to the court’s determination is the harm the child may suffer if the
parent’s rights are not terminated and the child’s need for permanence and
To the extent that the father may be seen to assert that the court erred by concluding that he is
2
parentally unfit, that contention is not persuasive. See In re Children of Anthony M., 2018 ME 146, ¶ 8,
195 A.3d 1229 (stating the standard of review of a court’s determination of parental unfitness).
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stability. See Adoption of Isabelle T., 2017 ME 220, ¶ 49, 175 A.3d 639.
“[P]ermanency is the ‘central tenet’ of the Child and Family Services and
Protection Act,” 22 M.R.S. §§ 4001 to 4099-H (2018). In re Children of Jessica D.,
2019 ME 70, ¶ 8, --- A.3d ---. “Permanency is a dynamic concept that must be
fashioned from the actual circumstances and needs of the child or children
before the court.” In re Child of Carl D., 2019 ME 67, ¶ 9, --- A.3d --- (quotation
marks omitted).
[¶10] Contrary to the father’s assertions on appeal that the child already
had permanency and that her best interest was met through the trial placement
with him, the father testified that he would be fully ready to take custody and
care for the child if given another six months. As the GAL responded at the
hearing, six months is too long for the child to wait. See In re Child of Peter T.,
2019 ME 56, ¶¶ 6, 13, 207 A.3d 183. The child’s behavioral and medical needs
are significant. When, during the trial placement, he had the opportunity and
corresponding responsibility as the child’s primary caregiver to provide her
with a safe and nurturing home, the father came up materially short of meeting
her needs, and as a result the Department properly suspended the trial
placement. As the court also found, he has not fulfilled his obligation to
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effectively address his parenting deficiencies, which would be necessary for
him to be able to parent the child effectively.
[¶11] There is sufficient evidence in the record for the court to have
found that “the time is now for [the child] to settle into a life of safety, stability,
routine, and love” and that “permanence must not be delayed,” but that the
father will not able to provide her with that permanence in a timely way. See In
re Jamara R., 2005 ME 45, ¶ 22, 870 A.2d 112 (“[O]nce a child has been placed
in foster care, a statutory clock begins ticking. In setting that clock, the
Legislature has spoken in terms of days and months, rather than in years, as
might better fit an adult’s timeframe for permanent change.”), overruled in part
on other grounds by In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d 1118. The court
did not err or abuse its discretion by concluding that terminating the father’s
parental rights is in the child’s best interest so that she can have the
permanence she needs. See 22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H., 2005
ME 123, ¶¶ 16-17, 889 A.2d 297.
The entry is:
Judgment affirmed.
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Kevin P. Sullivan, Esq., Sullivan Law, P.C., Gardiner, for appellant father
Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services
Waterville District Court docket number PC-2017-12
FOR CLERK REFERENCE ONLY