In re Caleb M. , 2017 Me. LEXIS 67 ( 2017 )


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  • MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions
    Decision:	    
    2017 ME 66
    Docket:	      Cum-16-286
    Submitted
    On	Briefs:	 January	19,	2017
    Decided:	     April	6,	2017
    Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.
    IN	RE	CALEB	M.	et	al.
    SAUFLEY,	C.J.
    [¶1]		More	than	two	and	a	half	years	after	Caleb	M.	and	Ayden	R.	were
    first	 removed	 from	 their	 mother’s	 care	 because	 of	 her	 substance	 abuse	 and
    consequent	 neglect,	 the	 mother’s	 parental	 rights	 to	 the	 children	 were
    terminated	 by	 a	 judgment	 of	 the	 District	 Court	 (Portland,	 Eggert,	 J.).	 	 The
    mother	 appeals,	 arguing	 that	 the	 court	 did	 not	 independently	 exercise	 its
    judicial	function,	that	the	court	improperly	relied	on	the	reports	of	a	guardian
    ad	 litem	 (GAL),	 and	 that	 the	 evidence	 was	 insufficient	 to	 support	 the
    termination	of	her	parental	rights.		We	affirm	the	judgment.
    I.		BACKGROUND
    [¶2]	 	 On	 November	 7,	 2013,	 the	 Department	 sought	 child	 protection
    orders	on	behalf	of	Caleb	M.	and	Ayden	R.	due	to	allegations	of	neglect	caused
    2
    by	the	mother’s	substance	abuse.1		By	agreement,	on	March	3,	2014,	the	court
    (Goranites,	J.)	made	a	finding	of	jeopardy	against	the	mother	as	to	each	child,
    based	on	the	mother’s	exposure	of	the	children	to	drug	use,	criminal	activity,
    and	 unsafe	 individuals;	 and	 her	 lack	 of	 appropriate	 housing.	 	 While	 these
    proceedings	 were	 pending,	 the	 mother	 gave	 birth	 to	 a	 daughter	 who	 is	 the
    subject	of	a	separate	child	protection	proceeding.
    [¶3]	 Judicial	 reviews	 were	 held	 on	 March	 3	 and	 September	 3,	 2014;
    March	3	and	September	9,	2015;	and	March	8,	2016,	and	orders	were	entered
    by	agreement	after	each	of	these	reviews.		Reports	of	a	GAL	were	admitted	in
    evidence	at	each	of	the	judicial	reviews.		The	September	9,	2015,	and	March	8,
    2016,	judicial	reviews	were	presided	over	by	the	same	judge	(Eggert,	J.)	who
    ultimately	presided	over	the	termination	hearing.
    [¶4]		On	December	14,	2015,	the	Department	filed	a	petition	to	terminate
    the	 mother’s	 parental	 rights	 to	 Caleb,	 and	 on	 February	 18,	 2016,	 the
    Department	filed	a	petition	to	terminate	her	parental	rights	to	Ayden.		In	both
    petitions,	 the	 Department	 alleged	 that	 the	 mother	 had	 inconsistently
    participated	in	mental	health	and	substance	abuse	services,	and	had	continued
    1		At	the	time	the	Department	filed	its	petition,	the	children	had	been	placed	with	their	maternal
    aunt	since	September	2013,	pursuant	to	a	safety	plan.
    3
    to	permit	unsafe	individuals,	including	the	three	fathers	of	her	children,	to	be
    present	around	the	children.
    [¶5]		The	court	conducted	a	hearing	on	the	petitions	on	May	12	and	16,
    2016,	during	which	the	court	heard	testimony	from	the	mother,	the	mother’s
    and	 the	 children’s	 providers,	 Department	 caseworkers,	 and	 the	 GAL.	 	 At	 the
    conclusion	 of	 the	 hearing,	 the	 court	 sought	 proposed	 orders	 from	 both	 the
    mother	and	the	Department.		In	a	judgment	entered	on	June	2,	2016,	in	which
    the	 court	 largely	 adopted	 the	 Department’s	 proposed	 order,	 the	 court
    terminated	 the	 mother’s	 parental	 rights	 to	 both	 children.2	 	 In	 a	 footnote,	 the
    court	 noted	 that	 it	 had	 used	 the	 Department’s	 proposed	 order	 “extensively”
    because	 “the	 Department’s	 proposed	 findings	 align	 quite	 closely	 with	 the
    court’s	view	of	the	evidence.”
    [¶6]		In	its	judgment,	the	court	made	the	following	supported	findings	by
    clear	and	convincing	evidence.		See	In	re	Hannah	S.,	
    2016 ME 32
    ,	¶	3,	
    133 A.3d 590
    .		The	mother	has	had	a	substance	abuse	problem	for	several	years.		She
    participated	 in	 various	 treatment	 programs	 including	 outpatient,	 intensive
    outpatient,	 and	 residential	 programs.	 	 Her	 compliance	 with	 these	 treatment
    2		The	fathers’	parental	rights	were	terminated	by	judgments	entered	on	May	26,	2016.		Neither
    father	appealed	the	termination	of	his	parental	rights.
    4
    programs	was	inconsistent,	and	she	was	discharged	from	one	program	for	her
    failure	 to	 make	 progress.	 	 Needles	 were	 found	 in	 her	 room	 at	 one	 of	 the
    treatment	programs.
    [¶7]	 	 The	 mother	 relapsed	 on	 several	 occasions,	 and	 recent	 drug	 tests
    performed	by	her	doctor	showed	elevated	levels	of	her	prescribed	medications
    and	 indications	 that	 she	 was	 also	 using	 nonprescribed	 medications.	 	 In
    December	 2015,	 the	 mother	 admitted	 that	 she	 overused	 her	 prescribed
    Suboxone.	 	 Only	 two	 months	 before	 her	 parental	 rights	 were	 terminated,	 a
    Department	caseworker	found	needles	in	her	bedside	table.
    [¶8]		The	mother	permitted	several	“unsafe	men”	to	be	present	with	the
    children.	 	 In	 early	 2016,	 a	 Department	 caseworker	 making	 an	 unannounced
    visit	to	the	mother’s	home	discovered	Ayden’s	father	hiding	in	a	closet	despite
    the	 mother’s	 denial	 that	 he	 was	 there.	 	 Ayden’s	 father	 was	 then	 arrested	 on
    outstanding	warrants.		In	April	2016,	a	caseworker	visiting	the	mother’s	home
    noticed	her	infant	daughter’s	father	leaving.		When	the	caseworker	asked	the
    mother	 about	 needles	 that	 were	 found	 in	 a	 nightstand,	 she	 blamed	 the
    daughter’s	father	and	his	friend.
    [¶9]	 	 Caleb	 was	 afraid	 of	 returning	 to	 live	 with	 his	 mother	 because	 he
    worried	that	he	would	be	the	one	who	would	have	had	to	care	for	Ayden	and
    5
    their	 sister.	 	 He	 worried	 about	 having	 enough	 food	 to	 eat,	 and	 he	 regularly
    checked	the	cupboards	in	his	foster	home	to	see	that	there	was	enough	food.
    Caleb	has	been	diagnosed	with	autism	spectrum	disorder,	and	is	on	the	waiting
    list	 for	 more	 intensive	 in-home	 support,	 as	 well	 as	 trauma-focused	 cognitive
    behavioral	 therapy.	 	 Caleb’s	 therapist	 believes	 that	 returning	 Caleb	 to	 his
    mother’s	care	would	“re-traumatize”	him.
    [¶10]	 	 The	 mother	 did	 not	 consistently	 attend	 visits	 with	 her	 children.
    The	 visit	 supervisor	 testified	 that	 Caleb	 seemed	 to	 “r[u]n	 the	 show”	 during
    visits	with	the	mother.		When	the	mother	misses	visits	with	Caleb,	he	becomes
    very	upset.		The	Department	intends	to	seek	an	adoptive	placement	for	Caleb.
    [¶11]		Ayden	has	been	diagnosed	with	ADHD.		In	his	foster	placement,
    Ayden	thrived	on	structure	and	routine.		In	late	2015,	the	mother	was	given	the
    opportunity	to	have	Ayden	with	her	again.		He	was	returned	to	his	mother’s
    care	in	a	trial	placement	but	had	to	be	removed	again	in	early	2016.
    [¶12]		Supporting	the	decision	to	remove	Ayden,	the	GAL	testified	that
    during	the	trial	placement,	Ayden’s	“level	of	care	suffered	enormously	when	he
    was	with	his	mother.”		According	to	the	GAL,	he	was	“falling	asleep	in	class,”
    “behind	academically,”	and	“hungry.”		“His	mother	was	not	picking	.	.	.	him	up
    6
    reliably,”	and	“he	was	having	hygiene	issues.”		The	Department	plans	to	seek	an
    adoptive	placement	for	Ayden.
    [¶13]	 	 The	 court	 ultimately	 found	 that,	 despite	 the	 mother’s	 access	 to
    services	for	more	than	two	years,	the	mother	could	not	rebut	the	presumption
    of	unfitness	that	arose	because	of	her	chronic	substance	abuse.		See	22	M.R.S.
    §	4055(1-A)(C)	(2016).		At	the	time	of	the	hearing,	the	mother	was	unable	to
    care	 for	 the	 children,	 and	 she	 may	 never	 be	 able	 to	 do	 so.	 	 Caleb	 and	 Ayden
    “need	 permanency”	 after	 having	 lived	 in	 a	 state	 of	 “limbo”	 for	 nearly	 three
    years.		Both	children	“deserve	the	permanency	of	adoption.”		The	court	found
    that	 adoption	 is	 in	 the	 best	 interest	 of	 each	 child.	 	 See	 22	 M.R.S.
    §	4055(1)(B)(2)(a)	(2016).		The	mother	timely	appealed.		See	22	M.R.S.	§	4006
    (2016);	M.R.	App.	P.	2(b)(3).
    II.		DISCUSSION
    [¶14]		The	mother	contends	on	appeal	that	the	court	failed	to	exercise	its
    independent	 judgment	 in	 terminating	 her	 parental	 rights	 and	 erred	 in
    considering	GAL	reports,	and	that	the	evidence	was	insufficient	to	support	the
    court’s	decision	to	terminate	her	parental	rights.
    7
    A.	    Trial	Court’s	Independent	Judgment
    [¶15]	 	 The	 mother	 first	 argues	 that	 the	 court	 did	 not	 exercise	 its
    independent	 judgment	 in	 terminating	 her	 parental	 rights	 because	 the	 court
    adopted	the	Department’s	proposed	order	with	minimal	changes.		We	note	that
    the	 mother	 failed	 to	 file	 a	 motion	 for	 further	 findings	 or	 for	 reconsideration
    before	 raising	 this	 issue	 in	 her	 appeal.	 	 As	 we	 have	 recently	 noted,	 “appeals
    challenging	orders	based	upon	an	alleged	lack	of	independent	judgment	by	a
    judge	should	be	preceded	by	an	appropriate	motion	that	identifies	the	issue	and
    allows	 the	 trial	 judge	 an	 opportunity	 to	 address	 those	 concerns	 prior	 to
    appellate	review.”		Yap	v.	Vinton,	
    2016 ME 58
    ,	¶	9	n.1,	
    137 A.3d 194
    .		We	now
    clarify	 the	 importance	 of	 such	 a	 motion	 in	 the	 context	 of	 a	 child	 protection
    proceeding.	 	 In	 order	 to	 avoid	 the	 delay	 inherent	 in	 a	 later	 challenge	 to	 the
    court’s	order	that	could	have	been	expeditiously	addressed	by	the	trial	court,
    we	 will	 no	 longer	 entertain	 a	 challenge	 to	 the	 trial	 court’s	 independent
    judgment	based	on	the	court’s	adoption	of	a	party’s	proposed	order,	absent	a
    8
    parent’s	motion	for	further	or	clarified	findings	pursuant	to	Maine	Rule	of	Civil
    Procedure	52(b).3
    [¶16]		Because	we	have	not	previously	announced	this	requirement,	we
    proceed	 to	 consider	 the	 merits	 of	 the	 mother’s	 argument.	 	 “In	 reviewing
    whether	 the	 trial	 court	 performed	 its	 judicial	 function,	 we	 must	 determine
    whether	 the	 findings	 adequately	 indicate	 the	 factual	 basis	 [for]	 the	 ultimate
    conclusion.”		In	re	Sabrina	M.,	
    460 A.2d 1009
    ,	1013	(Me.	1983).		“If	the	proposed
    findings	are	argumentative	or	insufficiently	objective	because	they	are	drafted
    by	 a	 party,	 a	 judgment	 adopting	 those	 findings	 may	 be	 defective.”	 	In	 re	 C.P.,
    
    2016 ME 18
    ,	¶	19,	
    132 A.3d 174
    .
    [¶17]		Although	“a	verbatim	adoption	of	findings	proposed	by	one	party
    .	.	.	is	disfavored,	as	such	an	approach	suggests	that	the	court	has	not	applied	its
    independent	judgment	in	making	its	findings	and	conclusions,”	draft	findings
    proposed	by	either	side	can	aid	the	court’s	fact-finding.		In	re	Marpheen	C.,	
    2002 ME 170
    ,	¶	7,	
    812 A.2d 972
    .		“[W]hen	draft	orders	are	adopted	without	change
    or	with	little	material	change,”	and	the	court’s	findings	have	not	changed	as	a
    3		Such	a	motion	terminates	the	running	of	the	time	for	filing	an	appeal,	with	the	time	for	appeal
    then	commencing	to	run	from	the	entry	of	the	ruling	on	that	motion.		M.R.	App.	P.	2(b)(3).		Therefore,
    the	 Rule	 52(b)	 motion	 should	 not	 be	 accompanied	 by	 a	 notice	 of	 appeal	 and	 should	 be	 acted	 on
    expeditiously.
    9
    result	 of	 a	 properly	 filed	 motion	 for	 further	 or	 clarified	 findings	 pursuant	 to
    Rule	52(b),	the	key	question	for	our	review	“will	be	whether	the	findings	and
    order	reflect	the	application	of	judgment	by	the	court	and	not	simply	one	of	the
    parties.”		See	Yap,	
    2016 ME 58
    ,	¶	10,	
    137 A.3d 194
    .
    [¶18]		It	is	evident	that	the	court’s	judgment	in	this	matter	resulted	from
    the	court’s	careful	application	of	its	own	independent	judgment.		The	judgment
    is	 not	 a	 verbatim	 adoption	 of	 the	 Department’s	 proposed	 order.	 	 The	 court
    specifically	 acknowledged	 that	 it	 made	 extensive	 use	 of	 the	 proposed	 order
    because	 it	 articulated	 the	 court’s	 view	 of	 the	 case.	 	 Further,	 the	 court	 made
    substantive	additions	to	five	paragraphs	and	made	other	changes	to	reflect	that
    the	court	did	not	believe	parts	of	the	mother’s	testimony.		The	court’s	judgment
    was	the	product	of	the	proper	exercise	of	its	judicial	function	and	it	was	not
    defective.		See	id.;	In	re	Marpheen	C.,	
    2002 ME 170
    ,	¶¶	7-8,	
    812 A.2d 972
    .
    B.	    GAL	Reports
    [¶19]		The	mother	next	argues	that	her	due	process	rights	were	violated
    when	the	court	took	judicial	notice	of	all	of	the	GAL	reports	in	the	court’s	file
    and	then	relied	on	those	reports	in	its	judgment.		Specifically,	she	contends	that
    the	 reports	 were	 largely	 hearsay	 and	 that	 she	 had	 no	 opportunity	 for
    cross-examination	or	rebuttal	of	the	information	in	the	reports.		The	mother
    10
    further	 asserts	 that	 the	 court	 made	 six	 factual	 findings	 that	 were	 clearly
    erroneous	because	they	were	supported	only	by	GAL	reports	that	she	insists
    the	court	was	not	permitted	to	consider.
    1.	    Admission	in	Evidence
    [¶20]		The	admission	of	GAL	reports	in	evidence	is	specifically	authorized
    by	statute.		22	M.R.S.	§	4005(1)(D)	(2016);	see	also	M.R.	Evid.	802	(providing
    that	hearsay	is	not	inadmissible	if	a	statute	provides	for	its	admissibility);	In	re
    Chelsea	C.,	
    2005 ME 105
    ,	¶	10,	
    884 A.2d 97
    	(“[T]here	is	no	question	that	the
    Legislature	may	authorize	court	consideration	of	the	contents	of	guardian	ad
    litem	reports	as	an	exception	to	the	hearsay	rule.”).		Thus,	the	admission	of	GAL
    reports	 at	 earlier	 stages	 in	 the	 proceedings	 comported	 with	 the	 law	 and
    allowed	the	court,	at	each	stage,	to	rely	on	the	report	to	the	extent	it	deemed
    appropriate	 in	 light	 of	 all	 of	 the	 evidence	 presented	 or	 the	 agreement	 of	 the
    parties.		See	In	re	Chelsea	C.,	
    2005 ME 105
    ,	¶	16,	
    884 A.2d 97
    .
    [¶21]	 	 Nor	 did	 the	 admission	 of	 those	 reports	 at	 the	 judicial	 reviews
    violate	the	mother’s	due	process	rights.		“[D]ue	process	requires:	notice	of	the
    issues,	an	opportunity	to	be	heard,	the	right	to	introduce	evidence	and	present
    witnesses,	 the	 right	 to	 respond	 to	 claims	 and	 evidence,	 and	 an	 impartial
    fact-finder.”	 	 
    Id.
    	 	 Judicial	 reviews	 provide	 an	 opportunity	 for	 an	 evidentiary
    11
    hearing.		22	M.R.S.	§	4038(5)	(2016).		At	those	reviews,	the	mother	had	notice
    of	the	hearing,	court-appointed	counsel,	and	an	opportunity	to	challenge	any
    evidence	offered	through	the	GAL	report	or	otherwise.
    [¶22]		The	mother	agreed	to	the	orders	entered	at	the	judicial	reviews,
    all	of	which	stated	that	the	GAL	reports	were	admitted	in	evidence,	and	there	is
    no	indication	that	she	was	denied	the	opportunity	for	a	hearing	that	provided
    each	of	the	essentials	of	due	process.		See	In	re	Chelsea	C.,	
    2005 ME 105
    ,	¶	16,
    
    884 A.2d 97
    .
    2.	    Termination	Court’s	Consideration	of	GAL	Reports
    [¶23]	 	 The	 remaining	 question	 is	 whether	 the	 court	 that	 held	 the
    termination	 hearing	 could	 consider	 evidence	 contained	 only	 in	 previously
    admitted	GAL	reports.		When	a	GAL	report	was	admitted	in	evidence	in	a	prior
    stage	of	the	proceeding,	the	court	conducting	a	hearing	on	a	later	judicial	review
    or	 termination	 petition	 can	 consider	 and	 rely	 on	 that	 report	 only	 if	 it	 was
    admitted	by	the	same	judge	in	the	earlier	proceeding.		See	In	re	Scott	S.,	
    2001 ME 114
    ,	¶	12,	
    775 A.2d 1144
    .		“The	authority	of	the	trial	judge	to	take	judicial
    notice	 of	 matters	 of	 record	 is	 distinct	 from	 the	 authority	 of	 a	 single	 judge	 to
    consider	evidence	presented	in	a	previous	stage	of	a	child	protective	proceeding
    when	that	evidence	was	presented	to	the	same	trial	judge.”		
    Id.
    		“When	the	trial
    12
    judge	 has	 actually	 heard	 the	 evidence	 presented	 in	 prior	 stages	 of	 a	 child
    protection	proceeding,	that	judge	may	consider	the	evidence	in	the	following
    stages	 because	 the	 process	 is,	 in	 fact,	 a	 unified	 proceeding.”	 	 Id.;	 cf.	 Cabral	 v.
    L’Heureux,	
    2017 ME 50
    ,	¶¶	10-11	&	n.3,	---	A.3d	---	(in	non-unified	proceedings,
    different	rules	apply).		“When	a	different	trial	judge	presides	at	a	later	stage	of
    the	process,	that	trial	judge	may	not	rely	on	the	evidence	presented	to	the	prior
    judge	.	.	.	.”		In	re	Scott	S.,	
    2001 ME 114
    ,	¶	12,	
    775 A.2d 1144
    .		The	trial	judge	at
    the	termination	proceeding	may,	however,	take	judicial	notice	of	the	existence
    of	prior	orders	and	judgments	and	the	actions	taken	by	the	court.		See	M.R.	Evid.
    201;	Cabral,	
    2017 ME 50
    ,	¶	11,	---	A.3d	---;	see	also	United	States	v.	Jones,	
    29 F.3d 1549
    ,	1553	(11th	Cir.	1994).
    [¶24]		In	this	matter,	the	court	did	not	explicitly	admit	any	of	the	GAL’s
    prior	reports	in	evidence	during	the	termination	hearing.		Thus,	the	only	prior
    reports	available	for	the	court’s	potential	consideration	were	those	that	were
    admitted	in	prior	proceedings	held	by	the	same	judge	who	presided	over	the
    termination	 hearing.	 	 See	 In	 re	 Scott	 S.,	 
    2001 ME 114
    ,	 ¶	 12,	 
    775 A.2d 1144
    .
    Specifically,	the	termination	court	could	consider	only	those	GAL	reports	that
    had	been	admitted	during	the	September	9,	2015,	and	March	8,	2016,	judicial
    reviews	that	the	same	judge	had	held,	along	with	the	GAL’s	report	prepared	for
    13
    the	termination	proceeding.4		Consequently,	of	the	six	factual	findings	that	the
    mother	challenges,	four	were	not	supported	by	the	record	because	they	were
    supported	 only	 within	 GAL	 reports	 that	 this	 particular	 judge	 could	 not
    consider.5		See	Guardianship	of	Hailey	M.,	
    2016 ME 80
    ,	¶	15,	
    140 A.3d 478
    	(“A
    finding	 of	 fact	 is	 clearly	 erroneous	 if	 there	 is	 no	 competent	 evidence	 in	 the
    record	to	support	it	.	.	.	.”).
    [¶25]		We	are	not,	however,	required	to	vacate	the	trial	court’s	judgment
    if	the	court’s	factual	errors	are	harmless.		See	M.R.	Civ.	P.	61.		“In	the	context	of
    a	termination	of	parental	rights	proceeding,	a	preserved	error	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	M.S.,	
    2014 ME 54
    ,	¶	12,	
    90 A.3d 443
    	(quotation
    marks	omitted).
    [¶26]	 	 Here,	 none	 of	 the	 unsupported	 findings	 were	 important	 in	 the
    court’s	findings	regarding	the	mother’s	substance	abuse	or	the	best	interest	of
    each	 child—the	 grounds	 for	 the	 court’s	 determination	 to	 terminate	 her
    4	 	 The	 court	 did	 admit	 the	 GAL’s	 most	 recent	 report	 for	 each	 child,	 both	 dated	 May	 2,	 2016.
    Evidence	supporting	the	challenged	findings	was	not	contained	in	either	of	those	reports.
    5	 	 Specifically,	 the	 evidence	 that	 could	 be	 considered	 by	 the	 court	 cannot	 support	 the	 court’s
    findings	that	the	mother	never	had	a	case	manager	for	housing	support,	the	Department	“lost	touch”
    with	the	mother	for	a	period	of	time,	the	mother	explained	the	presence	of	a	bottle	of	urine	in	her
    room	at	one	of	the	treatment	programs	by	asserting	that	she	had	been	“too	lazy”	to	get	up	and	use
    the	bathroom,	and	the	mother	never	participated	in	mental	health	treatment.
    14
    parental	rights.		As	we	discuss	below,	there	was	ample	competent	evidence	for
    the	court	to	have	found,	by	clear	and	convincing	evidence,	that	the	presumption
    of	unfitness	applied	and	that	termination	was	in	the	best	interest	of	each	child.
    Thus,	it	was	highly	probable	that	the	erroneous	findings	did	not	prejudice	the
    mother	 or	 contribute	 to	 the	 court’s	 ultimate	 determination,	 and	 the	 court’s
    mistaken	 reliance	 on	 certain	 GAL	 reports	 was	 harmless	 error.	 	 See	 
    id.
    Accordingly,	we	turn	to	the	sufficiency	of	the	evidence	supporting	the	court’s
    judgment.	 	 In	 reviewing	 the	 mother’s	 challenge	 to	 the	 sufficiency	 of	 the
    evidence,	we	disregard	the	court’s	unsupported	findings.
    C.	   Sufficiency	of	the	Evidence
    [¶27]		Before	a	court	may	terminate	a	parent’s	parental	rights,	the	court
    must	find,	“by	clear	and	convincing	evidence,	at	least	one	ground	of	parental
    unfitness	.	.	.	and	that	termination	is	in	the	child’s	best	interest.”		In	re	C.P.,	
    2016 ME 18
    ,	¶	30,	
    132 A.3d 174
    ;	see	also	22	M.R.S.	§	4055(1)(B)(2)	(2016).		“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	C.P.,
    
    2016 ME 18
    ,	¶	30,	
    132 A.3d 174
    	(quotation	marks	omitted).		“The	weight	and
    credibility	of	the	testimony	and	other	evidence,	including	GAL	reports,	is	for	the
    fact-finder’s	determination.”		In	re	Cameron	B.,	
    2017 ME 18
    ,	¶	10,	---	A.3d	---.
    15
    1.	    Unfitness
    [¶28]		The	trial	court	may	presume	that	a	parent	is	unfit	when
    [t]he	 child	 has	 been	 placed	 in	 the	 legal	 custody	 or	 care	 of	 the
    department,	 the	 parent	 has	 a	 chronic	 substance	 abuse	 problem,
    and	the	parent’s	prognosis	indicates	that	the	child	will	not	be	able
    to	return	to	the	custody	of	the	parent	within	a	reasonable	period	of
    time,	 considering	 the	 child’s	 age	 and	 the	 need	 for	 a	 permanent
    home.		The	fact	that	a	parent	has	been	unable	to	provide	safe	care
    of	 a	 child	 for	 a	 period	 of	 9	 months	 due	 to	 substance	 abuse
    constitutes	a	chronic	substance	abuse	problem.
    22	M.R.S.	§	4055(1-A)(C);	see	also	22	M.R.S.	§	4055(1)(B)(2)(b)(i).		The	mother
    contends	that	the	statute	defines	“chronic	substance	abuse	problem”	to	mean
    that	“a	parent	has	been	unable	to	provide	safe	care	of	a	child	for	a	period	of
    9	months	due	to	substance	abuse.”		Accordingly,	the	mother	argues,	because
    she	cared	for	her	daughter	after	the	daughter	was	born,	and	because	Ayden	was
    placed	with	her	on	a	trial	basis	until	January	2016,	she	does	not	have	a	chronic
    substance	abuse	problem	within	the	meaning	of	the	statute,	and	therefore	the
    court	 erred	 in	 applying	 the	 presumption	 of	 unfitness	 provided	 by	 22	 M.R.S.
    §	 4055(1-A)(C).	 	 We	 review	 the	 interpretation	 of	 a	 statute	 de	 novo.	 	 In	 re
    Jacob	C.,	
    2009 ME 10
    ,	¶	9,	
    965 A.2d 47
    .		“When	a	statute	is	not	ambiguous,	its
    plain	meaning	will	govern.”		
    Id.
    [¶29]	 	 Contrary	 to	 the	 mother’s	 contention,	 the	 plain	 meaning	 of	 the
    statutory	language	that	a	parent’s	inability	to	provide	safe	care	of	a	child	for
    16
    nine	months	“constitutes”	a	chronic	substance	abuse	problem	does	not	mean
    that	 a	 “chronic	 substance	 abuse	 problem”	 is	 limited	 to	 only	 those
    circumstances.
    [¶30]	 	 It	 is	 imperative,	 however,	 that	 we	 not	 use	 the	 broad	 brush	 of
    “chronic	substance	abuse”	to	enable	the	continued	separation	of	children	from
    their	parents	when	the	children’s	health	and	safety	do	not	require	it.		In	a	time
    when	far	too	many	young	parents	struggle	with	drug	and	alcohol	addictions,
    every	 effort	 must	 be	 made	 to	 help	 those	 parents	 find	 sobriety	 and	 return	 to
    their	parental	roles.		To	do	otherwise	risks	the	separation	of	children	from	their
    birth	 families	 when	 it	 could	 have	 been	 avoided.	 	 Thus,	 a	 trial	 court	 must
    carefully	consider	whether	the	substance	abuse	of	the	parent	is	truly	“chronic.”
    [¶31]	 	 Sadly	 for	 the	 children	 in	 the	 matter	 before	 us,	 there	 was	 ample
    competent	 evidence	 for	 the	 court	 to	 have	 found,	 by	 clear	 and	 convincing
    evidence,	that	the	mother	has	engaged	in	chronic	substance	abuse;	that	she	has
    been	provided	many	services,	including	multiple	opportunities	to	work	toward
    recovery	and	sobriety;	that	she	was	even	provided	a	trial	placement	of	Ayden
    and	could	not	keep	him	safe;	and	that	Caleb	and	Ayden	will	not	be	able	to	be
    returned	to	her	custody	within	a	reasonable	time.
    17
    [¶32]		The	mother’s	substance	abuse	made	her	unable	to	care	for	Caleb
    and	Ayden	for	a	period	that	far	exceeds	nine	months.		At	the	time	of	the	final
    hearing	 in	 this	 matter,	 Caleb	 and	 Ayden	 had	 been	 in	 the	 Department’s	 legal
    custody	for	more	than	two	years,	during	which	time	she	made	little	progress	in
    recovering	from	her	addiction.		Despite	opportunities,	she	remained	unable	to
    provide	 safe	 care	 for	 her	 children,	 as	 demonstrated	 by	 the	 removal	 of	 her
    daughter	 from	 her	 care,	 and	 the	 removal	 of	 Ayden	 from	 her	 care—for	 the
    second	time—following	the	trial	placement.		The	court	did	not	err	in	finding
    that	the	presumption	of	unfitness	applied	and	that	the	mother	failed	to	rebut	it.
    2.	     Best	Interest	of	Each	Child
    [¶33]	 	 The	 mother	 further	 asserts	 that	 the	 court	 erred	 or	 abused	 its
    discretion	in	determining	that	the	termination	of	her	parental	rights	was	in	the
    best	 interest	 of	 each	 child.6	 	 We	 review	 the	 court’s	 factual	 findings	 for	 clear
    error	and	its	ultimate	conclusion	regarding	the	best	interest	determination	“for
    an	 abuse	 of	 discretion,	 viewing	 the	 facts,	 and	 the	 weight	 to	 be	 given	 them,
    6		The	mother	argues,	citing	our	opinion	in	In	re	Thomas	H.,	
    2005 ME 123
    ,	¶	32,	
    889 A.2d 297
    ,	that
    the	court	was	required	to	find	a	“compelling	reason”	to	terminate	her	parental	rights	because	Caleb
    and	Ayden	were	doing	well	in	foster	care	and	there	were	no	identified	adoptive	placements.		Contrary
    to	the	mother’s	argument,	in	In	re	Thomas	H.,	we	held	that	the	court	was	required	to	find	a	compelling
    reason	not	to	terminate	parental	rights	when	the	children	would	be	“consigned	to	the	instability	and
    impermanence	of	long-term	foster	care.”		Id.	¶	35.		The	court	was	not	required	to	find	a	compelling
    reason	to	terminate	the	mother’s	parental	rights	in	this	matter.		See	id.
    18
    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
    .
    [¶34]	 	 Here,	 Caleb	 and	 Ayden	 were	 first	 removed	 from	 their	 mother’s
    care	nearly	three	years	before	the	hearing	and	had	been	in	the	Department’s
    custody	for	more	than	two	years.		During	that	time,	the	mother	had	made	no
    substantial	 progress	 in	 recovering	 from	 her	 addiction,	 and	 she	 continued	 to
    allow	unsafe	individuals	to	be	around	her	children.		The	court	found	that	Caleb
    and	Ayden	need	the	permanency	of	adoption	and,	because	of	their	young	ages
    and	the	length	of	time	they	have	already	spent	in	foster	care,	they	cannot	wait
    any	 longer	 for	 their	 mother	 to	 be	 able	 to	 care	 for	 them.	 	 These	 findings	 are
    supported	by	the	evidence	in	the	record.		The	court	did	not	commit	clear	error
    or	abuse	its	discretion	in	determining	that	termination	was	in	each	child’s	best
    interest.		See	In	re	M.B.,	
    2013 ME 46
    ,	¶	37,	
    65 A.3d 1260
    .
    The	entry	is:
    Judgment	affirmed.
    19
    Virginia	Lee	Holt,	Esq.,	Holt	Family	Law,	Saco,	for	appellant	mother
    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
    Portland	District	Court	docket	numbers	PC-2013-99	and	-100
    FOR	CLERK	REFERENCE	ONLY
    

Document Info

Citation Numbers: 2017 ME 66, 159 A.3d 345, 2017 Me. LEXIS 67

Filed Date: 4/6/2017

Precedential Status: Precedential

Modified Date: 8/6/2019

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In re Kayleigh P. , 2017 Me. LEXIS 99 ( 2017 )

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In re Zarianna C. , 2018 ME 11 ( 2018 )

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Dawn H. Haskell v. Grover B. Bragg Jr. , 2017 Me. LEXIS 164 ( 2017 )

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