In re Children of Bethmarie R. , 207 A.3d 197 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 59Docket: Ken-18-436
Submitted
On Briefs: April 9, 2019
Decided: April 18, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILDREN OF BETHMARIE R.
PER CURIAM
[¶1] The mother of the two children at issue in this case appeals from a
judgment of the District Court (Waterville, Stanfill, J.) terminating her parental
rights to the children pursuant to 22 M.R.S. § 4055(1)(A)(1)(a), (B)(2)(a)-(b)(i),
(iv) (2018).1 The mother contends that (1) the evidence admitted at the
termination hearing was insufficient to support the court’s unfitness finding,
(2) in making its best interest finding the court erred by focusing on who should
adopt the children rather than focusing on the central question of whether they
should be adopted by anyone, and (3) the procedural interaction between the
Probate Court and the District Court in this case deprived her of due process.
We affirm the judgment.
1
Concerning one of the children, the father’s parental rights were previously terminated;
concerning the other, the putative father’s motion for genetic testing was granted and the results
were pending at the time the court entered its judgment.
2
[¶2] We recently addressed this matter in affirming the court’s jeopardy
order concerning these children. In re Children of Bethmarie R., 2018 ME 96,
¶ 1, 189 A.3d 252. In doing so, we recited in detail the procedural history of the
case leading to the jeopardy order as well as the court’s supported factual
findings; we do not repeat them here. Id. ¶¶ 2-13, 25. Similarly, we do not
repeat the relevant facts relating to the mother’s conviction for criminal
restraint by a parent (Class C), 17-A M.R.S. § 303(1)(A) (2018)—a case that
concerned these children—which we discussed in State v. Retamozzo,
2016 ME 42, 135 A.3d 98.
[¶3] While our decision in the mother’s appeal from the jeopardy order
was pending, the Department of Health and Human Services filed a petition to
terminate the mother’s parental rights. Following our decision, the court held
an evidentiary hearing on August 8, 2018, at which the children’s maternal
grandmother, the grandmother’s ex-husband, the Department’s caseworker,
a Waterville Police detective, the mother, the children’s former therapist, and
the guardian ad litem testified. On October 16, 2018, the court entered its
judgment terminating the mother’s parental rights, from which the mother
timely appealed.
3
[¶4] The court made the following findings of fact by clear and
convincing evidence, all of which are supported by competent evidence in the
record:2
In the jeopardy order, this court found that the children had
suffered serious emotional harm from [the mother], and would
continue to do so if returned to her care. The court found that
contact between [the mother] and the children was not in the best
interest of the children. The court specifically found that [the
mother] subjected the children to “treatment that is heinous or
abhorrent to society” under 22 M.R.S. § 4002(1-B) and that she had
abandoned five of her other children. As a result, the court found
that not only were the children in jeopardy with [the mother] but
that reunification with her was not in the best interest of the
children.
Nothing has happened since then to change this court’s view
of the situation. [The mother] has not accepted any responsibility
for her actions, nor does she have any insight into the impact on the
children of any of her actions. Indeed, her view of the past and
present situation is notably inconsistent with reality and truth.
Despite this court’s finding that visits were not in the best
interest of the children and despite this court’s denials of [the
mother]’s repeated requests for visits, [the mother] continued to
take matters into her own hands. She showed up, uninvited and
unannounced, at several events the children attended with [the
grandmother]. She repeatedly tried to get [her daughter] in
particular to come with her. She caused scenes at these events,
upsetting the children and family. She repeatedly called [her
daughter] to come out and meet her. She frequently goes by the
children’s home, parks her car nearby, and watches what is
happening in an effort to see the children.
2 Because the same judge heard the evidence at the jeopardy hearing, the court was entitled to
consider that evidence at the termination stage. In re Children of Bethmarie R., 2018 ME 96, ¶ 1,
189 A.3d 252; In re Caleb M., 2017 ME 66, ¶ 23, 159 A.3d 345.
4
The children, especially [her daughter], were triggered and
escalated after the confrontations at [two events]. At both of these
events, [the mother] caused a scene . . . . She would refuse to leave
and would yell things like the children need to come with her, that
she has a plan, that the Department and [the grandmother] are
stealing her children, and the like. This kind of behavior is a
particular trigger for the children in light of all of the unresolved
issues surrounding the time she “kidnapped” them. (Footnote
omitted.)
. . . .
[The mother]’s testimony is very telling. She denied that she
had ever abandoned [another of her] daughter[s] . . . . She denied
she had ever abandoned her other four children. She denied being
aware that any of her parental rights have ever been terminated to
any other children. She denied that she had taken [the children at
issue in this case] without permission; indeed, she continued to
insist to this court that she had permission to bring the kids to
Florida. All of those statements are contrary to findings of other
courts and contrary to the findings of this court as set forth in the
Jeopardy Order. She denied having any mental health issues that
needed to be addressed. She disagreed with [an examining
psychologist’s] diagnosis and findings. She denied she had any
pattern of self-defeating behavior. She denied that she has
“different” views on parenting except to say that everyone does.
She denied that the children have any concerns about the
“kidnapping[.]” If they did, she denied that those concerns are
warranted.
Although she acknowledged that she understood this court’s
jeopardy findings, she flatly stated that they were not accurate. She
does not feel that she has anything to work on in order to reunify
with her children. When asked about the court’s findings regarding
the incident of biting [her son] and taking the children out of Maine,
she flatly stated “these are not facts to me[.]”
5
She admitted going to [a] school concert in March. She knew
there was a court order that said it was not in the best interest of
the children to see her. Nonetheless, she felt it was not a mistake
for her to be there. She would do the same thing again. It did not
ruin the experience for [her daughter] or have any negative impact
on her.
She also admitted showing up at [a community] event in June.
She went there specifically to see the children. Again, she said it
was not a mistake for her to be there. She would not have done
anything differently, except maybe she would have come earlier.
She admitted calling the [grandmother’s] home and having
[her daughter] come out and meet her on several occasions. She
understood that neither the Department nor [the grandmother]
permitted her to do that, but testified that it was not a mistake on
her part. She also testified that if she had to do it over, she would
call more often.
She admitted going to the [grandmother’s] home in July. She
did it to see the children. She was aware she was not supposed to
do that according to the Department. Again, when asked what she
would do if she had the opportunity to do it over, she said she
would do it again. She simply wanted to see the children and could
not understand why there was anything wrong with that.
When asked, [the mother] stated that she knows how the
children feel. She is adamant that they love her, that she is their
mother, and that they want to be with her. It is entirely the fault of
the Department and of [the grandmother] that they are not
together.
This court agrees with the assessment of the Guardian
ad litem. [The mother] has not accepted responsibility for
anything. She has no insight into how anything she has done has
impacted the children, when in fact everything she has done has
impacted them. Without any insight and without any
6
acknowledgment of her past actions, she has not, can not, and will
not change.
. . . .
The court also finds that termination is in the best interest of
the children so that they may have permanency. The Child and
Family Services and Protection Act clearly states a policy favoring
permanency for children. (Citations omitted.)
The children have been in the care of [the grandmother] for
most of their lives, with her ex-husband . . . also acting as caretaker.
That is the home they know. Although [the daughter] in particular
wants her mother in her life, they are bonded to [the grandmother]
and settled in to that home. It is in their best interest to have a safe,
predictable and stable home. It is particularly in their best interest
to end all the ongoing court proceedings, proceedings that have
raised and dashed hopes and have sent mixed signals to the
children for years. They need closure, both from court proceedings
and from worrying about what will happen with their mother.
The plan has been for adoption by [the grandmother].
Consideration ought to be given to adoption by [her ex-husband]
as a coparent as well. . . . Absent termination, there will always be
doubt and uncertainty for [the grandmother] and for the children
as to what the future holds with [the mother].
. . . .
In summary, therefore, this Court finds by clear and
convincing evidence that [the mother] is unable to protect her
children from jeopardy and these circumstances are unlikely to
change within a time which is reasonably calculated to meet the
children’s needs, and that she has failed to make a good faith effort
to reunify and rehabilitate. 22 M.R.S. §4055(1)(B)(2)(b)(i), (iv).
Likewise, it is in the children’s best interest that [the mother]’s
rights be terminated. 22 M.R.S. §4055(1)(B)(2)(a).
7
[¶5] Given these supported factual findings, we review the court’s
unfitness finding for clear error and find none. See In re Child of Kaysean M.,
2018 ME 156, ¶ 5, 197 A.3d 525.
[¶6] Concerning the court’s ultimate conclusion that termination was in
the children’s best interests, which we review for an abuse of discretion, id., the
mother is correct in noting that we have said that “[t]he question of who is the
best person to adopt the child . . . is beyond the scope of a termination
proceeding because that question must be addressed in a separate adoption
action . . . [t]herefore, in a consolidated proceeding where the court addresses
a termination petition and establishes a permanency plan, while the court may
determine that as a general matter adoption is in the child’s best interest and
will be the permanency plan, the court would overreach if it were to designate
the adoptive party.” In re Children of Nicole M., 2018 ME 75, ¶ 17, 187 A.3d 1(citations omitted).
[¶7] For two reasons, the court’s best interest findings do not constitute
factual errors or an abuse of discretion. First, contrary to the mother’s
argument, the court’s findings were not predicated solely on an assumption
that the grandmother would adopt the children. The court found that
[i]t is in [the children’s] best interest[s] to have a safe, predictable
and stable home. It is particularly in their best interest[s] to end all
8
the ongoing court proceedings, proceedings that have raised and
dashed hopes and have sent mixed signals to the children for years.
They need closure, both from court proceedings and from worrying
about what will happen with their mother.
Those findings, which acknowledge our oft-stated recognition of the
Legislature’s emphasis on permanency for children, see, e.g., In re Child of
Amanda H., 2019 ME 39, ¶ 5, --- A.3d ---, are not predicated on an adoption by a
specific person.
[¶8] Second, while the court noted that “[t]he plan has been for adoption
by [the grandmother],” it did not declare that to be the inevitable result of its
termination judgment;3 rather, the court simply recognized the reality of the
situation—the children had been in the legal care of their grandmother for the
great majority of their lives. See In re Children of Bethmarie R., 2018 ME 96,
¶¶ 2-9, 189 A.3d 252. To the extent the court may have “overreach[ed],”
In re Children of Nicole M., 2018 ME 75, ¶ 17, 187 A.3d 1, we make clear that we
do not opine on who should become the adoptive parent(s) in a prospective
adoption proceeding. See id.[¶9] Finally, the mother contends that the interaction between the
Probate Court and the District Court in resolving their respective cases
3 The court could not have made such a determination given that the parental rights of the
putative father of one of the children had not been resolved at the time of the hearing, see supra n.1.
9
concerning the children deprived her of due process. Although that question
concerned us as well in the mother’s first appeal, see In re Children of
Bethmarie R., 2018 ME 96, ¶¶ 26-27, 189 A.3d 252, we concluded that the
mother had not been deprived of due process, id. ¶ 25. Nothing that occurred
at the termination hearing changes that conclusion.
The entry is:
Judgment affirmed.
Julian Richter, Esq., Richter Law, LLC, Gardiner, for appellant mother
Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office
of the Attorney General, for appellee Department of Health and Human Services
Waterville District Court docket numbers PC-2017-41 and -42
FOR CLERK REFERENCE ONLY