In re Ryan G. ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 214Docket: Yor-17-197
Submitted
On Briefs: October 24, 2017
Decided: November 9, 2017
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE RYAN G.
PER CURIAM
[¶1] The mother and father of Ryan G. appeal from a judgment of the
District Court (Biddeford, Foster, J.) terminating their parental rights to
Ryan G. pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i), (ii), (iv)
(2016). They challenge the sufficiency of the evidence to support the
judgment and the court’s discretionary determination of the child’s best
interest. The father also contends that his right to counsel was violated and
that the court abused its discretion when it denied his motion for amended or
additional findings of facts and conclusions of law.1 Because the evidence
1 Although the father attempts to challenge the temporary denial of court appointed legal
counsel and the denial of his motion for amended or additional findings of fact and conclusions of
law, pursuant to 22 M.R.S. § 4006 those decisions were interlocutory and not appealable, and we
will not consider them. See 22 M.R.S. § 4005(2) (2016); 22 M.R.S. § 4006 (2016); In re L.R., 2014 ME
95, ¶ 9, 97 A.3d 602 (“Section 4006 unequivocally provides that in child-protective cases orders
other than termination orders, jeopardy orders, or orders authorizing medical treatment are not
appealable. We cannot substitute our judgment for that of the Legislature.”) (citations omitted)
(quotation marks omitted). We note, however, that the stripping of counsel from a parent involved
in a child protection proceeding should occur rarely, if ever. At a minimum, the parent’s assigned
counsel should be permitted to assist his or her client in having a financial screener, employed by
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supports the court’s findings and discretionary determinations, we affirm the
judgment.
[¶2] Based on competent evidence in the record, the court found, by
clear and convincing evidence, (1) that the parents are unwilling or unable to
protect the child from jeopardy and that those circumstances are unlikely to
change within a time that is reasonably calculated to meet the child’s needs,
(2) that they are unwilling or unable to take responsibility for the child within
a time that is reasonably calculated to meet the child’s needs, (3) that the
mother has failed to make a good faith effort to rehabilitate and reunify with
the child pursuant to 22 M.R.S. § 4041 (2016), and (4) that termination of
their parental rights is in the child’s best interest. See 22 M.R.S. § 4055; In re
Caleb M., 2017 ME 66, ¶ 27, 159 A.3d 345. The court based these
determinations on the following findings of fact.
[¶3] In the fall of 2014, the mother and father engaged in a sexual
relationship that involved the use of drugs, including crack cocaine. The
mother became pregnant and the child was born drug affected due to the
mother’s continued abuse of drugs up until his birth, including an injection of
heroin into her breast three hours before the child’s delivery. The
the Maine Commission on Indigent Legal Services, review the parent’s financial affidavit before the
court takes such an extreme step.
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Department of Health and Human Services filed the present action pursuant
to the terms of the Child and Family Services and Child Protection Act,
22 M.R.S. §§ 4001-4099-H (2016), and obtained temporary custody of the
child. The court’s termination order states:
Reunification efforts with [the mother] have been stymied
by her repeated incarcerations over the last year and one half.
The caseworker made every attempt to maintain contact with [the
mother], including conducting several Family Team Meetings in
jail as well as telephone contact when that was available. The
reunification services for [the mother] have been consistent
throughout the case – mental health and substance abuse
treatment, safe and stable housing, and regular visitation. [The
mother] has been unable to comply with any of those obligations.
She was unable to complete the [Intensive Outpatient Program] at
Key3West due to continued abuse of substances. At one point
during the case, [the mother] had an intake appointment to attend
Crossroads for Women, a residential substance abuse treatment
program. . . . However, [she was] unable to find the facility and
missed the appointment. [The mother] insisted she had been
unable to reschedule another intake.
Although difficulties with transportation and
communication may have complicated the reunification effort, the
hard fact is that [the mother’s] continued use and repeated
incarcerations are the real reasons for her failure in this matter.
Even if she is able to re-engage in treatment when released from
jail, it will take an extended period of time to address a problem
with which [the mother] has struggled for years and to persuade
the [c]ourt that she has been truly successful at that endeavor.
[¶4] Three months after the child was born and the Department
obtained temporary custody, paternity testing confirmed the father’s
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relationship to the child. After the father’s initial rejection of the child, his
wife encouraged him to change his position, and he expressed an interest in
having contact with the child. In discussing the father, the court stated:
On one level, [the father] has been extremely cooperative
with this process. As the [caseworker] acknowledged, he has
expressed a willingness to do almost everything the Department
has requested. He went to the initial appointment for an
evaluation at Maine Behavioral Health, completed a [Families
Affected by Substance Abuse evaluation] at Day One, participated
in a daylong appointment for a [Court Ordered Diagnostic
Evaluation], and ultimately connected with [a Violence No More
counselor] for individual counseling. He has visited faithfully with
his son and remained in touch with the Department. . . .
[The father] and [his wife] have never accepted [the trial
court’s] findings as outlined in the Jeopardy Order. . . . At trial,
[the father] repeatedly rejected the [c]ourt’s findings, both in
general terms and specific points. He referred to them as “twisted
lies and stories.”2 In challenging the positive hair test for cocaine,
[the father] insisted there had been no test for that substance and
suggested it might have been the Adderall someone gave him at
work. He asserted that the caseworker had never mentioned
concerns about domestic violence and never asked that he engage
in counseling on that subject. He continues to alternately control
and ignore his wife, who will be the primary caretaker for [the
child]. Throughout the case he has demonstrated an inability to
appropriately deal with others with whom he disagrees, most
notably the caseworker and the Guardian, often behaving in an
aggressive and bullying manner.
. . . .
2 In the transcript, the father’s exact words were “twisted stories and lies.”
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The issue as to [the father] is the time frame necessary for
him to address the jeopardy defined by the Court. At the time of
trial he had just begun counseling with [a Violence No More
counselor]. Even if he continues to attend on a regular basis, a
proposition for which there is some doubt, [the father] has a
significant amount of work to do before he alleviates jeopardy.
Despite his assertions to the contrary, his wife also has work to
do, as she would be responsible for [the child], by herself, for
extended periods of time. For a child who has been in foster care
essentially since birth, the time required to complete those efforts
is not reasonably calculated to meet his needs.
[¶5] The father’s wife is diagnosed with bipolar affective disorder,
depression, and chronic Post Traumatic Stress Disorder, and has a history of
self-injurious and uncontrollable behavior. Although the court acknowledged
that neither it nor the Department had any authority to insist that the father’s
wife engage in services, the court noted:
If a parent’s partner is a source of jeopardy to the child, the parent
may have to make a difficult election. He may attempt to
encourage the partner to correct the behavior that presents a risk
of harm, or, if the partner is unwilling, he may have to ensure the
partner does not have access to or responsibility for the child. In
this case, [the wife], both as an individual and as a partner to [the
father], presents jeopardy to [the child] and will be his primary
caretaker for extended periods of time. Unless [the wife]
alleviates that jeopardy, [the child] would remain at risk even if
[the father] addressed the concerns the [c]ourt raised about him.
[¶6] Given these findings and the court’s other specific findings of fact
that are supported by competent evidence in the record, the court adequately
explained how the deficits of the parents render each parent unwilling or
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unable to protect the child from jeopardy or take responsibility for the child in
time to meet his needs, and adequately explained how the mother failed to
make a good faith effort to rehabilitate and reunify with the child. See In re
Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195. The court also found that the
father failed to make a good faith effort to rehabilitate and reunify, but this
finding was not supported by clear and convincing evidence. “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.” In re K.M.,
2015 ME 79, ¶ 9, 118 A.3d 812 (quotation marks omitted); see 22 M.R.S.
§ 4005(1)(B). The court did not err or abuse its discretion in determining that
termination of the parents’ parental rights, with a permanency plan of
adoption, is in the child’s best interest. In re Thomas H., 2005 ME 123,
¶¶ 16-17, 889 A.2d 297.
The entry is:
Judgment affirmed.
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Stephen H. Shea, Esq., Fairfiled & Associates, P.A., Portland, for appellant Mother
Alison B. Thompson, Esq., Hanly Law, LLC, 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
Biddeford District Court docket number PC-2015-30
FOR CLERK REFERENCE ONLY