In re Child of Heath D. , 2018 ME 131 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 131Docket: Pen-18-128
Submitted
On Briefs: September 26, 2018
Decided: October 4, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE CHILD OF HEATH D.
PER CURIAM
[¶1] Heath D. and Francine E. appeal from a judgment of the District
Court (Bangor, Jordan, J.) terminating their parental rights pursuant to
22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2017). The mother and father
both argue that there is insufficient evidence in the record to support the
findings of parental unfitness. The father additionally argues that the
Department of Health and Human Services failed to satisfy its responsibilities
in making reasonable rehabilitation and reunification efforts. We affirm the
judgment.
[¶2] The Department filed a child protection petition in June 2016, two
weeks after the child was born. See 22 M.R.S. § 4032 (2017). The petition
alleged neglect and threat of neglect by the mother due to substance abuse and
exposure to unsafe persons, including the father. The petition also alleged
neglect or the threat of neglect by the father as a result of untreated mental
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health issues and substance abuse. A week later, the court (Lucy, J.) granted a
preliminary protection order after the maternal grandmother overdosed in the
mother’s home with the child present and the mother failed to prevent contact
between the father and the child. See 22 M.R.S. § 4034 (2017).
[¶3] In October 2016, the court (Jordan, J.) entered a jeopardy order by
agreement. See 22 M.R.S. § 4035 (2017). The court found jeopardy as to the
mother because of
(1) Neglect and threat of neglect due to failure to protect from
unsafe people (2) inadequately addressed mental health issues and
(3) history of substance abuse.
Jeopardy was found as to the father because of “past and present substance
abuse and untreated mental health issues, to wit anxiety.”
[¶4] Included in the jeopardy order were detailed requirements for both
parents’ reunification with the child. Both parents were to participate in
random, observed drug screens; use only prescribed medications; allow
announced and unannounced visits by the Department and the guardian
ad litem; maintain monthly contact with the Department; participate and
engage in substance abuse and mental health counseling; and avoid contact
with unsafe individuals. Both parents also agreed to participate in supervised
visits with the child for as long as it remained in the child’s best interest. The
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father additionally agreed to participate in a level-of-care assessment by a
substance abuse counseling agency and to participate in an informational
session at the Family Treatment Drug Court.
[¶5] The Department petitioned for termination of both parents’
parental rights in July 2017. After a three-day hearing on the petition, the court
found, by clear and convincing evidence, that both parents are unwilling or
unable to protect the child from jeopardy and that these circumstances are
unlikely to change within a time reasonably calculated to meet the child’s
needs; the parents are unwilling or unable to take responsibility for the child
and that these circumstances are unlikely to change within a time reasonably
calculated to meet the child’s needs; and the parents failed to make a good faith
effort to rehabilitate and reunify with the child. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii), (iv); In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d
195. The court based this determination on the following findings of fact:
The difficult aspect of this case is that the parents have done
some positive work. Additionally, the Court finds that it is quite
clear that they love their child. The Court also finds that it is quite
clear that for the timeframe of an hour and a half to two hours they
are able to function appropriately with the child. However, the
parents’ inconsistency with services and visits call into question
their ability to parent on a daily basis.
The random drug tests were the primary method that could
help the parents prove that they were ready to reunify with their
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child. They actively avoided those random drug tests. They
avoided those tests even after they knew that a termination of
parental rights petition had been filed and pretried on August 18,
2017. The parents, therefore, had five months of living under the
threat of termination of their parental rights. Knowing that the
Department was pushing for successful random drug tests as an
indicator of their having made enough progress to have their child
returned to them, they still avoided demonstrating their
willingness to take the steps necessary to show that jeopardy was
alleviated.
In addition to their evasion of random screening and
[Suboxone] strip counts, their failure to maintain reliable contact
with the Department, the father’s recent possession of numerous
syringes, the mother’s possession of a syringe in January 2017, and
their joint deception regarding their continuing relationship all
lead the Court to conclude that jeopardy has not been alleviated.
The father has no stable housing, and it looks as if the mother may
lose her housing as a result of her pending eviction. The Court
concludes that it cannot responsibly place this child with either
parent.
The case started June 23, 2016. As of the date of the
termination hearing, the case had been in the Court for nineteen
months. The child has been in the State’s custody for a little over
eighteen months. The Court concludes that it would take many
more months to reach permanency, even if the parents
unexpectedly cooperate fully. The child does not have the time to
wait in limbo for the uncertain outcome of the parents’ efforts. The
child deserves permanency sooner than they can provide.
. . . .
. . . Finally, the Court finds it in the child’s best interests to be
free[d] for adoption into a stable and loving home. [The child] has
lived in his current home since May of 2017. The Guardian Ad
Litem makes clear that [the child] identifies those people as his
parents and their daughter as his family.
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[¶6] Based on these findings of fact, all of which are supported by
competent evidence in the record, the court did not err in its unfitness
determination. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv); In re A.M.,
2012 ME 118, ¶ 29, 55 A.3d 463. Nor did the court err or abuse its discretion
by determining that it was in the child’s best interest to terminate both parents’
parental rights. See 22 M.R.S. §§ 4050(2), (3) (2017); 4055(1)(B)(2)(a); In re
B.P., 2015 ME 139, ¶ 19, 126 A.3d 713.
[¶7] The father additionally argues that the court erred in determining
that the Department satisfied its responsibilities in implementing the
rehabilitation and reunification plan. Contrary to the father’s argument,
competent evidence supports the court’s finding that the Department satisfied
its obligations under the statute. See 22 M.R.S. § 4041(1-A)(1), (3) (2017); In re
Isabelle W., 2017 ME 81, ¶ 8 n.3, 159 A.3d 1225. The Department made
continued attempts to contact the parents throughout the process, provided
access to mental health and substance abuse services, provided payment for
transportation, and had frank conversations regarding what was required of
the parents for successful reunification. See In re Landon S., 2017 ME 199, ¶ 5,
171 A.3d 186. Despite the Department’s efforts, the parents were still
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unsuccessful in reunification. See In re Child of Lindsay D., 2018 ME 87, ¶¶ 7-9,
188 A.3d 180.
The entry is:
Judgment affirmed.
Laura P. Shaw, Esq., Camden Law LLP, Camden, for appellant father
Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A.,
Biddeford, for appellant mother
Janet T. Mills, Attorney General, Meghan Szylvian, Asst. Atty. Gen., Office of the
Attorney General, Augusta, for appellee Department of Health and Human
Services
Bangor District Court docket number PC-2016-36
FOR CLERK REFERENCE ONLY