In re Child of Shai F. , 2020 ME 67 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 67
Docket: Cum-19-482
Submitted
On Briefs: May 4, 2020
Decided: May 12, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
IN RE CHILD OF SHAI F.
PER CURIAM
[¶1] Shai F. appeals from a judgment of the District Court (Portland,
Powers, J.) terminating her parental rights to her child.1 Counsel for the mother
filed, in accordance with the procedure we outlined in In re M.C., 2014 ME 128,
¶¶ 6-7, 104 A.3d 139, a brief indicating that there are no arguable issues of
merit for appeal. We entered an order permitting the mother to file a
supplemental brief on or before February 19, 2020, but she did not do so.
Because the record supports the court’s findings that the mother is an unfit
parent and that termination of her parental rights is in the child’s best interest,
we affirm the judgment.
[¶2] In June 2017, the Department of Health and Human Services filed a
petition for child protection and preliminary protection orders. See 22 M.R.S.
1 The child’s father consented to termination of his parental rights in a judgment dated
October 7, 2019. He is not a party to this appeal.
2
§ 4032 (2020). The petition alleged that the mother had exposed her child to a
dangerous situation involving a firearm and that the mother had intentionally
avoided contact with the Department following that incident. The court
(Darvin, J.) entered a preliminary protection order the same day and granted
the Department custody of the child. See 22 M.R.S. §§ 4034(2), 4036(1)(F)
(2020). The mother waived her right to a summary preliminary hearing, see
22 M.R.S. § 4034(4) (2020), and later consented to the entry of an order finding
that the child was in circumstances of jeopardy in her care, see 22 M.R.S. § 4035
(2020). In December 2018, the Department petitioned to terminate the
mother’s parental rights. See 22 M.R.S. § 4052 (2020).
[¶3] The court (Powers, J.) held a one-day contested hearing on the
termination petition in October 2019. Based on the evidence at the hearing, the
court entered a judgment terminating the mother’s parental rights to her child.
In its written decision, the court made the following findings of fact.
See 22 M.R.S. § 4055(1)(B)(2) (2020).
[The child] [has a mental health diagnosis]. . . . All agree he
needs structure and consistency in his routines. [The child]
remains extremely active and likes to be outdoors. . . . He seems
improved since receiving HCT in-home counseling services, which
unfortunately have just ended. The family still needs outpatient
counseling. Despite the above issues, [the child] and [the foster
mother] have a bond. [The child] is learning to accept boundaries
set by [the foster mother] and still requires a regular routine. [The
3
foster mother] is willing to become a permanent home for [the
child] should [the mother’s] parental rights be terminated.
[The child] has reacted badly at times to his mother’s missed
visits. [The mother] has had gaps of up to three months between
visits. The mother now is required to confirm her upcoming
attendance at visits to avoid having [the child] show up when his
mother does not. The mother’s visits have been suspended four
times, typically because she has not properly accessed
transportation to visit, resulting in missed visits. [The mother]
becomes angry when visit suspensions occur. She at times has had
twice weekly visits, but the current schedule is supervised contact
once weekly for two hours. These have unfortunately been
suspended since May 1, 2019.[2] [The child] enjoys the visits with
his mother, which go well. . . . However, when asked about a living
location, [the child] states that he likes living with [the foster
mother].
. . . [The mother] has had multiple residence locations in
southern Maine. She had lived in a motel room recently. [She] has
been employed regularly at several jobs during this case. . . .
[The mother] has had on-going substance use problems
throughout this case. Her long-time counselor had diagnosed her
with cannabis dependence, and the mother admits she smokes
marijuana daily. She admitted doing so on the day she testified.
She has been tested for drugs and alcohol on at least five dates from
December 2017 to May 2019. [The mother] denies using cocaine
despite three positive tests for that illegal drug, a position
2 Contrary to the court’s finding, the Department’s caseworker did not testify that the mother’s
weekly visits with the child have been suspended since May 1, 2019. In fact, the caseworker testified
that the mother began once-weekly visits on that date. Because there is substantial other evidence
that supports the court’s finding that the mother failed to make a good faith effort to rehabilitate and
reunify with the child, it is highly probable that the court’s erroneous finding did not affect its
ultimate conclusion. Therefore, the error was harmless. See In re Child of Stephenie F., 2018 ME 163,
¶ 2 n.2, 198 A.3d 203. Moreover, the court’s “misstatement does not undermine the other two
grounds of parental unfitness found by the court, and each ground, standing on its own, supports a
termination of parental rights.” Id.
4
supported by her counselor/advocate. The mother remains in
treatment for mental health and substance use issues with a
counselor she has seen off and on since June 2018. This counselor
has kept her as a client despite her history of “no shows”. The
counselor diagnosed her with major depressive disorder as well as
cannabis dependence. [The mother] has attended her sessions
sporadically. She has made some progress in learning to identify
the stresses in her life and trying to make changes and
communicate more confidently. Much of the mother’s sadness
revolves around not seeing her son. She seems to understand the
negative impact on her son from her failure to attend scheduled
mother/child visits.
The mother is asking the court for more time to reunify with
her son. She thinks she could handle her behaviors differently from
the past. [The mother] hopes to get an apartment of her own soon.
Right now she has no such place that would be suitable for [the
child].
Unfortunately, [the mother] has missed three of seven family
team meetings. She has had a checkered history of attending
counseling, child visits, drug testing, and family team meetings. She
has not really progressed in any meaningful way regarding
reunification efforts due to her lack of engagement. [The mother]
was required to undergo her substance use and mental health
counseling, have case management, get safe housing, visit her child,
go to drug testing, and stay away from unsafe people. [The mother]
has led an unstable life herself and has not been able to deal with
her several issues, never mind her son’s difficulties. She has at
times not been cooperative with DHHS and has shown limited
insight into her parenting deficits.
[¶4] Except where we have indicated otherwise, see supra n.2, the court’s
findings are supported by competent record evidence. See In re Child of
Nathaniel B., 2019 ME 120, ¶ 5, 212 A.3d 863. Based on these findings, the court
5
found by clear and convincing evidence that the mother is an unfit parent
because (1) she is unable or unwilling to protect her child from jeopardy and
these circumstances are unlikely to change within a time reasonably calculated
to meet the child’s needs; (2) she has been unable or unwilling to take
responsibility for her child within a time that is reasonably calculated to meet
the child’s needs; and (3) she failed to make a good faith effort to reunify with
the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv). The court also found by
clear and convincing evidence that termination of the mother’s parental rights
is in the child’s best interest. See id. § 4055(1)(B)(2)(a). The court’s supported
findings are sufficient to support these determinations. See In re Child of
Nathaniel B., 2019 ME 120, ¶ 5, 212 A.3d 863.
The entry is:
Judgment affirmed.
Valerie A. Randall, Esq., Hanly Law, Portland, for appellant mother
With leave of the Court, the Department of Health and Human Services did not
file a brief
Portland District Court docket number PC-2017-52
FOR CLERK REFERENCE ONLY