In re Zoey H. ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 159Docket: Wal-17-65
Submitted
On Briefs: June 29, 2017
Decided: July 18, 2017
Corrected: July 25, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE ZOEY H.
GORMAN, J.
[¶1] The mother of Zoey H. appeals from a judgment of the District
Court (Belfast, Worth, J.) terminating her parental rights to her child pursuant
to 22 M.R.S. § 4055(1)(A)(1) and (B)(2)(a), (b)(i)-(iv) (2016).1 She argues
that she was deprived of due process because the court terminated her
parental rights after affording her insufficient notice of the termination
hearing and because the court placed undue weight on the earlier termination
of her rights to another child. The mother also asserts that the court’s findings
are insufficient as a matter of law because the court adopted the proposed
findings of the Department of Health and Human Services without material
1 The father’s parental rights to the child were terminated in the same order. He is not a party
to this appeal, however.
2
alteration.2 We will address each of the mother’s contentions below but,
because we conclude that the mother received due process and because the
evidence supports the court’s findings and discretionary determination, we
affirm the judgment.
[¶2] The court determined that the mother is unwilling or unable to
protect the child from jeopardy and these circumstances are unlikely to
change within a time that is reasonably calculated to meet the child’s needs,
that she has been unwilling or unable to take responsibility for the child
within a time that is reasonably calculated to meet the child’s needs, and that
she has failed to make a good faith effort to rehabilitate and reunify with the
child pursuant to 22 M.R.S. § 4041 (2016). See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii), (iv). It also determined that the mother has
abandoned the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(iii). These
determinations are unquestionably supported by the court’s findings of fact,
which are in turn supported by competent record evidence.
2 Additionally, the mother contends that the court’s failure to hold a timely permanency
planning hearing after ordering the Department to cease reunification efforts, see 22 M.R.S.
§ 4036(1)(G-2) (2016), prejudiced her. Given the mother’s pattern of nonparticipation in
reunification efforts before the cease reunification order and her nonparticipation in court
proceedings and reunification efforts after the order, we conclude that it is highly probable that this
failure did not affect the outcome of this case and constituted harmless error. See In re Scott S.,
2001 ME 114, ¶ 30, 775 A.2d 1144.
3
[¶3] Among other findings, the court found, by clear and convincing
evidence, that the mother did not have any contact with the Department’s
caseworker after the jeopardy hearing, “refused to meet with the
caseworker[,] . . . ignored the Department’s attempts to develop a plan to
address reunification,” and, at the time of the termination hearing, had not
visited with the child in over six months. The court further found that the
mother “[does] not believe that [she] need[s] to change and [is] unwilling to
take the necessary steps to alleviate the jeopardy that continues to exist.” In
discussing the permanency plan for the child, the court noted that both the
foster family and a paternal family member are willing to adopt her and her
older sister.3 Given this evidence, the court appropriately determined, by
clear and convincing evidence, that the State has demonstrated all four
grounds of parental unfitness and that termination is in the child’s best
interest. See In re Robert S., 2009 ME 18, ¶ 15, 966 A.2d 894.
[¶4] Turning to the mother’s other challenges on appeal, we find her
assertions that the court violated her right to due process by failing to provide
notice of the hearing and by “utiliz[ing]” the fact that she had recently had her
3As we recently stated, “permanency planning for a child in foster care and the best interest
determination to be made in a termination proceeding, are distinct from the question of who should
adopt the child, which is addressed in an adoption proceeding.” In re Kenneth S., 2017 ME 45, ¶ 6,
157 A.3d 244 (emphasis in original) (citations omitted).
4
parental rights to another child terminated wholly unpersuasive. See U.S.
Const. amend. XIV, § 1; Me. Const. art. I, § 6-A; In re Robert S., 2009 ME 18,
¶¶ 13-14, 966 A.2d 894. With regard to the issue of notice, the record shows
that the mother was served in-hand with the petition for termination of
parental rights in October of 2016 and that notice of the termination hearing
was issued in December of 2016 for a hearing to be held in January of 2017.4
The record also demonstrates multiple attempts by the Department and
court-appointed counsel to contact the mother.5 Despite notice and although
her attorney was present and participated, the mother did not attend the
hearing on the Department’s termination petition.
[¶5] There is also no indication that the court placed undue weight on
the involuntary termination of the mother’s parental rights to her older child
in reaching its conclusion regarding this child. See In re Heather C., 2000 ME
99, ¶¶ 30-32, 751 A.2d 448. Contrary to the mother’s assertions, the record
shows that the earlier termination order was one of several factors properly
4 The mother points to a judicial review and permanency planning order dated December 12,
2016 (Sparaco, J.), which indicated that another judicial review hearing would be held in May of
2017, to support her contention that the court’s communications about the date of the termination
hearing were “ambiguous.” Contrary to her contention, that same order indicated that the
termination hearing would be held in January.
5 At the termination hearing, the mother’s attorney reported to the court his efforts to ensure
that his client was aware of the hearing, including resending a copy of the trial notice and leaving a
message on her voicemail.
5
considered by the court along with ample evidence that the mother has
abandoned the child.6 The court’s termination judgment included the
following language from the jeopardy order:
[The child] is placed in circumstances of jeopardy to her health
and welfare by her mother . . . due to serious abuse or neglect as
evidenced by the threat of serious harm including serious injury
and/or serious mental or emotional injury or impairment, and the
deprivation of adequate shelter, supervision, and care, due to
exposure to ongoing domestic violence in the home, history of
unstable mental health, and ongoing substance abuse, and
inability to provide a safe, stable and sanitary home for the child.
At the time of the jeopardy proceeding that resulted in this order, the child
was not even four months old and had never lived with her parents. The court
was able to make these jeopardy findings, however, because the child was
conceived and born while her parents were involved in a child protection
proceeding regarding their older child and the father’s three other children.
As a result of the parents’ neglect or abuse of the older children, the court
(Raimondi, J.) removed the child from her parents’ custody almost
immediately after birth. In short, the court’s consideration of the earlier
termination of the mother’s parental rights to her older child was appropriate,
and the mother’s right to due process was more than adequately protected.
6Although the mother urges us to consider the constitutionality of 22 M.R.S. § 4002(1-B)
(2016), we decline to revisit this settled point of law. See generally In re Heather C., 2000 ME 99,
751 A.2d 448.
6
[¶6] Finally, we reject the mother’s contentions that the court’s order
constitutes a “verbatim adoption” of the Department’s proposed findings and
that the findings contained therein are therefore insufficient as a matter of
law. Although a verbatim adoption of the language of a proposed order or an
adoption absent material change is disfavored because it would “suggest[]
that the court has not applied its independent judgment in making its findings
and conclusions,” courts may properly request and consider proposed orders
from parties in crafting an order. In re Marpheen C., 2002 ME 170, ¶ 7,
812 A.2d 972. Here, at the close of the termination hearing, the court stated
its findings and conclusions of law on the record7 and requested that the
Department submit a proposed order reflecting its judgment. The court then
made changes to the text submitted by the Department. It is therefore
“evident that the . . . judgment is the result of the application of independent
judicial thought to the process of making fact-findings and conclusions.” Id.The entry is:
Judgment affirmed.
7 Specifically, the court took note of prior termination proceedings involving the mother and
then stated, “[T]he Department has shown that the mom . . . [has] abandoned [the child],” and,
further, that the mother did not take advantage of visits with the child, participate in family team
meetings, complete the work necessary to reunify with the child, or appear at the termination
hearing despite proper notice.
7
Ezra A.R. Willey, Esq., Willey Law Offices, Bangor, 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
Belfast District Court docket number PC-2016-4
FOR CLERK REFERENCE ONLY