In re Child of Barni A. , 2024 ME 16 ( 2024 )


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  • MAINE SUPREME JUDICIAL COURT                                                Reporter of Decisions
    Decision: 
    2024 ME 16
    Docket:   And-23-100
    Argued:   September 13, 2023
    Decided:  January 31, 2024
    Panel:       STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
    IN RE CHILD OF BARNI A.
    JABAR, J.
    [¶1] Barni A. appeals from an order of the District Court (Lewiston,
    S. Driscoll, J.) terminating her parental rights to her older child. She contends
    that the State of Maine’s failure to provide her child with 24/7 private nursing
    care that he is legally entitled to receive under Maine’s Medicaid Program,
    MaineCare, resulted in the trial court erroneously finding that she is unfit
    because she could not address her child’s complicated medical needs.1
    [¶2] Because the trial court’s findings do not address important issues
    that must be answered before we can determine whether the record supports
    a finding by clear and convincing evidence that the mother is unfit, we vacate
    the judgment and remand the matter to the trial court.
    1Briefs of amici curiae were submitted by Disability Rights Maine, the American Civil Liberties
    Union, and the American Civil Liberties Union of Maine; the Maine Parental Rights Attorneys
    Association; and the Civil Rights Corps.
    2
    I. BACKGROUND
    A.    Procedural History
    [¶3] On July 16, 2019, the Department of Health and Human Services
    filed a petition for a child protection order and a request for a preliminary child
    protection order as to the child at issue here and the child’s younger brother.
    The District Court (Oram, C.J.) granted an order of preliminary child protection
    the same day. The petition involved both parents, but the father of the children
    died unexpectedly only days later. On July 31, 2019, the court (Martin, J.) held
    a summary preliminary hearing at which the mother appeared and waived her
    right to a hearing.
    [¶4] Jeopardy was found against the mother as to both children on
    October 9, 2019, due to the threat of serious physical harm and deprivation of
    adequate care and shelter. The court (Dow, J.) found that the mother had failed
    to ensure that she consistently met the children’s medical needs, had not been
    able to parent the children in a consistent and predictable manner, and did not
    have safe and appropriate housing. The court ordered the mother to, inter alia,
    engage in a court ordered diagnostic evaluation (CODE), engage in a mental
    health assessment, consistently attend the children’s medical appointments,
    3
    maintain stable housing, and participate actively and consistently in mental
    health services.
    [¶5] Following the jeopardy order, the court held regular judicial review
    hearings. On June 22, 2021, the court (S. Driscoll, J.) entered a judicial review
    and permanency planning order finding that the mother had engaged in the
    mental health treatment required by the jeopardy order and had made
    progress in her treatment.       The court also found that the mother had
    demonstrated, over the course of a trial home placement that had begun in
    March 2021, an ability to meet the younger brother’s needs. Based on those
    findings, the Department moved to dismiss the younger brother from the child
    protection proceeding, and on September 28, 2021, the court granted the
    motion. The mother has retained custody of the younger brother since that
    time.
    [¶6] A week after the younger brother was dismissed, the Department
    filed a petition to terminate the mother’s parental rights as to the older child.
    The court held a three-day hearing on the petition that concluded on
    February 1, 2023.      On March 1, 2023, the court entered its judgment
    terminating the mother’s parental rights to the child. The court found that the
    mother is unfit because (1) she is unable to protect the child from jeopardy and
    4
    these circumstances are unlikely to change within a time reasonably calculated
    to meet the child’s needs and (2) she is unable to take responsibility for the
    child within a time reasonably calculated to meet the child’s needs. See
    22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii) (2023).2 The court further found that
    terminating the mother’s parental rights was in the best interest of the child.
    See id. § 4055(1)(B)(2)(a). The mother timely appealed. See M.R. App. P. 2B(c).
    B.       Facts
    [¶7] The mother is the biological mother of both children. The older
    child was born premature and with a genetic abnormality that causes a range
    of medical challenges. Tumors on his brain cause seizures and affect his
    executive functioning, vision, and visual processing. The tumors will likely
    grow and change over time and, if they grow aggressively, could become
    malignant or impact brain function. The child is predisposed to neurological,
    cognitive, kidney, feeding, skin, and breathing issues, as well as learning and
    intellectual disabilities. He is unable to chew or swallow due to impaired
    neurological functioning.             His food must be mixed and administered in
    measured doses through a gastronomy tube (g-tube) into his stomach, after
    Under 22 M.R.S. § 4055(1)(B)(2)(b), a court may find that a parent is unfit when the parent is
    2
    either unable or unwilling to eliminate jeopardy or to take responsibility for the child. Here, the court
    expressly found that the mother is unfit based on her lack of ability and not on her lack of will.
    5
    which he must be vented, a process that manipulates his stomach to push up
    air to minimize painful abdominal distension and vomiting. The child receives
    numerous medications through both the g-tube and, at times, a nebulizer. He
    receives speech, occupational, and physical therapy to assist with sitting,
    standing, and muscle development.
    [¶8] To manage his condition, the child has a cohort of care providers,
    including a neurologist; a primary care physician; a nutritionist; a nephrologist;
    a pulmonologist; a urologist; an oncologist; an ear, nose, and throat specialist;
    a gastroenterologist; an eye specialist; an occupational therapist; a physical
    therapist; a speech therapist; a teacher for the visually impaired; and a
    developmental pediatrician. The child has significant long-term medical needs,
    and it is not known whether his condition will improve or worsen over time.
    [¶9] Although his condition is not acutely life threatening, the child must
    be monitored constantly and vigilantly for behavioral cues due to his inability
    to communicate verbally, lest otherwise-treatable issues be missed. He must
    be surveilled for subtle seizure activity, visual disturbances, twitching,
    urination and defecation, changes in breathing, and changes to his skin—all
    symptoms that could necessitate medical attention.
    6
    [¶10]    According to his many caregivers, the child qualifies for
    24/7 private nursing care under Maine’s Medicaid program, MaineCare. See
    22 M.R.S. §§ 3172-3196 (2023); 10-144 C.M.R. ch. 101, ch. II §§ 94 (effective
    May 1, 2010); 10-144 C.M.R. ch. 101, ch. II § 96 (effective Feb. 11, 2019);
    
    42 U.S.C.A. §§ 1396
     to 1396w-7 (Westlaw through 
    Pub. L. No. 118-30
    ). He
    receives skilled nursing care in his resource home only on weekdays and never
    overnight. He has never received the 24/7 private nursing care that he legally
    qualifies for, either in the resource home or in the mother’s home.
    [¶11] The mother has made great progress since the commencement of
    this child protection proceeding and has alleviated the jeopardy caused by her
    housing and mental health issues to such an extent that she successfully
    reunified with the child’s younger brother.
    [¶12] Under the care of his resource family, the child has progressed.
    The resource mother has provided him extraordinary care. She is extremely
    knowledgeable about his condition, capably coordinates his care and providers,
    and can provide emergency response including transportation. The resource
    family can also care for and attend to the child at all hours. The child has been
    in this placement for most of his life, and he has bonded with his resource
    family.
    7
    II. DISCUSSION
    A.    Legal Standard
    [¶13] “To terminate parental rights, a trial court must first find one of
    the four statutory bases of parental unfitness in 22 M.R.S. § 4055(1)(B)(2)(b),
    and then it must consider the best interest of the child.” In re Child of
    Christine M., 
    2018 ME 133
    , ¶ 6, 
    194 A.3d 390
    . Unfitness may be based on any
    one of the following:
    (i)    The parent is unwilling or unable to protect the child from
    jeopardy and these circumstances are unlikely to change
    within a time which is reasonably calculated to meet the
    child’s needs;
    (ii)   The parent has been unwilling or unable to take
    responsibility for the child within a time which is reasonably
    calculated to meet the child’s needs;
    (iii) The child has been abandoned; or
    (iv)   The parent has failed to make a good faith effort to
    rehabilitate and reunify with the child pursuant to section
    4041.
    22 M.R.S. § 4055(1)(B)(2)(b).      Unless the court first finds by clear and
    convincing evidence that the parent is unfit, it cannot reach the issue of whether
    termination of parental rights is in the child’s best interest. See Adoption by
    Stefan S., 
    2020 ME 5
    , ¶ 8, 
    223 A.3d 468
    .
    8
    [¶14] We review a court’s factual findings of parental unfitness and best
    interest of the child for clear error and its ultimate decision on termination for
    an abuse of discretion. Id. ¶ 10. “When the burden of proof at trial is clear and
    convincing evidence, our review is to determine whether the fact-finder could
    reasonably have been persuaded that the required findings were proved to be
    highly probable.” Id. (quotation marks omitted).
    [¶15] On appeal, the mother and amici contend that we must examine
    this case in the context of the mother’s constitutional right to provide for her
    child. See generally Santosky v. Kramer, 
    455 U.S. 745
     (1982). They urge us to
    go beyond the clear-and-convincing-evidence standard and determine whether
    termination of the mother’s parental rights, based on a finding that she is unfit
    due to her inability to resolve jeopardy and take responsibility for the child and
    his complicated medical needs, was the least restrictive means to achieve a
    compelling government interest, see Hiller v. Fausey, 
    904 A.2d 875
    , 885-86
    (Pa. 2006), given that the State has failed to provide 24/7 private nursing care
    to the child that could enable the mother to care for him.
    [¶16] We agree that we must review this case with regard to the mother’s
    constitutional right to parent her child. We note, however, that Maine’s statute
    9
    regarding the termination of parental rights presently contains sufficient
    safeguards to protect a parent’s constitutional rights. We have stated that
    [t]he Supreme Court of the United States has concluded that
    requiring proof by clear and convincing evidence in termination of
    parental rights proceedings satisfies the Constitution because it
    “adequately conveys to the factfinder the level of subjective
    certainty about [the] factual conclusions necessary to satisfy due
    process.”
    In re Child of Shayla S., 
    2019 ME 68
    , ¶ 7, 
    207 A.3d 1207
     (second alteration in
    original) (quoting Santosky, 
    455 U.S. at 769
    ). We have repeatedly asserted that
    the standard of proof of clear and convincing evidence is constitutionally
    sufficient in termination of parental rights cases. E.g., In re Crystal S., 
    483 A.2d 1210
    , 1213 (Me. 1984); Guardianship of Chamberlain, 
    2015 ME 76
    , ¶ 23, 
    118 A.3d 229
    . We therefore review the trial court’s judgment to determine whether
    clear and convincing evidence supports the court’s finding that the mother is
    unfit and its decision to terminate the parental rights of the mother.
    B.    Parental Unfitness
    [¶17] The trial court found the mother unfit under two statutory criteria:
    inability to protect the child from jeopardy and inability to take responsibility
    for the child in a time reasonably calculated to meet the child’s needs. 22 M.R.S.
    § 4055(1)(B)(2)(b)(i)-(ii). These findings were based on the trial court’s
    observations that the mother “is unable to consistently meet [the child’s]
    10
    heightened medical needs” and “has not yet demonstrated an ability to care for
    [him] full time in her home even with the available nursing assistance.”
    [¶18] The mother now challenges the trial court’s conclusion that,
    because she is unable to address the child’s complicated medical problems
    without assistance, she is an unfit parent for him. She contends that if the State
    provided the nursing care and other services that she and the child are legally
    entitled to receive, she would be able to meet his medical needs. The mother
    asserts that because the unavailability of adequate private nursing care and her
    inability to care for the child on her own were the primary reasons for the
    court’s unfitness finding, the court erred when it concluded by clear and
    convincing evidence that she is unfit under 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii).
    [¶19] We agree. The child has severe medical needs that entitle him to
    full-time private nursing care under federal and state law. The Department
    never provided that care, and its reunification and rehabilitation plan did not
    afford the mother any opportunity to demonstrate that, with the medical
    services the child is entitled to receive, she is able to care for the child. Absent
    evidence that the mother—not on her own but with the benefit of 24/7 private
    nursing care—is unable to alleviate jeopardy or take responsibility for the
    child, the record was not sufficient to find by clear and convincing evidence that
    11
    the mother is unfit. Furthermore, although the court noted that the mother’s
    personal challenges impeded reunification, her significant progress dealing
    with those challenges throughout this child protection proceeding undermines
    the court’s unfitness finding.
    1.    Full-Time Nursing Care and Reunification Efforts
    [¶20] We have held that the extraordinary medical needs of a child,
    coupled with a parent’s failure to meet those needs, is sufficient to support a
    finding that the parent is unable to protect the child from jeopardy or take
    responsibility for the child within a time reasonably calculated to meet the
    child’s needs. See In re Jesse B., 
    2017 ME 90
    , ¶¶ 3-5, 10, 
    160 A.3d 1187
    ; In re
    A.H., 
    2013 ME 85
    , ¶¶ 2-7, 15, 
    77 A.3d 1012
    . In In re Jesse B., we affirmed the
    termination of the parents’ parental rights where the child had substantial
    medical needs and the parents failed to engage in services that would allow
    them to meet their child’s needs. 
    2017 ME 90
    , ¶¶ 3-5, 10, 
    160 A.3d 1187
    . Also,
    in In re A.H., we held that, “[g]iven the evidence that the[] parents, however
    loving, [would] never have the capacity to adequately care for th[e] child with
    her significant medical needs, the court could reasonably have been persuaded
    that it was highly probable that the parents were unable to protect the child
    from jeopardy to her health or welfare and were unable to take responsibility
    12
    for her within a time reasonably calculated to meet her needs.” 
    2013 ME 85
    ,
    ¶ 15, 
    77 A.3d 1012
    .
    [¶21] Those cases do not compel terminating the mother’s parental
    rights here. Unlike the present matter, neither case involved a situation in
    which the child was legally entitled to 24/7 private nursing services to manage
    his medical needs and the State failed to facilitate that care. The case before us
    is unique because the child qualifies for around-the-clock private nursing care
    under the federal Medicaid Act and MaineCare.                                    See 
    42 U.S.C.A. §§ 1396
     to 1396w-7; 22 M.R.S. §§ 3172-3196; 10-144 C.M.R. ch. 101, ch. II §§ 94
    (effective May 1, 2010); 10-144 C.M.R. ch. 101, ch. II, § 96 (effective Feb. 11,
    2019). Medicaid requires states to promptly provide or arrange for treatment
    necessary to correct or ameliorate a medical condition once screening and
    assessment have occurred and the child’s medically necessary services have
    been identified.3 42 U.S.C.A. §§ 1396a(a)(10)(A), (43)(C), 1396d(a)(4)(B), (8),
    Although the federal Medicaid Act often requires states only to pay for medical services, when
    3
    the Act was amended in 2010, states became responsible for providing the services themselves in
    some instances. O.B. v. Norwood, 
    838 F.3d 837
    , 843 (7th Cir. 2016) (“[W]here the Medicaid Act refers
    to the provision of services, a participating State is required to provide (or ensure the provision of)
    services, not merely to pay for them.” (quotation marks omitted)); Patient Protection & Affordable
    Care Act, 
    Pub. L. No. 111-148, § 2304
    , 
    124 Stat. 119
    , 296 (2010). The Seventh and the Ninth Circuit
    Courts of Appeals have held that the obligation to provide, or arrange for the provision of, medical
    services extends to private duty nursing services for children under the early and periodic screening,
    diagnostic, and treatment provisions of the Medicaid Act. O.B., 838 F.3d at 841-43 (holding that state
    was required to arrange for provision of home nursing services for qualified children when state
    13
    (r)(5). These services include private-duty nursing services. Id. § 1396d(a)(8);
    supra n.3. Under MaineCare, the child is eligible for Level IV Private Duty
    Nursing, which includes residential care. 10-144 C.M.R. ch. 101 § 96.01-3,
    96.02-4(D) (effective Feb. 11, 2019).4
    [¶22]      The Department, which administers MaineCare, has never
    provided the child with this level of care.5 The record contains vague references
    to nursing shortages and problems surrounding the COVID-19 pandemic, but
    there is nothing indicating that the Department made any attempt to secure
    24/7 nursing care, or anything close to it, for the child. Nor did the mother’s
    failed to argue that nursing shortage may interfere with Medicaid obligations); Katie A. ex rel. Ludin
    v. Los Angeles Cnty., 
    481 F.3d 1150
    , 1154 (9th Cir. 2007); 42 U.S.C.A. § 1396d(r)(5).
    Even if the Department here is required only to provide reimbursement for the child’s necessary
    medical services, it is still the Department that sets the rates that directly impact service capacity,
    and it is still the Department that manages the system and arranges the provision of these services
    by other entities. The record does not address the Department’s unique role to provide reunification
    services under the child protection statute on one hand and its role as the gatekeeper of Title 42
    benefits to provide services to qualified individuals on the other.
    4 Alternatively, the child is eligible for all medically necessary treatment services covered by 
    42 U.S.C. § 1396
    (a) and (r) under the early and periodic screening, diagnostic, and treatment regulations
    of MaineCare. 10-144 C.M.R. § 94.02, 94.05-2 (effective May 1, 2010).
    5   Relatedly, the U.S. Department of Justice has documented in detail the Department’s failure to
    provide sufficient community-based services to children with long-term behavioral and
    developmental disabilities. See Letter from Kristen Clarke, Assistant Att’y Gen., C.R. Div., U.S. Dep’t of
    Just., to Gov. Janet Mills & Att’y Gen. Aaron Frey (June 22, 2022), https://www.justice.gov/opa/press-
    release/file/1514326/download [https://perma.cc/9AGG-LDXE]. This failure violates Subpart A of
    Title II of the Americans with Disabilities Act, which prohibits states from discriminating based on
    disability. See id.; 
    42 U.S.C.A. §§ 12131-12134
     (Westlaw through 
    Pub. L. No. 118-30
    ); Olmstead v. L.C.
    ex rel. Zimring, 
    527 U.S. 581
    , 597 (1999).
    14
    attorney or the guardian ad litem (GAL) seek to compel the provision of
    adequate care. Rather, the most the child received was sixty hours per week of
    nursing care, provided only on weekdays. Because of this failure, the mother
    has never been afforded the assistance necessary to care for her child.
    [¶23]   Moreover, the Department’s reunification and rehabilitation
    efforts failed to adequately address the child’s medical needs and provide the
    services that would create any possibility of the mother reunifying with the
    child.    In a child protection proceeding, the Department must develop a
    reunification plan that includes “changes . . . necessary to eliminate jeopardy to
    the child while in the care of a parent” and must “[m]ake good faith efforts to
    cooperate with the parent in the pursuit of the plan.”                 22 M.R.S.
    § 4041(1-A)(A)(1)(c)(ii), (3) (2023). “The rehabilitation and reunification plan
    is the roadmap by which the Department and a parent are expected to
    cooperatively seek to rehabilitate the conditions that resulted in jeopardy to
    the child.” In re Child of Rebecca J., 
    2019 ME 119
    , ¶ 6, 
    213 A.3d 108
     (quotation
    marks omitted). The Department and the parent share the obligation to
    reunify. In re Thomas D., 
    2004 ME 104
    , ¶ 23, 
    854 A.2d 195
    .
    [¶24] Although the Department filed rehabilitation and reunification
    plans pursuant to section 4041(1-A), the plans failed to afford the mother
    15
    opportunities for home visits with sufficient nursing care or resources in place
    to assist her in alleviating jeopardy.
    [¶25]    After the jeopardy order was entered and the Department
    prepared its first reunification plan in March 2020, the court held regular
    judicial review hearings addressing reunification efforts, but the mother’s
    visitation time with the child was substantially limited throughout the case.
    A judicial review order dated June 22, 2021, indicated that visits between the
    mother and her child had been suspended prior to the COVID-19 pandemic,
    because of the mother’s difficulty early in the proceeding meeting the child’s
    needs, and were never restarted because of the pandemic. Then, a judicial
    review order dated October 28, 2021—after the Department filed the petition
    to terminate the mother’s parental rights—indicated that although supervised
    visits between the mother and child had resumed on June 25, 2021, they were
    again suspended only a month later due to a lack of nursing staff. A judicial
    review order dated March 17, 2022, indicated that there was “inconsistency in
    visitation due to the lack of available nursing staff.” And a judicial review order
    dated August 11, 2022, again indicated that between late March 2020 and
    May 2022, a period of over two years, visitation between the mother and the
    child had been limited due to lack of available nursing staff. The Department’s
    16
    second reunification plan, filed on September 8, 2022, stated that supervised
    visitation was occurring only on Monday afternoons and Thursday mornings
    for one and a half hours each.
    [¶26] Since the child has been in the custody of the resource parents and
    visitation was severely curtailed due to the COVID-19 pandemic, the mother
    has never had the opportunity to demonstrate her ability to care for the child
    with increased nursing care. The GAL testified that she has never observed the
    child with the mother in the mother’s home, therefore precluding any
    opportunity to comment on the mother’s ability to care for the child, with or
    without the requisite nursing care. And, as noted above, although the child
    qualifies for full-time nursing care, the most he ever received was sixty hours
    per week on weekdays.
    [¶27] The September 8, 2022, reunification plan indicated that the
    mother “would most likely require full-time or nearly full-time support to
    provide adequate, safe care-taking to [the child].” But the plan failed to mention
    that the child legally qualifies for 24/7 nursing care under MaineCare. Further,
    in discussing how to measure the mother’s progress toward eliminating
    jeopardy, the plan indicated that reunification would “include an ability [for the
    mother] to care for [her child] by herself and recognize when and with whom
    17
    to seek professional medical care.” In light of the medical needs of the child that
    are part of the record, the Department’s benchmark of “an ability [for the
    mother] to care for [her child] by herself” was virtually impossible for the
    mother to meet.6
    [¶28]       It was repeatedly stated throughout the child protection
    proceeding that, although the child was entitled to 24/7 private nursing care,
    there were inadequate resources to meet his needs. Inadequate resources do
    not excuse a state’s obligation to provide benefits under Medicaid. See, e.g., Ala.
    Nursing Home Ass’n v. Harris, 
    617 F.2d 388
    , 396 (5th Cir. 1980) (holding that
    state health department’s failure to obtain sufficient funds to cover Medicaid
    expenditures did not preclude eligible providers from receiving reasonable
    cost reimbursement); Doe v. Chiles, 
    136 F.3d 709
    , 721-722 (11th Cir. 1998).
    [¶29] In this case, there is nothing on the record explaining why there
    were inadequate resources for this child, nor is there evidence of any advocacy
    on behalf of the child or the mother by the Department, the GAL, or the mother’s
    6 The September 8, 2022, reunification plan, filed only three months before the scheduled hearing
    on the Department’s petition for termination of parental rights, was totally unrealistic given the
    child’s extensive medical needs and was not a good faith effort to effectuate reunification. See
    22 M.R.S. § 4041(1-A)(A) (2023). We acknowledge, however, that the mother has not challenged the
    sufficiency of the Department’s reunification efforts. Nonetheless, whether the record contains
    sufficient evidence to find that the mother is unfit to care for her medically needy child is squarely
    before us, and that question requires us to determine whether the mother was afforded adequate
    opportunities under appropriate circumstances to demonstrate her ability to care for her child.
    18
    attorney. In its pursuit of reunification, the Department never provided the
    child with the services that he is entitled to receive, even though sufficient
    nursing care for the child may have enabled the mother to eliminate jeopardy
    and take responsibility for him.
    [¶30] The trial court concluded that the mother’s inability to meet the
    child’s significant medical needs was why she had not alleviated jeopardy, and
    that, although she had made progress in developing the skills necessary to care
    for the child, she had not demonstrated the ability to do so full-time with the
    available nursing assistance. The trial court did not, however, make any
    findings as to whether she would have been able to alleviate jeopardy had the
    Department met its obligation under federal and state law to provide the
    full-time medical care to which the child is entitled. In contrast to our prior
    caselaw concerning the termination of parental rights of parents with medically
    compromised children, the trial court’s findings in this case indicate that it was
    the mother’s inability, without legally mandated assistance, to provide the
    necessary medical care for her child’s complicated health problems that led to
    the trial court’s conclusion that she is unfit.
    [¶31] The mother’s inability to care for the child full-time with the
    assistance presently available may not be a problem if the mother is provided
    19
    the nursing care her child is legally entitled to receive. The court did not
    address the mother’s fitness if the requisite nursing care were available. The
    need for her to acquire the skills necessary to care for the child would have been
    greatly diminished had she had the nursing support to which the child was
    legally entitled. Furthermore, the record clearly shows that the mother was not
    afforded a realistic opportunity to meet the child’s medical needs because the
    mother’s visits with the child were severely limited due to the COVID-19
    pandemic and lack of nursing resources. Therefore, we cannot conclude on this
    record that a reasonable fact finder could be persuaded that it was highly
    probable that the mother is unfit.
    2.      Mother’s Personal Challenges
    [¶32]    The evidence presented at the termination hearing further
    demonstrates that the unfitness finding was based only on the mother’s
    difficulty managing the child’s complex medical condition and that, in all other
    respects, the mother made significant progress following the initial jeopardy
    determination.    The trial court found that the mother’s own behavioral
    challenges and difficulties learning how to administer the child’s medical care
    “impede her ability to work with the constellation of providers who must rely
    on [the child’s] primary caregiver to monitor and report symptoms and seek
    20
    appropriate care, including emergency care if necessary.” The court also found
    that the mother’s intellectual and mental health challenges have “impeded her
    progress towards reunification.”
    [¶33] The evidence does not support this finding by clear and convincing
    evidence. The mother has made significant progress in dealing with her
    behavioral challenges and, because of the limited, understaffed visitation time
    she was afforded, she never had the opportunity to demonstrate that she had
    resolved any personal impediments to her ability to care for the child.
    [¶34] A Department caseworker acknowledged that the mother had
    alleviated many of the original bases for jeopardy and had done everything that
    the Department had asked her to do in pursuit of reunification. The caseworker
    testified that the only remaining basis for jeopardy was the inability to meet the
    child’s medical needs. Moreover, in her reports, the GAL focused on the child’s
    medical needs, stating that there were “significant concerns about [the
    mother’s] ability to manage his fragile medical condition” and that the mother
    “has not demonstrated the ability to effectively care for her significant
    medically compromised child.” This opinion by the GAL was given even though
    she never observed the mother and child together at the mother’s home.
    21
    [¶35] One of the child’s nurses testified that the mother is “very attentive
    to [the child], very loving, and tries to be interactive with him” as much as
    possible. A nurse who attended visits between the mother and the child
    testified that, after training, the mother was able to independently feed the
    child and mix and administer his medications. It is clear that the mother made
    progress despite the limited number of visitations with the child and a nurse.
    [¶36] A licensed clinical professional counselor who began counseling
    the mother nearly three years prior to the termination hearing acknowledged
    that any parent would be overwhelmed by the situation the mother faced—a
    sick child, the death of her husband, and an ongoing pandemic crisis—and that
    because of those circumstances the mother never had a full opportunity to learn
    the child’s medical needs and meet them. He believed that the mother was
    doing well and testified that he had seen a significant improvement in her
    behavior over time. He commented on the mother’s February 2020 CODE
    evaluation, which indicated that the mother had some intellectual difficulties.
    He stated that during the two years and nine months that he counselled her
    following the CODE evaluation he did not see any actual intellectual disability.7
    7 The CODE evaluation raised the question of whether the mother is disabled and entitled to
    receive resources to assist her in caring for her child. The CODE report flagged concerns about the
    mother’s cognitive function and raised a possible diagnosis of intellectual disability. Despite these
    22
    [¶37]      The counselor’s observation that the mother’s behavior had
    improved since the removal of her children and death of her husband is
    consistent with the Department’s observations as the proceedings progressed.
    The Department acknowledged in its September 2022 reunification plan that
    the mother had secured stable housing with space for both of her children and
    the medical equipment for the older child, expanded her network of support for
    transportation to appointments and visitations, attended every visitation and
    appointment after they resumed in May 2022, and “put[] forth full effort to
    learn how to care for” the child and “maintain[] her personal health.” Most
    significantly, the Department believed that the mother had alleviated any
    jeopardy regarding the child’s younger brother and withdrew its petition to
    terminate the mother’s parental rights regarding him.
    [¶38] It is clear that the court’s conclusion regarding the mother’s
    unfitness focused on the mother’s inability to deal with her child’s complicated
    results, the Department never followed up to determine whether the mother has an intellectual
    disability. Had the Department inquired further and obtained a diagnosis of intellectual disability,
    the Department might have owed obligations not only to provide medical services to the child, supra
    §§ 20-31, but also to provide services to the mother to manage the child’s needs in pursuit of
    rehabilitation and reunification. See 22 M.R.S. § 4041(1-A)(A)(1)(c)(iv). So, regardless of whether
    the mother has an intellectual disability, the record does not support the unfitness finding. On one
    hand, if the mother has an intellectual disability, the Department did not meet its reunification
    obligation to provide rehabilitative services that would have allowed the mother to care for the child.
    On the other hand, if the mother does not have an intellectual disability, the Department still failed
    to provide sufficient opportunities after the mother had made progress in her personal challenges to
    determine whether she is an unfit parent when the services that the child needs are in place.
    23
    medical condition on her own. Given the mother’s significant progress in
    overcoming her personal challenges, and the fact that the mother was
    permitted only limited opportunities to demonstrate her ability to care for the
    child with adequate nursing care in place after making that progress, we
    question whether the court’s finding of unfitness meets the “clear and
    convincing” standard.
    [¶39] We must review this case within the constitutional framework
    imposing a heightened burden to prove parental unfitness by clear and
    convincing evidence. To conclude that the record establishes a high probability
    that the mother is unable to take responsibility for her child or alleviate
    jeopardy because she cannot manage the child’s extraordinary medical needs
    without support, when the Department has a legal duty to provide that support,
    would undermine the mother’s fundamental constitutional right to the care,
    custody, and control of her child and render meaningless the procedural
    safeguards, including the heightened evidentiary burden, erected to protect
    that interest. See generally In re Guardianship of Chamberlain, 
    2015 ME 76
    ,
    ¶¶ 20-24, 
    118 A.3d 229
     (noting the constitutional significance of the
    heightened standard of proof required to terminate parental rights); 22 M.R.S.
    § 4041 (imposing reunification duties upon both the Department and the
    24
    parent); 22 M.R.S. § 4005 (2023) (providing a right to legal representation in
    proceedings for termination of parental rights); 22 M.R.S. § 4038(1) (2023)
    (mandating judicial review of jeopardy findings).
    [¶40] The Department should have offered 24/7 skilled nursing care for
    the child as part of its reunification plan, and its failure to do so is a violation of
    its reunification responsibility as well as its MaineCare obligation. See 22 M.R.S.
    § 4041(1-A). The Department’s “rehabilitation and reunification plan is the
    centerpiece    of   child    protective    proceedings     following    a    jeopardy
    determination.” In re Thomas D., 
    2004 ME 104
    , ¶ 26, 
    854 A.2d 195
    . Although
    the Department’s failure to “provide adequate rehabilitation and reunification
    services” or “complete a rehabilitation and reunification plan” is not alone a
    “basis to deny a petition to terminate parental rights,” it is an “important factor
    that must be carefully evaluated” when determining parental unfitness based
    on a parent’s failure to achieve benchmarks for reunification set by the
    Department. Id ¶ 28. Even if the Department has failed to meet its reunification
    responsibility, a parent may still be deemed unfit. See In re Doris G., 
    2006 ME 142
    , ¶¶ 15-16, 
    912 A.2d 572
    .
    [¶41] But this case is different. We cannot assume that the mother would
    have been found unfit if the Department had met its legal obligations. The
    25
    significance of the Department’s failure to provide the services that the child
    needs is elevated by the fact that the services are mandated by law. In fact, the
    record demonstrates that the Department’s failure to meet its MaineCare
    obligations actually impeded the mother’s visitations for extensive periods of
    time.
    [¶42] The record does not, in the absence of a finding that the mother
    would be unfit even if the Department had met its legal duty, establish by clear
    and convincing evidence that the mother is unfit.
    C.      Best Interest of the Child
    [¶43] Because we cannot conclude that there was sufficient evidence in
    the record to find the mother unfit by clear and convincing evidence, we do not
    reach the issue of whether termination of the mother’s parental rights was in
    the child’s best interest. Nonetheless, we take the opportunity to reiterate the
    trial court’s alternatives when conducting a best interest analysis.
    [¶44] Although not before us, it is important to note that in determining
    the best interest of the child and providing permanency for the child,
    termination of parental rights and adoption is not the only alternative. As we
    recently stated,
    [t]he Legislature has provided five different permanency options
    including adoption and permanency guardianship. A permanency
    26
    guardianship may be ordered to establish safe, long-term care for
    a child, but it is not appropriate when the child needs the certainty
    and stability of adoption and the parties otherwise need clarity in
    their respective roles.          Unlike adoption, a permanency
    guardianship allows for a court to order that a parent have
    reasonable contact with the child where it is in the best interest[]
    of the child. If a trial court finds that a child needs permanency,
    then the trial court should not automatically conclude that
    terminating the parents’ parental rights and adoption is the best
    way to effectuate permanency. The Legislature has determined
    that both adoption and permanency guardianships are equally
    available to further the goal of permanency for children, and courts
    should consider the particularities of what kind of permanency and
    stability a child needs before determining that adoption, rather
    than one of the other equally available options, is the best course.
    A finding that a child needs permanency cannot, without more, be
    enough to conclude that termination is in the best interest of the
    child because this would never allow a court to conclude that any
    other permanency option, including a permanency guardianship,
    would be in the best interest of the child.
    ....
    In sum, to ensure that terminating a parent’s parental rights
    is in the best interest of the child, there must be some reason
    besides a general need for permanency that adoption is the best
    permanency option for that child. The risk of a generalized finding
    that permanency always requires adoption, and therefore
    termination of a parent’s parental rights, is that a court might
    terminate a parent’s parental rights when it is not in the best
    interest of a child and another, better permanency option exists.
    In re Children of Quincy A., 
    2023 ME 49
    , ¶¶ 22, 24, 
    300 A.3d 832
     (cleaned up).
    [¶45] The caseworker for the Department testified that she considered
    a permanency guardianship, but there is nothing in the record regarding any
    27
    follow up or advocacy for this option by the Department, the GAL, or the
    mother’s attorney. Permanency guardianship in this case might have been a
    viable option and in the best interest of the child, without the need to terminate
    the mother’s parental rights.
    [¶46] The trial court found that it was in the child’s best interest to
    remain with the resource family and that the child needed permanency and
    concluded that the permanency plan should be adoption. In this case, the
    mother’s attorney did not appeal the trial court’s conclusion regarding the
    child’s best interest, nor did the mother’s attorney file a motion for further
    findings on the issue of permanency, and therefore the issue of the best
    permanency plan for the child is not before us. See M.R. Civ. P. 52(b); cf. In re
    Children of Quincy A., 
    2023 ME 49
    , ¶ 26, 
    300 A.3d 832
    . Still, because we vacate
    the judgment and remand the matter to the trial court, we note that a
    permanency guardianship may be an appropriate permanency plan under
    these circumstances.
    III. CONCLUSION
    [¶47] We fully recognize that vacating the termination judgment does
    nothing by itself to rectify the Department’s failure to fulfill its obligation to
    provide services, so we encourage the court, the mother, and the Department
    28
    to explore alternatives to termination that do not put the child at risk but that
    recognize the Department’s obligation.
    [¶48] We remand the case to the trial court for further proceedings to
    consider the following: (1) whether the mother has an intellectual disability
    and, if she does, how it bears on both parental fitness and the Department’s
    reunification obligation; (2) whether the mother is, or would be, unfit
    regardless of the Department’s failure to meet its MaineCare obligation
    regarding skilled nursing care; and (3) whether there is an alternative to
    termination of the mother’s parental rights that meets the best interest of the
    child. On remand, the District Court may take further evidence.
    The entry is:
    Judgment vacated. Remanded to the District
    Court for further proceedings consistent with
    this opinion.
    Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant mother
    Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.
    (orally), Office of the Attorney General, Bangor, for appellee Department of
    Health and Human Services
    Jeremy Pratt, Esq., Pratt & Simmons, P.A., Camden, and Sumayya Saleh, Esq.,
    Civil Rights Corps, Washington D.C., for amicus curiae Civil Rights Corps
    29
    Julian Richter, Esq., Bath, for amicus curiae Maine Parental Rights Attorneys
    Association
    Lauren Wille, Esq., Disability Rights Maine, Augusta, for amicus curiae Disability
    Rights Maine
    Carol Garvan, Esq., and Zachary L. Heiden, Esq., American Civil Liberties Union
    of Maine Foundation, Portland, and Zoe Brennan-Krohn, Esq., American Civil
    Liberties Union Foundation, San Francisco, California, for amici curiae
    American Civil Liberties Union and American Civil Liberties Union of Maine
    Lewiston District Court docket number PC-2019-76
    FOR CLERK REFERENCE ONLY
    

Document Info

Docket Number: And-23-100

Citation Numbers: 2024 ME 16

Judges: Valerie Stanfill, Andrew M. Mead, Jospeh M. Jabar, Catherine R. Connors, Andrew M. Horton, Rick E. Lawrence, Wayne R Douglas

Filed Date: 1/31/2024

Precedential Status: Precedential

Modified Date: 2/2/2024