In re Cameron B. , 2017 Me. LEXIS 21 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 18Docket: Han-16-264
Submitted
On Briefs: November 29, 2016
Decided: January 26, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CAMERON B.
SAUFLEY, C.J.
[¶1] The mother and the father of Cameron B. appeal from a judgment of
the District Court (Ellsworth, Roberts, J.) terminating their parental rights to the
child pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2) (2016). They
contend that the court should have ordered a permanency guardianship
instead of terminating their parental rights. We affirm the judgment.
I. BACKGROUND
[¶2] In January 2014, when Cameron was ten months old, the
Department of Health and Human Services filed a petition for a child protection
order because of the parents’ neglect and the threat of neglect due to their
substance abuse. On February 3, 2014, the Department sought and obtained a
preliminary protection order placing the child in the Department’s custody
after the Department alleged that the child was found alone in a car with the
2
parents in contravention of a safety plan. The child was placed in foster care
with the father’s uncle and the uncle’s wife on the same day.
[¶3] By agreement, the court (Mallonee, J.) made a finding of jeopardy as
to both parents based on their substance abuse. A reunification plan required
them to maintain sobriety, refrain from using non-prescribed mood-altering
substances, and submit to random drug testing.
[¶4] After the court repeatedly, and unsuccessfully, ordered the parents
to comply with drug testing requirements, the Department filed a petition to
terminate their parental rights on May 19, 2015. The court denied the petition
on August 25, 2015, giving the parents additional time to recover from their
addictions. The court admonished the parents for failing to comply with drug
testing and warned them that their continued failure to engage in recovery
could result in future termination of their parental rights.
[¶5] On January 28, 2016, almost two years after Cameron was placed
with his relatives, the Department filed a second petition for termination of the
parents’ parental rights. The Department alleged that, in addition to both
parents’ substance abuse, neither was engaged in treatment, they had no stable
housing, and they had made “little or no progress” in the five months that had
elapsed after the first termination petition was denied.
3
[¶6] The second termination hearing was held on April 26 and 29, 2016.
The Department caseworker testified that the Department recommended
termination because of the child’s young age and the risk that the parents would
repeatedly bring the matter back into court. The guardian ad litem (GAL) also
recommended termination. Although she believed that permanency
guardianship could also provide permanency for Cameron, she expressed
concern about “tension” between the parents and the foster parents.
[¶7] In a judgment entered on May 17, 2016, the court (Roberts, J.)
terminated both parents’ parental rights to Cameron after making the following
findings by clear and convincing evidence. See In re Hannah S., 2016 ME 32, ¶ 3,
133 A.3d 590. The parents “continually failed” to comply with the drug testing
requirement and never tested clean for a period of thirty days. The Department
requested drug tests from both parents on every weekday between January 22,
2016, and March 3, 2016, but neither parent complied. Permanency was
important for the child. The child had lived with his foster parents for twenty-
seven of the thirty-eight months of his life. The foster parents provided “a
loving and stable home” for him and they planned to adopt him. The parents
did not demonstrate a commitment to maintaining a sober lifestyle despite the
passage of twenty-nine months. The court further found that neither parent
4
was willing and able to protect the child from jeopardy, and those
circumstances were unlikely to change within a time reasonably calculated to
meet his needs, nor was either parent willing and able to take responsibility for
the child within a time reasonably calculated to meet his needs. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii). To achieve permanency for the child, termination
was in his best interest. See id. § 4055(1)(B)(2)(a).
[¶8] Both parents appeal from the judgment. See 22 M.R.S. § 4006
(2016); M.R. App. P. 2(b)(3).
II. DISCUSSION
[¶9] The parents do not challenge the court’s factual findings regarding
their lack of capacity for parenting. Instead, they argue that the court erred in
terminating their parental rights because the child was placed with relatives
who live in the same town and who support visitation. They contend that
termination was not in the child’s best interest and that the court should have
ordered a permanency guardianship instead.
[¶10] Before a court may terminate a parent’s parental rights, the court
must find at least one ground of parental unfitness—which is uncontested here
—and find, “by clear and convincing evidence . . . that termination is in the
child’s best interest.” In re C.P., 2016 ME 18, ¶ 30, 132 A.3d 174; see also
5
22 M.R.S. § 4055(1)(B). We review the trial court’s factual findings for clear
error and will reverse a finding only “if there is no competent evidence in the
record to support it, if the fact-finder clearly misapprehends the meaning of the
evidence, or if the finding is so contrary to the credible evidence that it does not
represent the truth and right of the case.” Guardianship of Hailey M., 2016 ME
80, ¶ 15, 140 A.3d 478 (quotation marks omitted) (citations omitted). The
weight and credibility of the testimony and other evidence, including GAL
reports, are for the fact-finder’s determination. See In re I.S., 2015 ME 100, ¶ 11,
121 A.3d 105.
[¶11] “With regard to the best interest determination, we review the
court’s . . . ultimate conclusion for an abuse of discretion, viewing the facts, and
the weight to be given them, through the trial court’s lens.” In re M.B., 2013 ME
46, ¶ 37, 65 A.3d 1260 (quotation marks omitted). “The District Court’s
judgment on the issue of best interest is entitled to substantial deference
because that court is able to directly evaluate the testimony of the witnesses.”
In re Michaela C., 2002 ME 159, ¶ 27, 809 A.2d 1245.
[¶12] As part of a permanency plan, a court may create a permanency
guardianship to establish safe, long-term care for a child who is the subject of a
child protection proceeding. See 22 M.R.S. § 4038-C (2016). When it is
6
appropriate, a permanency guardianship allows parents whose children cannot
be returned to them to have a meaningful opportunity to maintain a legal
relationship with their children and to have the court determine their rights to
have contact with their children. See id. The question before the trial court was
whether such an arrangement would serve Cameron’s best interest in the long
term.
[¶13] By the time of the final hearing in this matter, three-year-old
Cameron had been in foster care for more than two-thirds of his life. His
parents had demonstrated their inability and unwillingness to be meaningfully
involved in his life. To achieve permanency, he needed the certainty and
stability of adoption. The potential challenges to Cameron’s stable home and
consistent parenting along with the possible costs and stress on his caretakers
were appropriate for the court to consider. The foster parents similarly needed
clarity in their role. Any tensions between them and the parents could have
created further instability, and, again, were appropriate for the court to
consider in this context. Although there is no legal requirement for the foster
parents to allow visitation in the future, solidifying their roles as legal parents
may enable them to support the parents’ continuing to have sober visitation
7
with the child.1 The court did not err or abuse its discretion in determining that
termination was in the best interest of the child.
The entry is:
Judgment affirmed.
Jeffrey C. Toothaker, Esq., Ellsworth, for appellant mother
Charles Helfrich, Esq., Ellsworth, 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
Ellsworth District Court docket number PC-2014-03
FOR CLERK REFERENCE ONLY
1 The foster mother testified that even if the parents’ rights were terminated, and she adopted the
child, she intended to allow them to see him.