In re Mathew H. , 2017 Me. LEXIS 159 ( 2017 )


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  • MAINE	SUPREME	JUDICIAL	COURT	 	             	     	    					  				Reporter	of	Decisions
    Decision:	    
    2017 ME 151
    Docket:	      Yor-17-44
    Submitted
    On	Briefs:	 June	29,	2017
    Decided:	     July	11,	2017
    Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.
    IN	RE	MATHEW	H.	et	al.
    MEAD,	J.
    [¶1]		The	father	of	Mathew	H.	and	Kamron	H.	appeals	from	a	judgment
    entered	 by	 the	 District	 Court	 (Biddeford,	 Janelle,	 J.)	 terminating	 his	 parental
    rights	 to	 the	 children	 pursuant	 to	 22	 M.R.S.	 §	 4055(1)(B)(2)	 (2016).1	 	 He
    challenges	the	court’s	finding	by	clear	and	convincing	evidence	that	he	is	unfit
    and	its	finding	that	termination	of	his	parental	rights	is	in	the	children’s	best
    interest.	 	 Additionally,	 he	 contends	 that	 the	 court	 erred	 in	 not	 treating	 his
    former	 wife	 as	 the	 children’s	 de	 facto	 parent	 and	 in	 determining	 that	 the
    permanency	 plan	 for	 the	 children	 would	 be	 adoption,	 not	 a	 permanency
    guardianship.		Finally,	he	asserts	that	the	guardian	ad	litem	failed	to	perform
    her	statutorily-required	duties	by	not	meeting	with	him	individually.		Because
    the	 evidence	 supports	 the	 court’s	 factual	 findings	 and	 discretionary
    1
    The	boys’	mother,	who	has	had	five	children,	all	born	drug	affected,	was	previously	found	to
    have	abandoned	the	boys	and	is	not	a	party	to	this	appeal.
    2
    determinations,	and	because	we	conclude	that	the	father’s	other	contentions
    are	not	persuasive,	we	affirm	the	judgment.
    A.	   Sufficiency	of	the	Evidence
    [¶2]	 	 Applying	 the	 statute,	 the	 court	 found	 by	 clear	 and	 convincing
    evidence	that	the	father	(1)	is	unwilling	or	unable	to	protect	the	children	from
    jeopardy	 within	 a	 time	 reasonably	 calculated	 to	 meet	 their	 needs,	 (2)	 is
    unwilling	or	unable	to	take	responsibility	for	them	within	that	timeframe,	and
    (3)	 failed	 to	 make	 a	 good	 faith	 effort	 to	 rehabilitate	 and	 reunify	 with	 the
    children.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(b).	 	 The	 court	 then	 found	 that
    termination	 of	 the	 father’s	 parental	 rights	 is	 in	 the	 children’s	 best	 interest.
    See	22	M.R.S.	§	4055(1)(B)(2)(a).		We	review	the	factual	findings	supporting
    the	unfitness	determination	for	clear	error,	see	In	re	Logan	M.,	
    2017 ME 23
    ,	¶	3,
    
    155 A.3d 430
    ,	and	apply	the	same	standard	to	the	factual	findings	supporting
    the	 best	 interest	 determination,	 although	 we	 review	 the	 court’s	 ultimate
    conclusion	that	termination	is	in	the	children’s	best	interest	“for	an	abuse	of
    discretion,	viewing	the	facts,	and	the	weight	to	be	given	them,	through	the	trial
    court’s	 lens,”	 and	 giving	 the	 court’s	 judgment	 “substantial	 deference,”
    In	re	Caleb	M.,	
    2017 ME 66
    ,	¶	33,	
    159 A.3d 345
    (quotation	marks	omitted).
    3
    [¶3]	 	 Here,	 the	 court’s	 factual	 findings	 are	 supported	 by	 competent
    evidence	in	the	record	and	are	therefore	not	clearly	erroneous.		See	In	re	M.B.,
    
    2013 ME 46
    ,	 ¶	 40,	 
    65 A.3d 1260
    .	 	 In	 determining	 that	 the	 father	 is	 an	 unfit
    parent,	 the	 court	 found,	 by	 clear	 and	 convincing	 evidence,	 that	 the	 father’s
    incarceration	 until	 at	 least	 July	 2017	 means	 that	 reunification	 could	 not
    conceivably	begin	until	that	time.		The	court	concluded,	based	on	the	testimony
    of	mental	health	experts	at	the	hearing,	that	“[the	children]	are	very	damaged
    and	it	is	going	to	take	a	long	time	to	repair	the	damage.		If	everything	goes	well,
    they	 may	 adapt	 in	 adolescence,	 or	 it	 may	 take	 until	 adulthood	 until	 they
    overcome	 the	 damage.”	 	 If	 attempted,	 reunification	 “would	 take	 a	 significant
    amount	of	additional	work	to	get	to	the	point	where	[the	father]	might	possibly
    be	 able	 to	 have	 a	 relationship	 with	 the	 children	 due	 to	 their	 diagnoses.	 .	 .	 .
    The	children	have	been	suffering	daily	for	a	long	time	and	deserve	permanency
    today	.	.	.	.”
    [¶4]	 	 The	 court	 also	 cited	 the	 father’s	 significant	 criminal	 history;	 his
    history	 of	 substance	 abuse,	 including	 the	 use	 of	 an	 illegal	 drug	 in
    December	2015	while	he	was	incarcerated,	which	delayed	his	release	date	and
    thus	 any	 opportunity	 to	 care	 for	 the	 children;	 and	 his	 inconsistent
    communication	with	the	children.
    4
    [¶5]	 	 The	 court	 further	 found,	 again	 by	 clear	 and	 convincing	 evidence,
    that	 the	 children’s	 best	 interest	 required	 termination	 because	 “[t]he	 Court
    heard	over	and	over	again	through	the	testimony	of	service	providers	and	the
    caregiver	that	[the	children]	need:	permanency,	predictability	and	knowledge
    of	where	they	are	going	to	live	permanently.”		The	medical	experts	“emphasized
    the	 need	 for	 [the	 children]	 to	 continue	 to	 be	 in	 a	 permanent,	 stable	 and
    consistent	 environment	 in	 order	 to	 continue	 the	 healing	 process,”	 and	 a
    psychological	 evaluation	 noted	 that	 in	 the	 case	 of	 one	 of	 the	 children’s	 most
    serious	 mental	 health	 diagnoses,	 “it	 is	 typically	 much	 harder	 to	 repair
    attachment	dysfunction	when	attempted	by	a	parent	figure	who	is	implicated
    in	 creating	 the	 initial	 damage.”	 	 Although	 the	 court	 recognized	 the	 father’s
    “commendable”	participation	in	programs	offered	at	the	Maine	State	Prison,	it
    concluded	 that	 “it	 is	 simply	 not	 enough	 for	 these	 children	 who	 need
    permanency	now.	.	.	.	It	is	too	long	to	ask	[them]	to	wait.”
    [¶6]		For	the	same	reasons,	the	court	rejected	the	father’s	proposal	of	a
    permanency	 guardianship—which	 the	 foster	 mother,	 the	 guardian	 ad	 litem,
    and	the	Department	all	opposed—finding	that
    [d]espite	 the	 name,	 a	 Permanency	 Guardianship	 in	 this	 matter
    would	not	offer	real,	lasting	permanency	for	[the	children].	.	.	.	It
    may	be	preferable	to	the	parent,	but	a	Permanency	Guardianship	is
    not	in	the	best	interests	of	[these	children]	due	to	the	history	of	the
    5
    case	and	their	significant	diagnoses.		It	has	been	reiterated	through
    the	 testimony	 of	 the	 professionals	 and	 the	 caregiver	 that	 it	 is
    critical	that	[the	children]	need	to	know	what	the	future	is	going	to
    look	like	permanently.		It	is	also	critical	for	[their]	continued	well-
    being	that	their	permanent	home	be	reliable	and	dependable.
    The	 court’s	 determination	 that	 a	 permanency	 guardianship	 is	 not	 an
    appropriate	 disposition	 in	 this	 case	 falls	 well	 within	 its	 discretion.	 	 See
    In	re	David	W.,	
    2010 ME 119
    ,	¶¶	6-10,	
    8 A.3d 673
    ;	In	re	C.P.,	
    2016 ME 18
    ,	¶	34,
    
    132 A.3d 174
    .
    [¶7]	 	 In	 sum,	 the	 court’s	 supported	 findings	 explaining	 why	 the	 father
    cannot	protect	the	children	from	jeopardy	within	the	time	required	by	statute
    and	 why	 the	 children’s	 best	 interest	 requires	 termination	 are	 sufficient	 to
    support	the	judgment.
    B.	   Other	Issues
    [¶8]	 	 The	 father	 finally	 contends	 that	 his	 former	 wife,	 who	 had	 been
    inadequately	caring	for	the	children	when	they	were	taken	into	custody,	should
    have	been	found	to	be	the	children’s	de	facto	parent	and	afforded	counsel	in
    this	 matter,	 see	 19-A	 M.R.S.	 §	 1891	 (2016),	 and	 that	 the	 court’s	 judgment	 is
    invalid	because	the	guardian	ad	litem	allegedly	did	not	perform	her	statutorily-
    required	duty	to	interview	him	“when	possible	and	appropriate,”	see	22	M.R.S.
    §	 4005(1)(B)(5)	 (2016).	 	 Neither	 claim	 was	 raised	 in	 the	 trial	 court	 and	 the
    6
    father’s	former	wife	made	no	request	to	intervene	in	the	case;	therefore,	on	this
    record,	we	conclude	that	neither	contention	requires	further	discussion.		See
    Karamanoglu	 v.	 Gourlaouen,	 
    2016 ME 86
    ,	 ¶	 28,	 
    140 A.3d 1249
     (stating	 that
    failure	to	raise	an	argument	in	the	trial	court	limits	appellate	review	to	obvious
    error);	In	re	Kaleb	C.,	
    2002 ME 65
    ,	¶	4	n.2,	
    795 A.2d 71
    (affirming	the	judgment
    despite	the	guardian	ad	litem’s	deficient	performance	because	“the	deficiencies
    .	.	.	did	not	affect	the	result	in	this	case”).
    The	entry	is:
    Judgment	affirmed.
    Brittany	Sawyer,	Esq.,	Holmes	Legal	Group,	LLC,	Wells,	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
    Biddeford	District	Court	docket	number	PC-2015-25
    FOR	CLERK	REFERENCE	ONLY