In re Emma S. , 2018 ME 8 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 8Docket: Han-17-347
Submitted
On Briefs: January 11, 2018
Decided: January 23, 2018
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE EMMA S.
PER CURIAM
[¶1] The mother and the father of Emma S. 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)(a), (b)(i)-(ii)
(2017). Both parents challenge the sufficiency of the evidence supporting the
court’s finding of parental unfitness and the court’s discretionary
determination that termination is in the best interest of the child. See id.
§ 4055(1)(B)(2). The father additionally challenges whether the Department
met its obligation pursuant to 22 M.R.S. § 4041 (2017) to provide
reunification services. We affirm the judgment.
[¶2] Based on competent evidence in the record, the court found by
clear and convincing evidence that both parents (1) are 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 and (2) are unable
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to take responsibility for the child within a time that is reasonably calculated
to meet the child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). The court
also determined that termination of the mother’s and father’s parental rights
is in the child’s best interest. See id. § 4055(1)(B)(2)(a). We review the trial
court’s factual findings that a parent is unfit and that termination of parental
rights is in the child’s best interest for clear error and the ultimate decision to
terminate parental rights for an abuse of discretion. Adoption of Isabelle T.,
2017 ME 220, ¶ 30, ---A.3d ---.
[¶3] The court based its determinations on the following findings of
fact:
[The child] is 4 years of age. She has witnessed domestic
violence and substance abuse by her parents. She has a profound
fear of abandonment. She suffers from PTSD [post-traumatic
stress disorder], is still processing earlier trauma and struggles
with significant anxiety regarding separation from her caregivers.
[The child’s] issues stem from the chaos of her life while in her
parents’ care.
[The father] has taken significant steps toward reunification
with his daughter. He has engaged in counseling for opiate
addiction for over 18 months. He has not counseled for alcohol
abuse. His [substance abuse] counselor testified that [the father]
is not alcohol dependent. [The father] is an intense individual.
Alcohol brings out his aggressive tendencies. He has completed
24 of the 48 required [Batterer’s Intervention Program] groups
and received a positive reference from [his BIP counselor]. . . . He
has not accepted responsibility for his prior assaultive behavior.
The lack of specific alcohol counseling combined with this denial
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indicate to the court that he continues to pose a risk of violence to
his domestic partners and has not alleviated the jeopardy that
violence poses to [the child].
. . . .
[The child] must take antibiotics daily and be constantly
monitored. [The father] is employed as a fisherman. He works
hard to earn sufficient funds to maintain a home. Unfortunately,
his work hours are unpredictable and not within his control. His
employment caused him to miss visits with [the child] and
counseling sessions with [his BIP counselor]. He cannot maintain
a consistent routine at home. His plans for [the child’s] care while
he is working are not particularly structured. [The child] needs
routine and stability in her home. She will suffer significant
trauma if placed in an unstable living environment.
This is a very old case, and [the child] needs permanency.
The child has been in the custody of DHHS since August of 2015.
Despite the length of time and the numerous opportunities, [the
father] is not yet in a position to care for [the child].
. . . .
[The mother] has struggled with opiate addiction for the
last seven years. She engaged in substance abuse counseling on
multiple occasions. The initial Jeopardy finding herein was based
in large part on her substance abuse. She has taken steps in
support of her efforts to rehabilitate and reunify. She began
counseling at a treatment facility in the summer of 2016. In early
October of 2016 she left for Florida without notifying the
Department. She participated in an intensive substance abuse
program in Florida, returning to Maine on January 4, 2017. She
did not communicate with the Department, or [the child]
throughout this period. Upon returning to Maine [the mother]
relapsed. She entered another treatment facility on
March 14, 2017, acknowledging that she had been using heroin
and cocaine. She is currently prescribed Methadone and is
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participating in counseling. [The mother] has been unable to
provide care for [the child] for a period of 23 months due to her
substance abuse. The court finds that she has a chronic substance
abuse problem. [The mother’s] fragile sobriety places her child at
risk if returned to her care.
. . . .
[The child’s] fear of abandonment was aggravated by [the
mother’s] decision to leave Maine for Florida without notice. [The
child] will not be able to return to [the mother’s] custody within a
reasonable period of time, considering [the child’s] age and her
need for a permanent home.
. . . .
Despite the passage of approximately 24 months, the
parents have not made sufficient changes. The court respects the
Guardian ad litem’s opinion and places significant weight on it.
The Guardian believes that termination of the parents’ parental
rights is in the child’s best interest, and the court agrees with his
assessment.
[¶4] Given these findings regarding the mother and the father and the
court’s other specific findings of fact, all of which are supported by competent
evidence in the record,1 the court did not err in its finding of the mother’s and
1 Contrary to the father’s contention, there is ample evidence in the record that the father has a
significant history of substance abuse, including alcohol abuse, and the court did not clearly err in
finding that he is not engaged in specific alcohol counseling. Additionally, the court’s finding
regarding his denial of domestic violence is supported by competent evidence in the record.
Furthermore, where the court finds multiple bases for unfitness, as it did here, the judgment will be
affirmed if any one of the alternative bases is supported by clear and convincing evidence. See In re
M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260.
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the father’s parental unfitness. See In re Logan M., 2017 ME 23, ¶ 3,
155 A.3d 430.
[¶5] The father further contends that the court erred in finding him
unfit to parent his child because the Department did not meet its burden
under 22 M.R.S. § 4041 to provide reunification services. Specifically, he
argues that the Department did not provide referrals in a timely manner and
did not provide him with adequate visitation opportunities, and the judgment
should therefore be vacated. However, the “Department’s compliance with its
rehabilitation and reunification duties as outlined in section 4041 does not
constitute a discrete element requiring proof in termination proceedings, nor
does the failure of the Department to comply with section
4041 preclude findings of parental unfitness.” In re Doris G., 2006 ME 142,
¶ 17, 912 A.2d 572; see 22 M.R.S. § 4041. The court may consider the lack of
reunification efforts, but is not required to address the extent of the
Department’s reunification efforts in its finding that the father is unfit if
competent evidence in the record supports the court’s finding, by clear and
convincing evidence, of at least one ground of parental unfitness. See In re
Hannah S., 2016 ME 32, ¶¶ 12-13, 133 A.3d 590. Here, because there was
competent evidence to support the court’s finding of parental unfitness, the
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court was not required to address the extent of the Department’s reunification
efforts. See id.[¶6] The court did not err or abuse its discretion in its determination
that termination of the mother’s and the father’s parental rights, with a
permanency plan for adoption, is in the child’s best interest. See
In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297.
The entry is:
Judgment affirmed.
Rick Doyle, Esq., Next Step DV Project, Ellsworth, for appellant mother
Dawn M. Corbett, Esq., Law Office of Dawn M. Corbett, PA, Ellsworth, for
appellant father
Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and
Human Services
Ellsworth District Court docket number PC-2015-42
FOR CLERK REFERENCE ONLY