In re Emma C. , 2018 ME 7 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 7Docket: And-17-361
Submitted
On Briefs: January 11, 2018
Decided: January 23, 2018
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE EMMA C.
PER CURIAM
[¶1] The father of Emma C. appeals from a judgment of the District
Court (Lewiston, Lawrence, J.) terminating his parental rights to
eleven-year-old Emma pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and
(B)(2)(a), (b)(ii)-(iv) (2017).1 He challenges the sufficiency of the evidence as
to unfitness as well as the court’s finding and discretionary determination that
termination was in the child’s best interest. Additionally, the father contends
that the court should have ordered a permanency guardianship instead of
terminating his parental rights. We affirm the judgment because the evidence
supports both the court’s factual findings and its discretionary
determinations.
1 The mother’s parental rights were terminated in a separate proceeding in March of 2017, and
she is not a party to this appeal.
2
I. BACKGROUND
[¶2] Competent record evidence supports the court’s findings, by clear
and convincing evidence, that the father is unwilling or unable to take
responsibility for the child within a time that is reasonably calculated to meet
her needs; that the father failed to make a good faith effort to rehabilitate and
reunify with the child; that the father abandoned the child; and that
termination of the father’s parental rights, as opposed to a permanency
guardianship, is in the child’s best interest. These findings and discretionary
determinations are based on the following supported findings of fact:
The Department filed a Petition For Child Protection Order
regarding [the child] on April 29, 2016. . . . Around that time, [the
permanency caseworker for the Department] tried to contact [the
father] at the phone number he provided to the Department, but it
did not work. [She] then tried to serve [him] with the Petition at
the residence stated on his license, but there was nobody there.
[She] left her card at the residence, but never heard from [him].
Nevertheless, [he] showed up for the summary preliminary
hearing on the preliminary protection order on May 9, 2016, and
waived his right to the hearing. While at the court, [he] asked for
a meeting to discuss visitation with [the child] and that meeting
was set for the next morning. On May 10, 2016, [the permanency
caseworker], the [guardian ad litem (GAL)] and [the father’s
attorney] were present for the meeting on visitation, however,
[the father] failed to appear. Shortly after missing the May 10th
meeting, having agreed to leave [the child] in the Department’s
custody, [the father] moved to Florida without telling the
Department that he was doing so.
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. . . According to [the permanency caseworker], in a May 9th
interview, [the child] told her that [the father] rarely ever had
contact with her; maybe five times in the preceding five years
according to memory. During that interview, [the child] appeared
to be very anxious about seeing [the father] due [to] having little
contact with him in the preceding five years. After pausing to
consider the prospect of seeing [her father], [the child] told [the
permanency caseworker] that she did not want to have contact
with him. . . .
. . . A Jeopardy Order as to [the father] was granted on
July 11, 2016, after [the father] failed to appear for the hearing.
Jeopardy as to [the father] was due to the risk to [the child] for
serious physical harm, serious emotional harm and/or serious
neglect based on his substance abuse and inability to protect her
from the jeopardy posed by [her mother] ([the child] was exposed
to drug use and paraphernalia by her mother and [the father] was
not aware of or did not take any steps to protect [the child] from
[the mother’s] behaviors) and his lack of a relationship with [the
child]. [The father’s] criminal history, including domestic violence
assault, also raised issues of concern in regard to [the child]. . . .
[The father] testified that he currently is residing in
. . . Florida, in a hotel. . . . He has not had any contact with [the
child] since April of 2016. . . . [The father] acknowledged that
because he was a transient when this matter began, he was unable
to fight for custody of [the child]. He also acknowledged that he
had not fought for custody of [her] even though she was in the
Department’s custody because [she] had been placed with [the
foster parents] and he understood that [the foster mother] was a
good mother. When [the father] failed to appear at the judicial
review conducted on December 15, 2016, the court issued a cease
reunification order for him due to his lack of involvement with the
Department, the court proceedings in this case, the required
services and contact with [the child].
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. . . .
. . . While [the father] is willing to let [the child] remain with
[the foster family], he does not agree to the termination of his
parental rights to [the child]. Consequently, [the father] wants the
court to create a permanency guardianship for [the child] with the
[foster parents]. The court notes, however, that it has been over a
year since [the father] has had any contact with [the child]. . . .
. . . [The father’s] plan to remain in Florida and attempt
reunification with [the child] twice a month does not impress the
court as being either well conceived or really committed to
meeting [the child’s] needs in a timely fashion.
[The second permanency caseworker] testified that the
[foster parents] have been very involved with [the child]. [The
foster mother] is [related to the child] and [the child] often stayed
with the [foster family] prior to being placed with them by the
Department. According to [the caseworker], [the child] is doing
great and thriving in [their] home; they are very involved in [the
child’s] activities and her schooling. [The foster mother] testified
that initially [the child] was shy, reserved and parentified when
the Department placed her with them. [The foster mother]
observed that [the child] is more outgoing and relaxed – now she
is “just being a kid.” [The foster mother] added that as the
placement has gone on, [the child] fits into their family, she feels
like one of the [foster parents’] kids and she is treated as that way.
[The foster mother] specifically testified that [the child] does not
ask about [the father] and does not want contact with him. . . .
. . . The [GAL] does not support the creation of a
permanency guardianship in this case as it poses too much
uncertainty about [the father] returning some day to assert his
role as [the child’s] father. The [GAL] recommends that [the
father’s] parental rights be terminated . . . . She believes that
termination of [the father’s] parental rights is in [the child’s] best
interest. The [GAL] testified that [the child] is at an age where she
needs the permanency and stability of living in a family that she
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knows, a family in which she fits in, a family that loves her and a
family that is committed to her.
(Footnotes omitted.)
II. DISCUSSION
[¶3] Here, the court’s unfitness findings that the father is either
unwilling or unable to take responsibility for the child within a time that is
reasonably calculated to meet the child’s needs, that the child has been
abandoned by the father, and that the father has failed to make a good faith
effort to rehabilitate and reunify with the child are all supported by sufficient
evidence. See 22 M.R.S. § 4055(1)(B)(2)(b)(ii)-(iv). Particularly, the father’s
unannounced move to Florida, his intention to remain there for the
foreseeable future, and his failure to even visit with the child show that he is
unwilling or unable to take responsibility for the child in the time that she
needs and that he has abandoned her. See 22 M.R.S. §§ 4002(1-A)(A)-(C),
(E)-(F), 4055(1)(B)(2)(b)(ii)-(iii) (2017).
[¶4] The evidence is also sufficient to support a finding that
termination is in the child’s best interest, and the court did not abuse its
discretion in terminating the father’s parental rights instead of ordering a
permanency guardianship because, as the GAL testified, the child is at an age
where stability and permanency within a family unit that has demonstrated
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its commitment to her is of the utmost importance. See In re Haylie W.,
2017 ME 157, ¶ 4, 167 A.3d 576. Because a permanency guardianship could
undermine that stability for the child, see id.; see also 22 M.R.S. § 4038-C(3),
(6) (2017), who will soon be entering her teenage years, the court did not
abuse its discretion in terminating the father’s parental rights. See In re
Cameron B., 2017 ME 18, ¶¶ 12-13, 154 A.3d 1199.
The entry is:
Judgment affirmed.
Richard Charest, Esq., Lewiston, 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
Lewiston District Court docket number PC-2016-29
FOR CLERK REFERENCE ONLY