In re Child of Jonathan D. , 2019 ME 14 ( 2019 )


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  • MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions
    Decision:	    
    2019 ME 14
    Docket:	      And-18-198
    Submitted
    On	Briefs:	 January	17,	2019
    Decided:	     January	24,	2019
    Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.
    IN	RE	CHILD	OF	JONATHAN	D.
    PER	CURIAM
    [¶1]		Jonathan	D.	appeals	from	a	judgment	of	the	District	Court	(Lewiston,
    Montgomery,	 J.)	 terminating	 his	 parental	 rights	 to	 his	 child	 pursuant	 to
    22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i)-(ii)	(2017).1		We	affirm	the	judgment.
    [¶2]		On	July	7,	2016,	the	Department	of	Health	and	Human	Services	filed
    a	 child	 protection	 petition	 when	 the	 child	 was	 approximately	 fifteen	 months
    old.	 	 See	 22	 M.R.S.	 §	 4032	 (2017).	 	 The	 petition	 alleged	 that	 the	 father	 is	 a
    registered	sex	offender	with	a	history	of	serious	untreated	mental	health	issues
    and	that	the	mother	was	unable	to	keep	unsafe	persons—including	the	father—
    away	 from	 the	 child.	 	 On	 August	 3,	 2016,	 the	 Department	 requested	 a
    preliminary	 protection	 order.	 	 The	 court	 (Oram,	J.)	 held	 a	 hearing	 on	 the
    1		The	Department	sought	termination	of	the	father’s	rights	only.		The	child	has	been	in	the	care	of
    the	mother	since	September	1,	2017,	and	custody	was	returned	to	the	mother	on	November	16,	2017.
    2
    Department’s	request	on	August	16,	2016,	and	entered	an	order	transferring
    custody	of	the	child	to	the	Department	the	following	day.
    [¶3]		On	November	1,	2016,	the	court	(Dow,	J.)	held	a	jeopardy	hearing
    and,	after	issuing	findings	of	facts,	entered	an	order	relieving	the	Department
    of	 its	 obligation	 to	 pursue	 reunification	 efforts	 with	 the	 father	 based	 on	 the
    aggravating	factor	of	his	2008	conviction	of	unlawful	sexual	contact	(Class	B),
    17-A	 M.R.S.	 §	 255-A(1)(E-1)	 (2017),	 involving	 a	 two-year-old	 child.	 	 See	 22
    M.R.S.	§§	4002(1-B)(A)(1),	4035(1),	(2)	(2017).		Despite	the	cease	reunification
    order,	the	court	ordered	the	Department	to	provide	the	father	with	sex	offender
    treatment	and	individual	counseling.
    [¶4]		On	January	25,	2018,	the	Department	filed	a	petition	for	termination
    of	the	father’s	parental	rights.		The	court	(Montgomery,	J.)	held	a	hearing	on	the
    petition	on	April	10,	2018,	and,	on	May	14,	2018,	issued	an	order	granting	the
    Department’s	petition	to	terminate	the	father’s	parental	rights.		Based	on	the
    testimony	 presented	 at	 the	 hearing	 and	 other	 competent	 evidence	 in	 the
    record,	the	court	found	by	clear	 and	convincing	evidence	that	termination	of
    the	 father’s	 parental	 rights	 is	 in	 the	 best	 interest	 of	 the	 child	 because	 he	 is
    unwilling	or	unable	to	protect	the	child	from	jeopardy	or	take	responsibility	for
    3
    the	child	within	a	time	which	is	reasonably	calculated	to	meet	the	child’s	need.
    22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i)-(ii).
    [¶5]		The	court	based	its	decision	on	the	following	factual	findings,	all	of
    which	are	supported	by	competent	evidence	in	the	record.
    As	a	very	young	child,	[the	father]	was	subjected	to	egregious
    .	.	.	abuse	as	well	as	neglect.		He	has	been	diagnosed	with	a	variety
    of	 mental	 illnesses,	 including	 schitzo-affective	 disorder,	 bipolar
    disorder,	 dissociative	 identity	 disorder,	 PTSD,	 and	 depression.
    This	 extended	 and	 severe	 childhood	 trauma	 has	 likely	 caused
    and/or	exacerbated	[the	father’s]	mental	illness	and	demonstrable
    anger.
    In	2008,	[the	father]	was	convicted	of	Class	B	Unlawful	Sexual
    Contact	 and	 sentenced	 to	 five	 years	 with	 all	 but	 two	 years
    suspended	and	six	years	of	probation.		His	crime	involved	sexual
    contact	with	a	two-year-old	girl	while	babysitting	her.	.	.	.
    .	.	.	.
    As	for	sex	offender	treatment,	[the	father’s]	engagement	has
    been	sporadic	over	the	course	of	the	last	six	or	so	years.		Despite
    repeated	attempts	to	engage	in	the	therapy,	he	has	expressed	a	lack
    of	 confidence	 in	 the	 efficacy	 of	 such	 treatment	 and	 at	 least	 twice
    refused	to	sign	treatment	contracts,	which	is	a	required	step	in	the
    treatment.
    .	.	.	.
    .	 .	 .[The	 father’s]	 failure	 to	 wholeheartedly	 embrace	 and
    engage	 in	 treatment	 has	 increased	 the	 significant	 safety	 risks	 he
    poses	to	[the	child]	in	a	parenting	role.
    .	.	.	.
    4
    .	.	.	[T]he	risk	to	[the	child]	from	[the	father]	for	sexual	abuse
    remains	 high	 as	 he	 refuses	 to	 take	 full	 responsibility	 for	 the
    conduct	 leading	 to	 his	 sex	 offense	 conviction.	 	 His	 claim	 that	 the
    conviction	resulted	from	him	having	a	seizure	while	caring	for	the
    child	victim	is	not	only	not	credible,	it	shows	a	complete	refusal	to
    take	 one	 of	 the	 most	 important	 steps	 toward	 recovery,	 which	 is
    acknowledgment	of	his	own	action.		As	long	as	[the	father]	attempts
    to	 convince	 himself	 and	 others	 that	 any	 sexual	 touching	 of	 that
    child	 victim	 was	 outside	 of	 his	 own	 control,	 he	 will	 be	 unable	 to
    make	the	changes	necessary	to	reduce	the	risk	of	harm	he	poses	to
    young	children.
    [The	father]	faces	great	challenges	as	he	attempts	to	address
    his	very	serious	mental	health	conditions	and	to	take	responsibility
    for	 his	 past	 actions.	 	 He	 remains	 an	 untreated	 sex	 offender	 who
    poses	a	threat	of	sexual	abuse	to	[the	child].		Since	[the	mother]	and
    DHHS	refuse	to	grant	permission,	he	is	statutorily	prohibited	from
    having	contact	with	[the	child].	.	.	.	In	addition,	[the	father]	would
    be	unable	to	protect	[the	child]	from	Jeopardy	as	[the	child]	would
    be	subject	to	the	threat	of	sexual	abuse	by	him.
    .	.	.	.
    [The	 child]	 has	 not	 had	 any	 contact	 with	 [the]	 father	 since
    [the	child]	was	about	15	months	old.		[The	child]	is	now	three	years
    old	 .	 .	 .	 .	 The	 record	 evidence	 supports	 the	 conclusion	 that	 any
    future	contact	with	[the	father]	would	be	akin	to	granting	contact
    with	a	stranger.
    Moreover,	 [the	 father]	 has	 historically	 demonstrated	 a
    familiarity	with	the	court	system	and	its	processes.		In	the	first	15
    months	of	[the	child’s]	life,	[the	father]	estimated	that	he	and	[the
    mother]	 had	 appeared	 in	 the	 Lewiston	 District	 Court	 20	 to	 30
    times.	 .	 .	 .	 The	 chance	 of	 a	 successful	 reunification	 between	 [the
    mother	and	the	child]	is	possible	only	if	[the	father]	is	prohibited
    from	 disrupting	 [the	 child’s]	 life	 with	 [the]	 mother.	 	 Given	 [the
    father’s]	demonstrated	inclination	to	excessively	engage	the	court
    system,	it	is	likely	that	without	a	termination	of	his	parental	rights,
    5
    he	will	continue	to	use	the	system	in	a	way	that	is	disruptive	to	[the
    child’s]	progress.
    [¶6]	 	 The	 father	 timely	 appealed.	 	 See	 22	 M.R.S.	 §	 4006	 (2017);	 M.R.
    App.	P.	2B(c).		On	September	21,	2018,	pursuant	to	the	process	outlined	in	In	re
    M.C.,	 
    2014 ME 128
    ,	 ¶	 7,	 
    104 A.3d 139
    ,	 counsel	 for	 the	 father	 filed	 a	 brief
    containing	 the	 factual	 and	 procedural	 history	 of	 the	 case,	 stating	 that	 she
    believed	that	there	are	no	meritorious	issues	for	appeal.		Counsel	also	filed	a
    motion	 for	 an	 enlargement	 of	 time	 to	 allow	 the	 father	 to	 personally	 file	 a
    supplemental	brief.		Although	we	granted	the	father	an	enlargement	of	time,	he
    did	not	file	a	supplemental	brief.
    [¶7]		Based	on	the	court’s	findings	of	fact,	all	of	which	have	evidentiary
    support,	the	court	did	not	err	in	determining	that	the	father	remains	unable	to
    protect	the	child	from	jeopardy	or	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);	see	also	In	re	Child	of	Gustavus	E.,	
    2018 ME 43
    ,	¶	8,
    
    182 A.3d 153
    ;	 In	 re	 Thomas	 D.,	 
    2004 ME 104
    ,	 ¶	21,	 
    854 A.2d 195
    ;	 In	 re
    Alexander	D.,	
    1998 ME 207
    ,	¶	18,	
    716 A.2d 222
    .		Nor	did	the	court	err	or	abuse
    its	discretion	in	determining	that	termination	of	the	father’s	parental	rights	was
    in	the	child’s	best	interest.		See	22	M.R.S.	§	4055(1)(B)(2)(a);	see	also	In	re	A.H.,
    6
    
    2013 ME 85
    ,	¶	16,	
    77 A.3d 1012
    ;	In	re	Marcus	S.,	
    2007 ME 24
    ,	¶	11,	
    916 A.2d 225
    .
    The	entry	is:
    Judgment	affirmed.
    Heidi	M.	Pushard,	Esq.,	Lewiston,	for	appellant	Father
    The	Department	of	Health	and	Human	Services	did	not	file	a	brief
    Lewiston	District	Court	docket	number	PC-2016-50
    FOR	CLERK	REFERENCE	ONLY