In re Children of Anthony N. , 2019 ME 64 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 64Docket: Som-18-364
Submitted
On Briefs: April 24, 2019
Decided: May 2, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILDREN OF ANTHONY N.
PER CURIAM
[¶1] In this consolidated appeal of two child protection actions,
Anthony N. appeals from a judgment of the District Court (Skowhegan, Benson,
J.) terminating his parental rights to his two children who are the subject of the
actions.1 We affirm the judgment.
[¶2] The first of these child protection actions began in November of
2016—before the birth of the younger child—when the Department of Health
and Human Services filed a petition for a child protection order with regard to
the older child, who was just months old at the time. The petition alleged that
the child was at immediate risk of serious harm in the father’s care due to the
1 The father also has two older children who are not the subject of these child protection actions.
After a contested hearing, the court also issued a judgment terminating the mother’s parental
rights to the children. The mother filed a notice of appeal but ultimately withdrew it, leaving only the
father's appeal, which we address here.
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father’s violent, unsafe, and aggressive behavior. Pursuant to a safety plan that
was put in place by the Department, the child remained in the custody of the
parents on conditions that the child live with the mother in the home of her
relatives and that the parents’ contact with the child be supervised. In March
of 2017, after a contested hearing, the court (Benson, J.) entered a jeopardy
order as to the father in which the court found that the child was at risk of
serious harm based on the father’s history of domestic violence and his
untreated mental health problems. The court ordered that the child’s
placement arrangement continue and required the father to, among other
things, participate in parenting classes and counseling, and provide the
Department with up-to-date residence and contact information.
[¶3] Because the child’s placement became unsuitable in June of 2017,
the Department filed a petition for preliminary protection, which the court
(Fowle, J.) granted the same day. The child was placed in foster care through
the Department. The father waived his right to a summary preliminary hearing
and later agreed to judicial review and permanency planning orders entered in
August (Benson, J.) and November (French, J.) of 2017, both of which continued
the reunification plan provided in the jeopardy order.
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[¶4] On the same day in January of 2018 that the father’s younger child
was born, the Department petitioned for child protection and preliminary
protection orders on behalf of the newborn. The court (Stokes, J.) granted the
petition for preliminary protection and ordered that the Department take
custody of the child, who was then also placed with the older child’s foster
family. The father did not appear at the summary preliminary hearing, but later
agreed to the court’s (Benson, J.) jeopardy order, entered in February, in which
the court found the younger child to be in circumstances of jeopardy in the
father’s care based on the father’s history of domestic violence, untreated
mental health problems, and chronic substance use problem.
[¶5] Meanwhile, in January, the Department had filed a petition to
terminate the father’s parental rights as to the older child. In subsequent
judicial review and permanency planning orders for each child, the court
continued the reunification plans as to the father that had been established in
the jeopardy orders for each child. In June of 2018 the Department filed a
petition to terminate the father’s parental rights to the younger child.
[¶6] At a consolidated hearing on the two termination petitions, held in
August, the father’s attorney was present but the father did not appear even
though the court found that he had received notice of the hearing. The
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Department presented testimony from the children’s case manager. Based on
that evidence and the prior orders in the cases, the court orally stated its
conclusions that the State had proved by clear and convincing evidence that the
father was parentally unfit pursuant to each of the statutory definitions of
unfitness2 and that termination of the father’s parental rights would be in the
children’s best interests.
[¶7] A week later, the court issued a written judgment, which granted
both termination petitions and contained the following supported factual
findings, which the court found by clear and convincing evidence. See In re
Children of Christopher S., 2019 ME 31, ¶ 6, ---A.3d---.
The Court . . . finds by clear and convincing evidence that the
father stopped participating in the anger-management counseling
to which the Department referred him and that he has done so
without having successfully completed it. He has told the
Department that he took this action because he did not have time
for counseling. He has also declined to provide the Department any
more concrete information about where he lives than that it is
“somewhere in Fairfield on 201,” so the Department and guardian
ad litem have been unable to assess his present living situation and
its suitability for either or both of these children. The Department
has needed to have a police officer present to supervise the father’s
scheduled visits with the children. To his credit, the father has
demonstrated very good attendance at these visits, which have
gone well overall. Visits aside, however, the Court finds that the
2 This included abandonment, see 22 M.R.S. § 4055(1)(B)(2)(b)(iii) (2018), which had not been
alleged in the termination petition but which the court treated as if it had been pleaded in conformity
with the evidence. See M.R. Civ. P. 15(b).
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father simply has not taken the rehabilitation and reunification
process seriously at all, as evidenced by his decision to stop
participating in counseling.
[¶8] The court reiterated its determination that the father was parentally
unfit—that he was unwilling or unable to protect the children from jeopardy or
to take responsibility for the children within a time reasonably calculated to
meet the children’s needs; had abandoned the children by failing to appear for
the hearing on the petition to terminate his parental rights, which
demonstrated “an intent to forego parental duties or relinquish parental
claims,” see 22 M.R.S. § 4002(1-A) (2018) (defining “abandonment”); and had
failed to make a good faith effort to rehabilitate and reunify with the children.
See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(iv). The court found that the children
were doing well, living together in a foster home that was safe and stable, and
concluded that the termination of the father’s parental rights is in the children’s
best interests.
[¶9] The father timely filed his notice of appeal. See 22 M.R.S. § 4006
(2018); M.R. App. P. 2B(c)(1). Pursuant to the procedure outlined in In re M.C.,
2014 ME 128, ¶ 7, 104 A.3d 139, counsel for the father filed a brief indicating
that there are no arguable issues of merit for appeal and requested that the
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father have additional time to file his own brief. Though we granted the father
additional time to file a supplemental brief, he did not do so.
[¶10] Competent record evidence supports the court’s determinations,
which were predicated on supported factual findings and the application of the
requisite standard of proof, that the father is parentally unfit and that
termination of his parental rights is in the best interests of the children. See
22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(iv); In re Child of Tanya C., 2018 ME 153,
¶ 13, 198 A.3d 777 (stating the standard of review for judgments terminating
parental rights). Accordingly, the court did not err by terminating the father’s
parental rights to the two children.
The entry is:
Judgment affirmed.
Amy McNally, Esq., Woodman Edmands Danylik Austin Smith &
Jacques, P.A., Biddeford, for appellant Father
The Department of Health and Human Services did not file a brief
Skowhegan District Court docket numbers PC-2016-80 & PC-2018-01
FOR CLERK REFERENCE ONLY