Adoption by Stefan S. , 2020 ME 5 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 5Docket: Ken-19-262
Argued: December 5, 2019
Decided: January 9, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
ADOPTION BY STEFAN S.
JABAR, J.
[¶1] The father of two children appeals from judgments of the Kennebec
County Probate Court (E. Mitchell, J.) terminating his parental rights in
anticipation of adoptions pursuant to 18-A M.R.S. § 9-204(b) (2018); 22 M.R.S.
§ 4055(1)(A)(2), (B)(2)(a), and (B)(2)(b)(ii) (2018).1 He argues on appeal that
the record contains insufficient evidence to support the court’s findings that he
is an unfit parent and that termination of his parental rights is in his children’s
best interests. See 18-A M.R.S. § 9-204(b) (2018); 22 M.R.S. § 4055(1)(B)(2).
He also contends that the court erred as a matter of law by reaching these two
1 The Maine Probate Code was recently repealed and recodified. P.L. 2017, ch. 402. This matter
was fully litigated prior to the effective date of the recodified Probate Code. Therefore, all Probate
Code citations in this opinion are to the repealed 2018 version, codified in Title 18-A of the Maine
Revised Statutes. The relevant text is substantively unchanged in the new codification. See P.L. 2017,
ch. 402, § A-2 (codified at 18-C M.R.S. §§ 9-103, 9-204, 9-302 (2019)); P.L. 2019, ch. 417, § A-103
(establishing effective date of September 1, 2019).
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findings in an improper sequence, and by failing to consider open adoptions
that would have left his parental rights intact. We affirm the judgments.
I. BACKGROUND
[¶2] On July 30, 2018, the mother and stepfather of the children filed
petitions to adopt the children the Kennebec County Probate Court, seeking to
establish the stepfather as the children’s legal father pursuant to 18-A M.R.S.
§ 9-103 (2018). Soon thereafter, the mother filed petitions to terminate the
father’s parental rights pursuant to 18-A M.R.S. § 9-204 (2018), thereby freeing
the children for adoption by the stepfather. The father was duly served with
notice of the petitions to terminate his parental rights, to which he registered
his objection. The court held a one-day hearing on the matter on May 22, 2019.
On June 10, 2019, the court entered judgments terminating the father’s
parental rights with regard to the children. The father did not file a motion for
further findings of fact and conclusions of law, M.R. Civ. P. 52, or any other
post-trial motion. The father timely appealed from both orders. M.R.
App. P. 2B(c)(1).
[¶3] The following facts are drawn from the court’s explicit findings and
the trial record. See Guardianship of Ard, 2017 ME 12, ¶ 15, 154 A.3d 609 (“In
the absence of a motion for findings of fact, see M.R. Civ. P. 52(a), we assume
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that the court found all of the facts needed to support its decision if those facts
are supported by competent evidence.” (quotation marks omitted)). The older
child was born in 2006 and is developmentally disabled. He attends public
school, where he receives intensive special education services as part of an
Individualized Education Program (IEP). The younger child was born in 2009
and also has been diagnosed with genetic and behavioral disorders. He attends
a public school where his education is directed by an IEP and he receives
one-on-one supervision at all times during the school day. He exhibits
aggressive behaviors and is sometimes violent.
[¶4] The mother and father divorced in 2012, and a parental rights and
responsibilities order was issued in conjunction with the divorce, awarding
primary residence to the mother and contact rights to the father. In practice,
the amount of time that each child spent with the father varied over time.
Beginning in 2015, the father’s contact with the children declined gradually.
The father has not seen the children since July 2016, and has had no
communication with the children since May 2018. This lack of contact is at least
partially the result of the mother’s conduct—the court found that she
“wrongfully made it difficult for [the father] to contact her.” Since at least 2015,
the children have resided primarily with the mother and stepfather. The
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stepfather is consistently involved in caring for the children and interacts on a
daily basis with their educational and medical providers.
[¶5] The two orders issued by the court are mirror images of one another
except for the relevant child’s name. The court made the following findings
with regard to both children:
[T]he termination of the parental rights of [the father] thereby
freeing the child for adoption by [the stepfather] would be in the
child’s best interests. This Court also specifically finds that [the
father’s] failure to make any attempt to establish a family
relationship with the child, or contribute in any way toward the
child’s financial support, constitutes clear and convincing evidence
that [the father] has been unwilling or unable to take responsibility
for the child within a time reasonably calculated to meet the child’s
needs.
[¶6] The court also found that “[the father] has not taken the necessary
steps in a reasonable time frame to care for his son with highly special needs
well known to him. He has been absent from his life for over two years and
owes over $30,000 in child support.” Although the court noted that the mother
had wrongfully made it difficult for the father to contact her or the children, the
court found that the father “made no effort to legally enforce his rights or to
contact [the child’s] medical providers or his school.” The medical and
educational professionals who worked with the children “had never met [the
father].” The court stated that both children “will need special care and
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attention for the rest of [their lives],” and that the father “has done nothing to
assist with this challenge and did not demonstrate a valid reason for his
absence.”
II. DISCUSSION
A. Legal Standard
[¶7] “When a private individual invokes court action to terminate
parental rights . . . the court engages in state action that implicates the
constitutionally protected liberty interest a parent has in parenting his or her
child free from state interference.” Adoption of Isabelle T., 2017 ME 220, ¶ 3,
175 A.3d 639. These protections are not absolute. Id. ¶¶ 5-6. “A state may
interfere with a parent’s fundamental right to parent a child when the court
makes a finding, by clear and convincing evidence, that the parent is unfit and
the child’s best interest will be served by state intervention to avoid harm to
the child.” Id. ¶ 6.
[¶8] Petitions for private adoptions in Maine Probate Courts are
governed by the Adoption Act, 18-A M.R.S. §§ 9-101 to 9-315 (2018). The
Adoption Act incorporates by reference 22 M.R.S. §§ 4050-4059 (2018), the
statutory framework governing termination in child protection proceedings.
18-A M.R.S. § 9-204(b) (2018). In Title 18-A adoption proceedings,
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“termination of parental rights occurs prior to the adoption in order to enable
the child . . . to be legally available for adoption.”2 Adoption of Isabelle T., 2017
ME 220, ¶ 9, 175 A.3d 639. In determining whether to terminate parental
rights, the court engages in a two-step analysis, first making a finding of
parental unfitness using the factors outlined in 22 M.R.S. § 4055(1)(B)(2)(b),
and only then determining whether termination is in the best interests of the
child, 22 M.R.S. § 4055(1)(B)(2)(a). See Adoption of Shayleigh S., 2018 ME 165,
¶ 17, 198 A.3d 791.
[¶9] A court’s finding of unfitness must be grounded in one or more of
the following findings:
(i) The parent is unwilling or 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;
(ii) The parent has been unwilling or unable to take responsibility
for the child within a time that is reasonably calculated to meet the
child’s needs; [or]
(iii) The child has been abandoned; . . . .
22 M.R.S. § 4055 (1)(B)(2)(b).
2 The Probate Court, according to statute, cannot grant an adoption petition absent the consent of
each of the adoptee’s living parents. 18-A M.R.S. § 9-302(a)(2) (2018). Such consent is not required,
however, from a parent whose “rights have been terminated according under Title 22, chapter 1071,
subchapter VI.” 18-A M.R.S. § 9-302(b)(2). Thus, termination of a nonconsenting parent’s parental
rights is often a prerequisite to adoption under Title 18-A. Such is the case here. See infra Part II(D).
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[¶10] We review factual findings regarding whether termination is in the
best interest of a child for clear error. Adoption of Isabelle T., 2017 ME 220,
¶ 30, 175 A.3d 639. A finding of parental unfitness is also reviewed for clear
error, and we will find such an error “only if there is no competent evidence in
the record to support it; if the fact-finder clearly misapprehended the meaning
of the evidence; or if the finding is so contrary to the credible evidence that it
does not represent the truth of the case.” Id. “When the burden of proof at trial
is clear and convincing evidence, our review is to determine whether the
fact-finder could reasonably have been persuaded that the required findings
were proved to be highly probable.” Adoption of Shayleigh S., 2018 ME 165,
¶ 14, 198 A.3d 791. The court’s “ultimate decision to terminate parental rights”
is reviewed for an abuse of discretion. Adoption of Isabelle T., 2017 ME 220,
¶ 30, 175 A.3d 639.
B. Sufficiency of the Evidence
[¶11] The father challenges the sufficiency of the evidence underpinning
the trial court’s findings that he was unfit and that termination would be in the
children’s best interests. Contrary to his contentions, the record evidence is
such that the trial court “could reasonably have been persuaded that the
required findings were proved to be highly probable.” Id. ¶ 33. The court did
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not err in reaching its findings, nor did it abuse its discretion in its decision to
terminate the father’s parental rights. Adoption of Shayleigh S., 2018 ME 165,
¶ 14, 198 A.3d 791; Adoption of Isabelle T., 2017 ME 220, ¶ 30, 175 A.3d 639.
1. Finding of Unfitness
[¶12] Record evidence demonstrates that the father’s efforts to maintain
contact with his two children have been sporadic and ineffective. Prior to 2016,
he had regular contact with the children and took advantage of his contact
rights. After March 2016, he had virtually no in-person contact with the
children and any phone contact was short and intermittent. After June 2018,
he had no direct contact with the children. His efforts to maintain contact were
limited to contacting the mother. What little indirect contact did occur was a
product of the efforts of the paternal grandparents. The father moved to Florida
in December 2016, to seek employment and work on his sobriety, staying for
nearly two years.
[¶13] The mother imposed roadblocks to the father contacting the
children, severely curtailing the father’s contact after he was arrested in
March 2016. She also moved to a new address in October 2017, and changed
her phone number in June 2018. The trial court acknowledged the
wrongfulness of this conduct and took it into consideration in its orders.
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However, the father’s record of minimal contact with the children predated the
imposition of these roadblocks. By mid-2015, his contact with the children had
declined to, at most, one overnight visit per weekend. Further, after the mother
cut off his contact, the father did not attempt to enforce his rights through the
judicial system or otherwise try to pursue contact. He did not contact the
maternal grandparents, the children’s schools or medical providers, or the
stepfather.
[¶14] The court found that both children will need special care and
attention for the rest of their lives, and the record demonstrates that their
disabilities render change, uncertainty, and transition extremely difficult for
both children. The trial court reasonably could have been persuaded that it was
highly probable the father was either unwilling or unable to take responsibility
for the children in a time reasonably calculated to meet their needs.
2. Finding Regarding the Children’s Best Interest
[¶15] The significant special needs of the children are also relevant to
the court’s second core finding—that termination of the father’s parental rights
would be in the children’s best interests. 22 M.R.S. § 4055(1)(B)(2)(a). The
best interest factors considered in a Title 18-A proceeding are the same as those
in a Title 22 proceeding:
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In considering the children’s best interests, the court is required to
consider the needs of the children, including the children’s age, the
children’s attachments to relevant persons, periods of attachments
and separation, the children’s ability to integrate into a substitute
placement or back into their parent’s home and the children’s
physical and emotional needs. Also relevant to the best interests
determination is the harm the children may suffer if the parent’s
rights are not terminated, as well as the children’s need for
permanence and stability.
Adoption of Isabelle T., 2017 ME 220, ¶ 49, 175 A.3d 639 (quotation marks
omitted) (alterations omitted).
[¶16] The trial court considered the needs of each child, their respective
ages and relationships with their parents and step-father, the time spent with
the parties, and their ability to integrate into the mother and stepfather’s home.
The record evidence shows that both children, and the younger child especially,
require consistency, routine, and predictability in order to function well in the
home and in school. Strong coordination among the caregivers, educators, and
medical providers is necessary in order for the children to coexist with their
family members and peers, and to progress toward their social and educational
goals. The evidence shows that the father has not contributed to those
coordinated efforts, but that the stepfather has. The evidence further shows
that sporadic contact with the father interferes with the children’s routine and
progress. With regard to the younger child, changes to routine correlate with
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increased aggressive behaviors. In light of the evidence presented at trial, the
trial court could reasonably have been persuaded that the required findings
were proved to be highly probable, and thus did not clearly err in determining
termination to be in the best interest of each child.
[¶17] Because the trial court did not clearly err in its determinations that
the father has been unwilling or unable to take responsibility for the two
children within a time reasonably calculated to meet their needs and that
termination was in the best interest of each child, the trial court did not abuse
its discretion in terminating the father’s parental rights.
C. The Court’s Sequence of Findings
[¶18] The father next argues that the trial court erred as a matter of law
by first determining that termination was in the best interest of each child and
then finding that he has been unwilling or unable to take responsibility for the
children within a time that is reasonably calculated to meet their needs. The
father raises this challenge for the first time on appeal. See supra Part I.
Therefore, we review for obvious error. In re Joshua B., 2001 ME 115, ¶ 9-10,
776 A.2d 1240; see Alexander, Maine Appellate Practice, § 402(a) at 310 (5th
ed. 2018); see also MP Assocs. v. Liberty, 2001 ME 22, ¶ 18, 771 A.2d 1040.
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Obvious error is that which deprives a party of a fair trial or otherwise treats a
party unjustly. See Shayleigh S., 2018 ME 165, ¶ 18, 198 A.3d 791.
[¶19] Title 22 § 4055(1)(B)(2) lists two findings as prerequisites to a
termination of parental rights: first, that termination is in the best interest of
the child; and second, that the parent has demonstrated unfitness in one of four
ways. 22 M.R.S. § 4055(1)(B)(2). Notwithstanding the order in which these
two findings are laid out in the statute, the constitution requires that “a trial
court must find parental unfitness before it proceeds to consider the best
interest of the children.” Adoption of Shayleigh S., 2018 ME 165, ¶ 17, 198 A.3d
791; see also Adoption of Hali D., 2009 ME 70, ¶¶ 4-5, 974 A.2d 916; In re
Michelle W., 2001 ME 123, ¶ 11, 777 A.2d 283.
[¶20] In both of the trial court’s judgments, it first stated that it found
termination to be in the child’s best interests. Then, in a separate sentence, the
trial court found that the father “has been unwilling or unable to take
responsibility for the child in a time reasonably calculated to meet the child’s
needs.” However, the language of the trial court’s order does not necessarily
suggest that it made a finding as to the children’s best interests before reaching
the question of fitness; the record demonstrates that the trial court clearly
understood that the two findings were distinct and that a finding as to fitness
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must be reached before it could proceed to a best interest analysis. At trial, the
court stated, “[Y]ou don’t even get [to] the best interest of the child standards
until you deal with the termination standard.”
[¶21] The trial court’s order and the record evidence do not support a
conclusion that the father was denied a fair trial or subjected to a serious
injustice. The trial court made all required findings, correctly applying the
standard of clear and convincing evidence to both the best interest prong and
the fitness prong. The trial court understood that these findings were
independent of one another and a finding as to one should not inform the
finding as to the other. Therefore, any mistake made by the trial court in
arranging its findings within the termination orders was not obvious error. Cf.
In re Michelle W., 2001 ME 123, ¶¶ 8, 11, 777 A.2d 283; In re Joshua B., 2001 ME
115, ¶ 8, 776 A.2d 1240.
D. Necessity of Termination
[¶22] Finally, the father argues that the trial court erred in concluding
that his parental rights needed to be terminated in order for the stepfather to
adopt the children. Instead, the father argues, the trial court could have granted
the adoption petition without terminating his rights, leaving the children with
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three legal parents. This argument reflects a misunderstanding of
Title 18-A adoption proceedings and is not persuasive.
[¶23] The Probate Court is a court of limited jurisdiction. Marin v. Marin,
2002 ME 88, ¶ 9, 797 A.2d 1265. The Adoption Act grants the Probate Court
jurisdiction over adoption petitions. 18-A M.R.S. § 9-103(1)(a) (2018); see also
In re Melanie S., 1998 ME 132, ¶ 8, 712 A.2d 1036. Before the court may grant
a petition for adoption, however, written consent is required from each of the
adoptee’s living parents, unless an exception is satisfied. 18-A M.R.S.
§§ 9-302(a)(2), (b) (2018). A parent’s consent is not required if his or her
parental rights have been terminated pursuant to 22 M.R.S. §§ 4050-4059
(2018).3 Limited by its statutory mandate, the Probate Court is left with two
choices in the face of a nonconsenting parent: deny the petition for adoption
because the petitioner has failed to prove that the nonconsenting parent is unfit
or, if the petitioner has established that the parent is unfit and that adoption
would be in the child’s best interest, terminate the nonconsenting parent’s
parental rights, thereby obviating the need for the parent’s consent. See
Adoption of Isabelle T., 2017 ME 220, ¶ 12, 175 A.3d 639 (noting that the
The Title 22 termination procedures are incorporated by reference in 18-A M.R.S. § 9-204, which
3
authorizes the Probate Court to terminate parental rights in conjunction with an adoption petition.
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Adoption Act does not authorize rehabilitation or reunification efforts prior to
or instead of termination of parental rights). We review a trial court’s
determination of its own authority de novo. Bonner v. Emerson, 2014 ME 135,
¶ 9, 105 A.3d 1023.
[¶24] Here, the father was a living parent of both prospective adoptees
and, as such, the trial court could not grant either petition without his consent,
which the father did not provide. 18-A M.R.S. § 9-302(a)(2). The mother filed
petitions to terminate the father’s parental rights, and the trial court granted
those petitions. Only after the court determined that the father’s consent was
not legally necessary—because his rights had been terminated—could it
proceed to consider the adoption petitions.
[¶25] The trial court did not have the authority to pursue the third option
described by the father: an open adoption granted with his parental rights
intact but without his written consent. Although the Maine Parentage Act
contemplates more than two parents, the Adoption Code does not. Title
18-C M.R.S. §9-308 states that the effect of an adoption is to “divest[] the parent
and child of all legal rights, privileges, immunities, duties and obligations to
each other as parent and child, except an adoptee inherits from the adoptee’s
former parents if provided in the adoption decree.” 18-C M.R.S. § 9-308(6)
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(2019) (emphasis added). The Code contains no provision for parents who
wish to “consent” to the adoption of their children by someone else, unless
those consents are accompanied by voluntary termination of parental rights.
[¶26] The trial court did not err in failing to consider an adoption not
authorized by law.
The entry is:
Judgments affirmed.
Caleb J. Gannon, Esq., and John E. Baldacci, Jr., Esq. (orally), Lipman & Katz,
Augusta, for appellant father
Maryellen Sullivan, Esq., and Joe Lewis, Esq. (orally), Port City Legal, Portland,
for appellees mother and stepfather
Kennebec County Probate Court docket numbers A2018-4689 and A2018-4690
FOR CLERK REFERENCE ONLY