In re Dominyk T.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 222Docket: Han-17-329
Submitted
On Briefs: November 29, 2017
Decided: December 7, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
IN RE DOMINYK T.
PER CURIAM
[¶1] The parents of Dominyk T. appeal from a judgment of the District
Court (Ellsworth, Roberts, J.) terminating their parental rights to the child.
The mother argues, and the father joins in her argument, that the Department
of Health and Human Services failed to satisfy its obligation to provide
necessary services to the mother and that the record cannot support the
finding of parental unfitness or the determination that the termination of her
parental rights is in Dominyk’s best interest. The father also contends that,
although he is unable to care for the child, the mother and he should both
retain their parental rights. We affirm the judgment.
[¶2] When the Department petitioned for a child protection order in
February 2015, the child had already been residing apart from both parents
with family members as part of an agreed upon safety plan. The child has a
genetic disorder that causes rapid growth in the first years of life and can
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result in physical and behavioral challenges. The Department alleged in its
petition that the father was unable to maintain sobriety and that the mother
could not maintain a stable home and safely care for the child.
[¶3] Upon the parties’ agreement, the court found in March 2015 that
the child was in jeopardy with the mother due to the involuntary termination
of her parental rights to two other children in 2005, her inability to keep
Dominyk safe or meet his medical needs, her inability to maintain appropriate
housing, and her repeated choice of unsafe partners. See 22 M.R.S. §§ 4002(6),
4035(2) (2016). The father conceded that, due to his struggles with alcohol
abuse, he was unable to care for Dominyk.
[¶4] The Department first filed a petition to terminate the parents’
parental rights in February 2016. The court held a trial on that petition in
November and December 2016 and was not persuaded that the Department
had established the mother’s unfitness. On that basis, the court denied the
petition, and the Department then transitioned the child into the mother’s
care.
[¶5] After the Department received new evidence of injuries to
Dominyk, it filed another petition to terminate the parents’ parental rights on
April 11, 2017. The court held a trial on that petition and on July 11, 2017,
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entered a judgment granting the petition to terminate the parents’ parental
rights after finding, by clear and convincing evidence, the following facts, all of
which are supported by competent evidence in the record. See 22 M.R.S.
§ 4055(1)(A)(1)(a), (B)(2) (2016); In re A.M., 2012 ME 118, ¶ 29, 55 A.3d 463.
[The mother] is very willing to take responsibility for Dominyk
and to protect him from jeopardy. She is simply unable to care for
him consistently. [The mother] worked extremely hard to
alleviate the issues that brought him into care. She engaged in
counseling . . . for close to 2 years. [The counselor] remains
supportive of [the mother] indicating that she is a competent
parent committed to her child and able to set appropriate limits
for him. At hearing, [the mother] articulated the parenting
knowledge that she has acquired. She can describe Dominyk’s
needs and the parenting skills that she would utilize to deal with
him. [Her] parenting progress is contradicted by the observations
of the in-home care providers. She cannot consistently apply the
parenting skills that she has acquired.
Dominyk was transitioned into [the mother’s] care on
December 30, 2016, following the court’s denial of the
Department’s first termination petition. [The mother] received
HCT [home and community treatment] services . . . following
Dominyk’s placement in her home. [The HCT worker] noted that
Dominyk exhibited heightened aggression following his return.
She observed that [the mother] has a low stress threshold while
Dominyk is quick to agitate. This resulted in clashes between the
two. [The mother] would become agitated with Dominyk, he
would respond with aggression and the HCT worker would
intervene to calm the situation. Unfortunately, [the mother]
admitted that she couldn’t maintain the calm environment. [The
mother]’s partner confirmed that he and [the mother] were
becoming irritable before March 30th. They weren’t calm.
Dominyk was hard to handle. [The mother’s fiancé] felt that they
really needed time away from Dominyk.
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[The HCT worker] and . . . Dominyk’s school nurse noted
that [physiological hygiene issues were] a significant concern
during his placement with [the mother]. . . . [The HCT worker]
addressed her concerns with [the mother]. [The mother] could
acknowledge the issue and seek guidance from [the HCT worker].
Unfortunately, [the mother] was unable to adequately assist
Dominyk. . . .
Dominyk needs physical activity in his daily routine. [The
HCT worker] provided [the mother] with a sheet of physical
activities designed to assist Dominyk. While she acknowledged
the importance of physical activities for Dominyk [the mother]
failed to prompt him to engage in the activities. [The mother]
reported that Dominyk was unable to complete specific
developmentally targeted tasks.
The trial placement ended on March 30, 2017. The
Department removed Dominyk from his mother’s care following
reports from [the HCT worker] and [the school nurse] of injuries
that they had observed on him. The most concerning injuries
were a bruise on his wrist and a black eye. [The mother] and her
partner . . . have given inconsistent explanations for these injuries.
Dominyk’s explanations have also been inconsistent. More
troubling to the court is [the mother]’s assertion that she was not
aware of his black eye. Dominyk’s injury was clearly visible to his
school nurse and is clearly visible on photographs taken after her
report. At a minimum [the mother] failed to care for a concerning
injury.
[The mother] is simply unable to take responsibility for
Dominyk within a time reasonably calculated to meet his needs.
[The mother] is unable to protect him from jeopardy within a time
reasonably calculated to meet his needs. While she is able to
understand appropriate parenting techniques she is consistently
unable to apply them. [The foster mother] has provided foster
care for Dominyk for over 2 years. Dominyk was returned to her
care after March 30, 2017. She noted that he regressed physically
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and emotionally while with [the mother]. He was able to
complete simple physical tasks while in the [foster] home that he
had been unable to accomplish with his mother. He was able to
regain his toilet training in her care as well.
This court finds by clear and convincing evidence that DHHS
offered [the mother] and [the father] appropriate services and
referred them to providers. [The father] was simply unwilling or
unable to engage or make changes. [The mother] was unable to
make necessary changes. This court finds that there is nothing
more that DHHS could have done to assist [the mother] or [the
father] in this case.
. . . .
[The mother] has worked exceptionally hard to acquire the
parenting skills needed for Dominyk’s care. The difficulty for [the
mother] is one of timing. Dominyk cannot continue to wait for his
[mother] to do all the things necessary to set up a stable,
consistent and safe life. . . . He needs a permanent home now and
cannot wait any longer for [the mother] to get her life in order.
This is a particularly troubling case because it is clear to this court
that [the mother] loves Dominyk dearly. Despite that love, [the
mother] is unable to take full responsibility for Dominyk at this
time. The court does not believe that she will be able to take
responsibility for him within a time reasonably calculated to meet
his needs.
. . . .
This court finds by clear and convincing evidence that even
though [the mother] may be willing, she is unable to protect
Dominyk from Jeopardy and these circumstances are unlikely to
change within a time which is reasonably calculated to meet his
needs. This court also finds by clear and convincing evidence that
even though [the mother] may be willing, she is unable to take
responsibility for Dominyk within a time which is reasonably
calculated to meet his needs.
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[¶6] The mother contends on appeal that the judgment terminating her
parental rights must be vacated because the Department failed to satisfy its
rehabilitation and reunification obligations, particularly by failing to
investigate the cause of Dominyk’s bruises more thoroughly. See 22 M.R.S.
§ 4041 (2016). The court found that the Department made significant efforts
to assist the mother and that she received multiple and appropriate services.
The court also found that, during Dominyk’s three-month trial placement—
the first time he had resided full-time with his mother in three or more
years—the mother was unable to implement learned parenting skills,
resulting in significant physical and behavioral problems for Dominyk; she
could not respond effectively when Dominyk became agitated; she could not
control her own emotional reactions to his behavior; and Dominyk suffered
injuries that, at a minimum, the mother did not treat while Dominyk was in
her care.
[¶7] Based on the facts that the court found, all of which have
evidentiary support, the court did not err in finding that the mother was
unable to protect Dominyk from jeopardy or take responsibility for him
within a time that is reasonably calculated to meet his needs, see 22 M.R.S.
§ 4055(1)(B)(2)(b)(i), (ii); In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195,
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and it did not err or abuse its discretion in determining that the termination of
her parental rights was in Dominyk’s best interest, see 22 M.R.S.
§ 4055(1)(B)(2)(a); In re A.M., 2012 ME 118, ¶ 29, 55 A.3d 463; In re Thomas
H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297. Nor did the court err or abuse its
discretion in terminating the parental rights of the father. See 22 M.R.S.
§ 4055(1)(B)(2)(a), (b)(i), (ii), (iv); In re Daniel H., 2017 ME 89, ¶ 17, 160 A.3d
1182.
The entry is:
Judgment affirmed.
Dawn M. Corbett, Esq., Law Office of Dawn M. Corbett, PA, Ellsworth, for
appellant mother
Mary Kellett Gray, Esq., Brooklin, 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
Ellsworth District Court docket number PC-2015-09
FOR CLERK REFERENCE ONLY