In re Child of Jonathan D.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 14Docket: 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.
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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
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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.
. . . .
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. . . [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,
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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.,
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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