In re M.B.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 46
Docket: And-12-330
Argued: April 9, 2013
Decided: May 9, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
IN RE M.B. et al.
JABAR, J.
[¶1] The mother of M.B. and G.W. and the father of M.B. appeal from a
judgment of the District Court (Lewiston, Beliveau, J.) terminating their parental
rights. The mother and father argue that the court violated the Due Process Clause
of the Fourteenth Amendment by (1) issuing an order terminating their parental
rights before receiving their post-trial briefs and (2) admitting in evidence
statements that M.B. made to the court without counsel for the parents being
present. Additionally, the parents argue that the evidence presented at trial was
insufficient to prove by clear and convincing evidence that they are unfit to parent
and that termination of parental rights is in the best interests of the children. We
affirm the trial court’s judgment.
I. BACKGROUND
[¶2] M.B. was born on February 22, 2004. The mother has a second child,
G.W., who was born on August 8, 2008. At the time of M.B.’s birth, the mother
2
and father lived together in Florida, but they separated two months later. M.B.
remained in Orlando with the mother, and the father moved to Miami but
maintained contact and had visits with M.B.
[¶3] In 2008, when the mother dropped M.B. off at the father’s home for an
overnight visit, the father noticed bruising on the child’s arms and legs. Concerned
that the bruises were not the result of an accident or play, the father called the
mother to determine the cause, but she refused to provide an explanation. Instead,
hours later, at 3:00 a.m., the mother arrived at the father’s home and frantically
demanded that the father hand over M.B., which he did.
[¶4] Despite concerns about M.B.’s safety, the father did not contact Florida
authorities or attempt to obtain custody. He did maintain contact with the mother
and occasionally spoke with M.B., but the father did not see his child after this
early morning incident, and, for the first fifteen months of this case, he did not
have any contact with the child, believing the mother’s untruthful assertions that
the child was around but too busy to talk.1 Soon after G.W. was born, the mother
moved with the children to Massachusetts.
[¶5] On October 2, 2009, the Maine Department of Health and Human
Services received information indicating that the mother had fled to Maine because
1
When asked about whether he thought M.B. was in danger while with the mother, the father stated,
“He had the bruises, and I was mad, but [I did] not [think] that she was going to kill him or anything.”
3
the Massachusetts Department of Children and Families was attempting to take
custody of M.B. and G.W. The Department was concerned because the mother
had been substantiated as a sex offender in Massachusetts for allegedly inserting a
toothbrush into the vagina of her boyfriend’s two-year-old daughter, had untreated
substance abuse and mental health issues, and exposed her children to domestic
violence. A caseworker with the Department met with M.B. at school, where he
indicated that he was hungry and that he had recently come to Maine with his
sister, his mother, and his mother’s boyfriend. The caseworker also met with the
mother separately. She denied the allegations of sexual abuse relayed from
Massachusetts and indicated that she had forgotten to feed M.B. that day. While at
the meeting, the mother changed G.W.’s diaper and the caseworker noticed blood
in the child’s stool. Later that same day, the children were taken into the
Department’s custody and placed with a foster family. Soon thereafter, G.W. was
examined by Dr. Lawrence Ricci of the Spurwink Child Abuse Program, who
determined that she had suffered “anal injuries consistent with blunt penetrating
trauma.”
[¶6] On October 15, 2009, the mother waived her right to a summary
preliminary hearing; the court reaffirmed the children’s custody with the
Department and recognized that service was incomplete as to the father. The
mother indicated that she believed the father was in Florida but denied knowing
4
how to contact him; she denied knowing the identity of G.W.’s father, claiming
that G.W. was the product of rape.
[¶7] The court entered an agreed-upon jeopardy order as to the mother in
February 2010, requiring her to engage in a variety of services approved by the
Department including a psychological evaluation, mental health counseling, and
random drug and alcohol testing. The children were ordered to remain in foster
care, and the father’s whereabouts were still unknown.
[¶8] Judicial review conferences were held on April 29, 2010, and
July 15, 2010, at which the court found that jeopardy as to the mother was
unresolved because she had been living in Massachusetts2 and the extent of her
participation in Department-approved services was unknown.
[¶9] At the time of the third judicial review conference, held on
October 26, 2010, the mother had returned to Maine and was participating in some
substance abuse and mental health counseling, but she continued to test positive for
marijuana use. The court found that the mother had made little progress regarding
her chaotic lifestyle or the issues surrounding sexual and physical abuse to her
children. By that date, more than a year after M.B. was placed in the State’s
2
In November 2009, the mother was convicted in Massachusetts of possession of crack cocaine with
intent to distribute. At the time of the July 15, 2010, judicial review conference she was still on probation
for that conviction.
5
custody, the State had not yet served any of the originating documents on the
father.
[¶10] On February 3, 2011, a Department caseworker was contacted by the
father. According to the father, the mother had only recently informed him that
M.B. was in the Department’s custody. On February 11, 2011, the Department
filed a petition to terminate the parental rights of both the mother and the father.
[¶11] In June 2011, the Department dismissed the petition to terminate the
father’s parental rights and the court (Stanfill, J.) entered an agreed-upon jeopardy
order as to him; a hearing on the petition to terminate the mother’s parental rights
was continued. In August 2011, after a judicial review conference, the parties
developed a reunification plan for M.B. and the father, which indicated that the
father, who at the time still lived in Florida, would begin contacting M.B., then
seven years old, via email. At the conference, the mother refused to sign a
reunification plan and refused to submit to drug testing.
[¶12] Pursuant to the reunification plan, contact between M.B. and the
father began through email. Even this limited contact, however, caused extreme
anxiety in M.B. and stress to the father. In the emails, M.B. would tell his father
that he hated him and that he did not want to talk to him. M.B. refused gifts that
his father bought him and drew pictures depicting his father being hurt; the father
suffered a medical event—his girlfriend characterized it as a heart attack—that he
6
claimed was related to the stress of interacting with M.B. As a result of the
father’s medical condition, email contact between the father and M.B. ceased from
November 2011 to February 2012.
[¶13] In December of 2011, over M.B.’s protests, the Department arranged
two phone calls between M.B. and the father.3 Despite M.B.’s reluctance, the first
phone call was conducted without incident, and the two talked for about five
minutes. When the foster mother took M.B. to the Department’s office for a
second phone call, however, “he was laughing insatiably [sic], and crying,” and
eventually curled up on his knees on the floor. After the second phone call, M.B.
began screaming in the middle of the night and having hallucinations. The phone
calls then ceased.
[¶14] Meanwhile, the Department was attempting to convince the father to
move to Maine to help facilitate reunification. Instead, the father moved to
New York to live with his girlfriend and the two other children he has with her.
The father did begin to meet with George Repp, a reunification therapist located in
Maine, but was unable to keep his once-a-month appointments, and Repp
eventually discharged him. Although Repp suggested that the father attempt to
3
With regard to the phone calls, the foster mother testified that M.B. “was crying. He was very
adamant, stood his ground, and just—he did not want to do it.”
7
receive reunification services from a therapist in New York, neither the father nor
the Department ever pursued that option.
[¶15] On February 6, 2012, the Department filed a petition to terminate the
parental rights of the mother and the father. With respect to the mother, the
Department alleged that she missed meetings and scheduled visitations, failed to
consistently engage in substance abuse and mental health treatment, and failed to
understand why her children had been removed from her care. The Department
alleged that contact with the father caused M.B. extreme anxiety and that the father
refused to put M.B.’s needs for permanency above his own. The court held a
hearing on the petition on May 29 to 31, 2012.
[¶16] At the termination hearing, Julia Cabral, a licensed clinical social
worker who worked with M.B., testified that the increased contact between M.B.
and the father caused M.B. to feel that “his safety was threatened,” and indicated
that on two instances, when faced with the prospect of contacting his father, M.B.
would laugh, then cry, and curl up in a ball on the floor of her office. She also
indicated that M.B. has made it clear that he considers his foster family his real
family, he is extremely fearful of being taken away from that family, and, in her
clinical opinion, removal from the foster family’s home would result in “a
significant disruption of his developmental progress.” She stated that M.B. needed
finality in a short period of time.
8
[¶17] Mark Rains, a licensed psychologist who conducted an evaluation of
M.B., testified that M.B. demonstrated signs of posttraumatic stress disorder and
that he made little progress on this front in therapy because of the uncertainty
associated with his future living situation. Rains also testified that it “would be
probably many months to a year or two” before M.B. and the father could establish
a meaningful relationship, and, in his opinion, M.B. could not wait that long to
have his permanency needs met. Based on the testimony of Cabral and Rains, the
court found that “it would likely take another [six] months to a year to begin
reunifying [M.B.] with [f]ather. Such a timeframe is not reasonably calculated to
meet the [c]hild’s needs; [M.B.] cannot wait any longer.”
[¶18] Over the father’s objection, the guardian ad litem testified that he and
M.B. met privately with the court in chambers, without the attorneys for the parties
present, and in that meeting M.B. indicated that he would like to live with the
foster family. In response to the father’s objection, the court indicated that it
thought the parties agreed to the meeting and that regardless, there was other
evidence in the record indicating the child’s preference to live with the foster
family, including the testimony of the child’s therapist. According to the foster
mother and M.B.’s therapist, M.B. considers the foster family his “real family,”
and sees a relationship with his mother and father as a threat to the security he has
9
experienced with the foster family. The foster parents testified that they would like
to adopt both M.B. and G.W.
[¶19] At the conclusion of the hearing, the court indicated that in lieu of
closing arguments it would give the parties until June 8, 2012, to file post-trial
briefs. On June 6, 2012, the court entered a judgment terminating the parental
rights of the mother as to M.B. and G.W., and terminating the parental rights of the
father as to M.B. The court concluded that there was clear and convincing
evidence that both parents (1) were unwilling or unable to protect the children from
jeopardy in a time reasonably calculated to meet their needs, (2) were unwilling or
unable to take responsibility for the children within a time reasonably calculated to
meet their needs, and (3) had failed to make good faith efforts to reunify.
[¶20] The court found that the Department made “diligent and reasonable
efforts to rehabilitate and reunify [the] family,” but that the mother failed to
comply with the reunification plan and continued to pose a threat to the children.
Similarly, the court found that the “[f]ather’s complete lack of concern for the well
being of his child and his failure to take action” between the time the mother took
M.B. from Florida and the time he entered the case was “unacceptable” and
“exceptionally unjustifiable.” As evidence of the father’s lack of concern, the
court noted that despite noticing bruising and being concerned for M.B.’s
well-being the last time he saw the child, “for a period of at least [fifteen] months,
10
but probably longer . . . [the f]ather simply took [the m]other’s word that his son
was busy. He neither saw nor spoke to his child.” Further, based on progress the
children made in foster care, the court found that termination of parental rights as
to both parents was in the best interests of the children.
[¶21] With regard to the mother, the court’s findings of jeopardy and failure
to take responsibility stemmed from her substance abuse, unstable lifestyle, and
failure to address the issues that sparked the Department’s initial involvement; the
court found that her efforts to reunify were “sporadic and minimal.”
[¶22] Similarly, with regard to the father, the court found that he failed “to
maintain a meaningful contact with the [c]hild pursuant to the [r]eunification
[p]lan, and failed to seek and utilize appropriate services to assist in rehabilitating
and reunifying with the [c]hild.” The court found that when the father moved from
Florida to New York, the Department “made efforts to overcome” the physical
distance between M.B. and the father, but the “[f]ather did not put in his share of
the effort.” The court also found that “interaction with [f]ather still poses a threat
to [M.B.’s] safety and security.”
[¶23] The court found that although the father was a competent parent for
his other two sons, “the ability of a parent to take responsibility for a child is not
based on the ability to take care of any child, but of the child who is the subject of
the proceedings.” Therefore, despite the father’s willingness to care for M.B.,
11
“given [M.B.]’s negative feelings toward [the f]ather and the complete lack of
relationship between the two, [the f]ather is unable to provide [M.B.] with the care
he needs.” The court concluded that “any longer of a wait is not a reasonable time
to meet [M.B.’s] needs” and “[t]he Permanency Plan as to both [c]hildren is
adoption.” Both parents timely filed notices of appeal. See 22 M.R.S. § 4006
(2012); M.R. App. P. 2(b)(3).
II. DISCUSSION
[¶24] Both parents argue (A) that the court violated their rights pursuant to
the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and article 1, section 6-A of the Maine Constitution by (1) issuing a
decision prior to receiving their post-trial briefs and (2) interviewing M.B. off the
record and without the parents’ attorneys being present in violation of 22 M.R.S.
§ 4007(2) (2012), and (B) that the court erred in terminating their parental rights.
A. Due Process
[¶25] “[T]he liberty protected by the Due Process Clause includes the right
of parents to establish a home and bring up children . . . .” Troxel v. Granville,
530 U.S. 57, 65 (2000) (plurality opinion) (quotation marks omitted). Thus,
“[w]hen the state seeks to terminate the relationship between a parent and child, it
must do so by fundamentally fair procedures that meet the requisites of due
process.” In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222. “The
12
fundamental requirement of due process is an opportunity to be heard upon such
notice and proceedings as are adequate to safeguard the right which the particular
pertinent constitutional provision purports to protect.” Id. (quotation marks
omitted).
1. Closing Argument
[¶26] The parents argue that the court violated due process by issuing the
judgment before receiving the post-trial briefs for two reasons: first, although
M.R. Civ. P. 51(a) gives trial courts discretion to shorten the time for argument, it
does not allow the court to decide not to receive argument at all; and second,
because the court in this case specifically allowed time for argument, it was error
to issue the decision prior to the deadline for filing post-trial briefs. We review
questions of law, including “issues of statutory and constitutional interpretation[,]”
de novo. In re D.P., 2013 ME 40, ¶ 6, --- A.3d --- (quotation marks omitted). We
also review de novo “a court’s interpretation of the Maine Rules of Civil
Procedure.” Town of Poland v. T & M Mortgage Solutions, Inc., 2010 ME 2, ¶ 6,
987 A.2d 524.
[¶27] Maine Rule of Civil Procedure 51(a) provides that “[c]ounsel for each
party shall be allowed such time for argument as the court shall order.” We have
stated that rule 51(a) provides “that a court may in its discretion hear argument, but
this provision does not provide parties the opportunity to argue as a matter of
13
right.” Coppersmith v. Coppersmith, 2001 ME 165, ¶ 7, 786 A.2d 602. Arguing
that this interpretation is contrary to longstanding precedent and the plain language
of rule 51(a), the parents urge us to clarify Coppersmith to mean that closing
arguments are mandatory. We decline to do so.
[¶28] Here, the court indicated that although it had received all of the
information that it needed to render a decision, it would allow time for the parties
to file post-trial briefs. Instead, the court issued its decision two days before the
deadline it set for receiving those briefs. Still, the record reveals that rather than
asking the court, in light of closing arguments, to alter or amend the judgment
pursuant to M.R. Civ P. 59(e), or to reconsider the judgment pursuant to
M.R. Civ. P. 60(b), the parents appealed directly to this Court. See Jim Mitchell &
Jed Davis, P.A. v. Lavigne, 2001 ME 67, ¶ 5, 770 A.2d 109 (“It would be
inconsistent with the doctrines of deferential review or judicial economy, and any
of the exceptions to the final judgment rule, to permit a direct appeal . . . to proceed
without the objecting party first having utilized the available opportunity to secure
prompt consideration by the trial court of any objections they may raise.”).
[¶29] Although the parents had avenues through which they could have
sought immediate redress from the trial court, they chose to proceed directly to this
Court, and they did so without alleging how the purported error affected the
underlying judgment. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463; see also
14
Greaton v. Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913. The parents failed to avail
themselves of mechanisms through which the trial court could have provided
relief, see M.R. Civ. P. 59(e), 60(b), failed to demonstrate how the outcome would
have been different had the court considered their briefs, see In re A.M.,
2012 ME 118, ¶ 25, 55 A.3d 463, and they are not entitled to closing argument “as
a matter of right,” Coppersmith, 2001 ME 165, ¶ 7, 786 A.2d 602. They were
provided “notice of the issues, an opportunity to be heard, the right to introduce
evidence and present witnesses, the right to respond to claims and evidence, and an
impartial fact[-]finder.” In re Kristy Y., 2000 ME 98, ¶ 7, 752 A.2d 166 (footnotes
omitted); see In re A.M., 2012 ME 118, ¶ 27, 55 A.3d 463. Therefore, we
conclude that the court did not violate the parents’ due process rights by entering
the judgment terminating their parental rights prior to receiving their post-trial
briefs. See Mathews v. Eldridge, 424 U.S. 319, 335 (1975) (providing the three
factors that must be evaluated to determine whether a state has violated an
individual’s right to due process).
2. Child Interview
[¶30] The parents argue that the court violated their rights to due process by
admitting evidence of statements M.B. made to the court in chambers without the
attorneys for the parents present. The State argues that the court had discretion,
pursuant to 22 M.R.S. § 4007(2), to take the testimony off the record, and,
15
alternatively, that the parents fail to point out how any purported error prejudiced
them.
[¶31] Although the record indicates that there was some agreement between
the parties that M.B. would be interviewed by the court, the nature and extent of
that agreement is unclear. The court indicated that it was under the impression that
the parents consented to the interview, while the parents maintain that they were
unaware that the interview was going to take place with the court and GAL alone.
The court took statements from M.B. with only the GAL and the judge present;
that interview is not part of the record. Over the father’s objection, the court
allowed the GAL to testify as to the child’s preference for staying with the foster
family, which the GAL indicated that he learned during the child’s interview with
the judge. In response to the father’s objection, the court stated, “I’ll give it
whatever weight—I mean, I speak to a lot of kids, and I give what they say certain
weight and not much weight sometimes. . . . I have enough evidence . . . that
indicates what his preference is at this point.”
[¶32] We note from the outset that the best practice is to follow the strict
confines of 22 M.R.S. § 4007(2), regardless of the existence of any contrary
agreement by the parties. Pursuant to section 4007(2),
[t]he court may interview a child witness in chambers, with only the
guardian ad litem and counsel present, provided that the statements
made are a matter of record. The court may admit and consider oral
16
or written evidence of out-of-court statements made by a child, and
may rely on that evidence to the extent of its probative value.
We have held that the introduction of evidence pursuant to 22 M.R.S. § 4007(2), as
applied in In re Robin T., 651 A.2d 337, 338 (Me. 1994) and In re Charles
Jason R., 572 A.2d 1080, 1081-82 (Me. 1990), does not violate due process. We
have not, however, had an occasion to decide whether, in admitting testimony
obtained in a manner not prescribed in section 4007(2), the court violates the
statute or due process. “Questions of law, including statutory interpretation, are
reviewed de novo.” In re Alivia B., 2010 ME 112, ¶ 7, 8 A.3d 625.
[¶33] The plain language of 22 M.R.S. § 4007(2) indicates two alternatives
pursuant to which a court may admit out-of-court statements of children in
protection proceedings: (i) by interviewing the child with the GAL and counsel
present, then making the statements made during the interview part of the record;
or (ii) by admitting oral or written out-of-court statements. Here, the court
interviewed the child without counsel present and did not make that interview part
of the record. Because the statute makes clear that if the court interviews the child,
the GAL and counsel shall be present and the interview shall be made a part of the
record, taking the statements without counsel and off the record likely violates
22 M.R.S. § 4007(2).
17
[¶34] Nevertheless, we need not decide whether the violation of 22 M.R.S.
§ 4007(2) violated the parents’ due process rights, because the parents fail to
demonstrate how they were prejudiced by the error, and it is highly probable that
admission of the evidence did not affect the judgment. See In re A.M.,
2012 ME 118, ¶ 25, 55 A.3d 463 (“The mother’s failure to explain on appeal how
her absence or the officer’s testimony [concerning her absence] could have
affected the trial or its outcome is relevant in determining on appeal whether she
has been deprived of due process.”); Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913 (“In
appealing a judgment, it is not enough to challenge procedural errors allegedly
made by the trial court without also showing actual error in the judgment.”);
In re Elijah R., 620 A.2d 282, 285 (Me. 1993) (“Even though the records are
inadmissible hearsay, however, their admission in evidence is harmless error
because under the circumstances it is highly probable that admission of the
evidence did not affect the judgment.”). Even assuming that the child made
statements prejudicial to the parents,4 there is no evidence in the record that the
court considered the child’s statements in rendering the judgment, and the record
contains ample other evidence indicating M.B.’s preference to stay with his foster
family rather than reunite with his parents, including the testimony of his foster
4
Although the GAL testified that during the meeting with the court, the child indicated that he would
prefer to stay with the foster family, at oral arguments before this Court, the parents indicated that the true
danger of the situation is that there is no record of what the child said. Therefore, for the purpose of our
analysis, we will assume that the child made statements prejudicial to the parents.
18
mother and the licensed clinical social worker. See In re Elijah R., 620 A.2d at
285-86 (holding that admission of inadmissible evidence was harmless when the
information was “duplicated by other sources in the record”); cf. In re Morris D.,
2000 ME 122, ¶ 7, 754 A.2d 993 (holding that it was not an abuse of discretion for
a court to refuse to allow a child to testify when the parties, pursuant to 22 M.R.S.
§ 4007(2), introduced other evidence indicating the child’s preference regarding
future placement). Therefore, no violation of the parents’ due process rights
resulted from the court’s interview of the child off the record and without the
attorneys for the parents present. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463.
B. Termination of Parental Rights
[¶35] The parents challenge the sufficiency of the evidence supporting the
court’s findings of unfitness and best interest of the children: the father argues that
the evidence was insufficient to find that he is unfit and that termination of his
parental rights is in the best interest of M.B., and the mother argues that the court
erred in finding that the Department made a good faith effort to reunify her with
her children.
1. Father’s Parental Rights
[¶36] The father challenges the court’s findings of parental unfitness.
Specifically, he argues that because he did everything required of him in the
reunification plan, and because the Department failed to provide a proper
19
reunification therapist, the court erred in finding that he failed to make a good faith
effort to reunify pursuant to 22 M.R.S. § 4041(1-A)(B) (2012). Similarly, he
challenges the court’s findings that he was unable to protect the child from
jeopardy and unable to take responsibility for the child within a time reasonably
calculated to meet the child’s needs. He also challenges the court’s determination
that termination was in the best interest of the child.
[¶37] Where the court finds multiple bases for unfitness, we will affirm if
any one of the alternative bases is supported by clear and convincing evidence.5
See In re Thomas D., 2004 ME 104, ¶ 38, 854 A.2d 195. “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 L.E., 2012 ME 127, ¶ 11,
56 A.3d 1234 (quotation marks omitted). With regard to the best interest
determination, we review the court’s factual findings for clear error, see id., but its
ultimate conclusion for an abuse of discretion, “viewing the facts, and the weight
to be given them, through the trial court’s lens,” In re Alivia B., 2010 ME 112,
¶ 12, 8 A.3d 625.
5
The father persuasively argues that the court erred in finding that he failed to make a good faith
effort to rehabilitate and reunify. Nevertheless, we need not address that issue because there is ample
evidence in the record supporting an alternative basis of unfitness. See In re Leona T., 642 A.2d 166, 168
(Me. 1994).
20
[¶38] The court found that the father’s “failure to take action during a
15-month period in which he did not speak to or see the [c]hild even once is
unacceptable . . . especially in light of his suspicions that the [c]hild was being
physically harmed.” According to the court, as a result of his inaction, the father is
unable to protect M.B. from jeopardy and those circumstances are unlikely to
change within a time reasonably calculated to meet M.B.’s needs. Supporting
these findings, the record demonstrates that after M.B. was taken from the father’s
home in 2008, the mother exposed him to a chaotic and dangerous lifestyle, and
the father failed to make an effort to ensure M.B.’s safety. Cabral, the licensed
clinical social worker who worked with M.B., testified that the child once asked
her, “If he was my [d]ad, why wasn’t he around when bad things were happening
to me?”
[¶39] Further, there is competent evidence in the record to support the
court’s finding that it would take six months to a year for the father and M.B. to
begin to have a relationship. M.B. has been living with the foster family for over
three years and has not seen his father since 2008. Given the extreme anxiety M.B.
demonstrated when faced with interaction with his father and the threat of removal
from his current home, it is highly probable that six months to one year is not
reasonably calculated to meet M.B.’s needs. See In re Charles G., 2001 ME 3, ¶ 7,
763 A.2d 1163 (noting that the time frame is calculated from the child’s
21
perspective); see also In re Colby E., 669 A.2d 151, 152 (Me. 1995) (“[T]he
emotional difficulties that may attend foster care are included within the statutory
definition of jeopardy. We have previously upheld a finding of jeopardy when a
child, already vulnerable from earlier abuse and instability, faced developmental
regression of serious magnitude if removed from his stable foster home.”
(quotation marks omitted)).
[¶40] Additionally, the court’s findings regarding the developmental
progress that M.B. has demonstrated with the foster family and the foster family’s
intent to adopt the children are supported by competent evidence in the record, the
findings are not clearly erroneous, and the court did not abuse its discretion in
finding that termination of parental rights is in the best interest of the child. See
In re Alivia B., 2010 ME 112, ¶¶ 12-13, 8 A.3d 625 (noting the substantial
deference afforded the trial court regarding best interest determinations).
2. Mother’s Parental Rights
[¶41] The mother does not directly challenge the court’s findings regarding
unfitness and best interest of the children but instead argues that the court erred in
finding that the Department made a good faith effort to rehabilitate and reunify her
with her children. Although the court found “by clear and convincing evidence
that [the Department] . . . made diligent and reasonable efforts to rehabilitate and
reunify this family . . . [and] pursu[ed] other permanency plans,” the mother argues
22
that by frequently changing caseworkers and denying her needed services, the
Department failed to make reasonable reunification efforts.
[¶42] When evaluating parental unfitness, the court should consider any
failure on the part of the Department to provide reasonable reunification services.
See In re Thomas D., 2004 ME 104, ¶ 28, 854 A.2d 195. Here, however, the
record fully supports the court’s finding that the Department made diligent and
reasonable efforts to rehabilitate and reunify the mother with her children, and in
any event the Department’s failure to provide such services does not preclude the
court from terminating parental rights, see id.
[¶43] Furthermore, even assuming for the purpose of the unfitness analysis
that the Department failed to provide reasonable reunification services, the court’s
findings of unfitness as to the mother are amply supported in the record: she was
substantiated as a sex offender in Massachusetts; G.W. displayed signs of sexual
abuse; M.B. displayed symptoms of posttraumatic stress disorder and recalled
feeling unsafe in the care of his mother; and the mother continued to engage in
substance abuse and maintain a chaotic lifestyle. See In re Doris G.,
2006 ME 142, ¶¶ 15-17, 912 A.2d 572 (affirming the termination of a father’s
parental rights despite the Department’s failure to develop a written reunification
plan because the “father’s rights . . . were not terminated for failure to engage in
and complete any specific undisclosed services, but rather because of the father’s
23
inability to adequately care for, protect, and nurture his children”). Further, the
record supports the court’s finding that termination is in the best interest of the
children. See id. ¶ 18. Therefore, the court did not err in finding that the mother is
unfit or that the termination of her parental rights is in the best interest of the
children.
The entry is:
Judgment affirmed.
On the briefs:
Jason Dionne, Esq., Isaacson & Raymond, P.A., Lewiston, for appellant
father
Richard Charest, Esq., Auburn, for appellant mother
Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and
Human Services
At oral argument:
Jason Dionne, Esq., for appellant father
Richard Charest, Esq., for appellant mother
Nora Sosnoff, Asst. Atty. Gen., for appellee Department of Health and
Human Services