In re Marcus E.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 200Docket: Pen-17-201
Submitted
On Briefs: September 27, 2017
Decided: October 5, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE MARCUS E.
PER CURIAM
[¶1] The mother of Marcus E. appeals from a judgment of the District
Court (Bangor, Campbell, J.) terminating her parental rights to Marcus
pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(ii) (2016).1
She challenges the sufficiency of the evidence to support the judgment.
Because the evidence supports the court’s findings and discretionary
determination, we affirm the judgment.
[¶2] On September 23, 2015, the mother agreed to the following
language of a jeopardy order for the child and his sibling:2
1 The court entered a judgment terminating the parental rights of the child’s father on June 27,
2016. The father is not a party to this appeal.
2 The child’s sibling is in the custody of her father and is no longer part of these proceedings.
At the termination hearing, the mother claimed that she had not been aware that she could
disagree with the jeopardy finding and require the Department of Health and Human Services to
prove jeopardy at a contested hearing. The court’s finding that her claim was not credible is
supported by evidence that the court asked the mother at the jeopardy hearing if she was aware of
her rights and if she was agreeing to the jeopardy order of her own free will.
2
The minor children are in circumstances of [j]eopardy to their
health and welfare in the care and custody of their mother . . . due
to threat of serious harm. [The mother] allowed [the children] to
live in the same home as her father . . . despite the fact that her
father was convicted of sexually abusing her as a child. . . . [The
child’s sibling] was sexually abused by [the mother’s father] while
in [the] mother’s care. [The mother] did not take adequate steps
to protect her children and still resides with [her father]. [She]
has struggled to recognize the risk posed to her children.
[¶3] On April 24, 2017, based on competent evidence in the record, the
court found, by clear and convincing evidence, that the mother was unwilling
or unable to protect the child from jeopardy and unwilling or unable to take
responsibility for the child within a time reasonably calculated to meet his
needs and that termination of her parental rights is in the child’s best interest.
See 22 M.R.S. § 4055(B)(2)(a), (b)(i)-(ii); In re Robert S., 2009 ME 18, ¶ 15, 966
A.2d 894. The court based this determination on the following findings of fact:
[M]other has made no progress, whatsoever, on the central issue
in this case. Mother has gained no insight into the risk that her
father presents to her children. Rather than gaining insight,
mother is trying to convince people that her father does not pose
a risk to children. The . . . mother continues to demonstrate poor
judgment and a complete lack of protective capacity with respect
to her children.
. . . .
. . . The court does not believe that mother will keep her father
away from [the child] if [the Department] is not involved. Mother
does not have the ability to recognize and protect [the child] from
3
unsafe people and unsafe situations. Nothing has changed in two
years. . . .
. . . .
[The child] has been placed with [his foster parents] since
February of 2016. [They] have provided a loving, safe, and stable
home for [him]. [They] have been providing excellent care for
[him]. . . .
. . . [The foster parents] love [the child] very much, and they want
very much to adopt him. [The child] needs a safe and permanent
home, which mother is unable to provide.
[¶4] Given these findings and the court’s other specific findings of fact,
all of which are supported by competent evidence in the record, the court did
not err or abuse its discretion in determining that the mother was unfit and
that termination of the mother’s parental rights, with a permanency plan of
adoption, is in the child’s best interest. See In re Robert S., 2009 ME 18, ¶ 15,
966 A.2d 894; In re Thomas H., 2005 ME 123, ¶¶ 16-18, 889 A.2d 297.
[¶5] The mother nonetheless contends that the court’s judgment is not
supported by competent evidence in the record because the Department did
not prove that her father was in fact convicted of sexually abusing a minor.
The court’s determination that the mother’s rights to the child should be
terminated, however, was not based upon a finding that her father had been
convicted of a specific crime. Rather, it was based on the mother’s failure—
4
even after receiving two years of reunification services—to address a concern
for the child’s safety that was identified by the Department and clearly agreed
to by the mother at the jeopardy hearing.3 See In re Scott S., 2001 ME 114,
¶ 15, 775 A.2d 1144 (“[T]he [termination] hearing focused, as it should, not on
the original reason for the children’s removal from the parents’ home, but on
the parents’ actions since that time and their ability, contemporaneous with
the termination hearing and into the future, to provide safe care for the
[children].”). Although the mother testified at the termination hearing that
she had lied when she reported that her father had sexually abused her and
that her father was innocent, the court acted well within its authority in
determining that her testimony was not credible. See In re I.S., 2015 ME 100,
¶ 11, 121 A.3d 105 (“[I]t was within the court’s province, as fact-finder, to
determine the weight and credibility to be afforded to evidence.”).
The entry is:
Judgment affirmed.
3 Although the court was required to make its unfitness and best interest determinations by a
higher standard of proof than its findings in earlier stages of the proceedings, including the
jeopardy stage, the same judge presided over nearly the entirety of these child protective
proceedings and was entitled to consider the evidence presented throughout. See In re Scott S.,
2001 ME 114, ¶¶ 12-13, 775 A.2d 1144. Additionally, the Department was not required to prove
that the mother’s father was convicted of a certain crime at each stage of the proceeding. See id.
¶ 15; In re Rachel J., 2002 ME 148, ¶ 19, 804 A.2d 418 (“The nature of the proof required in the child
protective context is different than in the criminal context; the court is assessing a risk, not
determining whether the father committed a criminal act.”).
5
Randy G. Day, Esq., Garland, for appellant mother
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
Bangor District Court docket number PC-2015-29
FOR CLERK REFERENCE ONLY