In re Child of Everett S.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 93 Docket: Fra-18-41
Submitted
On Briefs: June 27, 2018
Decided: July 10, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF EVERETT S.
PER CURIAM
[¶1] The mother and father appeal from a judgment of the District
Court (Farmington, Carlson, J.) terminating their parental rights to their son
pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(ii) (2017).
Both parents challenge the sufficiency of the evidence supporting the court’s
findings of unfitness and best interest as well as the court’s discretionary
determination that the termination of their parental rights was in the child’s
best interest. Because the evidence supports the court’s factual findings and
discretionary determinations, and because the court did not abuse its
discretion in determining that termination was in the child’s best interest, we
affirm the judgment.
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I. BACKGROUND
[¶2] After a two-day termination hearing, the court issued a judgment
containing the following findings of fact, which are supported by the record.
See In re Child of James R., 2018 ME 50, ¶ 2, 182 A.3d 1252.
[The parents] are a married couple . . . who have had
extensive involvement with DHHS child protection services for
approximately twenty years off and on. The issues have largely
been unsanitary living conditions and neglect.
. . . .
On May 11, 2016, the [c]ourt entered a Jeopardy Order with
respect to [the child,] which found him to be in circumstances of
jeopardy in the custody of his parents based on the threat of
serious harm, [and the] deprivation of adequate food, shelter,
clothing, supervision and education.
. . . .
After DHHS took custody of [the child], he was placed with
his older half-brother and his wife. [The parents] were able to
buy the trailer that they had been renting and told DHHS that they
were going to make improvements that would remedy the
unsanitary living conditions. They claimed that their former
landlord had essentially contributed to the unsanitary living
conditions and it was not their fault.
Over the next few months, living conditions in [the] parents’
home appeared to be getting better. Both [of the parents] were in
counseling with counselors that they had been seeing for a
number of years.
. . . .
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[The parents] both completed [Court Ordered Diagnostic
Evaluations (CODE)] . . . . Given the history of DHHS child
protection involvement for the same issues and [the mother’s]
mental state, [the CODE evaluator] does not believe that [the
mother] can make sufficient changes that could reduce the risk of
further incidences of child maltreatment. She tends to blame
others for the circumstances that have caused [the child’s]
removal, which indicates a lack of motivation to make any
appreciable changes . . . .
[The father] was unable to identify any of DHHS’s concerns
during his CODE evaluation with the exception of a lack of
cleanliness which he and [the mother] blamed on their
landlord. His IQ score . . . indicated an intellectual disability. . . .
[The CODE evaluator] concluded that:
‘the mere presence of an intellectual disability does
not necessarily guarantee that a parent will be
neglectful or abusive. However, in this case, it
appears that [the father’s] limited ability to
conceptualize the big picture situation at home has
left him pretty ineffective in addressing issues such as
cleanliness of the household or management of his
older son’s aggressive behavior toward his younger
brother. Therefore, this is a case where cognitive
limitation can reasonably be seen as a risk factor. . . .’
. . . .
[The child] has expressed that he wants to return home to
his parents, although he was excited about the prospect of going
to [the residential facility]. In June 2017, the [permanency
caseworker] visited the [parents’] home and saw clutter in the
home, including [the child’s] bedroom blocked by large items, a
dirty kitchen, a hole in the hallway floor, a hole in the shower and
[what appeared to be] feces around the toilet. She did not believe
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that jeopardy had been ameliorated or that the parents were
capable of meeting [the child’s] needs.
. . . .
[The mother] does not believe that DHHS has helped [her]
and [her husband] with the unsanitary living conditions,
particularly ridding the home of cockroaches.
. . . [The father] believes that he and [the mother] could
safely supervise [the child] in their home. He did indicate that
while he and [his wife] were trying to make improvements to
their trailer, he had given up on it and did not want to do any
further work.
[The child’s] Guardian ad Litem . . . believes that it is not in
the child’s best interest to return home. She believes that [the
child] needs to know where he is going and that he needs stability
and permanency.
There were reunification and rehabilitation plans in this
case that were done in March 2016 [and] July 2016[,] and three
judicial review orders.
[The child] is a very high needs child who requires
caregivers/parents who are highly skilled, focused on his needs,
able to make good judgments, have the ability to keep him safe
and can provide a clean, stable home. [The child] has been in
DHHS custody since May 2016.
Based on [the parents’] own limitations, their failure to
make the changes in their living environment and their lives that
are necessary to keep [the child] safe and which are unlikely to
change as well as the high needs of this child, the [c]ourt finds, by
clear and convincing evidence, that they are unwilling or unable
to protect their child from jeopardy and these circumstances are
unlikely to change within a time reasonably calculated to meet his
needs and they are unwilling or unable to take responsibility for
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their child within a time that is reasonably calculated to meet his
needs.
The [c]ourt further finds that it is in [the child’s] best
interests that [the mother’s] and [the father’s] parental rights be
terminated. The [c]ourt bases this on [the child’s] age, his . . .
needs and the fact that he has been in DHHS custody for twenty
months and needs stability and permanency. His emotional
deterioration is a sign that he is unable to move forward due to
his uncertainty as to his future.
II. DISCUSSION
[¶3] We review the court’s factual findings on parental unfitness for
clear error and its determination that the termination of parental rights was
in the child’s best interest for an abuse of discretion. In re Hope H., 2017 ME
198, ¶ 8, 170 A.3d 813.
A. Unfitness Findings
[¶4] The mother and the father both argue that the court’s findings are
unsupported by the record because the Department failed to provide the
services recommended by the psychologist who performed the CODE for each
parent. See 22 M.R.S. § 4041 (2017). Further, the parents contend that the
Department failed to provide certain services outlined in the reunification
plans.
[¶5] We consider allegations of the failure of the Department to provide
reunification services as a part of the determination of parental unfitness. See,
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e.g., In re Emma S., 2018 ME 8, ¶ 5, 177 A.3d 632. Contrary to the parents’
contentions, the court’s findings are supported by the record because the
Department created reunification and rehabilitation plans, provided social
worker services, and made referrals to other services throughout the nearly
two decades that the Department has been involved with this family. In
addition, supported by the CODE report for each parent, the court found that
it is unlikely that the mother “can make sufficient changes that could reduce
the risk of further incidences of child maltreatment” and, in regards to the
father, “[t]he prognosis for change is poor, because it is unlikely that his IQ
will ever improve.” (Quotation marks omitted.) Moreover, “the Department’s
compliance with its rehabilitation and reunification duties as outlined in
section 4041 does not constitute a discrete element requiring proof in
termination proceedings, nor does the failure of the Department to comply
with section 4041 preclude findings of parental unfitness.” In re Child of
Heather W., 2018 ME 31, ¶ 11, 180 A.3d 661 (quotation marks omitted).
[¶6] The court therefore did not clearly err when it found that, based
on the parents’ own limitations and “their failure to make changes in their
living environment and their lives that are necessary to keep [the child] safe,”
the parents were unwilling and unable to protect their child from jeopardy or
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take responsibility for their child, and that these circumstances are unlikely to
change within a time that is reasonably calculated to meet the child’s high
needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii); see also In re Logan M., 2017
ME 23, ¶ 3, 155 A.3d 430.
B. Best Interest Determination
[¶7] Both parents also challenge the court’s determination that
termination of their parental rights was in the child’s best interest. They
argue that this was an error and abuse of discretion because the child had
voiced a desire to return to their care and that the child’s behavior had
deteriorated while he was in the custody of the Department. The court made
specific findings regarding the child’s misbehavior during his time in the
custody of the Department and noted that the child “has expressed that he
wants to return home to his parents.” Despite these findings, the court
ultimately determined that termination was in the child’s best interest based
on the child’s “age, his . . . needs and the fact that he has been in DHHS custody
for twenty months and needs stability and permanency.” This determination
is supported by the record and was not an abuse of discretion. See In re
Logan M., 2017 ME 23, ¶ 5, 155 A.3d 430.
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The entry is:
Judgment affirmed.
Luann L. Calcagni, Esq., Plymouth, Massachusetts, for appellant father
Bradley P. Sica, Jr., Esq., Christopher S. Berryment, LLC., Mexico, 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
Farmington District Court docket number PC-2016-4
FOR CLERK REFERENCE ONLY