In re Child of Lacy H.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 110Docket: Pen-19-13
Submitted
On Briefs: May 30, 2019
Decided: July 11, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF LACY H.
PER CURIAM
[¶1] Lacy H. appeals from a judgment of the District Court (Bangor,
Jordan, J.) terminating her parental rights to her child.1 She argues that the
intervention of the Governor’s office in the decision of the Department of Health
and Human Services to cancel or delay her trial placement violated her due
process and equal protection rights, and that the court erred and abused its
discretion in determining that she was unfit and that the termination of her
parental rights was in the child’s best interest. We affirm the judgment.
I. BACKGROUND
[¶2] The Department filed a child protection petition and a petition for
an order of preliminary protection in February 2017, soon after the child was
1 The child’s father has not been identified; one man was ruled out as the father through DNA
testing, and the mother testified that she had been raped by an unknown assailant soon before she
became involved with that man. She also told others that the father was frightening and was a
member of a drug cartel.
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born. See 22 M.R.S. §§ 4032, 4034 (2018). The petition alleged that the child
had been born prematurely and had been exposed to marijuana during his
mother’s pregnancy, and that the mother was resisting the directions of
hospital staff and not safely caring for the fragile newborn. The court (Larson,
J.) entered an order of preliminary protection and placed the child in the
custody of the Department of Health and Human Services.
[¶3] In May 2017, the court (Jordan, J.) held a jeopardy hearing that the
mother did not attend. See 22 M.R.S. § 4035(1) (2018). The court entered a
jeopardy order based on neglect or threat of neglect to the child due to the
mother’s substance abuse, active criminal history, untreated mental health
issues, and lack of stable housing or supports. See 22 M.R.S. § 4035 (2018). The
order established a permanency plan of reunification with the mother and
called for the mother to participate in counseling, drug screens, supervised
visits, and other services.
[¶4] After an initial judicial review and permanency planning hearing
held in October 2017, the court ordered the mother to participate in a
diagnostic evaluation in November 2017. The court held another judicial
review and permanency planning hearing the following month, ordering no
change in custody.
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[¶5] The Department petitioned for termination of the mother’s parental
rights in January 2018. The Department alleged that, after ten months, the
mother had relapsed in her substance abuse; she had failed to attend and
participate consistently in counseling, case management, anger management,
and drug screens; and she remained under threat of extradition because of a
lifetime warrant for her arrest in Georgia.
[¶6] In May 2018, while the petition was pending, the Department was
considering an additional effort toward rehabilitation and reunification—a
possible trial placement of the child with the mother. When the mother arrived
for the family team meeting for the team to make final arrangements for a trial
placement, she learned that the Governor’s office had become involved in her
case and that the trial placement would not be happening at that time. This
result was consistent with the caseworker’s position that the trial placement
should not happen for safety reasons, though it conflicted with his supervisor’s
opinion that a trial placement could be attempted. No trial placement was
attempted after that family team meeting.
[¶7] The court held a trial on the termination petition over the course of
three days in November 2018. It then entered a judgment granting the petition
to terminate the mother’s parental rights after reaching findings of fact by clear
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and convincing evidence. 22 M.R.S. § 4055(1)(A)(1)(a), (B)(2)(a), (b)(i)
(2018). The court reached the following findings, which are supported by
competent evidence in the record. See In re A.M., 2012 ME 118, ¶ 29, 55 A.3d
463.
The child was born premature. He was born drug affected due to
the mother’s consistent use of marijuana throughout her
pregnancy. . . . The mother did very poorly as far as engaging in
services and addressing the jeopardy issues for a substantial
portion of the history of this case.
[A doctor] conducted a Court ordered diagnostic evaluation for the
mother. He concluded, and the Court hereby finds, that the
mother’s diagnosis is an Antisocial Personality Disorder. This
diagnosis is very difficult to treat due to the person’s
irresponsibility, the tendency to fabricate, and difficulties being
honest with a clinician. The prognosis for change with such a
diagnosis is poor. The Court finds his report persuasive. The Court
also finds that the mother has done very well, in structured
supervised settings, in parenting her child (with a couple of
exceptions). The mother can learn new cues from the child in that
framework. However, left to her own devices when she would be
on her own, she is likely to exhibit bad judgment in terms of the
people she allows to care for her son, bad judgment in terms of the
people with whom she establishes relationships in terms of their
impact on her son, and her likelihood of having unstable living
arrangements. The Court concludes that she is also likely to place
her own needs and desires ahead of those of her child.
The Court finds that the testimony of other witnesses is consistent
with [the evaluating doctor]’s analysis. The mother told [the
doctor] in one of her sessions, in either December 2017 or January
2018, that she had not used drugs for forty-one (41) months. . . . .
The Court notes that on December 11, 2017, she admitted to other
witnesses that she had relapsed and used Xanax and Oxycontin.
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Numerous incidents were related by unbiased professionals and
others concerning remarks and conduct by the mother, which she
then subsequently denied. Her account of being clean for forty-one
months does not line up with any of the rest of the history she
related regarding her life in Georgia, traveling the country and
living on the streets, and eventually becoming pregnant and
moving to Maine. However, she also told her therapist . . . that she
had relapsed in December of 2017. She told him that she had been
clean and sober for more than three years prior to that relapse. The
Court finds that her accounts are not credible regarding her
maintenance of sobriety.
The Court finds that after getting off to a slow start the mother has
made a good faith effort to correct the underlying problems. The
Court finds, however, that her late start has resulted in an inability
for the Court to conclude at this time that jeopardy has been
alleviated. The Court finds that her judgment regarding unsafe
people is impaired and her ability to care for her child on her own
is also unsafe. The Court finds by clear and convincing evidence
that she is unable to rectify the problems that brought this case
before the Court in a time reasonably calculated to meet the needs
of the child. The Court additionally finds that the best interests of
the child would be to terminate the parental rights of the mother
and free him up for adoption. The above findings are all by clear
and convincing evidence.
The mother timely appealed. See 22 M.R.S. § 4006 (2018); M.R. App. P. 2A,
2B(c)(1).
II. DISCUSSION
[¶8] The mother argues that (A) the court erred in terminating her
parental rights because her rights of due process and equal protection of the
law were violated when the Governor’s office interceded to prevent or delay
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the trial placement of the child with her in May 2018, and (B) the court erred
and abused its discretion in finding parental unfitness and determining that
termination of the mother’s parental rights was in the child’s best interest.
A. Due Process and Equal Protection
[¶9] The mother argues that the interruption of the plan for a trial
placement deprived her of a fundamentally fair process and was discriminatory
as demonstrated by Governor Paul LePage’s public statements concerning
people with gang-related histories entering Maine from other states. At the
termination hearing, the mother argued to the trial court that a trial placement
should have happened in May 2018, but she did not argue that entering a
judgment terminating her parental rights after that placement decision would
violate her rights of due process or equal protection. Because the constitutional
issue has been raised for the first time on appeal, we review the due process
and equal protection issues for obvious error. See In re Child of Kaysean M.,
2018 ME 156, ¶ 8, 197 A.3d 525. Obvious error is error that is “seriously
prejudicial error tending to produce a manifest injustice.” Id. (quotation marks
omitted).
[¶10] The Governor is the head of the Executive Branch of government
in Maine. See Me. Const. art. V, pt. 1, § 1 (“The supreme executive power of this
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State shall be vested in a Governor.”). “The Department of Health and Human
Services is established as a cabinet-level department.” 22-A M.R.S. § 201(1)
(2018). The Department “is under the control and supervision of the
Commissioner of Health and Human Services, who reports directly to the
Governor.” 22-A M.R.S. § 204 (2018). The Department has the obligation to
fulfill “[c]hild and family services responsibilities, including but not limited to
child welfare, children’s behavioral health and early childhood services.”
22-A M.R.S. § 201(2-A)(C)(2) (2018).
[¶11] The involvement of the Governor or the Commissioner in a child
protection matter does not, therefore, violate Maine statutory law or the Maine
Constitution. Thus, the question is not whether the Governor, Commissioner,
or other Executive Branch actors in the Department have been involved in a
case; the question is whether the particular actions taken interfered with the
due process or equal protection rights of a parent.
[¶12] In the matter before us, there is no evidence of precisely what
actions or suggestions the Governor made to the Department concerning the
trial placement. Although the anticipated trial placement did not occur as
scheduled, the decision not to implement a trial placement in May 2018 was
communicated in the context of a family team meeting that, by design, provided
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an opportunity to adjust the trajectory of rehabilitation and reunification
efforts. Throughout the proceedings, the mother was represented by counsel.
See 22 M.R.S. § 4005(2) (2018). The mother did not seek a judicial review, and
the matter proceeded to trial on the termination petition in November 2018.
[¶13] At the termination hearing, the court was presented with evidence
that the caseworker believed that a trial placement would not have been safe
for the child as of May 2018, that visits in less restrictive environments had
proved detrimental to the child, and that the diagnostic evaluation, which had
been completed before the trial placement was scheduled to begin,
underscored the safety concerns of the caseworker. The record discloses that
there was a disagreement within the Department about whether to attempt a
trial placement, and a decision was made by the Department, with undefined
input from the Governor, not to attempt the trial placement in May 2018.
[¶14] The evidence of a disagreement among the Executive Branch
decisionmakers did not require the court to conclude that the Governor or any
other Executive Branch actor either (1) acted arbitrarily2 or in a way that
2Substantive due process provides “protection of the individual against arbitrary action of
government.” LeGrand v. York Cty. Judge of Prob., 2017 ME 167, ¶ 38, 168 A.3d 783 (quotation marks
omitted). The right to substantive due process is violated, however, only “when the government
engages in conduct that shocks the conscience and violates the decencies of civilized conduct.” Id.(quotation marks omitted). “In the context of executive action, only the most egregious official
conduct can be said to be arbitrary in the constitutional sense”; for instance, conduct that is “intended
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deprived the mother of fundamental fairness,3 see U.S. Const. amend. XIV, § 1;
Me. Const. art. I, § 6-A; In re Children of Bethmarie R., 2018 ME 96, ¶ 23, 189
A.3d 252; LeGrand v. York Cty. Judge of Prob., 2017 ME 167, ¶ 38, 168 A.3d 783;
In re Kristy Y., 2000 ME 98, ¶ 6, 752 A.2d 166, or (2) failed to treat similarly
situated persons alike in violation of the mother’s right to equal protection of
the laws, see U.S. Const. amend. XIV, § 1; Me. Const. art. I, § 6-A; Adoption of
Riahleigh M., 2019 ME 24, ¶ 28, 202 A.3d 1174. No public statements from the
Governor were presented to the trial court, and the mother has failed to
demonstrate any constitutional violation.
[¶15] Based on the evidence presented at the termination hearing, held
six months after the decision on the trial placement, the court found that the
mother, although having some success while in a supportive, supervised
environment, was not likely to be able to provide safe care for her child on her
to injure in some way unjustifiable by any government interest would likely support a substantive
due process claim.” Id. (quotation marks omitted).
3 Procedural due process “requires fundamental fairness, which involves consideration of three
factors to assess whether the State has violated an individual’s right to due process:
First, the private interest that will be affected by the official action; second, the risk of
an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and administrative
burdens that the additional or substitute procedural requirement would entail.”
In re Kristy Y., 2000 ME 98, ¶ 6, 752 A.2d 166 (quoting Balian v. Bd. of Licensure in Medicine, 1999 ME
8, ¶ 10, 722 A.2d 364).
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own. The court found that she was not—even with the additional services
afforded up to the time of trial—able to protect the child from the jeopardy
identified by the court a year and a half earlier. On these facts, the court did not
commit obvious error—or any error of fact or law, whether constitutional or
statutory in dimension—when it entered its judgment seven months after the
Department’s decision on the trial placement.
B. Finding of Unfitness and Determination of Best Interest
[¶16] Based on the court’s findings of fact, which are supported by the
evidentiary record, the court did not err in its ultimate finding that, despite her
recent efforts, the mother remains unable to protect the child from jeopardy
and those circumstances are unlikely to change within a time that is reasonably
calculated to meet the child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i); In re
Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195. The court was not bound to
believe the mother’s testimony in whole or in part, and it explicitly found her
not to be credible, especially regarding her drug use. See In re Children of
Christine A., 2019 ME 57, ¶ 9, 207 A.3d 186. Nor did the court err or abuse its
discretion in determining that the termination of the mother’s parental rights
was in the best interest of the child, who had by then spent nearly two years in
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foster care. See 22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H., 2005 ME 123,
¶¶ 16-17, 889 A.2d 297.
The entry is:
Judgment affirmed.
Ezra A.R. Willey, Esq., Willey Law Offices, Bangor, for appellant mother
Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services
Bangor District Court docket number PC-2017-20
FOR CLERK REFERENCE ONLY