In re Child of Olivia F.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 149
Docket: And-19-128
Submitted
On Briefs: September 10, 2019
Decided: October 1, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
IN RE CHILD OF OLIVIA F.
PER CURIAM
[¶1] Olivia F. appeals from a judgment of the District Court (Lewiston,
Martin, J.) terminating her parental rights to her child pursuant to 22 M.R.S.
§ 4055(1)(A)(1)(a), (B)(2)(a), and (B)(2)(b)(i)-(iv) (2018).1 She argues that
the court erred as a matter of law in concluding that her failure to appear on
the second day of the two-day termination hearing constituted “abandonment,”
and she asserts that there was not clear and convincing evidence to support the
court’s finding that she had the “intent to forego parental duties.” 22 M.R.S.
§ 4002(1-A) (2018). The mother further argues that the court abused its
discretion in determining that termination of her parental rights is in the best
interest of the child because, in making that determination, the court went
1 The child’s father has not been identified, and his parental rights were terminated after he did
not respond to notice via newspaper publication of the child protection proceedings. That judgment,
entered after the judgment now on appeal, is not at issue here.
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beyond the scope of a termination proceeding and speculated about who would
adopt the child post-termination. We affirm the judgment.
I. BACKGROUND
[¶2] The Department petitioned for a child protection order and a
preliminary protection order for the child in October 2017, when the child was
two years old. One year later, following the entry of a preliminary protection
order and a jeopardy order, the Department filed a petition to terminate the
mother’s parental rights to the child. See 22 M.R.S. § 4052 (2018). The court
held a consolidated hearing on that petition and on the issue of placement on
January 25 and February 25, 2019.2 The mother was present at the first day of
the hearing, but at the outset of the second day, the mother’s attorney stated on
the record that although her client had “been in the courthouse this morning,”
she was “not in the courtroom,” had “chosen not to come in,” and may in fact
have “left the courthouse.” The mother was paged to the courtroom, and the
court recessed while two Department caseworkers tried to locate her. The
parties, other than the mother, and counsel returned to the courtroom, and the
2In January 2018, the court (Beliveau, J.) entered an order for an expedited decision on placement
of the child with his maternal grandfather pursuant to the Interstate Compact on the Placement of
Children. See 22 M.R.S. §§ 4191-4247 (2018). By January 25, 2019, the first day of the termination
hearing, the suitability of that placement had not yet been decided. The court issued a written order
scheduling a second day of hearing to allow the parties to present evidence as to the issue of
placement.
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mother’s attorney reported on the record that she had reached the mother by
telephone and learned that the mother “is not present in the courthouse, and
does not plan to return.” The court proceeded with the hearing, taking
additional evidence, including evidence related to placement. Before us, the
mother does not dispute these facts.
[¶3] The court entered a judgment in March 2019 granting the petition
to terminate the mother’s parental rights after finding by clear and convincing
evidence all four statutory grounds of parental unfitness and that termination
is in the best interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(iv)
(2018). The court found as follows:
[The mother] is 19 years-old and suffers from chronic
substance use. Evidence reveals that [the mother’s] drug use is
longstanding and significant. Much of it stems from her own
trauma suffered as a young child. Nonetheless, her drug abuse and
chaotic lifestyle has landed her in jail on several occasions
throughout the reunification process. In fact, initially the
Department’s obligation to reunify with [the mother] was
suspended until [the mother] was released from jail. Over the
course of the reunification process [the mother] has done little to
alleviate jeopardy.
The Jeopardy Order . . . required [the mother] to participate
actively and consistently in services; sign all necessary releases;
not to use or possess alcohol, illicit drugs, or prescription drugs
except when used as prescribed by a qualified health professional;
subject to random drug and alcohol testing; maintain safe and
stable housing free from domestic violence, drugs and alcohol; and
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refrain from any/all criminal involvements and abide by the terms
of probation conditions, if any.
Although there is evidence that [the mother] did well in
services between July 2018 and September 2018 when she
attended Crossroads (substance abuse recovery program), she has
failed to successfully complete the reunification process including
Crossroads aftercare plan. For example, despite her successes
during these 2 ½ months, she’s had no contact with [the child] since
September 2018; was incarcerated on three different occasions;
her whereabouts were unknown during the months of November
and December 2018 and she was arrested again on January 2, 2019
with a release date of January 31, 2019; was not consistent in
individual or substance abuse counseling; did not follow
recommendations of engaging in the Maine Enhancement
Parenting Program (MEPP) and/or the Family Treatment Drug
Court (FTDC); and did not complete the CODE evaluation. There
simply has been no substantial progress over the last 16 months on
[the mother’s] part. [The mother] has failed to make a good faith
effort to rehabilitate and reunify with [the child].
. . . . The Court finds that [the mother] has a chronic substance
use disorder that has not been alleviated and has prevented her
from taking responsibility for her child. In fact, [the mother] tested
positive for cocaine just a day prior to the second day of trial in this
case—just one of the reasons she chose not to attend the second
day of the termination hearing.
The Court further finds that [the mother] abandoned [the
child] by failing to attend the second day of the termination trial.
22 MRS § 4002(1-A)(E) and (F); see also, 22 MRS
[§ 4055(1)(B)(2)(b)(iii)]. Such a refusal to participate in the
termination proceeding indicates a strong “intent to forego
parental duties.” Id. § 4002(1-A)(F); see e.g., In re Child of Kaysean
M., 2018 ME 156, 197 A.3d 525 (Me. 2018).
The Court is tasked in determining whether [the mother] is
willing or able to protect [the child] from jeopardy, or, will be able
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to take responsibility for [the child] within a time reasonably
calculated to meet [the child]’s needs, and she simply cannot. . . .
This case has been pending since October 19, 2017, when [the
child] was 2 ½ years old, for a period of over 16 months. Each
month is a long time in the life of a child this age. With no certain
timeline in sight it is clear that [the mother] cannot take
responsibility for [the child] within a time reasonably calculated to
meet the needs of this young boy.
....
[The child] is a few months away from turning 4 years-old.
He has been placed with the maternal great-grandmother . . . since
the onset of this case. There is no question that [she] has the ability
to provide a safe home for [the child], which she has done for the
last 16 months. There is also ample evidence to support a close
emotional bond between [the great-grandmother] and [the child].
[She] has also shared a willingness and ability to make an informed,
long-term commitment to [the child]. By all accounts, [she] and her
husband have provided [the child] with exemplary care and
support for the last 16 months.
The GAL testified that it would not be in [the child]’s best
interest to keep open the continued possibility of change, that he
needs permanency, and that termination of parental rights is in
[the child]’s best interest. The GAL recommends termination of
[the mother]’s parental rights and adoption as the permanency
plan. Based on the evidence presented, the Court finds that it is in
[the child]’s best interest to terminate [the mother’s] parental
rights and proceed with adoption.
(Footnotes omitted.) At the end of the judgment, the court ordered a
permanency plan of adoption.
[¶4] The mother timely appealed the judgment. See 22 M.R.S. § 4006
(2018); M.R. App. P. 2B(c)(1).
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II. DISCUSSION
[¶5] We review the court’s findings of fact for clear error and the court’s
ultimate determination that termination of the parental rights is in the child’s
best interest for an abuse of discretion. In re R.M., 2015 ME 38, ¶ 7, 114 A.3d
212. We will “affirm an order terminating parental rights when a review of the
entire record demonstrates that the trial court rationally could have found clear
and convincing evidence in that record to support the necessary factual
findings as to the bases for termination.” Id. (quotation marks omitted).
A. The Mother’s Unfitness
[¶6] A court need find only one of four statutory grounds of parental
unfitness to find that a parent is unfit to parent his or her child. 22 M.R.S.
§ 4055(1)(B)(2)(b). “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.” In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260. Here, the
court found the mother unfit based on all four grounds of unfitness, see
22 M.R.S. § 4055(1)(B)(2)(b), and the mother concedes that the evidence is
sufficient to support at least one of those grounds. We agree, and we affirm the
court’s finding of at least one ground of parental unfitness.
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[¶7] The mother, nevertheless, asks us to review in particular the court’s
finding as to one ground of unfitness—that she abandoned the child by failing
to attend the second day of the hearing—because that finding could be used
against her in any future child protective proceedings. See 22 M.R.S.
§ 4002(1-B)(A)(1) (2018). A parent’s failure to respond to a notice of a child
protection proceeding, including the parent’s failure to attend any portion of
the termination hearing, may be taken by the court as evidence of the parent’s
intent to forego his or her parental duties. See 22 M.R.S. §§ 4002(1-A)(E), (3),
4055(1)(B)(2)(b)(iii) (2018); In re Children of Anthony N., 2019 ME 64, ¶¶ 6,
10, 207 A.3d 1191; In re Child of Kaysean M., 2018 ME 156, ¶¶ 3-4, 6-7, 197 A.3d
525; In re Child of Tanya C., 2018 ME 153, ¶¶ 1, 12, 14, 198 A.3d 777. A court
may find that the parent did not abandon a child, however, if the parent shows
good cause for the absence. See In re Child of Kaysean M., 2018 ME 156, ¶ 7, 197
A.3d 525; In re A.M., 2012 ME 118, ¶ 19, 55 A.3d 463; In re Robert S., 2009 ME
18, ¶ 16 n.1, 966 A.2d 894.
[¶8] The mother failed to attend the second day of the hearing, and the
court did not find that she had shown good cause for her absence. Accordingly,
the court did not err in finding that she had the intent to forego her parental
duties and had therefore abandoned the child. See 22 M.R.S. §§ 4002(1-A)(E),
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(3), 4055(1)(B)(2)(b)(iii). Because the court did not err in finding
abandonment, we need not consider whether, if the finding of abandonment
had not been supported by the evidence, such a finding would be vacated—
despite the presence of one or more other, supported, findings of unfitness—
because of possible future consequences in other child protection matters. See
id. § 4002(1-B)(A)(1).
B. The Best Interest of the Child
[¶9] The mother argues that the court erred in speculating that the child
would be placed with the great-grandmother while simultaneously
determining that termination of the mother’s parental rights is in the best
interest of the child. Where a court consolidates a hearing on a petition for
termination of parental rights with a hearing on permanency planning, a court
may determine both whether termination of an unfit parent’s parental rights is
in the best interest of the child and, if so, what the permanency plan for the child
will be given the termination of parental rights. See In re Children of Nicole M.,
2018 ME 75, ¶ 15, 187 A.3d 1; In re Thomas H., 2005 ME 123, ¶ 28, 889 A.2d
297. The ultimate “question of who is the best person to adopt the child” is,
however, “beyond the scope of a termination proceeding because that question
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must be addressed in a separate adoption action.” In re Children of Nicole M.,
2018 ME 75, ¶ 17, 187 A.3d 1; see 18-C M.R.S. §§ 9-301 to 9-315 (2018).3
[¶10] The court here acted within the scope of its authority because,
although the court noted that the great-grandmother has “shared a willingness
and ability to make an informed, long-term commitment to” the child and that
the plan for the child is to “proceed with adoption,” “it did not declare that to be
the inevitable result of its termination judgment,” In re Children of Bethmarie R.,
2019 ME 59, ¶ 8, 207 A.3d 197, or state a permanency plan of adoption by the
child’s great grandmother. The court did not err or abuse its discretion in
determining that termination of the mother’s parental rights was in the child’s
best interest.
The entry is:
Judgment affirmed.
Rory A. McNamara, Esq., Drake Law, LLC, Berwick, 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
Lewiston District Court docket number PC-2017-87
FOR CLERK REFERENCE ONLY
3 The Probate Code was amended and recodified effective September 1, 2019, replacing former
Title 18-A with new Title 18-C. See P.L. 2019, ch. 417; P.L. 2017, ch. 402.