Adoption of Isabelle T.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 220Docket: Pen-17-237
Argued: October 11, 2017
Decided: November 30, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
ADOPTION OF ISABELLE T. et al.
PER CURIAM
[¶1] The father of Isabelle and Abigail T. appeals from a judgment of the
Penobscot County Probate Court (M. Bradford, J.) terminating his parental
rights in anticipation of an adoption pursuant to 18-A M.R.S. §9-204(b)
(2016); 22 M.R.S. §4055(1)(A)(2), (B)(2)(a), (B)(2)(b)(i), (B)(2)(b)(iii), and
(1-A)(B)(8) (2016). He challenges the sufficiency of the evidence to support
the judgment, including the court’s findings of parental unfitness and that
termination of his parental rights is in his children’s best interests. See
18-A M.R.S. § 9-204(b); 22 M.R.S. § 4055(1)(B)(2), (1-A)(B)(8).
[¶2] Because the record, in a case where fundamental constitutional
rights are at issue, does not include sufficient evidence regarding parental
unfitness, the best interests of the children, and the history of the prospective
adopting parent, because the court improperly excluded the father’s
testimony regarding his future plans for reunification with his children, and
2
because the court erred and abused its discretion in concluding that
termination of the father’s parental rights is in the children’s best interests,
we vacate the judgment.
I. LEGAL STANDARDS FOR TERMINATING PARENTAL
RIGHTS INCIDENT TO ADOPTION
[¶3] Examination of the issues in this appeal must begin with a review
of the substantive and procedural requirements for a termination of parental
rights incident to an adoption proceeding. When a private individual invokes
court action to terminate parental rights or otherwise significantly limit a
parent’s rights to parent a child, the court engages in state action that
implicates the constitutionally protected liberty interest a parent has in
parenting his or her child free from state interference.
A. Constitutional Requirements
[¶4] “The liberty interest . . . of parents in the care, custody, and control
of their children--is perhaps the oldest of the fundamental liberty interests
. . . .” Troxel v. Granville, 530 U.S. 57, 65 (2000). We have consistently
recognized that a biological parent has a fundamental liberty interest in
parenting his or her child. Adoption of Tobias D., 2012 ME 45, ¶ 9,
40 A.3d 990. The Due Process Clause of the Fourteenth Amendment protects
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this liberty interest from unnecessary state interference.1 U.S. Const. amend.
XIV, § 1; Me. Const. art. I, § 6-A; see Troxel, 530 U.S. 57, 66 (2000) (“[I]t cannot
now be doubted that the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.”); Santosky v. Kramer,
455 U.S. 745, 753 (1982) (to interfere with a parent’s fundamental right to
parent, the state must provide fundamentally fair procedures).
[¶5] These requirements apply to actions in state courts, including the
probate courts. See Guardianship of Chamberlain, 2015 ME 76, ¶ 23,
118 A.3d 229 (extensively discussing application of proper standards to
protect fundamental parental rights in probate court proceedings affecting
parental rights—there in a guardianship proceeding). See also In re H.C.,
2013 ME 97, ¶ 11, 82 A.3d 80; In re Randy Scott B., 511 A.2d 450, 453
(Me. 1986).
[¶6] The fundamental right to parent one’s child is not, however,
immune from government interference. See Pitts v. Moore, 2014 ME 59, ¶ 12,
90 A.3d 1169 (action to establish de facto parent status); Rideout v. Riendeau,
1 The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
Article 1, § 6-A of the Maine Constitution similarly provides that “No person shall be deprived of life
liberty or property without due process of law . . . .”
4
2000 ME 198, ¶ 19, 761 A.2d 291 (action to establish grandparents’ rights). A
state may interfere with a parent’s fundamental right to parent a child when
the court makes a finding, by clear and convincing evidence, that the parent is
unfit and the child’s best interest will be served by state intervention to avoid
harm to the child. In re Cody T., 2009 ME 95, ¶ 25, 979 A.2d 81; see In re A.M.,
2012 ME 118, ¶ 16, 55 A.3d 463; In re Robert S., 2009 ME 18, ¶¶ 13-15,
966 A.2d 894.
[¶7] “When the State does interfere with the fundamental right to
parent, we must evaluate that interference with strict scrutiny—the highest
level of scrutiny—which requires that the State’s action be narrowly tailored
to serve a compelling state interest.” Pitts, 2014 ME 59, ¶ 12, 90 A.3d 1169.
Pursuant to this standard, only the most exceptional circumstances or risks to
a child’s welfare allow the state to intrude upon a parent’s fundamental right
to the care and control of his or her child. See id.; Rideout, 2000 ME 198, ¶ 24,
761 A.2d 291.
B. Adoption and Child Protection Statutes
[¶8] Section 9-204(b) of the Adoption Act, 18-A M.R.S. §§ 9-101 to
9-315 (2016), which governs termination of parental rights in adoption
proceedings, incorporates by reference 22 M.R.S. §§ 4050–4059 (2016), which
5
governs termination of parental rights in child protection proceedings.
18-A M.R.S. § 9-204(b) (2016). Thus, the same statutory protections and
requirements that apply to state-initiated proceedings to terminate parental
rights also apply to privately initiated proceedings to terminate parental
rights. See Adoption of Lily T., 2010 ME 58, ¶ 20, 997 A.2d 722; In re Jacob B.,
2008 ME 168, ¶ 13, 959 A.2d 734.
[¶9] The Adoption Act provides that “[a] petition for termination of
parental rights may be brought in Probate Court in which an adoption petition
is properly filed as part of that adoption petition . . . .” 18-A M.R.S. § 9-204(a).2
In practice, this means that the termination of parental rights occurs prior to
the adoption in order to enable the child or children to be legally available for
adoption. See Adoption of Hali D., 2009 ME 70, ¶ 1, 974 A.2d 916. This is
consistent with practice in Title 22 proceedings for the termination of
parental rights where the court does not begin to consider post-termination
placements until after termination of parental rights has been ordered. See
In re Kenneth S., 2017 ME 45, ¶ 6, 157 A.3d 244.
[¶10] Thus, theoretically, before the trial court considers the
background and the qualities of a prospective adopting parent, the court could
2 Since July 29, 2016, Maine’s District Courts have exclusive jurisdiction over adoption actions
when there is a case pending in the District Court involving the child or children who are the
subject of the adoption. 4 M.R.S. § 152(5-A) (2016); 18-A M.R.S. § 9-103 (2016).
6
terminate the parental rights of a biological parent. However, in an adoption
proceeding, unlike a Title 22 proceeding to terminate parental rights, the
prospective adoptive parent is identified. In fact, his or her interest in
adoption is the reason the action was initiated. Because the prospective
adoptive parent is identified in a Title 18-A private adoption proceeding, the
background and qualities of the prospective adoptive parent are essential
factors to consider in deciding whether termination of parental rights leading
to adoption by that individual is in the best interests of the child or children.3
[¶11] There is no state assertion of parental unfitness in private
termination/adoption proceedings, and the Adoption Act provides fewer
protections for parents than those provided in Title 22 child protection
proceedings. Individuals facing the loss of their rights in Title 22 termination
of parental rights proceedings are nearly always provided opportunities for
rehabilitation and reunification before a court even considers the termination
of their parental rights. See In re Heather C., 2000 ME 99, ¶ 4, 751 A.2d 448(“In the ordinary course, as soon as the child has entered foster care as a
result of a court order, the [State] is required to begin providing rehabilitation
services to the parents.”); In re Thomas D., 2004 ME 104, ¶ 26, 854 A.2d 1953
We anticipate that this will also be necessary in so-called single parent adoptions. See
18-A M.R.S. § 9-301 (2016); see also Adoption of Liam O., 2016 ME 66, ¶ 11, 138 A.3d 485.
7
(“[T]he rehabilitation and reunification plan is the centerpiece of child
protective proceedings following a jeopardy determination . . . [and] seek[s] to
rehabilitate the conditions that resulted in jeopardy to the child . . . .”).
[¶12] The Adoption Act, on the other hand, does not require—or even
authorize—the court to consider rehabilitation or reunification efforts prior
to terminating parental rights. See Adoption of L.E., 2012 ME 127, ¶ 13,
56 A.3d 1234; compare 22 M.R.S. § 4041 (2016) (stating the obligations of the
Department of Health and Human Services to pursue rehabilitation and
reunification efforts in child protection matters) with 18-A M.R.S. § 9-204(b)
(incorporating by reference 22 M.R.S. §§ 4050-4059 and not referencing
22 M.R.S. § 4041). A termination action litigated as part of a “private
adoption,” where the adoption petitioner—often one parent—seeks to
terminate the parental rights of a nonconsenting parent to facilitate an
adoption, requires only that the petitioner prove that the grounds for
termination have been met in order for the court to permanently terminate
that parent’s legal rights to his or her child. See Adoption of L.E., 2012 ME 127,
¶¶ 12-13, 56 A.3d 1234.
[¶13] In a Title 22 child protection proceeding, the question of
termination is addressed only after a court has decided that the parent’s
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unfitness is so dire that the children must be removed from his or her care.
And, even in those circumstances, the parent is nonetheless usually offered
multiple opportunities to better his or her parenting abilities and reunify with
the children through court-ordered and state-provided services.
[¶14] In the private adoption context, as is the case here, where there
has been no previous determination of unfitness, a parent can have his or her
parental rights terminated without any opportunities for rehabilitation or
reunification. Thus, application of the Adoption Act, as written, poses a
substantial risk to fundamental parental rights that the court must respect by
rigorous application of quality of evidence standards and procedural
protections as we have articulated in opinions such as Guardianship of
Chamberlain, 2015 ME 76, 118 A.3d 229.4
[¶15] In the matter before us, we must consider whether the
circumstances leading to this private adoption and termination proceeding
4 The Adoption Act has been criticized for lacking procedural processes that fully protect a
parent’s fundamental parental rights. See Deirdre M. Smith, From Orphans to Families in Crisis:
Parental Rights Matters in Maine Probate Courts, 68 Me. L. Rev. 45, 73-75 (2016) (opining that
adoption and termination proceedings brought pursuant to the Adoption Act should require
reunification efforts as a prerequisite for terminating parental rights, as it “would impose an
affirmative duty on the courts overseeing such [termination proceedings] to ensure that they
provide parents a fair opportunity to address their fitness and relationship with their children
before a court may permanently dissolve those legal bonds.”).
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are exceptional enough to justify the termination of parental rights—the most
severe interference with the fundamental right to parent.
II. CASE HISTORY
[¶16] This appeal involves a private adoption proceeding and petition
to terminate the father’s parental rights brought by the mother and stepfather
of Isabelle and Abigail T. They seek to terminate the parental rights of the
children’s biological father so that the children can be adopted by their
stepfather.
[¶17] On May 4, 2016, the mother and stepfather filed a petition to
adopt Isabelle and Abigail T. in the Penobscot County Probate Court. As part
of these adoption proceedings, on August, 25, 2016, the mother and stepfather
filed a petition to terminate the parental rights of the children’s father.
[¶18] A one-day hearing was held on February 28, 2017. During the
hearing, the father testified that he began his relationship with the mother in
2006. They married in 2009, and the mother was soon pregnant with their
first child, Isabelle. Throughout the relationship there was tension as a result
of the father’s dishonesty about jobs, finances, and education, and concerns
about unfaithfulness. Their second child, Abigail, was born in 2012. At that
point, their marriage was “on the rocks.”
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[¶19] The mother and the father testified that in January 2014, while
they were in the process of moving, the family stayed in the home of a family
friend. During the family’s stay, the father sexually abused the fifteen-year-old
daughter of their family friend. He was convicted of felony sexual abuse of a
minor and incarcerated. Thereafter, the mother obtained a protection from
abuse order against the father on behalf of herself and the children. As a
result, the father has not seen his daughters in person since his incarceration.
The mother divorced the father in February 2015.
[¶20] The father was released from incarceration in March 2015. Both
the mother and the father testified that, after he was released, the father had
weekly phone contact with Isabelle and Abigail for a period of time. In
July 2015, the father was re-incarcerated after violating his probation. He is
now expected to be released in April 2018.
[¶21] The father testified that he has, to the extent he has been able,
attempted to get help to address his problems and has expressed his
commitment to maintain a relationship with Isabelle and Abigail. His efforts
to maintain a relationship with his daughters have been complicated by the
protection from abuse order and by conditions of probation that limit contact
with his children. When the father inquired about having contact with his
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children, he was told by the director of victim services at the prison where he
is currently incarcerated that he “cannot have indirect or direct contact with
[his] children.”
[¶22] Both the father and the mother testified that throughout the
father’s incarceration the children have had regular contact with the father’s
parents. The mother acknowledged that, because her parents are deceased,
the father’s parents are the only grandparents the children will ever have.5
The grandparents see the girls as often as they are able, given travel distances
and the children’s school schedules. The grandfather testified that he and his
wife are concerned that their “rights as grandparents [would] be diminished”
if the father’s parental rights were terminated.
[¶23] The stepfather testified that he has three children from prior
relationships: boys ages ten, ten, and eight as of the hearing date. The
stepfather testified that his parental rights to two of his children, one
ten-year-old and the eight-year-old, have previously been terminated. The
stepfather further testified that one of the reasons that his parental rights
were terminated was his significant alcohol and drug abuse problem.
5 The stepfather, who is the prospective adoptive parent, testified that his parents are living,
but that the girls “will never meet my parents.” His father is in prison in Kentucky, and his mother
was recently released from prison. The record is silent regarding the reasons his parents went to
prison.
12
[¶24] In 2009, near the time when his eight-year-old son would have
been born, the stepfather was charged with criminal mischief. After that
charge, the stepfather testified, he turned his life around, became sober, and is
now regularly employed. At some time in this period, the stepfather moved
from Kentucky to Maine. He met Isabelle and Abigail’s mother in 2014 and
moved in with her and the children in 2015. The mother testified that she met
the stepfather in May 2014, and that they were married in January 2016.
Isabelle and Abigail call him “Daddy,” and he is a large part of their everyday
lives.
[¶25] During the mother’s and stepfather’s direct examinations, they
both testified regarding their future plans for Isabelle and Abigail. When the
father was asked about his plans to reestablish a relationship with his
children upon his release from prison, the mother objected on the ground that
the question called for speculation. The court sustained the objection and
excluded the question.
[¶26] On April 4, 2017, the court issued an order terminating the
father’s parental rights. In the order, the court found:
[The father’s] failure to make any attempt to establish a
family relationship with the child, or contribute in any way
toward the children’s financial support, constitutes clear and
convincing evidence that the [father] has been unwilling or unable
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to take responsibility for the children within a time reasonably
calculated to meet the children’s needs.
The court also concluded that termination of the father’s parental rights,
“thereby freeing the children for adoption by the petitioners, is in the
children’s best interests.”
[¶27] In response to a motion by the father, the court subsequently
issued findings of fact and conclusions of law supporting its termination
decision, as required by M.R. Civ. P. 52(a). See also 22 M.R.S. § 4055(1)(B)(2).
The court supported its termination order with the following findings of fact:
[The father] sexually assaulted the 15-year-old daughter of
the close friend he was staying with and has been convicted of
felony sexual abuse of a minor.
The minor victim was a child who was a member of a house
frequented by [the father].
[The father] is an incarcerated parent who, due to his
parole[6] violation, will not be released until April 2018 at the
earliest.
Based upon [the father’s] conviction and subsequent parole
violation, as well as [his] failure to provide any support for or
contact with his children, he is unwilling or unable to take
responsibility for his children.
[The father] has failed to communicate meaningfully with
the child for a period of at least six months (namely almost four
years).
6 The record reflects that the father was on probation, not parole.
14
[¶28] The court’s findings also referenced 22 M.R.S. § 4055 and noted
that statute’s requirement for findings by clear and convincing evidence
addressing parental unfitness and the best interest of the child, but the court
did not state specific findings on those issues.
[¶29] The father timely appealed the court’s order terminating his
parental rights.
III. LEGAL ANALYSIS
[¶30] We review factual findings that termination of parental rights
was in the children’s best interests for clear error and the ultimate decision to
terminate parental rights for an abuse of discretion. In re M.B., 2013 ME 46,
¶ 37, 65 A.3d 1260; In re Alivia B., 2010 ME 112, ¶ 12, 8 A.3d 625. We review
factual findings that a parent is unfit or otherwise incapable of parenting for
clear error and will determine that a finding is unsupported only if there is no
competent evidence in the record to support it; if the fact-finder clearly
misapprehended the meaning of the evidence; or if the finding is so contrary
to the credible evidence that it does not represent the truth of the case.
Guardianship of Hailey, 2016 ME 80, ¶15, 140 A.3d 478. In addition, when
fundamental rights are at stake, findings may be determined to be insufficient
or the court may be found to have erred in the exercise of its discretion if
15
important issues that arise during trial are not addressed in the record or in
the court’s findings. See Sargent v. Braun, 2006 ME 96, ¶¶ 9-11, 902 A.2d 839(vacating the trial court’s judgment denying a motion to modify parental
rights, where the court failed to fully evaluate or provide findings relative to
substantial issues affecting the child’s best interest, including the mother’s
relocation and her abusive relationship).
[¶31] In this case, where the prospective adopting parent had a
substantial history of substance abuse and had his parental rights terminated
as to two of his three biological children, it is concerning that neither of the
parties provided details of that history to the court. When a termination is
being sought in order to facilitate an adoption, factual information about the
prospective adoptive parent—the good and the bad—is vital to the
determination of whether termination of a biological parent’s parental rights
is in the children’s best interests.
[¶32] Before the state, acting through the courts, can interfere with the
fundamental right to parent by terminating parental rights, due process
requires that findings of unfitness be made by clear and convincing evidence.
See Pitts, 2014 ME 59, ¶ 12, 90 A.3d 1169. Pursuant to the Adoption Act,
which incorporates by reference 22 M.R.S. § 4055, the court may order
16
termination of parental rights, absent parental consent, only if the court finds,
by clear and convincing evidence, that (1) the parent (i) is unable to protect
the child from jeopardy, (ii) is unwilling or unable to take responsibility for
the child within a time which is reasonably calculated to meet the child’s
needs, or (iii) has abandoned the child; and (2) with unfitness proved,
termination of parental rights is in the best interest of the child. See
18-A M.R.S. § 9-204(b); 22 M.R.S. § 4055(1)(A), (1)(B); see also In re Scott S.,
2001 ME 114, ¶¶ 17-21, 775 A.2d 1144 (holding that only if parental unfitness
is proved “does the court consider the children’s best interests”). “[A]lthough
the best interest factor alone may prevent the termination of parental rights, it
will never, standing alone, be a basis for a termination.” Id. ¶ 21.
[¶33] We review the sufficiency of the evidence to determine “whether
the court could have reasonably been persuaded on the basis of the evidence
in the record that the required factual findings were highly probable.”
In re Thomas H., 2005 ME 123, ¶ 18, 889 A.2d 297. The father argues that
there was insufficient evidence supporting the court’s findings of parental
unfitness and its ultimate decision to terminate the father’s parental rights as
being in the best interests of his children.
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A. Issues Related to the Father’s Fitness to Parent
1. Father’s Imprisonment
[¶34] A court may not terminate parental rights based solely on a
parent’s incarceration. See In re Alijah K., 2016 ME 137, ¶¶ 13-16,
147 A.3d 1159. “We agree that a parent’s incarceration is but one factor to be
considered by a court faced with a termination petition, [although] it is a
factor—a factor that may, in some cases, lead a court to terminate that
parent’s rights.” Id. Respecting the strong policies in favor of permanency, a
court must consider whether the length of a parent’s incarceration will
prevent the parent from protecting the child from jeopardy or taking
responsibility for the child within a time reasonably calculated to meet the
child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii); In re Alijah K.,
2016 ME 137, ¶ 14, 147 A.3d 1159.
[¶35] Here, the father is currently in prison. He is expected to be
released in April 2018, approximately one year after the termination hearing
was held. He has had no opportunity to receive rehabilitative services, and, as
noted earlier, he has been prohibited from having contact with his children.
Given all of the circumstances of this case, we cannot affirm the conclusion
that, as the court framed the issue, the fact of his incarceration and lack of
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contact with the children will make the father incapable of engaging in
parenting of the children after his release.
[¶36] In the private adoption setting, the permanency concerns that are
typically present in state-initiated termination proceedings are not at issue.
Here, the children are in a permanent living situation with their mother and
stepfather, which, as all the parties testified, is not going to change regardless
of the outcome of the termination and adoption processes.
2. Protection from Abuse Order
[¶37] “[A] parent’s prohibition from contact with a child pursuant to a
protection from abuse order or other court order, should not, standing alone,
constitute abandonment.” Adoption of Lily T., 2010 ME 58, ¶ 21, 997 A.2d 722.
Parents subject to protection from abuse orders are obligated to make even
greater efforts to foster relationships with their children using the means
available to them. See id.; see also Adoption of T.D., 2014 ME 36, ¶ 13,
87 A.3d 726.
[¶38] Here, the father has been subject to a protection from abuse
order, and also, apparently, conditions of incarceration or probation, limiting
his contact with his children. Despite the order in place, the father has made
efforts to maintain contact with his children. During his first prison sentence,
19
he sent letters to his children. After being released, he had weekly phone
contact with the children before returning to prison after violating his
probation. Upon his re-incarceration, he testified that he sought to include his
children in a Christmas gift exchange program and reached out to prison
officials to see about contacting his children, only to be told he was not
allowed to have direct or indirect contact with them.
[¶39] These actions and the father’s own testimony demonstrate his
desire and effort to maintain a relationship with his children. Despite all of
the barriers in place preventing his contact with the children—the
reasonableness of which we do not question here—the record reflects his
efforts to maintain a parental relationship with his children. On this record,
there is not sufficient evidence supporting the findings of parental unfitness,
to the standard of clear and convincing evidence, to justify termination of the
father’s parental rights.
B. Issues Related to the Ultimate Determination that Termination of the
Father’s Parental Rights is in the Best Interests of the Children
1. The Court’s Exclusion of Testimony Regarding the Father’s Plans
for Re-establishing Contact with His Children
[¶40] The father argues that the court erred and abused its discretion
by sustaining the objection to questioning him regarding his plans to
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re-establish a relationship with his children once he is out of prison. The trial
court reasoned that the father’s testimony concerning his plans would require
him to speculate and that it was therefore inadmissible.
[¶41] We review the trial court’s determination that the necessary
factual foundation to admit evidence has or has not been established for clear
error, and its ultimate determination to admit or exclude the evidence for an
abuse of discretion. Levesque v. Cent. Me. Med. Ctr., 2012 ME 109, ¶ 16,
52 A.3d 933. Evidence is relevant if it has any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. M.R. Evid.
401; see also In re M.S., 2014 ME 54, ¶ 10, 90 A.3d 443 (“This standard for
relevance is a low one.”).
[¶42] Measured against this low relevancy standard, the exclusion of
the father’s testimony regarding his plans to re-establish a relationship with
his children was error. The court was required to decide whether the father
was “unwilling or unable to protect the child from jeopardy and those
circumstances are unlikely to change within a time which is reasonably
calculated to meet the child’s needs” or was “unwilling or unable to take
21
responsibility for the child within a time which is reasonably calculated to
meet the child’s needs.” 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii).
[¶43] The father’s testimony regarding his plans for re-establishing a
relationship with his children was essential to the court’s evaluation of
whether termination of the father’s parental rights would be in the best
interests of the children. It is difficult to understand how the court could have
decided whether termination of parental rights was in the best interests of the
children, a decision that necessarily looks to the future, without hearing the
father’s testimony regarding his plans for a relationship with his children.
The father’s testimony regarding his plans for a relationship with his children
also was relevant to the court’s determination of parental unfitness,
specifically whether, looking to the future, the father would be unable or
unwilling to protect his children from jeopardy or take responsibility for his
children within a time reasonably calculated to meet their needs.
[¶44] The court’s error in excluding the father’s testimony regarding
his plans to reestablish a relationship with his children was not harmless. See
M.R. Civ. P. 61. An error is reversible and not harmless if a “substantial right”
of the party is affected. See id.; In re Joshua B., 2001 ME 115, ¶ 10,
776 A.2d 1240. Because the exclusion of this testimony prejudiced the
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father’s ability to defend his parental fitness and had a direct effect on the
father’s fundamental right to parent and the children’s best interests, the
court’s error in excluding this testimony, by itself, would require that the
judgment be vacated.
2. Lack of Evidence Concerning the Stepfather’s Prior Terminations
of Parental Rights
[¶45] The evidence falls materially short of including the records,
testimony, or other evidence regarding the prospective adopting parent’s past
history that should have been considered prior to terminating the father’s
parental rights. It is unclear why these records were not disclosed, but they
were necessary for the court to have prior to determining the children’s best
interests. See In re Brandon D., 2004 ME 98, ¶¶ 13, 15, 854 A.2d 228 (vacating
the court’s judgment terminating the father’s parental rights where the court’s
lack of findings concerning the children’s best interests was in direct
proportion to the lack of evidence presented by the prospective adoptive
parents).7
7 We have said that “the deprivation of parental rights is in many ways similar to the
deprivation of liberty interests at stake in criminal cases.” In re M.P., 2015 ME 138, ¶ 26,
126 A.3d 718. In a criminal case, the criminal defendant must be afforded a proper opportunity to
attack evidence presented against him bearing on his guilt in order to provide the defendant with a
fair trial. See State v. Ledger, 444 A.2d 404, 412 (Me. 1982); State v. Lovely, 451 A.2d 900, 902
(Me. 1982) (vacating the court’s judgment where the court denied the defendant’s request for voir
dire aimed at a type of bias that was directly intertwined with the charges alleged against him and
failed to develop factual circumstances about the request prior to making a judgment).
23
[¶46] The stepfather briefly testified about his three children from
prior relationships and the prior termination of his parental rights as to two of
the children. There was also limited testimony regarding the stepfather’s
struggles with substance abuse. Evidence in the record, however, does not
disclose, for example: (i) why the stepfather’s rights to two of his three
children were terminated; (ii) what was or is the nature of the stepfather’s
relationship with the mothers of each of his three children; (iii) where the two
children, as to whom the stepfather’s parental rights were terminated, are
now; (iv) whether those two children were placed with individuals with
whom the stepfather may have contact; (v) whether issues other than
substance abuse, such as domestic violence, contributed to the terminations;
and (vi) why parental rights to a younger child were terminated while the
father was permitted to maintain limited contact with one of the ten-year-old
In criminal cases, where self-defense is an issue essential to the defendant’s case, the court’s
failure to instruct on self-defense deprives the defendant of a fair trial. State v. Davis,
528 A.2d 1267, 1270 (Me. 1987). Further, in a post-conviction hearing where the court is asked to
evaluate “claims of ineffective [assistance of counsel] arising from trial counsel’s failure to present
evidence to impeach witnesses who provide incriminating testimony, the court may consider
factors such as the strength of the State’s case, the effectiveness of the actual defense presentation,
and the significance of the impeachment value of evidence that trial counsel failed to develop.”
Theriault v. State, 2015 ME 137, ¶ 30 n.9, 125 A.3d 1163.
Although the present case is not a criminal case, before terminating a parent’s fundamental
right to parent his or her children in order to permit those children to be adopted by a specific
individual, the court cannot determine that adoption is in the children’s best interest, to the
standard of clear and convincing evidence, without having all of the necessary information about
the prospective adoptive parent.
24
boys. In response to questions at oral argument, we were advised that the
two ten-year-old boys had different mothers, but this information was not
before the trial court.
[¶47] This case appears to be a matter of first impression in requesting
the court to terminate the parental rights of a father so that his children may
be adopted by a stepfather who, when he was at about the same age as the
father is now, had his parental rights terminated to two of his three children.
Were the stepfather facing a state-initiated child protective proceeding, there
could be a rebuttable presumption that he is unwilling or unable to protect
the children from jeopardy because a “court has previously terminated
parental rights to another child who is a member of the same family.” See
22 M.R.S. § 4055(1-A)(D). Considering the unique nature of this case, it is
concerning that neither the parties nor the guardian ad litem presented
essential details of the stepfather’s prior history or relationships with children
to the court.
[¶48] Without sufficient background information and documentation
regarding the stepfather’s prior terminations of parental rights, we cannot
affirm the court’s final judgment terminating the father’s parental rights. The
court could not, without this information, find that termination of the father’s
25
parental rights was in the best interests of his children in order to free the
children for adoption by the stepfather. Terminating the father’s parental
rights without this information was error.
3. Best Interests of the Children
[¶49] In considering the children’s best interests, the court is required
to consider “the needs of the child[ren], including the child[ren]’s age, the
child[ren]’s attachments to relevant persons, periods of attachments and
separation, the child[ren]’s ability to integrate into a substitute placement or
back into [their] parent’s home and the child[ren]’s physical and emotional
needs.” 22 M.R.S. § 4055(2). Also relevant to the best interests determination
is the harm the children may suffer if the parent’s rights are not terminated, as
well as the children’s need for permanence and stability. In re Jacob B.,
2008 ME 168, ¶ 14, 959 A.2d 734; see also Adoption of Lily T., 2010 ME 58,
¶ 37, 997 A.2d 722.
[¶50] Isabelle and Abigail were seven and four years of age,
respectively, at the time of the termination hearing. Both girls live in a stable,
permanent family home with their mother and stepfather. The girls call their
stepfather “Daddy” and he is a big part of their lives, acting as a father-figure
for them in many ways. However, the lack of evidence regarding the
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stepfather’s prior termination of his parental rights to two of his three
children did not allow the court to make an appropriate determination that
the adoption of Isabelle and Abigail by this individual was in the children’s
best interests.
[¶51] Significantly, the record contains no evidence that the father ever
harmed his children. The mother and the father both testified that, up until
his arrest, the father was a good parent to his children and that there were no
concerns about his parenting abilities. The reasons for the father’s limited
contact with his children since his arrest and incarcerations were
insufficiently explored on this record. On this record, the evidence does not
demonstrate, to the standard of clear and convincing evidence, that
termination of the father’s parental rights was in the children’s best interests.
IV. CONCLUSION
[¶52] In these circumstances, neither the court’s findings, nor the
record upon which those findings are based, can support a determination, by
clear and convincing evidence, that the father is an unfit parent or that the
father cannot provide a nurturing parental relationship with his children once
the relationship can be re-established. Further, the lack of sufficient evidence
concerning the stepfather and the court’s error in excluding the father’s plans
27
regarding reunification with his children undermine the court’s unfitness and
best interests findings.
[¶53] Accordingly, we conclude that the court’s finding of parental
unfitness and its determination of the children’s best interests are not
supported by clear and convincing evidence in the record. Therefore, the
judgment terminating the father’s parental rights must be vacated.
The entry is:
Judgment vacated. Remanded for entry of
judgment denying the petition for termination
of the father’s parental rights.
Wayne Doane, Esq. (orally), Exeter, for appellant father
Kerry Clark Jordan, Esq. (orally), Griffin & Jordan, LLC, Orono, for appellees
mother and stepfather
Penobscot County Probate Court docket numbers A-2016-48-1 and A-2016-49-1
FOR CLERK REFERENCE ONLY