MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision:    2020 ME 85
Docket:      Ken-19-502
Submitted
  On Briefs: May 28, 2020
Decided:     June 9, 2020

Panel:       GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.



                           IN RE CHILDREN OF JAMIE P.


PER CURIAM

         [¶1] A mother and father appeal from a consolidated judgment of the

District Court (Augusta, Rushlau, J.) terminating their parental rights to their

three children. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2020). Both

parents argue that the Department of Health and Human Services did not

present sufficient evidence upon which the trial court could find that they are

parentally unfit and contend that the court abused its discretion in finding that

termination was in the children’s best interests. The father also contends that

the trial court abused its discretion by engaging in improper sua sponte

questioning of witnesses pursuant to Maine Rule of Evidence 614. We affirm

the judgment.

                                  I. BACKGROUND

         [¶2] In February 2019, the Department petitioned to terminate the

parents’ parental rights as to all three children. See 22 M.R.S. § 4052 (2020).
2

The trial court (Rushlau, J.) held a two-day hearing, from July 11 to July 12, 2019,

on the Department’s petition. Both parents were present at the hearing and

represented by counsel. See 22 M.R.S. § 4054 (2020).

      [¶3] In a judgment dated November 21, 2019, the trial court terminated

the parents’ parental rights with regard to all three children.                 See

§ 4055(1)(B)(2)(a), (b)(i)-(ii). The trial court found by clear and convincing

evidence that each parent is unwilling or unable to protect the children from

jeopardy and that these circumstances are unlikely change within a time which

is reasonably calculated to meet the children’s needs, and that each parent has

been unwilling or unable to take responsibility for the children within a time

which is reasonably calculated to meet the children’s needs.                    See

§ 4055(1)(B)(2)(b)(i)-(ii). The trial court also found by clear and convincing

evidence that termination of the parents’ parental rights is in the children’s best

interests. See § 4055(1)(B)(2)(a). Its findings were supported by competent

evidence in the record. In re Child of Carl D., 2019 ME 67, ¶ 4, 207 A.3d 1202.

      [¶4]    The trial court’s judgment contained the following findings

regarding the mother’s fitness:

      After [the twins] were born in 2015 . . . there were a series of events
      which led both to legal proceedings and made the family situation
      unstable. On August 14, 2015, [the father] filed a complaint for
      protection from abuse . . . . He claimed that [the mother] had
                                                                           3

physically abused him and threatened to kill both him and the
children. He received a temporary and then a final protection
order. Although the final order was originally to remain in effect
until September 4, 2017, the complaint was dismissed, and the
order terminated on [the father’s] motion on May 13, 2016. Four
months later [the father] returned to the same court and filed
another complaint for protection from abuse . . . . He once again
described domestic violence by [the mother], including violence in
the presence of the children. [The father] once again received a
protection order. Once again [the father] returned to court within
a few months and moved for dismissal of the complaint. . . .
Meanwhile [the mother] had been prosecuted for the criminal
conduct committed against [the father] . . . . She ultimately pleaded
guilty to Domestic Violence Terrorizing . . . .

      DHHS was involved with the family between 2015 and 2017.
The primary purpose of their involvement was apparently to
ensure that [the father] and the children were not living with [the
mother]. . . . DHHS began a more significant involvement in June
2017. [A caseworker] visited the . . . home of [a family member] . . .
and found that [the parents] were living there with all three
children. . . . During the visit, [the father] told the caseworker about
[the mother’s] violence against him . . . .

      During the [termination] hearing [the father] confirmed . . .
that [the mother] had engaged in repeated violence against him
throughout this entire period. He also confirmed that she had
threatened to kill the children. . . . It is clear that [the mother]
engaged in significant domestic violence against [the father] for
several years and that when the children are in [the father’s]
presence they are exposed to this violence.

      ....

      . . . DHHS’s Rehabilitation and Reunification Plan signed by
[the mother] on January 19, 2018, described a series of steps [the
mother] needed to take in order to make progress toward
reunification. One step was to complete a batterers intervention
4

      program (BIP). Other steps included being employed, having
      stable housing, and developing an effective mental health
      treatment and medication program. While [the mother] has been
      working to some extent on all these issues, she has made relatively
      little progress. She began a BIP in Lewiston but . . . failed to
      complete the program. . . . Her housing situation was erratic for
      many months, and included “couch surfing,” camping out in a tent
      for a period of time, and a stay in a homeless shelter. . . . She worked
      for brief periods for several different employers. . . . [The mother]
      engaged with [a counselor] at Kennebec Behavioral Health for
      many months . . . . However, [the mother’s] progress was regularly
      disrupted for a variety of reasons. . . . [The counselor] saw no
      progress at all in one important area, which was [the mother]
      gaining insight on how to avoid conflict with others . . . .

              DHHS arranged for [the mother] to have a trial placement
      with the twins in August of 2018. . . . A few days later [the mother]
      drove her car with the twins as passengers. They were in ordinary
      seat belts. [The mother] failed to secure them in child safety seats.
      . . . [The mother] drove through a stop sign . . . and collided with
      another vehicle. Both vehicles were damaged and [the mother’s]
      was [totaled]. The twins had medical evaluations and some
      treatment but fortunately neither child was seriously injured.
      However, the emotional effect of the crash on the twins, and
      indirectly on [the older child], was significant.

      [¶5]   The court’s supported evidentiary findings as to the father’s

parental fitness are as follows:

      [The father] was the target of multiple acts of physically violent
      behavior by [the mother] over a period of years. [The mother] also
      threatened violence against both him and against the children.
      Initially he acted responsibly to protect the children when he
      obtained a protection order in 2015. Several months later he had
      the protection order terminated. His reason was that it was too
      difficult for him to take care of the children on his own. Within a
      short time, [the mother] engaged in more violent behavior. [The
                                                                          5

father] again acted responsibly by obtaining a second protection
order. Once again, he had the order terminated. Once again, he
allowed [the mother] to have access to the children. He was then,
once again, the target of [the mother’s] violent behavior . . . .

       . . . [I]n June 2017, [the father] told the DHHS caseworker that
he was overwhelmed by the responsibilities of being a parent of
three children. . . . He terminated both protection orders and
allowed [the mother] access to the children because he was
incapable of providing appropriate care on his own. The testimony
of [a family member] showed that as early as 2015 she and other
family members were caring for the children for various periods of
time . . . .

       After DHHS placed the children with [a family member] in
June 2017, [the father] had an opportunity to, at minimum, help
provide care for [the oldest child]. He was not successful even in
that limited role. [The family member] asked him to leave. He
became homeless . . . .

       The jeopardy order agreed to by [the father] emphasized his
failure to protect the children from [the mother’s] violent behavior.
However, it also described [the father’s] own unsafe behavior in
leaving the children unsupervised despite their age and
developmental needs . . . . The twins were only 2 1/2 years old and
incapable of protecting themselves from harm. . . . [The oldest
child] was placed with [the father] on a trial basis in August 2018.
[The father] had a lapse in judgment in the fall of that year when he
entered the vacant home of [the mother’s] family to remove some
personal possessions. . . . DHHS temporarily interrupted the trial
placement.

       There was a far more serious event in January 2019. The
father] planned to pick up [the oldest child] at school in Augusta.
He did not appear. . . . [The oldest child] was upset and concerned
that [the father] had been in a car crash. . . . The trial placement
was terminated.
6

            ....

            [The father’s] situation deteriorated significantly between
      the end of the trial placement and the date of the [termination]
      hearing. He was evicted from his apartment. . . . After the eviction
      he began living with a man he knew only as “Q.” . . .

             . . . [The father] was charged with drug possession as a result
      of an encounter with a Gardiner police officer . . . . [The officer]
      found [the father] unconscious and slumped over in the front seat
      of his car in a parking lot. It was 3:00 a.m. There was a plate next
      to [the father] with a substance the officer identified as
      methamphetamine. . . . The resulting criminal case was pending at
      the time of the hearing . . . .

      [¶6] The court also made the following supported findings regarding the

best interests of the children:

            Since the placement, the twins have been with [a family
      member] for all but the few days of the trial placement with [the
      mother]. . . . She has provided them with a safe and stable home for
      the majority of their lives, and they are thriving in that
      environment. . . . [N]either parent has made progress toward
      creating a home where the twins will be protected from harm. [The
      father’s] life has deteriorated. It is in such disarray that he could
      not figure out how to have visits with the twins, and visits were
      suspended . . . .

              [The oldest child] has done relatively well in his most recent
      placement. His life has been disrupted since 2015 by repeated
      changes in residence including the trial placement with [the father]
      which ended abruptly after several months. It has been difficult for
      him to make progress, although the care provided by [a family
      member], and by the current foster family, has been of great
      benefit. His recent contact with the parents has not been beneficial.
      . . . [The oldest child] has expressed the desire to reunite with [the
      father]. There is no indication of a similar desire as to [the mother].
                                                                                7

      [The father] has encouraged [the oldest child] to believe
      reunification is possible. . . . Whatever capacity [the father] once
      had to provide a safe home for [the oldest child] is not in existence
      now.

      [¶7] Based on these supported findings, the trial court concluded that

the parents were unwilling or unable to protect the children from jeopardy and

that these circumstances are unlikely to change within a time calculated to meet

the children’s needs, and that the parents have been unwilling or unable to take

responsibility for the children within a time reasonably calculated to meet the

children’s needs. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). The court also concluded

that termination of both parents’ parental rights was in the best interest of each

child. 22 M.R.S. § 4055(1)(B)(2)(a). The mother and father each filed a notice

of appeal. See 22 M.R.S. § 4006 (2020); M.R. App. P. 2B(c)(1).

                                  II. DISCUSSION

A.    Sufficiency of the Evidence

      1.     Parental Unfitness

      [¶8]    On appeal, both parents contend that the record contains

insufficient evidence for the trial court to conclude that they were unfit to

parent the children. Contrary to their contentions, the record indeed contains

sufficient evidence to support the trial court’s findings as to both grounds of

parental unfitness with regard to each parent. “We review the court’s findings
8

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 Child of Olivia F., 2019 ME 149, ¶ 5, 217 A.3d 1106. “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 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. 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.” Id. ¶ 6 (citation omitted) (quotation marks omitted);

see 22 M.R.S. § 4055(1)(B)(2)(b) (2020). “[T]he court must examine from the

child’s perspective—not the parent’s—the time within which the parent can

take responsibility for a child and protect that child from jeopardy.” In re

Children of Tiyonie R., 2019 ME 34, ¶ 6, 203 A.3d 824.

            a.     As to the Mother

      [¶9] The mother argues that “she has continuously moved forward

towards reunification,” and that her good faith efforts at rehabilitation and

reunification are fatal to the Department’s petition. However, competent
                                                                                9

evidence in the record supports the trial court’s conclusion that the mother is

unwilling or unable to protect the children from jeopardy and that these

circumstances are unlikely to change within a time reasonably calculated to

meet the children’s needs, as well as its conclusion that the mother has been

unwilling or unable to take responsibility for the children within a time

reasonably calculated to meet their needs. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii).

      [¶10] Here, the mother, despite repeated efforts, failed to complete any

of the goals set forth in her rehabilitation and reunification plan. She failed to

complete a BIP program; her housing and employment situations were

unstable at best; her relationship with the children’s father remained volatile

and continued to involve encounters with law enforcement; her work with

counselors plateaued, and she terminated her relationship with her longtime

counselor prior to the termination hearing. These facts, supported by record

evidence, suggest that the mother was unable or unwilling to take

responsibility for the children and unable or unwilling to protect the children

from jeopardy. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii).

      [¶11] Furthermore, the record supports the trial court’s conclusion that

what little progress the mother did make occurred at such a slow pace that

circumstances were unlikely to change within a time reasonably calculated to
10

meet the children’s needs. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). She was not

close to completing treatment for her domestically violent behavior, and at the

termination hearing she categorically denied committing any such behavior—

even in the face of overwhelming contradictory evidence. Over a two-year

period during which the mother had access to support services she failed to

make progress. The mother’s contention that she has “continuously moved

towards reunification” is not supported by the record. Rather, the record

supports the trial court’s conclusion to the contrary—that the mother is

unwilling or unable to protect the children from jeopardy, and has been

unwilling or unable to take responsibility for the children in a time reasonably

calculated to meet their needs.

            b.    As to the Father

      [¶12] The father also argues that the record evidence is insufficient to

support the trial court’s finding that he is also unfit to parent the children

because he is unwilling or unable to protect the children from jeopardy and

take responsibility for the children in a time reasonably calculated to meet their

needs.

      [¶13] Contrary to the father’s contentions, the record supports the trial

court’s findings on both grounds. The Department’s involvement originally
                                                                              11

stemmed from concern that the father could not keep the children away from

the mother and the domestic violence that was endemic to the relationship

between the mother and the father. Competent record evidence demonstrates

that the father has not separated from the mother. Furthermore, the father’s

circumstances—apart from his relationship—have deteriorated significantly

since 2017.     He has experienced periods of homelessness.        He does not

currently have an apartment or suitable housing for any of the children. His

relationships with family members who had previously assisted with childcare

and housing are broken. The circumstances of his recent arrest and the abrupt

end of the trial placement with the oldest child suggest that he continues to

struggle with substance abuse.

      2.      Children’s Best Interests

      [¶14]    Both parents also argue on appeal that the record contains

insufficient evidence for the trial court to conclude that termination was in the

children’s best interests. The father contends that the absence of identified

adoptive homes for the children requires that we vacate the trial court’s

termination order. Contrary to the parents’ contentions, the record is sufficient

to support the trial court’s finding that termination of each parent’s parental

rights is in the children’s best interests, and the identification of adoptive
12

homes is not a prerequisite to a finding that termination is in the children’s best

interests. In re Children of Meagan C., 2019 ME 129, ¶ 20, 214 A.3d 9. “We

review the court’s ultimate conclusion regarding the best interest of the child

for an abuse of discretion, viewing the facts, and the weight to be given [to]

them, through the trial court’s lens.” In re Child of Carl D., 2019 ME 67, ¶ 5, 207

A.3d 1202 (quotation marks omitted.)

      [¶15] The record supports the trial court’s conclusion that termination

of each parent’s parental rights would facilitate permanency and stability and

therefore be in the children’s best interests. The two youngest children had

been living with a family member almost exclusively for more than two years,

and the same family member served as caregiver even before that placement

became official. The family member, however, was not a permanency option.

Neither parent had made any progress toward establishing a situation that

could accommodate the two youngest children permanently. The mother’s

brief trial placement with the two youngest children ended when she crashed

her car with the two toddlers secured only by adult seat belts. The father had

not been able to arrange a safe place even for supervised visits with the

children.
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      [¶16]    The record also supports the trial court’s conclusion that

termination was in the best interest of the oldest child. The oldest child was

particularly negatively affected by the frequent and abrupt changes in

residences and caregivers. He expressed no desire to reunite with his mother.

Although he expressed a preference to reunite with the father, the sudden

termination of his trial placement with the father had derailed the oldest child’s

progress for some time thereafter. The father continued to foster in the oldest

child unrealistic expectations of reunification, but visits with the child were not

beneficial to the child. The father did not possess the means by which to

provide a safe or supportive home for the oldest child, nor did it appear he

would obtain those means in a time reasonably calculated to meet the oldest

child’s needs. The trial court did not abuse its discretion in concluding that

termination of the parents’ parental rights was in the children’s best interest.

B.    Trial Court’s Questioning of Witnesses

      [¶17] The father argues for the first time on appeal that the trial court

abused its discretion by engaging in sua sponte questioning of witnesses at the

termination hearing, the extent and nature of which “suggested a posture of

advocacy and a retreat from impartiality.” However, contrary to the father’s

contentions, we discern no abuse of discretion on the part of the trial court with
14

regard to its examination of witnesses at the termination hearing, and the trial

record does not suggest any such “retreat from impartiality.”

      [¶18] “Subject to the obvious caveat to maintain judicial impartiality, and

not to assume the posture of an advocate, a presiding justice may interrogate

witnesses.” State v. Colomy, 407 A.2d 1115, 1118 (Me. 1979) (citation omitted)

(quotation marks omitted); see M.R. Evid. 614. “So long as the trial judge

intervenes for the purpose of clarifying testimony, saving time, or preventing a

miscarriage of justice, he must be allowed considerable latitude in his

questioning.”   State v. Greenwood, 385 A.2d 803, 804 (Me. 1978).           “The

paramount concern [regarding judicial interrogation] has been that the judge

not participate in any manner from which the jury may infer that he endorses

the cause of one side.” State v. Pickering, 491 A.2d 560, 564 (Me. 1985).

Therefore, where there is no jury, “this concern is absent.” Id. Where a party

does not preserve his objection to a line of questioning by bringing it to the

attention of the court in a timely manner, we review for obvious error. See State

v. Haycock, 296 A.2d 489, 492 (Me. 1972).

      [¶19] Here, the trial court did not abuse its discretion in questioning the

father or any other witness pursuant to Rule 614. Although the Department

and the parents were both represented by experienced counsel, the long and
                                                                               15

convoluted path of the Department’s involvement with the children created

challenges in bringing out a coherent chronology through witness testimony.

In its role as factfinder, the court questioned several witnesses at length. Its

questions were limited to attempts to clarify and bring out facts key to its

ultimate findings and judgment. Cf. Greenwood, 385 A.2d at 804 (holding that a

court’s questioning of a witness was improper where the questions were “only

marginally helpful in ascertaining the facts” and focused on impeaching a key

witness). Furthermore, the record does not suggest that the court’s questioning

of the father, in particular, was improper or revealed a retreat from

impartiality. The court questioned other witnesses at similar length, and its

interrogation of the father was focused primarily on evidence of the mother’s

behavior. The court’s participation in the questioning of witnesses at the

termination hearing was not improper.

                               III. CONCLUSION

      [¶20] The trial court did not clearly err in finding by clear and convincing

evidence that the mother and father were each unable or unwilling to protect

the children from jeopardy or take responsibility for the children within a time

reasonably calculated to meet the children’s needs. Nor did the trial court

commit clear error or abuse its discretion in determining that termination was
16

in each child’s best interest. See In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260.

Finally, the trial court did not commit obvious error in its questioning of

witnesses. See Haycock, 296 A.2d at 492.

        The entry is:

                           Judgment affirmed.



Andrew Wright, Esq., Brunswick, for appellant mother

David Paris, Esq., Bath, for appellant father

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


Augusta District Court docket number PC-2017-31
FOR CLERK REFERENCE ONLY
