SUPREME	JUDICIAL	COURT	                                                Reporter	of	Decisions	
Decision:	    2018	ME	79	
Docket:	      And-17-370	
Submitted	
  On	Briefs:	 April	12,	2018	
Decided:	     June	19,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               IN	RE	CHILD	OF	EMILY	K.	
	
	
PER	CURIAM	

       [¶1]	 	 Emily	 K.	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	 Court	

(Lewiston,	Ende,	J.)	terminating	her	 parental	rights	to	her	child.		 The	 mother	

argues	that	the	court	erred	in	determining	that	the	termination	of	her	parental	

rights	 was	 in	 the	 child’s	 best	 interest	 when	 the	 child	 was	 placed	 in	 a	

permanency	 guardianship	 with	 his	 paternal	 grandparents	 and	 his	 father’s	

parental	rights	were	not	terminated.		We	affirm	the	judgment.	

                                    I.		BACKGROUND	

	      [¶2]	 	 In	 December	 2015,	 the	 court	 (Oram,	 J.)	 entered	 a	 preliminary	

protection	order	placing	the	child	in	the	custody	of	the	Department	of	Health	

and	 Human	 Services	 upon	 allegations	 that	 the	 child’s	 mother	 threatened	

suicide	in	his	presence	and	took	steps	to	avoid	contact	with	the	Department,	

which	had	been	assisting	her	in	obtaining	substance	abuse	and	mental	health	

treatment.		The	Department	filed	a	petition	for	a	child	protection	order	at	that	
2	                                                     	

time,	 and	 the	 court	 (Dow,	 J.)	 entered	 an	 order	 after	 the	 mother	 waived	 the	

opportunity	for	a	summary	preliminary	hearing	on	January	8,	2016,	retaining	

custody	 with	 the	 Department.	 	 The	 child	 was	 placed	 with	 his	 paternal	

grandparents	and	has	remained	in	their	care	ever	since.			

	        [¶3]	 	 The	 mother	 agreed	 to	 the	 entry	 of	 a	 jeopardy	 order	 in	 February	

2016	and	the	father	agreed	to	the	entry	of	a	jeopardy	order	one	month	later.		

Following	judicial	review	and	permanency	planning	hearings	held	in	July	and	

December	 2016,	 the	 Department	 petitioned	 for	 termination	 of	 both	 parents’	

parental	 rights	 in	 January	 2017.	 	 After	 pretrial	 case	 management	 and	

unavoidable	continuances,	the	court	(Ende,	J.)	held	a	hearing	on	the	petition	to	

terminate	 the	 mother’s	 parental	 rights	 in	 June	 2017.	 	 The	 court	 entered	 a	

judgment	terminating	her	parental	rights	on	August	14,	2017,	in	part	based	on	

the	grandparents’	availability	and	willingness	to	adopt	the	child.		The	mother	

timely	appealed	on	August	28,	2017.		See	22	M.R.S.	§	4006	(2017);	M.R.	App.	P.	2	

(Tower	2016).2			

	        [¶4]	 	 The	 Department	 withdrew	 the	 petition	 to	 terminate	 the	 parental	

rights	 of	 the	 father	 on	 September	 7,	 2017.	 	 The	 mother	 moved	 for	 us	 to	

authorize	additional	process	in	the	trial	court	so	that	she	could	move	for	relief	


     2	 	 Because	 the	 appeal	 was	 commenced	 before	 September	 1,	 2017,	 the	 restyled	 Maine	 Rules	 of	

Appellate	procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled).	
                                             	                                           3	

from	judgment	based	on	the	Department’s	withdrawal	of	the	petition	as	to	the	

father.		We	authorized	the	trial	court	to	act	and	stayed	the	appeal	until	a	court	

ruling	 could	 be	 reached	 on	 the	 mother’s	 anticipated	 motion	 for	 relief	 from	

judgment.			

	     [¶5]	 	 The	 trial	 court	 (Dow,	 J.)	 ultimately	 ordered,	 with	 the	 father’s	

consent,	that	the	child	would	be	placed	in	a	permanency	guardianship	with	the	

child’s	paternal	grandparents.		See	22	M.R.S.	§	4038-C	(2017).		Because	of	the	

change	 in	 the	 permanency	 plan	 from	 adoption	 to	 permanency	 guardianship	

and	 the	 father’s	 retention	 of	 his	 parental	 rights,	 the	 mother	 moved	 for	 relief	

from	the	judgment	entered	against	her	and	sought	to	reopen	the	record	so	that	

the	court	could	reconsider	whether	her	rights	should	be	terminated.		The	court	

(Ende,	J.)	granted	the	motion	to	reopen	the	record.		The	Department,	joined	by	

the	mother,	moved	to	stay	the	appeal	pending	the	new	hearing,	and	we	granted	

that	motion.			

	     [¶6]		On	November	20,	2017,	the	court	held	a	hearing	and	took	additional	

evidence.		After	hearing	that	evidence,	the	court	entered	the	judgment	now	on	

appeal	terminating	the	mother’s	parental	rights.		The	court	found,	by	clear	and	

convincing	 evidence,	 the	 following	 facts,	 all	 of	 which	 are	 supported	 by	
4	                                          	

competent	evidence	in	the	record.		See	In	re	Aurora	M.,	2018	ME	4,	¶	2,	177	A.3d	

617.	

        [The	 child]	 came	 into	 Departmental	 custody	 on	 or	 about	
        December	17,	 2015,	 at	 a	 time	 when	 [the	 mother]	 threatened	
        suicide	 in	 [the	 child]’s	 presence,	 while	 she	 continued	 to	 evade	
        DHHS,	continued	to	use	drugs	 and	to	display	unregulated	mental	
        health	symptoms,	which	violated	a	December	1,	2015	Safety	Plan	
        in	which	she	had	agreed	to	get	mental	health	and	substance	abuse	
        treatment	 and	 submit	 to	 random	 drug	 tests	 at	 DHHS	 request.	 	 A	
        Jeopardy	 Order	 was	 entered	 against	 the	 Mother	 on	 February	 22,	
        2016,	after	she	waived	her	right	to	a	contested	hearing	on	the	issue	
        of	 jeopardy.	 	 Jeopardy	 Findings	 relating	 to	 the	 Mother	 were	 as	
        follows:	
	
              [The	 child]	 is	 at	 risk	 for	 serious	 physical	 harm,	 serious	
              emotional	 harm	 and/or	 serious	 neglect	 based	 on	 his	
              mother’s	 substance	 abuse,	 untreated	 mental	 health	 issues,	
              exposure	 of	 [the	 child]	 to	 unsafe	 people	 and	 chronic	
              unsafe/unstable	housing.		[The	mother]	has	been	diagnosed	
              in	 the	 past	 with	 bipolar	 disorder,	 depression,	 PTSD,	 and	
              anxiety	 disorder	 but	 has	 failed	 to	 maintain	 recommended	
              treatment.		[The	mother]’s	mental	health	concerns	have	led	
              to	her	expressing	her	suicidal	ideation	in	front	of	her	young	
              son.		Due	to	the	unstable	lifestyle	and	chronic	homelessness	
              [the	child]	has	spent	nights	sleeping	in	his	mother’s	car,	or	in	
              hotel	 rooms,	 at	 times	 sharing	 these	 spaces	 with	 strangers	
              that	were	unsafe.			
              	
              Since	coming	into	the	care	of	the	Department	of	Health	and	
              Human	Services	[the	child]	has	expressed	that	he	is	afraid	of	
              the	 “bad	 guys”	 and	 that	 he	 feels	 safe	 at	 his	 grandparent’s	
              because	they	keep	the	“bad	guys”	away.	
              	
              [The	 mother]	 has	 engaged	 in	 individual	 counseling	 .	 .	 .	 ;	
              however,	 her	 attendance	 has	 been	 inconsistent.	 	 [The	
              mother]	 did	begin	an	Intensive	Outpatient	Program	.	.	.	but	
                                    	                                        5	

      her	attendance	in	that	program	was	also	inconsistent.		At	the	
      end	of	January	2016,	she	skipped	out	of	lOP	when	learning	
      she	 would	 be	 drug	 tested	 and	 that	 coupled	 with	 her	
      inconsistent	 attendance	 resulted	 in	 her	 discharge	 from	 the	
      program.		On	January	29,	2016,	[the	mother]	volunteered	to	
      attend	the	Family	Treatment	Drug	Court.		Her	attendance	in	
      that	 program	 has	 been	 inconsistent	 and	 the	 two	 drug	 tests	
      she	has	completed	have	shown	positive	for:	cocaine,	opiates	
      and	marijuana.	
      	
      [The	 mother]	 was	 set	 up	 for	 drugs	 screenings	 by	 the	
      Department	 of	 Health	 and	 Human	 services	 beginning	 in	
      mid-December	 of	 2016	 and	 she	 has	 never	 attended	 any	 of	
      those	 drug	 screenings.	 	 DHHS	 suspended	 the	 services	 on	
      February	16th	due	to	lack	of	attendance.		[The	mother]	was	
      arrested	 on	 February	 5,	 2015	 by	 the	 Auburn	 Police	
      Department	 for	 two	 theft	 charges[;]	 she	 was	 not	 released	
      from	 custody	 until	 on	 or	 about	 February	 9th.	 	 Due	 to	 her	
      incarceration	she	missed	a	visit	with	her	son.		[The	mother]	
      was	arrested	again	for	theft	and	violation	of	her	conditions	of	
      release	 by	 the	 Auburn	 Police	 Department	 on	 February	 14,	
      2016	and	she	was	released	[on]	or	about	February	16th.	
      	
      [The	mother]	has	been	consistent	in	attending	her	visits	with	
      [the	child]	when	she	is	not	incarcerated	.	.	.	.		[The	mother]	is	
      not	consistent	in	communicating	with	DHHS.		As	of	the	date	
      of	this	order,	DHHS	does	not	have	a	working	phone	number	
      or	an	address	for	[the	mother].	
	
Jeopardy	Order	as	to	Mother,	dated	February	22,	2016.			
	
The	evidence	from	both	the	June	[29],	2017	and	the	November	20,	
2017	hearings	showed	that	[the	child]	was	attached	to	his	mother	
when	he	first	came	into	Departmental	custody	approximately	two	
years	ago,	although	he	was	traumatized	by	his	mother’s	exposing	
him	to	unsafe	individuals	and	unsafe	and	unstable	housing.		He	has	
trouble	 putting	 clothes	 over	 his	 head,	 according	 to	 [the	 child],	
because	someone	with	whom	he	was	left	put	a	pillow	or	bag	over	
6	                                              	

     his	head,	so	he	couldn’t	see	or	breathe.		He	is	diagnosed	with	Post	
     Traumatic	 Stress	 Disorder,	 according	 to	 [his	 counselor].	 	 His	
     paternal	grandmother	.	.	.	credibly	testified	about	the	progress	[the	
     child]	has	made,	since	his	mother	has	been	out	of	his	life.		When	he	
     first	 arrived,	 [the	 child]	 was	 filled	 with	 anger,	 and	 he	 would	 hit	
     children	 at	 school.	 	 [The	 child]	 had	 nightmares	 and	 “bad	 night	
     sweats”	 when	 he	 first	 came	 to	 [the	 grandmother]’s	 home,	
     approximately	two	years	ago.		He	told	[the	grandmother]	that	he	
     had	lots	of	bad	secrets.		He	initially	refused	to	go	[to]	a	Christmas	
     Eve	visit	with	his	mom	in	2015,	but	was	talked	into	it.			
     	
     His	chronic	nightmares	continued	until	he	stopped	having	regular	
     contact	with	his	mother.		He	stated	numerous	times	that	he	does	
     not	want	to	see	his	mother.		When	his	dad	recently	started	visiting	
     him,	he	became	afraid	that	his	mom	will	come	with	bad	guys	and	
     take	him	from	his	dad’s.		As	lately	as	November	19,	2017,	he	had	a	
     bad	dream	that	his	mom	came	in	a	car	with	bad	guys	to	take	him	
     with	them.		He	has	consistently	and,	initially,	frequently	expressed	
     that	he	was	very	happy	in	[the	grandmother]’s	home	and	wished	to	
     remain	 there.	 	 When	 saying	 grace	 at	 dinner,	 he	 was	 thankful	 for	
     food—and	 so	 much	 of	 it—and	 having	 a	 home	 and	 his	 own	 bed,	
     things	he	previously	didn’t	have.			
     	
     It	has	been	14	months	since	[the	mother]	has	seen	[the	child].		She	
     recently	sent	a	Happy	Birthday	letter	to	him	for	his	7th	birthday,	
     but	[the	grandmother]	did	not	show	it	to	him,	for	fear	of	upsetting	
     him.		She	also	sent	a	letter3	to	[the	grandmother]	in	October	2017,	
     asking	to	be	allowed	to	take	[the	child]	to	the	new	Justice	League	
     movie.	 	 The	 last	 time	 [the	 mother]	 called	 [the	 grandmother]’s	
     home,	[the	mother]	left	a	message	that	stated	she	had	called	[the	
     grandmother]’s	 house	 and	 someone	 drunk	 answered,	 and	 [the	
     mother]	 told	 that	 person	 [the	 child]’s	 full	 name,	 social	 security	
     number	 and	 date	 of	 birth.	 	 This	 gave	 [the	 grandmother]	 pause,	
     because	she	believed	[the	mother]	might	have	given	that	sensitive	
     information	to	some	stranger	that	she	had	called	by	mistake.		
     	

        3	
         	 The	 letters	 were	 apparently	 sent	 from	 a	 county	 jail,	 according	 to	 [the	
     grandmother].			
                                          	                                           7	

    The	Department	attempted	to	have	[the	mother]	engage	in	services	
    that	 would	 help	 her	 reunify	 with	 [the	 child].	 	 Over	 an	 almost	
    two-year	 period	 they	 offered	 supportive	 services.	 	 [The	 mother]	
    twice	 participated	 in	 Family	 Treatment	 Drug	 Court,	 but	 was	
    discharged	for	violating	the	rules.	 	[The	mother]	started	 FTDC	in	
    January	2016,	and	she	was	discharged	in	either	February	or	March	
    2016.		The	second	time,	[the	mother]	started	in	early	October	2016,	
    and	she	was	terminated	by	FTDC	effective	November	21,	2016.		As	
    her	attorney	notes	in	her	closing	argument:	
	
           By	all	accounts,	[the	mother]	has	contended	with	substance	
           abuse	and	mental	health	issues	for	years,	and	perhaps	even	
           decades.	 	 Throughout	 the	 life	 of	 this	 case,	 she	 attempted	 a	
           number	of	courses	of	treatment,	including	mental	health	and	
           substance	abuse	counseling	.	.	.	,	substance	abuse	treatment	
           .	.	.	,	and	 participation	in	the	Family	Treatment	Drug	Court.		
           Although	 [the	 mother]	 managed	 to	 maintain	 sobriety	 for	 a	
           52-day	 period,	 she	 was	 largely	 unsuccessful	 overall	 and	
           likely	remains	in	the	throes	of	addiction	today.	
    	
    Mother	Closing	Argument,	p.	1.	
    	
    [The	mother]	successfully	completed	[a]	Drug	Treatment	program	
    from	 July	 to	 mid-August	 2016.	 	 At	 a	 September	 7,	 2016	 Family	
    Team	Meeting,	[the	mother]	reported	being	drug-free	for	52	days.		
    Unfortunately,	 that	 was	 about	 her	 only	 success	 over	 the	 last	 two	
    years.	 	 She	 began	 to	 skip	 appointments	 and	 miss	 visits	 with	 [the	
    child].		She	tested	positive	for	drugs	again	in	early	October	201[6],	
    and	after	she	missed	visits	with	[the	child]	on	September	30,	201[6]	
    and	 October	 7,	 201[6],	 her	 visitation	 rights	 were	 suspended	 on	
    October	 11,	 201[6].	 	 Her	 phone	 contact	 with	 [the	 child]	 was	 also	
    suspended	 in	 January	 2017.	 	 Her	 inconsistency	 in	 visiting	 would	
    upset	[the	child].		In	her	phone	calls,	she	was	often	inappropriate	
    in	conversation	with	[the	child].		[The	grandmother]	cut	calls	short	
    on	 a	 number	 of	 occasions,	 because	 [the	 mother]	 would	 tell	 [the	
    child],	for	example,	that	she	had	no	food	and	she	hadn’t	eaten	for	
    three	days,	which	would	greatly	upset	[the	child].		Another	time	she	
    told	 [the	 child]	 that	 she	 had	 to	 sleep	 in	 a	 place	 where	 rats	 were	
8	                                         	

     biting	her	fingers.		She’d	also,	at	times,	inquire	about	[the	child]’s	
     dad	and	his	girlfriend.		[The	mother]	hadn’t	even	called	[the	child]	
     for	the	six	weeks	prior	to	the	suspension	of	her	phone	rights.			
     	
     The	Court	finds,	by	clear	and	convincing	evidence,	that	custody	of	
     [the	 child]	 had	 been	 removed	 from	 the	 Mother,	 pursuant	 to	
     22	M.R.S.	 §§	 4035	 and	 4038.	 	 The	 court	 further	 finds	 that	 the	
     Department	 has	 made	 reasonable	 efforts	 to	 rehabilitate	 and	
     reunify	the	mother	and	child,	and	has	made	reasonable	efforts	to	
     identify	 and	 pursue	 alternative	 permanency	 plans.	 	 The	
     Department’s	 reasonable	 efforts	 are	 evidenced	 by	 the	 State’s	
     Exhibits	admitted	in	this	case,	and	include	safety	planning,	multiple	
     referrals	to	mental	health	and	substance	abuse	counseling,	as	well	
     as	two	referrals	to	the	Family	Treatment	Drug	Court,	drug	screens,	
     supervised	 visitation	 with	 the	 child,	 and	 transportation	 services.		
     The	child	came	into	Departmental	care	on	or	about	December	17,	
     2015,	 and	 now,	 effectively	 two	 years	 later,	 [the	 mother]	 is	 most	
     likely	still	addicted	to	opioid	drugs,	her	whereabouts	are	unknown,	
     and	she	has	made	zero	progress	towards	removing	the	barriers	to	
     reunification	with	the	child.			
     	
     The	 court	 FINDS	 that	 the	 Department	 has	 shown,	 by	 clear	 and	
     convincing	evidence:	
     	
     1.	that	[the	mother]	is	unwilling	or	unable	to	protect	the	child	from	
     jeopardy	 and	 that	 these	 circumstances	 are	 unlikely	 to	 change	
     within	 a	 time	 which	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	
     needs,	22	M.R.S.[]	§	4055[(1)(B)](2)(b)(i)	[(2017)];	
     and	
     	
     2.	[the	mother]	has	been	unwilling	or	unable	to	take	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)(ii)	[(2017)].	
     	
     That	leaves	the	court	with	the	sole	issue	raised	by	[the	mother]’s	
     counsel,	 whether	 Termination	 of	 [the	 mother]’s	 parental	 Rights	
     would	 be	 in	 [the	 child]’s	 best	 interest.	 	 The	 court	 had	 previously	
     found	that	it	would	be	in	[the	child]’s	best	interests	in	its	August	3,	
                                                     	                                                     9	

    2017	 TPR	 Order.	 	 However,	 adoption	 of	 [the	 child]	 was	 the	
    permanency	plan	at	that	time,	but	it	no	longer	is.		A	permanency	
    Guardianship	 was	 established	 on	 October	 12,	 2017,	 with	 [the	
    grandmother]	 and	 [the	 grandfather]	 being	 appointed	 as	
    Permanent	Guardians	of	their	grandchild	.	.	.	.		So,	currently	there	is	
    no	 legal	 necessity	 to	 terminate	 mother’s	 rights	 as	 a	 legal	
    prerequisite	to	this	permanency	plan.		The	mother	argues	that	[the	
    child]’s	 former	 therapist	 .	 .	 .	 ,	 who	 testified	 that	 she	 supported	
    terminating	Mother’s	rights	at	this	point,	because	“it	has	been	two	
    years	 and	 no	 progress	 made,”	 also	 testified	 that	 it	 could	 be	
    beneficial	for	[the	child]	to	have	a	relationship	with	his	mother	as	
    he	got	older,	if	it	were	“consistent,	clear	and	actually	occurs.”4		So,	
    if	 termination	 is	 not	 legally	 required	 before	 institution	 of	 the	
    permanency	 guardianship,	 and	 if	 it	 might	 be	 in	 [the	 child]’s	 best	
    interest	to	have	a	relationship	with	[the	mother]	in	the	future,	how	
    can	the	Department	show,	or	the	court	find,	by	clear	and	convincing	
    evidence,	that	the	current	termination	of	[the	mother]’s	rights	is	in	
    [the	child]’s	best	interest?	
    	
    The	 court	 was	 open	 to	 this	 reasoning	 and	 even	 joined	 in	
    questioning	witnesses	 about	the	need	for	termination.		However,	
    their	 responses	 were	 unanimous	 and	 forceful.	 	 [The	 child]’s	 life	
    with	[the	mother]	was	so	traumatic,	that	it	adversely	affects	him	to	
    this	day.		The	[guardian	ad	litem]	.	.	.	was	unequivocal.		She	has	met	
    with	[the	child]	at	least	every	three	months,	during	the	pendency	
    of	this	matter.		She	believed	it	would	be	“extremely	traumatic”	for	
    [the	child]	to	be	forced	to	deal	with	his	mother.		When	questioned	
    what	if	he	weren’t	“forced”	and	[the	child]	would	have	contact	only	
    if	he	desired	it,	she	was	again	unequivocal.		She	thinks	he	needs	to	
    know	he’s	not	going	to	deal	with	her	again,	in	order	to	move	on.		On	
    cross	by	[the	mother’s	counsel],	[the	GAL]	asserted	that	[the	child]	
    should	not	feel	there	is	any	chance	of	contact	with	his	mother.5		The	

       4	 	 The	 court	 interprets	 this	 as	 the	 following	 paraphrased	 answer:	 “yes,	 the	
    relationship	 could	 be	 beneficial	 to	 [the	 child],	 if	 the	 relationship	 is	 consistent,	 and	
    visits	actually	occur	as	expected.”			
	
       5		[The	GAL]	also	opined	that	[the	child]	could	always	seek	her	out.		The	court	notes	

    this	is	a	possibility	for	either	the	Permanency	Guardians	[or]	some	other	caretaker,	if	
    he,	she	or	they	feel	[the	child]	could	benefit	from	contact	with	his	mother.	
10	                                          	

      GAL	 expressed	 concern	 about	 the	 effects	 on	 [the	 child]	 of	 just	
      having	 a	 conversation	 about	 possible	 contact	 with	 mom.	 	 The	
      therapist	 .	 .	 .	 testified	 that	 she	 supported	 the	 termination	 of	 [the	
      child]’s	mother’s	rights.		It	had	been	two	years	and	no	progress	had	
      been	made	by	mother.		She	further	testified	that	[the	mother]	had	
      limited	insight	into	what	[the	child]	had	gone	through,	and	that	[the	
      child]	had	suffered	anxiety	over	missed	visits	and	phone	calls	with	
      his	mother.		[The	therapist]	believed	that	he	needed	some	type	of	
      closure.			
      	
      [The	grandmother]	also	testified	about	the	adverse	effects	on	[the	
      child]	regarding	the	possibility	of	having	contact	with	his	mother.		
      He	never	asks	to	have	contact	with	her.		As	[the	grandmother]	and	
      [the	 child]	 live	 their	 lives,	 he	 sometimes	 brings	 up	 his	 traumatic	
      past.		When	shopping,	he’ll	state	“Please	don’t	leave	me	in	the	car	
      Grammy.”		He’s	mentioned	bad	guys	he	was	left	with.		She	testified	
      that	 [the	 mother]	 took	 [the	 child]	 to	 a	 friend’s	 house	 where	
      someone’s	daughter	molested	him.		She	believes	that	[the	child]	has	
      been	 so	 traumatized	 by	 his	 life	 with	 [the	 mother]	 that	 only	 the	
      certainty	 that	 no	 contact	 can	 possibly	 occur	 gives	 him	 peace	 of	
      mind.		She	saw	that	after	she	informed	him	of	the	August	3,	2017	
      TPR	Order.		He’s	doing	so	well	now,	in	school	and	out	of	school,	and	
      she	has	no	doubt	that’s	because	[the	child]	hasn’t	seen	his	mother	
      for	14	months.			
      	
      While	[the	mother]’s	argument	on	best	interest	.	.	.	is	logical,	it	is	
      made	in	the	subjunctive	mood.		It	is	premised	on	what	is	wished,	or	
      on	 some	 future	 possibility,	 as	 opposed	 to	 the	 reality	 before	 the	
      court.	 	 The	 mere	 possibility	 that	 [the	 mother]	 will	 get	 her	 act	
      together	 and	 stop	 engaging	 in	 dangerous	 behavior,	 does	 not	
      outweigh	[the	child]’s	current	need	for	certainty	and	closure.		Right	
      now,	[the	child]	needs	to	know	that	he	will	never	have	to	live	with	
      [the	 mother]	 again	 to	 put	 his	 mind	 at	 ease.	 	 Based	 on	 the	 record	
      before[]	 it[,]	 the	 court	 FINDS,	 that	 the	 Department	 has	 met	 its	
      burden	 of	 showing	 by	 clear	 and	 convincing	 evidence	 that	 it	 is	 in	
      [the	 child]’s	 best	 interest	 to	 terminate	 [the	 mother]’s	 parental	
      rights,	notwithstanding	that	a	permanency	guardianship	has	been	
                                            	                                         11	

     established,	and	that	there	is	not	a	current	plan	for	adoption	of	[the	
     child]	.	.	.	.	
     	
The	mother’s	appeal	from	this	final	judgment	is	now	before	us.	

                                   II.		DISCUSSION	

	     [¶7]		Notwithstanding	the	court’s	thorough	and	careful	evaluation	of	the	

child’s	 best	 interest,	 the	 mother	 contends	 that,	 although	 she	 is	 not	 presently	

capable	of	caring	for	the	child,	 her	 parental	rights—like	the	father’s—should	

not	 be	 terminated	 because	 the	 child	 is	 in	 a	 permanency	 guardianship	 and	 it	

could	be	in	his	interest	to	have	contact	with	her	in	the	future.			

	     [¶8]	 	 The	 court	 appropriately	 reopened	 the	 record	 because	 the	 court’s	

change	 in	 the	 child’s	 permanency	 plan	 from	 adoption	 to	 permanency	

guardianship	 could	 affect	 the	 court’s	 finding	 that	 the	 termination	 of	 the	

mother’s	 parental	 rights	 was	 in	 the	 child’s	 best	 interest.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(a)	 (2017).	 	 The	 court	 then	 heard	 additional	 evidence	 and	

reconsidered	the	child’s	best	interest	with	respect	to	his	mother.			

	     [¶9]	 	 Although	 the	 establishment	 of	 a	 permanency	 guardianship	 is	 the	

product	 of	 a	 best	 interest	 determination,	 it	 does	 not	 prevent	 a	 finding	 that	

termination	of	an	unfit	parent’s	parental	rights	is	in	a	child’s	best	interest.		See	

In	re	Children	of	Nicole	M.,	2018	ME	75,	¶¶	26-28,	---	A.3d	---;	In	re	L.T.,	2015	ME	

94,	¶	18	&	n.5,	120	A.3d	650.		Based	on	the	evidence	presented,	and	given	the	
12	                                        	

mother’s	failure	to	appear	at	either	termination	hearing,	the	court	found	that	

the	 child,	 who	 experienced	 trauma	 while	 in	 his	 mother’s	 care	 and	 suffered	

emotional	harm	when	she	failed	to	follow	through	with	services	and	planned	

contact,	needed	to	know	that	he	was	not	going	to	return	to	the	mother’s	home	

or	 continue	 to	 experience	 detrimental	 uncertainty	 about	 her.	 	 The	 court’s	

decision	 not	to	terminate	the	father’s	parental	rights	is	not	inconsistent	with	

the	court’s	termination	of	the	mother’s	parental	rights	given	the	evidence	that	

the	child	is	not	distressed	by	the	prospect	of	living	with	his	father	but	is	terrified	

of	again	being	mistreated	at	the	hands	of	his	mother	and	her	acquaintances.			

	     [¶10]	 	 The	 mother’s	 conduct	 toward	 the	 child	 caused	 him	 injury	 and	

trauma,	 and	 the	 court	 was	 persuaded	 that,	 even	 with	 a	 permanency	

guardianship	in	place,	the	child’s	best	interest	is	served	by	the	termination	of	

the	mother’s	parental	rights.		The	court	did	not,	on	this	record,	err	or	abuse	its	

discretion	 in	 finding	 unfitness	 and	 determining	 that	 termination	 of	 the	

mother’s	parental	rights	is	in	the	child’s	best	interest	despite	the	establishment	

of	a	permanency	guardianship	and	the	father’s	retention	of	his	parental	rights.		

See	In	re	Children	of	Nicole	M.,	2018	ME	--,	¶¶	26-28,	---	A.3d	---;	In	re	L.T.,	2015	

ME	94,	¶¶	2-16,	18,	120	A.3d	650;	see	also	In	re	Marcus	S.,	2007	ME	24,	¶¶	4,	

9-11,	 916	 A.2d	 225	 (affirming	 the	 court’s	 termination	 of	 a	 mother’s	 parental	
                                                  	                              13	

rights	because	her	determination	to	regain	custody	and	her	threats	to	take	the	

children	 would	 disrupt	 the	 stability	 of	 the	 children’s	 permanency	 plan	 of	

reunification	with	their	father).

	        The	entry	is:	

                            Judgment	affirmed.	

	        	        	         	    	     	

Valerie	A.	Randall,	Esq.,	Rioux,	Donahue,	Chmelecki	&	Peltier	LLC,	Portland,	for	
appellant	Mother	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Lewiston	District	Court	docket	number	PC-2015-80	
FOR	CLERK	REFERENCE	ONLY	
