MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	238	
Docket:	      Yor-17-271	
Submitted		
  On	Briefs:	 November	29,	2017	
Decided:	     December	21,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                IN	RE	BENTLEE	G.	et	al.	
	
	
PER	CURIAM	

       [¶1]		The	father	of	Bentlee	G.	and	Brenton	G.	appeals	from	a	judgment	of	

the	 District	 Court	 (Springvale,	 Janelle,	 J.)	 terminating	 his	 parental	 rights	 to	

Bentlee	G.,	pursuant	to	22	M.R.S.	§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(i)-(ii)	

(2016),	and	finding	jeopardy	as	to	Brenton	G.,	pursuant	to	22	M.R.S.	§	4035(2)	

(2016).		The	father	challenges	the	sufficiency	of	the	evidence	to	support	(1)	the	

court’s	finding	of	parental	unfitness	and	its	determination	that	termination	was	

in	Bentlee	G.’s	best	interest,	and	(2)	the	court’s	finding	of	jeopardy	as	to	Brenton	

G.		The	mother	of	Bentlee	G.	and	Brenton	G.	challenges	the	jeopardy	order	as	to	

Bentlee	 G.	 (Springvale,	 Foster,	 J.)	 entered	 on	 January	 26,	 2016.	 	 The	 mother	

argues	 that	 the	 court’s	 finding	 of	 jeopardy	 as	 to	 Bentlee	 G.	 was	 “void	 for	

vagueness.”	 	 To	 the	 extent	 that	 the	 mother’s	 challenges	 constitute	 a	 direct	

appeal	from	the	jeopardy	order	issued	on	January	26,	2016,	it	is	untimely	and	
2	

not	properly	before	us.		Because	the	evidence	supports	the	court’s	findings	as	

to	both	parents,	we	affirm	the	judgment.	

                                   I.		BACKGROUND	

	     [¶2]	 	 The	 court	 based	 its	 decision	 to	 terminate	 the	 mother’s	 and	 the	

father’s	parental	rights	as	to	Bentlee	G.,	and	its	finding	of	jeopardy	as	to	Brenton	

G.,	on	the	following	factual	findings:		

             [The	mother	and	father]	are	the	biological	parents	of	Bentlee	
      and	Brenton.		[The	mother]	has	an	older	son	.	.	.	who	was	the	subject	
      of	an	earlier	child	protection	matter.	.	.	.	
             	
             [The	 mother	 and	 father]	 began	 their	 relationship	 in	 2014,	
      while	[the	mother’s	other	son’s]	case	with	the	Department	was	still	
      pending.	 	 At	 that	 time,	 the	 Department	 required	 [the	 father]	 to	
      engage	in	services	so	that	[the	mother’s]	reunification	efforts	with	
      [the	mother’s	other	son]	[would]	not	.	.	.	be	disrupted.	.	.	.	
             	
             .	.	.	.	
	
             [The	father’s]	reunification	plan	required	him	to	“provide	a	
      safe	 and	 stable	 living	 situation	 that	 is	 free	 of	 unsafe	 individuals”	
      and	 “work	 with	 providers	 to	 ensure	 that	 his	 mental	 health	 is	
      appropriately	addressed	and	learn	the	skills	needed	to	care	for	his	
      children	 while	 still	 meeting	 his	 own	 mental	 health	 needs”	 and	
      “work	with	parenting	supports	to	learn	necessary	skills	to	care	for	
      his	child	and	will	demonstrate	an	understanding	of	these	skills	by	
      ensuring	that	the	child’s	needs	are	consistently	met	when	he	is	in	
      [the	 father’s]	 care”	 and	 “engage	 in	 mental	 health	 counseling	 and	
      follow	 any	 and	 all	 recommendations	 made	 by	 his	 provider	 to	
      ensure	that	his	mental	health	needs	are	being	met.”		Additionally,	
      the	plan	calls	on	[the	father]	to	develop	coping	skills,	obtain	safe	
      and	stable	housing	and	learn	appropriate	parenting	skills.	.	.	.	
             	
                                                                                    3	

           [The	 mother’s]	 plan	 closely	 mirrored	 that	 of	 [the	 father’s]	
    and	included	managing	her	mental	health	needs,	developing	skills	
    to	 engage	 in	 healthy	 communications	 and	 relationships	 and	 to	
    identify	 safe	 and	 appropriate	 caregivers,	 acquiring	 the	 skills	 to	
    develop	 a	 lifestyle	 that	 promotes	 physical	 and	 emotional	
    well-being,	 obtaining	 safe	 and	 stable	 housing,	 learning	 to	
    appropriately	manage	medications,	“managing	her	‘gut	reaction’	to	
    yell	scream,	etc.”	when	under	stress,	and	to	make	decisions	in	the	
    best	interests	of	her	children	notwithstanding	any	impact	on	her	
    romantic	relationship	and	engaging	in	parenting	classes	in	order	to	
    learn	necessary	parenting	skills	and	co-parenting	skills.			
           	
           [A]	licensed	clinical	psychologist	.	.	.	evaluated	[the	father]	on	
    October	 26,	 2016	 and	 he	 issued	 his	 23-page	 written	 report	 on	
    November	 4,	 2016.	 	 [The	 clinical	 psychologist]	 notes	 that	 [the	
    father]	has	an	11th	grade	education	(lacks	a	GED)	with	a	very	spotty	
    employment	record	(never	held	a	formal	job	for	any	length	of	time).		
    [The	father]	reported	that	he	had	been	on	disability	for	his	entire	
    adult	life	but	he	could	not	provide	[the	clinical	psychologist]	with	
    information	 about	 the	 nature	 of	 his	 disability.	 	 [The	 father]	
    reported	 suffering	 chronic	 back	 and	 joint	 pain	 from	 multiple	
    accidents	sustained	while	riding	all-terrain	vehicles	(ATV’s).		[The	
    father]	 reported	 a	 history	 of	 multiple	 arrests	 but	 was	 unsure	 of	
    whether	 he	 had	 served	 time	 in	 jail.	 	 [The	 clinical	 psychologist],	
    relying	on	the	results	of	tests,	questionnaires	and	other	assessment	
    tools,	reports	that	[the	father]	had	a	full-scale	IQ	of	76	(well	below	
    average	range)	with	a	“mental	status”	score	falling	in	the	“dementia	
    range”	 with	 some	 impairment	 in	 his	 ability	 to	 interact	 with	 his	
    present	environment.	.	.	.	
           	
           .	.	.	.	
	
           [The	 father]	 remains	 in	 treatment	 with	 [a	 licensed	 clinical	
    social	worker]	pursuant	to	his	reunification	plan.	.	.	.		Although	[the	
    father’s]	 progress	 was	 slow	 at	 first,	 [the	 licensed	 clinical	 social	
    worker]	reports	some	progress	over	the	summer	and	the	fall	and	
    [the	father]	has	taken	some	positive	steps	to	modulate	his	emotions	
    in	stressful	situations.			
4	

            	
            In	 response	 to	 concerns	 raised	 by	 the	 Department,	 [the	
     licensed	clinical	social	worker]	also	worked	with	both	[the	father	
     and	 the	 mother]	 as	 a	 couple	 to	 aid	 in	 strengthening	 their	
     communication	skills	and	to	assess	the	risk	for	emotional	violence	
     in	their	relationship.		[The	licensed	clinical	social	worker]	reported	
     both	 parents	 worked	 cooperatively	 in	 those	 sessions	 and	 gained	
     some	insight	from	their	work	as	a	couple	on	how	the	dynamic	of	
     their	relationship	will	impact	their	children.			
            	
            .	.	.	[The	father’s	adult	case	manager]	.	.	.	is	assisting	[the	father	
     to]	 retrieve	 his	 medical	 records,	 locate	 a	 primary	 care	 physician,	
     and	obtain	his	academic	records	so	that	he	can	complete	his	GED.		
     [The	 father]	 also	 testified	 that	 he	 is	 researching	 vocational	
     rehabilitation	services	to	help	him	secure	training	and	employment	
     utilizing	 skills	 he	 has	 or	 is	 most	 capable	 of	 developing.	 	 Each	 of	
     these	steps	taken	are	addressing	the	“risk	factors”	identified	in	the	
     Court’s	Order	which	could	otherwise	impact	[the	father’s]	ability	to	
     parent	his	sons.		
            	
            [The	 mother’s]	 therapist	 .	 .	 .	 echoed	 the	 sentiments	 of	 [the	
     licensed	 clinical	 social	 worker].	 	 While	 she	 noted	 bouts	 of	
     inconsistency	 on	 the	 part	 of	 [the	 mother],	 she	 reported	 some	
     engagement	 and	 progress	 on	 the	 part	 of	 [the	 mother]	 over	 the	
     summer	months	and	through	the	time	of	the	hearing.	.	.	.	
            	
            Both	 parents	 receive	 Supplemental	 Security	 Income.	 	 [The	
     mother]	is	currently	employed	part-time	at	McDonalds	and	has	a	
     valid	driver’s	license	and	a	vehicle.		[The	mother]	is	also	a	certified	
     nursing	assistant.		[The	mother]	was	working	in	a	nursing	facility	
     but	 was	 forced	 to	 resign	 from	 that	 employment	 after	 being	
     assaulted	by	a	patient	while	pregnant	with	Brenton.		[The	father]	is	
     unemployed	and	has	never	obtained	a	driver’s	license.	.	.	.		
            	
            .	.	.	.	
            	
            Supervised	 visits	 between	 the	 children	 and	 parents	 have	
     occurred	 twice	 weekly	 throughout	 the	 life	 of	 this	 case.	 	 Initially,	
                                                                                  5	

visits	 occurred	 “in	 the	 community”	 and	 more	 recently	 they	 have	
taken	place	at	the	parents’	Sanford	apartment.		The	supervised	in-
home	 visits	 are	 intended	 to	 allow	 the	 parents	 to	 enjoy	 a	 normal	
routine	with	their	children,	including	cooking	breakfast,	engaging	
in	play	and	navigating	naptime.		
         	
         Bentlee	 and	 Brenton	 have	 done	 well	 in	 their	 foster	 home	
placement	 with	 the	 [foster	 parents].	 	 At	 various	 times,	 the	 boys	
have	had	occupational	and	physical	therapy	appointments	which	
[the	foster	mother]	has	ensured	that	they	attend.	.	.	.		Bentlee	and	
Brenton	have	developed	a	bond	with	[the	foster	mother]	and	her	
husband	 and	 the	 [foster	 parents]	 have	 promoted	 a	 relationship	
between	the	boys	and	their	maternal	grandmother.	.	.	.	
         	
         Both	 parents,	 as	 noted,	 have	 participated	 in	 services	 as	
requested	by	DHHS	and	they	have	made	some	progress	in	dealing	
with	various	issues.		The	parents	did	not	get	serious	about	engaging	
in	 a	 full	 range	 of	 services	 until	 the	 summer	 of	 2016,	 over	 a	 year	
after	 Bentlee	 came	 into	 care.	 	 Now,	 many	 providers	 are	 meeting	
with	the	parents	at	their	apartment	in	Sanford.		Now,	[the	father]	
does	not	have	to	leave	his	home	to	engage	in	services;	everything	
is	 coming	 to	 him.	 	 Despite	 such	 services,	 neither	 party	 has	
alleviated	 jeopardy	 to	 the	 point	 where	 either	 can	 safely	 parent	
Bentlee	or	Brenton	on	an	extended	basis.	
         	
         Since	 the	 commencement	 of	 these	 cases,	 the	 parents	 have	
been	visiting	with	the	children	twice	a	week.		Initially,	visits	were	
from	9	a.m.	to	1	p.m.	at	the	[visitation	agency	center]	in	Sanford.		
The	parents	found	four	hour	visits	to	be	too	long.		Next	visits	were	
from	9	a.m.	to	11	a.m.		In	September	2016,	visits	were	increased	by	
one	hour,	from	8	a.m.	to	11	a.m.	and	the	parents	now	complain	that	
visits	start	too	early	in	the	day.		Throughout	the	course	of	the	case,	
[the	 father]	 has	 been	 unable	 to	 remain	 fully	 engaged	 with	 the	
children	during	visits.		[The	father]	takes	frequent	smoking	breaks	
outside	the	apartment	and	he	takes	frequent	bathroom	breaks	(of	
10	to	15	minutes’	duration)	during	child	visits.		It	is	not	unusual	for	
[the	father]	to	miss	1/4	to	1/3	of	the	allotted	child	visitation	period	
due	to	these	recurring	smoking	and	bathroom	breaks.		[The	father]	
6	

     does	 not	 feel	 that	 his	 need	 to	 be	 away	 from	 the	 children	 during	
     visits	 is	 a	 matter	 for	 concern.	 	 In	 the	 Court’s	 mind,	 it	 does	 raise	
     concerns	 about	 [the	 father’s]	 capacity	 and	 determination	 to	 care	
     for	the	children	appropriately.		The	Court	also	finds	it	significant	
     that	 [the	 father]	 and	 [the	 mother]	 have	 been	 unable,	 despite	 the	
     many	 services	 provided	 to	 them,	 to	 progress	 to	 something	 more	
     than	 two	 supervised	 visits	 per	 week	 since	 the	 filing	 of	 the	 case.		
     This,	 in	 turn,	 raises	 concerns	 about	 their	 capacity	 and	 the	
     determination	to	safely	parent	the	boys	on	something	more	than	a	
     part-time	basis.	
	
             [The	 father’s]	 and	 [the	 mother’s]	 ability	 to	 tolerate	
     uncomfortable	 situations	 for	 the	 sake	 of	 their	 children	 is	 clearly	
     compromised.		Both	boys	have	received	occupational	and	physical	
     therapy	during	their	time	in	care.		Physical	therapy	sessions	occur	
     at	the	therapist’s	office	.	.	.	.		Occupational	therapy	occurs	at	[the	
     foster	 mother’s]	 home	 in	 North	 Berwick,	 Maine.	 	 Although	 [the	
     foster	mother]	has	expressed	reservations	about	[the	father]	being	
     present	at	her	home,	she	and	the	team	have	invited	both	parents	to	
     attend	treatment	sessions.		[The	father]	refuses	to	attend	sessions	
     at	 the	 [foster	 mother’s]	 home	 because	 he	 dislikes	 [the	 foster	
     mother]	.	.	.	.		
             	
             .	.	.	As	of	the	date	of	the	hearing	.	.	.	[the	case	manager]	had	
     not	 been	 successful	 in	 getting	 [the	 father]	 into	 vocational	
     rehabilitation,	 or	 securing	 his	 school	 records,	 or	 securing	 and	
     getting	 [the	 father]	 to	 complete	 his	 GED	 application,	 or	 finding	
     employment	or	securing	his	medical	records.		[The	father]	did	not,	
     apparently,	make	the	effort	to	get	this	work	done.		What	[the	father]	
     does	all	day	is,	frankly,	a	mystery.		
             	
             The	Court	understands	from	the	testimony	that	[the	father]	
     .	.	.	was	“jumped”	in	downtown	Sanford	last	year	by	a	group	of	men	
     and	he	sustained	an	injury.		[The	father]	chose	not	to	report	this	
     assault	 to	 the	 police.	 	 Likewise,	 [the	 father]	 and	 [the	 mother]	
     testified	that	their	home	was	broken	into,	last	year,	and	items	were	
     stolen	from	the	home	but	they	chose	not	to	report	the	incident	to	
     the	police	because	the	police	haven’t	been	helpful	to	them	in	the	
                                                                                   7	

past.		At	night,	[the	father]	likes	to	go	ATV	riding,	a	hobby.		[The	
father]	 has	 sustained	 multiple	 injuries	 while	 driving	 his	 ATV	 at	
night	but	he	has	avoided	medical	treatment	at	the	Sanford	hospital	
.	.	.	because,	he	testified,	the	hospital	staff	disrespects	him.		When	
[the	father]	goes	riding	at	night	on	his	ATV	he	is	often	too	tired	to	
engage	with	the	children	during	morning	visits.	.	.	.		[The	father’s]	
and	 [the	 mother’s]	 failure	 to	 report	 his	 assault	 and	 the	 home	
burglary	to	the	police	raises	some	concern	about	whether	Bentlee	
or	Brenton	would	be	safe	in	the	care	of	their	parents.		Likewise,	[the	
father’s]	 nighttime	 ATV	 riding,	 a	 purely	 “elective”	 activity	 often	
taking	 place	 just	 hours	 before	 the	 start	 of	 child	 visits,	 calls	 into	
question	his	commitment	to	reunifying	and	fully	engaging	with	the	
children	 given	 that	 the	 pain	 and	 fatigue	 he	 often	 experiences	
interferes	with	and	compromises	his	ability	to	parent	the	children.	
        	
        At	this	point,	[the	father]	presents	with	all	the	same	deficits	
he	presented	with	at	the	start	of	this,	except	for	a	nascent	ability	to	
manage	 his	 anger.	 	 His	 cognitive	 deficits	 along	 with	 his	 lack	 of	
foresight	seriously	impact	his	ability	to	safely	parent	these	children	
individually	or	together	with	[the	mother].		[The	father’s]	lack	of	
care	 around	 his	 personal	 health	 and	 safety,	 his	 inability	 to	 meet	
basic	educational	and	employment	goals	and	his	inability	to	take	
the	 initiative	 to	 put	 himself	 in	 a	 place	 where	 he	 can	 effectively	
parent	and	provide	for	the	needs	of	his	children	does	not	bode	well	
for	 his	 ability	 to	 meet	 the	 daily	 needs	 of	 two	 young	 and	 wholly	
dependent	children.	
        	
        [The	 mother],	 for	 her	 part,	 has	 engaged	 in	 services	 on	 a	
consistent	basis	in	the	months	immediately	preceding	the	hearing,	
despite	 a	 slow	 start	 where	 she	 often	 skipped	 scheduled	
appointments	and	classes.		The	mother,	despite	years	of	services,	
continues	to	struggle	with	emotional	and	mental	health	problems	
that	 interfere	 with	 her	 ability	 to	 parent	 the	 boys.	 	 As	 recently	 as	
November	 14,	 2016,	 [the	 mother]	 had	 to	 cut	 short	 a	 supervised	
child	 visit	 because	 she	 was	 unable	 to	 regulate	 her	 emotions	
sufficiently	 to	 parent	 the	 boys.	 	 While	 [the	 mother]	 receives	
support	from	[a	case	manager],	[the	mother]	continues	to	struggle	
to	maintain	her	mental	health	and	manage	her	ADHD,	she	and	[the	
8	

       father]	 struggle	 to	 maintain	 healthy	 communication	 and	 [the	
       mother]	continues	to	be	ambivalent	about	.	.	.	placing	the	needs	of	
       her	children	ahead	of	those	of	her	romantic	relationship,	even	if	the	
       romantic	relationship	could	pose	a	risk	to	her	children.		At	the	end	
       of	 the	 day,	 the	 Court	 agrees	 with	 the	 [guardian	 ad	 litem’s]	
       assessment	 that	 “I	 have	 not	 seen	 sufficient	 evidence	 that	 [the	
       mother]	 has	 increased	 her	 protective	 capacity	 or	 is	 prepared	 to	
       make	decisions	that	put	her	children’s	needs	and	safety	ahead	of	
       her	own	relationships.”		[The	mother]	acquiesces	in	[the	father’s]	
       poor	 decision-making	 and	 she	 remains	 with	 him	 despite	 [the	
       mother’s	 other	 son’s]	 disclosure	 of	 sexual	 abuse.	 	 By	 remaining	
       with	 [the	 father],	 she	 continues	 to	 prioritize	 her	 need	 to	 be	 in	 a	
       relationship	with	him	over	the	needs	of	her	children.			
       	
(Citations	omitted)	(footnote	omitted).	
	
                                    II.		DISCUSSION	

	      [¶3]		We	review	the	court’s	findings	on	parental	unfitness	for	clear	error,	

In	 re	 Mathew	 H.,	 2017	 ME	 151,	 ¶	 2,	 167	 A.3d	 561,	 and	 its	 conclusion	 that	

termination	is	in	the	child’s	best	interest	for	an	abuse	of	discretion,	“viewing	

the	facts,	and	the	weight	to	be	given	them,	through	the	trial	court’s	lens.”		In	re	

R.M.,	2015	ME	38,	¶	7,	114	A.3d	212.		We	will	not	disturb	the	court’s	jeopardy	

findings	 unless	 those	 findings	 are	 “clearly	 erroneous.”	 	 In	 re	 Dorothy	 V.,	

2001	ME	97,	¶	12,	774	A.2d	1118.			

       [¶4]		Here,	competent	record	evidence	supports	the	court’s	findings,	by	

clear	 and	 convincing	 evidence,	 that	 both	 parents	 are	 unable	 to	 take	

responsibility	for	Bentlee	G.,	and	that	they	are	unwilling	or	unable	to	protect	
                                                                                                               9	

him	from	jeopardy	within	a	time	reasonably	calculated	to	meet	his	needs.		See	

22	 M.R.S.	 §	 4055(1)(B)(2)(b)(i)-(ii).	 	 Competent	 evidence	 also	 supports	 the	

court’s	discretionary	finding	that	termination	of	the	parents’	parental	rights	is	

in	his	best	interest.		See	id.	§	4055(1)(B)(2)(a).		Also,	the	court’s	finding,	by	a	

preponderance	 of	 the	 evidence,	 that	 Brenton	 G.	 was	 in	 circumstances	 of	

jeopardy	to	his	health	and	safety	was	not	clearly	erroneous.		See	id.	§	4035(2).				

	        [¶5]	 	 The	 mother,	 relying	 on	 the	 due	 process	 clause	 of	 the	 Maine	 and	

United	States	Constitutions,	argues	that	the	January	26,	2016,	jeopardy	order	

as	to	Bentlee	G.	is	“void	for	vagueness.”		To	the	extent	this	argument	represents	

a	 direct	 appeal	 from	 the	 jeopardy	 order,	 even	 assuming	 that	 the	

void-for-vagueness	doctrine	applies	in	the	child	protection	context,	the	issue	is	

not	properly	before	us.		A	jeopardy	order	is	a	final	judgment,	and	must	therefore	

be	reviewed	on	direct	appeal.		See	22	M.R.S.	§§	4006,	4035	(2016).		Accordingly,	

the	mother	was	required	to	appeal	the	jeopardy	order	within	twenty-one	days	

after	it	was	entered.		See	M.R.	App.	P.	2(b)(3)	(Tower	2016);1	Collins	v.	Dep’t	of	

Corr.,	2015	ME	112,	¶	10,	122	A.3d	955	(holding	that	“[s]trict	compliance	with	

the	 time	 limits	 of	 M.R.	 App.	 P.	 2(b)	 .	 .	 .	 is	 a	 prerequisite	 to	 the	 Law	 Court	



    1	 	 The	 restyled	 Maine	 Rules	 of	 Appellate	 Procedure	 do	 not	 apply	 because	 this	 appeal	 was	 filed	

prior	to	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).	
10	

entertaining	an	appeal”	(quotation	marks	omitted)).		To	the	extent,	however,	

that	 the	 mother	 is	 arguing	 that	 the	 court	 erred	 in	 terminating	 her	 parental	

rights	 to	 Bentlee	 G.	 because	 the	 jeopardy	 order—seen	 as	 a	 predicate	 to	 the	

termination	order—was	defective,	her	contention	is	unpersuasive.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	      	     	    	
	
Amy	McNally,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	P.A.,	
Biddeford,	for	appellant	father	
	
Nathaniel	Seth	Levy,	Esq.,	Brunswick,	for	appellant	mother	
	
Janet	T.	Mills,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	
of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Springvale	District	Court	docket	numbers	PC-2015-16	and	PC-2016-27	
FOR	CLERK	REFERENCE	ONLY	
	
