MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision:   2013 ME 57
Docket:     Aro-12-324
Submitted
 On Briefs: May 30, 2013
Decided:    June 11, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, GORMAN, and JABAR, JJ.


                                  IN RE C.P. et al.

SAUFLEY, C.J.

         [¶1] The mother and father of two children, C.P. and C.P., appeal from a

judgment of the District Court (Houlton, O’Mara, J.) terminating their parental

rights to the children pursuant to 22 M.R.S. § 4055(1)(B)(2) (2012). The father

challenges the finding of unfitness, and both parents challenge the determination

that termination of their parental rights is in the children’s best interests given the

possibility that the children, ages thirteen and ten at the time of the termination of

parental rights, might not be adopted and could remain in long-term foster care.

We affirm the judgment of the District Court.

                                 I. BACKGROUND

         [¶2] On May 26, 2010, the children were removed from the home of the

mother and her boyfriend based on allegations of domestic violence and both

adults’ abuse of substances. The father could not provide a suitable placement
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because he had been in jail for assaulting the mother, was abusing substances, and

lived with his brother, who is a substantiated child sex offender.

          [¶3]      After a contested summary preliminary hearing, see 22 M.R.S.

§ 4034(4) (2012), the court ordered that the children remain in the custody of the

Department. The court held a jeopardy hearing in August 2010, see 22 M.R.S.

§ 4035 (2012), and found that the children were in circumstances of jeopardy that

necessitated continued placement with the Department.                             Following multiple

judicial reviews and permanency planning hearings, see 22 M.R.S. §§ 4038,

4038-B (2012), the Department petitioned for termination of the parental rights of

both parents in July 2011 due to the parents’ lack of progress and the children’s

needs for permanency.

          [¶4] A trial was held over the course of four days in April and May 2012.

Based on the evidence presented, the court entered a judgment terminating both

parents’ parental rights to the two children on June 14, 2012. The court found

three bases of unfitness as to each parent1 and determined that termination of each


    1
        The three statutory grounds of unfitness are as follows:

          (i) The parent is unwilling or unable to protect the child from jeopardy and these
          circumstances are unlikely to change within a time which is reasonably calculated to
          meet the child’s needs;

          (ii) The parent has been unwilling or unable to take responsibility for the child within a
          time which is reasonably calculated to meet the child’s needs; [or]

          ....
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parent’s parental rights was in each child’s best interest.                          See 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i), (ii), (iv). The parents moved for findings of fact, and the

court adopted some of their proposed findings.

       [¶5] The court found that both parents had failed to put the children first in

their lives and had impeded reunification by putting up roadblocks to their own

rehabilitation. The court also found that, two years after removal, neither parent

could safely care for the children. In terminating the parents’ parental rights, the

court reasoned that placement with either parent “would not be safe and would

quite likely fail.” Finally, the court found that the children need permanency now

and that long-term foster care is inherently impermanent. Therefore, the court

determined that, although “[t]he adoption process is not perfect,” the termination of

both parents’ parental rights was in the children’s best interests.

       [¶6] The parents timely appealed from the court’s judgment. See 22 M.R.S.

§ 4006 (2012); M.R. App. P. 2(b)(3).




       (iv) The parent has failed to make a good faith effort to rehabilitate and reunify with the
       child pursuant to section 4041.

22 M.R.S. § 4055(1)(B)(2)(b) (2012).
4

                                        II. DISCUSSION

A.       Unfitness

         1.     Findings of the Court

         [¶7] The court made the following findings regarding parental fitness, all of

which are supported by competent evidence in the record. See In re M.B., 2013

ME 46, ¶¶ 37, 39, --- A.3d ---. Although the father and the children have a bond

and he consistently visited with them, he has barely begun to address the issues

that brought the children into care. In particular, the father fails to accept or

recognize the threat posed to the children by his brother; admittedly lives in

housing that is not appropriate for the children; failed to meet with, or even call,

the GAL because he does not like him or want to see him; refused to participate in

some drug screens based on flimsy excuses; failed other drug screens; failed to

acknowledge the reasons that his children are not with him and to take all

necessary steps to ameliorate jeopardy; blamed others for his family’s situation;

and failed to recognize the immediate need of his children for him to provide a

permanent home.

         [¶8] The mother2 has continually failed drug screens due to marijuana and,

more recently, Suboxone use.              She maintains a relationship with her abusive


     2
     The mother does not challenge the court’s finding of unfitness. These facts are included to provide
context for the court’s determination of the children’s best interests.
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boyfriend3 and left the state with him a week before the hearing, causing her to

miss a court date in another matter.               She failed to recognize and accept her

involvement in the loss of her children; to take all necessary steps to ameliorate

jeopardy; to participate in a psychological evaluation and assessment and follow

through with individual counseling; to arrive at court events on time or at all,

including on the first day of the termination hearing; and to recognize that the

children need her to provide a permanent home immediately.

       2.      Review of the Finding that the Father is Unfit to Parent these Children

       [¶9] Only the father challenges the court’s findings regarding his parental

fitness. “When the burden of proof at trial is clear and convincing evidence, our

review is to determine whether the fact-finder could reasonably have been

persuaded that the required findings were proved to be highly probable.” In re

M.B., 2013 ME 46, ¶ 37, --- A.3d --- (quotation marks omitted).

       [¶10] Given the court’s findings, all of which are supported by competent

evidence in the record, see id. ¶ 39, we discern no error in the court’s

determinations that it was highly probable that the father was unwilling or unable

to protect the children from jeopardy or to take responsibility for them within a

time reasonably calculated to meet their needs, and that he failed to make a good
   3
     The mother had two children with that abusive boyfriend. C.P. and C.P. are afraid of the mother’s
boyfriend and what he might do to their mother. The mother’s and boyfriend’s parental rights to their
older child have been terminated, and the termination of their parental rights to their younger child is
currently on appeal to us in a separate matter.
6

faith effort to rehabilitate and reunify with the children.          See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i), (ii), (iv); In re M.B., 2013 ME 46, ¶ 37, --- A.3d ---; see also

22 M.R.S. § 4041(1-A)(B) (2012).

B.     Best Interests of the Children

       [¶11] The parents argue that the children are at risk of being in long-term

foster care, without parental involvement, because the prospects for adoption are

not certain. They contend that the termination of their parental rights will not

make their children’s living situations more permanent and will expose the

children to emotional harm resulting from the loss of their parents’ involvement in

their lives.

       1.      Findings Regarding the Children’s Best Interests

       [¶12]    The court made the following findings regarding the children’s

circumstances. From the time of the children’s removal in May 2010 until early

January 2012, they lived in a foster home in Fort Fairfield. Because of a foster

parent’s medical issues, the children were quickly moved to a new foster home in

Danforth, which was difficult for the children because they had to adjust to a new

school and service providers.       At the time of the hearing, the Department

anticipated that another change in placement was upcoming.
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      [¶13]    Both children have busy schedules because they attend school,

multiple weekly visits with their parents, and counseling. They would like to have

time to themselves.

      [¶14] The children have significant needs. The thirteen-year-old child has

Asperger’s disorder and depressive disorder. He finds transition difficult and

needs predictable, structured, familiar routines and rules.      Highly stimulating

environments often overwhelm him.

      [¶15] The ten-year-old child has been diagnosed with oppositional defiant

disorder, attention deficit hyperactivity disorder, and anxiety. She is reserved, does

not like to be touched, and is not prepared to engage fully in counseling. With

predictability, consistency, and permanency, she could overcome the oppositional

defiant disorder and anxiety. Any future placement must be successful to be in her

best interest; she needs a permanent home now.           The children are strongly

connected to each other and should be placed in the same home together.

      2.      Review of the Court’s Best Interest Determinations

      [¶16] In reviewing a court’s determination of the best interest of a child in a

child protection proceeding, “we review the court’s factual findings for clear error

but its ultimate conclusion for an abuse of discretion, viewing the facts, and the

weight to be given them, through the trial court’s lens.” In re M.B., 2013 ME 46,

¶ 37, --- A.3d --- (citation and quotation marks omitted).
8

      [¶17] The court’s findings and analysis demonstrate that it fully considered

the statutorily defined purposes for terminating parental rights in determining that

termination of parental rights was in these children’s best interests. See 22 M.R.S.

§ 4050 (2012).     Particularly, the court evaluated whether the termination of

parental rights in this matter would prevent the children from having to “wait

unreasonable periods of time for their parents to correct the conditions which

prevent their return to the family” and would “[p]romote the adoption of [the]

children into [a] stable famil[y] rather than allowing [the] children to remain in the

impermanency of foster care.” Id. § 4050(2), (3).

      [¶18] As the court noted, long-term foster care is inherently impermanent

and therefore disfavored as a permanency plan for children. See In re David W.,

2010 ME 119, ¶¶ 6-8, 8 A.3d 673; In re Thomas H., 2005 ME 123, ¶¶ 24-30, 889

A.2d 297. Despite possible challenges in locating an adoptive placement for older

children who have special needs, their adoption is not impossible, and the guardian

ad litem specifically testified that adoptions of children with high needs do happen.

The court was in no way imposing a permanency plan for long-term foster care by

terminating the parental rights of the mother and father. The permanency plan will

require the Department to seek a permanent adoptive home for the children.

      [¶19] Based on the court’s findings of fact, which are amply supported by

competent evidence in the record, the court acted within its discretion, see In re
                                                                                                  9

M.B., 2013 ME 46, ¶¶ 37, 39, --- A.3d ---, when it reached the ultimate

determination, consistent with the guardian ad litem’s opinion, that for these

children, being freed for adoption is greatly preferable to waiting, with little

likelihood of success, for either of the parents to create a safe home for them. In

such circumstances, where the only real hope for children is to be placed in a

healthy, supportive, and permanent adoptive home, the court does not err or abuse

its discretion in finding termination to be in the best interests of the children, even

if the possibility of adoption is less than certain.              As the guardian ad litem4

testified, “these children do need permanence. They will have special needs for the

rest of their lives. The right home, hopefully, if it could be found, could really do

wonderful things for these kids.”

       [¶20] The court’s determination that the children’s best interests required

that they be legally freed for adoption as soon as possible is both well supported by

the record and consistent with the legislatively expressed policy that children need

and deserve permanent healthy families.

       The entry is:

                       Judgment affirmed.

_______________________________

   4
     The guardian ad litem began working with these children on a pro bono basis at the request of a
judge when the parents became involved in a contentious family matter. He was later appointed as
guardian ad litem in this child protection proceeding.
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On the briefs:

        Matthew A. Hunter, Esq., Presque Isle, for appellant mother

        Michele D. L. Kenney, Esq., Houlton, for appellant father

        William J. Schneider, Attorney General, and Nora Sosnoff, Asst. Atty. Gen.,
        Augusta, for appellee Department of Health & Human Services



Houlton District Court docket number PC-2010-004
FOR CLERK REFERENCE ONLY
