MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision:    2020 ME 3
Docket:      Ken-19-296
Submitted
  On Briefs: December 17, 2019
Decided:     January 7, 2020

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



                                 IN RE CHILD OF COREY B.

PER CURIAM

         [¶1]      Corey B. appeals from a judgment of the District Court

(Waterville, Montgomery, J.) terminating his parental rights to his child. The

father challenges the court’s findings that he was unable to take 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) (2018), and that termination of his parental

rights is in the child’s best interest, see id. § 4055(1)(B)(2)(a) (2018).

In addition, he alleges that the court violated his constitutional rights.

We affirm the judgment.

                                      I. BACKGROUND

         [¶2] On July 6, 2017, when the child was two years old, the Department

of Health and Human Services filed a petition for a child protection order. See

id. § 4032 (2018). The mother agreed to a finding of jeopardy (Stanfill, J.) on

October 25, 2017, and the father agreed to a finding of jeopardy on
2

January 30, 2018. See id. § 4035 (2018). On November 8, 2018, the Department

filed a petition to terminate the mother’s1 and father’s parental rights. See id.

§ 4052 (2018). After a two-day hearing on March 29, 2019, and May 9, 2019,

see id. § 4054 (2018), the court (Montgomery, J.) entered a judgment

terminating the father’s parental rights to the child.

        [¶3] The court made the following findings of fact, which are supported

by competent record evidence. See In re Child of Kimberly K., 2019 ME 145, ¶ 4,

217 A.3d 63.

               [The child] was born drug-affected . . . . At that time, [the
        father] was incarcerated. He was released from prison on
        March 8, 2017[,] with three years’ probation. Shortly thereafter,
        [the mother] was arrested for Domestic Violence Assault, and she
        faced a full probation revocation. [She] placed [the child] with her
        mother . . . . At some point thereafter, [the child] began staying with
        [the father] at [the father’s] mother’s home.

              ....

               By mid-June 2017, [the mother and father] indicated their
        intent to reconcile and live together in an apartment [the mother]
        had secured. DHHS asked the couple to participate in random drug
        screening, but both parents failed to go. On June 29, 2017, [the
        mother] overdosed on heroin. [The child] was with her at that
        time. In fact, [the father] was also initially present at [the mother’s]
        residence, but he left her residence because [she] was using.
        Despite knowing that she was using drugs, [the father] left [the
        child] there with [the mother]. . . .


    1The child’s mother consented to an order terminating her parental rights to the child on
March 29, 2019, and she is not a party to this appeal.
                                                                          3

      . . . [The father] was taken by police to the hospital in early
September 2017 for a possible overdose. [The father] admitted to
using heroin at that time. In early November, [the father’s
probation officer] reported that [the father] was living with several
other people in an apartment where there were mattresses lined
up on the floor. The Department was unable to make any contact
with [the father] throughout November and December 2017.
In mid-December 2017, [the father’s] requested paternity test
result showed him to be [the child’s] father.

      [The child] entered foster care [in October 2017]. He was
placed with . . . his maternal grandmother. By April 3, 2018, DHHS
reported that [the child] had achieved stability and had begun to
show more age-appropriate behaviors. He was enrolled in child
care where he received socialization, structure and exercise.

      On January 30, 2018, [the child’s father] agreed to Jeopardy,
and he began to make efforts toward reunification with [the child].
As part of the reunification plan, he agreed to participate in services
to address his mental health issues and significant substance abuse.
[The father] also completed drug screens through probation,
consistently testing positive for marijuana use (for which he had a
card) and for Suboxone, for which he did not have a prescription.
He did not, however, participate in the recommended random drug
screens through DHHS.

      [The father] agreed to participate in the MEPP [Maine
Enhanced Parenting Project] program, but his consistent
marijuana use was a potential obstacle in the MEPP abstinence
program. . . .

       Despite the marijuana use and [a] transportation problem,
[the father] did well in MEPP. He was reportedly forthright, open
to suggestions and fully participating in groups. He was set to
graduate in July 2018. He was employed full time and doing well at
his job. He moved into Serenity House, so his living situation was
more stable (although not appropriate for [the child]). He was
working toward obtaining permanent housing. He was attending
4

    weekly visits with [the child], for which he was appropriately
    prepared . . . . The visits were going very well. . . .

          [The father] completed the MEPP IOP [Intensive Outpatient
    Program] and parenting sessions in July 2018. He remained sober
    while in the program—with the exception of marijuana use—and
    worked to decrease that as well. At the same time, he was doing
    very well with his probation conditions. Although recommended,
    however, [the father] did not engage in follow-up counseling at
    Crossroads when he graduated from MEPP. He did begin seeing
    [a physician who specializes in addiction] for Suboxone treatment.

          Beginning in mid-August, [the father’s] visits with [the child]
    were increased from two hours to four hours and thirty minutes.
    The longer visits seemed to go very well.

          During the month of September 2018, although he had
    visited with [the child] consistently up to that point, [the father]
    began missing visits. . . .

           In mid-October, [the father] was involuntarily discharged
    from his Suboxone treatment . . . . One of [the father’s] drug tests
    was positive for alcohol and Opana (oxymorphone, an opiate).
    While [the father] readily admitted to using alcohol, he vehemently
    denied using opiates. Believing the positive test results were
    legitimate and not the result of lab error, [his physician] discharged
    [the father] from the Suboxone treatment. Likewise, as a
    consequence of having missed . . . three visits in September, [the
    father’s] visitation was suspended in November 2018.

         [The child] continued to make positive strides in his
    placement. He had difficulty, however, with regulating his own
    emotions and behaviors. He was referred to child development and
    counseling services.

           At the January 22, 2019[,] [Facilitated Family Team Meeting],
    [the father] reported that he had started counseling at Crossroads.
    He had lost his job but was looking for a new one. He was not back
                                                                          5

in Suboxone treatment but reported that he was doing well without
it. He continued to comply with the conditions of his probation
with the exception of losing his job and failure to find stable
housing.

      In essence, DHHS seeks to terminate [the father’s] parental
rights to [the child] for several reasons related to his own
consistency and stability. First, the Department contends that [the
father] missed enough visits with [the child] in September 2018 to
result in suspension of visitation. In fact, even once visits were
reinstated in January 2019, he missed two more. By the time of
hearing, [the father] had not seen [the child] since
February 8, 2019.

       Additionally, since July 2017, [the father] had several
housing arrangements—some with family, some with friends—
none of which would accommodate [the child]. Moreover, he
contended at hearing that his grandmother had room for both he
and [the child] and that he was moving there. Although his
grandmother confirmed that he could stay at her home with [the
child], [the father] had not taken the steps necessary to finalize that
move. In fact, the record evidence showed that [the father] knew
from the time of his release from prison that stable housing was a
significant factor in reunification. A year and nine months after
[the child] entered foster care, however, [the father] is still without
a track record of living in a stable home environment for more than
a few months.

      Finally, [the father’s] employment situation has also been
inconsistent. While [the father] has been fairly dedicated to
looking for and obtaining employment, he has not consistently
maintained employment for more than a few months at a time since
he was released from prison.

      While the court acknowledges and commends [the father] on
his extended sobriety as to opiates, along with the progress he has
made to be “comfortable in [his] own skin,” [the father] has not yet
6

      achieved the kind of stability and consistency in his own life to
      nurture and care for [the child].

            ....

            . . . In short, the court finds by clear and convincing evidence
      that the first two statutory definitions of parental unfitness are
      established with respect to [the father].

            ....

            [The child] continues to reside with his maternal
      grandmother, her partner, and . . . his 13-year-old half-brother.
      Although the home is small and the boys must share a room, [the
      child] has clearly benefitted from the routine and stability
      established there. He is a happy and active four-year-old boy who
      continues to show very good development. He speaks much more
      clearly and has increased his vocabulary. He responds well to
      redirection but still struggles some with aggressive behavior
      toward other children. The court does not doubt that a safe, loving,
      and stable home is in [the child’s] best interest.

                                II. DISCUSSION

A.    The Father’s Unfitness

      [¶4] The father argues that at the time of the termination hearing, he was

willing and able to alleviate jeopardy and take responsibility for the child. We

set aside a trial court’s finding of unfitness based upon clear and convincing

evidence “only if there is no competent evidence in the record to support it, if

the fact-finder clearly misapprehends the meaning of the evidence, or if the

finding is so contrary to the credible evidence that it does not represent the
                                                                                7

truth and right of the case.” In re Cameron B., 2017 ME 18, ¶ 10, 154 A.3d 1199

(quotation marks omitted). Evidence is clear and convincing when “the trial

court could have reasonably been persuaded on the basis of evidence in the

record that the required factual findings were highly probable.” In re Charles G.,

2001 ME 3, ¶ 5, 763 A.2d 1163 (quotation marks omitted).

      [¶5] Here, the court concluded based upon clear and convincing evidence

that, despite his progress, the father “has not yet achieved the kind of stability

and consistency” necessary to care for the child. Given the court’s supported

factual findings, that conclusion is not clearly erroneous. See In re Cameron B.,

2017 ME 18, ¶ 10, 154 A.3d 1199.

      [¶6] The father next contends that the court erred in finding that he

tested positive for oxymorphone while he was a patient of the physician

treating him for addiction. The finding was based on the physician’s testimony.

Ordinarily, “[w]e review a trial court’s decision to admit evidence for abuse of

discretion or clear error.” In re Arturo G., 2017 ME 228, ¶ 19, 175 A.3d 91.

However, where a challenge was not preserved for appellate review, we apply

the obvious error standard.      See M.R. Evid. 103(d); State v. Haji-Hassan,

2018 ME 42, ¶ 13, 182 A.3d 145.
8

      [¶7] The father objected to the physician’s testimony at the hearing on

reliability and hearsay grounds. However, the fact that the physician had stated

that the father tested positive for the opiate was already admitted in evidence

in the agreed-to findings of the court’s (Stanfill, J.) November 28, 2018, judicial

review and permanency planning order, and the father did not object to the

order’s admission at hearing. See M.R. Evid. 703; see also State v. Archer,

2011 ME 80, ¶ 20, 25 A.3d 103 (concluding that the trial court was correct to

allow the State’s medical expert to testify about a medical record that was

already in evidence); In re Scott S., 2001 ME 114, ¶ 12, 775 A.2d 1144 (“When

a different trial judge presides at a later stage of the process, that trial judge . . .

may consider and rely on the findings of fact and conclusions of law contained

in the orders or judgments entered by the prior judge.”).

      [¶8] The court (Montgomery, J.) here did not commit obvious error when

it considered the finding regarding the positive drug test in the November 2018

order.   Furthermore, the father has failed to demonstrate that he was

prejudiced by the admission of the physician’s testimony concerning the drug

test. See In re Joshua B., 2001 ME 115, ¶ 10, 776 A.2d 1240 (explaining the

obvious error standard and noting that a “party claiming error must

demonstrate prejudice from the error”). The court’s findings rest on a number
                                                                               9

of grounds apart from the father’s drug test result. The court did not err in

finding the father unfit.

B.    Best Interest of the Child

      [¶9] Contrary to the father’s contention, the court did not abuse its

discretion in determining that termination of the father’s rights was in the

child’s best interest. See 22 M.R.S. § 4055(1)(B)(2)(a). “We review the court’s

factual findings related to the child’s best interest for clear error, but its

ultimate conclusion regarding the child’s best interest for abuse of discretion.”

In re Thomas H., 2005 ME 123, ¶ 16, 889 A.2d 297. Specifically, the father’s

argument centers around an assertion that the child’s current placement with

his maternal grandmother fails to achieve permanency.

      [¶10] The question of who should adopt a child is beyond the scope of a

termination proceeding. See In re Children of Nicole M., 2018 ME 75, ¶ 17,

187 A.3d 1. However, the court may evaluate a child’s current placement as

part of its best interest determination.     22 M.R.S. § 4055(2) (2018); see

In re Kenneth S., 2017 ME 45, ¶ 6, 157 A.3d 244 (“[I]n conducting a best interest

analysis, the court may consider evidence that the current foster placement is

furthering the child’s permanency plan, especially where that plan is to place

the child for adoption.”); In re Annie A., 2001 ME 105, ¶ 28, 774 A.2d 378. Here,
10

substantial evidence in the record supported the court’s finding that the child’s

current placement with his maternal grandmother benefits the child.

Combined with the court’s other best interest findings regarding the child’s

developmental progress, the court did not err in determining that termination

of the father’s rights was in the child’s best interest.

C.    Due Process

      [¶11] The father argues that his constitutional rights were violated

because the court placed greater weight on the child’s need for permanency

than on the father’s fundamental due process right to parent his child. See

Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). His argument centers on the

trial court’s language measuring the length of time the father needs in order to

be able to protect the child from jeopardy against the time within which the

child should achieve permanency:

            As in most protective child custody cases, when this case
      began, two timeclocks began to run. One measured the time [the
      father] needed to stabilize himself, especially in the areas of
      housing, employment, and sobriety maintenance. The other
      measured the maximum time period necessary for [the child] to
      achieve permanency. Unfortunately, these two timeclocks do not
      measure the same length of time.

            On the one hand, the kind of stability [the father] is struggling
      to achieve in his own life takes time, and [he] may, in fact, be on the
      path to success in this regard. Even so, however, each of these
      goals—housing, employment, and sobriety—are reached through
                                                                                 11

      a process that requires time, trial and error, developed insights, and
      consistency. Despite the age of this case, [the father] has not met
      any of these goals for any significant duration.

            On the other hand, the maximum time period necessary for
      [the child] to achieve permanency has turned out to be a shorter
      period than the time [the father] needs to achieve stability. The
      time for [the child] to achieve permanency is now; the time [the
      father] needs to achieve stability still requires months. . . .

      [¶12] Because the father raises this constitutional argument for the first

time on appeal, we apply the obvious error standard of review. See In re Child

of Lacy H., 2019 ME 110, ¶ 9, 212 A.3d 320. The Legislature measures a parent’s

ability to “protect the child from jeopardy” or “take responsibility for the child,”

in terms of a “time which is reasonably calculated to meet the child’s needs.”

22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii). As we have frequently noted, the trial

court must assess the time frame within which the parent can protect the child

from the perspective of the child rather than the parent. See In re Child of

Dawn B., 2019 ME 93, ¶ 16, 210 A.3d 169.

      [¶13] “Through many years of interpretation, we have concluded that

the procedures, burdens, and standards set out in section 4055 constitute the

means by which the fundamental constitutional right to parent is safeguarded.”

Adoption of Tobias D., 2012 ME 45, ¶ 17, 40 A.3d 990. We have recognized that

“[w]hen the Legislature enacted the Child and Family Services and Child
12

Protection Act, it established permanency as the central tenet of the act.”

In re B.P., 2015 ME 139, ¶ 19, 126 A.3d 713; see In re Jamara R., 2005 ME 45,

¶ 22, 870 A.2d 112 (“[O]nce a child has been placed in foster care, a statutory

clock begins ticking. In setting that clock, the Legislature has spoken in terms

of days and months, rather than in years, as might better fit an adult’s

timeframe for permanent change.”), overruled in part on other grounds by

In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d 1118. Because Maine’s clear and

convincing evidence standard is constitutional, and the court here correctly

applied that standard, we affirm the court’s judgment. See In re Child of

Shayla S., 2019 ME 68, ¶ 9, 207 A.3d 1207; In re Child of Scott L., 2019 ME 102,

¶ 11, 210 A.3d 845.

        The entry is:

                           Judgment affirmed.



Julian Richter, Esq., Richter Law, LLC, Gardiner, 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


Waterville District Court docket number PC-2017-24
FOR CLERK REFERENCE ONLY
