MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	158	
Docket:	      Han-18-285	
Submitted	
  On	Briefs:	 November	28,	2018	
Decided:	     December	6,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                            IN	RE	CHILD	OF	DOMENICK	B.	
	
	
PER	CURIAM	

         [¶1]		Domenick	B.	appeals	from	an	order	of	the	District	Court	(Ellsworth,	

Roberts,	J.)	terminating	his	parental	rights	to	his	child.1		He	argues	that	there	is	

insufficient	 evidence	 to	 support	 the	 court’s	 finding	 of	 parental	 unfitness.		

Alternatively,	 the	 father	 argues	 that	 the	 court	 abused	 its	 discretion	 by	

terminating	 his	 parental	 rights	 rather	 than	 imposing	 a	 permanency	

guardianship.		We	affirm.	

                                    I.		BACKGROUND	

         [¶2]	 	 The	 following	 facts,	 all	 of	 which	 are	 supported	 by	 competent	

evidence,	are	drawn	from	the	court’s	judgment	and	the	procedural	record.		See	

In	re	Children	of	Nicole	M.,	2018	ME	75,	¶	2,	187	A.3d	1.		The	child	was	born	in	




    	The	mother	consented	to	the	termination	of	her	parental	rights,	and	we	thus	focus	only	
    1	

on	the	procedural	history	and	findings	regarding	the	father.		
2	

December	 2013,	 while	 the	 mother	 was	 incarcerated	 in	 Colorado.	 	 Several	

months	later,	the	child’s	maternal	grandparents	brought	the	child	to	Maine	to	

reside	with	them,	and	the	father	followed	shortly	afterwards.		The	mother	was	

released	from	prison	on	parole	in	early	2015	and	also	returned	to	Maine.			

      [¶3]		Shortly	after	the	mother’s	return	to	Maine,	the	father	was	arrested	

for	assaulting	her	with	the	child	present.		The	Department	of	Health	and	Human	

Services	 filed	 a	 child	 protection	 petition,	 alleging	 that	 the	 father’s	 substance	

abuse,	 anger,	 and	 domestic	 violence	 placed	 the	 child	 at	 risk	 of	 harm.	 	 See	

22	M.R.S.	 §	 4032	 (2017).	 	 The	 court	 entered	 a	 jeopardy	 order	 by	 agreement,	

placing	the	child	with	her	maternal	grandparents.		See	22	M.R.S.	§	4035	(2017).		

Among	other	things,	for	a	successful	reunification,	the	jeopardy	order	required	

the	father	to	participate	in	a	substance	abuse	evaluation	and	individual	therapy	

to	 address	 childhood	 trauma	 and	 anger	 issues,	 participate	 in	 random	 drug	

screening,	 and	 refrain	 from	 using	 any	 nonprescribed	 mood-altering	

substances.			

      [¶4]		In	November	2017,	the	Department	filed	a	petition	for	termination	

of	the	father’s	parental	rights.		See	22	M.R.S.	§	4052	(2017).		A	two-day	hearing	

was	held	on	the	petition	in	May	and	June	2018.		Following	the	hearing,	the	court	

entered	 a	 judgment	 granting	 the	 petition	 to	 terminate	 the	 father’s	 parental	
                                                                                       3	

rights	after	finding	that	he	was	unable	to	protect	the	child	from	jeopardy	or	take	

responsibility	for	her	within	 a	time	reasonably	calculated	to	 meet	the	child’s	

needs.		See	22	M.R.S.	§	4055(1)(B)(2)(b)(i)-(ii)	(2017);	In	re	Thomas	D.,	2004	

ME	104,	¶	21,	854	A.2d	195.			

	     [¶5]	 	 The	 court’s	 decision	 was	 based	 on	 the	 following	 findings,	 all	 of	

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

2012	ME	118,	¶	29,	55	A.3d	463.	

             The	 court	 finds	 that	 [the	 father]	 has	 not	 participated	 in	
      individual	therapy	to	address	his	childhood	trauma	issues	and	how	
      those	 may	 impact	 his	 parenting	 capability.	 	 [The	 father]	 has	 not	
      participated	 in	 therapy	 to	 work	 on	 his	 anger	 issues.	 	 He	 began	
      therapy	 with	 [a	 mental	 health	 counselor],	 participated	
      sporadically,	 then	 discontinued	 treatment	 October	 20,	 2017,	
      without	completing	his	goals.			
      	
             [The	father]	has	engaged	in	substance	abuse	therapy	through	
      [a]	 methadone	 program	 since	 July	 of	 2016.	 	 He	 has	 had	 negative	
      tests	for	opiates	through	his	treatment	and	reports	that	his	opiate	
      addiction	 has	 been	 in	 remission	 for	 five	 years.	 	 [The	 father’s]	
      substance	 abuse	 therapy	 would	 be	 considered	 successful	 were	 it	
      not	for	his	use	of	alcohol.		[The	father]	has	been	on	notice	since	he	
      began	 participation	 in	 the	 [methadone	 treatment]	 program	 that	
      alcohol	use	is	dangerous	for	him	and	is	therefore	prohibited.		[The	
      father]	 was	 warned	 to	 stop	 his	 use	 of	 alcohol	 following	 a	 failed	
      screen	on	March	13,	2018.		He	promised	to	discontinue	his	use	of	
      alcohol	 at	 a	 subsequent	 family	 team	 meeting.	 	 Unfortunately,	 he	
      tested	 positive	 for	 alcohol	twice	 since	 March,	 including	 the	 week	
      before	 this	 hearing.	 	 The	 [c]ourt	 concludes	 that	 substance	 abuse	
      therapy	has	not	been	completed	satisfactorily	to	this	point.			
      	
4	

            The	court	recognizes	that	[the	father]	loves	his	[child]	very	
     much,	and	he	wants	very	much	to	reunify	with	[her].		The	court	also	
     has	 no	 doubt	 that	 [the	 child]	 loves	 [her]	 father.	 	 The	 court	 finds,	
     however,	that	[the	father]	has	been	very	inconsistent	in	his	mental	
     health	services,	and	despite	the	significant	passage	of	time,	he	has	
     made	insufficient	progress	towards	alleviating	jeopardy.			
     	
            .	.	.	.	
     	
            [The	father],	to	his	credit,	has	gained	employment	and	taken	
     steps	toward	establishing	a	home	where	he	can	care	for	[the	child].		
     [The	father]	has	simply	not	made	the	effort	at	reunification	that	he	
     should	have	made	.	.	.	.			
     	
            [The	father’s]	relationship	with	[the	mother]	was	marred	by	
     domestic	 violence	 and	 substance	 abuse.	 	 Both	 parents	 report	 a	
     history	of	violent	behaviors	toward	each	other	.	.	.	[and	the	father]	
     did	not	complete	the	therapy	he	needed	to	address	and	understand	
     how	 his	 own	 childhood	 trauma	 and	 anger	 issues	 may	 impact	 his	
     parenting.			
     	
            This	is	an	old	case,	and	[the	child]	needs	permanency.		The	
     child	has	been	in	the	custody	of	DHHS	since	August	25,	2016.		She	
     has	been	in	the	care	of	her	maternal	grandparents,	with	or	without	
     her	parents’	involvement,	for	most	of	her	life.		Despite	the	length	of	
     time	and	the	numerous	opportunities,	father	has	made	insufficient	
     progress	and	is	unable	to	take	responsibility	of	[the	child].			
     	
            .	.	.	.	
     	
            [The	maternal	grandparents]	have	been	providing	excellent	
     care	for	[the	child]	.	.	.	.		Furthermore,	the	[maternal	grandparents]	
     recognize	 the	 importance	 of	 [the	 child]	 having	 an	 ongoing	
     relationship	with	her	father	to	whom	she	is	bonded.		The	[maternal	
     grandparents]	 supported	 [the	 mother]	 and	 [the	 father]	 in	 their	
     attempts	 at	 rehabilitation.	 	 These	 proceedings	 have	 strained	 the	
     relationship	between	the	[maternal	grandparents]	and	[the	father],	
                                                                                           5	

       but,	 they	 are	 willing	 to	 work	 to	 make	 sure	 that	 [the	 child]	 has	 a	
       relationship	going	forward.			
       	
              .	.	.	.	
       	      	
              .	.	.	.	Given	the	length	of	this	case,	the	lack	of	progress	by	the	
       father,	and	[the	child’s]	need	for	permanency,	.	.	.	[the	guardian	ad	
       litem]	 recommends	 that	 [the	 father’s]	 parental	 rights	 be	
       terminated	.	.	.	and	the	court	agrees	with	her	assessment.			
	
                                    II.		DISCUSSION	

A.	    Parental	Unfitness	

	      [¶6]		The	father’s	main	argument	is	that	there	is	insufficient	evidence	to	

establish	his	parental	unfitness	by	clear	and	convincing	evidence.		Contrary	to	

his	argument,	competent	evidence	supports	the	court’s	determination	that	the	

father	is	unable	to	protect	the	child	from	jeopardy	or	take	responsibility	for	the	

child	 within	 a	 time	 reasonably	 calculated	 to	 meet	 her	 needs.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b)(i)-(ii);	In	re	Thomas	D.,	2004	ME	104,	¶	21,	854	A.2d	195.			

       [¶7]		Throughout	the	entirety	of	this	case,	the	father	was	on	notice	that	

addressing	his	mental	health	concerns	and	remaining	sober	 were	the	court’s	

and	 the	 Department’s	 main	 concerns.	 	 While	 the	 father’s	 continued	 sobriety	

from	opioids	is	commendable,	he	was	repeatedly	warned	that	positive	alcohol	

tests	 would	 put	 reunification	 with	 his	 child	 at	 risk.	 	 Despite	 this,	 the	 father	

continued	 to	 test	 positive	 for	 alcohol	 use,	 including	 the	 week	 prior	 to	 the	
6	

termination	hearing.		Further,	the	father	failed	to	start	mental	health	treatment	

for	 many	 months	 and,	 even	 then,	 was	 inconsistent	 in	 his	 attendance	 until	

ultimately	ceasing	all	treatment	in	late	 October	2017.		Accordingly,	the	court	

did	 not	 err	 in	 finding,	 by	 clear	 and	 convincing	 evidence,	 that	 the	 father	 has	

failed	to	alleviate	jeopardy	or	be	able	to	take	responsibility	for	the	child	despite	

an	almost	two-year	effort	at	reunification.		See	In	re	Thomas	D.,	2004	ME	104,	

¶¶	21-22,	854	A.2d	195.			

B.	   Child’s	Best	Interest	

	     [¶8]		The	father	alternatively	argues	that	even	if	the	court	did	not	err	by	

determining	that	he	was	unfit	as	a	parent,	it	should	have	ordered	a	permanency	

guardianship	 rather	 than	 termination	 of	 his	 parental	 rights.	 	 We	 review	 the	

court’s	 determination	 regarding	 the	 appropriateness	 of	 a	 permanency	

guardianship	for	an	abuse	of	discretion.		See	In	re	Haylie	W.,	2017	ME	157,	¶	4,	

167	A.3d	576;	In	re	Cameron	B.,	2017	ME	18,	¶	11,	154	A.3d	1199;	In	re	Michaela	

C.,	2002	ME	159,	¶	27,	809	A.2d	1245	(“The	[court’s]	judgment	on	the	issue	of	

best	interest	is	entitled	to	substantial	deference	because	that	court	is	able	to	

directly	evaluate	the	testimony	of	the	witnesses.”).		

	     [¶9]		Once	a	court	determines	that	a	parent	is	unfit,	it	must	also	determine	

whether	 termination	 of	 that	 parent’s	 parental	 rights	 is	 in	 the	 child’s	 best	
                                                                                        7	

interest.		22	M.R.S.	§	4055(1)(B)(2)(a)	(2017);	In	re	Scott	S.,	2001	ME	114,	¶	19,	

775	 A.2d	 1144.	 	 As	 an	 alternative	 to	 termination,	 a	 court	 may	 create	 a	

permanency	 guardianship	 as	 part	 of	 a	 permanency	 plan	 “to	 establish	 safe,	

long-term	care	for	a	child	who	is	the	subject	of	a	child	protection	proceeding.”		

In	 re	 Cameron	 B.,	 2017	 ME	 18,	 ¶	 12,	 154	 A.3d	 1199;	 see	 22	 M.R.S.	 §	 4038-C	

(2017).		When	appropriate,	“a	permanency	guardianship	allows	parents	whose	

child[]	 cannot	 be	 returned	 to	 them	 to	 have	 a	 meaningful	 opportunity	 to	

maintain	a	legal	relationship	with	their	child[],	and	to	have	the	court	determine	

their	rights	to	have	contact	with	their	child[].”		In	re	Cameron	B.,	2017	ME	18,	

¶	12,	154	A.3d	1199.			

	     [¶10]		Here,	the	court	expressly	considered	the	option	of	a	permanency	

guardianship	upon	the	request	of	the	father,	but	determined	that	it	was	not	in	

the	 child’s	 best	 interest	 because	 of	 substantial	 strain	 in	 the	 relationship	

between	the	father	and	the	maternal	grandparents.		See	id.	¶	13	(stating	that	

tensions	between	a	foster	parent	and	the	parents	was	an	appropriate	factor	for	

the	court	to	consider	in	denying	a	request	for	a	permanency	guardianship).		The	

child	 has	 been	 in	 the	 grandparents’	 care	 for	 almost	 her	 entire	 life,	 and	 the	

creation	of	a	permanency	guardianship	would	leave	the	shadow	of	future	legal	

proceedings	 at	 a	 time	 when	 the	 child	 needs	 a	 stable,	 permanent	 home.	 	 See	
8	

22	M.R.S.	 §§	4003(4),	 4050(2)-(3),	 4055(1)(B)(2)(a)	 (2017);	 In	 re	 Haylie	 W.,	

2017	ME	157,	¶	4,	167	A.3d	576.		Accordingly,	the	court	did	not	err	or	abuse	its	

discretion	 in	 terminating	 the	 father’s	 parental	 rights.	 	 See	 In	 re	 Thomas	 H.,	

2005	ME	123,	¶¶	16-17,	889	A.2d	297.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	     	    	
	
Robert	Van	Horn,	Esq.,	Van	Horn	Law	Office,	Ellsworth,	for	appellant	father	
	
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	
	
	
Ellsworth	District	Court	docket	number	PC-2016-16	
FOR	CLERK	REFERENCE	ONLY	
