MAINE	SUPREME	JUDICIAL	COURT	                                            Reporter	of	Decisions	
Decision:	      2018	ME	132		
Docket:	        And-18-165	
Submitted	
				On	Briefs:	 September	26,	2018	
Decided:	       October	4,	2018	
	
Panel:	         SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                  IN	RE	CHILD	OF	JOSHUA	S.		
	
	
PER	CURIAM	

        [¶1]	 	 Joshua	 S.	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	 Court	

(Lewiston,	Beliveau,	J.)	terminating	his	parental	rights	to	his	child	pursuant	to	

22	 M.R.S.	 §	 4055(1)(B)(2)(a),	 (b)(i)-(ii)	 (2017).	 	 The	 father	 challenges	 the	

court’s	 determination	 that	 termination	 of	 his	 parental	 rights	 is	 in	 the	 best	

interest	 of	 his	 child	 rather	 than	 a	 permanency	 guardianship	 with	 the	 child’s	

maternal	grandmother.1		We	affirm	the	judgment.			

                                        I.		BACKGROUND	

        [¶2]	 	 This	 case	 began	 on	 January	 23,	 2017,	 when	 both	 of	 the	 child’s	

parents	 were	 arrested	 after	 law	 enforcement,	 working	 with	 the	 mother’s	

probation	 officer,	 entered	 the	 family	 residence	 and	 seized	 heroin,	 cocaine,	

marijuana,	and		various	items	of	drug	paraphernalia.		At	the	time	of	their	arrest,	


    1		The	mother	consented	to	the	termination	of	her	parental	rights	on	March	12,	2018,	and	she	is	

therefore	not	a	party	to	his	appeal.		See	22	M.R.S.	§	4055(1)(B)(1)	(2017).		
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the	police	observed	needles,	cocaine,	heroin,	and	fentanyl	out	in	the	open.		The	

child—then	six	years	old—was	present	during	the	arrest.			

      [¶3]		As	a	result	of	the	arrests,	on	February	2,	2017,	the	Department	of	

Health	and	Human	Services	filed	a	petition	for	a	child	protection	order,	alleging	

that	both	parents	abused	drugs,	the	father	was	trafficking	scheduled	drugs	out	

of	 the	 home,	 and	 that	 the	 child	 was	 exposed	 to	 unsafe	 conditions,	 including	

access	 to	 scheduled	 drugs	 and	 domestic	 violence	 between	 the	 mother	 and	

father.	 	 The	 court	 (Dow,	 J.)	 granted	 a	 preliminary	 protection	 order	 that	 day,	

placing	the	child	in	the	custody	of	the	Department.			

      [¶4]		On	April	24,	2017,	the	District	Court	(Oram,	J.)	entered	a	jeopardy	

order	 by	 agreement,	 finding	 that	 the	 parents	 had	 untreated	 substance	 abuse	

and	mental	health	issues	and	exposed	the	child	to	an	unsafe	living	environment	

and	unsafe	individuals.		By	judicial	review	order	dated	September	14,	2017,	the	

court	(Dow,	J.)	ordered	the	Department	to	cease	reunification	efforts	with	the	

father	 because	 continuing	 such	 efforts	 would	 be	 “inconsistent	 with	 the	

permanency	plan	for	the	child.”		On	January	3,	2018,	the	Department	petitioned	

the	District	Court	to	terminate	the	parental	rights	of	both	parents.		See	22	M.R.S.	

§	4055(1)(B)(2)	(2017).			
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       [¶5]	 	 After	 a	 one-day	 testimonial	 hearing,	 by	 judgment	 dated	

April	11,	2018,	the	court	(Beliveau,	J.)	terminated	the	father’s	parental	rights,	

having	found,	by	clear	and	convincing	evidence,	that	(1)	the	father	was	“unable	

to	 take	 responsibility	 for	 his	 child	 and	 is	 unable	 to	 protect	 [the	 child]	 from	

jeopardy	 within	 a	 reasonable	 time	 to	 meet	 [the	 child’s]	 needs,”	 and	 the	

“circumstances	 clearly	 indicate	 that	 there	 will	 be	 no	 change	 within	 a	 time	

reasonably	calculated	to	meet	the	child’s	needs”	and	(2)	termination	was	in	the	

best	interest	of	the	child.		See	22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i)-(ii).		The	court	

based	its	decision	on	the	following	findings,	which	are	supported	by	competent	

record	evidence.			

                The	child	[]	has	been	in	foster	care	since	February	2,	2017.		
       [The	child]	is	 now	7	 years	of	age.		The	father	is	still	incarcerated	
       and	 his	 expected	 release	 date	 is	 March	 2020.	 	 He	 has	 been	
       incarcerated	since	January	of	2017.		He	was	expected	to	participate	
       in	 substance	 abuse	 and	 mental	 health	 counseling	 while	
       incarcerated.	 	 He	 attended	 IOP	 [Intensive	 Outpatient	 Program]	
       while	in	jail	but	did	not	participate	in	follow	up	treatment.	.	.	.		Prior	
       to	his	incarceration	he	had	been	abusing	illegal	drugs	since	age	25	
       years.		This	continued	for	at	least	5	years	prior	to	his	incarceration.	
       .	.	.		During	those	years,	he	attended	the	local	Grace	St.	IOP	program	
       but	still	relapsed.		He	never	attended	any	counseling	or	treatment	
       programs	after	completing	the	IOP	program.	.	.	.		According	to	the	
       Father’s	 testimony,	 his	 longest	 period	 of	 sobriety	 was	 7	 months	
       during	the	4	to	5	years	prior	to	his	incarceration.		He	has	waited	till	
       just	recently	to	attend	a	parenting	class	in	jail.				
                	
                .	.	.	.		
                	
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            The	 [Department]	 caseworker	 .	 .	 .	 testified	 the	 Father	 was	
     given	 DHHS	 contact	 information	 but	 never	 called	 to	 ask	 how	 his	
     child	 was	 doing.	 	 In	 addition,	 [the	 Department	 caseworker]	 said	
     that	the	Father	upon	release	would	have	to	undergo	mental	health	
     and	substance	abuse	counseling	and	prove	he	can	be	sober	before	
     caring	for	his	child.		This	[c]ourt	finds	that	it	would	be	a	long	period	
     of	time	for	this	to	happen.		His	history	 of	unsuccessful	treatment	
     and	sobriety	are	negatives	in	relation	to	the	time	it	would	take	for	
     him	to	be	successful.				
            	
            .	.	.	.	
            	
            This	[c]ourt	found	and	concluded	in	its	Jeopardy	Order	that	
     [the	child]	was	in	“circumstances	of	jeopardy	to	[the	child’s]	health	
     and	 welfare	 as	 evidenced	 by	 the	 threat	 of	 serious	 harm	 and	 the	
     threat	 of	 neglect.”	 	 [The	 Father]	 continues	 to	 have	 serious	
     untreated	 substance	 abuse,	 mental	 health	 issues	 as	 well	 as	 a	
     history	of	domestic	violence.		In	addition,	the	parents	exposed	the	
     child	to	an	unsafe	living	environment	and	unsafe	individuals	who	
     frequented	their	home.			
            	
            .	.	.	.		
            	
            [T]he	 child	 is	 doing	 very	 well	 in	 [the]	 placement	 with	 [the	
     child’s]	grandmother.		The	GAL	has	concluded	that	termination	of	
     parental	 rights	 is	 best	 for	 [the	 child]	 and	 not	 a	 Permanency	
     Guardianship.	 	 Adoption	 with	 [the]	 Grandmother	 is	 best	 for	 the	
     child.			
            				
            .	.	.	.		
            	
            The	Father	has	no	plans	for	housing	upon	his	release	since	
     his	release	will	not	be	until	March	2020.		He	agrees	that	after	his	
     release	he	would	not	be	in	a	position	to	take	immediate	custody	of	
     his	child.				
	
           [T]his	[c]ourt	finds	based	on	the	evidence	that	the	Father’s	
     road	 to	 reunification	 is	 a	 long	 way	 off.	 	 The	 child	 cannot	 wait	
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       another	year	or	two	for	[the]	Father	to	reunify	and	be	rehabilitated.		
       His	history	of	mental	health	and	above	all	substance	abuse	dictates	
       that	the	[c]hild	is	in	need	of	permanency	now	and	not	two	to	three	
       years	 from	 now.	 	 The	 plan	 for	 permanency	 is	 termination	 of	 the	
       Father’s	parental	rights	which	is	the	most	reasonable	for	the	child	
       and	in	[the	child’s]	best	interests.			
              	
              .	.	.	.		
              	
              The	child	is	in	need	of	permanency.		[The	child]	cannot	wait	
       for	[the]	Father	to	rehabilitate	so	as	to	pursue	reunification	within	
       a	reasonable	time.			
                                             	
                                   II.		DISCUSSION	

	      [¶6]		“We	review	the	trial	court’s	factual	finding	that	.	.	.	termination	of	

parental	 rights	 is	 in	 the	 child’s	 best	 interest	 for	 clear	 error	 and	 the	 ultimate	

decision	to	terminate	parental	rights	for	an	abuse	of	discretion.”		In	re	Child	of	

Amber	 L.,	 2018	 ME	 91,	 ¶	 3,	 188	 A.3d	 876	 (quotation	 marks	 omitted).	 	 Based	

upon	the	above	facts,	all	of	which	have	evidentiary	support	in	the	record,	the	

court	did	not	err	in	finding	that	the	father	is	unfit	and	that	termination	of	his	

parental	 rights	 is	 in	 the	 best	 interest	 of	 the	 child.	 	 See	 22	 M.R.S.	

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

854	A.2d	195.				

	      [¶7]	 	 The	 trial	 court	 found	 that	 the	 father’s	 incarceration,	 admitted	

history	 of	 substance	 abuse,	 untreated	 mental	 health	 issues,	 and	 history	 of	

domestic	violence	dictate	that	the	child	needs	permanency	now,	not	years	from	
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now.		The	child	has	been	in	foster	care	since	January	2017,	and	the	child’s	father	

will	be	released	from	prison	no	sooner	than	March	2020.		The	child	cannot	wait	

for	 three	 years,	 at	 minimum,	 to	 reunify	 with	 the	 father.	 	 See	 In	 re	 B.P.,	

2015	ME	139,	¶	19,	126	A.3d	713.			

	     [¶8]	 	 The	 father	 also	 argues	 that	 the	 court	 should	 have	 granted	

permanency	guardianship	to	the	child’s	grandmother	in	lieu	of	terminating	his	

parental	 rights.	 	 The	 court’s	 determination	 that	 adoption,	 rather	 than	 a	

permanency	guardianship,	was	in	the	child’s	best	interest	is	supported	by	the	

guardian	ad	litem’s	testimony	to	that	effect.		Specifically,	the	guardian	ad	litem	

testified	 that	 permanency	 guardianships	 are	 better	 suited	 for	 children	 older	

than	 this	 child	 and	 where	 the	 parents	 do	 not	 have	 extensive	 histories	 of	

substance	abuse.		In	light	of	this	testimony,	the	court	did	not	abuse	its	discretion	

in	concluding	that	termination	of	the	father’s	parental	rights	and	“[a]doption	

with	[the]	[g]randmother	is	best	for	the	child.”			

      The	entry	is:	

                    Judgment	affirmed.	
	
	     	      	      	     	      	
	
	
	
	
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Richard	Charest,	Esq.,	Lewiston,	for	appellant	Father	
	
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	
	
	
Lewiston	District	Court	docket	number	PC-2017-008	
FOR	CLERK	REFERENCE	ONLY	
