MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2016 ME 66
Docket:   Kno-14-541
Argued:   September 18, 2015
Decided:  May 3, 2016

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



                            ADOPTION OF LIAM O.

JABAR, J.

      [¶1] The mother of Liam O. appeals from a judgment of the Knox County

Probate Court (Emery, J.) denying her petitions to terminate Liam’s father’s

parental rights and to adopt Liam. Because the court apparently considered the

State’s financial interest in determining Liam’s best interest, we vacate and remand

to the Probate Court for a new determination of Liam’s best interest.

                                I. BACKGROUND

      [¶2] Liam was born on September 15, 2010. In April 2011, in response to a

parental rights and responsibilities petition brought by Liam’s mother, the District

Court entered an agreed-upon judgment that awarded sole parental rights and the

right to provide Liam’s primary residence to her, granted the father specific contact

rights with Liam, and directed the father to pay child support. In December 2011,

the mother obtained a protection from abuse order against the father on her own

behalf. The protection order did not change the father’s right to contact with his
2

son, but required the father to arrange for contact through the paternal

grandmother. The protection order expired in December 2013.

      [¶3]   In January 2014, Liam’s mother petitioned to adopt him, and to

terminate the parental rights of his biological father. See 18-A M.R.S. §§ 9-204(a),

9-301 (2015). The father did not respond to her petitions. The Department of

Health and Human Services (the Department) filed a motion to intervene pursuant

to M.R. Prob. P. 24, citing “the strong interest the State has in protecting the

interests of children and ensuring that both parents contribute to the support of

their children.” Over the mother’s objection, the court granted the Department’s

request for intervenor status.

      [¶4] The Probate Court held a final hearing on the mother’s petitions on

August 6, 2014. On October 24, 2014, the court entered a judgment denying the

mother’s petitions. The court found that the father had not had any contact with

Liam for over three years and had taken no responsibility for his child during those

years. Based on this absence from Liam’s life, the court found that the father had

abandoned Liam.

      [¶5] The court also found that the mother “properly protected herself and

her child through [c]ourt [o]rders.” This finding was premised on the mother’s

testimony of the father’s criminal history, his alcoholism, and his verbally
                                                                                    3

threatening behavior, including a threat to kill her while she was pregnant with

Liam.

        [¶6] Notwithstanding these findings, the court denied the mother’s petition

based on its conclusion that the mother had not met her burden of proof that it was

in the child’s best interest to terminate the father’s parental rights because the

mother’s income was “sparse, and she had to rely upon state assistance through

TANF and other programs,” and that “[the mother] is striving to support herself

and her children, but she still has insufficient funds to do so.” The court further

found that “Liam would benefit from child support payments from his father and

[the Department] should aggressively collect them.”

        [¶7] Following the court’s decision, the mother moved for further findings,

and the court issued supplemental findings and conclusions.            Among other

determinations, the court stated that contrary to its original finding that the mother

has insufficient funds to provide for the child, “[n]o evidence was offered at the

hearing, though, about needs of Liam that are not being fully met by his mother.”

The court also made the following statement explaining its understanding of Maine

law:

        This [c]ourt does not find within current statutes that Maine Law
        envisions terminating the parental rights of a biological parent who
        has no contact with the child for about three years and who has been
        granted no parental rights and responsibilities by Maine District
        Court, except the responsibility to pay child support, as presented by
4

      the facts in this case, in order to allow the other biological parent to
      adopt the child.

The mother filed this timely appeal. See 18-A M.R.S. § 1-308 (2015); M.R.

App. P. 2(b)(3).

                                  II. DISCUSSION

      [¶8] On appeal, the mother contends that the court erred by holding that

Maine statutes do not envision the termination of parental rights when there is a

support order outstanding. She also contends that the court erred by declining to

terminate the father’s parental rights because the mother is in receipt of state

benefits.

      [¶9] We review the court’s interpretation of Maine law de novo and the

court’s determination of best interest twofold: “we review the court’s factual

findings for clear error, . . . but its ultimate conclusion for an abuse of discretion.”

Carrier v. Sec’y of State, 2012 ME 142, ¶ 12, 60 A.3d 1241; In re M.B.,

2013 ME 46, ¶ 37, 65 A.3d 1260.

      [¶10] The Probate Court has had exclusive jurisdiction over adoptions. In

1981, Maine’s adoption laws were amended to provide that petitions for

termination of parental rights may be brought in Probate Court as part of the

adoption process and that the termination standards of the child protection statute

would apply.       P.L. 1981, ch. 369, (codified at 19 M.R.S. § 533-A (1981)
                                                                                                         5

repealed by P.L. 1993, ch. 686, § 3; Deirdre M. Smith, From Orphans to Families

in Crisis: Parental Rights Matters in Maine Probate Courts, 68 Me. L. Rev. 45, 58

(2016). At the same time, the Legislature added abandonment as a basis for

termination of a parent’s rights. P.L. 1981, ch. 369, § 16.

        [¶11] Although the process is unusual, the Legislature has given a parent the

right to adopt her own child, even when her parenthood is not questioned, so that in

conjunction with that adoption proceeding, she may seek the termination of the

other parent’s parental rights.1 18-A M.R.S. § 9-204 (2015); see Dept. of Human

Servs. v. Sabbatus, 683 A.2d 170, 172 (Me. 1996); see also In re Shane T.,

544 A.2d 1295, 1296 & n.1 (Me. 1988). Title 18-A M.R.S. § 9-204(a) provides

that “[a] petition for termination of parental rights may be brought in Probate Court

in which an adoption petition is properly filed as part of that adoption petition.”

A petition for termination of parental rights initiated in the Probate Court is still

subject to the provisions of 22 M.R.S. §§ 4050-4059 (2015).                           See 22 M.R.S.

§ 9-204(b). In deciding whether to terminate parental rights, the court is required

to consider “the best interest of the child, the needs of the child, . . . and the child’s

physical and emotional needs.” 22 M.R.S. § 4055(2). Similarly, when considering

   1
      This process of allowing one parent to adopt her own child and strip the other parent of his parental
rights has been characterized as a form of “private child protection” and criticized because it does not
provide for the safeguards present in child protection cases brought by the State pursuant to Title 22.
Deirdre M. Smith, From Orphans to Families in Crisis: Parental Rights Matters in Maine Probate
Courts, 68 Me. L. Rev. 45, 69-70 (2016).
6

any adoption, the court is required to consider the capacity and disposition of the

adopting person to provide “food, clothing and other material needs, [and]

education,” among other factors. 18-A M.R.S. § 9-308(b)(3) (2015).

      [¶12] Here, the mother petitioned for adoption in order to achieve the

termination of the father’s parental rights. The father neither consented to nor

contested the mother’s adoption of Liam. As the moving party, the mother had the

burden of proving by clear and convincing evidence that the father was not fit to

parent Liam and that it was in Liam’s best interest to terminate the father’s parental

rights. The Probate Court found the father unfit because he had abandoned his

child and was “unwilling and unable . . . to provide for the child.” Because the

finding of unfitness has not been challenged, we consider whether the court erred

when it failed to find that it was in the child’s best interest to be adopted by his

mother and to have the father’s parental rights terminated.

A.    Maine Statutes

      [¶13] The mother contends that the court erroneously concluded that Maine

statutes “do not envision” terminating a parent’s rights when the parent has support

obligations. Prior to the hearing, the State moved to dismiss the mother’s petition

as a matter of law arguing that the “mother does not have the right to file an action

which would terminate child support while [her] rights to child support are both

assigned and subrogated to the Department of Human Services.” Although the
                                                                                      7

court denied the motion to dismiss, the court appeared to agree with the State’s

legal position when it denied the mother’s petition.          In doing so, the court

misinterpreted Maine’s statutes.      A court considering whether to terminate a

parent’s rights must consider whether termination is in the child’s best interest.

Whether the termination will affect the State’s financial interest occasioned by the

child’s receipt of TANF benefits is not a factor the court may consider in making

that determination.

      [¶14] Here, the court concluded that Liam would benefit from child support

payments from his father. The court also concluded that, despite the father’s

abandonment of his child, his parental rights cannot be terminated because there is

an outstanding order of support against him, and the court appeared to be

protecting the State’s rights to receive reimbursement. Even though the court

articulated this erroneous legal conclusion, it ultimately decided the case on the

basis of a separate issue–Liam’s best interest. It is impossible to know what role

this erroneous legal conclusion played in the court’s ultimate determination of

Liam’s best interest.

B.    Best Interest

      [¶15] The determination of the best interest of a child depends upon many

factors. See 22 M.R.S. § 4055(2). In this case, the court gave significant weight in

its best interest calculus to the State’s financial interest in collecting reimbursement
8

from the father for state benefits received by the child. Here, the father abandoned

his child and failed to provide any child support except through the State’s efforts

to collect from him as a result of his son’s receipt of TANF benefits.

See 19-A M.R.S. § 2102 (2015). The court stated in its original judgment that

       [d]espite a finding of abandonment, it is not in Liam’s best interest[]
       to terminate [the father’s] parental rights for the following reasons.
       [The mother’s] income is sparse, and she has had to rely upon [s]tate
       assistance through TANF and other programs. She is striving to
       support herself and her children, but she still has insufficient funds to
       do so.

(Emphasis added). However, in its supplemental findings of fact and conclusions

of law the court stated the opposite: “No evidence was presented at the hearing,

though, about the needs of Liam that are not being met by his mother.”

       [¶16] Because of these inconsistent findings, it is impossible to determine

whether the court addressed the mother’s capacity to provide for the needs of her

son.   The court emphasized the State’s ability to recoup from the father the

amounts that the State has paid to the mother for TANF benefits.

       [¶17] The court also noted that

       Liam would benefit from child support payments from his father and
       [the Department] should aggressively collect them. If this [p]etition
       for [t]ermination . . . were granted, [the father] would be relieved of
       any further obligation to financially support his son and neither
       petitioner, nor [the Department], would have any right to collect
       future child support from [the father] for Liam.
                                                                                   9

The court’s analysis conflates Liam’s best interest with the State’s financial

interest in recouping from the father state benefits received by Liam. Whether the

termination will affect the State’s financial interest occasioned by the child’s

receipt of TANF benefits is not a factor the court may consider in making that

determination. The State’s interest does not coincide with Liam’s interest for two

reasons.

      [¶18] First, if the father’s parental rights were terminated, the State would

lose its right to recoup future benefits paid by the State by pursuing the father for

child support; however, that loss by the State would not affect Liam’s entitlement

to continuing receipt of state benefits. Title 22 M.R.S. § 4056(4) states that “[n]o

order terminating parental rights may disentitle a child the benefit due him

from . . . [the] state.”   Liam is entitled to continue to receive state benefits

following the termination of the father’s parental rights. Therefore, the State’s

only interest is in the reimbursement for TANF payments that may be made, not

the availability of TANF or other benefits for the child. The State’s financial

interest in recouping funds from the father should not have been considered a

factor in determining Liam’s best interest.

      [¶19] Second, if the mother stops receiving state benefits on behalf of Liam,

it becomes her choice whether or not to collect child support for Liam from the

father, and if she did decide to collect from him, it would be her decision whether
10

to use the State to assist her. See generally 19-A M.R.S. § 1652 (2015). In this

situation, the State has no financial interest in the mother’s decision, since all

money collected, other than a small administrative fee, is returned to the mother for

the support of Liam. The court erred as a matter of law in considering the State’s

financial interest as a factor in its determination of Liam’s best interest.

                                        III. CONCLUSION

         [¶20] We remand the case to the Probate Court to consider Liam’s best

interest and the mother’s ability to provide for the needs of her son without

considering the State’s interest in seeking reimbursement for any state benefits

received by the mother. The inconsistent findings and conclusions by the court

and the absence of any evidence of the mother’s financial condition make it

impossible to review the court’s determination that the mother failed to prove that

adoption and termination was in Liam’s best interest. The fact that the mother is

collecting TANF, standing alone, cannot support a finding that she does not have

the capacity to provide for her child.2

         The entry is:

                         Judgment vacated. Remanded to the Probate Court
                         for further proceedings consistent with this
                         opinion.


     2
     Because we are vacating the Probate Court’s decision in this matter, we do not at this time reach the
merits of the mother’s appeal that she was denied due process.
                                                                                 11




ALEXANDER, J., concurring.

      [¶21] I concur in and join the Court’s opinion. I write separately to address

the important policy issue raised by the Department of Health and Human

Services.

      [¶22] The Court’s thorough statutory analysis demonstrates that the private

termination of parental rights statute, 18-A M.R.S. § 9-204 (2015), and the private

adoption statutes, 18-A M.R.S. §§ 9-301 to 9-315 (2015), combine to allow a

private action between a child’s parents to effectively terminate a parent’s

obligations to pay child support. These laws can be invoked to exempt a parent

from making child support payments, even when the State is paying welfare

benefits to provide food, clothing, shelter, and medical care for the child.

      [¶23] As the Court’s opinion points out, a State initiated termination of

parental rights action pursuant to 22 M.R.S. §§ 4050-4059 (2015) has the same

effect, ending a parent’s obligation to pay support for his or her child when his or

her parental rights are terminated pursuant to law. Id. § 4056.

      [¶24] This result—ending a parent’s obligation to support that parent’s child

while the public, through State welfare programs, continues to pay or begins to pay

to support the child—is not mandated by the Constitution or any judicial opinion.
12

It is a result of policy choices made by the Legislature reflected in the statutes

addressed in the Court’s opinion.         These statutory provisions, particularly

22 M.R.S. § 4056, support the goal of termination of parental rights actions, and

the corresponding private adoption actions, to end all aspects of a relationship

between a child and a biological parent who has demonstrated that he or she is an

unfit parent by abandoning or abusing the child, damaging the child, and requiring

court intervention to protect the child from further damage.

      [¶25]    The Department of Health and Human Services in this appeal

advocates a valid policy position that a parent who is unfit to parent a child should,

nevertheless, remain obligated to pay child support to the Department to reduce the

burden on public funds, paid through welfare programs, to support that unfit

parent’s biological child. However, the Legislature, not the courts, is the forum in

which that issue should be addressed.

      [¶26]     The Department’s concern could be addressed by statutory

amendments such as a requirement that parents whose parental rights are

terminated continue to pay child support, to the extent of their ability, to the

Department of Health and Human Services. The support payments could go into a

fund to offset welfare benefits paid to support children in need of public assistance

who have no relationship with a biological parent or parents because that

relationship has been terminated. Such an arrangement would not result in any
                                                                                 13

contact or legal obligation between the biological parent and the child, but would

achieve the Department’s objective to ensure that a biological parent remains

responsible and obligated to support his or her child to avoid or reduce the child’s

need for public assistance.



On the briefs:

        Sarah I. Gilbert, Esq., Elliott & MacLean, LLP, Camden, for appellant
        mother

        Janet T. Mills, Attorney General, and Christopher C. Leighton, Asst. Atty.
        Gen., Office of the Attorney General, Portland, for appellee Department of
        Health and Human Services


At oral argument:

        Sarah I. Gilbert, Esq., for appellant mother

        Christopher C. Leighton, Asst. Atty. Gen., for appellee Department of
        Health and Human Services



Knox County Probate Court docket number 2014-04-A
FOR CLERK REFERENCE ONLY
