MAINE SUPREME JUDICIAL COURT                                           Reporter of Decisions
Decision:    2019 ME 121
Docket:      Cum-19-106
Submitted
  On Briefs: July 18, 2019
Decided:     July 25, 2019

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



                             IN RE CHILD OF WALTER C.


PER CURIAM

         [¶1] Walter C. appeals from a judgment of the District Court (Portland,

Powers, J.) terminating his parental rights to his child. He contends that the

court erred in its determination that he is parentally unfit and that termination

of his parental rights is in the best interest of the child. We affirm the judgment.

                                    I. CASE HISTORY

         [¶2] In November 2017, sixteen days after the child was born, the

Department of Health and Human Services filed a petition for a child protection

order and a request for a preliminary protection order. See 22 M.R.S. §§ 4032,

4034 (2018). The petition alleged that the father struggled with substance

abuse and untreated mental health issues that manifested in him burning

himself. The court (Janelle, J.) granted the request for a preliminary protection

order, granting custody to the Department, and the child was placed in foster
2

care.1 On February 5, 2018, the court (Powers, J.) entered an agreed-upon

jeopardy order, and custody of the child remained with the Department. See

22 M.R.S. § 4035(1)-(2) (2018).

        [¶3] The Department petitioned for termination of the father’s parental

rights on November 30, 2018.2 See 22 M.R.S. § 4052 (2018). The court held a

single-day hearing on the petition, see 22 M.R.S. § 4054 (2018), and, on

February 27, 2019, found by clear and convincing evidence that the father is

unwilling or unable to protect the child from jeopardy or take responsibility for

the child within a time that is reasonably calculated to meet the child’s needs,

and determined that termination of the father’s rights is in the best interest of

the child, see 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2018).

        [¶4] The court based its decision on the following findings, which are

supported by the record.

        The family’s issues involved untreated marijuana and alcohol
        misuse, untreated mental health problems, and relationship issues.
        The child was not safe in the care of either parent.



    1 On November 17, 2017, the Department filed an amended child protection petition and request
for a preliminary protection order to correct a clerical error contained in the previous petition, which
listed an incorrect agent for the Department. The court (Eggert, J.) entered an amended preliminary
order the same day.
    2The mother consented to the termination of her parental rights and is not a party to this appeal.
See 22 M.R.S. § 4055(1)(B)(1) (2018). We focus on the procedural history and findings pertaining to
the father.
                                                                                                      3

               ....

            [The father] is 29 and has lived in a one-bedroom . . .
       apartment for three months. He was homeless before then from
       February 2018. . . .

             The father admits to a lengthy history of excessive alcohol
       and marijuana use. . . . He was assessed for [a] . . . substance use
       program in March 2018, entered it in April, and completed the
       program at the end of August 2018. The program included regular
       intensive outpatient treatment for substance use and parenting
       education sessions with some individual counseling late in the
       program.

              Drug testing was [also] part of the program. His testing
       showed [marijuana] use during each of the 21 weeks. [The father]
       would typically admit his ongoing use of marijuana. He also had
       positive alcohol tests for the first few weeks and then negative
       test[s] for the last four months . . . . The [substance use program]
       clinician had concerns about [the father] at [the] program’s end for
       his lack of sober supports, a need for more AA attendance, and
       ongoing [marijuana] use.

             [The father] admitted to drinking [alcohol] days before the
       hearing and to using marijuana every other day or so presently.
       [The father’s] aftercare program included going to AA/NA support
       meetings and ongoing counseling. He did not go to counseling after
       August 2018 and did not attend AA or NA, instead focusing on
       getting housing. The father did not work during the last year or so
       and is still unemployed.[3] . . .


   3 When asked about his employment at the termination hearing, the father testified that he did
not have a job at the time of the hearing, and that since the child came into custody, he has “worked
a couple different jobs, but they didn’t last long.” Because the record here contains ample other
evidence on which the court could base its parental unfitness and best interest determinations, this
factual error is harmless. See In re Child of Ronald W., 2018 ME 107, ¶ 7 n.2, 190 A.3d 1029 (“A factual
error in a child protection order is harmless if it is highly probable that the error did not prejudice
the parents or contribute to the result in the case.”); see also M.R. Civ. P. 61.
4

          [The father] also suffers from ongoing anxiety which he
    treats only by taking [a] “deep breath.” . . .

          He also failed to attend several DHHS requested drug tests,
    going only [twice] . . . . Generally, his testing history is consistent
    with regular marijuana and occasional alcohol use.

           [The father] did attend [a] risk assessment in February 2018
    related to sexual reoffending. He had a history of youthful sex
    abuse before age ten and was abused himself when he was three.
    He also has a history of pornography use . . . . [The psychologist]
    felt [the father] was at an average risk of reoffending. [The father]
    has a recent conviction for theft of alcohol.

          [The father] and the child’s mother were arguing and he
    grabbed her wrists leading to a domestic violence arrest. The
    mother complained that he was controlling in their relationship.
    She sought a protection from abuse order against [the father] in
    2018 but apparently did not follow through. The GAL describes the
    parents’ relationship as “rocky” and “off and on.” That relationship
    today is still unclear. He has not addressed domestic violence
    concerns.

          ....

          . . . The GAL is supportive of termination of the father’s rights.
    She feels [the child] is not safe with either parent. . . .

          . . . [The father’s] only real progress relates to the recently
    acquired apartment and attending . . . visits with his son.

          ....

          . . . [The father’s] ongoing substance use and mental health
    issues, his continued use of substances, his history of sexual abuse
    and domestic violence involvement, and limited treatment for the
    above show that his life is still somewhat chaotic. He cannot focus
    on his son’s medical and other needs as a 15-month-old. It is highly
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      likely the father’s issues will continue for months if not years. He
      cannot meet his own needs and has not addressed many of his
      parenting deficits . . . .

            ....

            Termination will provide the permanence, stability, and
      consistency that this boy needs. The father has had since
      November 2017 to remedy his serious parenting issues. [The
      child] has been in custody all but a couple weeks of his short life.
      [The child] is bonded with [his foster family]. The[y] have cared
      well for him for 15 months. . . . [The father] still will require many
      months, if not longer, to become an appropriate caregiver. . . . [The
      child] can obtain permanence and stability soon if rights are
      terminated, freeing [the child] for adoption. . . .

                              II. LEGAL ANALYSIS

      [¶5] The father contends that the court erred in determining that he is

unfit to parent and that it is in the best interest of the child to terminate his

parental rights. “We review the trial court’s factual findings that a parent is

unfit and 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 Kelcie L., 2018 ME 57, ¶ 3, 184 A.3d 387.

      [¶6] With respect to the issue of parental unfitness, the father asserts

that “[a]lthough he may not have achieved the level of participation in the

reunification plan that DHHS was looking for, he did well enough to assure that

no serious harm would come to the child.” Contrary to the father’s contention,
6

the court did not err in determining that, despite the father’s progress, he

remains unable to protect the child from jeopardy or take responsibility for the

child within a time that is reasonably calculated to meet the child’s needs.

22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii); see In re Hope H., 2017 ME 198, ¶ 10,

170 A.3d 813 (“Marginal progress toward reunification and a simple desire to

remain [a] parent[] is not enough to ameliorate jeopardy and meet the child[]’s

needs.”).4 As the court found, with support in the record, the father had

engaged only in “limited treatment” for his substance abuse, mental health and

sexual abuse issues. Furthermore, the father admitted to his continued use of

substances in the days leading up to the hearing.

        [¶7] The father also asserts that the court abused its discretion by

determining that termination of his parental rights is in the child’s best interest

because he “needed very little additional time to show the trial court and DHHS

that he could parent.” At the time of the termination proceeding, the child was

fifteen months old and had been in the Department’s custody since he was



    4In his brief, the father does not dispute the court’s finding that he is unwilling or unable to take
responsibility for the child within a time that is reasonably calculated to meet the child’s needs. See
22 M.R.S. § 4055(1)(B)(2)(b)(ii) (2018). We have repeatedly held that “[i]f any one of the alternative
bases of parental unfitness found by the court is supported by clear and convincing evidence, the
determination of unfitness will be affirmed,” In re A.H., 2013 ME 85, ¶ 14, 77 A.3d 1012, and that a
parent’s failure to contest an alternate finding in his or her brief “constitutes a waiver of [that] issue
on appeal,” In re Alexavier G., 2017 ME 227, ¶ 1 n.1, 174 A.3d 891.
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sixteen days old. The trial court found, based on competent evidence in the

record, that the father would “require many months, if not longer, to become an

appropriate caregiver.” (Emphasis added.) We have repeatedly stated that “the

court must examine from the child’s perspective—not the parent’s—the time

within which the parent can take responsibility for a child and protect that child

from jeopardy.” In re Children of Tiyonie R., 2019 ME 34, ¶ 6, 203 A.3d 824. As

in In re Child of Mercedes D., 2018 ME 149, ¶ 22 n.5, 196 A.3d 888, the father

here “will remain parentally unfit for too long as measured from the child’s

perspective, and . . . the child’s best interest will be served with the permanence

that comes with adoption . . . .” Accordingly, the court did not err or abuse its

discretion by concluding that termination is in the best interest of the child.

        The entry is:

                           Judgment affirmed.



Philip Notis, Esq., Portland, for appellant father

Aaron M. Frey, Attorney General, and Zack Paakkonen, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services


Portland District Court docket number PC-2017-75
FOR CLERK REFERENCE ONLY
