MAINE SUPREME JUDICIAL COURT                                                Reporter of Decisions
Decision:    2016 ME 32
Docket:      Han-15-426
Submitted
  On Briefs: January 28, 2016
Decided:     February 18, 2016

Panel:          ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.



                                           IN RE DAPHNE

PER CURIAM

         [¶1] The father of Daphne1 appeals from a judgment of the District Court

(Ellsworth, Mallonee, J.) terminating his parental rights pursuant to 22 M.R.S.

§ 4055(1)(A)(1)(a) and (B)(2) (2015).                      The father argues that the court

impermissibly based its decision terminating his parental rights on his

incarceration. Additionally, the father argues that the Department of Health and

Human Services failed to make a meaningful effort at reunifying the father with

the child.

         [¶2]     Because the court properly considered the length of the father’s

unavailability due to incarceration in determining whether he is able to take

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

particular needs, and because the court was not required to make a separate finding




   1
       A pseudonym is used herein to respect the privacy of the child.
2

regarding the extent of the Department’s reunification efforts, so long as it had an

adequate basis for its finding of parental unfitness, we affirm the judgment.

                                         I. CASE HISTORY

        [¶3] The court found the following facts by clear and convincing evidence,

which are supported by competent record evidence.2 See In re M.S., 2014 ME 54,

¶ 13, 90 A.3d 443. The father is incarcerated. His earliest possible date of release

is in October 2016, approximately fifteen months after the court’s July 2015

hearing. Addressing the father’s incarceration, the court found: “In prison, [the

father] has taken classes and participated in services to overcome his own

problems—in particular his substance abuse—and to develop skill and insight as a

parent.” The father “presented himself in court as thoughtful and realistic. He

loves his daughter, wants what is best for her, and is willing to work to provide it.”

        [¶4] The child’s play therapist opined that the child’s play therapy indicates

that she “has suffered some form of trauma in her life,”3 and she “has a particular,

immediate need for stability and permanency.” The therapist further recommended

that “to maintain her in long-term foster care would be harmful to her.” The child


    2
      We note that the court’s findings are unusually brief, albeit sufficient to satisfy the requirements of
M.R. Civ. P. 52(a). See In re Jazmine L., 2004 ME 125, ¶ 13, 861 A.2d 1277. Although we respect the
court’s efficiency, more detailed findings would have better advised the parties and our appellate review
of the basis for the court’s decision.
    3
     The court made no finding, and the record contains no evidence, as to the specific nature of the
trauma.
                                                                                                        3

is in a pre-adoptive foster placement, with foster parents who “are able to provide

for all of [the child]’s needs, particularly those implicated by events in [the child]’s

play therapy sessions.”

        [¶5] The father’s brief on appeal argues that “[p]rior to the Department’s

involvement” he was “a typical devoted, full-time parent raising his child in a

loving home.”          The Department’s involvement in the child’s life began in

July 2013. At that time, the child, then a little over a year old, was hospitalized

after she ingested a strip of Suboxone4 while in her father’s care. The father was

prescribed Suboxone at the time. Neither of the child’s parents could provide any

explanation for how their child could have accessed or been given the Suboxone.5

        [¶6] Shortly after the child ingested the Suboxone, the father was removed

from the home pursuant to a Department safety plan. About two months later, the

father was arrested for drug trafficking and operating after license revocation. He

remained incarcerated throughout the proceedings.




   4
       Suboxone is a prescription drug used to treat drug addiction by opiate replacement therapy.
Individual doses of Suboxone are administered orally, often in the form of dissolving strips.
   5
      The Department also brought termination proceedings against the child’s mother. The mother
consented to termination of her parental rights, conditional on termination of the father’s rights, at the
July 2015 hearing.
4

                             II. LEGAL ANALYSIS

      [¶7]   We review the court’s factual findings for clear error, evaluated

pursuant to the clear and convincing evidence standard of proof. In re R.M.,

2015 ME 38, ¶ 7, 114 A.3d 212.

A.    The Father’s Incarceration

      [¶8] A court may not terminate parental rights based solely on a parent’s

incarceration. In re Cody T., 2009 ME 95, ¶ 28, 979 A.2d 81. “In considering the

parental fitness of an incarcerated parent, the court’s focus is not on the usual

parental responsibility for physical care and support of a child, but upon the

parent’s responsibility or capacity to provide a nurturing parental relationship

using the means available.” Id.

      [¶9]   This rule does not suggest that incarcerated parents be treated

differently than other parents who may be unavailable, for any reason, to care for

their child, and it does not bar incarcerated parents from having their parental

rights terminated or preclude a court from considering the realities of a parent’s

incarceration.   See In re Randy Scott B., 511 A.2d 450, 455 (Me. 1986).

Respecting the strong policies in favor of permanency and against children

remaining in long-term foster care, see 22 M.R.S. § 4003 (2015); In re Thomas H.,

2005 ME 123, ¶¶ 23-24, 889 A.2d 297, a court may consider, in light of the child’s

particular needs, whether the length of a parent’s incarceration will prevent the
                                                                                   5

parent from (1) protecting the child from jeopardy, or (2) taking 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) (2015); In re L.D., 2015 ME 123, ¶ 15,

123 A.3d 990; In re Randy Scott B., 511 A.2d at 455; In re Daniel C.,

480 A.2d 766, 769 (Me. 1984).

      [¶10] Here, the court, while recognizing the father’s efforts to rehabilitate

and improve his parenting skills, found that the length of the father’s incarceration

rendered him incapable of taking 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)(ii). The court based this finding on the child’s particular need

for immediate permanency, crediting testimony from the child’s therapist, and

acknowledging that the father’s earliest possible release date was fourteen months

after entry of the court’s judgment terminating his parental rights. These findings

are supported by competent record evidence, and we discern no error in the court’s

findings.

B.    The Department’s Reunification Efforts

      [¶11]   The Department is required to produce a reunification plan that

identifies “the problems that present a risk of harm to the child” and “the services

needed to address those problems,” 22 M.R.S. § 4041(1-A)(A)(1)(a) (2015), and to

“[m]ake good faith efforts to cooperate with the parent in the pursuit of the plan,”
6

22 M.R.S. § 4041(1-A)(A)(3) (2015). Here, the Department presented evidence

about a caseworker’s efforts to develop a rehabilitation and reunification plan, but

the father’s incarceration and his uncertainty about whether the child should be

brought to the corrections facility to visit him limited reunification efforts.

      [¶12]      “The Department’s compliance with its rehabilitation and

reunification duties as outlined in section 4041 does not constitute a discrete

element requiring proof in termination proceedings, nor does the failure of the

Department to comply with section 4041 preclude findings of parental unfitness.”

In re Doris G., 2006 ME 142, ¶ 17, 912 A.2d 572.              Instead, “the court may

consider the lack of reunification efforts as one factor in evaluating the parent’s

conduct for unfitness.” Id. ¶ 16 (emphasis in original).

      [¶13] The court did not, and was not required to, address the extent of the

Department’s efforts to engage in reunification in its finding that the father is unfit.

See id. Contrary to the father’s assertions, competent record evidence supports the

court’s findings, by clear and convincing evidence, of at least one ground of

parental unfitness and that termination is in the child’s best interest. See 22 M.R.S.

§ 4055(1)(B)(2); In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212.

      The entry is:

                      Judgment affirmed.
                                                                       7


On the briefs:

        Dawn M. Corbett, Esq., Law Office of Dawn M. Corbett, PA,
        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-2013-49
FOR CLERK REFERENCE ONLY
