MAINE	SUPREME	JUDICIAL	COURT	 	             	     	    	      	       Reporter	of	Decisions	
Decision:	    2018	ME	87	
Docket:	      Aro-18-54	
Submitted	
  On	Briefs:	 June	27,	2018	
Decided:	     July	3,	2018	
	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 IN	RE	CHILD	OF	LINDSAY	D.	
	
	
PER	CURIAM	

        [¶1]		Lindsay	D.	appeals	from	a	judgment	of	the	District	Court	(Presque	

Isle,	 O’Mara,	 J.)	 terminating	 her	 parental	 rights	 to	 her	 child	 pursuant	 to	

22	M.R.S.	§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(i),	(iv)	(2017).1		In	challenging	

the	 sufficiency	 of	 the	 evidence	 supporting	 that	 judgment,	 she	 specifically	

challenges	the	efforts	made	by	the	Department	of	Health	and	Human	Services	

to	rehabilitate	her	and	reunify	her	with	the	child.		See	22	M.R.S.	§	4041	(2017).		

The	evidence	supports	the	court’s	findings	and	discretionary	determinations,	

and	we	affirm	the	judgment.	

        [¶2]		Based	on	competent	evidence	in	the	record,	the	court	found	by	clear	

and	convincing	evidence	that	(1)	the	mother	was	unwilling	or	unable	to	protect	



    1		On	January	19,	2018,	the	District	Court	(Presque	Isle,	O’Mara,	J.)	entered	a	judgment	terminating	

the	father’s	parental	rights	to	the	child.		The	father	does	not	appeal	from	that	judgment.	
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the	 child	 from	 jeopardy	 and	 that	 these	 circumstances	 are	 unlikely	 to	 change	

within	a	time	which	is	reasonably	calculated	to	meet	her	needs;	(2)	the	mother	

failed	to	make	a	good	faith	effort	to	rehabilitate	and	reunify	with	the	child;	and	

(3)	the	termination	of	parental	rights	was	in	the	best	interest	of	the	child.		See	

22	M.R.S	§	4055(1)(B)(2).		We	review	the	factual	findings	for	clear	error	and	

the	court’s	ultimate	conclusion	that	termination	is	in	the	child’s	best	interest	

for	an	abuse	of	discretion.		See	In	re	Matthew	H.,	2017	ME	151,	¶	2,	167	A.3d	561.	

      [¶3]	 	 The	 court	 based	 its	 decision	 to	 terminate	 parental	 rights	 on	 the	

following	findings	of	fact:	

             This	 proceeding	 is	 the	 second	 child	 protective	 proceeding	
      brought	by	MDHHS	on	behalf	of	[the	child].		[The	child],	currently	
      six	years	old,	has	now	been	in	the	custody	of	MDHHS	during	this	
      proceeding	for	in	excess	of	one	year.			
             	
             .	.	.	.		
             	
             The	 mother	 has	 lived	 in	 shelters	 and	 has	 been	 unable	 to	
      arrange	for	permanent	housing	during	most	of	these	proceedings.		
      About	four	months	prior	to	this	proceeding	having	been	begun,	the	
      mother	turned	primary	physical	residence	of	[the	child]	over	to	the	
      father.		Last	April,	the	mother	moved	to	a	[new]	shelter	.	.	.,	after	
      having	 been	 asked	 to	 leave	 a	 shelter	 in	 [a	 different]	 area,	 which	
      move	 resulted	 in	 the	 mother	 having	 an	 extended	 time	 without	
      services	 and	 made	 it	 far	 more	 difficult,	 due	 to	 distance,	 for	 the	
      mother	to	have	in	person	contact	with	[the	child].		The	mother	has	
      not	provided	the	day-to-day	care	for	[the	child]	in	[approximately]	
      13-14	months.		The	mother	has	not	seen	[the	child]	since	(roughly)	
      the	first	week	of	 February,	 2017,	i.e.	[approximately]	 11	 months,	
      and	she	has	not	often	requested	in	person	contact.		The	mother	has	
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      not	 spoken	 to	 [the	 child]	 on	 the	 telephone	 since	 sometime	 in	
      October.		The	mother	admits	she	needs	“.	.	.	a	few	more	months	.	.	."	
      before	she	would	be	able	to	care	for	[the	child].		The	mother	has	no	
      income,	employment,	vehicle,	or	residence	(other	than	the	shelter).		
      The	mother	did	not	complete	counseling,	not	having	attended	since	
      October.		Prior	to	October,	her	lack	of	regular	attendance	became	a	
      barrier	to	successful	completion.		[The	mother	has	several	mental	
      health	diagnoses	and	has	had	issues	with	substance	abuse.]			
              	
              .	.	.	.	
              	
              Little,	if	any,	progress	has	been	made	by	[the	mother]	toward	
      ameliorating	 the	 problems	 that	 required	 [the	 child]	 to	 again	 be	
      brought	 into	 care	 [and	 the	 mother]	 has	 [not]	 demonstrated	 the	
      ability,	skills,	commitment,	or	desire	to	put	[the	child],	her	needs	
      and	 her	 safety,	 first	 in	 [the	 mother’s	 life].	 	 [The	 mother	 has]	
      voluntarily	absented	[herself]	from	[the	child’s]	life.		At	this	point,	
      in	what	is	[the	child’s]	second	child	protective	matter,	[the	mother]	
      could	[not]	successfully,	safely,	consistently	parent	[the	child]	full	
      time.		It	is	unknown	when,	if	ever,	[the	mother]	could	do	so.			
              	
              .	.	.	.		
              	
              [The	child’s]	foster	home	has	provided	her	with	the	stability,	
      safety,	 consistency,	 love,	 and	 structure	 she	 requires	 and	 did	 not	
      receive	 from	 her	 parents	 [and	 the	 child]	 has	 made	 considerable	
      gains	while	in	this	home.		In	short,	[the	child’s]	placement	in	this	
      foster	 home	 has	 provided	 her	 with	 the	 opportunity	 to	 grow	 as	 a	
      child.	.	.	.		All	of	[the	child’s]	needs	are	being	met	in	the	foster	home	
      and	[the	child]	feels	both	safe	and	“at	home.”			
              	
      [¶4]	 	 Given	 these	 findings	 of	 fact,	 which	 are	 supported	 by	 competent	

evidence	in	the	record,	the	court	did	not	err	in	its	finding	of	parental	unfitness,	

and	the	court	did	not	abuse	its	discretion	in	determining	that	termination	of	the	
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mother’s	 parental	 rights	 is	 in	 the	 child’s	 best	 interest.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2);	In	re	Logan	M.,	2017	ME	23,	¶	3,	155	A.3d	430.	

      [¶5]	 	 The	 mother	 contends	 that	 the	 court’s	 findings	 are,	 nonetheless,	

unsupported	by	the	record	because	the	Department	“did	not	properly	attempt	

to	 rehabilitate	 and	 reunify	 the	 mother	 and	 daughter”	 pursuant	 to	 22	 M.R.S.	

§	4041.	 	 Specifically,	 she	 argues	 that	 the	 Department’s	 failure	 to	 answer	 two	

scheduled	phone	calls	from	the	mother	prevented	future	contact	between	the	

mother	and	child.			

	     [¶6]		After	a	child	has	entered	foster	care,	the	Department	and	the	parent	

have	a	“shared”	responsibility	for	reunification	and	rehabilitation	of	the	family.		

22	 M.R.S.	 §	 4041(1-A).	 	 This	 shared	 responsibility	 must	 include	 the	

development	 of	 a	 reunification	 plan,	 see	 id.	 §	 4041(1-A)(A)(1),	 (B)(2),	 and,	

among	 other	 statutory	 obligations,	 requires	 that	 the	 Department	 and	 the	

parent	make	“good	faith	efforts”	to	cooperate	with	one	another	“in	the	pursuit	

of	the	plan.”		Id.	§	4041(1-A)(A)(3),	(B)(8).	

      [¶7]	 	 The	 Department’s	 compliance	 with	 section	 4041,	 however,	 “does	

not	constitute	a	discrete	element	requiring	proof	in	termination	proceedings.”		

In	 re	 Child	 of	 Heather	 W.,	 2018	 ME	 31,	 ¶	 11,	 180	 A.3d	 661	 (quotation	 marks	

omitted).		Instead,	the	trial	court	will	consider	any	allegations	of	departmental	
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failure	or	lapses	in	determining	whether	the	Department	has	met	its	burden	in	

proving	parental	unfitness,	particularly	whether	the	Department	has	proven	a	

failure	 on	 the	 part	 of	 the	 parent	 to	 make	 a	 good	 faith	 effort	 to	 rehabilitate	

herself	in	order	to	reunify	with	the	child.		See,	e.g.,	In	re	Child	of	James	R.,	2018	

ME	50,	¶	21,	182	A.3d	1252;	In	re	Daniel	H.,	2017	ME	89,	¶	15,	160	A.3d	1182.			

       [¶8]	 	 Contrary	 to	 the	 mother’s	 contention,	 the	 evidence	 in	 the	 record,	

believed	 by	 the	 court,	 shows	 that	 the	 Department	 developed	 a	 reunification	

plan	pursuant	to	section	4041	that	clearly	identified	safety	goals	and	services	

for	the	mother,	and	that	the	Department	made	good	faith	efforts	to	cooperate	

with	the	mother.		After	the	mother	moved	away	from	the	area	where	the	child	

had	 been	 placed,	 the	 Department	 continued	 to	 refer	 the	 mother	 for	 mental	

health	services,	hold	in-person	meetings	with	the	mother,	and	invite	the	mother	

to	participate	in	meetings	with	the	child’s	providers	by	telephone.		The	record	

also	shows	that,	although	a	Department	supervisor	was	not	present	to	answer	

a	 scheduled	 phone	 call	 from	 the	 mother	 on	 one	 occasion,	 the	 supervisor	

received	the	mother’s	message	and	returned	the	phone	call	to	the	mother	on	

that	same	day.			

       [¶9]	 	 The	 record	 supports	 the	 court’s	 finding,	 by	 clear	 and	 convincing	

evidence,	of	at	least	one	ground	of	unfitness	as	to	the	mother	and	that,	despite	
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the	Department’s	efforts	at	rehabilitating	and	reunifying	the	family,	the	mother	

was	 still	 unsuccessful	 at	 reunifying	 with	 her	 child.	 	 See	 In	 re	 Emma	 S.,	 2018	

ME	8,	¶	5,	177	A.3d	632.		

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	     	    	
	
Allan	Hanson,	Esq.,	Caribou,	for	appellant	Mother	
	
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	
	
	
	
Presque	Isle	District	Court	docket	number	PC-2017-04	
FOR	CLERK	REFERENCE	ONLY	
