MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision:    2020 ME 16
Docket:      Ken-19-346
Submitted
  On Briefs: January 23, 2020
Decided:     January 30, 2020

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



                           IN RE CHILD OF NICHOLAS W.


PER CURIAM

         [¶1] Nicholas W., the father, and Tiffany W., the mother, appeal from a

judgment of the District Court (Augusta, E. Walker, J.) terminating their parental

rights to their child. Both parents challenge (1) the sufficiency of the evidence

supporting the court’s findings of their parental unfitness, (2) the court’s

determination that the termination of their parental rights was in the child’s

best interest, and (3) the sufficiency of the rehabilitation and reunification

efforts made by the Department of Health and Human Services. The mother

additionally argues that the court abused its discretion by admitting

out-of-court statements made by the child. We affirm the judgment.

         [¶2] This matter began when the Department filed a petition for a child

protection order and a preliminary protection order for the child in July 2018.

See 22 M.R.S. §§ 4032, 4034 (2018). The petition alleged that the child was at

risk due to ongoing domestic violence between the parents and the mother’s
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untreated mental health issues, and noted that the Department had been

involved with the parents for similar reasons in the past. The court (Nale, J.)

granted the Department’s request for a preliminary protection order the same

day it was filed and placed the child in the Department’s custody. See id.

§ 4034(2).   The parents later waived the opportunity for a summary

preliminary hearing. See id. § 4034(4).

      [¶3] In September 2018, the court (E. Walker, J.) entered an agreed-to

jeopardy order as to both parents, see 22 M.R.S. § 4035 (2018), based on the

threat of physical and emotional harm to the child as well as the volatile

domestic situation between the parents. In February 2019, the Department

petitioned to terminate both parents’ parental rights, see 22 M.R.S. § 4052

(2018), and in July 2019 the court held a two-day contested hearing on the

termination petition. In August 2019, the court entered a judgment granting

the termination petition as to both parents.

      [¶4] In its judgment, the court found the following facts by clear and

convincing evidence. The mother has significant mental health issues that have

gone largely untreated.    In addition to having pleaded guilty to multiple

domestic violence crimes with the father as the victim, the mother has violated

the conditions of her bail and/or probation multiple times. The child has
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witnessed the domestic violence between her parents and it scared her. The

mother has previously instructed the child to lie to Department officials about

witnessing any violence. Upon her most recent arrest in February 2019, the

mother spent five months incarcerated, but spent two of those months at a

psychiatric facility.

      [¶5] The court went on to find,

             When the Department took custody of [the child] on
      July 3, 2018, both parents had already subjected [the child] to a long
      history of domestic violence and instability. [The child] had grown
      up in a family with very few rules and little accountability.

             ....

             Mother’s visits with [the child] have been suspended
      repeatedly because Mother made inappropriate comments to [the
      child] about coming to kidnap [the child] from the foster placement.
      Instead of improving her situation and proving that she is ready to
      protect and safely raise [the child], Mother’s position has gotten
      much worse. Mother now denies ever assaulting or threatening
      Father in spite of pleading guilty to numerous crimes and
      overwhelming evidence to the contrary.             Mother has no
      understanding of how to safely parent or protect [the child] and is
      in complete denial of her own mental health problems. Mother has
      completely failed to reunify with [the child] and [the child] has
      simply given up on Mother.

            Although a court may not terminate parental rights based
      solely on a parent’s incarceration, . . . in the present case, Mother
      was released from incarceration numerous times and afforded the
      opportunity to reunify with the [the child]. Mother chose not to
      successfully engage in visits and services and made the bad
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    decision to violate her bail and probation, making her unavailable
    to be there for her child.

           Father, having been the victim of numerous assault[s] and
    threats by Mother over the years, also shows no real understanding
    about how his conduct and his warped loyalty to Mother impacts
    [the child]. Father has been offered domestic violence victim
    services through DHHS and the Family Violence Project, but he has
    failed to successfully engage. Father’s number one loyalty is to
    Mother and he has made it clear he will not leave her, no matter
    what. Father’s denial of his family’s situation has placed and
    continues to place [the child] in real jeopardy: physically, mentally,
    and emotionally. [The child] would have loved to remain with
    Father if he could have lived apart from Mother, but he has refused
    to do so. As a result, Father has demonstrated that he is unwilling
    or unable to protect [the child] from jeopardy or take responsibility
    for [the child] and these circumstances are unlikely to change
    within a time which is reasonably calculated to meet the needs of
    [the child]. The court is satisfied with the reasonable efforts by
    DHHS to reunify this broken family.

          ....

           [The child] deserves permanency now, and she is unable to
    wait for her parents to someday possibly demonstrate their
    stability and to solidify a parental relationship. Mother and
    Father’s opportunity to reunify with [the child] was during the
    course of the child protection case. Mother did not participate in
    reunification, even when not incarcerated, and missed her
    opportunity. Father refused or is unable to acknowledge the
    danger that Mother poses to himself and [the child]. While Father
    did well in visiting with [the child] in the last year, he has done very
    little to help [alleviate] the danger of domestic violence in the
    family. The court finds that it is in [the child’s] best interest to grant
    the Department’s Petition for Termination of Parental Rights in
    order to free her for adoption.
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            The difficulty for Mother and Father is one of timing. [The
      child] is now 13 years old and simply cannot continue to wait for
      her parents to do all the things necessary to set up a stable,
      consistent and safe life. [The child] has established a good bond
      with [her] foster parents and this stability is very important to her.
      [The child] needs a permanent home now and cannot wait any
      longer for Mother and Father to get their lives in order. This is a
      particularly troubling case because it is clear to this court that
      Mother and Father love [the child] but they have done virtually
      nothing to effectively reunify with [the child] or change their ways.

             The court understands that recovery is not a sprint but is,
      instead, a marathon. The problem is that Mother and Father still
      haven’t even approached the starting line in this race. What quickly
      becomes apparent, when a[ss]essing this case, is that this process
      has been going on for more than a year now and there has been
      only regression. Likewise, there is little hope that things involving
      these parents and [the child] will ever change or improve. The
      court must look at whether Mother and Father will be able to take
      responsibility for [the child] within a time reasonably calculated to
      meet her needs, and they cannot. . . . [The child] has been in DHHS
      custody for almost 13 months. [The child] has been in the care of
      her loving foster parents for that entire time and made great
      improvements in her mental, emotional, and physical health. [The
      child] has clearly bonded with [her] new family and removing her
      would likely do greater damage than has already been done. Each
      month is a long time in the life of a child at this age. With no clear
      timeline in sight, it is apparent that Mother and Father cannot take
      responsibility for [the child] within a time reasonably calculated to
      meet her needs.

      [¶6] These findings, all of which are supported by competent evidence,

are sufficient to support the court’s ultimate findings that the parents are

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

her in a time reasonably calculated to meet her needs, and that both parents
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have failed to make a good faith effort to rehabilitate and reunify with the child.

See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv) (2018); In re Thomas D.,

2004 ME 104, ¶ 21, 854 A.2d 195.

      [¶7] Furthermore, the court did not commit clear error or abuse its

discretion in determining that termination of the parents’ parental rights was

in the child’s best interest.     See 22 M.R.S. § 4055(1)(B)(2)(a) (2018);

In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297. The father contends

that the court should have ordered a permanency guardianship rather than the

termination of his parental rights. The court did not err or abuse its discretion

when it rejected this argument and determined that the child’s need for

permanency would be best served by freeing her for adoption, particularly

when the guardian ad litem expressly opposed a permanency guardianship and

there were tensions between the parents and the child’s foster family. See In re

Child of Domenick B., 2018 ME 158, ¶¶ 8-10, 197 A.3d 1076; In re Cameron B.,

2017 ME 18, ¶¶ 12-13, 154 A.3d 1199.

      [¶8] We are not persuaded by the parents’ arguments concerning the

sufficiency of the Department’s efforts to rehabilitate them and reunify them

with the child. The court carefully considered the Department’s reunification

efforts, and there is competent evidence supporting its finding that those efforts
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were reasonable in the circumstances of this case. We note also that the parents

never raised any concerns about the Department’s reunification efforts when

they had the opportunity to do so prior to the termination hearing; instead,

judicial review orders indicate that the parents appeared before the court on

two separate occasions and agreed that the Department had “made reasonable

efforts to reunify and rehabilitate the family” but that their own efforts toward

reunification had been inadequate.

      [¶9] Lastly, we discern no abuse of discretion in the court’s decision to

admit out-of-court statements made by the child. Contrary to the mother’s

argument that the court should have considered the availability of the child to

testify directly before admitting the statements, the rules of evidence that

ordinarily pertain to hearsay have been abrogated by the Legislature in child

protection cases. See In re Children of Danielle H., 2019 ME 134, ¶¶ 5-7,

215 A.3d 217. By statute, courts have the discretion to “admit and consider oral

or written evidence of out-of-court statements made by a child” and to “rely on

that evidence to the extent of its probative value.” 22 M.R.S. § 4007(2) (2018).

      The entry is:

                  Judgment affirmed.
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Andrew Wright, Esq., Brunswick, for appellant mother

John Healy, Esq., Healy Law, LLC, Camden, and Amy McNally, Esq., Woodman
Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant father

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


Augusta District Court docket number PC-2018-43
FOR CLERK REFERENCE ONLY
