MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	     2019	ME	57	
Docket:	       Cum-18-347	
Submitted	
			On	Briefs:	 April	9,	2019	
Decided:	      April	16,	2019	
	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                             IN	RE	CHILDREN	OF	CHRISTINE	A.	
	
	
PER	CURIAM	

        [¶1]		Christine	A.	appeals	from	a	judgment	entered	by	the	District	Court	

(Portland,	Eggert,	J.)	terminating	her	parental	rights	to	her	two	children.		She	

challenges	the	court’s	findings	of	unfitness	and	its	best	interest	determination,	

as	well	as	the	court’s	denial	of	her	motion	in	limine	to	exclude	the	testimony	of	

two	school	counselors.		We	affirm	the	judgment.	

	       [¶2]		In	February	of	2016,	the	Department	of	Health	and	Human	Services	

initiated	child	protection	proceedings	as	to	each	of	the	mother’s	two	children,	

alleging	 that	 the	 mother	 suffered	 from	 substance	 abuse	 and	 mental	 health	

issues	and	that	the	children	were	subject	to	an	escalating	pattern	of	neglect.1		




   1		The	Department	named	the	putative	father	of	each	child	in	the	child	protection	petitions.		The	

court	(Powers,	J.)	later	dismissed	from	the	proceedings	the	putative	father	of	the	elder	child	based	on	
DNA	test	results.		The	court	(Eggert,	J.)	entered	a	jeopardy	order	as	to	the	father	of	the	younger	child,	
finding	 abandonment	 as	 an	 aggravating	 factor	 pursuant	 to	 22	 M.R.S.	 §§	4002(1-A),	 (1-B)(D),	
4036(1)(G-2)	(2018).		The	children’s	fathers	are	not	at	issue	in	this	appeal.			
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The	court	(Kelly,	J.)	entered	preliminary	protection	orders	placing	the	children	

in	the	Department’s	custody.		After	a	contested	summary	preliminary	hearing,	

the	court	(Eggert,	J.)	maintained	custody	of	the	children	with	the	Department.		

The	 mother	 later	 agreed	 to	 the	 entry	 of	 an	 order	 finding	 jeopardy	 to	 the	

children	 on	 grounds	 that	 her	 mental	 health	 and	 substance	 abuse	 issues	

rendered	her	an	unsafe	caregiver	for	the	children.			

	      [¶3]		On	May	15,	2017,	the	Department	petitioned	for	the	termination	of	

the	 mother’s	 parental	 rights	 to	 both	 children.	 	 The	 court	 conducted	 a	

testimonial	hearing	on	July	9	and	10,	2018.		On	the	morning	of	the	first	hearing	

day,	 the	 mother	 moved	 in	 limine	 to	 exclude	 the	 testimony	 and	 treatment	

records	of	two	school	counselors	on	the	ground	that	she	had	not	been	provided	

with	any	discovery	relating	to	their	testimony	or	records.		The	court	denied	the	

motion	 in	 limine	 as	 untimely	 given	 that	 both	 witnesses	 were	 named	 on	 the	

Department’s	witness	list	filed	on	December	21,	2017,	but	the	mother	did	not	

seek	exclusion	of	their	testimony	until	July.			

       [¶4]	 	 By	 a	 judgment	 dated	 July	 26,	 2018,	 the	 court	 terminated	 the	

mother’s	 parental	 rights	 to	 the	 children.	 	 In	 its	 decision,	 the	 court	 made	 the	

following	factual	findings,	which	are	supported	by	competent	record	evidence.			
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         [¶5]	 	 The	 mother	 has	 suffered	 multiple	 crises	 because	 of	 her	 mental	

health	and	alcohol	abuse	issues.		She	was	diagnosed	in	2015	with	an	unspecified	

psychotic	 disorder	 and	 post-traumatic	 stress	 disorder	 (PTSD),	 for	 which	 she	

was	prescribed	anti-psychotic,	anti-depressant,	and	anti-anxiety	medications.2		

Although	 the	 mother	 saw	 a	 psychiatric	 nurse	 practitioner	 to	 manage	 her	

medications	and	agreed	to	psychological	and	substance	abuse	evaluations,	the	

court	 found	 that	 she	 was	 “in	 reality	 not	 doing	 so	 well	 and	 had	 not	 been	

maintaining	her	sobriety.”		In	2016,	she	was	admitted	to	a	hospital	psychiatric	

unit	 after	 a	 trip	 to	 the	 emergency	 room,	 and	 she	 was	 then	 transferred	 to	 an	

inpatient	mental	health	facility.			

         [¶6]		The	mother	then	completed	a	residential	program	and	was	faithfully	

attending	an	outpatient	program,	leading	the	Department	to	consider	allowing	

overnight	 visits	 with	 the	 children,	 when	 the	 mother	 relapsed	 on	 alcohol.		

Although	overnight	visits	eventually	began	in	January	of	2017,	the	court	found	

that		

         [the	 mother’s]	 progress	 came	 to	 an	 abrupt	 halt	 later	 in	 January	
         when	she	was	found	to	be	unstable	and	swaying	as	she	was	holding	
         [the	younger	child]	in	her	arms	during	an	unannounced	home	visit	
         on	 January	 31,	 2017[,]	 by	 [the	 Department	 caseworker].	 	 [The	

   2		The	court	found,	“It	is	now	not	clear	that	the	unspecific	psychosis	was	an	accurate	diagnosis	but	

the	PTSD	was	clearly	accurate	and	the	medications	prescribed	would	also	have	some	benefit	for	that	
diagnosis.”		
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      mother]	 was	 having	 trouble	 breathing,	 slurring	 her	 words,	 and	
      having	quick	mood	swings.		The	Crisis	Team	was	called	to	the	house	
      and	the	children	were	returned	to	their	foster	care.		[The	mother]	
      failed	several	drug	tests	from	January	27,	2017[,]	to	March	1,	2017.		
      She	was	discharged	from	the	[outpatient	treatment	and	parenting	
      program].		Despite	these	setbacks,	[the	 Department]	 did	 not	give	
      up	on	[the	mother]	and	she	did	not	give	up	on	herself.			
	
After	 a	 psycho-social	 assessment,	 the	 mother	 was	 diagnosed	 with	 PTSD	

induced	by	complex	trauma	and	an	alcohol	use	disorder,	and	she	was	referred	

for	cognitive	behavioral	therapy.		The	court	found,	

             During	 this	 time	 [the	 mother]	 seemed	 to	 regain	 control	 of	
      herself	and	she	began	to	have	the	children	for	visits	twice	a	week	
      on	 a	 check	 in	 basis.	 .	 .	 .	 	 [The	 mother]	 seemed	 to	 have	 a	 good	
      relationship	 with	 [her	 behavioral	 therapist]	 and	 expressed	 her	
      desire	 to	 work	 on	 her	 PTSD	 issues.	 	 Despite	 her	 expression,	 [the	
      mother]	had	cancelled	her	May	17	session	and	failed	to	show	for	
      the	 next	 session.	 	 On	 July	 5,	 [the	 mother]	 disclosed	 a	 relapse	 on	
      alcohol,	 and	 then	 failed	 to	 show	 for	 sessions	 from	 July	 12	 to	
      August	9.		The	pattern	of	failure	to	show	or	cancellations	continued	
      until	[the	behavioral	therapist]	discharged	[the	mother]	from	care	
      on	November	2,	2017.		During	the	time	in	therapy	[the	mother]	had	
      only	 begun	 to	 grapple	 with	 the	 PTSD	 issues	 and	 doing	 so	 was	
      emotionally	 difficult.	 	 [The	 mother]	 apparently	 did	 not	 have	 a	
      strong	enough	desire	to	remediate	her	PTSD	symptoms	to	continue	
      the	tough	work	needed	to	be	successful.		She	was	also	unwilling	to	
      acknowledge	 her	 difficulties	 with	 alcohol	 consumption	 which	
      makes	it	difficult	to	modify	behavior.			
             	
In	 the	 months	 that	 followed,	 the	 mother	 tested	 positive	 for	 alcohol	

consumption	in	several	substance	use	screenings	and	she	missed	visits	with	the	

children.		The	court	found,	
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      [The	 mother]	 has	 still	 not	 taken	 [the	 cognitive	 behavioral	
      counseling]	that	would	give	her	the	best	chance	of	learning	how	to	
      manage	 her	 PTSD	 and	 alcohol	 usage	 issues.	 	 She	 has	 been	 sober	
      recently	 according	 to	 her,	 but	 the	 Court	 does	 not	 find	 that	 she	 is	
      likely	 to	 maintain	 that	 without	 the	 intensive	 therapy	 needed	 to	
      manage	 her	 triggers.	 	 [After	 six	 months	 of	 cognitive	 behavioral	
      counseling,	the	mother]	had	only	begun	the	extensive	work	needed	
      to	reach	a	successful	conclusion.		She	 is	just	beginning	 again	and	
      there	 is	 no	 reason	 presented	 to	 find	 that	 another	 six	 months	 of	
      [counseling]	of	unknown	type	will	alleviate	the	jeopardy.			
      	
             .	.	.	.		
      	
      	      [The	 younger	 child]	 .	 .	 .	 has	 been	 in	 [the	 Department’s]	
      custody	most	of	her	life.		She	does	know	her	mother	and	has	a	bond	
      with	her	but	is	also	well	cared	for	and	safe	in	the	home	of	her	foster	
      parents	 .	 .	 .	 .	 	 In	 fact	 she	 is	 thriving.	 .	 .	 .	 	 She	 now	 requires	 the	
      permanency	 and	 stability	 that	 the	 termination	 of	 [the	 mother’s]	
      parental	rights	will	assure.			
      	
      	      [The	older	child]	has	expressed	to	the	[guardian	ad	litem]	his	
      concern	 about	 a	 return	 to	 [the	 mother].	 	 He	 has	 experienced	 life	
      with	her	when	she	has	been	drunk	and	worries	that	it	won’t	be	safe	
      to	be	with	her.		He	is	also	concerned	that	he	will	have	to	protect	
      [the	younger	child]	and	how	he	will	be	able	to	do	that	if	he	has	to	
      leave	the	home	to	get	help.		In	contrast	[the	older	child]	feels	safe	
      and	secure	with	[his	foster	parents].		He	has	fit	into	their	household	
      nicely	 .	 .	 .	 .	 He	 requires	 the	 permanency	 and	 stability	 that	
      termination	of	[the	mother’s]	parental	rights	will	assure.			
      	
      [¶7]		On	the	basis	of	these	facts,	the	court	found	two	grounds	of	parental	

unfitness—that	the	mother	is	unwilling	or	unable	to	protect	the	children	from	

jeopardy	 and	 will	 be	 unable	 to	 do	 so	 within	 a	 time	 reasonably	 calculated	 to	

meet	the	children’s	needs,	see	22	M.R.S.	§	4055(1)(B)(2)(b)(i)	(2018),	and	that	
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the	mother	is	unwilling	or	unable	to	take	responsibility	for	the	children	within	

a	 time	 reasonably	 calculated	 to	 meet	 their	 needs,	 see	 22	 M.R.S.	

§	4055(1)(B)(2)(b)(ii)	(2018)—and	that	termination	of	the	mother’s	parental	

rights	 is	 in	 the	 children’s	 best	 interests,	 see	 22	 M.R.S.	 §	 4055(1)(B)(2)(a)	

(2018).		The	mother	timely	appealed.3		See	22	M.R.S.	§	4006	(2018);	M.R.	App.	P.	

2B(c)(1).			

	        [¶8]		 The	mother	challenges	the	sufficiency	of	the	evidence	supporting	

the	court’s	findings	of	parental	unfitness	and	its	determination	that	termination	

is	 in	 the	 children’s	 best	 interests.	 	 Contrary	 to	 the	 mother’s	 contentions,	 the	

court’s	factual	findings	of	unfitness	and	best	interest	are	not	clearly	erroneous,	

and	we	discern	no	abuse	of	discretion	in	the	court’s	ultimate	determination	of	

best	interest.		See	In	re	Child	of	James	R.,	2018	ME	50,	¶¶	11,	14,	182	A.3d	1252.		

Notwithstanding	the	mother’s	successes	in	her	rehabilitation	and	reunification	

efforts,	there	is	sufficient	evidence	in	the	record	to	support	the	court’s	findings,	

by	 clear	 and	 convincing	 evidence,	 that,	 because	 of	 her	 alcohol	 abuse	 and	


     3		While	the	appeal	was	pending,	we	granted	the	mother’s	request	to	allow	the	District	Court	to	

rule	 on	 her	 motion	 for	 relief	 from	 the	 termination	 judgment	 based	 on	 the	 alleged	 ineffective	
assistance	of	her	trial	counsel.		See	M.R.	Civ.	P.	60(b)(6);	In	re	Alexandria	C.,	2016	ME	182,	¶¶	11-24,	
152	A.3d	617.		By	decision	dated	November	7,	2018,	the	court	(Eggert,	J.)	denied	the	mother’s	motion	
for	relief	from	judgment	on	its	merits,	notwithstanding	that	the	mother	had	not	filed	the	required	
signed	affidavits	to	accompany	her	motion.		See	In	re	Alexandria	C.,	2016	ME	182,	¶¶	15,	17,	23,	152	
A.3d	617.		The	mother	does	not	challenge	the	denial	of	her	motion	for	relief	from	judgment	in	this	
appeal.	
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continuing	mental	health	 needs,	the	 mother	is	unable	to	protect	the	children	

from	jeopardy	or	take	responsibility	for	the	children,	and	that	termination	is	in	

the	children’s	best	interests.		See	22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i),	(ii);	In	re	

Child	of	James	R.,	2018	ME	50,	¶¶	11,	14,	182	A.3d	1252.			

	       [¶9]		We	also	discern	no	abuse	of	discretion	in	the	court’s	determination	

that	termination	of	the	mother’s	parental	rights	is	in	the	best	interests	of	the	

children;	the	children	have	now	been	in	the	Department’s	care	for	more	than	

three	years	and	they	are	thriving	in	their	foster	home,	while	the	mother	is	only	

just	restarting	her	rehabilitation	efforts	after	a	series	of	relapses.		See	22	M.R.S.	

§	4055(1)(B)(2)(a);	In	re	Child	of	James	R.,	2018	ME	50,	¶	14,	182	A.3d	1252.		

The	 mother’s	 reliance	 on	 contradictory	 evidence—that	 she	 participated	 and	

made	 some	 progress	 in	 her	 rehabilitation	 services,	 that	 she	 faced	 significant	

challenges	in	her	life,	and	that	she	could	benefit	from	additional	counseling—

does	 not	 negate	 the	 court’s	 supported	 findings.	 	 It	 was	 for	 the	 trial	 court	 to	

determine	the	weight	and	credibility	of	the	evidence	that	the	mother	identifies,	

and	the	court	was	not	required	to—and	did	not—rely	on	that	evidence.4		See	

In	re	Keegan	M.,	2017	ME	203,	¶	6,	171	A.3d	586.			


    4	 	 We	 are	 also	 not	 persuaded	 by	 the	 mother’s	 contention	 that	 the	 court	 erred	 by	 denying	 her	

“admittedly	last-minute”	motion	in	limine	to	exclude	the	testimony	of	two	school	counselors.		See	
In	re	Kayla	S.,	2001	ME	79,	¶	9,	772	A.2d	858	(“We	review	a	trial	court’s	evidentiary	rulings	for	clear	
error	and	an	abuse	of	discretion.”).		Although	the	Department	had	identified	both	counselors	on	its	
8	

        The	entry	is:	

                           Judgment	affirmed.	



Kristina Dougherty, Esq., Chester & Vestal, P.A., Portland, for appellant mother

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


Portland District Court docket numbers PC-2016-14 and PC-2016-15
FOR CLERK REFERENCE ONLY




witness	list	more	than	six	months	earlier,	the	mother	had	never	sought	to	subpoena	any	information	
from	the	counselors	and	did	not	file	her	motion	in	limine	until	the	morning	of	the	first	day	of	trial.		
Further,	the	mother	does	not	challenge	the	court’s	denial	of	her	motion	for	relief	from	the	judgment,	
in	which	one	basis	of	her	claim	of	ineffective	assistance	of	counsel	was	her	trial	attorney’s	handling	
of	the	motion	in	limine.		See	Halliday	v.	Henry,	2015	ME	61,	¶	10	n.4,	116	A.3d	1270	(“[A]n	issue	not	
briefed	on	appeal	is	deemed	waived.”).			
