MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2015 ME 94
Docket:     Yor-15-9
Submitted
 On Briefs: July 1, 2015
Decided:    July 28, 2015

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


                                      IN RE L.T.


GORMAN, J.

         [¶1] The father of L.T. appeals from a judgment of the District Court

(Springvale, Foster, J.) terminating his parental rights to the child. He contends

that the evidence was not sufficient to support the court’s finding of parental

unfitness, and that the court abused its discretion in determining that termination of

his parental rights is in the child’s best interest. The father also contends that the

court abused its discretion in denying his motion for relief from judgment pursuant

to M.R. Civ. P. 60(b) and in denying him post-termination visitation with the child.

Finally, the father argues that the trial judge was biased against him, and that he

had a due process right to a jury trial. We disagree and affirm.

                                 I. BACKGROUND

         [¶2] The father and mother, who are not married, separated shortly after the

birth of their child in 2008. In 2010, the mother obtained a protection from abuse
2

order against the father that restricted his contact with the child to supervised

visits.1

        [¶3] Early in 2012, after an episode of domestic violence involving the

mother and another male partner, the Department of Health and Human Services

became involved with the family on an informal basis. By agreement, the child

was placed with her paternal grandmother, and the Department offered services to

both parents. Given the father’s propensity for violence—demonstrated not only

by his history of convictions and incarcerations, but by his own reports that he had

once tracked down and beat over the course of a day and a half an individual he

believed had molested a child, and that he had been placed in solitary confinement

for over two years because he “went crazy” after learning someone had tried to kill

him in prison—the Department referred the father for therapy designed to address

his anger and violence issues. The father began seeing the primary clinician for

Violence No More, a certified batterers’ intervention program, in May of 2012 but

attended the sessions inconsistently, and stopped attending in July of 2012.

        [¶4] In the fall of 2012, after a series of events that caused the Department

to believe that informal agreements with the parties would no longer provide

sufficient protection to the child, the Department filed a petition for child

    1
     The record provided to the trial court suggests that the parents relied exclusively on protection from
abuse orders, and amendments to those orders, to establish their respective parental rights and
responsibilities.
                                                                                                       3

protection alleging that the father2 created jeopardy through neglect, emotional

abuse, and physical abuse.             On October 24, 2012, while at court for a case

management conference, the father and the Department agreed to the entry of a

jeopardy order as to the father, and the court signed an order referencing the

parties’ agreement on November 26, 2012. That order, which was not docketed

until December 28, 2012, continued the child’s placement with her paternal

grandmother, and included a finding that the father had placed his child in jeopardy

by “exposing the child to domestic violence . . . perpetrated by him [against the

child’s] mother.” In addition, the order referenced the father’s “long criminal

history involving crimes of violence against others,” and stated that the father’s

jeopardy “issues” were due, in part, to mental health and anger issues.

        [¶5] Between the time the agreement was placed on the record and when it

was actually entered in the docket, the father sent dozens of threatening and vulgar

text messages to his mother. Based on those actions, the paternal grandmother

requested and obtained a protection from abuse order against him. Nonetheless, as

a result of the parties’ agreement and the jeopardy order, the child continued to live

with and be cared for by her paternal grandmother. Also during this time period,

the father re-engaged in services intended to address his violence and his inability


   2
     The mother was also subject to this petition, but the order from which the father appeals terminates
only his parental rights. The mother has not participated in this appeal.
4

to control his anger. That re-engagement was short-lived, however, as he failed to

complete a certified batterers’ intervention program after the program asked him to

leave.

         [¶6] In January of 2013, the father again started to attend sessions with the

clinician for Violence No More. Because the clinician was struck by the level of

the father’s impulsivity, he suggested a neuropsychological evaluation to rule out

some organic brain disease or injury. During the evaluation, the father became

angry and frustrated when he became concerned that the results of the evaluation

might negatively affect his efforts to regain custody of the child. Ultimately, the

evaluator was not able to determine the cause of the father’s behavior.

         [¶7] In March of 2013, the father was incarcerated for allegedly threatening

Department caseworkers. As a result of the criminal threatening charge, the father

was incarcerated from March of 2013 to July of 2013, although the charges against

him were eventually dismissed. While held in jail for those charges, the father

began taking medications that seemed to decrease his impulsivity and increase his

control. This improvement was noted by the Violence No More clinician, who

resumed his work with the father after he was released from jail.3


    3
      The record also suggests that, late in 2012, the father found a new partner, who has had a positive
effect on him. Through her, he has found solace and support within a church community that believes in
the power of redemption. Despite these improvements in his life, which were in place throughout the rest
of the case, the anger and impulsivity that have bedeviled the father’s life for decades have not abated.
                                                                                                5

        [¶8] While the father was incarcerated in April of 2013, the Department

filed a petition to terminate the father’s rights to the child based largely on the

factual allegations included in the jeopardy order. During the next year and a half,

the Department continued to offer services to the father, and the parties continued

to appear at court for judicial reviews. During at least two of those court events,

the father demonstrated that he had not yet learned to control his anger. In January

of 2014, he sent a lewd text message to the mother. On another occasion, the

father told the paternal grandmother, “[y]ou scum; you’re lower than low.”

        [¶9] On June 13, 2014, eighteen months after the docketing of the jeopardy

order, after three judicial reviews, and after the petition to terminate his parental

rights had already been pending for over a year, the father filed a motion to vacate

the jeopardy order pursuant to M.R. Civ. P. 60(b).4                         In that motion, which

accompanied a motion to continue the termination hearing, the father alleged that

his former counsel “misinformed him as to the language and content of the

Jeopardy Order, as well as what the language meant” and forced him to waive “his

right to a jeopardy hearing based on coercion and threat of arrest at the court.” The

court denied both the motion to continue and the motion for relief that same day.




  4
      Although the motion is dated May 12, 2014, it was not filed until June 13, 2014.
6

      [¶10] On June 16, 2014, just as the hearing on the termination petition was

to begin, the father’s attorney filed a motion seeking to end his representation of

the father. Thereafter, the hearing on that petition was continued on multiple

occasions as the court (Douglas, Foster, and Janelle, JJ.) unsuccessfully attempted

to assign new counsel for the father. Finally, on August 27, 2014, an attorney

retained by the father entered his appearance, and the hearing was held on

September 19 and 22, 2014.

      [¶11] Ultimately, at the time of the termination hearing, the father had

discontinued all services, and his only continuing effort toward reunification was

visitation with the child. During the actual termination hearing, the father talked

over his own attorney and became so agitated during closing arguments that he had

to leave the courtroom.

      [¶12]    In an order dated December 9, 2014, pursuant to 22 M.R.S.

§ 4055(1)(B)(2)(b)(i), (ii), (iv) (2014), the court (Foster, J.) terminated the father’s

rights to the child on the grounds of his inability or unwillingness to alleviate

jeopardy, his inability or unwillingness to take responsibility for the child in a time

reasonably calculated to meet the child’s needs, and his failure to make a good

faith effort to rehabilitate and reunify with the child.

      [¶13]    The court explicitly concluded that the father has a borderline

personality disorder; is affected by bipolar disorder, depression, and post-traumatic
                                                                                        7

stress disorder; and that he has numerous criminal convictions, many of which

involve aggression toward others. The court also concluded that the father fails to

“function appropriately and effectively in his necessary interactions with others in

the world” and, as a result, puts the child at risk of both physical and emotional

harm.

        [¶14] The father timely appealed pursuant to 22 M.R.S. § 4006 (2014) and

M.R. App. P. 2.

                                   II. DISCUSSION

A.      Sufficiency of the Evidence

        [¶15] The father argues that the trial court erred in terminating his parental

rights because it did not have sufficient evidence before it to find, by clear and

convincing evidence, the grounds for parental termination pursuant to

22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii), (iv).

        [¶16] The record supports the court’s findings that the father has significant

mental health and anger issues. Further, the record supports the court’s findings

that the father inconsistently engaged in services to deal with these issues and that

the father had stopped all services at the time of the termination hearing. Because

these factual findings are supported by competent record evidence and clearly

constitute at least one, if not all three, of the statutory bases the court identified, we

affirm the court’s findings and conclusions as to the grounds for termination.
8

B.      Other Issues

        [¶17] The father also argues that the court abused its discretion in denying

his motion to vacate the jeopardy order. To the extent an order in response to a

Rule 60(b) motion might be appealable pursuant to 22 M.R.S. § 4035, the father

did not timely appeal from the jeopardy order or from the court’s denial of the

Rule 60(b) motion, and they are not before us to consider. See 22 M.R.S. § 4006

(2014); 22 M.R.S. § 4035 (2014); M.R. App. P. 2(b)(3), (4); In re Matthew W.,

2006 ME 67, ¶ 10 n.2, 903 A.2d 333; Alexander, Maine Appellate Practice § 2.4,

2.11 at 35-36, 42 (4th ed. 2013).

        [¶18] The father next argues that the court abused its discretion in failing to

grant him post-termination visitation rights pursuant to 22 M.R.S. § 4038-C(3)

(2014).5     To the extent that the father is arguing that he should be granted

post-termination visitation, the father is no longer a “parent” as defined by

22 M.R.S. § 4002(7) (2014), and, therefore, he may not petition for visitation

pursuant to 22 M.R.S. § 4038-C(3). To the extent the father is arguing that the

court erred in its best interest analysis as to the child, we disagree. See In re C.P.,

2013 ME 57, ¶¶ 16-20, 67 A.3d 558; In re David W., 2010 ME 119, ¶¶ 6-10,

8 A.3d 673.

    5
     In the termination order, the court explained that the Department’s permanency plan for the child
was to develop a permanency guardianship with the paternal grandmother and mother pursuant to
22 M.R.S. § 4038-C (2014).
                                                                                     9

      [¶19] The father also argues that the trial judge was biased against him.

Because the father did not make a motion for the trial judge’s recusal, we review

the judge’s decision not to recuse sua sponte for obvious error.                   See

In re Kaitlyn P., 2011 ME 19, ¶¶ 8-9, 12 A.3d 50. Here, the father argues that the

judge is biased against parents in child protective proceedings based on the fact

that the judge assessed various pieces of evidence in this case and determined that

they supported at least one ground of parental unfitness. See generally M. Code

Jud. Conduct III(B)(5) (discussing bias and prejudice). As the father’s counsel

should be aware, it is the court’s role as the fact-finder to make those assessments,

and the court’s factual findings were not clearly erroneous. See Dionne v. LeClerc,

2006 ME 34, ¶ 15, 896 A.2d 923. In addition, the evidence of the father’s mental

health and anger issues overwhelmingly supports the court’s conclusion that the

father had failed to make sufficient progress in those areas.

      [¶20] Finally, the father argues that he had a due process right to a jury trial.

Because the father did not attempt to have this case removed to the Superior Court

pursuant to M.R. Civ. P. 76C, we review the trial court’s decision not to remove

the case to the Superior Court sua sponte for obvious error. See In re Anthony R.,

2010 ME 4, ¶¶ 8-9, 987 A.2d 532. The court’s decision not to remove the case was

not an obvious error. See 22 M.R.S. § 4031 (2014) (stating that the District Court

has jurisdiction over child protection proceedings); In re A.M., 2012 ME 118 ¶ 16,
10

55 A.3d 463 (stating that due process requires “an impartial factfinder,” not a jury

trial); In re Shane T., 544 A.2d 1295, 1296-97 (Me. 1988) (affirming the denial of

a motion for removal to Superior Court for a jury trial in a termination of parental

rights case).

        The entry is:

                           Judgment affirmed.



On the briefs:

        Stephen C. Whiting, Esq., The Whiting Law Firm, P.A.,
        Portland, 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



Springvale District Court docket number PC-2012-37
FOR CLERK REFERENCE ONLY
