MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2017	ME	45	
Docket:	      And-16-410	
Submitted	 	
  On	Briefs:	 February	23,	2017	
Decided:	     March	9,	2017	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   IN	RE	KENNETH	S.	
	
	
PER	CURIAM	

       [¶1]		The	mother	of	Kenneth	S.	appeals	from	a	judgment	of	the	District	

Court	 (Lewiston,	 Oram	 J.)	 terminating	 her	 parental	 rights	 pursuant	 to	

22	M.R.S.	 §	 4055(1)(B)(2)	 (2016).	 	 She	 challenges	 the	 court’s	 determination	

that	 termination	 of	 her	 parental	 rights	 is	 in	 the	 child’s	 best	 interest,	 arguing	

that	there	is	an	alternative	foster	or	adoptive	placement	for	her	and	the	child	

together;	 that	 her	 parenting	 deficits	 have	 not	 interrupted	 the	 child’s	

development;	 and	 that	 there	 are	 safety	 concerns	 in	 the	 current	 foster	

placement.		We	affirm	the	judgment.			

       [¶2]	 	 On	 a	 petition	 by	 the	 Department	 of	 Health	 and	 Human	 Services	

filed	 in	 December	 2014,	 two	 days	 after	 the	 child’s	 birth,	 the	 court	 granted	 a	

preliminary	 protection	 order	 as	 against	 both	 parents,	 see	 22	 M.R.S.	 §	 4034	

(2016),	 and	 the	 child	 was	 placed	 in	 foster	 care.	 	 In	 July	 2015,	 the	 mother	

consented	 to	 a	 jeopardy	 order	 “based	 on	 [her]	 low	 cognitive	 ability,	 Autism	
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Spectrum	 Disorder,	 and	 behavioral	 [dysregulation]	 related	 either	 to	 her	

cognitive	limitations	or	a	mood	disorder.”		See	22	M.R.S.	§§	4035-4036	(2016).		

DHHS	 filed	 a	 petition	 for	 termination	 of	 parental	 rights	 in	 September	 2015,	

and	in	May,	June,	and	July	2016,	the	court	held	a	three-day	contested	hearing	

on	 the	 petition	 as	 to	 the	 mother.1	 	 On	 August	 3,	 the	 court	 issued	 a	 judgment	

terminating	 the	 mother’s	 parental	 rights,	 finding	 that	 despite	 her	 diligent	

efforts,	she	is	unable	to	protect	the	child	from	jeopardy	and	is	unable	to	take	

responsibility	 for	 him,	 and	 will	 not	 be	 able	 to	 do	 either	 within	 a	 time	

reasonably	          calculated	       to	    meet	      his	     needs,	      see	     22	     M.R.S.	

§	4055(1)(B)(2)(b)(i)-(ii);	and	that	termination	is	in	the	child’s	best	interest,	

see	 id.	 §	4055(1)(B)(2)(a).	 	 The	 mother	 timely	 appealed.	 	 22	M.R.S.	 §	 4006	

(2016);	M.R.	App.	P.	2(b)(3).			

	        [¶3]		We	review	the	trial	court’s	“factual	findings	for	clear	error	and	its	

ultimate	 conclusion	 regarding	 the	 best	 interest	 of	 the	 child	 for	 an	 abuse	 of	

discretion,	 viewing	 the	 facts,	 and	 the	 weight	 to	 be	 given	 them,	 through	 the	

trial	court’s	lens.”		In	re	R.M.,	2015	ME	38,	¶	7,	114	A.3d	212.			

         [¶4]		Here,	the	court	did	not	abuse	its	discretion	in	determining	that	the	

child’s	 best	 interest	 is	 served	 by	 terminating	 the	 mother’s	 parental	 rights.		


     1		The	court	terminated	the	father’s	parental	rights,	with	his	consent,	in	November	2015.			
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With	support	in	the	record,	the	court	found	by	clear	and	convincing	evidence	

that	the	mother’s	mental	health	limitations,	which	the	court	characterized	as	

“intractable”	and	impervious	to	therapy	or	treatment,	prevent	her	from	being	

able	to	act	as	an	independently	functioning	parent	to	the	child.		As	the	court	

also	 found,	 the	 mother	 is	 at	 high	 risk	 for	 expecting	 the	 child	 to	 assume	 a	

parental	role	for	her	and	is	likely	to	be	easily	frustrated	by	any	conflict	with	

the	 child.	 	 Despite	 her	 diligent	 participation	 in	 the	 reunification	 plan,	 the	

mother	 is	 not	 yet	 even	 ready	 to	 care	 for	 the	 child	 during	 a	 visit	 without	

supervision.		The	mother	herself	requires	daily	living	skills	assistance	and	has	

a	 court-appointed	 limited	 guardian—her	 biological	 mother,	 the	 child’s	

grandmother.			

	       [¶5]	 	 Although	 the	 mother	 advocates	 that	 the	 child	 be	 moved	 to	 an	

alternate	 adoptive	 placement	 with	 her	 former	 foster	 mother	 so	 that	 the	

mother	 can	 maintain	 a	 relationship	 with	 the	 child,	 the	 former	 foster	 mother	

was	not	a	licensed	foster	parent	at	the	time	of	the	court’s	decision,2	and	there	




    2		The	former	foster	mother’s	licensure	had	expired,	and	she	was	in	the	process	of	applying	for	a	

renewal	 of	 her	 license	 to	 operate	 a	 family	 foster	 home	 at	 the	 time	 of	 the	 termination	 hearing,	
pursuant	 to	 22	 M.R.S.	 §	 8102	 (2016);	 18	 C.M.R.	 10	 148	 016	 (2011).	 	 The	 court	 found	 that	 the	
licensure	renewal	process	had	“been	delayed	by	administrative	problems	at	DHHS.”			
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is	no	evidence	that	she	has	spent	time	with	the	child	other	than	during	visits	

she	supervised	between	the	child	and	the	mother.3		

         [¶6]	 	 Additionally,	 we	 note	 that	 permanency	 planning	 for	 a	 child	 in	

foster	care,	22	M.R.S.	§	4038-B(4)	(2016),	and	the	best	interest	determination	

to	 be	 made	 in	 a	 termination	 proceeding,	 22	 M.R.S.	 §	 4055(1)(B)(2)(a),	 are	

distinct	from	the	question	of	who	should	adopt	the	child,	which	is	addressed	

in	an	adoption	proceeding	governed	by	18-A	M.R.S.	§§	9-301	to	9-315	(2016).		

Nonetheless,	 in	 conducting	 a	 best	 interest	 analysis,	 the	 court	 may	 consider	

evidence	 that	 the	 current	 foster	 placement	 is	 furthering	 the	 child’s	

permanency	plan,	especially	where	that	plan	is	to	place	the	child	for	adoption.		

See	In	re	K.M.,	2015	ME	79,	¶	11,	118	A.3d	812;	In	re	Kayla	M.,	2001	ME	166,	

¶¶	13-14,	785	A.2d	330	(explaining	that	the	child’s	best	interest	was	met	by	

termination	where	the	child	had	spent	most	of	her	life	with	her	foster	family	

and	was	bonded	with	her	foster	parents	and	sibling);	In	re	Charles	G.,	2001	ME	

3,	 ¶	 15,	 763	 A.2d	 1163	 (finding	 that	 the	 trial	 court’s	 best	 interest	

determination	was	not	error,	and	affirming	the	court’s	termination	of	parental	

     3		The	mother’s	argument	does	not	benefit	from	the	statutory	preference	for	a	child	to	be	placed	

with	 family	 members	 when	 the	 child	 is	 removed	 from	 a	 parent’s	 custody,	 because	 such	 a	 kinship	
placement	 does	 not	 extend	 to	 a	 parent’s	 former	 foster	 mother.	 	 See	 22	 M.R.S.	 §	 4003(3-A)	 (2016)	
(providing	for	placement	of	the	child	“with	an	adult	relative	when	possible”);	22	M.R.S.	§	4002(9-B)	
(2016)	(defining	“relative”	as	“the	biological	or	adoptive	parent	of	the	child’s	biological	or	adoptive	
parent,	 or	 the	 biological	 or	 adoptive	 sister,	 brother,	 aunt,	 uncle	 or	 cousin	 of	 the	 child”);	 cf.	 In	 re	
N.W.,	2013	ME	64,	¶	15,	70	A.3d	1219.	
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rights,	 where	 the	 child	 had	 a	 strong	 attachment	 to	 the	 foster	 family	 and	 the	

foster	family	wanted	to	adopt	the	child).	

       [¶7]		Here,	with	support	in	the	record,	the	court	found	that	the	child	is	

attached	 to	 his	 foster	 parents	 and	 four	 foster	 siblings,	 with	 whom	 he	 has	

continuously	resided	almost	since	birth,	and	that	the	foster	parents	are	even	

prepared	to	adopt	the	child.		The	court	did	not	err	by	finding	that	removal	of	

the	 child	 from	 his	 current	 foster	 family—of	 which	 he	 is	 “an	 integral	 part”—

and	 placement	 with	 the	 mother’s	 own	 former	 foster	 mother	 “would	 benefit	

[the	mother],	but	would	not	benefit	[the	child].”4		

       [¶8]	 	 These	 and	 other	 findings	 demonstrate	 that	 the	 court	 properly	

considered	 the	 statutory	 factors	 relevant	 to	 its	 determination	 of	 the	 child’s	

best	 interest	 for	 purposes	 of	 a	 termination	 proceeding—leaving	 to	 another	

day	the	issue	of	who	should	adopt	the	child	pursuant	to	the	considerations	set	

out	 in	 18-A	 M.R.S.	 §	 9-308	 and	 other	 applicable	 authority—including	 “the	

needs	of	the	child,	.	.	.	the	child’s	age,	[and]	the	child’s	attachments	to	relevant	

persons,”	22	M.R.S.	§	4055(2)	(2016).		The	court’s	findings	and	ultimate	best	




   4		The	court	also	did	not	err	by	finding	that	the	child’s	foster	parents	have	adequately	addressed	

safety	issues	with	the	physical	structure	of	the	foster	home,	which	had	been	of	some	concern	to	the	
mother	and	DHHS.			
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interest	 determination	 are	 supported	 by	 the	 record	 and	 do	 not	 reflect	 an	

abuse	of	discretion.		

         [¶9]	 	 Finally,	 although	 not	 challenged	 by	 the	 mother,	 the	 court	 did	 not	

err	by	determining	that	DHHS	had	proved,	by	clear	and	convincing	evidence,	

at	 least	 one	 ground	 of	 parental	 unfitness.	 	 See	 Guardianship	 of	 Hailey	 M.,	

2016	ME	80,	¶	15,	140	A.3d	478.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	      	      	     	
	
Jeffrey	S.	Dolley,	Esq.,	Dolley	Law	Firm,	Lewiston,	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	
	
	
Lewiston	District	Court	docket	number	PC-2014-89	
FOR	CLERK	REFERENCE	ONLY	
