MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:    2019 ME 67
Docket:      Cum-18-466
Submitted
  On Briefs: April 24, 2019
Decided:     May 9, 2019

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



                               IN RE CHILD OF CARL D.

PER CURIAM

         [¶1] Carl D. and the mother of his child appeal from a judgment of the

District Court (Portland, Powers, J.) terminating their parental rights to their

child. 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2018). The father challenges

the court’s unfitness determination, and both parents contend that termination

of their parental rights is contrary to the best interest of their child. We affirm

the judgment.

                                   I. BACKGROUND

         [¶2] On September 22, 2016, the Department of Health and Human

Services filed a child protection petition and a request for a preliminary

protection order. See 22 M.R.S. §§ 4032, 4034 (2018). The petition alleged that

the mother exposed the child to unsafe individuals and violence in the home

and that both parents have been unable to keep the child safe and meet the

child’s significant behavioral needs. The court (Darvin, J.) entered an order
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transferring custody of the child to the Department on the same day. On

December 29, 2016, the court (Powers, J.) entered a jeopardy order, with the

parties’ agreement, and custody remained with the Department. See 22 M.R.S.

§ 4035(1)-(2) (2018).

      [¶3] The Department first petitioned for termination of the parents’

rights on August 9, 2017, see 22 M.R.S. § 4052 (2018); however, the Department

withdrew the petition during a period of trial placement with the father. The

Department filed a second petition for termination of the parents’ rights on May

30, 2018, after the child had been removed from the parents’ care and placed

in a residential treatment setting. The court held a three-day hearing on the

petition and, on November 6, 2018, found by clear and convincing evidence that

the parents are unwilling or unable to protect the child from jeopardy or take

responsibility for the child within a time that is reasonably calculated to meet

the child’s needs, and that termination of the parents’ rights is in the best

interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii).

      [¶4] The court based its decision on the following factual findings, all of

which are supported by competent evidence in the record.

            This case has been pending for over 25 months, resulting in
      [the child’s] removal from the home. [The child] has had recent
      mental health hospital and crisis center stays. [The child] suffered
      from trauma at home with [the] mother[,] who was caring for [the
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child]. The father was in New York and not actively involved. The
mother has had alcohol and drug use issues since she was a
teenager. She is now 42. She has also had mental health diagnoses,
which have required her to take several medications. [The mother]
has led a chaotic life and she still does except for obtaining an
appropriate apartment in 2017. [The mother] has apparently been
“clean” for a few months except that she smokes marijuana daily.
She has not been totally honest with providers about her alcohol
and drug use history and has had some positive tests in 2017 and
2018. [The mother] admits that her alcohol issue is substantial,
and it has affected her ability to be a safe and stable parent. She has
had counseling off and on for years and still struggles with
substance use and her mental health. Two separate trial
placements with both parents have failed. [The mother’s] obvious
love for [the child] is not enough to keep [the child] safe.

      [The father] has had some substance abuse counseling in
New York but still has not been able to keep his drinking under
control. He had a driving under the influence conviction there and
started treatment in February 2017. His counselor opines
believably that the [child’s] father needs to be completely
abstinent. The treatment ended in January 2018, and it is clear [the
father] has continued to drink alcohol. He admits his problems
typically relate to alcohol. He has also tested positive in 2017 for
marijuana.

       [An] April 16, 2018 incident [occurring during the child’s
second trial placement with the father] involved improper use of
alcohol and untruthful statements about what happened when he
went out to bars and later had an argument with [the mother] after
hiding a woman in the apartment. Police came, and the father’s
second trial placement ended. [The father] admitted that he really
made a huge mistake that evening. This episode shows [the father]
is not serious about resolving his alcohol issues.

      [The father] has had inconsistent visits with [the child]
throughout. One original goal was to develop a solid relationship
with [the child]. He has come to Maine for the trial placements and
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    has driven to see [the child] at times. He has had some phone
    contact, but not regularly. The contacts themselves go quite well.
    [The father] says he would like to take [the child] to New York to
    live but he has not established stable housing since this case began.
    [The father] knows his [child has a developmental disorder] but
    feels [the child] is really just a “normal” kid going through some
    “things.” That shows [the father] does not understand his [child’s]
    serious needs. [The father’s] life is itself chaotic and he cannot
    come close to meeting [the child’s] need[s] or protecting him from
    jeopardy now or in any reasonable future time. [The father] also
    truly cares for [the child] and wants to be [the child’s] ongoing
    parent.

          ....

           This case has been pending over two years and [the child]
    still has serious and numerous special needs that will continue to
    require services. . . . [The child] has had many placements and is
    now at . . . a specialized program that is helping [the child] progress.
    [The child] will need ongoing assistances as well. [The child] truly
    requires a stable, understanding, and caring caregiver with a
    routine that suits [the child’s] needs. Bouncing around from
    placement to placement and being subject to ongoing judicial
    reviews are not giving [the child] the permanency [the child]
    needs. . . .

          [The child] certainly has a close relationship with [the]
    mother and some with [the] father. [The child] will no doubt suffer
    an emotional loss if their rights are terminated. . . . These parents
    are willing to be the parent [the child] needs, but they cannot be
    parents who can provide a safe and nurturing home for [the child]
    now or in the near future. These parents have had over two years
    to deal with serious parenting issues without meaningful success,
    and [the child] simply cannot wait longer to have a suitable,
    permanent home. Thus, the statutory mandate for permanency
    overcomes the parents’ desires to continue their quest to regain a
    parenting role.
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                                II. DISCUSSION

      [¶5] On appeal, the father challenges the court’s finding that he is unfit,

and both parents challenge the court’s overall determination that termination

of their individual parental rights is in the child’s best interest. We review the

trial court’s factual findings for clear error and will vacate a finding only if

“there is no competent evidence in the record to support it; if the fact-finder

clearly misapprehends the meaning of the evidence; or if the finding is so

contrary to the credible evidence that it does not represent the truth and right

of the case.” Guardianship of Hailey M., 2016 ME 80, ¶ 15, 140 A.3d 478

(citations and quotation marks omitted); see also In re Child of Ronald W., 2018

ME 107, ¶ 6, 190 A.3d 1029. We review the court’s “ultimate conclusion

regarding the best interest of the child for an abuse of discretion, viewing the

facts, and the weight to be given [to] them, through the trial court’s lens.”

In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212. Because the trial court is “able to

directly evaluate the testimony of the witnesses,” we give substantial deference

to the court’s judgment on the issue of best interest. In re Caleb M., 2017 ME 66,

¶ 33, 159 A.3d 345.
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A.    Fitness Determination

      [¶6] The father argues that there was insufficient evidence for the court

to conclude that he was unfit to parent his child and that the court erred in

calculating the time reasonably calculated to meet the child’s needs.

See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). Contrary to the father’s arguments,

there was substantial evidence from which the court determined that the father

was presently unfit and would be unable to protect or take responsibility for

his child in a time reasonably calculated to meet the child’s needs. See id. As

we have made clear on previous occasions, while the inquiry concerning

parental unfitness “is prospective, the evidence to be considered is

retrospective.” In re Charles G., 2001 ME 3, ¶ 7, 763 A.2d 1163. In every case,

the court must gauge the reasonable timeframe from the child’s perspective.

See id; see also In re Jamara R., 2005 ME 45, ¶ 22, 870 A.2d 112 (“[O]nce a child

has been placed in foster care, a statutory clock begins ticking. In setting that

clock, the Legislature has spoken in terms of days and months, rather than in

years, as might better fit an adult’s timeframe for permanent change.”),

overruled in part on other grounds by In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d

1118. In this case, considering the significant needs of the child and the

numerous placements, the court did not clearly err in finding by clear and
                                                                               7

convincing evidence that the father was unable or unwilling to protect the child

from jeopardy or take responsibility for the child within a time reasonably

calculated to meet the child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(B)(i)-(ii);

In re Child of Ronald W., 2018 ME 107, ¶ 6, 190 A.3d 1029.

B.    Best Interest Determination

      [¶7] Both parents challenge the court’s conclusion that it is in their

child’s best interest for their parental rights to be terminated. They argue that

there was insufficient evidence to support the court’s determination because

the child’s significant needs will make adoption difficult, or impossible, and

each is willing to provide a loving, permanent home.          Contrary to their

arguments, the court did not abuse its discretion in determining, by clear and

convincing evidence, that termination of the parents’ rights was in the child’s

best interest.

      [¶8] The need for permanency is a central tenet of Maine’s Child and

Family Services and Child Protection Act. 22 M.R.S. §§ 4001-4099-C (2018); see

also In re Thomas H., 2005 ME 123, ¶ 23, 889 A.2d 297. “[L]ong-term foster care

is inherently impermanent and therefore disfavored as a permanency plan for

children.” In re C.P., 2013 ME 57, ¶ 18, 67 A.3d 558; see also 22 M.R.S. §4050.

Absent a compelling reason to support it, long-term foster care is “contrary to
8

the welfare of children” because the uncertainty of foster care affects the

stability of children and the ability of caregivers to meet their needs. In re

Thomas H., 2005 ME 123, ¶¶ 25, 33, 889 A.2d 297. These principles apply even

when adoption is less certain because of a child’s individual needs. See In re

C.P., 2013 ME 57, ¶ 19, 67 A.3d 558 (“In such circumstances, where the only

real hope for children is to be placed in a healthy, supportive, and permanent

adoptive home, the court does not err or abuse its discretion in finding

termination to be in the best interests of the children, even if the possibility of

adoption is less than certain.”).

      [¶9] “Permanency is a dynamic concept that must be fashioned from the

actual circumstances and needs of the child or children before the court.” In re

Marcus S., 2007 ME 24, ¶ 10, 916 A.2d 225. In this case, the child’s behavioral

and educational needs are significant. During the pendency of this case, the

child moved between nineteen placements, including two unsuccessful trial

placements with each parent and at least six therapeutic residential settings.

There was sufficient evidence for the court to find that the child “requires a

stable, understanding, and caring caregiver with a routine that suits [the

child’s] needs” and that “[b]ouncing around from placement to placement and

being subject to ongoing judicial reviews are not giving [the child] the
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permanency [the child] needs.” The parents both face individual challenges

that they have been unable to overcome despite their efforts. Although there is

no doubt that the parents love and are willing to care for their child, the court

did not err by finding that they are unable to provide the level of stability and

care necessary to meet their child’s significant needs. Therefore, even if placing

the child in an adoptive home may be challenging, the court did not abuse its

discretion in concluding that termination of the parent’s rights was in the best

interest of the child.1 See In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212; In re C.P.,

2013 ME 57, ¶ 19, 67 A.3d 558.

        The entry is:

                        Judgment affirmed.




   1 The mother makes one further argument that the court erred in terminating her parental rights

because the court had other available permanency options outside of adoption, namely another
planned permanent living arrangement (APPLA). 22 M.R.S. § 4038-B(4)(A)(5) (2018). APPLA was
not an available option at this, or any, stage of the case because the child has not yet attained fourteen
years of age. See 42 U.S.C.S. § 675(5)(C)(i) (LEXIS through Pub. L. No. 116-8).
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James S. Hewes, Esq., South Portland, for appellant father

Nathaniel Seth Levy, Esq., Brunswick, for appellant mother

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

Portland District Court docket number PC-2016-80
FOR CLERK REFERENCE ONLY
