MAINE	SUPREME	JUDICIAL	COURT	                                                     Reporter	of	Decisions	
Decision:	    2018	ME	107	
Docket:	      Ken-18-66	
Submitted	
  On	Briefs:	 June	27,	2018	
Decided:	     July	26,	2018	
	             	 	       	       	       	       	       	       	       	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                    IN	RE	CHILD	OF	RONALD	W.	
	
	
PER	CURIAM	

          [¶1]		Ronald	W.	appeals	from	a	judgment	of	the	District	Court	(Augusta,	

Nale,	 J.)	 terminating	 his	 parental	 rights	 to	 his	 child	 pursuant	 to	 22	 M.R.S.	

§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(ii)	(2017).1		He	challenges	the	adequacy	

of	the	court’s	findings	to	inform	the	parties	of	the	basis	for	the	judgment	as	well	

as	 the	 sufficiency	 of	 the	 evidence	 supporting	 the	 court’s	 finding	 of	 parental	

unfitness	and	the	court’s	discretionary	determination	that	termination	is	in	the	

best	interest	of	the	child.		See	id.	§	4055(1)(B)(2)	(2017).		After	reviewing	the	

record,	we	conclude	that	the	court	met	its	obligation	to	issue	findings	that	are	

adequate	to	inform	the	parties	of	the	basis	for	the	judgment	and	to	allow	for	

effective	 appellate	 review,	 the	 evidence	 supports	 the	 court’s	 factual	 findings,	



   1		On	January	22,	2018,	the	District	Court	(Augusta,	Nale,	J.)	entered	a	judgment	terminating	the	

mother’s	parental	rights	contingent	on	the	termination	of	the	father’s	parental	rights	after	the	mother	
consented	in	writing	to	the	termination	of	her	rights.		See	22	M.R.S.	§	4055(1)(A)(1)(a),	(B)(1)	(2017).		
The	mother	does	not	join	in	this	appeal.	
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and	the	court	did	not	exceed	its	discretion	in	determining	that	termination	of	

the	father’s	parental	rights	is	in	the	child’s	best	interest.		Accordingly,	we	affirm	

the	judgment.	

      [¶2]		As	a	preliminary	matter,	the	father	contends	that	the	court	erred	by	

failing	 to	 make	 a	 finding	 of	 parental	 unfitness	 as	 required	 by	 22	 M.R.S.	

§	4055(1)(B)(2)(b),	and,	to	the	extent	that	the	court	made	such	a	finding,	the	

court	 was	 unclear	 regarding	 which	 statutory	 ground	 of	 unfitness	 formed	 the	

basis	for	its	decision.		Contrary	to	the	father’s	contention,	the	court	expressly	

found	 parental	 unfitness.	 	 The	 court	 cited	 to	 section	 4055(1)(B)(2)(b),	 listed	

the	 statutory	 definitions	 for	 parental	 unfitness,	 and	 explained	 that	 the	

Department	was	required	to	prove	unfitness	by	clear	and	convincing	evidence	

pursuant	 to	 at	 least	 one	 of	 those	 statutory	 definitions.	 	 Under	 the	 heading	

“UNFITNESS	AS	TO	FATHER,”	the	court	stated	that	it	“must	look	at	whether	[the	

father]	 will	 be	 able	 to	 take	 responsibility	 for	 [the	 child]	 within	 a	 time	

reasonably	calculated	to	meet	[her]	needs,	and	he	cannot.”			

      [¶3]		From	this	language,	it	is	evident	that	the	court	found	that	the	father	

was	 unfit	 pursuant	 to	 section	 4055(1)(B)(2)(b)(ii),	 which	 provides	 that	

parental	 unfitness	 may	 be	 found	 when	 “[t]he	 parent	 has	 been	 unwilling	 or	

unable	 to	 take	 responsibility	 for	 the	 child	 within	 a	 time	 which	 is	 reasonably	
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calculated	to	meet	the	child’s	needs.”		That	the	court	made	a	finding	of	parental	

unfitness	pursuant	to	section	4055(1)(B)(2)(b)(ii)	is	further	demonstrated	by	

its	 specific	 findings	 of	 fact.	 	 These	 findings	 and	 conclusions	 meet	 the	

requirement	 imposed	 on	 a	 court,	 see	 M.R.	 Civ.P.	 52(a),	 to	 issue	 findings	 and	

conclusions	 that	 are	 sufficient	 to	 “inform	 the	 parties	 of	 the	 reasoning	

underlying	its	conclusions	and	to	provide	for	effective	appellate	review.”		Young	

v.	Young,	2015	ME	89,	¶	10,	120	A.3d	106.			

      [¶4]	 	 The	 court	 based	 its	 finding	 of	 parental	 unfitness	 and	 its	

determination	of	the	child’s	best	interest	on	the	following	findings	of	fact:	

      [The	 father’s]	 drug	 use,	 criminal	 history,	 .	 .	 .	 and	 long-term	
      incarceration	are	longstanding	and	significant.			
      	
      .	.	.	.	
      	
      The	 court	 finds	 that	 [the	 father]	 has	 not	 had	 consistent	 or	
      meaningful	 contact	 with	 his	 [child]	 throughout	 her	 life.	 	 [The	
      father]	has	either	been	incarcerated	or	living	apart	from	[the	child]	
      .	.	.	for	extended	periods	of	time.			
      	
      [The	 child]	 has	 not	 seen	 her	 father	 for	 over	 20	 months.	 	 [The	
      father’s]	 earliest	 release	 date	 is	 projected	 to	 be	 June	 of	 2019.		
      Approximately	17	more	months.		The	guardian	reports	that	during	
      her	visit	with	[the	child]	that	[the	child]	has	never	made	mention	of	
      her	father.	.	.	.		Each	month	is	a	very	long	time	in	the	life	of	a	child	
      this	age.	
      	
      The	court	finds	that	[the	father]	failed	to	initiate	any	contact	with	
      [the	 Department	 of	 Health	 and	 Human	 Services]	 regarding	 his	
      [child]	during	the	first	10	months	[that	she	was	in	the	custody	of	
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      the	 Department	 during]	 his	 incarceration	 for	 violating	 his	
      probation.	 	 The	 one	 contact	 that	 he	 had	 was	 a	 letter	 expressing	
      concern	for	[the	child].		After	that	contact	with	[the	Department],	
      there	wasn’t	any	more.		He	made	no	request	of	[the]	case	worker	to	
      see	his	[child].			
      	
      The	court	finds	that	[the	father]	is	unable	to	meet	the	most	basic	
      needs	 of	 his	 [child].	 	 This	 situation	 will	 not	 change	 in	 the	 next	
      17	months.		It	has	not	changed	since	May	2,	2016.		The	court	finds	
      that	 this	 father’s	 parental	 rights	 are	 not	 being	 terminated	 solely	
      upon	his	incarceration.	.	.	.	
      	
      The	court	heard	testimony	from	[the	father]	regarding	the	steps	he	
      is	 taking	 to	 better	 himself	 while	 he	 is	 incarcerated.	 	 [The	 father]	
      offered	no	timeline	as	to	when	he	feels	he	will	be	a	better	person.		
      The	court	understands	that	[the	father]	does	not	want	to	lose	his	
      [child].	 	 The	 court	 understands	 that	 [the	 father]	 loves	 his	 [child].		
      Love	alone	is	not	enough.	
      	
      .	.	.	.	
      	
      .	 .	 .	 [The	 father]	 remains	 incarcerated	 [after	 being]	 initially	
      incarcerated	on	May	2,	2016.		He	is	not	in	a	position	now	or	anytime	
      soon	to	be	able	to	care	for	the	immediate	needs	of	his	[child].		
      	
      .	.	.	.	
      	
      .	 .	 .	 The	 court	 carefully	 listened	 to	 and	 considered	 all	 that	 [the	
      father]	says	he	is	doing	to	help	him	be	a	better	person.		[The	father]	
      believes	 he	 has	 “the	 Tools”	 to	 take	 care	 of	 his	 [child].	 	 The	 court	
      disagrees.		The	court	finds	that	[the	child]	is	in	immediate	need	of	
      a	home	which	will	provide	safety,	comfort,	happiness,	promise,	and	
      the	love	she	so	desperately	needs	and	deserves—NOW.		The	time	
      has	come	for	this	[child]	to	have	stability	in	her	young	life.	
      	
      [¶5]	 	 On	 appeal,	 the	 father	 challenges	 the	 sufficiency	 of	 the	 evidence	

supporting	 the	 court’s	 factual	 findings	 and	 discretionary	 determinations,	
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primarily	 arguing	 that	 the	 court	 impermissibly	 relied	 on	 the	 father’s	

incarceration	to	find	parental	unfitness	and	the	child’s	need	for	permanency	in	

determining	the	child’s	best	interest.			

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

ultimate	determination	to	terminate	parental	rights	for	an	abuse	of	discretion.		

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

        [¶7]		Contrary	to	the	father’s	contention,	the	court’s	material	findings	are	

supported	 by	 competent	 evidence	 in	 the	 record,2	 and	 the	 court	 did	 not	

impermissibly	 consider	 the	 father’s	 incarceration	 in	 reaching	 its	 parental	

unfitness	determination.		The	court	stated	that	it	may	not	and,	in	fact,	did	not	

terminate	the	father’s	rights	based	solely	on	his	incarceration.		The	court	stated	

that	incarceration	was	a	factor,	however,	and	that	it	“must	consider	whether	

the	length	of	a	parent’s	incarceration	will	prevent	the	parent	from	.	.	.	taking	


    2	 	 The	 court’s	 finding	 on	 one	 issue	 was	 not	 supported	 by	 the	 evidence.	 	 Several	 times	 in	 the	

judgment,	the	court	referred	to	domestic	violence	issues	affecting	the	father.		There	is	no	support	in	
the	record	for	a	finding	that	the	father	engaged	in	acts	of	domestic	violence.		Although	the	guardian	
ad	 litem’s	 reports	 include	 several	 repeated	 references	 to	 the	 Department’s	 involvement	 with	 the	
mother	 regarding	 domestic	 violence,	 the	 jeopardy	 order	 issued	 in	 February	 2017—an	 order	
judicially	noticed	by	the	court—contains	a	finding	that	the	accounts	were	“unsubstantiated.”			
     	
        A	factual	error	in	a	child	protection	order	is	harmless	“if	it	is	highly	probable	that	the	error	did	
not	prejudice	the	parents	or	contribute	to	the	result	in	the	case.”		In	re	Caleb	M.,	2017	ME	66,	¶	25,	
159	A.3d	345;	see	M.R.	Civ.	P.	61.		Here,	it	is	evident	that	the	court’s	unsupported	finding	regarding	
domestic	violence	was	not	important	to	the	court’s	analysis.		Rather,	as	we	discuss	in	the	text,	the	
focus	of	the	court’s	unfitness	and	best	interest	determinations	was	the	father’s	overall	lack	of	present	
and	 future	 capacity	 and	 preparedness	 to	 care	 for	 the	 child	 and	 the	 father’s	 failure	 to	 maintain	 a	
relationship	with	child	to	the	degree	that	he	could	have.			
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responsibility	 for	 the	 child	 within	 a	 time	 reasonably	 calculated	 to	 meet	 the	

child’s	 needs.”	 	 The	 court	 found	 that	 the	 father	 had	 been	 unable	 to	 meet	 the	

child’s	 most	 basic	 needs	 since	 becoming	 incarcerated	 and	 that	 the	 situation	

would	not	change	for	nearly	a	year	and	a	half,	until	June	2019,	when	the	father	

was	expected	to	be	released	from	incarceration.			

      [¶8]		Evidence	admitted	at	the	termination	hearing	supports	the	court’s	

finding	 of	 parental	 unfitness.	 	 At	 the	 termination	 hearing,	 the	 Department	

established	that	the	father	has	been	incarcerated	since	May	2016	for	violating	

his	probation	on	a	2010	conviction	for	robbery	committed	against	the	child’s	

mother.		The	father	failed	to	take	responsibility	for	his	actions,	describing	his	

probation	 violation	 as	 “an	 impossible	 situation”	 because	 his	 only	 “choices”	

were	either	reporting	to	his	probation	officer	and	failing	a	drug	test	or	failing	

to	report	to	the	probation	officer.		The	father	testified	that	before	deciding	not	

to	report	to	his	probation	officer,	he	considered	that	he	could	be	incarcerated	

for	a	significant	period	of	time	but	“went	ahead	with	it	anyway.”				

      [¶9]		The	 Department	 also	established—and	the	father	 admitted—that	

he	contacted	the	Department	only	once	during	the	twenty	months	that	the	child	

had	been	in	the	custody	of	the	Department.		The	court	found,	with	support	in	

the	record,	that	the	father	had	made	no	effort	to	arrange	visitation	through	the	
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Department.	 	 Although	 the	 father	 expressed	 to	 the	 guardian	 ad	 litem	 that	 he	

wished	for	the	child	to	have	a	relationship	with	his	family,	the	father	did	not	

make	any	arrangements	for	his	family	to	visit	with	or	care	for	the	child.		In	fact,	

the	 father’s	 testimony	 at	 trial	 was	 equivocal	 on	 this	 issue.	 	 The	 paternal	

grandfather	testified	that	he	was	willing	to	become	a	caretaker	for	the	child	for	

the	remainder	of	the	father’s	sentence,	but	the	father	testified	that,	although	the	

paternal	grandfather	would	be	“a	good	alternative,”	he	“[doesn’t]	mind	where	

[the	child]	is	now.”				

       [¶10]	 	 Although	 the	 father	 points	 to	 evidence	 that	 he	 presented	

suggesting	 that	 he	 had	 a	 close	 relationship	 with	 the	 child	 before	 his	

incarceration,	 the	 father	 has	 failed	 to	 maintain	 that	 parent-child	 relationship	

since	becoming	incarcerated.		See	In	re	Cody	T.,	2009	ME	95,	¶	28,	979	A.2d	81	

(“In	considering	the	parental	fitness	of	an	incarcerated	parent,	the	court’s	focus	

is	 not	 on	 the	 usual	 parental	 responsibility	 for	 physical	 care	 and	 support	 of	 a	

child,	but	upon	the	parent’s	responsibility	or	capacity	to	 provide	 a	nurturing	

parental	 relationship	 using	 the	 means	 available.”);	 see	 also	 In	 re	 Alijah	 K.,	

2016	ME	 137,	 ¶	 14,	 147	 A.3d	 1159	 (stating	 that	 a	 parent	 does	 not	 receive	 a	

“pass”	on	his	parental	responsibilities	as	a	result	of	being	incarcerated).		The	

court	did	not	err	in	finding	that	the	father	was	unfit.	
8	

       [¶11]		The	father	also	contends	that	the	court	placed	too	much	emphasis	

on	permanency	in	finding	parental	unfitness	and	in	determining	the	child’s	best	

interest.		Contrary	to	the	father’s	contention,	the	court’s	order	indicates	that	it	

carefully	 and	 appropriately	 considered	 the	 child’s	 needs	 for	 stability	 and	

permanency,	which	were	affected	by	the	father’s	long-term	incarceration	and	

the	 father’s	 failure	 to	 plan	 for	 the	 child’s	 care	 upon	 his	 release.	 	 The	 court	

properly	noted	the	Legislature’s	policy	in	favor	of	permanency	and	stated	that	

the	 time	 within	 which	 a	 parent	 must	 take	 responsibility	 for	 the	 child	 is	

measured	 from	 the	 child’s	 perspective.	 	 See	 22	 M.R.S.	 §§	 4050,	

4055(1)(B)(2)(b),	(2)	(2017).		Taking	into	consideration	the	father’s	efforts	to	

“make	himself	a	better	person,”	the	court	found,	based	on	competent	evidence	

in	the	record,	that	the	father	did	not	have	the	“tools”	to	take	responsibility	for	

the	child	and	that	the	father	“offered	no	timeline”	for	when	he	would	be	able	to	

do	 so.	 	 The	 weight	 and	 credibility	 of	 the	 father’s	 testimony	 that	 he	 has	

participated	 in	 substance	 abuse	 counseling	 and	 parenting	 classes	 while	

incarcerated	 was	 for	 the	 fact-finder’s	 determination.	 	 See	 In	 re	 Cameron	 B.,	

2017	ME	18,	¶	10,	154	A.3d	1199.	

       [¶12]		Again,	the	court’s	findings	are	supported	by	the	evidence	admitted	

at	trial.		At	the	time	of	the	hearing,	the	child	had	already	been	in	the	custody	of	
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the	 Department	 for	 twenty	 months,	 and	 the	 father	 was	 not	 expected	 to	 be	

released	from	incarceration	for	another	seventeen	months.		As	the	court	noted,	

“[e]ach	month	is	a	very	long	time	in	the	life	of	a	child	this	age.”		When	asked	if	

he	was	prepared	and	capable	of	taking	care	of	the	child	upon	his	release,	the	

father	 testified,	 “Capable,	 yes.	 	 Prepared,	 maybe,	 you	 know?”	 	 Regarding	 his	

plans	 for	 taking	 care	 of	 the	 child,	 the	 father	 testified	 that	 there	 should	 be	

“guidelines”	for	him	and	that	taking	care	of	the	child	was	not	something	to	“just	

jump[	]	right	into.”		When	asked	how	long	he	thought	it	would	take	before	he	

could	take	full	responsibility	for	the	child,	the	father	testified,	“Who	knows?”			

         [¶13]	 	 The	 court	 did	 not	 err	 or	 abuse	 its	 discretion	 by	 considering	 the	

child’s	needs	for	stability	and	permanency	in	finding	parental	unfitness	and	in	

determining	that	termination	of	the	father’s	parental	rights	was	in	the	child’s	

best	 interest.3	 	 See	 In	 re	 Thomas	 H.,	 2005	 ME	 123,	 ¶¶	 22-34,	 889	 A.2d	 297;	

see	also	 In	 re	 Asanah	 S.,	 2018	 ME	 12,	 ¶¶	 5-6,	 177	 A.3d	 1273;	 In	 re	 Alijah	 K.,	

2016	ME	137,	¶	14,	147	A.3d	1159.	


   3		The	father	also	argues	that	the	court	erred	by	failing	to	make	a	finding	that	the	child	would	be	

harmed	 if	 she	 were	 returned	 to	 her	 father’s	 care	 and	 that	 the	 court	 abused	 its	 discretion	 by	
terminating	the	father’s	parental	rights	when	the	permanency	plan	for	the	child	was	unsettled.		We	
disagree.		First,	the	court	was	not	required	to	make	a	finding	of	prospective	harm	before	terminating	
the	 father’s	 parental	 rights.	 	 See	 In	 re	 Asanah	 S.,	 2018	 ME	 12,	 ¶	 7,	 177	A.3d	1273;	 In	 re	 Jacob	 B.,	
2008	ME	 168,	 ¶	 17,	 959	 A.2d	 734.	 	 Second,	 the	 court	 was	 not	 required	 to	 know	 which	 of	 the	
prospective	 adoptive	 families	 would	 be	 the	 child’s	permanent	 placement	 before	 determining	 that	
termination	 of	 the	 father’s	 parental	 rights	 was	 in	 the	 child’s	 best	 interest.	 	 See	 In	 re	 Kenneth	 S.,	
2017	ME	45,	¶	6,	157	A.3d	244;	cf.	In	re	David	W.,	2010	ME	119,	¶¶	1,	4-5,	8-10,	8	A.3d	673.			
10	

         The	entry	is:	
         	
                     Judgment	affirmed.	
	
	     	      	      	     	     	
	
Elizabeth	S.	Gray,	 Esq.,	The	Law	Office	of	Elizabeth	S.	Gray,	 Esq.,	Augusta,	for	
appellant	father	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Gen.	Atty.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Augusta	District	Court	docket	number	PC-2016-76	
FOR	CLERK	REFERENCE	ONLY	
