MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	75	
Docket:	      Lin-17-286	
Submitted	 	
		On	Briefs:	 January	11,	2018		
Decided:	     June	12,	2018	
	             	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                           IN	RE	CHILDREN	OF	NICOLE	M.	
	
	
HJELM,	J.		

       [¶1]		The	parents	of	three	children	appeal	from	a	judgment	of	the	District	

Court	(Wiscasset,	Raimondi,	J.)	terminating	their	parental	rights	to	the	children.		

Although	the	parents	do	not	challenge	the	court’s	conclusion	that	they	are	unfit	

within	the	meaning	of	22	M.R.S.	§	4055(1)(B)(2)(b)	(2017),	they	contend	that	

the	 court	 erred	 by	 determining	 that	 termination	 is	 in	 the	 children’s	 best	

interests,	 see	 22	 M.R.S.	 §	 4055(1)(B)(2)(a)	 (2017),	 because	 the	 court	 also	

ordered	 a	 permanency	 plan	 that	 includes	 either	 adoption	 or	 a	 permanency	

guardianship.		Given	the	court’s	findings	regarding	the	circumstances	and	best	

interests	of	the	children,	the	court	did	not	err	by	terminating	the	parents’	rights	

to	 them	 while	 also	 approving	 a	 permanency	 guardianship	 as	 a	 possible	

permanency	plan.		We	therefore	affirm	the	judgment.					
2	

                                   I.		BACKGROUND	

       [¶2]		The	following	facts,	which	are	supported	by	the	evidence,	are	drawn	

from	 the	 court’s	 judgment	 and	 the	 procedural	 record.	 	 See	 In	 re	 Dominyk	 T.,	

2017	ME	222,	¶	5,	173	A.3d	1065.			

       [¶3]	 	 The	 Department	 of	 Health	 and	 Human	 Services	 became	 involved	

with	this	family	in	January	of	2016	when	one	of	the	children	was	rushed	to	the	

hospital	 after	 suffering	 seizures.	 	 Ultimately,	 that	 child	 and	 one	 of	 the	 other	

children	 were	 diagnosed	 with	 “failure	 to	 thrive”	 as	 a	 result	 of	 the	 parents’	

life-threatening	failure	to	feed	them	adequately.		Several	weeks	after	the	first	

child	was	hospitalized,	the	Department	filed	a	child	protection	petition	as	to	all	

three	children,	and	in	late	February,	the	three	children	were	placed	with	their	

paternal	 grandmother	 pursuant	 to	 a	 safety	 plan.	 	 In	 April	 of	 2016,	 with	 the	

agreement	 of	 the	 parents,	 the	 court	 entered	 a	 jeopardy	 order	 placing	 the	

children	in	the	Department’s	custody	and	ordering	that	the	children	continue	

to	live	with	the	grandmother.			

       [¶4]	 	 Both	 parents	 have	 learning	 disabilities,	 and	 the	 mother	 also	 has	

cognitive	 impairments	 and	 suffers	 from	 depression.	 	 Neither	 parent	 has	

meaningful	insight	into	the	reasons	why	the	children	are	in	foster	care,	nor	has	

either	parent	adequately	participated	in	court-ordered	diagnostic	and	therapy	
                                                                                       3	

services	 or	 in	 their	 children’s	 doctor	 appointments.	 	 The	 parents	 initially	

missed	so	many	visits	that	the	visits	were	suspended	for	a	time.		When	visits	

eventually	resumed,	the	quality	of	the	parents’	interactions	with	the	children	

was	concerning	until	the	last	few	weeks	before	the	termination	hearing,	when	

the	visits	went	better.		The	parents	love	their	children	and	want	to	reunite	with	

them,	 but	 their	 personal	 difficulties	 have	 contributed	 to	 their	 failure	 to	

“understand,	 let	 alone	 provide[,]	 the	 steps	 necessary	 to	 foster	 a	 home	

environment	 that	 eliminates	 the	 threat	 of	 jeopardy	 and	 support[s]	 the	

nurturing	and	well-being	of	their	children.”			

      [¶5]		Since	coming	to	live	with	the	grandmother,	the	condition	of	the	two	

children	 who	 had	 failed	 to	 thrive	 improved	 “spectacularly,”	 and	 all	 three	

children	 are	 doing	 very	 well	 in	 her	 care.	 	 The	 grandmother	 supports	 the	

parents’	continued	involvement	with	the	children	and	is	willing	to	either	serve	

as	the	children’s	permanency	guardian	or	adopt	them.			

      [¶6]		A	year	after	the	children	came	into	its	custody,	the	Department	filed	

a	petition	to	terminate	the	parents’	rights	to	the	children,	and	in	May	of	2017,	

the	court	held	a	three-day	consolidated	hearing	on	the	termination	petition	and	

on	 a	 permanency	 plan	 for	 the	 children.	 	 The	 next	 month,	 the	 court	 issued	 a	

judgment	terminating	both	parents’	parental	rights.		The	court	found	by	clear	
4	

and	convincing	evidence	that	both	parents	are	unfit	because	they	are	unable	or	

unwilling	 to	 protect	 the	 children	 from	 jeopardy	 and	 would	 not	 do	 otherwise	

within	 a	 time	 reasonably	 calculated	 to	 meet	 the	 children’s	 needs;	 they	 are	

unwilling	 or	 unable	 to	 take	 responsibility	 for	 the	 children	 within	 a	 time	

reasonably	 calculated	 to	 meet	 the	 children’s	 needs;	 and	 they	 did	 not	 make	 a	

good	 faith	 effort	 to	 rehabilitate	 and	 reunify	 with	 the	 children.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b).			

       [¶7]		The	court	also	concluded	that	termination	is	in	the	children’s	best	

interests	because	of	the	stability	and	care	provided	to	them	by	the	grandmother	

as	 well	 as	 her	 “tireless”	 advocacy	 for	 their	 interests.	 	 In	 making	 these	 best	

interest	determinations,	the	court	considered	the	children’s	greatly	improved	

condition	 while	 in	 the	 grandmother’s	 “excellent	 care”;	 the	 successful	

integration	of	the	children	into	the	grandmother’s	family,	which	includes	four	

other	children;	and	the	grandmother’s	effectiveness	in	assisting	the	parents	to	

“maintain	their	attachment	to	the	children”	and	her	continued	willingness	to	do	

so.		The	court	also	credited	the	strong	support	from	the	children’s	guardian	ad	

litem	for	continued	placement	with	the	grandmother.			

       [¶8]		In	its	judgment,	the	court	also	established	the	permanency	plan	for	

the	children.		See	22	M.R.S.	§	4038-B	(2017).		After	recognizing	the	policy	found	
                                                                                                     5	

in	statutes	and	case	law	that	favors	permanence	for	children,	the	court	stated	

that	 it	 had	 “no	 difficulty	 in	 finding	 that	 the	 plan	 of	 either	 permanency	

guardianship	or	adoption	is	clearly	in	the	best	interest	of	[the	children]	so	that	

they	may	have	permanency	with	their	paternal	grandmother	in	the	stable	and	

nurturing	environment	where	they	have	been	placed	during	the	pendency	of	

this	action.”		The	court	recognized	that	the	grandmother	had	applied	with	the	

Department	to	be	licensed	as	a	foster	parent	but	that	the	application	was	denied	

because	 of	 the	 Department’s	 concerns	 with	 the	 grandmother’s	 domestic	

partner.		The	court	stated	that	it	was	not	bound	by	that	administrative	decision,	

however,	 and	 found	 explicitly	 “that	 continued	 placement	 with	 [the	

grandmother]	is	in	the	best	interest	of	these	children.”			

        [¶9]	 	 Both	 parents	 appealed	 from	 the	 termination	 order.	 	 See	 M.R.	

App.	P.	2(b)(3);	2(b)(5)	(Tower	2016).1			

                                          II.		DISCUSSION	

        [¶10]	 	 On	 this	 appeal,	 the	 parents	 do	 not	 contest	 the	 court’s	

determination	 that	 they	 are	 unfit	 as	 the	 children’s	 parents.	 	 Rather,	 they	

challenge	only	the	court’s	determination	that	termination	is	in	the	children’s	



   1		This	appeal	was	filed	before	September	1,	2017;	therefore,	the	restyled	Maine	Rules	of	Appellate	

Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).			
6	

best	interests,	given	the	court’s	finding	that	their	best	interests	would	also	be	

served	 if	 they	 continued	 to	 live	 with	 the	 grandmother	 as	 a	 permanency	

guardian.			

      [¶11]		Because	the	predicate	of	the	parents’	challenge	to	the	termination	

order	 is	 the	 permanency	 plan	 that	 would	 provide	 for	 either	 a	 permanency	

guardianship	or	an	adoption,	the	scope	of	this	appeal	must	be	established	with	

clarity.	 	 Although	 an	 appeal	 can	 be	 taken	 from	 a	 termination	 order,	 a	

permanency	plan	order	is	treated	by	operation	of	statute	as	 an	interlocutory	

order	 and	 is	 therefore	 not	 itself	 appealable.	 	 22	 M.R.S.	 §	 4006	 (2017).		

Consequently,	 the	 parents’	 appeal	 cannot	 be	 used	 as	 a	 vehicle	 to	 directly	

challenge	the	permanency	plan	ordered	by	the	court.		Rather,	the	cognizable	

question	 presented	 here	 is	 whether	 one	 of	 the	 necessary	 predicates	 to	 a	

termination	order,	namely,	that	termination	is	in	the	best	interest	of	the	child,	

see	 22	 M.R.S.	 §	 4055(1)(B)(2)(a),	 is	 compatible	 with	 a	 determination	 that	 a	

permanency	guardianship	also	is	in	the	child’s	best	interests.			

      [¶12]		“We	review	the	court’s	factual	findings	related	to	the	child’s	best	

interest	for	clear	error,”	In	re	Thomas	H.,	2005	ME	123,	¶	16,	889	A.2d	297,	and	

its	 “ultimate	 conclusion	 [regarding	 the	 child’s	 best	 interest]	 for	 an	 abuse	 of	

discretion,	viewing	the	facts,	and	the	weight	to	be	given	them,	through	the	trial	
                                                                                                   7	

court’s	 lens,”	 In	 re	 Cameron	 B.,	 2017	 ME	 18,	 ¶	 11,	 154	 A.3d	 1199	 (quotation	

marks	 omitted).	 	 “Upon	 review	 for	 an	 abuse	 of	 discretion,	 we	 ask	 three	

questions:	 (1)	 whether	 factual	 findings,	 if	 any,	 are	 supported	 by	 the	 record	

pursuant	to	the	clear	error	standard;	(2)	whether	the	court	understood	the	law	

applicable	to	its	exercise	of	discretion;	and	(3)	given	the	facts	and	applying	the	

law,	whether	the	court	weighed	the	applicable	facts	and	made	choices	within	

the	bounds	of	reasonableness.”		Hutt	v.	Hanson,	2016	ME	128,	¶	15,	147	A.3d	

352	(quotation	marks	omitted)	(alteration	omitted).			

       [¶13]		Pursuant	to	Maine’s	Child	and	Family	Services	and	Child	Protection	

Act,	 a	 court	 is	 required	 to	 periodically	 order	 a	 permanency	 plan	 during	 the	

lifetime	of	a	child	protection	proceeding,	subject	to	certain	exceptions	that	are	

not	 presently	 applicable.2	 	 22	 M.R.S.	 §	 4038-B(1).	 	 When	 a	 court	 creates	 a	

permanency	plan	for	a	child,	the	court	“must	determine	whether	and	when,	if	

applicable,”	 one	 of	 five	 plans	 will	 be	 implemented.	 	 Id.	 §	 4038-B(4).	 	 The	

following	permanency	plans	are	authorized	by	statute:	

       • returning	the	child	to	a	parent;	

       • placing	the	child	for	adoption;	


   2		Pursuant	to	section	4038-B(1),	permanency	planning	hearings	are	not	required	when	judicial	

review	hearings	are	not	required,	which	includes,	for	example,	when	custody	of	the	child	is	not	with	
the	Department	or	with	a	parent.		See	22	M.R.S.	§	4038(1)	(2017).			
8	

      • placing	 the	 child	 in	 the	 care	 of	 a	 permanency	 guardian	 pursuant	 to	
        22	M.R.S.	§	4038-C	(2017)	or	a	guardian	appointed	by	a	probate	court;	
              	
      • placing	the	child	with	“a	fit	and	willing	relative”;	or		

       • in	 narrowly	 drawn	 circumstances,	 placing	 the	 child	 in	 “another	
         planned	permanent	living	arrangement.”	
       	
Id.	§	4038-B(4)(A)(1)-(5).					

	     [¶14]	 	 Here,	 the	 permanency	 plan	 for	 the	 children	 called	 for	 either	

adoption	 or	 appointment	 of	 a	 permanency	 guardian.	 	 The	 court	 explicitly	

framed	 that	 plan	 in	 terms	 of	 “permanency	 with	 .	 .	 .	 [the]	 grandmother	 in	 the	

stable	 and	 nurturing	 environment	 where	 [the	 children]	 have	 been	 placed	

during	 the	 pendency	 of	 this	 action.”	 	 (Emphasis	 added.)	 	 This	 specific	 and	

essential	aspect	of	the	court’s	best	interest	analysis	requires	us	to	consider	how	

it	interrelates	with	the	court’s	concurrent	determination	that	termination	is	in	

the	children’s	best	interests.	

      [¶15]	 	 As	 a	 general	 matter,	 a	 “central	 tenet”	 of	 the	 child	 protection	

statutes	 “is	 the	 importance	 of	 permanency	 for	 children	 subject	 to	 child	

protection	 proceedings.”	 	 In	 re	 David	 W.,	 2010	 ME	 119,	 ¶	 6,	 8	 A.3d	 673	

(quotation	marks	omitted).		Permanency	planning	is	integrally	connected	to	the	

best	interest	determination	that	a	court	is	called	upon	to	make	in	a	termination	

proceeding.	 	 As	 we	 have	 held,	 “[p]ermanency	 planning	 and	 the	 best	 interest	
                                                                                          9	

determination	made	in	a	termination	proceeding	cannot	be	divorced	from	one	

another	 because	 a	 best	 interest	 decision	 necessarily	 requires	 the	 court	 to	

consider	the	long-term	living	arrangement	that	will	best	serve	a	child’s	needs.		

The	 court’s	 permanency	 plan	 for	 the	 child	 is	 an	 inextricable	 part	 of	 that	

decision.”		In	re	Thomas	H.,	2005	ME	123,	¶	28,	889	A.2d	297.		As	was	true	here,	

a	 termination	 hearing	 is	 often	 consolidated	 with	 a	 permanency	 planning	

hearing	because	the	resulting	record	is	the	“single	body	of	evidence”	on	which	

the	 court	 rests	 its	 best	 interest	 analysis	 that	 bears	 on	 both	 the	 issue	 of	

termination	and	the	formulation	of	a	permanency	plan.		See	id.	¶	29.	

       [¶16]		Here,	the	first	of	the	two	alternative	permanency	plans	set	out	by	

the	court	is	adoption.		An	adoption	will	provide	“certainty	and	stability”	to	the	

adopted	 child,	 see	 In	 re	 Cameron	 B.,	 2017	 ME	 18,	 ¶	 13,	 154	 A.3d	 1199;	 In	 re	

David	W.,	2010	ME	119,	¶	10,	8	A.3d	673,	and	often	results	in	permanence	for	

the	child,	see	In	re	Marcus	S.,	2007	ME	24,	¶	10,	916	A.2d	225.			

       [¶17]		The	question	of	who	is	the	best	person	to	adopt	the	child,	however,	

is	beyond	the	scope	of	a	termination	proceeding	because	that	question	must	be	

addressed	in	a	separate	adoption	action	governed	by	18-A	M.R.S.	§§	9-301	to	

9-315	(2017).		See	4	M.R.S.	§	152(5-A)	(2017);	Adoption	of	Isabelle	T.,	2017	ME	

220,	¶	9	n.2,	175	A.3d	639;	In	re	Tacoma	M.,	2017	ME	85,	¶	9	n.2,	160	A.3d	537.		
10	

Therefore,	 in	 a	 consolidated	 proceeding	 where	 the	 court	 addresses	 a	

termination	petition	and	establishes	a	permanency	plan,	while	the	court	may	

determine	that	as	a	general	matter	adoption	is	in	the	child’s	best	interest	and	

will	be	the	permanency	plan,	the	court	would	overreach	if	it	were	to	designate	

the	adoptive	party.		See	In	re	Kenneth	S.,	2017	ME	45,	¶	6,	157	A.3d	244.		In	this	

way,	the	permanency	plan	of	adoption	leaves	open	the	important	question	of	

who	the	adoptive	parent	might	be.3				

       [¶18]		The	other	type	of	permanency	 plan	 endorsed	 here	by	the	court,	

namely,	 a	 permanency	 guardianship,	 provides	 a	 child	 with	 “safe,	 long-term	

care”	in	the	custody	of	the	permanency	guardian.		See	In	re	Cameron	B.,	2017	ME	

18,	¶	12,	154	A.3d	1199.		Unlike	with	a	permanency	plan	of	adoption,	where	the	

court	may	not	properly	address	the	question	of	who	is	an	appropriate	adoptive	

party,	establishing	a	permanency	guardianship	requires	the	court	to	identify	a	




   3		We	note	that,	pursuant	to	the	Home	Court	Act,	the	District	Court	will	have	exclusive	jurisdiction	

over	an	adoption	petition	if	there	is	a	pending	District	Court	child	protection	proceeding	involving	
the	same	child,	see	4	M.R.S.	§	152(5-A)	(2017),	even	though	adoption	petitions	ordinarily	must	be	
filed	in	a	probate	court,	see	18-A	M.R.S.	§	9-103(a)(1)	(2017).		In	this	way,	the	same	court	that	is	
familiar	with	the	child’s	circumstances	germane	to	the	child	protection	action	will	have	the	authority	
to	adjudicate	the	adoption	petition.	

   	
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person	 who	 will	 serve	 as	 the	 permanency	 guardian	 based	 on	 the	 particular	

attributes	of	the	prospective	guardian.4		See	22	M.R.S.	§	4038-C.					

        [¶19]	 	 Another	 difference	 between	 an	 adoption	 and	 a	 permanency	

guardianship	 is	 that	 the	 latter,	 “[w]hen	 it	 is	 appropriate,	 .	 .	 .	 allows	 parents	

whose	children	cannot	be	returned	to	them	to	have	a	meaningful	opportunity	

to	 maintain	 a	 legal	 relationship	 with	 their	 children	 and	 to	 have	 the	 court	

determine	their	rights	to	have	contact	with	their	children.”		In	re	Cameron	B.,	

2017	ME	18,	¶	12,	154	A.3d	1199.		This	opportunity	is	recognized	in	the	law,	

however,	only	where	 a	 parent’s	rights	to	the	child	have	not	been	terminated	

because	a	parent	whose	rights	have	been	terminated	has	no	legal	relationship	

with	the	child	except	that	the	child’s	right	to	inherit	from	the	parent	remains	

intact.		22	MRS	§	4056(1)	(2017).			



   4	 	 In	 making	 that	 determination,	 the	 court	 must	 consider	 factors	 that	 are	 highly	 specific	 to	 a	

prospective	permanency	guardian	by	determining	whether	that	person	

        A. [h]as	the	ability	to	provide	a	safe	home	for	the	child;		

        B. [h]as	a	close	emotional	bond	with	the	child	and	whether	the	child	has	a	close	emotional	
           bond	with	the	prospective	permanency	guardian;	

        C. [i]s	willing	and	able	to	make	an	informed,	long-term	commitment	to	the	child;	
        D. [h]as	the	skills	to	care	for	the	child;	and	
        E. [h]as	 submitted	 to	 having	 fingerprints	 taken	 for	 the	 purposes	 of	 a	 national	
           criminal	history	record	check.	
	
22	M.R.S.	§	4038-C(1)	(2017);	see	also	In	re	C.P., 2016	ME	18,	¶	34,	132	A.3d	174	(affirming	a	judgment	
denying	 the	 parents’	 request	 for	 a	 permanency	 guardianship	 where	 the	 court	 found	 that	 the	
proffered	guardian	did	not	satisfy	the	statutory	criteria).
12	

        [¶20]	 	 This	 does	 not	 mean	 that	 the	 court	 may	 order	 a	 permanency	

guardianship	 only	 when	 parental	 rights	 have	 not	 been	 terminated.	 	 The	

statutory	 authorization	 for	 a	 permanency	 guardianship	 contains	 no	 such	

limitation,	 and	 none	 is	 implied.	 	 See	 22	 M.R.S.	 §	 4038-C.	 	 Although	 there	 are	

certain	circumstances	where	the	court	is	no	longer	required	to	hold	periodic	

permanency	 planning	 hearings,	 the	 issuance	 of	 a	 termination	 order	 by	 itself	

does	not	have	that	effect.		See	id.	§	4038-B(2),	(3).		This	means	that	permanency	

planning	will	be	an	ongoing	post-termination	requirement	unless	the	court	is	

specifically	relieved	of	that	responsibility	pursuant	to	statute,	and	that,	with	the	

exception	of	reunifying	the	child	with	the	parent,5	all	of	the	permanency	plans	

identified	 in	 section	 4038-B(4)(A),	 including	 creation	 of	 a	 permanency	

guardianship,	remain	available	to	the	court.		This	is	as	it	should	be,	so	that	the	

court	 will	 be	 authorized	 to	 consider	 as	 many	 options	 as	 possible	 when	




   5		 Pursuant	 to	 section	 4038-B(4)(A)(1),	 a	 court	 may	 return	 a	 child	 to	 a	 parent	 as	 part	 of	 a	
permanency	plan	only	when	the	parent	has	fulfilled	the	responsibilities	required	by	a	reunification	
plan	created	pursuant	to	section	4041(1-A)(B).		For	at	least	two	reasons,	it	is	self-evident	that	this	
will	not	be	possible	for	a	person	whose	parental	rights	have	been	terminated.		First,	reunification	
may	be	pursued	only	by	a	“parent,”	22	M.R.S.	§	4041(1-A)(B)	(2017),	and	a	person	whose	rights	to	a	
child	have	been	terminated	is	no	longer	a	“parent”	for	purposes	of	the	child	protection	laws,	see	id.	
§	4002(7)	(2017).		Second,	post-termination	reunification	would	be	contrary	to	the	very	nature	of	a	
termination	 order,	 which	 requires	 determinations	 that	 the	 person	 is	 unfit	 as	 a	 parent	 and	 that	
termination	is	in	the	child’s	best	interest.		See	id.	§	4055(1)(B)(2)	(2017).		In	contrast,	none	of	these	
considerations	 impedes	 a	 court’s	 consideration	 of	 the	 other	 four	 permanency	 plan	 options	 in	 a	
post-termination	setting.			
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determining	 what	 arrangement	 best	 meets	 the	 needs	 and	 promotes	 the	 best	

interest	of	the	child.		

      [¶21]		To	the	extent	that	the	plain	language	of	section	4038-B(4)(A)	does	

not	 make	 clear	 that	 the	 court	 may	 order	 a	 post-termination	 permanency	

guardianship,	the	legislative	history	resolves	the	issue.		See	Manirakiza	v.	Dep’t	

of	Health	and	Human	Servs.,	2018	ME	10,	¶	8,	177	A.3d	1264	(“Only	if	the	plain	

language	 of	 the	 statute	 is	 ambiguous	 will	 we	 look	 beyond	 that	 language	 to	

examine	 other	 indicia	 of	 legislative	 intent,	 such	 as	 legislative	 history.”	

(quotation	marks	omitted)).		When	the	Legislature	was	considering	the	bill	that	

was	 ultimately	 enacted	 as	 the	 permanency	 guardianship	 statute,	 the	

Department’s	Director	of	Policy	and	Practice	for	the	Bureau	of	Child	and	Family	

Services	 testified	 to	 explain	 the	 central	 purposes	 underlying	 the	 proposed	

legislation.		See	An	Act	to	Establish	Permanent	Subsidized	Guardianship:	Hearing	

on	L.D.	1382	Before	the	Comm.	on	Health	and	Human	Servs.,	122nd	Legis.	(2005)	

(testimony	 of	 Dan	 Despard,	 Director	 of	Policy	 and	 Practice	 for	 the	 Bureau	 of	

Child	 and	 Family	 Services	 within	 the	 Department	 of	 Health	 and	 Human	

Services).	 	 Several	 of	 those	 stated	 purposes	 make	 clear	 that	 a	 permanency	

guardianship	 plan	 could	 be	 created	 even	 after	 a	 termination	 order.	 	 Id.	 	 For	

example,	 the	 Director	 stated	 that	 a	 permanency	 guardianship	 would	 be	 an	
14	

“effective	 alternative	 that	 will	 honor	 the	 needs	 of	 older	 children	 currently	 in	

foster	 care	 who	 express	 a	 desire	 not	 to	 be	 adopted	 .	 .	 .	 .”	 	 Id.	 	 By	 casting	 a	

permanency	guardianship	as	an	alternative	to	adoption,	it	is	evident	that	the	

permanency	guardianship	was	intended	to	be	available	to	the	court	even	after	

a	termination	order	had	been	issued.			

        [¶22]	 	 Additionally,	 as	 the	 Director	 testified,	 adding	 a	 permanency	

guardianship	 to	 the	 roster	 of	 permanency	 plans	 would	 avoid	 the	 situation	

where	 a	 guardianship	 would	 have	 to	 be	 imposed	 in	 a	 proceeding	 that	 is	

separate	 from	 the	 child	 protection	 action—i.e.,	 in	 a	 Title	 18-A	 guardianship	

proceeding	in	a	probate	court—where	a	different	judge	who	may	well	be	less	

familiar	with	the	child’s	circumstances	would	be	called	upon	to	adjudicate	the	

question	of	whether	a	guardianship	should	be	imposed	and	who	the	guardian	

should	be.		Id.		With	the	availability	of	a	permanency	guardianship	plan	within	

the	child	protection	case	itself,	a	District	Court	judge—who	should	be	the	same	

judge	 who	 is	 already	 presiding	 over	 the	 child	 protection	 proceeding—would	

make	that	determination.6		The	rationale	for	creating	this	pathway	for	the	judge	


   6		With	the	2016	enactment	of	the	Home	Court	Act,	see	4	M.R.S.	§	152(5-A);	P.L.	2015,	ch.	460,	§	1	

(effective	July	29,	2016),	a	Title	18-A	guardianship	action	that	would	have	been	filed	in	a	probate	
court	 now	 will	 be	 both	 commenced	 and	 adjudicated	 in	 the	 District	 Court	 if	 a	 child	 protection	
proceeding	involving	the	same	child	is	already	pending	there.		This	was	not	the	case	in	2005	when	
section	 4038-B(4)(A)(3)	 was	 enacted,	see	 P.L.	 2005,	 ch.	 372,	 §	6	 (effective	 Sept.	 17,	 2005),	which	
explains	why	the	Legislature	created	such	a	process	for	child	protection	cases.	
                                                                                                    15	

in	 the	 child	 protection	 case	 to	 also	 adjudicate	 the	 guardianship	 issue	 is	 not	

diminished	 after	 a	 termination	 order	 has	 been	 issued;	 even	 if	 the	 child	

protection	 case	 is	 in	 a	 post-termination	 posture,	 the	 benefit	 of	 allowing	 the	

same	judge	to	preside	over	the	child	protection	case	and	the	guardianship	issue	

is	no	less	important	than	it	would	be	before	any	termination	order	is	issued.	

       [¶23]	 	 We	 also	 note	 that,	 unlike	 in	 a	 Title	 18-A	 guardianship,	 a	

permanency	guardian	appointed	in	a	child	protection	case	pursuant	to	section	

4038-B(4)(A)(3)	is	eligible	for	a	guardianship	subsidy	in	some	circumstances.		

See	22	MRS	§	4038-D	(2017).		A	parent’s	obligation	to	pay	child	support	often	

ends	 when	 that	 parent’s	 parental	 rights	 are	 terminated.	 	 See	 id.	 §	 4056(1);	

Guardianship	of	Anthony	J.,	2009	ME	97,	¶	6,	980	A.2d	1250	(explaining	that	the	

“only	exception”	to	the	rule	that	a	terminated	parent	“has	no	duty	to	provide	

ongoing	 support	 for	 the	 child”	 is	 that	 a	 court	 may,	 pursuant	 to	 22	 M.R.S.	

§	4056(5)	 (2017),	 “order	 a	 parent	 who	 was	 convicted	 of	 a	 crime	 against	 the	

child	 prior	 to	 the	 termination	 of	 parental	 rights	 to	 pay	 a	 lump	 sum	 as	 child	

support”).		The	provision	for	a	guardianship	subsidy	is	therefore	an	important	




   Pursuant	to	the	Home	Court	Act,	an	adoption	petition	relating	to	a	child	who	is	the	subject	of	a	
child	protection	petition	also	must	be	filed	in	the	District	Court	rather	than	in	a	probate	court.		See	
4	M.R.S.	§	152(5-A).		Clearly,	the	best	practice	is	for	the	petition	to	be	heard	and	adjudicated	by	the	
same	District	Court	judge	who	has	been	presiding	over	the	child	protection	case.				
16	

possible	 feature	 of	 a	 permanency	 guardianship	 that	 can	 be	 even	 more	

important	 after	 termination	 than	 before	 termination,	 when	 the	 parents	 are	

required	to	pay	for	the	children’s	material	needs.		See	id.	§	4036(1)(G)	(2017).	

      [¶24]		For	these	reasons,	we	conclude	that	a	permanency	guardianship	is	

not	necessarily	incompatible	with	a	court’s	determination	that	a	termination	of	

parental	rights	is	in	the	child’s	best	interest.		To	be	sure,	because	a	permanency	

guardianship	 may	 result	 in	 less	 permanency	 than	 adoption	 and	 therefore,	 to	

that	extent,	may	be	less	effective	in	achieving	the	“central	tenet”	of	permanency	

for	children,	see	In	re	David	W.,	2010	ME	119,	¶	6,	8	A.3d	673	(quotation	marks	

omitted),	there	will	be	only	limited	countervailing	circumstances	where	a	court	

will	 terminate	 the	 parental	 rights	 of	 both	 parents	 and	 also	 approve	 a	

permanency	 guardianship.	 	 The	 legislative	 history	 described	 above	proposes	

one	situation	where	those	determinations	could	overlap—where	an	older	child	

does	 not	 want	 to	 be	 adopted	 but	 whose	 best	 interest	 will	 be	 served	 by	 the	

measure	of	stability	and	security	that	a	permanency	guardianship	can	provide.		

See	supra	¶	21.	

      [¶25]		Given	the	court’s	factual	findings,	this	case	provides	another	such	

example.	 	 By	 all	 accounts,	 the	 grandmother	 has	 provided	 the	 three	 children	

with	 exemplary	 care,	 support,	 and	 advocacy,	 and	 the	 court	 found,	 with	
                                                                                                                 17	

considerable	 support	 in	 the	 record,	 that	 the	 children	 unquestionably	 should	

continue	to	live	with	her.		That	result	would	be	subject	to	some	uncertainty	if	

the	 court	 established	 a	 permanency	 plan	 limited	 to	 adoption,	 because,	 as	

discussed	above,	see	supra	¶	17,	the	court	would	act	beyond	its	authority	in	the	

child	 protection	 proceeding	 if	 it	 were	 to	 designate	 the	 grandmother	 as	 the	

adoptive	parent.		That	level	of	uncertainty	is	enhanced	to	some	degree	because	

the	Department	had	denied	the	grandmother’s	application	to	be	licensed	as	a	

foster	 parent.7	 	 The	 court	 therefore	 designated	 alternative	 post-termination	

permanency	 plans	 that	 would	 ensure	 that,	 in	 the	 end,	 the	 children	 remained	

with	the	grandmother.8		In	that	way,	the	court	legitimately	viewed	that	outcome	

as	being	at	least	as	important	as	the	process	used	to	achieve	that	result	and	the	

nature	of	the	grandmother’s	ultimate	legal	relationship	with	the	children.	

        [¶26]	 	 The	 parents	 argue	 that	 the	 availability	 of	 a	 permanency	

guardianship	 with	 the	 grandmother	 establishes	 that	 termination	 was	 not	



   7	 	 The	 grandmother	 filed	 an	 appeal	 within	 the	 Department	 from	 that	 denial,	 and	 the	 matter	

remained	 pending	 when	 the	 termination	 hearing	 concluded.	 	 As	 was	 discussed	 during	 the	
termination	 hearing,	 the	 denial	 created	 the	 prospect	 that	 the	 Department	 would	 object	 to	 an	
adoption	 petition	 filed	 by	 the	 grandmother.	 	 As	 the	 Department	 itself	 pointed	 out	 to	 the	 court,	
however,	the	court	is	authorized	to	overrule	such	an	objection	and	grant	the	petition.		See	18-A	M.R.S.	
§	9-302(a)(3)	(2017).			
   8	 	 In	 addition	 to	 testifying	 at	 the	 termination	 hearing	 that	 she	 would	 be	 willing	 to	 serve	 as	 a	

permanency	guardian,	the	grandmother	and	her	partner	filed	a	petition	for	private	guardianship	for	
the	children	in	the	District	Court	on	the	second	day	of	the	termination	hearing.			
18	

necessary	to	promote	the	children’s	best	interests	because	the	children	could	

continue	in	the	grandmother’s	care	without	terminating	the	parents’	parental	

rights.	 	 This	 contention,	 however,	 does	 not	 account	 for	 the	 prospects	 of	

impermanence	 in	 a	 permanency	 guardianship—despite	 the	 contrary	

implication	of	that	statutory	term—particularly	when	a	parent’s	parental	rights	

have	 not	 been	 terminated,	 because	 the	 parent	 is	 statutorily	 authorized	 to	

petition	the	court	not	only	to	determine	rights	of	contact	but	even	to	terminate	

the	 permanency	 guardianship	 itself.9	 	 See	 22	 M.R.S.	 §§	4038-C(3),	 (6);	 In	 re	

Haylie	W.,	2017	ME	157,	¶	4,	167	A.3d	576.			

	        [¶27]		For	the	reasons	we	explained	at	the	outset	of	our	discussion,	this	

appeal	 is	 not	 from	 the	 permanency	 plan	 of	 adoption	 or	 a	 permanency	

guardianship.		See	supra	¶	11.		Rather,	given	the	restricted	scope	of	this	appeal,	

the	parents’	argument	is	limited	to	an	assertion	that	the	court’s	approval	of	a	

permanency	 guardianship	 as	 a	 way	 to	 protect	 the	 children’s	 best	 interests	



    9		In	cases	where	the	evidence	raised	the	prospect	of	disruptive	disputes	between	a	parent	and	a	

guardian,	we	affirmed	decisions	of	the	trial	court	that	a	permanency	plan	of	adoption—and	not	a	
permanency	guardianship—is	in	the	child’s	best	interest.		See	In	re	Cameron	B.,	2017	ME	18,	154	A.3d	
1199;	In	re	C.P.,	2016	ME	18,	132	A.3d	174;	In	re	David	W.,	2010	ME	119,	8	A.3d	673.		Although	the	
court	 here	 did	 not	 find	 that	 type	 of	 difficulty	 in	 the	 relationship	 between	 the	 parents	 and	 the	
grandmother,	a	best	interest	determination	sufficient	to	support	termination	does	not	require	the	
existence	 of	 such	 a	 problem.	 	 See	 22	 M.R.S.	 §	 4055(2)	 (2017)	 (“In	 deciding	 to	 terminate	 parental	
rights,	 the	 court	 shall	 consider	 the	 best	 interest	 of	 the	 child,	 the	 needs	 of	 the	 child,	 including	 the	
child’s	age,	the	child’s	attachments	to	relevant	persons,	periods	of	attachments	and	separation,	the	
child’s	ability	to	integrate	into	a	substitute	placement	or	back	into	the	parent’s	home	and	the	child’s	
physical	and	emotional	needs.”).		
                                                                                                              19	

necessarily	undermines	the	conclusion	that	termination	is	in	the	children’s	best	

interests.	 	 The	 court	 explained,	 however,	 that	 either	 a	 permanency	

guardianship	 or	 an	 adoption	 would	 allow	 the	 children	 to	 “have	 permanency	

with	 their	 paternal	 grandmother	 in	 the	 stable	 and	 nurturing	 environment	

where	they	have	been	placed	during	the	pendency	of	this	action.”		The	court’s	

goals	therefore	were	to	ensure	that	the	children	would	have	the	permanence	

that	 comes	 with	 a	 termination	 of	 parental	 bonds	 and	 also	 that	 the	 children	

would	be	placed	with	the	grandmother.		This	is	a	sufficient	basis	for	the	court’s	

decision	 to	 terminate	 parental	 rights	 while	 leaving	 available	 the	 option	 of	

placing	 the	 children	 in	 a	 permanency	 guardianship,	 because	 the	 termination	

order	and	either	permanency	plan	will	allow	the	children	to	move	forward.			

        [¶28]	 	 We	 therefore	 conclude	 that,	 in	 the	 circumstances	 of	 this	 case,	

termination	 of	 parental	 rights	 is	 not	 inconsistent	 with	 a	 permanency	

guardianship.10	



    10		Although,	given	the	circumstances	of	this	case,	the	designation	of	two	possible	permanency	

plans	does	not	call	the	termination	determination	into	question,	the	fact	remains	that	the	court	has	
not	yet	ordered	a	particular	permanency	plan	for	the	children.		This	creates	more	uncertainty	for	the	
children	than	is	intended	by	the	permanency	planning	statute.		See	22	M.R.S.	§	4038-B(4)(A)	(2017)	
(referring	to	“[t]he	permanency	plan”	(emphasis	added));	see	also	In	re	David	W.,	2010	ME	119,	¶	6,	
8	 A.3d	 673	 (emphasizing	the	 importance	 of	 permanency	 for	 children).	 	 Any	 error	 by	 the	 court	 in	
failing	to	specify	a	single	permanency	plan	does	not	affect	the	termination	order	and	is	not	appealable	
in	 any	 event,	 see	 22	 M.R.S.	 §	 4006	 (2017),	 and	 therefore	 does	 not	 constitute	 a	 basis	 for	 relief.		
Nonetheless,	as	the	case	proceeds	in	the	trial	court,	the	court	will	now	have	the	opportunity	to	specify	
the	permanency	plan	that	will	actually	be	implemented.				
20	

         The	entry	is:	

                            Judgment	affirmed.				
	
	    	     	   	       	    	
	
Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Berwick,	for	appellant	mother	

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

Janet	T.	Mills,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	
of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Wiscasset	District	Court	docket	number	PC-2016-01	
FOR	CLERK	REFERENCE	ONLY	
