MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	153	
Docket:	      Yor-18-132	
Submitted	
  On	Briefs:	 September	26,	2018	     	     	     	    	      	
Decided:	     November	20,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                      IN	RE	CHILD	OF	TANYA	C.		
	
	
PER	CURIAM	

         [¶1]	 	 Tanya	 C.	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	 Court	

(Springvale,	 Moskowitz,	 J.)	 terminating	 her	 parental	 rights	 to	 her	 youngest	

child1	 pursuant	 to	 22	 M.R.S.	 §	 4055(1)(A)(1)(a)	 and	 (1)(B)(2)(a),	 (b)(i)-(iv)	

(2017).		The	mother	contends	that	she	was	denied	due	process	when	the	court	

conducted	 an	 evidentiary	 hearing	 on	 the	 petition	 to	 terminate	 her	 parental	

rights	 in	 her	 absence,	 and	 that	 the	 court	 erred	 when	 it	 found	 her	 unfit	 and	

abused	its	discretion	when	it	determined	that	terminating	her	parental	rights	

is	in	the	best	interest	of	the	child.2		See	id.		We	affirm	the	judgment.			




    1		The	mother	also	has	two	older	children	who	were	the	subject	of	a	prior	child	protection	petition,	

but	are	not	the	subject	of	this	appeal.	
    2	 	 The	 father	 consented	 to	 the	 termination	 of	 his	 parental	 rights	 on	 July	 12,	 2018,	 and	 he	 is	

therefore	not	a	party	to	his	appeal.		See	22	M.R.S.	§	4055(1)(B)(1)	(2017).		
2	

                                  I.		BACKGROUND	

      [¶2]	 	 The	 following	 facts	 are	 supported	 by	 competent	 evidence	 drawn	

from	 the	 court’s	 judgment	 and	 the	 procedural	 record.	 	 See	 In	 re	 Children	 of	

Nicole	M.,	2018	ME	75,	¶	2,	187	A.3d	1.			

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

since	the	early	days	of	the	child’s	life.		The	mother	has	struggled	with	substance	

abuse	and	mental	health	issues,	unsteady	housing,	and	domestic	violence.		In	

June	2016,	the	court	(Foster,	J.)	issued	a	jeopardy	order	as	to	her	youngest	child.			

      [¶4]	 	 On	 October	 7,	 2016,	 the	 Department	 filed	 its	 first	 petition	 to	

terminate	 the	 mother’s	 parental	 rights.	 	 On	 August	 3,	 2017,	 the	 court	

(Cantara,	J.)	denied	the	Department’s	petition,	noting	that	the	mother	was	“on	

the	 cusp	 of	 achieving	 all	 of	 the	 benchmarks	 of	 prolonged	 sobriety,	 stability,	

appropriate	housing,	employment	and	a	sustained	capacity	to	parent”	her	child.			

      [¶5]	 	 On	 November	 27,	 2017,	 however,	 the	 Department	 filed	 a	 second	

petition	 for	 termination	 of	 parental	 rights,	 citing	 the	 mother’s	 positive	 drug	

screen	in	September	2017,	failure	to	engage	in	mental	health	counseling,	and	

lack	of	stable	housing.		The	Department	served	the	mother	with	a	copy	of	the	

petition,	which	included	a	notice	that	a	hearing	on	the	petition	would	be	held	

on	December	27,	2017,	and	that		
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     [f]ailure	to	appear	at	[a]	court	hearing	or	court	conferences	regarding	
     this	matter	may	be	determined	to	indicate	an	intent	to	abandon	the	
     child(ren)	 pursuant	 to	 22	 M.R.S.A.	 §4002(1-A).	 	 A	 finding	 of	
     abandonment	 may	 be	 the	 basis	 for	 removal	 of	 a	 child	 from	 your	
     custody	 and	 may	 ultimately	 lead	 to	 termination	 of	 your	 parental	
     rights.			
     	
On	November	27,	2017,	the	court	also	sent	a	separate	notice	to	the	parties	that	

a	case	management	hearing	would	be	held	on	December	27,	2017.		

      [¶6]		On	December	27,	2017,	the	Department’s	attorney,	a	caseworker,	

the	guardian	ad	litem,	the	mother’s	attorney,	and	the	presiding	judge	appeared	

in	the	courtroom,	but	the	mother	did	not	personally	appear.		The	court	recessed	

to	allow	the	mother’s	attorney	to	attempt	to	reach	her,	but	those	efforts	were	

unsuccessful.			

      [¶7]	 	 At	 the	 Department’s	 request—and	 over	 the	 objection	 of	 the	

mother’s	attorney—the	court	(Moskowitz,	J.)	held	a	hearing	on	the	termination	

petition.	 	 The	 Department	 presented	 the	 testimony	 of	 its	 caseworker	 to	

demonstrate	that	the	mother	is	unfit	and	that	termination	of	her	parental	rights	

would	 be	 in	 the	 best	 interest	 of	 this	 child.	 	 The	 mother’s	 attorney	

cross-examined	the	Department	caseworker	and	presented	a	closing	argument.	

      [¶8]		By	judgment	entered	the	same	day	as	the	evidentiary	hearing,	the	

court	found	the	following	facts	by	clear	and	convincing	evidence.			
4	

     [In	 the	 order	 denying	 the	 first	 termination	 petition,	 t]he	 court	
     noted	that	[the	mother]	was	struggling	with	substance	abuse,	with	
     securing	a	stable	place	to	live,	with	mental	health	issues	and	with	
     staying	away	from	abusive	partners	.	.	.	who	presented	a	danger	to	
     both	[the	mother	and	the	child].	.	.	.			
     	
            .	 .	 .	 A	 hearing	 was	 scheduled	 to	 take	 place	 on	 today’s	 date,	
     December	27,	2017.	.	.	.		[The	mother]	failed	to	appear.			
     	
            .	 .	 .	 Based	 on	 testimony	 of	 [the	 Department	 caseworker],	
     which	 the	 court	 finds	 to	 be	 credible,	 the	 court	 finds	 that	 [the	
     mother]	 has	 provided	 very	 limited	 information	 regarding	 her	
     circumstances	.	.	.	.		The	only	communication	[the	mother]	has	with	
     [the	caseworker]	occurs	when	[the	mother]	requires	payment	for	
     her	 suboxone	 treatments	 or	 when	 [the	 mother]	 is	 interested	 in	
     obtaining	 information	 as	 to	 the	 status	 of	 an	 ongoing	 matter	 the	
     Department	 has	 with	 [the	 mother’s]	 significant	 other	 .	 .	 .	 .	 	 [The	
     mother]	 has	 engaged	 in	 substance	 abuse	 counseling,	 but	 she	 has	
     failed	to	fully	comply	with	treatment	requirements.	.	.	.			
            	
            .	.	.	Additionally,	and	also	very	troubling,	is	the	fact	that	[the	
     mother]	has	not	engaged	in	mental	health	counseling,	she	has	no	
     safe	 and	 stable	 housing	 and	 she	 is	 currently	 associated	 with	 [a	
     significant	other],	who	himself	struggles	with	substance	abuse	and	
     mental	health	issues.	.	.	.	
            	
            [The	 child]	 is	 nearly	 three-and-a-half-years	 old	 [and]	 has	
     spent	 most	 of	 [its]	 young	 life	 in	 the	 care	 of	 the	 Department	 and	
     apart	 from	 [the	 mother].	 	 [The	 child]	 has	 been	 residing	 with	 .	 .	 .	
     foster	 parents	 for	 a	 year,	 [and].	 .	 .	 is	 happy	 and	 safe	 .	 .	 .	 and	 is	
     connected	 to	 them;	 [the	 child]	 refers	 to	 [the	 foster	 parents]	 as	
     “mommy”	 and	 “daddy.”	 	 [The	 child]	 deserves	 and	 needs	
     permanency.			
            	
            .	.	.	.		
            	
            Termination	of	[the	 mother’s]	parental	 rights	is	in	the	best	
     interest	of	[the	child];	[the	mother]	is	unwilling	or	unable	to	protect	
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        [the	child]	from	jeopardy	and	these	circumstances	are	unlikely	to	
        change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 [the	 child’s]	
        needs;	[the	mother]	is	unwilling	or	unable	to	take	responsibility	for	
        [the	child]	within	a	time	that	is	reasonably	calculated	to	meet	[the	
        child’s]	needs;	[the	child]	has	been	abandoned	by	[the	mother];	and	
        [the	mother]	has	failed	to	make	a	good	faith	effort	to	rehabilitate	
        and	reunify	with	[her	child]	.	.	.	.			
	
        [¶9]		On	January	11,	2018,	the	mother	moved	to	amend	the	findings	and	

for	 a	 new	 trial.3	 	 See	 M.R.	 Civ.	 P.	 52(b),	 59.	 	 On	 March	 29,	 2018,	 the	 court	

(Duddy,	J.)	denied	the	mother’s	motion	for	a	new	trial	and	denied	in	part	and	

granted	in	part	her	motion	to	amend	findings.4		The	amended	findings	did	not	

change	the	result	of	the	court’s	judgment.5		The	mother	timely	appeals.			




    3		The	mother	submitted	an	affidavit	in	support	of	her	motion	for	a	new	trial	stating	a	series	of	

facts	she	would	have	sought	to	introduce	in	evidence	had	she	attended	the	December	27	hearing,	but	
her	 present	 appeal	 focuses	 on	 the	 alleged	 procedural	 defects	 of	 the	 termination	 hearing,	 not	 the	
motion	for	a	new	trial.			
    4		We	note	that,	at	the	outset	of	the	motion	hearing,	the	presiding	judge	appropriately	inquired	of	

counsel	whether	there	was	any	objection	to	his	deciding	the	motion	because	he	had	not	issued	the	
underlying	 termination	 judgment.	 	 The	 parties	 affirmatively	 stated	 that	 they	 did	 not	 object.		
Nevertheless,	 it	 is	 not	 clear	 why	 the	 judge	 who	 issued	 the	 judgment	 terminating	 the	 mother’s	
parental	rights	did	not	also	consider	and	rule	on	the	mother’s	post-judgment	motions.		Although	a	
successor	court	may	handle	such	motions,	except	in	unusual	circumstances,	this	process	should	only	
be	used	when	the	original	judge	is	no	longer	able	to	rule	on	the	motions.		See	In	re	C.P.,	2016	ME	18,	
¶	25,	132	A.3d	174	(explaining	that	Rule	59	only	authorizes	a	judge	to	entertain	a	motion	to	alter	or	
amend	the	judgment	of	another	judge	of	the	same	court	in	extraordinary	circumstances	such	as	the	
decreeing	 judge's	 death,	 resignation,	 sickness,	 or	 other	 disability);	 see	 also	 Warren	 v.	 Waterville	
Urban	Renewal	Auth.,	259	A.2d	364,	367	(Me.	1969).		
    5		The	court	amended	the	findings	to	clarify	the	timeline	of	the	drug	screenings,	adding	that	the	

September	2017	positive	test	was	her	“last	drug	screening	for	which	the	Department	has	results.	.	.	.”			
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                                           II.		DISCUSSION	

A.	       Due	Process—Opportunity	To	Be	Heard	

          [¶10]		Because	a	parent’s	fundamental	right	to	care	for	his	or	her	child	is	

at	stake,	due	process	requires	“notice	of	the	issues,	an	opportunity	to	be	heard,	

the	right	to	introduce	evidence	and	present	witnesses,	the	right	to	respond	to	

claims	 and	 evidence,	 and	 an	 impartial	 factfinder.”	 	 In	 re	 Kaylianna	 C.,	

2017	ME	135,	¶	9,	166	A.3d	976	(quotation	marks	omitted).		Due	process	does	

not	require	that	a	parent	be	physically	present	at	the	termination	hearing,	“as	

long	as	notice	of	the	hearing	was	given	 in	a	 manner	calculated	to	give	 actual	

notice	 and	 the	 parent	 had	 an	 opportunity	 to	 be	 heard.”	 	 In	 re	 Robert	 S.,	

2009	ME	18,	 ¶	 16	 n.1,	 966	 A.2d	 894.	 	 Further,	 “courts	 generally	 discern	 no	

abuse	of	discretion	or	violation	of	due	process	in	proceeding	with	the	hearing	

if	the	parent’s	absence	was	occasioned	by	circumstances	voluntarily	created	by	

that	parent.”		In	re	Kaylianna	C.,	2017	ME	135,	¶	10,	166	A.3d	976	(quotation	

marks	omitted).	

	         [¶11]		In	this	case,	there	was	no	dispute	that	the	notice	of	hearing	on	the	

termination	 petition	 was	 served	 on	 the	 mother	 within	 the	 time	 period	

prescribed	by	statute.6		See	22	M.R.S.	§	4053	(2017).		The	notice	she	received	


     6	
    	 Counsel	 for	 the	 mother	 argues	 that	 proof	 of	 service	 was	 not	 filed	 with	 the	 court	 until	
January	18,	2018,	and	did	not	include	an	affidavit	as	required	by	M.R.	Civ.	P.	4(h).		However,	counsel	
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stated	that	a	hearing	would	be	held	on	the	petition	and	provided	the	address	of	

the	court	and	the	date	and	time	of	the	proceeding	“so	that	[she]	may	appear	and	

be	heard.”		The	petition	warned	that	a	failure	to	appear	at	the	“hearing	or	court	

conferences	regarding	this	matter	may	be	determined	to	indicate	an	intent	to	

abandon	the	child[]	.	.	.	[which]	.	.	.	may	ultimately	lead	to	termination	of	your	

parental	 rights.”	 	 See	 22	 M.R.S.	 §	4002(1-A)(E)	 (2017).	 	 Although	 the	 docket	

record	reflects	that	a	case	management	hearing	was	also	scheduled,	there	is	no	

indication	 in	 the	 record	 that	 the	 mother	 or	 her	 attorney	 received	 any	 notice	

from	 the	 court	 that	 her	 attendance	 was	 not	 required	 at	 the	 December	 27	

hearing	on	the	termination	petition.			

        [¶12]	 	 In	 the	 three	 months	 between	 the	 termination	 hearing	 and	 the	

hearing	 on	 her	 motion	 for	 a	 new	 trial,	 the	 mother	 did	 not	 provide	 any	

explanation	for	her	absence	from	court	on	December	27.		In	light	of	the	notice	

and	 warning	 regarding	 the	 hearing	 on	 the	 termination	 petition	 that	 were	

served	upon	her,	the	mother	had	ample	notice	and	opportunity	to	be	heard	and	

to	contest	the	petition	to	terminate	her	parental	rights.		However,	she	failed	to	



does	not	argue	that	any	harm	came	from	this	defect	and	delay,	and	conceded	at	the	December	27	
hearing	that	the	mother	“was	served	with	the	petition.”		Proof	of	service	filed	with	the	court	shows	
service	was	made	on	the	mother	on	November	30,	2017,	twenty-seven	days	before	the	termination	
hearing	and	 thus	well	within	the	 statutory	 period	required	 for	 service	 to	 be	 made.	 	 See	 22	M.R.S.	
§	4053	(2017).			
8	

appear	 without	 ever	 explaining	 her	 absence	 to	 the	 court.	 	 Under	 these	

circumstances,	 conducting	 an	 evidentiary	 hearing	 on	 a	 termination	 petition	

when	 a	 party	 is	 voluntarily	 absent	 without	 good	 cause	 does	 not	 constitute	 a	

deprivation	of	due	process.7		See	In	re	A.M.,	2012	ME	118,	¶	19,	55	A.3d	463.	

B.	      Sufficiency	of	the	Evidence		

	        [¶13]		Because	there	was	no	due	process	violation,	we	turn	to	the	merits	

of	the	termination	petition.		We	review	factual	findings	that	a	parent	is	unfit	for	

clear	error	and	will	determine	that	a	finding	is	“unsupported	only	if	there	is	no	

competent	evidence	in	the	record	to	support	it	.	.	.	or	if	the	finding	is	so	contrary	

to	 the	 credible	 evidence	 that	 it	 does	 not	 represent	 the	 truth	 of	 the	 case.”		

Adoption	of	Isabelle	T.,	2017	ME	220,	¶	30,	175	A.3d	639.		Where	a	court	finds	

“multiple	bases	for	unfitness,	we	will	affirm	if	any	one	of	the	alternative	bases	

is	supported	by	clear	and	convincing	evidence.”		In	re	K.M.,	2015	ME	79,	¶	9,	

118	A.3d	812	(quotation	marks	omitted).		We	review	the	ultimate	decision	to	

terminate	parental	rights	for	an	abuse	of	discretion,	“viewing	the	facts,	and	the	




     7		Although	counsel	for	the	mother	raised	the	issue	of	whether	the	termination	of	parental	rights	

order	was	entered	as	a	final	judgment	or	default	judgment,	counsel	conceded	that	the	hearing	was	
not	 a	 default	 proceeding.	 	 Consequently,	 we	 need	 not	 address	 the	 question	 of	 whether	 entry	 of	 a	
termination	order	when	a	parent	fails	to	appear	constitutes	a	default	judgment.			
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weight	 to	 be	 given	 them,	 through	 the	 trial	 court’s	 lens[.]”	 	 In	 re	 M.B.,	

2013	ME	46,	¶	37,	65	A.3d	1260	(quotation	marks	omitted).			

	       [¶14]		The	mother	argues	that	there	is	insufficient	evidence	of	unfitness.		

Specifically,	she	points	to	the	court’s	earlier	decision	on	August	3,	2017,	denying	

the	 Department’s	 first	 termination	 petition	 because	 the	 mother	 was	 “on	 the	

cusp	of	being	able	to	take	responsibility	for	[the	child],”	 and	 argues	that	one	

positive	drug	screening	in	September	2017	is	an	insufficient	basis	on	which	to	

terminate	 her	 parental	 rights.8	 	 Although	 the	 court	 did	 consider	 the	 earlier	

August	3,	2017,	order	in	its	termination	decision	now	on	appeal,	the	court	found	

that	in	the	few	months	that	had	passed	since	that	order,	she	tested	positive	for	

scheduled	 drugs,	 was	 inconsistent	 with	 drug	 screenings,	 failed	 to	 engage	 in	

mental	health	counseling,	was	unable	to	maintain	safe	and	stable	housing,	and	

continued	 to	 associate	 with	 a	 significant	 other	 who	 also	 struggles	 with	

substance	 abuse	 and	 mental	 health	 issues.	 	 Based	 on	 these	 determinations,	

which	are	supported	by	competent	evidence	in	the	record,	the	court	did	not	err	

in	finding	that	the	mother	is	unfit,	nor	did	it	abuse	its	discretion	in	concluding	


    8		The	August	3	decision	also	noted	that	the	mother	still	had	much	work	to	do	and	that	her	“next	

steps	would	include	.	.	.	engaging	in	regular	mental	health	counseling	(until	clinically	discharged),	a	
longer	period	of	sobriety,	and,	of	course,	housing	suitable	and	stable	for	both	herself	and	her	young	
[child].”		To	this	end,	the	court	also	ordered	that	the	mother	“shall	be	subject	to	random	testing	of	her	
person	 to	 make	 sure	 that	 she	 is	 alcohol	 and	 illegal	 drug	 free,	 or	 otherwise	 not	 impaired	 by	 any	
substance.”			
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that	termination	of	the	mother’s	 parental	rights	is	in	the	best	interest	of	this	

child.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(a),	 (b)(i)-(iv);	 In	 re	 Thomas	 D.,	

2004	ME	104,	¶	21,	854	A.2d	195.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	     	    	
	
James	S.	Mundy,	Esq.,	Whitney,	Mundy	&	Mundy,	South	Berwick,	for	appellant	
mother	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Springvale	District	Court	docket	number	PC-2016-11	
FOR	CLERK	REFERENCE	ONLY	
	
