                                                   	
MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	156	
Docket:	      Cum-18-261	      	
Submitted	
  On	Briefs:	 November	28,	2018	
Decided:	     December	6,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                IN	RE	CHILD	OF	KAYSEAN	M.	
	
	
PER	CURIAM	

        [¶1]	 	 Kaysean	 M.	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Portland,	Eggert,	 J.)	 terminating	 his	 parental	 rights	 to	 his	 child	 pursuant	 to	

22	M.R.S.	 §	4055(1)(A)(1)(a)	 and	 (B)(2)(a),	 (b)(i)-(iv)	 (2017).1	 	 The	 father	

contends	that	he	received	insufficient	notice	of	the	termination	hearing	through	

service	 by	 publication	 and	 that	 the	 court	 erred	 by	 admitting	 in	 evidence	 the	

testimony	 of	 a	 Department	 of	 Health	 and	 Human	 Services	 supervisor.	 	 We	

affirm	the	judgment.	

        [¶2]		Based	on	competent	evidence	in	the	record,	the	court	found	by	clear	

and	convincing	evidence	that	the	father	(1)	is	unwilling	or	unable	to	protect	the	

child	from	jeopardy	and	these	circumstances	 are	unlikely	to	change	within	 a	

time	which	is	reasonably	calculated	to	meet	the	child’s	needs;	(2)	is	unwilling	



    1		The	mother	did	not	attend	the	termination	hearing	and	does	not	join	this	appeal.	
2	

or	unable	to	take	responsibility	for	the	child	within	a	time	which	is	reasonably	

calculated	 to	 meet	 the	 child’s	 needs;	 (3)	 failed	 to	 make	 a	 good	 faith	 effort	 to	

rehabilitate	 and	 reunify	 with	 the	 child;	 and	 (4)	 abandoned	 the	 child.	 	 See	

22	M.R.S.	§	4055(1)(B)(2)(b)(i)-(iv).		The	court	also	found	that	termination	of	

the	 father’s	 parental	 rights	 is	 in	 the	 child’s	 best	 interest.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(a).	 	 The	 court	 based	 its	 determinations	 on	 the	 following	

findings	of	fact.	

       [¶3]		At	the	jeopardy	hearing	on	September	11,	2017,	where	the	father	

failed	to	appear	but	was	represented	by	counsel,	the	court	found	that	

       letters	sent	to	the	Department	by	the	father	.	.	.	[and]	presented	as	
       evidence	 show	 that	 his	 thoughts	 about	his	 child	 are	 not	 based	 in	
       reality.		In	addition,	he	is	not	present	today	nor	has	he	had	contact	
       with	the	Department	for	some	time,	since	most	recently	getting	out	
       of	jail.		He	has	abandoned	his	child.	
       	
See	 In	 re	 Marcus	 E.,	 2017	 ME	 200,	 ¶	 5	 n.3,	 171	 A.3d	 190	 (“Although	 [at	 the	

termination	 hearing]	 the	 court	 was	 required	 to	 make	 its	 unfitness	 and	 best	

interest	determinations	by	a	higher	standard	of	proof	than	its	findings	in	earlier	

stages	 of	 the	 proceedings,	 including	 the	 jeopardy	 stage,	 the	 same	 judge	

presided	over	nearly	the	entirety	of	these	child	protective	proceedings	and	was	

entitled	to	consider	the	evidence	presented	throughout.”)	
                                                                                       3	

	     [¶4]		At	the	conclusion	of	the	termination	hearing	held	on	May	7,	2018,	

where	the	father	again	failed	to	appear	but	was	fully	represented	by	counsel,	

the	court	found	from	the	bench	at	the	close	of	the	evidence:	

       [N]ot	only	has	[the	father]	abandoned	his	child,	he’s	abandoned	the	
       proceedings	themselves	.	.	.	.		All	the	legal	efforts	have	been	made	
       and	[they	have	not]	been	sufficient	to	get	him	here,	and	he	hasn’t	
       contacted	the	Department	throughout	the	process	.	.	.	so	he’s	made	
       no	 efforts	 whatsoever	 to	 be	 involved	 in	 the	 rehabilitation,	
       reunification	process	so	that	he	could	be	a	parent.		And	everybody,	
       probably,	in	the	criminal	justice	system	from	a	judicial	standpoint	
       has	had	some	contact	with	[the	father]	over	time	.	.	.	.			
       	
In	its	written	order,	the	court	found	that	

      [t]he	last	contact	that	the	caseworker	had	with	the	father	was	in	
      court,	when	he	was	still	incarcerated,	in	May,	2017.		He	sent	some	
      letters	 to	 the	 Department,	 but	 has	 had	 no	 contact	 with	 the	
      Department	since	he	was	released	from	jail.		He	has	had	issues	of	
      mental	health,	substance	abuse,	and	homelessness.	.	.	.	The	child	is	
      thriving	 [in	 a	 placement	 with	 a	 relative].	 .	 .	 .	 [The	 father’s]	 past	
      criminal	history	as	well	is	an	indicator	that	he	is	not	an	appropriate	
      parent.	
      	
	     [¶5]		Reviewing	the	factual	findings	supporting	the	court’s	unfitness	and	

best	interest	determinations	for	clear	error,	and	further	reviewing	the	court’s	

ultimate	conclusion	that	termination	is	in	the	child’s	best	interest	for	an	abuse	

of	 discretion,	 we	 determine	 that	 the	 court’s	 findings	 and	 conclusions	 are	

supported	 by	 this	 record.	 	 See	 In	 re	 Child	 of	 Portia	 L.,	 2018	ME	 51,	 ¶	 2,	

183	A.3d	747.	
4	

	      [¶6]	 	 The	 father	 contends	 that	 his	 notice	 of	 the	 termination	 hearing,	

which	the	Department	made	by	publication	pursuant	to	the	trial	court’s	order,	

was	 defective	 because	 there	 is	 insufficient	 record	 evidence	 establishing	 that	

publication	 was	 made	 “once	 a	 week	 for	 3	 successive	 weeks”	 as	 required	 by	

M.R.	Civ.	P.	4(g)(2).		“Whether	the	commencement	of	an	action	and	service	of	

process	 comport	 with	 M.R.	 Civ.	 P.	 4	 and	 the	 Due	 Process	 Clause	 of	 the	

Fourteenth	Amendment	is	a	question	of	law	that	we	review	de	novo.”		Shultz	v.	

Doeppe,	2018	ME	49,	¶	15,	182	A.3d	1246.	

	      [¶7]		The	father’s	argument	fails	because	the	trial	court	record	contains	

physical	copies	of	the	required	notice	as	published	for	three	successive	weeks	

in	an	appropriate	newspaper	in	April	2018,	as	well	as	an	affidavit	executed	by	

the	 newspaper’s	 classified	 legal	 clerk	 attesting	 to	 that	 fact.	 	 Accordingly,	

the	father’s	 notice	 of	 the	 termination	 hearing	 was	 legally	 sufficient.	 	 See	 id.;	

M.R.	Civ.	P.	4(g).	

	      [¶8]		Finally,	the	father	contends	that	the	court	erred	in	failing	to	exclude	

from	evidence,	sua	sponte,	the	testimony	of	a	Department	supervisor	who	had	

supervised	 the	 child’s	 case	 since	 May	 2017,	 and	 who	 supervised	 the	 child’s	

caseworker.		“Because	[the	father]	object[s]	to	that	evidence	for	the	first	time	

on	appeal,	we	apply	the	obvious	error	standard	of	review,	considering	whether	
                                                                                   5	

the	 admission	 of	 [the	 supervisor’s]	 testimony	 constituted	 a	 seriously	

prejudicial	error	tending	to	produce	a	 manifest	injustice.”		Gravison	v.	Fisher,	

2016	ME	35,	¶	28,	134	A.3d	857	(quotation	marks	omitted).		No	foundational	

error	rising	to	that	level	is	demonstrated	on	this	record.		See	M.R.	Evid.	602.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	     	    	
	
James	S.	Hewes,	Esq.,	South	Portland,	for	appellant	father	
	
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	
	
	
Portland	District	Court	docket	number	PC-2017-39	
FOR	CLERK	REFERENCE	ONLY	
