MAINE SUPREME JUDICIAL COURT                                                 Reporter of Decisions
Decision:    2020 ME 86
Docket:      Oxf-20-20
Submitted
  On Briefs: May 28, 2020
Decided:     June 9, 2020

Panel:       GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.



                              IN RE CHILDREN OF JASON C.


PER CURIAM

         [¶1] Jason C. appeals from a judgment of the District Court (South Paris,

Ham-Thompson, J.) terminating his parental rights to his two children. See

22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2020). The father argues that the

Department of Health and Human Services did not present sufficient evidence

upon which the trial court could find that he is parentally unfit, and contends

that the court abused its discretion in finding that termination is in the

children’s best interests. We affirm the judgment.

                                      I. BACKGROUND

         [¶2] In August 2019, the Department petitioned to terminate the father’s

parental rights as to both children.1 See 22 M.R.S. § 4052 (2020). The trial court


   1 The mother appeared before the trial court on December 6, 2019, and consented to the
termination of her parental rights as to both children. See 22 M.R.S. § 4055(1)(A)(1)(a), (1)(B)(1)
(2020). The trial court (Ham-Thompson, J.) entered an order on December 6, 2019 terminating the
mother’s parental rights. The mother did not participate in this appeal.
2

held a one-day hearing on the petition on December 4, 2019. See 22 M.R.S.

§ 4054 (2020). The father was present at the hearing and was represented by

counsel.

          [¶3] In a judgment dated December 20, 2019, the trial court terminated

the father’s parental rights to both children.2 See 22 M.R.S. § 4055(1)(B)(2)(a),

(b)(i)-(ii), (iv). The trial court found by clear and convincing evidence that the

father is unwilling or unable to protect the children from jeopardy and these

circumstances are unlikely to change within a time which is reasonably

calculated to meet the children’s needs, that the father has been unwilling or

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

calculated to meet the children’s needs, and that the father has failed to make a

good faith effort to rehabilitate and reunify with the children.                                 See

§ 4055(1)(B)(2)(b)(i)-(ii), (iv).             The trial court also found by clear and

convincing evidence that termination of the father’s parental rights is in the

children’s best interests. See § 4055(1)(B)(2)(a). Its findings are supported by

competent evidence in the record. In re Child of Carl D., 2019 ME 67, ¶ 4, 207

A.3d 1202.




    2   An amended order was entered on January 8, 2020, in order to correct a clerical error.
                                                                               3

      [¶4]    The trial court’s judgment contained the following findings

regarding the father’s fitness:

       [The older child] has been exposed to his parents’ untreated
       mental health issues, housing instability, domestic violence, and
       possible sexual abuse . . . .

              The Department first became involved with this family in
       July 2015 because of a report alleging [the father] had assaulted
       [the mother] while [the older child] was present. A second report
       was made in January 2016 alleging [the mother] assaulted [the
       father] and [the father] sexually abused [another family member].
       DHHS closed its investigation when [a family member] obtained
       permanent guardianship of [the older child] in April 2016 and
       agreed to supervise all contact between [the father] and [the older
       child]. [The older child] continued to live with [the family
       member] until DHHS took custody of him on October 22, 2018.

             ....

            . . . Since birth, [the younger child] has likewise been exposed
      to her parents’ untreated mental health issues, housing instability,
      domestic violence, and possible sexual abuse.

             ....

            At the time of trial, [the father] was 37 and living above the
      garage at his parent’s home. . . . [The father] has not made any
      credible efforts to obtain housing.

             [The father] and [the mother] began dating when she was a
      minor. Their sexual relationship began when [the mother] was 14
      and [the father] was 28. Their relationship has been turbulent from
      its inception. [The father] has beaten, starved, dominated, and
      controlled [the mother] from the very beginning. When [the
      father] has been charged for domestic violence assault against [the
4

    mother], [the mother] would often recant her statements resulting
    in the charges being dismissed.

          . . . DHHS has had ongoing involvement with this family
    beginning in 2015 due to reports of domestic violence, gross sexual
    assault charges [against the father], homelessness and failure to
    protect. Each occasion DHHS became involved, a safety plan was
    put in place to try to protect the children. DHHS set specific
    guidelines around [the father’s] contact with [the mother] and/or
    the children and invariably he made multiple attempts to locate
    them which occasionally involved threats.

           . . . On December 30, 2016, [the father] became enraged at [a
    family member] . . . . In front of [the older child] he threatened [a
    family member], chased [a family member] down the hallway with
    [a] sledge hammer knocking things off the walls, unplugged the
    phones to prevent them from calling the police and told everyone
    that if the police were called nobody would be alive by the time the
    police arrived. Terrified, the family sought and obtained Protection
    from Abuse Orders for one year.

          In July 2017, DHHS filed a straight petition regarding [the
    younger child]. [The father] consented to a Jeopardy Order which
    includes some of the following findings: . . . . [The father] was
    charged with five counts of Gross Sexual Assault on a Child Under
    12 (Class A), five counts of Unlawful Sexual Contact (Class B), and
    one count of Sexual Misconduct with a Child (Class C). As a result
    of these charges, [the father] had bail conditions prohibiting him
    from having contact with children under the age of 12 . . . .

          During the 2017 proceedings, [the father] refused all
    reunification services, in part, based on the pending criminal
    charges.

          In the current child protective proceedings before the court,
    [the father] consented to a Jeopardy Order . . . . As part of the
    reunification process, [the father] was required to:
                                                                         5

      1. Follow treatment recommendations from the Sexual
         Offense Treatment and Evaluation;
      2. Refrain from all criminal activity and obey any court
         orders; . . .
      3. Complete a CODE [Court Ordered Diagnostic Evaluation]
         and follow recommendations;
      4. Obtain and maintain safe and stable housing free from
         domestic violence, substance abuse, and unsafe people;
         [and]

      ....

      7. Work with a counselor to develop strategies to address
         domestic violence issues.

      Despite being required to undergo a Sex Offense Assessment
and Treatment Evaluation (SOATE) back in July of 2017, [the
father] did not begin the assessment until November 29, 2018. . . .

       The STABLE-2007 portion of the evaluation results
identified areas of clinical concern to be [the father’s] impulsivity,
hostility toward women, lack of concern for others and deviant
sexual interests.

      Of particular concern were the results from the LOOK
Assessment. “[The father’s] findings suggest sexual interests in
Adult Female, Juvenile Females, Mature Adult Females and Infant
Females. His highest overall viewing was of Infant Females in the
second administration of the test.”

      ....

      In order to complete the SOATE, it was recommended that
[the father] engage in further testing, one of which is a “sexual
history polygraph to assess the validity of his denial of the
allegations against him to determine if there is a history of sexual
offending behaviors.” Based upon the initial results from the
testing, [the evaluator] recommended [the father] does not have
6

    any contact with minor children . . . until such time as [the father]
    has completed all recommended testing. To date, [the father] has
    failed to undergo a sexual history polygraph.

           After receiving the report from [the SOATE], [the father]
    became angry. [The father] refused to continue to work with the
    evaluator . . . . Further [the father] did not find any need for a
    polygraph. In January 2019, while meeting with his case worker . . .
    [the father] was unable to contain his hostility toward DHHS. [The
    father] disclosed . . . that he wanted to use a nuclear bomb to blow
    up DHHS and anyone else with badges. . . .

           Upon learning of the credible threat, DHHS had [the father]
    served with a no trespass order. Supervised visitation facilities
    were no longer willing to work with [the father]. DHHS was able to
    get Auburn PD to allow for a supervised visit at the police station.
    However[,] after one visit, Auburn PD refused to allow additional
    visits to occur at its facility because of a lack of appropriate space
    for these visits to occur. Since that visit in June of 2019, [the father]
    has not had any contact with his children.

          ....

           . . . [The father] has failed to follow the treatment
    recommendations of SOATE; has failed to abide by the terms of the
    Jeopardy Order; has failed to complete the CODE evaluation; has
    failed to obtain and maintain safe and stable housing; and he has
    failed to fully engage with a mental health counselor to address his
    domestic violence issues. . . .

           [The father] has a history of emotionally, physically and
    sexually abusing women and children. He is incapable of accepting
    responsibility for his actions. He refuses to engage in meaningful
    treatment. By failing to take responsibility for his actions, complete
    the necessary assessments/evaluations, follow treatment
    recommendations, and obtain independent housing since
    July 2017 when DHHS filed its first petition, [the father] has failed
    to alleviate jeopardy.
                                                                              7


      [¶5] The court also made the following supported findings regarding the

best interests of the children:

            [The older child] has not lived with either parent since he
      was a year old. . . .

            ....

            [The younger child] has never lived with [the father] and she
      has not resided with [the mother] since permanent guardianship
      was granted to [two family members] in July 2018. When the
      placement . . . was no longer deemed safe, DHHS took custody of
      both children on October 22, 2018. Since coming into DHHS
      custody, [the younger child] has moved seven times. Most of the
      moves were a result of the foster parents being unable to manage
      [the older child’s] behavior.

      [¶6] Based on these supported findings, the trial court concluded that

the father was unwilling or unable to protect the children from jeopardy and

that those circumstances were unlikely to change within a time reasonably

calculated to meet their needs, and that the father has been unwilling or unable

to take responsibility for the children within a time reasonably calculated to

meet their needs.     22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii).    The court also

concluded that the father had failed to make a good faith effort to rehabilitate

and reunify with the children. 22 M.R.S. § 4055(1)(B)(2)(b)(iv). Finally, the

court concluded that termination was in the best interest of each child.
8

22 M.R.S. § 4055(1)(B)(2)(a). The father timely appealed. See 22 M.R.S. § 4006

(2020); M.R. App. P. 2B(c)(1).

                                 II. DISCUSSION

A.    Sufficiency of the Evidence

      1.    Parental Unfitness

      [¶7] On appeal, the father contends that the record contains insufficient

evidence for the trial court to conclude that he failed to make a good faith effort

to rehabilitate and reunify with the children and therefore was unfit to parent

the children. 22 M.R.S. § 4055(1)(B)(2)(b)(iv). “We review the court’s findings

of fact for clear error and the court’s ultimate determination that termination

of the parental rights is in the child’s best interest for an abuse of discretion.”

In re Olivia F., 2019 ME 149, ¶ 5, 217 A.3d 1106. “We will affirm an order

terminating parental rights when a review of the entire record demonstrates

that the trial court rationally could have found clear and convincing evidence

in that record to support the necessary factual findings as to the bases for

termination.” Id. (quotation marks omitted). “A court need find only one of four

statutory grounds of parental unfitness to find that a parent is unfit to parent

his or her child. Where the court finds multiple bases for unfitness, we will

affirm if any one of the alternative bases is supported by clear and convincing
                                                                                                         9

evidence.”3 Id. ¶ 6 (citation omitted) (quotation marks omitted); see 22 M.R.S.

§ 4055(1)(B)(2)(b) (2020).               “[T]he court must examine from the child’s

perspective—not the parent’s—the time within which the parent can take

responsibility for a child and protect that child from jeopardy.” In re Children

of Tiyonie R., 2019 ME 34, ¶ 6, 203 A.3d 824.

        [¶8] Contrary to the father’s contentions, the trial court did not clearly

err in finding that the father is unfit. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv).

The father has been unsuccessful in reaching any of the goals established in the

2017 jeopardy order. He has not obtained permanent or safe housing for the

children, and does not have any current plans to do so. He belatedly engaged

with the SOATE process, but has refused to comply with the counselor’s

recommendations for further testing.                    He has not completed a Batterer’s

Intervention Program or otherwise availed himself of resources to address his

domestic violence. The father’s violent threat against Department employees

has rendered supervised visits with the children impossible, and the father has



   3  The father does not argue on appeal that the trial court erred by finding that the father is
unwilling or unable to protect the children from jeopardy and these circumstances are unlikely to
change within a time which is reasonably calculated to meet the children’s needs, and that the father
has been unwilling or unable to take responsibility for the children within a time which is reasonably
calculated to meet the children’s needs. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). Nevertheless, we have
considered the record evidence underpinning each of the three alternative grounds, and conclude
that the trial court did not err in finding the father unfit on any of the three grounds. See infra ¶¶ 8-9.
10

not had any contact with the children in nearly a year. These facts, supported

by competent record evidence, suggest that the father is unwilling or unable to

protect the children from jeopardy, and that those circumstances are unlikely

to change within a time reasonably calculated to meet their needs, as well as

that that the father has been unwilling to unable to take responsibility for the

children within a time reasonably calculated to meet their needs. 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii).

      [¶9] Competent record evidence also supports the trial court’s finding

that the father failed to make a good faith effort to rehabilitate and reunify with

the children. 22 M.R.S. § 4055(1)(B)(2)(b)(iv). The father has refused to fully

comply with the recommendations of the counselors with whom he has

engaged.   He has only superficially engaged with services related to his

domestic violence issues. Despite encouragement from his mother and from

the Department, he has not taken steps to obtain independent housing suitable

for his children.      He has not taken responsibility for his actions or

acknowledged his role in placing the children in jeopardy.

      2.      Children’s Best Interests

      [¶10]     The father also argues on appeal that the record contains

insufficient evidence for the trial court to conclude that termination was in the
                                                                                11

children’s best interests. The father contends that, because the Department has

not identified a permanent adoptive home for either of the two children,

termination cannot, as a matter of law, be in their best interests. Contrary to

his contention, the record is sufficient to support the trial court’s finding that

termination of his parental rights is in the children’s best interests, and the

identification of adoptive homes is not a prerequisite to a finding that

termination is in the children’s best interests. See In re Children of Meagan C.,

2019 ME 129, ¶ 20, 214 A.3d 9. “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

Child of Carl D., 2019 ME 67, ¶ 5, 207 A.3d 1202 (quotation marks omitted).

      [¶11] The record supports the trial court’s conclusion that termination

of the father’s parental rights would facilitate permanency and stability, and

therefore be in the children’s best interests. “Permanency is a dynamic concept

that must be fashioned from the actual circumstances and needs of the child or

children before the court.” Id. ¶ 9 (quotation marks omitted). Here, both

children have experienced significant instability throughout their short lives,

with care provided by family members and a host of foster families. The older

child, especially, has significant behavioral challenges and requires expert care
12

from caregivers who can devote their energy to his needs. The younger child

has never lived with the father, and has never experienced stability in her life.

Therefore, even absent identified adoptive placements for the children, the trial

court did not commit clear error or abuse its discretion in concluding that

termination of the father’s parental rights was in the children’s best interests.

                               III. CONCLUSION

      [¶12] The trial court did not clearly err in finding by clear and convincing

evidence that the father was unable or unwilling to protect the children from

jeopardy or take responsibility for the children within a time reasonably

calculated to meet the children’s needs, or in finding that the father failed to

make a good faith effort to rehabilitate and reunify with the children. See

§ 4055(1)(B)(2)(b)(i)-(ii), (iv). Nor did the trial court commit clear error or

abuse its discretion in determining that termination was in each child’s best

interest. See In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260; § 4055(1)(B)(2)(a).

      The entry is:

                  Judgment affirmed.
                                                                             13

Richard Charest, Esq., Lewiston, for appellee father

Aaron M. Frey, Attorney General, and Zack Paakkonen, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services


South Paris District Court docket numbers PC-2018-13 and PC-2018-14
FOR CLERK REFERENCE ONLY
