MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	214	
Docket:	      Yor-17-197	
Submitted	
  On	Briefs:	 October	24,	2017	
Decided:	     November	9,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                             IN	RE	RYAN	G.	
	
	
PER	CURIAM	

         [¶1]	 	 The	 mother	 and	 father	 of	 Ryan	 G.	 appeal	 from	 a	 judgment	 of	 the	

District	 Court	 (Biddeford,	 Foster,	 J.)	 terminating	 their	 parental	 rights	 to	

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

(2016).	 	 They	 challenge	 the	 sufficiency	 of	 the	 evidence	 to	 support	 the	

judgment	 and	 the	 court’s	 discretionary	 determination	 of	 the	 child’s	 best	

interest.		The	father	also	contends	that	his	right	to	counsel	was	violated	and	

that	the	court	abused	its	discretion	when	it	denied	his	motion	for	amended	or	

additional	 findings	 of	 facts	 and	 conclusions	 of	 law.1	 	 Because	 the	 evidence	


    1		 Although	 the	 father	 attempts	 to	 challenge	 the	 temporary	 denial	 of	 court	 appointed	 legal	
counsel	and	the	denial	of	his	motion	for	amended	or	additional	findings	of	fact	and	conclusions	of	
law,	 pursuant	 to	 22	 M.R.S.	 §	 4006	 those	 decisions	 were	 interlocutory	 and	 not	 appealable,	 and	 we	
will	not	consider	them.		See	22	M.R.S.	§	4005(2)	(2016);	22	M.R.S.	§	4006	(2016);	In	re	L.R.,	2014	ME	
95,	 ¶	 9,	 97	A.3d	 602	 (“Section	 4006	 unequivocally	 provides	 that	 in	 child-protective	 cases	 orders	
other	 than	 termination	 orders,	 jeopardy	 orders,	 or	 orders	 authorizing	 medical	 treatment	 are	 not	
appealable.	 	 We	 cannot	 substitute	 our	 judgment	 for	 that	 of	 the	 Legislature.”)	 (citations	 omitted)	
(quotation	marks	omitted).		We	note,	however,	that	the	stripping	of	counsel	from	a	parent	involved	
in	a	child	protection	proceeding	should	occur	rarely,	if	ever.		At	a	minimum,	the	parent’s	assigned	
counsel	should	be	permitted	to	assist	his	or	her	client	in	having	a	financial	screener,	employed	by	
2	

supports	the	court’s	findings	and	discretionary	determinations,	we	affirm	the	

judgment.			

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

clear	and	convincing	evidence,	(1)	that	the	parents	are	unwilling	or	unable	to	

protect	the	child	from	jeopardy	and	that	those	circumstances	are	unlikely	to	

change	 within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	 needs,	

(2)	that	they	are	unwilling	or	unable	to	take	responsibility	for	the	child	within	

a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	 needs,	 (3)	 that	 the	

mother	has	failed	to	make	a	good	faith	effort	to	rehabilitate	and	reunify	with	

the	 child	 pursuant	 to	 22	 M.R.S.	 §	 4041	 (2016),	 and	 (4)	 that	 termination	 of	

their	parental	rights	is	in	the	child’s	best	interest.		See	22	M.R.S.	§	4055;	In	re	

Caleb	 M.,	 2017	 ME	 66,	 ¶	 27,	 159	 A.3d	 345.	 	 The	 court	 based	 these	

determinations	on	the	following	findings	of	fact.	

	      [¶3]	 	 In	 the	 fall	 of	 2014,	 the	 mother	 and	 father	 engaged	 in	 a	 sexual	

relationship	 that	 involved	 the	 use	 of	 drugs,	 including	 crack	 cocaine.	 	 The	

mother	 became	 pregnant	 and	 the	 child	 was	 born	 drug	 affected	 due	 to	 the	

mother’s	continued	abuse	of	drugs	up	until	his	birth,	including	an	injection	of	

heroin	 into	 her	 breast	 three	 hours	 before	 the	 child’s	 delivery.	 	 The	

the	Maine	Commission	on	Indigent	Legal	Services,	review	the	parent’s	financial	affidavit	before	the	
court	takes	such	an	extreme	step.	
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Department	 of	 Health	 and	 Human	 Services	 filed	 the	 present	 action	 pursuant	

to	 the	 terms	 of	 the	 Child	 and	 Family	 Services	 and	 Child	 Protection	 Act,	

22	M.R.S.	 §§	 4001-4099-H	 (2016),	 and	 obtained	 temporary	 custody	 of	 the	

child.		The	court’s	termination	order	states:	

      	       Reunification	 efforts	 with	 [the	 mother]	 have	 been	 stymied	
      by	 her	 repeated	 incarcerations	 over	 the	 last	 year	 and	 one	 half.		
      The	caseworker	made	every	attempt	to	maintain	contact	with	[the	
      mother],	 including	 conducting	 several	 Family	 Team	 Meetings	 in	
      jail	 as	 well	 as	 telephone	 contact	 when	 that	 was	 available.	 	 The	
      reunification	 services	 for	 [the	 mother]	 have	 been	 consistent	
      throughout	 the	 case	 –	 mental	 health	 and	 substance	 abuse	
      treatment,	 safe	 and	 stable	 housing,	 and	 regular	 visitation.	 	 [The	
      mother]	has	been	unable	to	comply	with	any	of	those	obligations.		
      She	was	unable	to	complete	the	[Intensive	Outpatient	Program]	at	
      Key3West	 due	 to	 continued	 abuse	 of	 substances.	 	 At	 one	 point	
      during	the	case,	[the	mother]	had	an	intake	appointment	to	attend	
      Crossroads	 for	 Women,	 a	 residential	 substance	 abuse	 treatment	
      program.	 .	 .	 .	 	 However,	 [she	 was]	 unable	 to	 find	 the	 facility	 and	
      missed	 the	 appointment.	 	 [The	 mother]	 insisted	 she	 had	 been	
      unable	to	reschedule	another	intake.			
      	
      	       Although	       difficulties	    with	     transportation	          and	
      communication	may	have	complicated	the	reunification	effort,	the	
      hard	 fact	 is	 that	 [the	 mother’s]	 continued	 use	 and	 repeated	
      incarcerations	 are	 the	 real	 reasons	 for	 her	 failure	 in	 this	 matter.		
      Even	if	she	is	able	to	re-engage	in	treatment	when	released	from	
      jail,	it	will	take	an	extended	period	of	time	to	address	a	problem	
      with	which	[the	mother]	has	struggled	for	years	and	to	persuade	
      the	[c]ourt	that	she	has	been	truly	successful	at	that	endeavor.			
      	
	     [¶4]	 	 Three	 months	 after	 the	 child	 was	 born	 and	 the	 Department	

obtained	 temporary	 custody,	 paternity	 testing	 confirmed	 the	 father’s	
4	

relationship	 to	 the	 child.	 	 After	 the	 father’s	 initial	 rejection	 of	 the	 child,	 his	

wife	 encouraged	 him	 to	 change	 his	 position,	 and	 he	 expressed	 an	 interest	 in	

having	contact	with	the	child.		In	discussing	the	father,	the	court	stated:	

         	      On	 one	 level,	 [the	 father]	 has	 been	 extremely	 cooperative	
         with	 this	 process.	 	 As	 the	 [caseworker]	 acknowledged,	 he	 has	
         expressed	 a	 willingness	 to	 do	 almost	 everything	 the	 Department	
         has	 requested.	 	 He	 went	 to	 the	 initial	 appointment	 for	 an	
         evaluation	 at	 Maine	 Behavioral	 Health,	 completed	 a	 [Families	
         Affected	by	Substance	Abuse	evaluation]	at	Day	One,	participated	
         in	 a	 daylong	 appointment	 for	 a	 [Court	 Ordered	 Diagnostic	
         Evaluation],	 and	 ultimately	 connected	 with	 [a	 Violence	 No	 More	
         counselor]	for	individual	counseling.		He	has	visited	faithfully	with	
         his	son	and	remained	in	touch	with	the	Department.	.	.	.	
         	
         	      [The	 father]	 and	 [his	 wife]	 have	 never	 accepted	 [the	 trial	
         court’s]	 findings	 as	 outlined	 in	 the	 Jeopardy	 Order.	 .	 .	 .	 	 At	 trial,	
         [the	 father]	 repeatedly	 rejected	 the	 [c]ourt’s	 findings,	 both	 in	
         general	terms	and	specific	points.		He	referred	to	them	as	“twisted	
         lies	and	stories.”2		In	challenging	the	positive	hair	test	for	cocaine,	
         [the	father]	insisted	there	had	been	no	test	for	that	substance	and	
         suggested	 it	 might	 have	 been	 the	 Adderall	 someone	 gave	 him	 at	
         work.	 	 He	 asserted	 that	 the	 caseworker	 had	 never	 mentioned	
         concerns	about	domestic	violence	and	never	asked	that	he	engage	
         in	counseling	on	that	subject.		He	continues	to	alternately	control	
         and	 ignore	 his	 wife,	 who	 will	 be	 the	 primary	 caretaker	 for	 [the	
         child].	 	 Throughout	 the	 case	 he	 has	 demonstrated	 an	 inability	 to	
         appropriately	 deal	 with	 others	 with	 whom	 he	 disagrees,	 most	
         notably	 the	 caseworker	 and	 the	 Guardian,	 often	 behaving	 in	 an	
         aggressive	and	bullying	manner.	
         	
                .	.	.	.	



     2		In	the	transcript,	the	father’s	exact	words	were	“twisted	stories	and	lies.”	
                                                                                    5	

      	      The	issue	as	to	[the	father]	is	the	time	frame	necessary	for	
      him	to	address	the	jeopardy	defined	by	the	Court.		At	the	time	of	
      trial	 he	 had	 just	 begun	 counseling	 with	 [a	 Violence	 No	 More	
      counselor].	 	 Even	 if	 he	 continues	 to	 attend	 on	 a	 regular	 basis,	 a	
      proposition	 for	 which	 there	 is	 some	 doubt,	 [the	 father]	 has	 a	
      significant	 amount	 of	 work	 to	 do	 before	 he	 alleviates	 jeopardy.		
      Despite	 his	 assertions	 to	 the	 contrary,	 his	 wife	 also	 has	 work	 to	
      do,	 as	 she	 would	 be	 responsible	 for	 [the	 child],	 by	 herself,	 for	
      extended	periods	of	time.		For	a	child	who	has	been	in	foster	care	
      essentially	since	birth,	the	time	required	to	complete	those	efforts	
      is	not	reasonably	calculated	to	meet	his	needs.			
      	
      [¶5]	 	 The	 father’s	 wife	 is	 diagnosed	 with	 bipolar	 affective	 disorder,	

depression,	and	chronic	Post	Traumatic	Stress	Disorder,	and	has	a	history	of	

self-injurious	and	uncontrollable	behavior.		Although	the	court	acknowledged	

that	neither	it	nor	the	Department	had	any	authority	to	insist	that	the	father’s	

wife	engage	in	services,	the	court	noted:	

      If	a	parent’s	partner	is	a	source	of	jeopardy	to	the	child,	the	parent	
      may	 have	 to	 make	 a	 difficult	 election.	 	 He	 may	 attempt	 to	
      encourage	the	partner	to	correct	the	behavior	that	presents	a	risk	
      of	harm,	or,	if	the	partner	is	unwilling,	he	may	have	to	ensure	the	
      partner	does	not	have	access	to	or	responsibility	for	the	child.		In	
      this	case,	[the	wife],	both	as	an	individual	and	as	a	partner	to	[the	
      father],	 presents	 jeopardy	 to	 [the	 child]	 and	 will	 be	 his	 primary	
      caretaker	 for	 extended	 periods	 of	 time.	 	 Unless	 [the	 wife]	
      alleviates	 that	 jeopardy,	 [the	 child]	 would	 remain	 at	 risk	 even	 if	
      [the	father]	addressed	the	concerns	the	[c]ourt	raised	about	him.	
      	
	     [¶6]		Given	these	findings	and	the	court’s	other	specific	findings	of	fact	

that	are	supported	by	competent	evidence	in	the	record,	the	court	adequately	

explained	 how	 the	 deficits	 of	 the	 parents	 render	 each	 parent	 unwilling	 or	
6	

unable	to	protect	the	child	from	jeopardy	or	take	responsibility	for	the	child	in	

time	 to	 meet	 his	 needs,	 and	 adequately	 explained	 how	 the	 mother	 failed	 to	

make	 a	 good	 faith	 effort	 to	 rehabilitate	 and	 reunify	 with	 the	 child.	 	 See	 In	 re	

Thomas	D.,	2004	ME	104,	¶	21,	854	A.2d	195.		The	court	also	found	that	the	

father	 failed	 to	 make	 a	 good	 faith	 effort	 to	 rehabilitate	 and	 reunify,	 but	 this	

finding	 was	 not	 supported	 by	 clear	 and	 convincing	 evidence.	 	 “Where	 the	

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);	 see	 22	 M.R.S.	

§	4005(1)(B).		The	court	did	not	err	or	abuse	its	discretion	in	determining	that	

termination	 of	 the	 parents’	 parental	 rights,	 with	 a	 permanency	 plan	 of	

adoption,	 is	 in	 the	 child’s	 best	 interest.	 	 In	 re	 Thomas	 H.,	 2005	 ME	 123,	

¶¶	16-17,	889	A.2d	297.		

       The	entry	is:	

                     Judgment	affirmed.	
	
	      	      	      	       	      	
	
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Stephen H. Shea, Esq., Fairfiled & Associates, P.A., Portland, for appellant Mother

Alison B. Thompson, Esq., Hanly Law, LLC, 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


Biddeford District Court docket number PC-2015-30
FOR CLERK REFERENCE ONLY
	
