MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:    2020 ME 63
Docket:      Pen-19-496
Submitted
  On Briefs: May 4, 2020
Decided:     May 12, 2020

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



                                IN RE CHILD OF JESSICA C.


PER CURIAM

         [¶1]      Jessica C. appeals from a judgment of the District Court

(Bangor, Jordan, J.) terminating her parental rights to her child. See 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i)-(ii) (2020). The mother argues that the court’s

findings of parental unfitness and best interest are not supported by sufficient

evidence and that its ultimate determination of the child’s best interest

constituted an abuse of discretion. We affirm the judgment.

                                     I. BACKGROUND

         [¶2] On May 2, 2017, when the child was just over one month old, the

Department of Health and Human Services filed a petition for a child protection

order. See 22 M.R.S. § 4032 (2020). In November 2017, a jeopardy order was

issued only in relation to the father, but in January 2018, the Department

amended its petition to allege jeopardy against the mother due to concerns of

substance use, untreated mental health issues, and unstable living conditions.
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After the child’s father passed away due to a drug overdose, the Department

filed an affidavit in support of a preliminary child protection order. See

22 M.R.S. § 4034 (2020). In July 2018, the court granted the preliminary

protection order, temporarily removing the child from the mother’s custody

and placing him in the Department’s custody.                      See 22 M.R.S. §§ 4034(2),

4036(1)(F) (2020). The child was placed with a relative and has resided there

since July 2018.         In August 2018, the mother appeared at a summary

preliminary hearing (Campbell, J.), at which she waived her right to contest the

temporary order. See id. § 4034(4).

        [¶3]    In December 2018, the mother agreed to a jeopardy order

(Jordan, J.), which required her to engage in rehabilitation and reunification

services.1 In March 2019, when the child was two years old, the Department

filed a petition to terminate the mother’s parental rights. See 22 M.R.S. § 4052

(2020). After a one-day hearing on November 19, 2019, see 22 M.R.S. § 4054

(2020), the court entered a judgment terminating the mother’s parental rights

to the child.

        [¶4] The following findings by the court are supported by competent

evidence in the record. See In re Child of Corey B., 2020 ME 3, ¶ 3, 223 A.3d 462.


    The jeopardy order included both of the mother’s children, but only one child is involved in this
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appeal; custody of the other child was granted to that child’s father.
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      [The child] has been in State custody since July 26, 2018, for a
      present total of sixteen (16) months. The Court finds that the
      mother has not progressed from her initial situation in July of 2018.
      Although she made some progress originally, she has regressed for
      a number of months. Given the mother’s history, the Court
      concludes that it would take many months more to possibly correct
      and stabilize[] her situation such that the child could be returned
      to her care. [The child] cannot and should not have to wait for his
      mother to possibly do better.

      The Court finds that [the mother] has repeatedly made excuses
      about her conduct and promises to change throughout the life of
      this case. She now promises the Court she will do much better if
      given a few more month[s] to prove herself. The Court finds that
      her explanations of her failures to this point as deriving from a
      combination of being badly affected by the trauma of finding [the
      child’s] father dead from an overdose and her need to work to
      support herself taking up a lot of her time to be insufficient.

      The Court finds that [the mother’s] contact with the child has been
      sporadic. She has not attended or been involved with consistent
      mental health and substance abuse counseling. The Court finds
      that it would be unfair to [the child] and harmful to him to continue
      exposing him to her unpredictable and neglectful behavior.

      [¶5] The court found that the State had proved by clear and convincing

evidence that the mother was an unfit parent on two statutory grounds, namely

that the mother was unwilling or unable to protect the child from jeopardy and

that she had been unwilling or unable to take responsibility for the child within

a time reasonably calculated to meet his needs.                 See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii). The court then determined that termination of the
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mother’s parental rights was in the child’s best interest.                See id.

§ 4055(1)(B)(2)(a).

                                II. DISCUSSION

      [¶6] In order to terminate a parent’s rights without consent, the trial

court must find, by clear and convincing evidence, at least one of the statutory

bases for parental unfitness and that termination is in the child’s best interest.

See 22 M.R.S. § 4055(1)(B)(2) (2020); In re Child of Sherri Y., 2019 ME 162, ¶ 5,

221 A.3d 120. We review these factual findings for clear error and will uphold

the findings so long as any competent record evidence supports them.

In re Child of Sherri Y., 2019 ME 162, ¶ 5, 221 A.3d 120. Clear and convincing

evidence exists where “the court could reasonably have been persuaded that

the required factual findings were proved to be highly probable.” Id. (quotation

marks omitted).

      [¶7] Regarding the court’s unfitness findings, the mother contends that

the Department failed to present clear and convincing evidence that she was an

unfit parent because it relied on the absence of evidence of drug screens and

signed releases of records. We conclude that the court’s unfitness findings were

supported by clear and convincing evidence, including testimony from the

guardian ad litem, the caseworker, and the mother’s counselor, which indicated
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that the mother had failed to make sufficient progress over the course of the

sixteen months that the child was in the Department’s custody. Further, in

evaluating conflicting evidence, the court was entitled to find that the mother’s

testimony was not credible on a number of counts. See In re Children of

Tiyonie R., 2019 ME 34, ¶ 6, 203 A.3d 824 (“Although the mother offered

contradictory evidence regarding her fitness as a parent, the weight and

credibility of that evidence was for the trial court’s determination.”).

      [¶8] We review the court’s ultimate determination of best interest for an

abuse of discretion and its underlying factual findings for clear error. See

In re Child of Corey B., 2020 ME 3, ¶ 9, 223 A.3d 462. In determining a child’s

best interest, the trial court considers factors including “the needs of the child,

the child’s age, attachment to relevant persons, periods of attachment and

separation, ability to integrate into substitute placement or back into the

parent’s home, and the child’s physical and emotional needs.” In re Child of

Sherri Y., 2019 ME 162, ¶ 8, 221 A.3d 120 (quotation marks and alteration

omitted); see 22 M.R.S. § 4055(2) (2020). The court’s findings concerning these

best interest considerations were supported by record evidence, such as

evidence regarding the child’s very young age, the fact that he had been in the
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Department’s custody for the latter half of his life, and his anxiety when the

mother would schedule a visit and then fail to attend.

      [¶9] In addition, the court heard evidence demonstrating that the child

benefitted from the relative’s care. See In re Kenneth S., 2017 ME 45, ¶ 6,

157 A.3d 244 (observing that, although the question of who should adopt the

child is separate from a termination proceeding, “in conducting a best interest

analysis, the court may consider evidence that the current foster placement is

furthering the child’s permanency plan, especially where that plan is to place

the child for adoption”). The mother contends that, in conducting its best

interest analysis, the court did not properly consider a permanency

guardianship with the relative as an alternative to termination and adoption.

We discern no abuse of discretion in the court’s determination.              See

In re Cameron B., 2017 ME 18, ¶¶ 11-13, 154 A.3d 1199. The court was entitled

to rely on the guardian ad litem’s opinion that due to the child’s young age, the

certainty of adoption was in the child’s best interest and preferable to a

permanency guardianship. See In re Haylie W., 2017 ME 157, ¶ 4, 167 A.3d 576.

      The entry is:

                  Judgment affirmed.
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Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A.,
Biddeford, for appellant Mother

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


Bangor District Court docket number PC-2017-56
FOR CLERK REFERENCE ONLY
