MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision:    2020 ME 28
Docket:      Ken-19-447
Submitted
  On Briefs: February 26, 2020
Decided:     March 5, 2020

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



                                IN RE CHILD OF AMELIA C.


PER CURIAM

         [¶1] Amelia C. appeals from a judgment of the District Court (Augusta,

Nale, J.) terminating her parental rights to her child.1                         See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii), (iv) (2018). The mother argues that there was

insufficient evidence to support the court’s findings of parental unfitness. She

also asserts that the Department of Health and Human Services did not make

reasonable efforts to reunify and rehabilitate her family.                       See 22 M.R.S.

§ 4041(1-A)(A)(3) (2018). We affirm the judgment.

                                       I. BACKGROUND

         [¶2] In January 2018, the Department of Health and Human Services

filed a petition for a child protection order for the child, who at that time was

two years old. Three months later, the court (E. Walker, J.) entered agreed-to

   1 The mother has another child but that child is not the subject of this child protection action.
References in this opinion to “the child” mean the child as to whom the mother’s rights have been
terminated.
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jeopardy orders as to both parents. In January 2019, the Department filed a

petition to terminate the mother’s and father’s parental rights.2          After a

two-day hearing in May and September 2019, the court (Nale, J.) entered a

judgment terminating the parental rights of both parents.3

          [¶3] The court made the following findings of fact, which are supported

by competent record evidence. See In re Children of Danielle M., 2019 ME 174,

¶ 6, 222 A.3d 608.

          [T]he minor child has been in State custody approximately 21
          month[s]. The child is 44 months old. . . . [T]he mother has made
          no significant effort to correct the situation which led to the
          jeopardy finding.

                . . . [S]ince the Jeopardy order, the mother has been
          discharged three times . . . after attempting to complete the Maine
          Enhanced Parenting Program. The discharges were all for non-
          attendance. [The] [m]other has failed to maintain consistent
          contact with her providers, including the [Department] and her
          adult case manager; her lack of contact has caused suspension of
          her visits with her [child] for 3 plus weeks; [the] mother’s
          participation in the drug testing line was unsuccessful because of
          her failure to follow through. Because [of the] mother’s inability
          to participate in her [intensive outpatient program], she was
          offered individualized substance abuse treatment where she
          struggled to attend as scheduled. The mother’s signed medication
          agreement was suspended for her failure to maintain contact with
          the [D]epartment. Subsequently, [the] mother signed a second
          medication agreement only to be discharged 6 weeks later for

    2   An amended petition was filed on February 1, 2019.
    3   The child’s father did not appeal the court’s judgment.
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failing to be consistent with her call in schedule. [The] [m]other
did access the . . . [s]helter and all of the programs through the
shelter but did not adhere to the evening curfew. [The] [m]other
did not spend a night at the shelter. [The] [m]other continued to
reside with [the child’s father].

     . . . The mother was to participate in drug therapy for a
5 week period. The mother attended 14 of 24 sessions. [The]
[m]other tested positive for cocaine 3 of the 4 tests given. [The]
[m]other did not complete the program.

       . . . [F]or the entire first year that her special needs [child]
was in State care [the] mother failed to engage with the
[Department], the services being offered or have any meaningful
contact with her [child]. The minor child has been in State care
since January 2018. . . . [T]he mother has only recently (April
2019) started being involved with mother-child visits. These
visits, after nearly two years of separation[,] have progressed to
two weekly supervised visits.

       . . . [The] mother attended [mental health] counselling for 4
months, one visit each week. The mother’s last visit was July
2019. The mother was discharged from the program after her
failure to show for the last 3 scheduled visits.

      ....

      There is much left for the mother to do to alleviate jeopardy.
She has [not] yet addressed her mental health issues in any
meaningful way. Since being discharged from her mental health
sessions for her failure to stay engaged, she has not addressed the
mental health issues which placed her child in jeopardy.

       Although the mother has made some progress in the past
few months regarding her substance abuse she has never been
able to sustain the effort to address her mental health issues and
to truly separate from [the child’s father].
4

               ....

                Based on the evidence before it, the court finds by clear and
         convincing evidence, that [the mother] meets two[4] of the four
         definitions of parental unfitness. Her history demonstrates that
         she is unable or unwilling to protect her child from jeopardy or to
         take responsibility for [the child] and these circumstances are
         unlikely to change within a time which is reasonably calculated to
         meet her [child’s] needs. She has failed to make a good faith effort
         to rehabilitate and reunify with her [child]; not only has she been
         unable or unwilling to address her mental health issues, she
         elected to stay with her abuser long after the Summary
         Preliminary Order and the Jeopardy order addressed the
         relationship as an impediment to her reunification with her
         [child].

                                     II. DISCUSSION

A.       The Mother’s Unfitness

         [¶4] The mother asserts that there was insufficient evidence to support

the court’s judgment terminating her parental rights.

         [¶5] “In order to terminate parental rights, the court must find, by clear

and convincing evidence, at least one of the four statutory grounds of parental

unfitness.”     In re Child of Katherine C., 2019 ME 146, ¶ 2, 217 A.3d 68

(alterations omitted) (quotation marks omitted). “We will set aside a finding

of parental unfitness only if there is no competent evidence in the record to


     4Although the court found that the mother meets “two of the four definitions of parental
unfitness,” it discusses three grounds on which it found parental unfitness. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii), (iv) (2018).
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support it, if the fact-finder clearly misapprehends the meaning of the

evidence, or if the finding is so contrary to the credible evidence that it does

not represent the truth and right of the case.” Id. (quotation marks omitted).

“Evidence is clear and convincing when the trial court could have reasonably

been persuaded on the basis of evidence in the record that the required

factual findings were highly probable.” In re Child of Corey B., 2020 ME 3,

¶ 4, --- A.3d --- (quotation marks omitted).

       [¶6] Viewing the record in its entirety, we conclude that competent

evidence in the record supports the court’s finding that the mother is

parentally unfit. See In re Children of Danielle M., 2019 ME 174, ¶ 14, 222 A.3d

608.

B.     Reunification and Rehabilitation Services

       [¶7] The mother further contends that the court erred in finding that

the Department had made reasonable efforts to reunify and rehabilitate her

family. See 22 M.R.S. § 4041(1-A)(A)(3).

       [¶8]   “The Department’s compliance with its rehabilitation and

reunification duties as outlined in section 4041 does not constitute a discrete

element requiring proof in termination proceedings, nor does the failure of

the Department to comply with section 4041 preclude findings of parental
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unfitness.” In re Doris G., 2006 ME 142, ¶ 17, 912 A.2d 572. “Instead, the

court should consider the lack of reunification efforts as one of many factors

in evaluating the parent’s fitness.” In re Daniel H., 2017 ME 89, ¶ 15, 160 A.3d

1182.

        [¶9]       Here, the court specifically found that the mother failed to

consistently attend different types of programming provided by the

Department such as drug therapy, mental health counseling, and parenting

classes. The court also found that when one type of substance use treatment

was unsuccessful, the mother was offered individualized treatment, which she

also did not consistently attend. Therefore, we cannot conclude that the

Department failed to “[m]ake good faith efforts to cooperate with the parent

in the pursuit of the plan.” 22 M.R.S. § 4041(1-A)(A)(3).

        The entry is:

                           Judgment affirmed.



David Paris, Esq., Bath, 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


Augusta District Court docket number PC-2018-3
FOR CLERK REFERENCE ONLY
