MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	57	
Docket:	     	And-17-476	
Submitted		
  On	Briefs:	 April	10,	2018	
Decided:	     April	26,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              IN	RE	CHILD	OF	KELCIE	L.	
	
	
PER	CURIAM	

	      [¶1]		The	mother	and	father	appeal	from	a	judgment	of	the	District	Court	

(Lewiston,	Dow,	J.)	terminating	their	parental	rights	to	their	daughter	pursuant	

to		22	M.R.S.	§	4055(1)(A)(1)(a),	and	(B)(2)(a),	(b)(i),	(ii),	and	(iv)	(2017).		Both	

parents	challenge	the	sufficiency	of	the	evidence	supporting	the	court’s	findings	

of	unfitness.		In	addition,	the	father	challenges	the	court’s	determination	that	

termination	of	his	parental	rights	is	in	the	child’s	best	interest.		The	evidence	

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

the	judgment.			

                                    I.		BACKGROUND	

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

and	convincing	evidence,	that	both	parents	are	unwilling	or	unable	to	protect	

the	 child	 from	 jeopardy	 or	 take	 responsibility	 for	 her	 in	 a	 time	 reasonably	

calculated	to	meet	her	needs,	that	both	parents	had	failed	to	make	a	good	faith	
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effort	to	rehabilitate	and	reunify	with	the	child,	and	that	termination	of	both	

parents’	parental	rights	is	in	the	child’s	best	interest.		See	id.;	In	re	Haylie	W.,	

2017	 ME	 157,	 ¶	2,	 167	 A.3d	 576.	 	 The	 court	 based	 its	 conclusion	 on	 the	

following	findings	of	fact:		

               [T]he	 Department	 has	 made	 reasonable	 efforts	 to	
      rehabilitate	 and	 reunify	 the	 family,	 and	 has	 made	 reasonable	
      efforts	 to	 identify	 and	 pursue	 an	 alternative	 permanency	 plan.		
      Those	 efforts	 include:	 safety	 assessment;	 rehabilitation	 and	
      reunification	planning;	family	team	meetings;	supervised	visitation	
      for	 the	 parents;	 kinship	 placement	 foster	 care;	 transportation	
      assistance;	 referrals	 for	 the	 parents	 to	 case	 management,	
      individual	 counseling,	 medication	 management,	 and	 parenting	
      education;	 parental	 assessment	 for	 the	 mother,	 and	 DHHS	 social	
      work	services.	
      	
      .	.	.	.	
      	
               [The	mother]	has	not	consistently	participated	in	medication	
      management	 or	 mental	 health	 counseling.	 	 These	 services	 would	
      have	been	very	important	for	reunification.	.	.	.		
      	
               [The	mother’s]	visits	with	the	child	do	not	go	very	well.		She	
      was	regularly	prompted	to	engage	with	the	child,	but	she	remained	
      quite	withdrawn.	.	.	.		
      	
               [The	 mother]	 is	 the	 victim	 of	 significant	 violence	 and	
      intimidation	by	[the	father].	.	.	.		They	remain	together	as	a	couple,	
      living	together	in	a	two-bedroom	apartment	.	.	.	.		[The	mother]	has	
      chosen	[the	father]	over	[the	child].		In	the	four	months	prior	to	the	
      TPR	 trial,	 she	 had	 declined	 to	 visit	 with	 [the	 child]	 because	 [the	
      father’s]	visits	had	been	suspended.			
      .	.	.	.	
      	
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          The	 father	 failed	 to	 participate	 in	 the	 [Court	 Ordered	
    Diagnostic	Evaluation],	which	would	have	been	helpful	to	the	Court	
    in	assessing	his	mental	health,	cognitive	functioning,	and	parental	
    capability.		However,	the	TPR	trial	itself	provided	the	Court	some	
    insight	 into	 the	 father’s	 behavior	 .	 .	 .	 .	 	 The	 father	 is	 nearly	
    unmanageable	 in	 a	 courtroom.	 	 Despite	 warnings	 from	 the	 Court	
    and	 attentive,	 professional	 coddling	 by	 his	 attorney,	 the	 father	
    repeatedly	disrupted	the	proceedings	with	words	and	gestures.		He	
    is	aggressive,	disagreeable,	and	paranoid.	.	.	.		
	
           [The	father]	has	not	consistently	participated	in	medication	
    management.	.	.	.		He	has	not	consistently	engaged	in	counseling.		
    	
           [The	 father]	 is	 reported	 to	 be	 quite	 attentive	 to	 [the	 child]	
    during	visits,	and	he	loves	her.		He	has	a	certain	warmth	towards	
    the	 child,	 and	 he	 tries	 to	 be	 a	 good	 dad.	 	 Still,	 he	 says	 the	 most	
    outlandish	and	despicable	things	.	.	.	.		
    	
           During	 [one]	 visit,	 .	 .	 .	 [the	 father]	 tried,	 while	 he	held	 [the	
    child]	 in	 the	 car	 seat,	 to	 incite	 [the	 maternal	 grandfather]	 to	 hit	
    him.	.	.	.		[The	father’s]	behavior	at	that	visit	resulted	in	suspension	
    of	 the	 visits	 for	 four	 months.	 	 Visits	 resumed	 in	 May,	 but	 were	
    suspended	 again	 after	 two	 visits	 because	 [the	 father]	 had	 been	
    arrested	again	for	a	new	aggravated	assault,	a	random	attack	on	a	
    stranger	 that	 left	 the	 stranger	 with	 a	 broken	 jaw.	 	 That	 charge	
    remains	 pending.	 	 [The	 mother]	 was	 allowed	 to	 visit,	 but	 she	
    declined,	in	solidarity	with	[the	father].		There	have	been	no	visits	
    by	either	parent	with	the	child	in	the	four	months	prior	to	the	trial.			
    	
           [The	 father]	 is	 violent	 towards	 [the	 mother].	 	 He	 told	 [the	
    maternal	grandfather,	“I	almost	killed	your	daughter	.	.	.	.		I	choked	
    her	out	to	the	point	where	I	almost	couldn’t	bring	her	back,”	and	he	
    described	 strangling	 then	 reviving	 her	 by	 slapping	 her	 and	
    splashing	water	on	her.			
    	
           The	 Court	 now	 turns	 to	 the	 issue	 of	 the	 child’s	 best	
    interest.	.	.	.		
    	
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             The	 mother	 had	 not	 received	 prenatal	 care	 during	 the	
      pregnancy,	and	she	used	marijuana	throughout.		She	did	not	inform	
      her	 mental	 health	 medication	 prescriber	 [of]	 her	 pregnancy,	 and	
      she	 had	 prescriptions	 for	 Ritalin,	 Klonopin,	 Seroquel,	 and	 Zoloft	
      during	the	pregnancy.			
      	
             [The	 child]	 has	 been	 in	 the	 care	 of	 her	 foster	 parents,	 her	
      maternal	 grandfather	 and	 step-grandmother,	 since	 her	 release	
      from	[the	hospital]	at	19	days	old	.	.	.	.		
      	
             .	.	.	[The	child]	needs	a	calm	and	soothing	environment,	and	
      the	foster	parents	provide	that.	.	.	.		
      	
             [The	 child]	 absolutely	 needs	 permanency.	 	 She	 has	 been	 in	
      her	 grandparents’	 care	 her	 whole	 life,	 and	 her	 parents	 are	 not	
      substantially	closer	to	reunifying	with	her	now	than	they	were	at	
      the	inception	of	this	case.			
	
                                II.		DISCUSSION	

      [¶3]		We	review	the	trial	court’s	factual	findings	that	a	parent	is	unfit	and	

that	termination	of	parental	rights	is	in	the	child’s	best	interest	for	clear	error	

and	 the	 ultimate	 decision	 to	 terminate	 parental	 rights	 for	 an	 abuse	 of	

discretion.		Adoption	of	Isabelle	T.,	2017	ME	220,	¶	30,	175	A.3d	639.			

A.	   Unfitness	Findings	

      [¶4]		Both	parents	argue	that	there	was	insufficient	evidence	to	support	

the	 court’s	 findings	 of	 parental	 unfitness.	 	 The	 mother	 contends	 that	 the	

Department	 failed	 to	 meet	 its	 obligations	 pursuant	 to	 22	 M.R.S.	 §	4041(1-A)	

(2017)	and	that	this	failure	precludes	any	finding	of	unfitness.		Contrary	to	the	
                                                                                       5	

mother’s	argument,	the	evidence	in	the	record	fully	supports	the	court’s	finding	

that	the	Department	satisfied	its	statutory	obligation.		In	examining	all	relevant	

factors,	there	is	sufficient	evidence	to	support	the	court’s	finding,	by	clear	and	

convincing	evidence,	of	at	least	one	ground	of	unfitness	as	to	the	mother.		See	

In	re	Aliyah	M.,	2016	ME	106,	¶	5,	144	A.3d	50.			

      [¶5]	 	 Although	 the	 father	 contends	 that	 he	 made	 progress	 towards	

rehabilitation,	 the	 evidence	 was	 sufficient	 to	 support	 the	 court’s	 finding,	 by	

clear	and	convincing	evidence,	of	at	least	one	ground	of	his	parental	unfitness.		

See	In	re	Hannah	S.,	2016	ME	32,	¶	13,	133	A.3d	590.			

B.	   Best	Interest	Determination	

      [¶6]	 	 The	 father	 also	 challenges	 the	 court’s	 determination	 that	

termination	of	his	parental	rights	is	in	the	child’s	best	interest.		He	argues	that	

the	 court	 should	 have	 ordered	 a	 permanency	 guardianship	 instead	 of	

terminating	his	 parental	rights.		See	22	 M.R.S.	§	 4038-C	(2017).		 Because	the	

father	 did	 not	 argue	 for	 a	 permanency	 guardianship	 at	 trial,	 we	 review	 the	

court’s	decision	not	to	grant	a	permanency	guardianship	for	obvious	error.		See	

In	re	L.T.,	2015	ME	94,	¶¶	19-20,	120	A.3d	650.			

      [¶7]		“Permanency	is	a	dynamic	concept	that	must	be	fashioned	from	the	

actual	circumstances	and	needs	of	the	child	or	children	before	the	court.”		In	re	
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Marcus	S.,	2007	ME	24,	¶	10,	916	A.2d	225.		Here,	the	court	found	that	the	father	

avoided	 evaluation	 and	 treatment,	 used	 outlandish	 and	 despicable	 language	

regarding	the	child	during	visits,	was	violent	in	the	child’s	presence,	and	was	so	

unable	 to	 control	 himself	 at	 trial	 that	 the	 court	 had	 to	 arrange	 for	 him	 to	

participate	 from	 a	 separate	 courtroom.	 	 The	 court	 also	 found	 that	 the	 child	

“absolutely	 needs	 permanency”	 and	 requires	 “a	 calm	 and	 soothing	

environment.”		Given	the	father’s	circumstances	and	the	specific	needs	of	the	

child,	 the	 court	 did	 not	 commit	 obvious	 error	 when	 it	 determined	 that	

termination	of	the	father’s	parental	rights,	with	a	permanency	plan	of	adoption,	

is	in	the	child’s	best	interest.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	      	     	    	
	
Heather	Gonzales,	Esq.,	Strike,	Gonzales	&	Butler	Bailey,	Portland,	for	appellant	
mother	
	
Richard	Charest,	Esq.,	Lewiston,	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	
	
	
Lewiston	District	Court	docket	number	PC-2016-48	
FOR	CLERK	REFERENCE	ONLY	
