MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 5
Docket:   Ken-19-262
Argued:   December 5, 2019
Decided:  January 9, 2020

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.



                                  ADOPTION BY STEFAN S.


JABAR, J.

         [¶1] The father of two children appeals from judgments of the Kennebec

County Probate Court (E. Mitchell, J.) terminating his parental rights in

anticipation of adoptions pursuant to 18-A M.R.S. § 9-204(b) (2018); 22 M.R.S.

§ 4055(1)(A)(2), (B)(2)(a), and (B)(2)(b)(ii) (2018).1 He argues on appeal that

the record contains insufficient evidence to support the court’s findings that he

is an unfit parent and that termination of his parental rights is in his children’s

best interests. See 18-A M.R.S. § 9-204(b) (2018); 22 M.R.S. § 4055(1)(B)(2).

He also contends that the court erred as a matter of law by reaching these two




   1 The Maine Probate Code was recently repealed and recodified. P.L. 2017, ch. 402. This matter
was fully litigated prior to the effective date of the recodified Probate Code. Therefore, all Probate
Code citations in this opinion are to the repealed 2018 version, codified in Title 18-A of the Maine
Revised Statutes. The relevant text is substantively unchanged in the new codification. See P.L. 2017,
ch. 402, § A-2 (codified at 18-C M.R.S. §§ 9-103, 9-204, 9-302 (2019)); P.L. 2019, ch. 417, § A-103
(establishing effective date of September 1, 2019).
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findings in an improper sequence, and by failing to consider open adoptions

that would have left his parental rights intact. We affirm the judgments.

                               I. BACKGROUND

      [¶2] On July 30, 2018, the mother and stepfather of the children filed

petitions to adopt the children the Kennebec County Probate Court, seeking to

establish the stepfather as the children’s legal father pursuant to 18-A M.R.S.

§ 9-103 (2018). Soon thereafter, the mother filed petitions to terminate the

father’s parental rights pursuant to 18-A M.R.S. § 9-204 (2018), thereby freeing

the children for adoption by the stepfather. The father was duly served with

notice of the petitions to terminate his parental rights, to which he registered

his objection. The court held a one-day hearing on the matter on May 22, 2019.

On June 10, 2019, the court entered judgments terminating the father’s

parental rights with regard to the children. The father did not file a motion for

further findings of fact and conclusions of law, M.R. Civ. P. 52, or any other

post-trial motion.   The father timely appealed from both orders.           M.R.

App. P. 2B(c)(1).

      [¶3] The following facts are drawn from the court’s explicit findings and

the trial record. See Guardianship of Ard, 2017 ME 12, ¶ 15, 154 A.3d 609 (“In

the absence of a motion for findings of fact, see M.R. Civ. P. 52(a), we assume
                                                                                  3

that the court found all of the facts needed to support its decision if those facts

are supported by competent evidence.” (quotation marks omitted)). The older

child was born in 2006 and is developmentally disabled. He attends public

school, where he receives intensive special education services as part of an

Individualized Education Program (IEP). The younger child was born in 2009

and also has been diagnosed with genetic and behavioral disorders. He attends

a public school where his education is directed by an IEP and he receives

one-on-one supervision at all times during the school day.             He exhibits

aggressive behaviors and is sometimes violent.

      [¶4] The mother and father divorced in 2012, and a parental rights and

responsibilities order was issued in conjunction with the divorce, awarding

primary residence to the mother and contact rights to the father. In practice,

the amount of time that each child spent with the father varied over time.

Beginning in 2015, the father’s contact with the children declined gradually.

The father has not seen the children since July 2016, and has had no

communication with the children since May 2018. This lack of contact is at least

partially the result of the mother’s conduct—the court found that she

“wrongfully made it difficult for [the father] to contact her.” Since at least 2015,

the children have resided primarily with the mother and stepfather. The
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stepfather is consistently involved in caring for the children and interacts on a

daily basis with their educational and medical providers.

      [¶5] The two orders issued by the court are mirror images of one another

except for the relevant child’s name. The court made the following findings

with regard to both children:

      [T]he termination of the parental rights of [the father] thereby
      freeing the child for adoption by [the stepfather] would be in the
      child’s best interests. This Court also specifically finds that [the
      father’s] failure to make any attempt to establish a family
      relationship with the child, or contribute in any way toward the
      child’s financial support, constitutes clear and convincing evidence
      that [the father] has been unwilling or unable to take responsibility
      for the child within a time reasonably calculated to meet the child’s
      needs.

      [¶6] The court also found that “[the father] has not taken the necessary

steps in a reasonable time frame to care for his son with highly special needs

well known to him. He has been absent from his life for over two years and

owes over $30,000 in child support.” Although the court noted that the mother

had wrongfully made it difficult for the father to contact her or the children, the

court found that the father “made no effort to legally enforce his rights or to

contact [the child’s] medical providers or his school.”         The medical and

educational professionals who worked with the children “had never met [the

father].” The court stated that both children “will need special care and
                                                                                5

attention for the rest of [their lives],” and that the father “has done nothing to

assist with this challenge and did not demonstrate a valid reason for his

absence.”

                                II. DISCUSSION

A.    Legal Standard

      [¶7] “When a private individual invokes court action to terminate

parental rights . . . the court engages in state action that implicates the

constitutionally protected liberty interest a parent has in parenting his or her

child free from state interference.” Adoption of Isabelle T., 2017 ME 220, ¶ 3,

175 A.3d 639. These protections are not absolute. Id. ¶¶ 5-6. “A state may

interfere with a parent’s fundamental right to parent a child when the court

makes a finding, by clear and convincing evidence, that the parent is unfit and

the child’s best interest will be served by state intervention to avoid harm to

the child.” Id. ¶ 6.

      [¶8]    Petitions for private adoptions in Maine Probate Courts are

governed by the Adoption Act, 18-A M.R.S. §§ 9-101 to 9-315 (2018). The

Adoption Act incorporates by reference 22 M.R.S. §§ 4050-4059 (2018), the

statutory framework governing termination in child protection proceedings.

18-A M.R.S. § 9-204(b) (2018).          In Title 18-A adoption proceedings,
6

“termination of parental rights occurs prior to the adoption in order to enable

the child . . . to be legally available for adoption.”2 Adoption of Isabelle T., 2017

ME 220, ¶ 9, 175 A.3d 639. In determining whether to terminate parental

rights, the court engages in a two-step analysis, first making a finding of

parental unfitness using the factors outlined in 22 M.R.S. § 4055(1)(B)(2)(b),

and only then determining whether termination is in the best interests of the

child, 22 M.R.S. § 4055(1)(B)(2)(a). See Adoption of Shayleigh S., 2018 ME 165,

¶ 17, 198 A.3d 791.

        [¶9] A court’s finding of unfitness must be grounded in one or more of

the following findings:

        (i) The parent is unwilling or unable to protect the child from
        jeopardy and these circumstances are unlikely to change within a
        time that is reasonably calculated to meet the child’s needs;

        (ii) The parent has been unwilling or unable to take responsibility
        for the child within a time that is reasonably calculated to meet the
        child’s needs; [or]

        (iii) The child has been abandoned; . . . .

22 M.R.S. § 4055 (1)(B)(2)(b).



   2 The Probate Court, according to statute, cannot grant an adoption petition absent the consent of

each of the adoptee’s living parents. 18-A M.R.S. § 9-302(a)(2) (2018). Such consent is not required,
however, from a parent whose “rights have been terminated according under Title 22, chapter 1071,
subchapter VI.” 18-A M.R.S. § 9-302(b)(2). Thus, termination of a nonconsenting parent’s parental
rights is often a prerequisite to adoption under Title 18-A. Such is the case here. See infra Part II(D).
                                                                                7

      [¶10] We review factual findings regarding whether termination is in the

best interest of a child for clear error. Adoption of Isabelle T., 2017 ME 220,

¶ 30, 175 A.3d 639. A finding of parental unfitness is also reviewed for clear

error, and we will find such an error “only if there is no competent evidence in

the record to support it; if the fact-finder clearly misapprehended the meaning

of the evidence; or if the finding is so contrary to the credible evidence that it

does not represent the truth of the case.” Id. “When the burden of proof at trial

is clear and convincing evidence, our review is to determine whether the

fact-finder could reasonably have been persuaded that the required findings

were proved to be highly probable.” Adoption of Shayleigh S., 2018 ME 165,

¶ 14, 198 A.3d 791. The court’s “ultimate decision to terminate parental rights”

is reviewed for an abuse of discretion. Adoption of Isabelle T., 2017 ME 220,

¶ 30, 175 A.3d 639.

B.    Sufficiency of the Evidence

      [¶11] The father challenges the sufficiency of the evidence underpinning

the trial court’s findings that he was unfit and that termination would be in the

children’s best interests. Contrary to his contentions, the record evidence is

such that the trial court “could reasonably have been persuaded that the

required findings were proved to be highly probable.” Id. ¶ 33. The court did
8

not err in reaching its findings, nor did it abuse its discretion in its decision to

terminate the father’s parental rights. Adoption of Shayleigh S., 2018 ME 165,

¶ 14, 198 A.3d 791; Adoption of Isabelle T., 2017 ME 220, ¶ 30, 175 A.3d 639.

      1.    Finding of Unfitness

      [¶12] Record evidence demonstrates that the father’s efforts to maintain

contact with his two children have been sporadic and ineffective. Prior to 2016,

he had regular contact with the children and took advantage of his contact

rights. After March 2016, he had virtually no in-person contact with the

children and any phone contact was short and intermittent. After June 2018,

he had no direct contact with the children. His efforts to maintain contact were

limited to contacting the mother. What little indirect contact did occur was a

product of the efforts of the paternal grandparents. The father moved to Florida

in December 2016, to seek employment and work on his sobriety, staying for

nearly two years.

      [¶13] The mother imposed roadblocks to the father contacting the

children, severely curtailing the father’s contact after he was arrested in

March 2016. She also moved to a new address in October 2017, and changed

her phone number in June 2018.             The trial court acknowledged the

wrongfulness of this conduct and took it into consideration in its orders.
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However, the father’s record of minimal contact with the children predated the

imposition of these roadblocks. By mid-2015, his contact with the children had

declined to, at most, one overnight visit per weekend. Further, after the mother

cut off his contact, the father did not attempt to enforce his rights through the

judicial system or otherwise try to pursue contact. He did not contact the

maternal grandparents, the children’s schools or medical providers, or the

stepfather.

      [¶14] The court found that both children will need special care and

attention for the rest of their lives, and the record demonstrates that their

disabilities render change, uncertainty, and transition extremely difficult for

both children. The trial court reasonably could have been persuaded that it was

highly probable the father was either unwilling or unable to take responsibility

for the children in a time reasonably calculated to meet their needs.

      2.      Finding Regarding the Children’s Best Interest

      [¶15] The significant special needs of the children are also relevant to

the court’s second core finding—that termination of the father’s parental rights

would be in the children’s best interests. 22 M.R.S. § 4055(1)(B)(2)(a). The

best interest factors considered in a Title 18-A proceeding are the same as those

in a Title 22 proceeding:
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         In considering the children’s best interests, the court is required to
         consider the needs of the children, including the children’s age, the
         children’s attachments to relevant persons, periods of attachments
         and separation, the children’s ability to integrate into a substitute
         placement or back into their parent’s home and the children’s
         physical and emotional needs. Also relevant to the best interests
         determination is the harm the children may suffer if the parent’s
         rights are not terminated, as well as the children’s need for
         permanence and stability.

Adoption of Isabelle T., 2017 ME 220, ¶ 49, 175 A.3d 639 (quotation marks

omitted) (alterations omitted).

         [¶16] The trial court considered the needs of each child, their respective

ages and relationships with their parents and step-father, the time spent with

the parties, and their ability to integrate into the mother and stepfather’s home.

The record evidence shows that both children, and the younger child especially,

require consistency, routine, and predictability in order to function well in the

home and in school. Strong coordination among the caregivers, educators, and

medical providers is necessary in order for the children to coexist with their

family members and peers, and to progress toward their social and educational

goals.     The evidence shows that the father has not contributed to those

coordinated efforts, but that the stepfather has. The evidence further shows

that sporadic contact with the father interferes with the children’s routine and

progress. With regard to the younger child, changes to routine correlate with
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increased aggressive behaviors. In light of the evidence presented at trial, the

trial court could reasonably have been persuaded that the required findings

were proved to be highly probable, and thus did not clearly err in determining

termination to be in the best interest of each child.

      [¶17] Because the trial court did not clearly err in its determinations that

the father has been unwilling or unable to take responsibility for the two

children within a time reasonably calculated to meet their needs and that

termination was in the best interest of each child, the trial court did not abuse

its discretion in terminating the father’s parental rights.

C.    The Court’s Sequence of Findings

      [¶18] The father next argues that the trial court erred as a matter of law

by first determining that termination was in the best interest of each child and

then finding that he has been unwilling or unable to take responsibility for the

children within a time that is reasonably calculated to meet their needs. The

father raises this challenge for the first time on appeal. See supra Part I.

Therefore, we review for obvious error. In re Joshua B., 2001 ME 115, ¶ 9-10,

776 A.2d 1240; see Alexander, Maine Appellate Practice, § 402(a) at 310 (5th

ed. 2018); see also MP Assocs. v. Liberty, 2001 ME 22, ¶ 18, 771 A.2d 1040.
12

Obvious error is that which deprives a party of a fair trial or otherwise treats a

party unjustly. See Shayleigh S., 2018 ME 165, ¶ 18, 198 A.3d 791.

      [¶19] Title 22 § 4055(1)(B)(2) lists two findings as prerequisites to a

termination of parental rights: first, that termination is in the best interest of

the child; and second, that the parent has demonstrated unfitness in one of four

ways. 22 M.R.S. § 4055(1)(B)(2). Notwithstanding the order in which these

two findings are laid out in the statute, the constitution requires that “a trial

court must find parental unfitness before it proceeds to consider the best

interest of the children.” Adoption of Shayleigh S., 2018 ME 165, ¶ 17, 198 A.3d

791; see also Adoption of Hali D., 2009 ME 70, ¶¶ 4-5, 974 A.2d 916; In re

Michelle W., 2001 ME 123, ¶ 11, 777 A.2d 283.

      [¶20] In both of the trial court’s judgments, it first stated that it found

termination to be in the child’s best interests. Then, in a separate sentence, the

trial court found that the father “has been unwilling or unable to take

responsibility for the child in a time reasonably calculated to meet the child’s

needs.” However, the language of the trial court’s order does not necessarily

suggest that it made a finding as to the children’s best interests before reaching

the question of fitness; the record demonstrates that the trial court clearly

understood that the two findings were distinct and that a finding as to fitness
                                                                               13

must be reached before it could proceed to a best interest analysis. At trial, the

court stated, “[Y]ou don’t even get [to] the best interest of the child standards

until you deal with the termination standard.”

      [¶21] The trial court’s order and the record evidence do not support a

conclusion that the father was denied a fair trial or subjected to a serious

injustice. The trial court made all required findings, correctly applying the

standard of clear and convincing evidence to both the best interest prong and

the fitness prong.    The trial court understood that these findings were

independent of one another and a finding as to one should not inform the

finding as to the other. Therefore, any mistake made by the trial court in

arranging its findings within the termination orders was not obvious error. Cf.

In re Michelle W., 2001 ME 123, ¶¶ 8, 11, 777 A.2d 283; In re Joshua B., 2001 ME

115, ¶ 8, 776 A.2d 1240.

D.    Necessity of Termination

      [¶22] Finally, the father argues that the trial court erred in concluding

that his parental rights needed to be terminated in order for the stepfather to

adopt the children. Instead, the father argues, the trial court could have granted

the adoption petition without terminating his rights, leaving the children with
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three legal parents.            This argument reflects a misunderstanding of

Title 18-A adoption proceedings and is not persuasive.

         [¶23] The Probate Court is a court of limited jurisdiction. Marin v. Marin,

2002 ME 88, ¶ 9, 797 A.2d 1265. The Adoption Act grants the Probate Court

jurisdiction over adoption petitions. 18-A M.R.S. § 9-103(1)(a) (2018); see also

In re Melanie S., 1998 ME 132, ¶ 8, 712 A.2d 1036. Before the court may grant

a petition for adoption, however, written consent is required from each of the

adoptee’s living parents, unless an exception is satisfied.                         18-A M.R.S.

§§ 9-302(a)(2), (b) (2018). A parent’s consent is not required if his or her

parental rights have been terminated pursuant to 22 M.R.S. §§ 4050-4059

(2018).3 Limited by its statutory mandate, the Probate Court is left with two

choices in the face of a nonconsenting parent: deny the petition for adoption

because the petitioner has failed to prove that the nonconsenting parent is unfit

or, if the petitioner has established that the parent is unfit and that adoption

would be in the child’s best interest, terminate the nonconsenting parent’s

parental rights, thereby obviating the need for the parent’s consent. See

Adoption of Isabelle T., 2017 ME 220, ¶ 12, 175 A.3d 639 (noting that the



    The Title 22 termination procedures are incorporated by reference in 18-A M.R.S. § 9-204, which
     3

authorizes the Probate Court to terminate parental rights in conjunction with an adoption petition.
                                                                                15

Adoption Act does not authorize rehabilitation or reunification efforts prior to

or instead of termination of parental rights).        We review a trial court’s

determination of its own authority de novo. Bonner v. Emerson, 2014 ME 135,

¶ 9, 105 A.3d 1023.

      [¶24] Here, the father was a living parent of both prospective adoptees

and, as such, the trial court could not grant either petition without his consent,

which the father did not provide. 18-A M.R.S. § 9-302(a)(2). The mother filed

petitions to terminate the father’s parental rights, and the trial court granted

those petitions. Only after the court determined that the father’s consent was

not legally necessary—because his rights had been terminated—could it

proceed to consider the adoption petitions.

      [¶25] The trial court did not have the authority to pursue the third option

described by the father: an open adoption granted with his parental rights

intact but without his written consent. Although the Maine Parentage Act

contemplates more than two parents, the Adoption Code does not. Title

18-C M.R.S. §9-308 states that the effect of an adoption is to “divest[] the parent

and child of all legal rights, privileges, immunities, duties and obligations to

each other as parent and child, except an adoptee inherits from the adoptee’s

former parents if provided in the adoption decree.” 18-C M.R.S. § 9-308(6)
16

(2019) (emphasis added). The Code contains no provision for parents who

wish to “consent” to the adoption of their children by someone else, unless

those consents are accompanied by voluntary termination of parental rights.

        [¶26] The trial court did not err in failing to consider an adoption not

authorized by law.

        The entry is:

                           Judgments affirmed.



Caleb J. Gannon, Esq., and John E. Baldacci, Jr., Esq. (orally), Lipman & Katz,
Augusta, for appellant father

Maryellen Sullivan, Esq., and Joe Lewis, Esq. (orally), Port City Legal, Portland,
for appellees mother and stepfather


Kennebec County Probate Court docket numbers A2018-4689 and A2018-4690
FOR CLERK REFERENCE ONLY
