MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	159	
Docket:	      Wal-17-65	
Submitted	
  On	Briefs:	 June	29,	2017	
Decided:	     July	18,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                          IN	RE	ZOEY	H.	
	

GORMAN,	J.		

	        [¶1]	 	 The	 mother	 of	 Zoey	 H.	 appeals	 from	 a	 judgment	 of	 the	 District	

Court	(Belfast,	Worth,	J.)	terminating	her	parental	rights	to	her	child	pursuant	

to	 22	M.R.S.	 §	4055(1)(A)(1)	 and	 (B)(2)(a),	 (b)(i)-(iv)	 (2016).1	 	 She	 argues	

that	 she	 was	 deprived	 of	 due	 process	 because	 the	 court	 terminated	 her	

parental	 rights	 after	 affording	 her	 insufficient	 notice	 of	 the	 termination	

hearing	and	because	the	court	placed	undue	weight	on	the	earlier	termination	

of	her	rights	to	another	child.		The	mother	also	asserts	that	the	court’s	findings	

are	 insufficient	 as	 a	 matter	 of	 law	 because	 the	 court	 adopted	 the	 proposed	

findings	 of	 the	 Department	 of	 Health	 and	 Human	 Services	 without	 material	

alteration.2	 	 We	 will	 address	 each	 of	 the	 mother’s	 contentions	 below	 but,	


    1		The	father’s	parental	rights	to	the	child	were	terminated	in	the	same	order.		He	is	not	a	party	

to	this	appeal,	however.			
    2	
    	 Additionally,	 the	 mother	 contends	 that	 the	 court’s	 failure	 to	 hold	 a	 timely	 permanency	
planning	 hearing	 after	 ordering	 the	 Department	 to	 cease	 reunification	 efforts,	 see	 22	 M.R.S.	
2	

because	 we	 conclude	 that	 the	 mother	 received	 due	 process	 and	 because	 the	

evidence	 supports	 the	 court’s	 findings	 and	 discretionary	 determination,	 we	

affirm	the	judgment.		

	        [¶2]	 	 The	 court	 determined	 that	 the	 mother	 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,	

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

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

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

child	 pursuant	 to	 22	 M.R.S.	 §	 	 4041	 (2016).	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b)(i)-(ii),	 (iv).	 	 It	 also	 determined	 that	 the	 mother	 has	

abandoned	 the	 child.	 	 See	22	 M.R.S.	 §	4055(1)(B)(2)(b)(iii).	 	 These	

determinations	 are	 unquestionably	 supported	 by	 the	 court’s	 findings	 of	 fact,	

which	are	in	turn	supported	by	competent	record	evidence.	

	        [¶3]	 	 Among	 other	 findings,	 the	 court	 found,	 by	 clear	 and	 convincing	

evidence,	 that	 the	 mother	 did	 not	 have	 any	 contact	 with	 the	 Department’s	

caseworker	 after	 the	 jeopardy	 hearing,	 “refused	 to	 meet	 with	 the	

§	4036(1)(G-2)	 (2016),	 prejudiced	 her.	 	 Given	 the	 mother’s	 pattern	 of	 nonparticipation	 in	
reunification	 efforts	 before	 the	 cease	 reunification	 order	 and	 her	 nonparticipation	 in	 court	
proceedings	and	reunification	efforts	after	the	order,	we	conclude	that	it	is	highly	probable	that	this	
failure	 did	 not	 affect	 the	 outcome	 of	 this	 case	 and	 constituted	 harmless	 error.	 	 See	 In	 re	 Scott	 S.,	
2001	ME	114,	¶	30,	775	A.2d	1144.			
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caseworker[,]	 .	 .	 .	 ignored	 the	 Department’s	 attempts	 to	 develop	 a	 plan	 to	

address	 reunification,”	 and,	 at	 the	 time	 of	 the	 termination	 hearing,	 had	 not	

visited	 with	 the	 child	 in	 over	 six	 months.	 	 The	 court	 further	 found	 that	 the	

mother	“[does]	not	believe	that	 [she]	need[s]	to	change	and	[is]	unwilling	to	

take	the	necessary	steps	to	alleviate	the	jeopardy	that	continues	to	exist.”		In	

discussing	 the	 permanency	 plan	 for	 the	 child,	 the	 court	 noted	 that	 both	 the	

foster	family	and	a	paternal	family	member	are	willing	to	adopt	her	and	her	

older	 sister.3	 	 Given	 this	 evidence,	 the	 court	 appropriately	 determined,	 by	

clear	 and	 convincing	 evidence,	 that	 the	 State	 has	 demonstrated	 all	 four	

grounds	 of	 parental	 unfitness	 and	 that	 termination	 is	 in	 the	 child’s	 best	

interest.		See	In	re	Robert	S.,	2009	ME	18,	¶	15,	966	A.2d	894.	

        [¶4]	 	 Turning	 to	 the	 mother’s	 other	 challenges	 on	 appeal,	 we	 find	 her	

assertions	that	the	court	violated	her	right	to	due	process	by	failing	to	provide	

notice	of	the	hearing	and	by	“utiliz[ing]”	the	fact	that	she	had	recently	had	her	

parental	 rights	 to	 another	 child	 terminated	 wholly	 unpersuasive.	 	 See	 U.S.	

Const.	 amend.	 XIV,	 §	1;	 Me.	 Const.	 art.	 I,	 §	6-A;	 In	 re	 Robert	 S.,	 2009	 ME	 18,	

¶¶	13-14,	966	A.2d	894.		With	regard	to	the	issue	of	notice,	the	record	shows	

   3	 	 As	 we	 recently	 stated,	 “permanency	 planning	 for	 a	 child	 in	 foster	 care	 and	 the	 best	 interest	

determination	to	be	made	in	a	termination	proceeding,	are	distinct	from	the	question	of	who	should	
adopt	the	child,	which	is	addressed	in	an	adoption	proceeding.”		In	re	Kenneth	S.,	2017	ME	45,	¶	6,	
157	A.3d	244	(emphasis	in	original)	(citations	omitted).	
4	

that	 the	 mother	 was	 served	 in-hand	 with	 the	 petition	 for	 termination	 of	

parental	rights	in	October	of	2016	and	that	notice	of	the	termination	hearing	

was	issued	in	December	of	2016	for	a	hearing	to	be	held	in	January	of	2016.4		

The	 record	 also	 demonstrates	 multiple	 attempts	 by	 the	 Department	 and	

court-appointed	counsel	to	contact	the	mother.5		Despite	notice	and	although	

her	 attorney	 was	 present	 and	 participated,	 the	 mother	 did	 not	 attend	 the	

hearing	on	the	Department’s	termination	petition.			

          [¶5]		There	is	also	no	indication	that	the	court	placed	undue	weight	on	

the	involuntary	termination	of	the	mother’s	parental	rights	to	her	older	child	

in	reaching	its	conclusion	regarding	this	child.		See	In	re	Heather	C.,	2000	ME	

99,	 ¶¶	30-32,	 751	 A.2d	 448.	 	 Contrary	 to	 the	 mother’s	 assertions,	 the	 record	

shows	that	the	earlier	termination	order	was	one	of	several	factors	properly	

considered	 by	 the	 court	 along	 with	 ample	 evidence	 that	 the	 mother	 has	




     4	 	 The	 mother	 points	 to	 a	 judicial	 review	 and	 permanency	 planning	 order	 dated	 December	 12,	

2016	 (Sparaco,	 J.),	 which	 indicated	 that	 another	 judicial	 review	 hearing	 would	 be	 held	 in	 May	 of	
2017,	to	support	her	contention	that	the	court’s	communications	about	the	date	of	the	termination	
hearing	 were	 “ambiguous.”	 	 Contrary	 to	 her	 contention,	 that	 same	 order	 indicated	 that	 the	
termination	hearing	would	be	held	in	January.			

     5		At	the	termination	hearing,	the	mother’s	attorney	reported	to	the	court	his	efforts	to	ensure	

that	his	client	was	aware	of	the	hearing,	including	resending	a	copy	of	the	trial	notice	and	leaving	a	
message	on	her	voicemail.			
                                                                                                        5	

abandoned	 the	 child.6	 	 The	 court’s	 termination	 judgment	 included	 the	

following	language	from	the	jeopardy	order:	

        [The	 child]	 is	 placed	 in	 circumstances	 of	 jeopardy	 to	 her	 health	
        and	welfare	by	her	mother	.	.	.	due	to	serious	abuse	or	neglect	as	
        evidenced	 by	 the	 threat	 of	 serious	 harm	 including	 serious	 injury	
        and/or	serious	mental	or	emotional	injury	or	impairment,	and	the	
        deprivation	 of	 adequate	 shelter,	 supervision,	 and	 care,	 due	 to	
        exposure	 to	 ongoing	 domestic	 violence	 in	 the	 home,	 history	 of	
        unstable	 mental	 health,	 and	 ongoing	 substance	 abuse,	 and	
        inability	to	provide	a	safe,	stable	and	sanitary	home	for	the	child.	
    	
At	 the	 time	 of	 the	 jeopardy	 proceeding	 that	 resulted	 in	 this	 order,	 the	 child	

was	not	even	four	months	old	and	had	never	lived	with	her	parents.		The	court	

was	 able	 to	 make	 these	 jeopardy	 findings,	 however,	 because	 the	 child	 was	

conceived	 and	 born	 while	 her	 parents	 were	 involved	 in	 a	 child	 protection	

proceeding	 regarding	 their	 older	 child	 and	 the	 father’s	 three	 other	 children.		

As	 a	 result	 of	 the	 parents’	 neglect	 or	 abuse	 of	 the	 older	 children,	 the	 court	

(Raimondi,	 J.)	 removed	 the	 child	 from	 her	 parents’	 custody	 almost	

immediately	 after	 birth.	 	 In	 short,	 the	 court’s	 consideration	 of	 the	 earlier	

termination	of	the	mother’s	parental	rights	to	her	older	child	was	appropriate,	

and	the	mother’s	right	to	due	process	was	more	than	adequately	protected.	




   6	
    	 Although	 the	 mother	 urges	 us	 to	 consider	 the	 constitutionality	 of	 22	 M.R.S.	 §	 4002(1-B)	
(2016),	we	decline	to	revisit	this	settled	point	of	law.		See	generally	In	re	Heather	C.,	2000	ME	99,	
751	A.2d	448.		
6	

	       [¶6]	 	 Finally,	 we	 reject	 the	 mother’s	 contentions	 that	 the	 court’s	 order	

constitutes	a	“verbatim	adoption”	of	the	Department’s	proposed	findings	and	

that	 the	 findings	 contained	 therein	 are	 therefore	 insufficient	 as	 a	 matter	 of	

law.		Although	a	verbatim	adoption	of	the	language	of	a	proposed	order	or	an	

adoption	 absent	 material	 change	 is	 disfavored	 because	 it	 would	 “suggest[]	

that	the	court	has	not	applied	its	independent	judgment	in	making	its	findings	

and	conclusions,”	courts	may	properly	request	and	consider	proposed	orders	

from	 parties	 in	 crafting	 an	 order.	 	 In	 re	 Marpheen	 C.,	 2002	 ME	 170,	 ¶	 7,	

812	A.2d	972.		Here,	at	the	close	of	the	termination	hearing,	the	court	stated	

its	 findings	 and	 conclusions	 of	 law	 on	 the	 record7	 and	 requested	 that	 the	

Department	submit	a	proposed	order	reflecting	its	judgment.		The	court	then	

made	 changes	 to	 the	 text	 submitted	 by	 the	 Department.	 	 It	 is	 therefore	

“evident	that	the	.	.	.	judgment	is	the	result	of	the	application	of	independent	

judicial	thought	to	the	process	of	making	fact-findings	and	conclusions.”		Id.	

	       The	entry	is:	

                         Judgment	affirmed.	
	
	                                 	
   7	 	 Specifically,	 the	 court	 took	 note	 of	 prior	 termination	 proceedings	 involving	 the	 mother	 and	

then	 stated,	 “[T]he	 Department	 has	 shown	 that	 the	 mom	 .	 .	 .	 [has]	 abandoned	 [the	 child],”	 and,	
further,	that	the	mother	did	not	take	advantage	of	visits	with	the	child,	participate	in	family	team	
meetings,	 complete	 the	 work	 necessary	 to	 reunify	 with	 the	 child,	 or	 appear	 at	 the	 termination	
hearing	despite	proper	notice.			
                                                                                 7	

	     	      	      	     	     	
	
Ezra	A.R.	Willey,	Esq.,	Willey	Law	Offices,	Bangor,	for	appellant	mother	
	
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	
	
	
Belfast	District	Court	docket	number	PC-2016-4	
FOR	CLERK	REFERENCE	ONLY	
	
