MAINE SUPREME JUDICIAL COURT                                              Reporter of Decisions
Decision:    2019 ME 145
Docket:      And-19-138
Submitted
  On Briefs: September 10, 2019
Decided:     September 17, 2019

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



                               IN RE CHILD OF KIMBERLY K.


PER CURIAM

         [¶1]     Kimberly K. appeals from a judgment of the District Court

(Lewiston, Martin, J.) terminating her parental rights to her child, as does the

child’s father. The father challenges the sufficiency of the evidence with respect

to the court’s determination that he is unfit within the meaning of 22 M.R.S.

§ 4055(1)(B)(2)(b)(i), (ii), (iv) (2018), and both parents contend that the court

erred by determining that the termination of their parental rights is in the

child’s best interest, see 22 M.R.S. § 4055(1)(B)(2)(a) (2018). We affirm the

judgment.

                                       I. BACKGROUND

         [¶2] The following facts, which are supported by the evidence, are drawn

from the court’s judgment and the procedural record. See In re Children

of Nicole M., 2018 ME 75, ¶ 2, 187 A.3d 1. On December 7, 2016, the Department

of Health and Human Services filed a petition for a child protection order as to
2

both parents, alleging that the mother had an untreated substance use disorder,

was homeless, and was leaving the child alone for long periods of time with

people who are not well-known to the child and are not considered by the

Department to be safe caregivers. See 22 M.R.S. § 4032 (2018). The petition

further alleged that the father was unable to care for the child because he was

incarcerated.

      [¶3] On April 11, 2017, the court entered an agreed-to jeopardy order,

granting custody to the Department and maintaining the child’s placement with

his paternal grandmother. See 22 M.R.S. § 4035 (2018). The court entered

agreed-to judicial review and permanency planning orders on August 17, 2017

(Beliveau, J.); January 11, 2018 (Dow, J.); April 12, 2018 (Beliveau, J.);

August 16, 2018 (Ham-Thompson, J.); and December 13, 2018 (Dow, J.),

maintaining custody of the child with the Department.

      [¶4] Meanwhile, in October 2018, the Department filed a petition for the

termination of both parents’ rights to their child. See 22 M.R.S. § 4052 (2018).

Following a hearing held on the petition, see 22 M.R.S. § 4054 (2018), the court

entered a judgment granting the petition to terminate the parents’ rights. The

court based its decision on the following findings of fact, all of which are
                                                                               3

supported by competent evidence in the record. See In re Child of Domenick B.,

2018 ME 158, ¶ 5, 197 A.3d 1076.

            [The mother’s] drug use is longstanding and significant. Her
      drug[s] of choice [have] been cocaine and suboxone. She has lived
      with her ex-boyfriend’s mother for the last year. Her drug abuse
      has landed her in jail on several occasions and she is now facing her
      third probation violation, which could result in a maximum
      18-month jail sentence. . . .

             The Jeopardy Order dated April 7, 2017, required
      [the mother] to participate actively and consistently in substance
      abuse treatment with a mental health component; participate in a
      follow-up interview with Family Treatment Drug Court (FTDC); to
      not use or possess alcohol, illicit drugs, or prescription drugs
      except when used as prescribed by a qualified health professional;
      subject to random drug and alcohol testing; participate in a
      parenting education program; be involved in [the child’s]
      appointments; sign all necessary releases; maintain safe and stable
      housing free from domestic violence, drugs and alcohol; and refrain
      from any/all criminal involvements and abide by the terms of
      probation conditions. Over the last 24 months, [the mother] has
      failed to do any of the above required conditions. During this case
      she had promised to enroll in FTDC but failed to do so. FTDC case
      manager and DHHS caseworkers have reached out to her many
      times to enroll in FTDC; although she acknowledges her need, she
      has failed to enroll. While she did complete an intensive outpatient
      program (IOP) a few years ago, the evidence presented reveals that
      she has never engaged in services throughout this case and is
      currently not in any services. Her visits with [the child] have been
      intermittent at best. For that reason, the visits were canceled. . . .

             [The mother] admits not being in a position to parent [the
      child] at this time and suggests she would need additional time to
      complete her sentence, obtain housing, get into the FTDC and
      substance abuse counseling, attend another IOP and gain
      employment. She expects this would take another 19 months.
4


          Despite her love for [the child], her addiction and
    incarceration have significantly impacted her ability to protect
    [the child] from jeopardy or to take responsibility for him within a
    time calculated to meet [the child’s] needs.

          ....

           The father’s drug use has also been long-standing and
    significant. Although he’s been incarcerated the last 6 years, he
    began abusing substances (mainly opiates) at age 14 up until his
    incarceration in 2014. He actually missed [the child’s] birth due to
    his incarceration. Once released, and despite [the child’s]
    existence, he continued to abuse substances which contributed to
    his burglary and aggravated burglary convictions.                  On
    August 29, 2014, the father was sentenced to 7 years and 182 days
    in prison—[the child] was only a year old. His current release date
    is May of 2020. His release could have been sooner but for the
    numerous in-prison write-ups that extended his sentence 3 to 4
    months. The father is currently waiting to see if he’ll be charged for
    assault due to a recent incident in prison which could extend his
    release date even further past May 2020.

          [T]he father has done some beneficial services while in
    Prison: he has six (6) credits remaining to obtain an associate’s
    degree in Liberal Arts; he engaged in an anger management group
    and has been involved in a “New Freedom Group” at the prison;
    engaged in substance abuse and mental health counseling that met
    once per month for the last two years; and he’s prepared to enroll
    in the prison’s 18-month mental health and substance abuse
    treatment program offered to inmates who are within 18 months
    of their prospective release date. He’s also had open contact visits
    with [the child] at least two times per year at the prison along with
    phone contact throughout his incarceration. Despite all of this, the
    father has [over a year left] in prison.

          ....
                                                                                  5

            [W]hile the court is mindful of the efforts the father has made
      to rehabilitate and improve himself while incarcerated, it simply is
      not enough. Likewise, the mother has done nothing to engage in
      services. The parents’ reality is that incarceration has and will
      continue to render them incapable of taking responsibility for [the
      child] within a time reasonably calculated to meet [the child’s]
      needs . . . .

             ....

             [The child] has [an attachment disorder]. The GAL testified
      that it would not be in [the child’s] best interest to keep open the
      continued possibility of change, that he needs permanency, and
      that termination of parental rights is in [the child’s] best interest.
      The [c]ourt finds that although [the child’s grandmother] cannot
      currently commit to adoption—she would agree to continue to care
      and support [the child] through a permanency guardianship while
      ensuring absolute permanency for [the child] . . . .

      [¶5]    The court established the permanency plan for the child,

determining that it is in the child’s best interest to terminate the parents’ rights

and proceed with adoption or a permanency guardianship with the child’s

grandmother.        Following the issuance of the judgment terminating their

parental rights, both parents timely appealed. See 22 M.R.S. § 4006 (2018);

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

                                 II. DISCUSSION

      [¶6] The father challenges the sufficiency of the evidence supporting the

court’s unfitness and best interest determinations, and both parents argue that

the court erred by determining that termination of their parental rights was in
6

the child’s best interest after a permanency guardianship was found to be

appropriate. “We review the court’s factual findings of unfitness and best

interest for clear error, and we will uphold those findings if there is any

competent record evidence to support them. We review the court’s ultimate

determination of best interest for an abuse of discretion.” In re Child of

Rebecca J., 2019 ME 119, ¶ 5, --- A.3d --- (citation omitted).

A.    Parental Unfitness

      [¶7] “Before a court may terminate a parent’s parental rights, the court

must find at least one ground of parental unfitness.”            In re Cameron B.,

2017 ME 18, ¶ 10, 154 A.3d 1199; see 22 M.R.S. § 4055(1)(B)(2)(b) (2018).

Although, as we have explicitly recognized, “[a] parent’s long-term

incarceration, standing alone, does not provide grounds for the termination of

parental rights,” Adoption of Hali D., 2009 ME 70, ¶ 2, 974 A.2d 916, “[a] parent

who is unable to fulfill his parental responsibilities by virtue of being

incarcerated is entitled to no more protection from the termination of his

parental rights than a parent who is unable to fulfill his parental responsibilities

as a result of other reasons,” In re Alijah K., 2016 ME 137, ¶ 14, 147 A.3d 1159.

“Respecting the strong policies in favor of permanency, a court must consider

whether the length of a parent’s incarceration will prevent the parent from
                                                                                 7

protecting the child from jeopardy or taking responsibility for the child within

a time reasonably calculated to meet the child’s needs.” Adoption of Isabelle T.,

2017 ME 220, ¶ 34, 175 A.3d 639; see 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii).

      [¶8] In this case, the father is currently in prison—the court found that

the father had been incarcerated for the last six years and that his earliest

possible release date is May 2020. The court acknowledged that the father had

participated in some beneficial services while incarcerated and had engaged in

in-person and phone contact with the child throughout his sentence. However,

the court found that the length of the father’s incarceration rendered him

incapable of taking responsibility for the child within a time reasonably

calculated to meet the child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(ii);

In re Hannah S., 2016 ME 32, ¶ 10, 133 A.3d 590. The court credited the

testimony of the Department’s caseworker and the guardian ad litem that the

child had a significant need for permanency, and the case has been pending

since the child was four years old—a period of over two years.

      [¶9] On this record, the court did not clearly err by finding that the father

is unlikely to become fit within a time reasonably calculated to meet the child’s

needs. See In re Children of Anthony M., 2018 ME 146, ¶ 11, 195 A.3d 1229.

Having so determined, we need not consider whether alternative grounds for
8

terminating the father’s parental rights were supported by clear and convincing

evidence. See 22 M.R.S. § 4055(1)(B)(2)(b); In re Randy Scott B., 511 A.2d 450,

455 (Me. 1986).      Although the mother has not challenged the court’s

determination that she is parentally unfit, we further conclude that there is

evidence in the record to support the court’s findings, by clear and convincing

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

In re Child of Shayla S., 2019 ME 68, ¶ 9, 207 A.3d 1207; In re Kenneth S.,

2017 ME 45, ¶ 9, 157 A.3d 244.

B.    Child’s Best Interest

      [¶10] “Once a court determines that a parent is unfit, it must also

determine whether termination of that parent’s parental rights is in the child’s

best interest.” In re Child of Domenick B., 2018 ME 158, ¶ 9, 197 A.3d 1076;

see 22 M.R.S. § 4055(1)(B)(2)(a). The court in this matter found that either

adoption or a permanency guardianship after termination was in the child’s

best interest.

      [¶11] The parents first argue that there is insufficient evidence to

support the court’s best interest finding because each of the parents has a

relationship with the child, and, more specifically, because the record does not

establish how preserving the parental relationships would be detrimental to
                                                                                  9

the child’s sense of permanency. However, just because a parent “has a

relationship with the child that is not disruptive does not mean that

termination cannot be in the child’s best interest.”           In re Michaela C.,

2002 ME 159, ¶ 26, 809 A.2d 1245; see In re Child of Ronald W., 2018 ME 107,

¶ 13 n.3, 190 A.3d 1029 (noting that the court is not required to find that a

relationship with a parent would be harmful to the child before determining

that termination is in the child’s best interest); In re Asanah S., 2018 ME 12, ¶ 7,

177 A.3d 1273; Adoption of Hali D., 2009 ME 70, ¶ 1 n.1, 974 A.2d 916;

In re Jacob B., 2008 ME 168, ¶ 17, 959 A.2d 734. Indeed, “[m]any factors can

combine to support a best interest determination, even when an affirmative

negative finding regarding a continued relationship is lacking.” In re Jacob B.,

2008 ME 168, ¶ 18, 959 A.2d 734.

      [¶12] Finally, the parents challenge the court’s determination that

termination is in the child’s best interest given the court’s determination that

the permanency plan for the child is adoption or a permanency guardianship

with the child’s grandmother. They argue that termination in this instance is

unnecessary and does not promote the goal of permanency for the child.

      [¶13]    We recently held that “a permanency guardianship is not

necessarily incompatible with a court’s determination that a termination of
10

parental rights is in the child’s best interest.” In re Children of Nicole M.,

2018 ME 75, ¶ 24, 187 A.3d 1. In Nicole M., we held that the trial court

appropriately designated a post-termination permanency plan that would

ensure that the children would remain with their grandmother. Id. ¶ 25.

Although the children could continue to live with their grandmother without

the court terminating the parents’ rights, we explained that, when a parent’s

rights have not been terminated, “the parent is statutorily authorized to

petition the court not only to determine rights of contact but even to terminate

the permanency guardianship itself.” Id. ¶ 26. Thus, termination in such

circumstances attenuates the prospect of impermanence in the permanency

guardianship. See id.

      [¶14] Here, as in Nicole M., the court stated that its goals were to ensure

that the child would have the permanence that comes with a termination of

parental bonds and would be placed with the grandmother. See id. ¶ 27. The

court credited the testimony of the guardian ad litem that it would not be in the

child’s best interest to keep open the continued possibility of change. With

support in the record, the court found that the child has an attachment disorder

and that the child’s grandmother has agreed to continue to care for and support

the child through a permanency guardianship to ensure permanency for the
                                                                               11

child. These findings are not clearly erroneous, and the court did not err or

abuse its discretion in determining that termination of the parents’ parental

rights would ensure permanency for the child and would be in the child’s best

interest. See id. ¶ 26; cf. In re Asanah S., 2018 ME 12, ¶ 7, 177 A.3d 1273.

        The entry is:

                           Judgment affirmed.



Jeffrey S. Dolley, Esq., Lewiston, for appellant mother

Richard Charest, Esq., Lewiston, for appellant father

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


Lewiston District Court docket number PC-2016-80
FOR CLERK REFERENCE ONLY
