MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	220	
Docket:	   Pen-17-237	
Argued:	   October	11,	2017	       	     	     	    	      	
Decided:	  November	30,	2017	
	          	                                                                             	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                          ADOPTION	OF	ISABELLE	T.	et	al.	
	
	
PER	CURIAM	

      [¶1]		The	father	of	Isabelle	and	Abigail	T.	appeals	from	a	judgment	of	the	

Penobscot	 County	 Probate	 Court	 (M.	 Bradford,	 J.)	 terminating	 his	 parental	

rights	 in	 anticipation	 of	 an	 adoption	 pursuant	 to	 18-A	 M.R.S.	 §9-204(b)	

(2016);	 22	 M.R.S.	 §4055(1)(A)(2),	 (B)(2)(a),	 (B)(2)(b)(i),	 (B)(2)(b)(iii),	 and	

(1-A)(B)(8)	(2016).		He	challenges	the	sufficiency	of	the	evidence	to	support	

the	 judgment,	 including	 the	 court’s	 findings	 of	 parental	 unfitness	 and	 that	

termination	 of	 his	 parental	 rights	 is	 in	 his	 children’s	 best	 interests.	 	 See	

18-A	M.R.S.	§	9-204(b);	22	M.R.S.	§	4055(1)(B)(2),	(1-A)(B)(8).	

      [¶2]	 	 Because	 the	 record,	 in	 a	 case	 where	 fundamental	 constitutional	

rights	 are	 at	 issue,	 does	 not	 include	 sufficient	 evidence	 regarding	 parental	

unfitness,	the	best	interests	of	the	children,	and	the	history	of	the	prospective	

adopting	 parent,	 because	 the	 court	 improperly	 excluded	 the	 father’s	

testimony	 regarding	 his	 future	 plans	 for	 reunification	 with	 his	 children,	 and	
2	

because	 the	 court	 erred	 and	 abused	 its	 discretion	 in	 concluding	 that	

termination	 of	 the	 father’s	 parental	 rights	 is	 in	 the	 children’s	 best	 interests,	

we	vacate	the	judgment.	

               I.		LEGAL	STANDARDS	FOR	TERMINATING	PARENTAL	
                          RIGHTS	INCIDENT	TO	ADOPTION	
     	
         [¶3]		Examination	of	the	issues	in	this	appeal	must	begin	with	a	review	

of	the	substantive	and	procedural	requirements	for	a	termination	of	parental	

rights	incident	to	an	adoption	proceeding.		When	a	private	individual	invokes	

court	 action	 to	 terminate	 parental	 rights	 or	 otherwise	 significantly	 limit	 a	

parent’s	 rights	 to	 parent	 a	 child,	 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.	

A.       Constitutional	Requirements	

         [¶4]		“The	liberty	interest	.	.	.	of	parents	in	the	care,	custody,	and	control	

of	 their	 children--is	 perhaps	 the	 oldest	 of	 the	 fundamental	 liberty	 interests	

.	.	.	.”	 Troxel	 v.	 Granville,	 530	 U.S.	 57,	 65	 (2000).	 	 We	 have	 consistently	

recognized	 that	 a	 biological	 parent	 has	 a	 fundamental	 liberty	 interest	 in	

parenting	 his	 or	 her	 child.	 	 Adoption	 of	 Tobias	 D.,	 2012	 ME	 45,	 ¶	 9,	

40	A.3d	990.		The	Due	Process	Clause	of	the	Fourteenth	Amendment	protects	
                                                                                                                     3	

this	liberty	interest	from	unnecessary	state	interference.1		U.S.	Const.	amend.	

XIV,	§	1;	Me.	Const.	art.	I,	§	6-A;	see	Troxel,	530	U.S.	57,	66	(2000)	(“[I]t	cannot	

now	 be	 doubted	 that	 the	 Due	 Process	 Clause	 of	 the	 Fourteenth	 Amendment	

protects	 the	 fundamental	 right	 of	 parents	 to	 make	 decisions	 concerning	 the	

care,	 custody,	 and	 control	 of	 their	 children.”);	 Santosky	 v.	 Kramer,	

455	U.S.	745,	 753	 (1982)	 (to	 interfere	 with	 a	 parent’s	 fundamental	 right	 to	

parent,	the	state	must	provide	fundamentally	fair	procedures).	

         [¶5]		These	requirements	apply	to	actions	in	state	courts,	including	the	

probate	 courts.	 	 See	 Guardianship	 of	 Chamberlain,	 2015	ME	76,	 ¶	 23,	

118	A.3d	229	 (extensively	 discussing	 application	 of	 proper	 standards	 to	

protect	 fundamental	 parental	 rights	 in	 probate	 court	 proceedings	 affecting	

parental	 rights—there	 in	 a	 guardianship	 proceeding).	 	 See	 also	 In	 re	 H.C.,	

2013	ME	 97,	 ¶	 11,	 82	 A.3d	 80;	 In	re	 Randy	 Scott	 B.,	 511	 A.2d	 450,	 453	

(Me.	1986).	

         [¶6]	 	 The	 fundamental	 right	 to	 parent	 one’s	 child	 is	 not,	 however,	

immune	from	government	interference.		See	Pitts	v.	Moore,	2014	ME	59,	¶	12,	

90	A.3d	1169	(action	to	establish	de	facto	parent	status);	Rideout	v.	Riendeau,	


    1		The	Due	Process	Clause	of	the	Fourteenth	Amendment	provides	that	no	state	shall	“deprive	

any	 person	 of	 life,	 liberty,	 or	 property,	 without	 due	 process	 of	 law.”	 	 U.S.	 Const.	 amend.	 XIV,	 §	 1.		
Article	1,	§	6-A	of	the	Maine	Constitution	similarly	provides	that	“No	person	shall	be	deprived	of	life	
liberty	or	property	without	due	process	of	law	.	.	.	.”	
4	

2000	ME	198,	¶	19,	761	A.2d	291	(action	to	establish	grandparents’	rights).		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.		In	re	Cody	T.,	2009	ME	95,	¶	25,	979	A.2d	81;	see	In	re	A.M.,	

2012	 ME	 118,	 ¶	 16,	 55	 A.3d	 463;	 In	 re	 Robert	 S.,	 2009	 ME	 18,	 ¶¶	 13-15,	

966	A.2d	894.	

      [¶7]	 	 “When	 the	 State	 does	 interfere	 with	 the	 fundamental	 right	 to	

parent,	 we	 must	 evaluate	 that	 interference	 with	 strict	 scrutiny—the	 highest	

level	of	scrutiny—which	requires	that	the	State’s	action	be	narrowly	tailored	

to	serve	a	compelling	state	interest.”		Pitts,	2014	ME	59,	¶	12,	90	A.3d	1169.		

Pursuant	to	this	standard,	only	the	most	exceptional	circumstances	or	risks	to	

a	child’s	welfare	allow	the	state	to	intrude	upon	a	parent’s	fundamental	right	

to	the	care	and	control	of	his	or	her	child.		See	id.;	Rideout,	2000	ME	198,	¶	24,	

761	A.2d	291.	

B.	   Adoption	and	Child	Protection	Statutes	

      [¶8]	 	 Section	 9-204(b)	 of	 the	 Adoption	 Act,	 18-A	 M.R.S.	 §§	 9-101	 to	

9-315	 (2016),	 which	 governs	 termination	 of	 parental	 rights	 in	 adoption	

proceedings,	incorporates	by	reference	22	M.R.S.	§§	4050–4059	(2016),	which	
                                                                                                             5	

governs	 termination	 of	 parental	 rights	 in	 child	 protection	 proceedings.		

18-A	M.R.S.	 §	 9-204(b)	 (2016).	 	 Thus,	 the	 same	 statutory	 protections	 and	

requirements	 that	 apply	 to	 state-initiated	 proceedings	 to	 terminate	 parental	

rights	 also	 apply	 to	 privately	 initiated	 proceedings	 to	 terminate	 parental	

rights.		See	Adoption	of	Lily	T.,	2010	ME	58,	¶	20,	997	A.2d	722;	In	re	Jacob	B.,	

2008	ME	168,	¶	13,	959	A.2d	734.	

        [¶9]	 	 The	 Adoption	 Act	 provides	 that	 “[a]	 petition	 for	 termination	 of	

parental	rights	may	be	brought	in	Probate	Court	in	which	an	adoption	petition	

is	properly	filed	as	part	of	that	adoption	petition	.	.	.	.”	18-A	M.R.S.	§	9-204(a).2		

In	practice,	this	means	that	the	termination	of	parental	rights	occurs	prior	to	

the	adoption	in	order	to	enable	the	child	or	children	to	be	legally	available	for	

adoption.	 	 See	 Adoption	 of	 Hali	 D.,	 2009	 ME	 70,	 ¶	 1,	 974	 A.2d	 916.	 	 This	 is	

consistent	 with	 practice	 in	 Title	 22	 proceedings	 for	 the	 termination	 of	

parental	 rights	 where	 the	 court	 does	 not	 begin	 to	 consider	 post-termination	

placements	 until	 after	 termination	 of	 parental	 rights	 has	 been	 ordered.	 	 See	

In	re	Kenneth	S.,	2017	ME	45,	¶	6,	157	A.3d	244.	

        [¶10]	 	 Thus,	 theoretically,	 before	 the	 trial	 court	 considers	 the	

background	and	the	qualities	of	a	prospective	adopting	parent,	the	court	could	

    2		Since	July	29,	2016,	Maine’s	District	Courts	have	exclusive	jurisdiction	over	adoption	actions	

when	 there	 is	 a	 case	 pending	 in	 the	 District	 Court	 involving	 the	 child	 or	 children	 who	 are	 the	
subject	of	the	adoption.		4	M.R.S.	§	152(5-A)	(2016);	18-A	M.R.S.	§	9-103	(2016).	
6	

terminate	the	parental	rights	of	a	biological	parent.		However,	in	an	adoption	

proceeding,	 unlike	 a	 Title	 22	 proceeding	 to	 terminate	 parental	 rights,	 the	

prospective	 adoptive	 parent	 is	 identified.	 	 In	 fact,	 his	 or	 her	 interest	 in	

adoption	 is	 the	 reason	 the	 action	 was	 initiated.	 	 Because	 the	 prospective	

adoptive	parent	is	identified	in	a	Title	18-A	private	adoption	proceeding,	the	

background	 and	 qualities	 of	 the	 prospective	 adoptive	 parent	 are	 essential	

factors	to	consider	in	deciding	whether	termination	of	parental	rights	leading	

to	adoption	by	that	individual	is	in	the	best	interests	of	the	child	or	children.3	

          [¶11]	 	 There	 is	 no	 state	 assertion	 of	 parental	 unfitness	 in	 private	

termination/adoption	 proceedings,	 and	 the	 Adoption	 Act	 provides	 fewer	

protections	 for	 parents	 than	 those	 provided	 in	 Title	 22	 child	 protection	

proceedings.		Individuals	facing	the	loss	of	their	rights	in	Title	22	termination	

of	 parental	 rights	 proceedings	 are	 nearly	 always	 provided	 opportunities	 for	

rehabilitation	and	reunification	before	a	court	even	considers	the	termination	

of	their	parental	rights.		See	In	re	Heather	C.,	2000	ME	99,	¶	4,	751	A.2d	448	

(“In	 the	 ordinary	 course,	 as	 soon	 as	 the	 child	 has	 entered	 foster	 care	 as	 a	

result	of	a	court	order,	the	[State]	is	required	to	begin	providing	rehabilitation	

services	to	the	parents.”);	In	re	Thomas	D.,	2004	ME	104,	¶	26,	854	A.2d	195	


     3	
     	 We	 anticipate	 that	 this	 will	 also	 be	 necessary	 in	 so-called	 single	 parent	 adoptions.	 	 See	
18-A	M.R.S.	§	9-301	(2016);	see	also	Adoption	of	Liam	O.,	2016	ME	66,	¶	11,	138	A.3d	485.	
                                                                                    7	

(“[T]he	 rehabilitation	 and	 reunification	 plan	 is	 the	 centerpiece	 of	 child	

protective	proceedings	following	a	jeopardy	determination	.	.	.	[and]	seek[s]	to	

rehabilitate	the	conditions	that	resulted	in	jeopardy	to	the	child	.	.	.	.”).	

      [¶12]		The	Adoption	Act,	on	the	other	hand,	does	not	require—or	even	

authorize—the	 court	 to	 consider	 rehabilitation	 or	 reunification	 efforts	 prior	

to	 terminating	 parental	 rights.	 	 See	 Adoption	 of	L.E.,	 2012	 ME	 127,	 ¶	 13,	

56	A.3d	1234;	compare	22	M.R.S.	§	4041	(2016)	(stating	the	obligations	of	the	

Department	 of	 Health	 and	 Human	 Services	 to	 pursue	 rehabilitation	 and	

reunification	efforts	in	child	protection	matters)	 with	18-A	M.R.S.	§	9-204(b)	

(incorporating	 by	 reference	 22	 M.R.S.	 §§	4050-4059	 and	 not	 referencing	

22	M.R.S.	 §	 4041).	 	 A	 termination	 action	 litigated	 as	 part	 of	 a	 “private	

adoption,”	 where	 the	 adoption	 petitioner—often	 one	 parent—seeks	 to	

terminate	 the	 parental	 rights	 of	 a	 nonconsenting	 parent	 to	 facilitate	 an	

adoption,	 requires	 only	 that	 the	 petitioner	 prove	 that	 the	 grounds	 for	

termination	 have	 been	 met	 in	 order	 for	 the	 court	 to	 permanently	 terminate	

that	parent’s	legal	rights	to	his	or	her	child.		See	Adoption	of	L.E.,	2012	ME	127,	

¶¶	12-13,	56	A.3d	1234.	

      [¶13]	 	 In	 a	 Title	 22	 child	 protection	 proceeding,	 the	 question	 of	

termination	 is	 addressed	 only	 after	 a	 court	 has	 decided	 that	 the	 parent’s	
8	

unfitness	 is	 so	 dire	 that	 the	 children	 must	 be	 removed	 from	 his	 or	 her	 care.		

And,	 even	 in	 those	 circumstances,	 the	 parent	 is	 nonetheless	 usually	 offered	

multiple	opportunities	to	better	his	or	her	parenting	abilities	and	reunify	with	

the	children	through	court-ordered	and	state-provided	services.	

         [¶14]		In	the	private	adoption	context,	as	is	the	case	here,	where	there	

has	been	no	previous	determination	of	unfitness,	a	parent	can	have	his	or	her	

parental	 rights	 terminated	 without	 any	 opportunities	 for	 rehabilitation	 or	

reunification.	 	 Thus,	 application	 of	 the	 Adoption	 Act,	 as	 written,	 poses	 a	

substantial	risk	to	fundamental	parental	rights	that	the	court	must	respect	by	

rigorous	 application	 of	 quality	 of	 evidence	 standards	 and	 procedural	

protections	 as	 we	 have	 articulated	 in	 opinions	 such	 as	 Guardianship	 of	

Chamberlain,	2015	ME	76,	118	A.3d	229.4	

         [¶15]	 	 In	 the	 matter	 before	 us,	 we	 must	 consider	 whether	 the	

circumstances	 leading	 to	 this	 private	 adoption	 and	 termination	 proceeding	




     4 The	 Adoption	 Act	 has	 been	 criticized	 for	 lacking	 procedural	 processes	 that	 fully	 protect	 a	
parent’s	 fundamental	 parental	 rights.	 	 See	 Deirdre	 M.	 Smith,	 From	 Orphans	 to	 Families	 in	 Crisis:	
Parental	 Rights	 Matters	 in	 Maine	 Probate	 Courts,	 68	 Me.	 L.	 Rev.	 45,	 73-75	 (2016)	 (opining	 that	
adoption	 and	 termination	 proceedings	 brought	 pursuant	 to	 the	 Adoption	 Act	 should	 require	
reunification	 efforts	 as	 a	 prerequisite	 for	 terminating	 parental	 rights,	 as	 it	 “would	 impose	 an	
affirmative	 duty	 on	 the	 courts	 overseeing	 such	 [termination	 proceedings]	 to	 ensure	 that	 they	
provide	 parents	 a	 fair	 opportunity	 to	 address	 their	 fitness	 and	 relationship	 with	 their	 children	
before	a	court	may	permanently	dissolve	those	legal	bonds.”).	
     	
                                                                                          9	

are	exceptional	enough	to	justify	the	termination	of	parental	rights—the	most	

severe	interference	with	the	fundamental	right	to	parent.	

                                   II.		CASE	HISTORY	

       [¶16]		This	appeal	involves	a	private	adoption	proceeding	and	petition	

to	terminate	the	father’s	parental	rights	brought	by	the	mother	and	stepfather	

of	 Isabelle	 and	 Abigail	 T.	 	 They	 seek	 to	 terminate	 the	 parental	 rights	 of	 the	

children’s	 biological	 father	 so	 that	 the	 children	 can	 be	 adopted	 by	 their	

stepfather.	

       [¶17]	 	 On	 May	 4,	 2016,	 the	 mother	 and	 stepfather	 filed	 a	 petition	 to	

adopt	Isabelle	and	Abigail	T.	in	the	Penobscot	County	Probate	Court.		As	part	

of	these	adoption	proceedings,	on	August,	25,	2016,	the	mother	and	stepfather	

filed	a	petition	to	terminate	the	parental	rights	of	the	children’s	father.	

       [¶18]	 	 A	 one-day	 hearing	 was	 held	 on	 February	 28,	 2017.	 	 During	 the	

hearing,	the	father	testified	that	he	began	his	relationship	with	the	mother	in	

2006.	 	 They	 married	 in	 2009,	 and	 the	 mother	 was	 soon	 pregnant	 with	 their	

first	child,	Isabelle.		Throughout	the	relationship	there	was	tension	as	a	result	

of	 the	 father’s	 dishonesty	 about	 jobs,	 finances,	 and	 education,	 and	 concerns	

about	 unfaithfulness.	 	 Their	 second	 child,	 Abigail,	 was	 born	 in	 2012.	 	 At	 that	

point,	their	marriage	was	“on	the	rocks.”	
10	

      [¶19]	 	 The	 mother	 and	 the	 father	 testified	 that	 in	 January	 2014,	 while	

they	were	in	the	process	of	moving,	the	family	stayed	in	the	home	of	a	family	

friend.		During	the	family’s	stay,	the	father	sexually	abused	the	fifteen-year-old	

daughter	of	their	family	friend.		He	was	convicted	of	felony	sexual	abuse	of	a	

minor	 and	 incarcerated.	 	 Thereafter,	 the	 mother	 obtained	 a	 protection	 from	

abuse	 order	 against	 the	 father	 on	 behalf	 of	 herself	 and	 the	 children.	 	 As	 a	

result,	the	father	has	not	seen	his	daughters	in	person	since	his	incarceration.		

The	mother	divorced	the	father	in	February	2015.	

      [¶20]		The	father	was	released	from	incarceration	in	March	2015.		Both	

the	mother	and	the	father	testified	that,	after	he	was	released,	the	father	had	

weekly	 phone	 contact	 with	 Isabelle	 and	 Abigail	 for	 a	 period	 of	 time.	 	 In	

July	2015,	 the	 father	 was	 re-incarcerated	 after	 violating	 his	 probation.	 	 He	 is	

now	expected	to	be	released	in	April	2018.	

      [¶21]	 	 The	 father	 testified	 that	 he	 has,	 to	 the	 extent	 he	 has	 been	 able,	

attempted	 to	 get	 help	 to	 address	 his	 problems	 and	 has	 expressed	 his	

commitment	to	maintain	a	relationship	with	Isabelle	and	Abigail.		His	efforts	

to	 maintain	 a	 relationship	 with	 his	 daughters	 have	 been	 complicated	 by	 the	

protection	from	abuse	order	and	by	conditions	of	probation	that	limit	contact	

with	 his	 children.	 	 When	 the	 father	 inquired	 about	 having	 contact	 with	 his	
                                                                                                                 11	

children,	he	was	told	by	the	director	of	victim	services	at	the	prison	where	he	

is	currently	incarcerated	that	he	“cannot	have	indirect	or	direct	contact	with	

[his]	children.”	

        [¶22]	 	 Both	 the	 father	 and	 the	 mother	 testified	 that	 throughout	 the	

father’s	incarceration	the	children	have	had	regular	contact	with	the	father’s	

parents.	 	 The	 mother	 acknowledged	 that,	 because	 her	 parents	 are	 deceased,	

the	 father’s	 parents	 are	 the	 only	 grandparents	 the	 children	 will	 ever	 have.5		

The	grandparents	see	the	girls	as	often	as	they	are	able,	given	travel	distances	

and	the	children’s	school	schedules.		The	grandfather	testified	that	he	and	his	

wife	are	concerned	that	their	“rights	as	grandparents	[would]	be	diminished”	

if	the	father’s	parental	rights	were	terminated.	

        [¶23]	 	 The	 stepfather	 testified	 that	 he	 has	 three	 children	 from	 prior	

relationships:	 boys	 ages	 ten,	 ten,	 and	 eight	 as	 of	 the	 hearing	 date.	 	 The	

stepfather	 testified	 that	 his	 parental	 rights	 to	 two	 of	 his	 children,	 one	

ten-year-old	 and	 the	 eight-year-old,	 have	 previously	 been	 terminated.	 	 The	

stepfather	 further	 testified	 that	 one	 of	 the	 reasons	 that	 his	 parental	 rights	

were	terminated	was	his	significant	alcohol	and	drug	abuse	problem.	


    5	 	 The	 stepfather,	 who	 is	 the	 prospective	 adoptive	 parent,	 testified	 that	 his	 parents	 are	 living,	

but	that	the	girls	“will	never	meet	my	parents.”		His	father	is	in	prison	in	Kentucky,	and	his	mother	
was	recently	released	from	prison.		The	record	is	silent	regarding	the	reasons	his	parents	went	to	
prison.	
12	

          [¶24]	 	 In	 2009,	 near	 the	 time	 when	 his	 eight-year-old	 son	 would	 have	

been	 born,	 the	 stepfather	 was	 charged	 with	 criminal	 mischief.	 	 After	 that	

charge,	the	stepfather	testified,	he	turned	his	life	around,	became	sober,	and	is	

now	 regularly	 employed.	 	 At	 some	 time	 in	 this	 period,	 the	 stepfather	 moved	

from	 Kentucky	 to	 Maine.	 	 He	 met	 Isabelle	 and	 Abigail’s	 mother	 in	 2014	 and	

moved	in	with	her	and	the	children	in	2015.		The	mother	testified	that	she	met	

the	 stepfather	 in	 May	 2014,	 and	 that	 they	 were	 married	 in	 January	 2016.		

Isabelle	and	Abigail	call	him	“Daddy,”	and	he	is	a	large	part	of	their	everyday	

lives.	

          [¶25]	 	 During	 the	 mother’s	 and	 stepfather’s	 direct	 examinations,	 they	

both	testified	regarding	their	future	plans	for	Isabelle	and	Abigail.		When	the	

father	 was	 asked	 about	 his	 plans	 to	 reestablish	 a	 relationship	 with	 his	

children	upon	his	release	from	prison,	the	mother	objected	on	the	ground	that	

the	 question	 called	 for	 speculation.	 	 The	 court	 sustained	 the	 objection	 and	

excluded	the	question.	

          [¶26]	 	 On	 April	 4,	 2017,	 the	 court	 issued	 an	 order	 terminating	 the	

father’s	parental	rights.		In	the	order,	the	court	found:	

                [The	 father’s]	 failure	 to	 make	 any	 attempt	 to	 establish	 a	
          family	 relationship	 with	 the	 child,	 or	 contribute	 in	 any	 way	
          toward	 the	 children’s	 financial	 support,	 constitutes	 clear	 and	
          convincing	evidence	that	the	[father]	has	been	unwilling	or	unable	
                                                                                         13	

      to	 take	 responsibility	 for	 the	 children	 within	 a	 time	 reasonably	
      calculated	to	meet	the	children’s	needs.	
             	
The	 court	 also	 concluded	 that	 termination	 of	 the	 father’s	 parental	 rights,	

“thereby	 freeing	 the	 children	 for	 adoption	 by	 the	 petitioners,	 is	 in	 the	

children’s	best	interests.”	

        [¶27]	 	 In	 response	 to	 a	 motion	 by	 the	 father,	 the	 court	 subsequently	

issued	 findings	 of	 fact	 and	 conclusions	 of	 law	 supporting	 its	 termination	

decision,	as	required	by	M.R.	Civ.	P.	52(a).		See	also	22	M.R.S.	§	4055(1)(B)(2).		

The	court	supported	its	termination	order	with	the	following	findings	of	fact:	

               [The	father]	sexually	assaulted	the	15-year-old	daughter	of	
        the	 close	 friend	 he	 was	 staying	 with	 and	 has	 been	 convicted	 of	
        felony	sexual	abuse	of	a	minor.	
        	
               The	minor	victim	was	a	child	who	was	a	member	of	a	house	
        frequented	by	[the	father].	
	
               [The	 father]	 is	 an	 incarcerated	 parent	 who,	 due	 to	 his	
        parole[6]	 violation,	 will	 not	 be	 released	 until	 April	 2018	 at	 the	
        earliest.	
        	
               Based	upon	[the	father’s]	conviction	and	subsequent	parole	
        violation,	 as	 well	 as	 [his]	 failure	 to	 provide	 any	 support	 for	 or	
        contact	 with	 his	 children,	 he	 is	 unwilling	 or	 unable	 to	 take	
        responsibility	for	his	children.	
        	
               [The	 father]	 has	 failed	 to	 communicate	 meaningfully	 with	
        the	 child	 for	 a	 period	 of	 at	 least	 six	 months	 (namely	 almost	 four	
        years).	

    6		The	record	reflects	that	the	father	was	on	probation,	not	parole.	
14	

	
       [¶28]		The	court’s	findings	also	referenced	22	M.R.S.	§	4055	and	noted	

that	 statute’s	 requirement	 for	 findings	 by	 clear	 and	 convincing	 evidence	

addressing	parental	unfitness	and	the	best	interest	of	the	child,	but	the	court	

did	not	state	specific	findings	on	those	issues.	

       [¶29]	 	 The	 father	 timely	 appealed	 the	 court’s	 order	 terminating	 his	

parental	rights.	

                                 III.		LEGAL	ANALYSIS	

       [¶30]	 	 We	 review	 factual	 findings	 that	 termination	 of	 parental	 rights	

was	in	the	children’s	best	interests	for	clear	error	and	the	ultimate	decision	to	

terminate	parental	rights	for	an	abuse	of	discretion.		In	re	M.B.,	2013	ME	46,	

¶	37,	65	A.3d	1260;	In	re	Alivia	B.,	2010	ME	112,	¶	12,	8	A.3d	625.		We	review	

factual	findings	that	a	parent	is	unfit	or	otherwise	incapable	of	parenting	for	

clear	error	and	will	determine	that	a	finding	is	unsupported	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.		

Guardianship	 of	 Hailey,	 2016	ME	80,	 ¶15,	 140	 A.3d	 478.	 	 In	 addition,	 when	

fundamental	rights	are	at	stake,	findings	may	be	determined	to	be	insufficient	

or	 the	 court	 may	 be	 found	 to	 have	 erred	 in	 the	 exercise	 of	 its	 discretion	 if	
                                                                                           15	

important	issues	that	arise	during	trial	are	not	addressed	in	the	record	or	in	

the	court’s	findings.		See	Sargent	v.	Braun,	2006	ME	96,	¶¶	9-11,	902	A.2d	839	

(vacating	 the	 trial	 court’s	 judgment	 denying	 a	 motion	 to	 modify	 parental	

rights,	where	the	court	failed	to	fully	evaluate	or	provide	findings	relative	to	

substantial	 issues	 affecting	 the	 child’s	 best	 interest,	 including	 the	 mother’s	

relocation	and	her	abusive	relationship).	

       [¶31]	 	 In	 this	 case,	 where	 the	 prospective	 adopting	 parent	 had	 a	

substantial	history	of	substance	abuse	and	had	his	parental	rights	terminated	

as	 to	 two	 of	 his	 three	 biological	 children,	 it	 is	 concerning	 that	 neither	 of	 the	

parties	 provided	 details	 of	 that	 history	 to	 the	 court.	 	 When	 a	 termination	 is	

being	sought	in	order	to	facilitate	an	adoption,	factual	information	about	the	

prospective	 adoptive	 parent—the	 good	 and	 the	 bad—is	 vital	 to	 the	

determination	of	whether	termination	of	a	biological	parent’s	parental	rights	

is	in	the	children’s	best	interests.	

       [¶32]		Before	the	state,	acting	through	the	courts,	can	interfere	with	the	

fundamental	 right	 to	 parent	 by	 terminating	 parental	 rights,	 due	 process	

requires	that	findings	of	unfitness	be	made	by	clear	and	convincing	evidence.		

See	 Pitts,	 2014	 ME	 59,	 ¶	 12,	 90	 A.3d	 1169.	 	 Pursuant	 to	 the	 Adoption	 Act,	

which	 incorporates	 by	 reference	 22	 M.R.S.	 §	 4055,	 the	 court	 may	 order	
16	

termination	of	parental	rights,	absent	parental	consent,	only	if	the	court	finds,	

by	 clear	 and	 convincing	 evidence,	 that	 (1)	the	 parent	(i)	 is	 unable	 to	 protect	

the	 child	 from	 jeopardy,	 (ii)	 is	 unwilling	 or	 unable	 to	 take	 responsibility	 for	

the	 child	 within	 a	 time	 which	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	

needs,	 or	 (iii)	 has	 abandoned	 the	 child;	 and	 (2)	 with	 unfitness	 proved,	

termination	 of	 parental	 rights	 is	 in	 the	 best	 interest	 of	 the	 child.	 	 See	

18-A	M.R.S.	§	9-204(b);	22	M.R.S.	§	4055(1)(A),	(1)(B);	see	also	In	re	Scott	S.,	

2001	ME	114,	¶¶	17-21,	775	A.2d	1144	(holding	that	only	if	parental	unfitness	

is	proved	“does	the	court	consider	the	children’s	best	interests”).		“[A]lthough	

the	best	interest	factor	alone	may	prevent	the	termination	of	parental	rights,	it	

will	never,	standing	alone,	be	a	basis	for	a	termination.”		Id.	¶	21.	

       [¶33]		We	review	the	sufficiency	of	the	evidence	to	determine	“whether	

the	court	could	have	reasonably	been	persuaded	on	the	basis	of	the	evidence	

in	 the	 record	 that	 the	 required	 factual	 findings	 were	 highly	 probable.”		

In	re	Thomas	 H.,	 2005	 ME	 123,	 ¶	 18,	 889	 A.2d	 297.	 	 The	 father	 argues	 that	

there	 was	 insufficient	 evidence	 supporting	 the	 court’s	 findings	 of	 parental	

unfitness	and	its	ultimate	decision	to	terminate	the	father’s	parental	rights	as	

being	in	the	best	interests	of	his	children.	
                                                                                         17	

A.	    Issues	Related	to	the	Father’s	Fitness	to	Parent	

       1.	    Father’s	Imprisonment	

       [¶34]	 	 A	 court	 may	 not	 terminate	 parental	 rights	 based	 solely	 on	 a	

parent’s	 incarceration.	 	 See	 In	 re	 Alijah	 K.,	 2016	 ME	 137,	 ¶¶	 13-16,	

147	A.3d	1159.		“We	agree	that	a	parent’s	incarceration	is	but	one	factor	to	be	

considered	 by	 a	 court	 faced	 with	 a	 termination	 petition,	 [although]	 it	 is	 a	

factor—a	 factor	 that	 may,	 in	 some	 cases,	 lead	 a	 court	 to	 terminate	 that	

parent’s	rights.”		Id.		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	 protecting	 the	 child	 from	 jeopardy	 or	 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)(i),	 (ii);	 In	 re	 Alijah	 K.,	

2016	ME	137,	¶	14,	147	A.3d	1159.	

       [¶35]	 	 Here,	 the	 father	 is	 currently	 in	 prison.	 	 He	 is	 expected	 to	 be	

released	in	April	2018,	approximately	one	year	after	the	termination	hearing	

was	held.		He	has	had	no	opportunity	to	receive	rehabilitative	services,	and,	as	

noted	 earlier,	 he	 has	 been	 prohibited	 from	 having	 contact	 with	 his	 children.		

Given	 all	 of	 the	 circumstances	 of	 this	 case,	 we	 cannot	 affirm	 the	 conclusion	

that,	 as	 the	 court	 framed	 the	 issue,	 the	 fact	 of	 his	 incarceration	 and	 lack	 of	
18	

contact	 with	 the	 children	 will	 make	 the	 father	 incapable	 of	 engaging	 in	

parenting	of	the	children	after	his	release.	

      [¶36]		In	the	private	adoption	setting,	the	permanency	concerns	that	are	

typically	 present	 in	 state-initiated	 termination	 proceedings	 are	 not	 at	 issue.		

Here,	 the	 children	 are	 in	 a	 permanent	 living	 situation	 with	 their	 mother	 and	

stepfather,	which,	as	all	the	parties	testified,	is	not	going	to	change	regardless	

of	the	outcome	of	the	termination	and	adoption	processes.	

	     2.	    Protection	from	Abuse	Order	

	     [¶37]		“[A]	parent’s	prohibition	from	contact	with	a	child	pursuant	to	a	

protection	from	abuse	order	or	other	court	order,	should	not,	standing	alone,	

constitute	abandonment.”		Adoption	of	Lily	T.,	2010	ME	58,	¶	21,	997	A.2d	722.		

Parents	 subject	 to	 protection	 from	 abuse	 orders	 are	 obligated	 to	 make	 even	

greater	 efforts	 to	 foster	 relationships	 with	 their	 children	 using	 the	 means	

available	 to	 them.	 	 See	 id.;	 see	 also	 Adoption	 of	 T.D.,	 2014	 ME	 36,	 ¶	13,	

87	A.3d	726.	

      [¶38]	 	 Here,	 the	 father	 has	 been	 subject	 to	 a	 protection	 from	 abuse	

order,	and	also,	apparently,	conditions	of	incarceration	or	probation,	limiting	

his	contact	with	his	children.		Despite	the	order	in	place,	the	father	has	made	

efforts	to	maintain	contact	with	his	children.		During	his	first	prison	sentence,	
                                                                                         19	

he	 sent	 letters	 to	 his	 children.	 	 After	 being	 released,	 he	 had	 weekly	 phone	

contact	 with	 the	 children	 before	 returning	 to	 prison	 after	 violating	 his	

probation.		Upon	his	re-incarceration,	he	testified	that	he	sought	to	include	his	

children	 in	 a	 Christmas	 gift	 exchange	 program	 and	 reached	 out	 to	 prison	

officials	 to	 see	 about	 contacting	 his	 children,	 only	 to	 be	 told	 he	 was	 not	

allowed	to	have	direct	or	indirect	contact	with	them.	

       [¶39]	 	 These	 actions	 and	 the	 father’s	 own	 testimony	 demonstrate	 his	

desire	 and	 effort	 to	 maintain	 a	 relationship	 with	 his	 children.	 	 Despite	 all	 of	

the	 barriers	 in	 place	 preventing	 his	 contact	 with	 the	 children—the	

reasonableness	 of	 which	 we	 do	 not	 question	 here—the	 record	 reflects	 his	

efforts	 to	 maintain	 a	 parental	 relationship	 with	 his	 children.	 	 On	 this	 record,	

there	is	not	sufficient	evidence	supporting	the	findings	of	parental	unfitness,	

to	the	standard	of	clear	and	convincing	evidence,	to	justify	termination	of	the	

father’s	parental	rights.	

B.	    Issues	 Related	 to	 the	 Ultimate	 Determination	 that	 Termination	 of	 the	
       Father’s	Parental	Rights	is	in	the	Best	Interests	of	the	Children	
	
       1.	    The	 Court’s	 Exclusion	 of	 Testimony	 Regarding	 the	 Father’s	 Plans	
              for	Re-establishing	Contact	with	His	Children	
       	
       [¶40]		The	father	argues	that	the	court	erred	and	abused	its	discretion	

by	 sustaining	 the	 objection	 to	 questioning	 him	 regarding	 his	 plans	 to	
20	

re-establish	a	relationship	with	his	children	once	he	is	out	of	prison.		The	trial	

court	reasoned	that	the	father’s	testimony	concerning	his	plans	would	require	

him	to	speculate	and	that	it	was	therefore	inadmissible.	

      [¶41]	 	 We	 review	 the	 trial	 court’s	 determination	 that	 the	 necessary	

factual	foundation	to	admit	evidence	has	or	has	not	been	established	for	clear	

error,	and	its	ultimate	determination	to	admit	or	exclude	the	evidence	for	an	

abuse	 of	 discretion.	 	 Levesque	 v.	 Cent.	 Me.	 Med.	 Ctr.,	 2012	 ME	 109,	 ¶	 16,	

52	A.3d	933.		Evidence	is	relevant	if	it	has	any	tendency	to	make	the	existence	

of	 any	 fact	 that	 is	 of	 consequence	 to	 the	 determination	 of	 the	 action	 more	

probable	 or	 less	 probable	 than	 it	 would	 be	 without	 the	 evidence.	 	 M.R.	Evid.	

401;	 see	 also	 In	re	M.S.,	 2014	 ME	 54,	 ¶	 10,	 90	 A.3d	 443	 (“This	 standard	 for	

relevance	is	a	low	one.”).	

      [¶42]	 	 Measured	 against	 this	 low	 relevancy	 standard,	 the	 exclusion	 of	

the	 father’s	 testimony	 regarding	 his	 plans	 to	 re-establish	 a	 relationship	 with	

his	children	was	error.		The	court	was	required	to	decide	whether	the	father	

was	 “unwilling	 or	 unable	 to	 protect	 the	 child	 from	 jeopardy	 and	 those	

circumstances	 are	 unlikely	 to	 change	 within	 a	 time	 which	 is	 reasonably	

calculated	 to	 meet	 the	 child’s	 needs”	 or	 was	 “unwilling	 or	 unable	 to	 take	
                                                                                      21	

responsibility	 for	 the	 child	 within	 a	 time	 which	 is	 reasonably	 calculated	 to	

meet	the	child’s	needs.”		22	M.R.S.	§	4055(1)(B)(2)(b)(i),	(ii).	

      [¶43]	 	 The	 father’s	 testimony	 regarding	 his	 plans	 for	 re-establishing	 a	

relationship	 with	 his	 children	 was	 essential	 to	 the	 court’s	 evaluation	 of	

whether	 termination	 of	 the	 father’s	 parental	 rights	 would	 be	 in	 the	 best	

interests	of	the	children.		It	is	difficult	to	understand	how	the	court	could	have	

decided	whether	termination	of	parental	rights	was	in	the	best	interests	of	the	

children,	 a	 decision	 that	 necessarily	 looks	 to	 the	 future,	 without	 hearing	 the	

father’s	 testimony	 regarding	 his	 plans	 for	 a	 relationship	 with	 his	 children.		

The	father’s	testimony	regarding	his	plans	for	a	relationship	with	his	children	

also	 was	 relevant	 to	 the	 court’s	 determination	 of	 parental	 unfitness,	

specifically	 whether,	 looking	 to	 the	 future,	 the	 father	 would	 be	 unable	 or	

unwilling	 to	 protect	 his	 children	 from	 jeopardy	 or	 take	 responsibility	 for	 his	

children	within	a	time	reasonably	calculated	to	meet	their	needs.	

      [¶44]	 	 The	 court’s	 error	 in	 excluding	 the	 father’s	 testimony	 regarding	

his	plans	to	reestablish	a	relationship	with	his	children	was	not	harmless.		See	

M.R.	Civ.	P.	61.		An	error	is	reversible	and	not	harmless	if	a	“substantial	right”	

of	 the	 party	 is	 affected.	 	 See	 id.;	 In	 re	 Joshua	 B.,	 2001	 ME	 115,	 ¶	 10,	

776	A.2d	1240.	 	 Because	 the	 exclusion	 of	 this	 testimony	 prejudiced	 the	
22	

father’s	 ability	 to	 defend	 his	 parental	 fitness	 and	 had	 a	 direct	 effect	 on	 the	

father’s	 fundamental	 right	 to	 parent	 and	 the	 children’s	 best	 interests,	 the	

court’s	 error	 in	 excluding	 this	 testimony,	 by	 itself,	 would	 require	 that	 the	

judgment	be	vacated.	

           2.	    Lack	of	Evidence	Concerning	the	Stepfather’s	Prior	Terminations	
                  of	Parental	Rights	
           	
           [¶45]	 	 The	 evidence	 falls	 materially	 short	 of	 including	 the	 records,	

testimony,	or	other	evidence	regarding	the	prospective	adopting	parent’s	past	

history	 that	 should	 have	 been	 considered	 prior	 to	 terminating	 the	 father’s	

parental	rights.		It	is	unclear	why	these	records	were	not	disclosed,	but	they	

were	necessary	for	the	court	to	have	prior	to	determining	the	children’s	best	

interests.		See	In	re	Brandon	D.,	2004	ME	98,	¶¶	13,	15,	854	A.2d	228	(vacating	

the	court’s	judgment	terminating	the	father’s	parental	rights	where	the	court’s	

lack	 of	 findings	 concerning	 the	 children’s	 best	 interests	 was	 in	 direct	

proportion	 to	 the	 lack	 of	 evidence	 presented	 by	 the	 prospective	 adoptive	

parents).7	


      7		 We	 have	 said	 that	 “the	 deprivation	 of	 parental	 rights	 is	 in	 many	 ways	 similar	 to	 the	
deprivation	 of	 liberty	 interests	 at	 stake	 in	 criminal	 cases.”	 	 In	 re	 M.P.,	 2015	 ME	 138,	 ¶	 26,	
126	A.3d	718.		In	a	criminal	case,	the	criminal	defendant	must	be	afforded	a	proper	opportunity	to	
attack	evidence	presented	against	him	bearing	on	his	guilt	in	order	to	provide	the	defendant	with	a	
fair	 trial.	 	 See	 State	 v.	 Ledger,	 444	 A.2d	 404,	 412	 (Me.	 1982);	 State	 v.	 Lovely,	 451	 A.2d	 900,	 902	
(Me.	1982)	(vacating	the	court’s	judgment	where	the	court	denied	the	defendant’s	request	for	voir	
dire	aimed	at	a	type	of	bias	that	was	directly	intertwined	with	the	charges	alleged	against	him	and	
failed	to	develop	factual	circumstances	about	the	request	prior	to	making	a	judgment).	
                                                                                                               23	

        [¶46]	 	 The	 stepfather	 briefly	 testified	 about	 his	 three	 children	 from	

prior	relationships	and	the	prior	termination	of	his	parental	rights	as	to	two	of	

the	 children.	 	 There	 was	 also	 limited	 testimony	 regarding	 the	 stepfather’s	

struggles	 with	 substance	 abuse.	 	 Evidence	 in	 the	 record,	 however,	 does	 not	

disclose,	 for	 example:	 (i)	 why	 the	 stepfather’s	 rights	 to	 two	 of	 his	 three	

children	 were	 terminated;	 (ii)	 what	 was	 or	 is	 the	 nature	 of	 the	 stepfather’s	

relationship	with	the	mothers	of	each	of	his	three	children;	(iii)	where	the	two	

children,	 as	 to	 whom	 the	 stepfather’s	 parental	 rights	 were	 terminated,	 are	

now;	 (iv)	whether	 those	 two	 children	 were	 placed	 with	 individuals	 with	

whom	 the	 stepfather	 may	 have	 contact;	 (v)	 whether	 issues	 other	 than	

substance	abuse,	such	as	domestic	violence,	contributed	to	the	terminations;	

and	 (vi)	 why	 parental	 rights	 to	 a	 younger	 child	 were	 terminated	 while	 the	

father	was	permitted	to	maintain	limited	contact	with	one	of	the	ten-year-old	


     	
     In	 criminal	 cases,	 where	 self-defense	 is	 an	 issue	 essential	 to	 the	 defendant’s	 case,	 the	 court’s	
failure	 to	 instruct	 on	 self-defense	 deprives	 the	 defendant	 of	 a	 fair	 trial.	 	 State	 v.	 Davis,	
528	A.2d	1267,	1270	(Me.	1987).		Further,	in	a	post-conviction	hearing	where	the	court	is	asked	to	
evaluate	“claims	of	ineffective	[assistance	of	counsel]	arising	from	trial	counsel’s	failure	to	present	
evidence	 to	 impeach	 witnesses	 who	 provide	 incriminating	 testimony,	 the	 court	 may	 consider	
factors	such	as	the	strength	of	the	State’s	case,	the	effectiveness	of	the	actual	defense	presentation,	
and	 the	 significance	 of	 the	 impeachment	 value	 of	 evidence	 that	 trial	 counsel	 failed	 to	 develop.”		
Theriault	v.	State,	2015	ME	137,	¶	30	n.9,	125	A.3d	1163.	
     	
     Although	 the	 present	 case	 is	 not	 a	 criminal	 case,	 before	 terminating	 a	 parent’s	 fundamental	
right	 to	 parent	 his	 or	 her	 children	 in	 order	 to	 permit	 those	 children	 to	 be	 adopted	 by	 a	 specific	
individual,	 the	 court	 cannot	 determine	 that	 adoption	 is	 in	 the	 children’s	 best	 interest,	 to	 the	
standard	 of	 clear	 and	 convincing	 evidence,	 without	 having	 all	 of	 the	 necessary	 information	 about	
the	prospective	adoptive	parent.	
24	

boys.	 	 In	 response	 to	 questions	 at	 oral	 argument,	 we	 were	 advised	 that	 the	

two	 ten-year-old	 boys	 had	 different	 mothers,	 but	 this	 information	 was	 not	

before	the	trial	court.	

      [¶47]		This	case	appears	to	be	a	matter	of	first	impression	in	requesting	

the	court	to	terminate	the	parental	rights	of	a	father	so	that	his	children	may	

be	 adopted	 by	 a	 stepfather	 who,	 when	 he	 was	 at	 about	 the	 same	 age	 as	 the	

father	is	now,	had	his	parental	rights	terminated	to	two	of	his	three	children.		

Were	the	stepfather	facing	a	state-initiated	child	protective	proceeding,	there	

could	 be	 a	 rebuttable	 presumption	 that	 he	 is	 unwilling	 or	 unable	 to	 protect	

the	 children	 from	 jeopardy	 because	 a	 “court	 has	 previously	 terminated	

parental	 rights	 to	 another	 child	 who	 is	 a	 member	 of	 the	 same	 family.”	 	 See	

22	M.R.S.	 §	4055(1-A)(D).	 	 Considering	 the	 unique	 nature	 of	 this	 case,	 it	 is	

concerning	 that	 neither	 the	 parties	 nor	 the	 guardian	 ad	 litem	 presented	

essential	details	of	the	stepfather’s	prior	history	or	relationships	with	children	

to	the	court.	

      [¶48]	 	 Without	 sufficient	 background	 information	 and	 documentation	

regarding	 the	 stepfather’s	 prior	 terminations	 of	 parental	 rights,	 we	 cannot	

affirm	the	court’s	final	judgment	terminating	the	father’s	parental	rights.		The	

court	could	not,	without	this	information,	find	that	termination	of	the	father’s	
                                                                                         25	

parental	 rights	 was	 in	 the	 best	 interests	 of	 his	 children	 in	 order	 to	 free	 the	

children	 for	 adoption	 by	 the	 stepfather.	 	 Terminating	 the	 father’s	 parental	

rights	without	this	information	was	error.	

	      3.	    Best	Interests	of	the	Children	

	      [¶49]		In	considering	the	children’s	best	interests,	the	court	is	required	

to	 consider	 “the	 needs	 of	 the	 child[ren],	 including	 the	 child[ren]’s	 age,	 the	

child[ren]’s	 attachments	 to	 relevant	 persons,	 periods	 of	 attachments	 and	

separation,	the	child[ren]’s	ability	to	integrate	into	a	substitute	placement	or	

back	 into	 [their]	 parent’s	 home	 and	 the	 child[ren]’s	 physical	 and	 emotional	

needs.”		22	M.R.S.	§	4055(2).		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.	 	 In	re	Jacob	 B.,	

2008	ME	 168,	 ¶	 14,	 959	 A.2d	 734;	 see	 also	 Adoption	 of	 Lily	T.,	 2010	ME	 58,	

¶	37,	997	A.2d	722.	

       [¶50]	 	 Isabelle	 and	 Abigail	 were	 seven	 and	 four	 years	 of	 age,	

respectively,	at	the	time	of	the	termination	hearing.		Both	girls	live	in	a	stable,	

permanent	family	home	with	their	mother	and	stepfather.		The	girls	call	their	

stepfather	“Daddy”	and	he	is	a	big	part	of	their	lives,	acting	as	a	father-figure	

for	 them	 in	 many	 ways.	 	 However,	 the	 lack	 of	 evidence	 regarding	 the	
26	

stepfather’s	 prior	 termination	 of	 his	 parental	 rights	 to	 two	 of	 his	 three	

children	 did	 not	 allow	 the	 court	 to	 make	 an	 appropriate	 determination	 that	

the	 adoption	 of	 Isabelle	 and	 Abigail	 by	 this	 individual	 was	 in	 the	 children’s	

best	interests.	

      [¶51]		Significantly,	the	record	contains	no	evidence	that	the	father	ever	

harmed	 his	 children.	 	 The	 mother	 and	 the	 father	 both	 testified	 that,	 up	 until	

his	arrest,	the	father	was	a	good	parent	to	his	children	and	that	there	were	no	

concerns	 about	 his	 parenting	 abilities.	 	 The	 reasons	 for	 the	 father’s	 limited	

contact	 with	 his	 children	 since	 his	 arrest	 and	 incarcerations	 were	

insufficiently	 explored	 on	 this	 record.	 	 On	 this	 record,	 the	 evidence	 does	 not	

demonstrate,	 to	 the	 standard	 of	 clear	 and	 convincing	 evidence,	 that	

termination	of	the	father’s	parental	rights	was	in	the	children’s	best	interests.	

                                   IV.		CONCLUSION	

      [¶52]	 	 In	 these	 circumstances,	 neither	 the	 court’s	 findings,	 nor	 the	

record	upon	which	those	findings	are	based,	can	support	a	determination,	by	

clear	 and	 convincing	 evidence,	 that	 the	 father	 is	 an	 unfit	 parent	 or	 that	 the	

father	cannot	provide	a	nurturing	parental	relationship	with	his	children	once	

the	relationship	can	be	re-established.		Further,	the	lack	of	sufficient	evidence	

concerning	the	stepfather	and	the	court’s	error	in	excluding	the	father’s	plans	
                                                                                      27	

regarding	reunification	with	his	children	undermine	the	court’s	unfitness	and	

best	interests	findings.	

         [¶53]	 	 Accordingly,	 we	 conclude	 that	 the	 court’s	 finding	 of	 parental	

unfitness	 and	 its	 determination	 of	 the	 children’s	 best	 interests	 are	 not	

supported	 by	 clear	 and	 convincing	 evidence	 in	 the	 record.	 	 Therefore,	 the	

judgment	terminating	the	father’s	parental	rights	must	be	vacated.	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 entry	 of	
                            judgment	 denying	 the	 petition	 for	 termination	
                            of	the	father’s	parental	rights.	
	
	     	     	      	      	      	
	
Wayne	Doane,	Esq.	(orally),	Exeter,	for	appellant	father	
	
Kerry	 Clark	 Jordan,	 Esq.	 (orally),	 Griffin	 &	 Jordan,	 LLC,	 Orono,	 for	 appellees	
mother	and	stepfather	
	
	
Penobscot	County	Probate	Court	docket	numbers	A-2016-48-1	and	A-2016-49-1	
FOR	CLERK	REFERENCE	ONLY	
