MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	133	
Docket:	      Yor-16-368	
Submitted	
  On	Briefs:	 June	14,	2017	
Decided:	     June	27,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   IN	RE	GABRIEL	W.	
	
	
MEAD,	J.	

       [¶1] The	parents	of	Gabriel	W.	appeal	from	a	judgment	entered	by	the	

District	 Court	 (Biddeford,	 Janelle,	 J.)	 terminating	 their	 parental	 rights	 to	 the	

child	pursuant	to	22	M.R.S.	§	4055(1)(B)(2)	(2016).		Each	challenges	the	court’s	

findings	 by	 clear	 and	 convincing	 evidence	 that	 they	 are	 unfit,	 and	 its	 finding	

that	 termination	 of	 their	 parental	 rights	 is	 in	 the	 child’s	 best	 interest.		

Additionally,	 the	 mother	 asserts	 that	 her	 right	 to	 due	 process	 was	 violated	

when	the	court	amended	its	termination	order	without	holding	a	new	hearing.		

Because	 the	 evidence	 supports	 the	 court’s	 factual	 findings	 and	 discretionary	

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

we	affirm	the	judgment.	

A.	    Sufficiency	of	the	Evidence	

	      [¶2]	 	 Applying	 the	 statute,	 the	 court	 found	 by	 clear	 and	 convincing	

evidence	 that	 “the	 parents	 are	 unwilling	 or	 unable	 to	 protect	 the	 child	 from	
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jeopardy	and	these	circumstances	are	unlikely	to	change	within	a	time	which	is	

reasonably	calculated	to	meet	the	child’s	needs.	.	.	.	The	court	next	finds	that	

termination	of	parental	rights	is	in	the	best	interest	of	the	child.”1		See	22	M.R.S.	

§	 4055(1)(B)(2)(a),	 (b)(i).	 	 We	 review	 the	 factual	 findings	 supporting	 the	

unfitness	determinations	for	clear	error,	see	In	re	Logan	M.,	2017	ME	23,	¶	3,	

155	A.3d	430,	and	apply	the	same	standard	to	the	factual	findings	supporting	

the	 best	 interest	 determination,	 although	 we	 review	 the	 court’s	 ultimate	

conclusion	 that	 termination	 was	 in	 the	 child’s	 best	 interest	 “for	 an	 abuse	 of	

discretion,	viewing	the	facts,	and	the	weight	to	be	given	them,	through	the	trial	

court’s	lens,”	giving	the	court’s	judgment	“substantial	deference.”		In	re	Caleb	M.,	

2017	ME	66,	¶	33,	---	A.3d	---	(quotation	marks	omitted).	

	        [¶3]		The	court’s	factual	findings	are	supported	by	competent	evidence	in	

the	record	and	are	therefore	not	clearly	erroneous.		See	In	re	M.B.,	2013	ME	46,	

¶	 40,	 65	 A.3d	 1260.	 	 Concerning	 the	 father,	 the	 court	 found	 that	 he	 had	 not	

complied	with	his	reunification	plan	and	consequently	reunification	had	been	

unsuccessful;	had	been	inconsistent	in	visiting	the	child	and	had	“struggled	to	

connect”	with	the	child	since	the	child	was	placed	in	DHHS	custody	at	five	days	



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    		The	court	made	findings	in	an	order	entered	July	18,	2016,	and	made	additional	determinations	
in	an	amended	order	entered	August	5,	2016.		We	address	the	mother’s	contention	that	the	second	
order	violated	her	right	to	due	process	infra,	but	otherwise	treat	the	orders	as	a	single	judgment.	
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old;	 had	 repeatedly	 indicated	 that	 parenting	 an	 infant	 would	 be	 too	 difficult	

given	 that	 he	 cared	 for	 two	 other	 young	 children;	 had	 failed	 to	 engage	 in	

services	recommended	by	the	Department	and	by	his	psychologist;	and	had	not	

taken	 responsibility	 for	 any	 of	 the	 conditions	 that	 the	 court	 had	 previously	

found	placed	the	child	in	jeopardy.	

	     [¶4]	 	 Concerning	 the	 mother,	 the	 court	 found	 that	 the	 child	 was	 born	

drug-affected.		It	further	found	that	the	mother	does	not	have	a	home	of	her	

own,	 having	 lived	 with	 her	 aunt	 for	 over	 a	 year,	 although	 she	 “will	 begin	

working	two	different	jobs,	which	she	believes	will	help	her	eventually	secure	

stable	housing”;	“struggle[s]	with	drug	and	alcohol	addiction,	as	well	as	mental	

health	 issues,”	 having	 been	 diagnosed	 with	 “Generalized	 Anxiety	 Disorder,	

Generalized	Depression	.	.	.	Opioid	Dependence	.	.	.	[and]	Post-Traumatic	Stress	

Disorder”;	 “continue[s]	 to	 receive	 mental	 health	 and	 substance	 abuse	

treatment	 .	 .	 .	 [and]	 has	 been	 prescribed	 several	 medications,	 including	

Suboxone”;	 “continues	 to	 have	 relapses	 with	 alcohol	 and	 marijuana,	

demonstrated	 by	 positive	 urine	 screens”;	 has	 not	 successfully	 reunified	 with	

the	child	because	she	has	not	complied	with	her	reunification	plan;	“fails	to	take	

responsibility	 for	 behavior	 that	 has	 impacted	 the	 wellbeing	 of	 her	 children”;	
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and	“has	not	been	consistent	with	her	visitation	with	[the	child],	and	has	not	

been	cooperative	with	the	Department.”	

	      [¶5]		Finally,	the	court,	citing	its	unfitness	findings	and	the	parents’	failed	

reunification	 efforts,	 found	 that	 “termination	 is	 in	 the	 best	 interest	 of	 [the	

child].		[The	child]	has	been	in	the	care	of	[the	foster	mother]	practically	his	

whole	life.		[He]	is	happy	in	[her]	care	and	has	a	close	bond	with	her.”	

	      [¶6]	 	 The	 court’s	 findings,	 based	 on	 evidence	 in	 the	 record,	 explaining	

why	 the	 parents	 cannot	 or	 are	 unwilling	 to	 protect	 the	 child	 from	 jeopardy	

within	the	time	required	by	statute	and	why	the	child’s	best	interest	requires	

termination,	are	sufficient	to	support	the	judgment.		The	mother’s	contention	

that	 the	 court	 erred	 in	 making	 those	 determinations	 because	 “DHHS	 did	 not	

engage	in	reasonable	reunification	efforts”	is	not	persuasive	on	this	record,	and	

in	any	event,	as	we	recently	reiterated,	“because	the	Department’s	compliance	

with	its	reunification	duties	prescribed	in	22	M.R.S.	§	4041(1-A)	[2016]	is	not	a	

discrete	 element	 of	 proof	 in	 a	 termination	 proceeding,	 any	 failure	 of	 the	

Department	to	comply	with	those	duties	does	not	preclude	a	finding	of	parental	

unfitness.”	 	 In	 re	 Magdalena	 F.,	 2016	 ME	 125,	 ¶	 9	 n.3,	 146	 A.3d	 1103	 (citing	

In	re	Doris	G.,	2006	ME	142,	¶	17,	912	A.2d	572).	
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B.	     Due	Process	

	       [¶7]		The	mother	contends	that	it	was	a	violation	of	due	process	for	the	

court	 to	 make	 an	 explicit	 finding	 concerning	 her	 parental	 unfitness	 in	 an	

amended	 order	 without	 first	 holding	 a	 new	 hearing.	 	 “We	 review	 de	 novo	

whether	an	individual	was	afforded	procedural	due	process.		The	fundamental	

requirement	of	due	process	is	the	opportunity	to	be	heard	at	a	meaningful	time	

and	 in	 a	 meaningful	 manner.”	 	 Mitchell	 v.	 Krieckhaus,	 2017	 ME	 70,	

¶	16,	---	A.3d	---	(alteration	and	quotation	marks	omitted).		More	specifically,	

“[d]ue	process	requires:	notice	of	the	issues,	an	opportunity	to	be	heard,	the	

right	 to	 introduce	 evidence	 and	 present	 witnesses,	 the	 right	 to	 respond	 to	

claims	and	evidence,	and	an	impartial	fact-finder.”		In	re	Caleb	M.,	2017	ME	66,	

¶	21,	---	A.3d	---	(quotation	marks	omitted).	

	       [¶8]	 	 The	 mother	 was	 afforded	 each	 of	 those	 elements	 at	 the	 two-day	

hearing	held	on	June	3	and	June	14,	2016.2		In	its	July	18,	2016,	judgment,	the	

court	found	explicitly	that	termination	was	in	the	child’s	best	interest	and	made	

the	 findings	 concerning	 parental	 fitness	 recited	 supra,	 although	 it	 did	 not	

explicitly	find	that	the	mother	was	an	unfit	parent.		In	its	August	9,	2016,	order	




    2
     		The	mother	did	not	attend	the	first	day	of	the	hearing,	but	she	was	represented	by	counsel	who	
fully	participated.	
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amending	the	original	judgment,	the	court	found	no	new	facts	concerning	the	

mother’s	fitness.		The	order	stated:	

    The	court	finds	by	clear	and	convincing	evidence	that	the	parents	
    are	 unwilling	 or	 unable	 to	 protect	 the	 child	 from	 jeopardy	 and	
    these	circumstances	are	unlikely	to	change	within	a	time	which	is	
    reasonably	 calculated	 to	 meet	 the	 child’s	 needs.	 	 In	 making	 this	
    finding,	the	court	hereby	incorporates	its	findings	from	the	July	18,	
    2016[,]	Termination	Order.	
    	
    The	 court	 next	 finds	 that	 termination	 of	 parental	 rights	 is	 in	 the	
    best	 interest	 of	 the	 child.	 	 In	 making	 this	 finding,	 the	 court	
    incorporates	the	findings	of	the	July	18,	2016[,]	Termination	Order.	
    	
    The	Court	has	independently	reached	this	conclusion	and	applied	
    its	 own	 independent	 analysis	 in	 arriving	 at	 these	 legal	 findings.		
    This	 Order	 simply	 clarifies	 the	 Order	 in	 which	 the	 court	 makes	 its	
    findings	and	that	the	court	has	specifically	made	these	findings.	
    	
(Emphasis	added	and	numerical	headings	omitted.)	

	     [¶9]		Because	the	mother	fully	participated	in	the	hearing	from	which	the	

facts	 underlying	 the	 court’s	 legal	 judgment	 were	 derived—that	 is,	 she	 was	

“heard	at	a	meaningful	time	and	in	a	meaningful	manner,”	Mitchell,	2017	ME	70,	

¶	16,	---	A.3d	---	(quotation	marks	omitted)—she	was	afforded	due	process.	

	     The	entry	is:	

                    Judgment	affirmed.	

	     	      	      	     	      	

	
	
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Jesse	James	Ian	Archer,	Esq.,	Lewiston,	for	appellant	Mother	
	
Rubin	Guedalie	Segal,	Esq.,	Portland,	for	appellant	Father	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Biddeford	District	Court	docket	number	PC-2015-18	
FOR	CLERK	REFERENCE	ONLY	
	
