MAINE SUPREME JUDICIAL COURT                                           Reporter of Decisions
Decision:   2019 ME 174
Docket:     Cum-19-248
Submitted
 On Briefs: November 21, 2019
Decided:    December 30, 2019

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



                          IN RE CHILDREN OF DANIELLE M.


PER CURIAM

         [¶1] Danielle M. appeals from a judgment entered by the District Court

(Portland, Eggert, J.) terminating her parental rights to her three children, and

the father appeals from a judgment entered by the court terminating his

parental rights to the child they have in common, who is the youngest of the

children. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i), (ii), (iv) (2018). Each

parent argues that there was insufficient evidence to support an order

terminating his or her parental rights, and the father also argues that the

Department of Health and Human Services did not provide appropriate and

necessary reunification services. We affirm the judgment.

                                    I. BACKGROUND

         [¶2] In December 2017, the Department filed a petition for a child

protection order and preliminary protection order for each of the three

children, who at that time were eight, four, and two years old. The petitions
2

alleged, and the accompanying affidavits from the Department averred, that

the mother was abusing illicit drugs and alcohol and that the children were

present during three different violent altercations involving the mother. With

respect to the father of the youngest child, the petition and affidavit further

cited as bases for a preliminary protection order a domestic violence incident

during which the father pushed the mother down the stairs and strangled her

with the children present, and a physical altercation between him, the mother,

and the father of the oldest child involving a crowbar, during which the

children were nearby.

        [¶3] The court (Powers, J.) entered orders of preliminary protection

placing the children in the Department’s custody.1 After the parents of each

child waived the opportunity for a summary preliminary hearing, the court

entered an order maintaining the Department’s custody of each child.

        [¶4] In March 2018, the court (Eggert, J.) entered a jeopardy order, with

the parents’ agreement, as to each of the three children. Jeopardy was based


    1Originally, two separate petitions were filed because of the different parentage of the children:
one petition was for the oldest child, and the other was for the two younger children. The court
(Lawrence, J.) issued preliminary protection orders regarding the three children on December 11,
2017. However, the second petition was subsequently amended to remove the middle child, and a
third petition was filed naming only the middle child and listing that child’s father as unknown. The
court (Powers, J.) issued preliminary protection orders regarding the youngest child and the middle
child on December 13, 2017, based on the amended second petition and the third petition, and the
Department retained custody of all three children.
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on alcohol and substance abuse, mental health issues, exposure of the children

to violence, and the family’s prior child protective history. The court ordered

the parents to participate in mental health evaluations and follow

recommendations, undergo substance abuse evaluations to determine

appropriate treatment, and submit to random drug testing. The permanency

plan was for reunification of the children with their parents.

       [¶5] In February 2019, the Department petitioned to terminate the

mother’s parental rights to all three children, and the father’s parental rights

to the youngest child,2 based on their lack of consistent progress toward any

of the rehabilitation and reunification goals.

       [¶6] A hearing was held on the petitions to terminate the parents’

parental rights on May 13 and 14, 2019.                    After hearing testimony and

accepting documents in evidence, the court entered two judgments, which, in

combination, terminated the parental rights of both parents to their

respective children on May 23, 2019. In each judgment, the court made the

following findings by clear and convincing evidence, and its findings are




  2   The Department also petitioned to terminate the parental rights of the father of the eldest
child. However, that father later consented to the termination of his parental rights, and the
termination of his parental rights is not at issue in this appeal.
4

supported by competent evidence in the record. See In re Daniel H., 2017 ME

89, ¶ 2, 160 A.3d 1182.

      On December 7, 2017, Mother and the children were involved in
      an automobile accident as passengers and Mother had a physical
      altercation with the driver of the other car while the children
      were present. The police responded and were concerned that
      Mother was under the influence of alcohol. The next day [the
      mother and both fathers] were involved in a serious altercation . . .
      with a crowbar in front of the children. Again it was believed that
      Mother was under the influence of alcohol. [The mother and one
      of the fathers] were arrested and [the other father] was
      hospitalized. The children were safety planned and placed with a
      former foster parent. Criminal charges against Mother were later
      dismissed. Mother was ordered to participate in a substance
      abuse evaluation to determine appropriate treatment, and, also to
      participate in a mental health evaluation and follow
      recommendations.

            Mother’s Rehabilitation Plan focused upon Mental Health
      treatment and Substance Abuse Treatment. There was concern
      about her drug and alcohol use while she was caring for the
      children. The goal of the substance abuse treatment was to help
      Mother get to a place where she could be a safe and sober
      caretaker for her children. Mother was to submit to drug testing
      upon request. Mother was also to have regular visitation with the
      children. Throughout this case those visits have been regularly
      attended and have been fully supervised. Mother’s progress on
      her reunification plan has been irregular and other than visitation
      none of the steps have been completed.

            In her earlier case Mother was able to complete her
      reunification program and be successfully reunited with the
      children in about seventeen months. She knows how to do it. In
      this case she is now seventeen months from the date of the
      granting of the PPO, and little progress has been made. She has
      done no mental health counseling which she acknowledges she
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needs for her panic anxiety and depression, but has not engaged
in the counseling that would help her. She has participated in
some substance abuse counseling, but not consistently with any
one program to make any significant progress. She has taken only
three drug screens and all were positive for a substance she
should not have been using. The initial petition included concerns
about her alcohol intoxication, and complaints of her alcohol use
has dogged her throughout the case including as recently as April
17, 2019 when she was intoxicated at the METRO substation and
creating a scene when she couldn’t produce a picture i.d. for a bus
pass. Again she acknowledges her need for help with her
addictions, but has not completed any of the programs which may
have helped her.

      The Guardian ad litem has smelled the odor of alcohol on
Mother’s breath the last three times they had been in court
together including on the first day of this hearing. Mother
appears to be using alcohol to cope with her anxiety and that
usage is continuing to the present. In addition the GAL has also
learned that Mother has lost her apartment and has been
homeless. She does not presently have the ability to provide safe
and stable housing for [the children].

       [The children] w[ere] out of her care for much of the
seventeen months of the duration of her first child protection
petition. [They] ha[ve] now been out of her care for another
seventeen months during this petition. Contrary to the first time
when she successfully went from supervised visits through the
process leading up to trial placement and dismissal of the petition
in seventeen months, in this petition seventeen months have
elapsed and she has not progressed beyond supervised visits.
Because of her behavior and reactivity to reports from the
children during visits no plans have been made to progress to
check in visits, never mind in home or unsupervised visits.
Allowing more time to participate in the programming she should
have been doing all along is not in the children’s best interests.
6

      [¶7] In addition to his involvement in the violent incidents described

above, the court made the following specific findings pertaining to the father:

             In addition to the evaluations ordered in the Jeopardy Order
      [the father] was required by his reunification plan to participate
      in education about violence, and to participate in a mental health
      evaluation. He did obtain a psychosocial screening, but that is not
      a substitute for a mental health evaluation which would be more
      comprehensive and be based upon input from others. When
      asked about performing the reunification requirements, he
      responded that the assessment was enough and that he was really
      only a support for Mother and not interested in reunification for
      himself. He did attend supervised visits up until October 31, 2018
      when he was arrested and charged with attempted murder and
      other lesser charges by indictment based upon an allegation of an
      attack . . . with his automobile. He remains incarcerated and his
      case is set for jury trial . . . . No evidence was presented during the
      hearing to allow the Court to make findings on the strength of the
      charges, but he will be incarcerated at least until after the jury
      trial. He has in any event expressed no interest in being involved
      in the reunification process.

      [¶8] With respect to the two younger children, the court found,

               [They] now have a stable placement with the same family
      . . . . [The youngest child] has had some . . . issues being dealt with
      in counseling. . . . [The youngest child] is doing well and is happy
      and comfortable with [the] foster family. [The middle child] is . . .
      engaging and talkative . . . with great energy. [The child] is very
      bright and has superior reading skills . . . [and] is happy and
      comfortable in [the] foster home . . . . The foster family makes
      sure that both children have contact with [the oldest child].

      [¶9] With respect to the oldest child, the court found,

      [The child] now has a stable placement with a family. . . . [The
      child] has [established a] place in the foster family with three
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      other [children], and has adjusted well. [The child] is doing well
      in school and teachers say [the child] is a pleasure to have in class.
      [The child] is participating in counseling. [The child] says that all
      is well in [the] foster home.

      [¶10] Based on these findings, the court found that the Department had

made reasonable efforts to rehabilitate and reunify the family, including

through placement and monitoring in licensed foster homes, supervised

visitation, referrals for mental health and substance abuse treatment services,

family team meetings, and case worker assistance. The court found that,

despite these efforts, the parents were unable to protect the children from

jeopardy and these circumstances are unlikely to change within a time

reasonably calculated to meet the needs of the children; that the parents were

unable to take responsibility for the children within a time reasonably

calculated to meet the needs of the children; that the parents had failed to

make a good faith effort to rehabilitate and reunify with the children; and that

termination of the parents’ parental rights is in the children’s best interests.

See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i), (ii), (iv). The court also found that all

three children have good prospects to be adopted.
8

         [¶11]     The parents timely appealed from the court’s judgment.3

See 22 M.R.S. § 4006 (2018); M.R. App. P. 2A, 2B.

                                        II. DISCUSSION

A.       Termination of the Mother’s and Father’s Parental Rights

         [¶12]    Both parents argue that there was insufficient evidence to

support the court’s judgment terminating their parental rights. We review the

court’s factual findings supporting the unfitness and best interest

determinations for clear error, and 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 Gabriel W., 2017

ME 133, ¶ 2, 166 A.3d 982 (quotation marks omitted).

         [¶13] Before a court orders the termination of parental rights, it must

first find by clear and convincing evidence that one of the following

circumstances exists:

         (i) The parent is 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;



     On June 5, 2019, prior to filing a notice of appeal, the father moved for reconsideration and for
     3

the court to amend its findings and issue additional findings of fact and conclusions of law. The
father’s motion was denied on July 1, 2019.
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      (ii) The parent has been unwilling or unable to take responsibility for
      the child within a time which is reasonably calculated to meet the
      child’s needs;

      (iii) The child has been abandoned; or

      (iv) The parent has failed to make a good faith effort to rehabilitate
      and reunify with the child pursuant to section 4041.

22 M.R.S. § 4055(1)(B)(2)(b) (2018).           Then, the court must determine

whether there is clear and convincing evidence to support a finding that

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

§ 4055(1)(B)(2)(a).

      [¶14]   We have reviewed the record in its entirety to determine

whether the evidence of parental unfitness and the children’s best interests

are sufficient, and we conclude that (1) competent evidence in the record

supports the court’s finding, by clear and convincing evidence, of one or more

grounds of parental unfitness as to each parent, see id. § 4055(1)(B)(2)(b),

and (2) the court did not commit clear error or abuse its discretion in

determining that termination of each parent’s parental rights is in each child’s

best interest, see id. § 4055(1)(B)(2)(a). See In re Daniel H., 2017 ME 89, ¶ 17,

160 A.3d 1182.

      [¶15] To the extent the father argues that the Department failed to

provide appropriate and necessary reunification services, we note that “[t]he
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Department’s compliance with its rehabilitation and reunification duties . . .

does not constitute a discrete element requiring proof in termination

proceedings, nor does the failure of the Department to comply with [its

duties] preclude findings of parental unfitness.” Id. ¶ 15 (quotation marks

omitted). Any lack of reunification efforts is considered as “one of many

factors in evaluating the parent’s fitness.” Id.

      [¶16]    Although the father contends that the Department failed to

perform its duties, the Department developed a rehabilitation and

reunification plan for him. Cf. In re Thomas D., 2004 ME 104, ¶¶ 41-42, 854

A.2d 195. There is competent evidence in the record to support the court’s

finding that the father was not interested in reunification for himself and was

merely supporting the mother.         Therefore, we cannot conclude that the

Department failed to “[m]ake good faith efforts to cooperate with the parent

in pursuit of the plan.” 22 M.R.S. § 4041(1-A)(A)(3) (2018).

      The entry is:

                   Judgment affirmed.
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Seth Berner, Esq., Portland, for appellant mother

Matthew Govan, Esq., Govan Law Office, P.A., Portland, for appellant father

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


Portland District Court docket numbers PC-2017-84, PC-2017-85, and PC-2017-86
FOR CLERK REFERENCE ONLY
