MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	205	
Docket:	      And-17-154	
Submitted	
  On	Briefs:	 September	27,	2017	
Decided:	     October	12,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                           IN	RE	DAMEIN	F.	
	
	
PER	CURIAM	

        [¶1]	 	 The	 father	 of	 Damein	 F.	 appeals	 from	 a	 judgment	 of	 the	 District	

Court	(Lewiston,	Dow,	J.)	terminating	his	parental	rights	pursuant	to	22	M.R.S.	

§	 4055(1)(A)(1)(a)	 and	 (B)(2)(b)(i)-(ii)	 (2016).	 	 The	 father	 challenges	 the	

sufficiency	 of	 the	 evidence	 to	 support	 the	 judgment.1	 	 Because	 the	 evidence	

supports	the	court’s	findings,	we	affirm	the	judgment.		

                                           I.		BACKGROUND	

        [¶2]	 	 The	 court	 found	 the	 following	 facts,	 which	 are	 supported	 by	

competent	 record	 evidence,	 by	 clear	 and	 convincing	 evidence.	 	 See	 In	 re	

Caleb	M.,	2017	ME	66,	¶	27,	159	A.3d	345.			

    1		The	father	also	argues	that	he	was	prejudiced	because	he	was	not	provided	legal	counsel	until	

eight	 months	 after	 Damein	 entered	 State	 custody.	 	 While	 the	 Child	 and	 Family	 Services	 and	 Child	
Protection	 Act	 provides	 that	 parents	 are	 entitled	 to	 legal	 counsel	 in	 child	 protection	 proceedings,	
22	M.R.S.	§	4005(2)	(2016),	paternity	was	not	established	in	this	case	until	Damein	was	almost	one	
year	 old.	 	 The	 father	 was	 appointed	 counsel	 within	 one	 week	 of	 his	 motion	 for	 appointment	 of	
counsel.	 	 In	 fact,	 he	 was	 granted	 counsel	 prior	 to	 the	 court’s	 order	 of	 paternity	 (Lewiston,	
Beliveau,	J.).		Because	the	father	was	appointed	counsel	when	he	was	legally	entitled	to	it,	we	find	no	
error.		
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          [¶3]		Damein	F.	was	born	on	July	13,	2014.		The	Department	of	Health	

and	 Human	 Services	 (the	 Department)	 filed	 a	 child	 protection	 petition	 on	

November	5,	2014.		The	court	(Lewiston,	Schneider,	J.)	entered	a	preliminary	

protection	order	that	day,	placing	Damein	in	State	custody.		

          [¶4]		For	the	first	year	of	Damein’s	life,	the	father	was	incarcerated.		He	

had	been	unable	to	post	bail	on	burglary,	theft,	and	other	charges	related	to	a	

crime	spree	he	conducted	with	Damein’s	mother	in	2014.		After	entering	into	

a	plea	agreement	in	the	Co-Occurring	Disorders	and	Veterans	Court	(CODVC)	

on	July	14,	2015,	the	father	was	released	from	jail	and	placed	on	three	years	of	

probation.	2		The	father	agreed	to	a	jeopardy	order	on	October	1,	2015.		

          [¶5]	 	 After	 the	 father’s	 release	 from	 jail,	 the	 Department	 made	

reasonable	 efforts	 to	 rehabilitate	 and	 reunify	 father	 and	 child,3	 including	

supervised	 and	 unsupervised	 visitation,	 drug	 screening	 and	 psychological	

assessment	 for	 the	 father,	 and	 planning	 for	 trial	 placement	 to	 begin	 in	 late	

June	 or	 early	 July	 2016.	 	 The	 court	 found	 that	 “[u]nder	 the	 structure	 of	 the	

CODVC,	 the	 father	 has	 done	 remarkably	 well.	 	 He	 seems	 to	 have	 engaged	


     2		The	court	found	that	the	sentence	“was	the	latest	in	a	line	of	long	prison	sentences,	both	state	

and	federal,	that	have	occupied	much	of	the	father’s	adult	life.		The	father’s	criminal	behavior	has	
been	related	to	drug	addiction.”		

     3	
     	 Damein’s	 mother	 remained	 incarcerated	 at	 the	 time	 of	 the	 hearing	 on	 the	 Department’s	
petition	for	termination	of	parental	rights.		She	consented	to	termination.		
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earnestly	with	service	providers	and	sought	out	additional	supports.		He	had	

nearly	34	months	clean	and	sober	by	the	last	day	of	trial.”			

      [¶6]		Despite	the	father’s	efforts,	in	May	2016,	

      [a]fter	 only	 the	 second	 overnight	 visit	 [with	 Damein]	 .	 .	 .	 [t]he	
      father	 left	 the	 daycare	 and	 went	 directly	 to	 the	 .	 .	 .	 hospital,	
      resulting	in	a	twelve-day	psychiatric	admission.		The	records	from	
      that	hospital	stay	indicate	that	the	father	was	overwhelmed	by	the	
      combined	 stressors	 of	 substance	 abuse	 recovery	 work	 and	 child	
      reunification	 work.	 .	 .	 .	 	 [H]e	 returned	 later	 in	 July	 for	 another	
      six-day	stint	for	crisis	stabilization.			
      	
      [¶7]	 	 On	 July	 12,	 2016,	 the	 Department	 filed	 a	 petition	 to	 terminate	

parental	 rights.	 	 A	 termination	 hearing	 for	 the	 father	 was	 held	 on	

December	14	and	16,	2016,	and	January	6,	2017.		The	guardian	ad	litem	(GAL)	

recommended	 termination	 and	 believed	 it	 to	 be	 in	 the	 child’s	 best	 interest.		

According	to	the	GAL,	the	foster	family	was	Damein’s	“de	facto”	family	and	to	

remove	him	from	them	would	be	detrimental	to	his	emotional	well-being.			

      [¶8]		In	its	order	of	termination	of	parental	rights	dated	March	15,	2017,	

the	court	found	by	clear	and	convincing	evidence	that	the	father	“is	unfit	as	a	

parent	to	Damein	.	.	.	due	to	his	inability	to	protect	the	child	from	jeopardy	or	

take	responsibility	for	him	in	a	time	reasonably	calculated	to	meet	his	needs.”		

See	 22	 M.R.S.	 §	 4055(1)(B)(2)(b)(i)-(ii).	 	 The	 court	 also	 determined	 that	

termination	was	in	the	child’s	best	interest.			
4	

                                               II.		DISCUSSION	

	         [¶9]		The	father	contends	on	appeal	that	the	evidence	was	insufficient	to	

support	the	court’s	decision	to	terminate	his	parental	rights.		“Before	a	court	

may	 terminate	 a	 parent’s	 parental	 rights,	 the	 court	 must	 find,	 ‘by	 clear	 and	

convincing	 evidence,	 at	 least	 one	 ground	 of	 parental	 unfitness	 .	 .	 .	 and	 that	

termination	 is	 in	 the	 child’s	 best	 interest.’”4	 	 See	 In	 re	 Caleb	 M.,	 2017	 ME	 66,	

¶	27,	159	A.3d	345	(quoting	In	re	C.P.,	2016	ME	18,	¶	30,	132	A.3d	174).		

	         [¶10]	 	 The	 court	 found	 two	 grounds	 of	 parental	 unfitness.	 	 First,	 the	

court	found	that	the	father	was	unable	to	protect	the	child	from	jeopardy	and	

that	 those	 circumstances	 are	 unlikely	 to	 change	 within	 a	 time	 reasonably	

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

Second,	 the	 court	 found	 that	 the	 father	 was	 unable	 to	 take	 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).	

	         [¶11]		The	court	supported	the	findings	of	unfitness	with	“three	areas	of	

serious	concern”	from	the	record:		

          First	is	the	substantial	risk	that	will	be	present	in	the	next	several	
          months	 as	 the	 father	 emerges	 from	 the	 structure	 and	 support	 of	


     4	 	 The	 father	 does	 not	 object	 to	 the	 court’s	 conclusion	 that	 termination	 is	 in	 the	 child’s	 best	

interest,	only	that	the	evidence	is	insufficient	for	a	finding	of	unfitness.		
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      the	CODVC	.	.	.	.		At	this	point,	the	father	is	just	not	ready	to	take	
      Damein,	despite	his	strong	love	for	the	boy.		
      	
      .	.	.	.		
      	
      [The	 hospitalizations]	 provide[]	 clear	 and	 convincing	 evidence	
      that	 the	 father	 is	 unable	 to	 take	 responsibility	 for	 the	 child	 or	
      protect	him	from	circumstances	of	jeopardy.			
      	
      .	.	.	.	
      	
      The	second	area	of	significant	concern	is	the	father’s	relationship	
      with	the	child’s	mother	.	.	.	.		She	is	not	good	for	the	child,	and	not	
      good	 for	 the	 father.	 .	 .	 .	 	 The	 Court	 is	 gravely	 concerned	 that	 the	
      father’s	progress	in	recovery	and	his	law-abiding	lifestyle	will	be	
      lost	if	he	reunites	with	the	mother.			
	
      The	 third	 area	 of	 concern	 is	 the	 emotional	 harm	 that	 the	 child	
      would	 suffer	 if	 he	 were	 removed	 from	 his	 foster	 family	 at	 this	
      point.	 .	 .	 .	 	 [The	 father]	 seems	 unaware	 of	 the	 profound	 loss	 the	
      child	would	experience	and	the	tremendous	care	that	would	have	
      to	go	into	a	transition.		This	lack	of	awareness	of	the	child’s	needs	
      rises	to	the	level	of	jeopardy.			
      	
      [¶12]	 	 These	 areas	 of	 serious	 concern	 show	 that,	 despite	 the	 progress	

the	 father	 has	 made	 over	 the	 last	 two	 years,	 he	 is	 unable,	 within	 a	 time	

reasonably	 calculated	 to	 meet	 Damein’s	 needs,	 to	 protect	 Damein	 from	

jeopardy	 or	 take	 responsibility	 for	 the	 child.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b)(i)-(ii);	 In	 re	 M.B.,	 2013	 ME	 46,	 ¶	 39,	 65	 A.3d	 1260.		

Because	 the	 court’s	 findings	 of	 unfitness	 are	 supported	 by	 clear	 and	

convincing	evidence,	and	because	permanent	placement	with	the	foster	family	
6	

with	 whom	 Damein	 has	 lived	 since	 November	 2014	 would	 be	 in	 the	 child’s	

best	interest,	we	find	no	error.		

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	      	     	    	
	
Michelle	A.	Dolley,	Esq.,	Law	Office	of	E.	Anne	Carton,	Brunswick,	for	appellant	
father	
	
Janet	T.	Mills,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	
of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of	 Health	 and	
Human	Services	
	
	
Lewiston	District	Court	docket	number	PC-2014-77	
FOR	CLERK	REFERENCE	ONLY	
