MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision:    2019 ME 102
Docket:      Ken-19-65
Submitted
  On Briefs: June 26, 2019
Decided:     July 2, 2019

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



                                  IN RE CHILD OF SCOTT L.


PER CURIAM

         [¶1] Scott L. appeals from a judgment of the District Court (Waterville,

Montgomery, J.) terminating his parental rights to his child pursuant to

22 M.R.S. § 4055(1)(B)(2)(a), (b)(ii) (2018).1                    He challenges the court’s

determination that termination of his parental rights is in the child’s best

interest. See id. § 4055(1)(B)(2)(a). We affirm the judgment.

                                        I. BACKGROUND

         [¶2] The following facts are drawn from the court’s findings, which are

supported by competent record evidence, and from the procedural record. See

In re Children of Corey W., 2019 ME 4, ¶ 2, 199 A.3d 683.

         [¶3] In March of 2017, the Department of Health and Human Services

filed a petition for a child protection order and preliminary protection order,


   1 The child’s mother consented to termination of her parental rights to the child at issue here and
is not a party to this appeal. The father also has a younger child who is not in his custody and is not
subject to this action.
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requesting that the court place the child—who was three years old at the

time—in the temporary custody of the Department. See 22 M.R.S. §§ 4032,

4034(1) (2018). The petition alleged that the child was in jeopardy due, in part,

to the father’s lengthy criminal history as well as his current unavailability to

parent the child because he was incarcerated. The court (Stanfill, J.) issued a

preliminary protection order and ordered that the child be placed in

departmental custody.

      [¶4] In April of 2017, the court entered an agreed-upon jeopardy order

as to the father based on the father’s ongoing incarceration, his never having

been the child’s primary caregiver, and the issuance of an order for protection

from abuse against the father in an action filed by the mother after he

threatened to kidnap the child. See 22 M.R.S. § 4035 (2018).

      [¶5] The Department arranged a trial placement of the child in the

father’s home from February to May of 2018, but that placement ended

unsuccessfully for the reasons described below, and the child was returned to

foster care, where she has since remained.

      [¶6] During the summer of 2018, the Department petitioned to terminate

the father’s parental rights.   See 22 M.R.S. § 4052 (2018).      The following

November, the court (Montgomery, J.) held a hearing on the petition. The
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witnesses included several of the child’s therapists and support workers,

departmental caseworkers, the child’s foster mother, the father and his

therapist, and the guardian ad litem.        The court subsequently entered a

judgment terminating the father’s parental rights supported by its

determination, based on clear and convincing evidence, that the father had

been unwilling or unable to take responsibility for the child and would be

unlikely to do so within a time reasonably calculated to meet the child’s needs.

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

termination of the father’s parental rights is in the child’s best interest. See id.

§ 4055(1)(B)(2)(a).

      [¶7] The court made the following factual findings, all of which are

supported by competent record evidence. See In re Child of Jonathan D., 2019

ME 14, ¶ 5, 200 A.3d 799.

      At the time of the jeopardy hearing, [the father] was incarcerated
      for Aggravated Furnishing of Scheduled Drugs. He was sentenced
      to two years, all but six months suspended. [The father] has an
      extensive criminal history, which includes multiple theft and
      burglary convictions as well as violations of conditions of release.

             In 2015, [the mother] obtained a protection from abuse
      order against [the father] . . . on the basis of her allegations that
      1) [the father] strangled her when she was pregnant with [the
      child]; 2) he engaged in abusive, controlling, and coercive behavior
      during their relationship; and 3) he threatened to go to [the
4

    mother]’s home and kidnap [the child]. [The father] disputes these
    allegations.

          ....

         . . . [The father] had begun visiting with [the child] in his home
    in November 2017. He then began bracketed visits until
    February 2018 when the Department began a trial placement with
    [the father]. He remained in consistent contact with the
    Department and the former foster parents.

           During the trial placement, [the father] struggled to get [the
    child] to her necessary services and appointments despite
    numerous conversations with the Department and changes to
    transportation arrangements. While [the father] managed to get
    [the child] to [the child development center] more consistently
    than to her other appointments, her attendance there still declined
    significantly. As for [the child]’s lack of attendance at other
    appointments, [the father] maintained that the Department had not
    set up transportation for them.

          Between February and May 2018, [the child] was attending
    [occupational therapy], but [the father] attended with her only
    once. As [the child]’s attendance at [the child development center]
    declined, so did her attendance at her OT sessions. From February
    to May, [the child] attended nine OT sessions but missed 15. The
    irregular nature of her attendance made it difficult for [the child]
    to make and sustain improvement, especially with regard to her
    peer interaction and emotional regulation.

          During the trial placement, [the father] struggled to find
    appropriate caregivers for [the child] when he was working. On
    April 22, 2018, he engaged a friend who was well-known to the
    Department (and had not been approved as a caregiver for [the
    child]) to care for [the child]. While he was gone to work, this
    friend allowed [the mother] into his home to visit with [the child].
    After [the father] got home from work, [the child] was awake. She
    stayed awake until approximately 2:00 a.m.
                                                                             5


             The next day, April 23, 2018, [the father] slept in until
      9:30 a.m., leaving [the child] unsupervised. He did not set an alarm
      when he went to bed the night before because [the child] had
      stayed up so late that he assumed she would sleep late as well.
      When [the father] awoke that morning, he could not find [the child]
      anywhere in the house. He called the police for help. [The child]
      was eventually found on the roof of the apartment building. . . .
      When [Department] agents toured [the father]’s home, they were
      concerned about the home as it was described as filthy and
      smelling like smoke and bleach. There was a marijuana plant on
      the floor in [the father]’s bedroom.

            Thereafter, [the child]’s internal sense of well-being showed
      signs of stress. . . . She also began to have nightmares, and her
      behavior declined.

            ....

            Up until May 2018, the evidence suggests that [the father]
      consistently attended counseling sessions. However, he stopped
      going at all after May 9, 2018. He had not fully reached his
      treatment goals when he stopped attending, and then was
      discharged in July due to lack of attendance. He likewise withdrew
      from communicating with the GAL in May 2018 and did not reach
      out at all thereafter. He also stopped participating in random drug
      screens once the trial placement began.

The father filed a timely appeal from the judgment. See 22 M.R.S. § 4006

(2018); M.R. App. 2B(c)(1).

                                II. DISCUSSION

      [¶8] The father does not challenge the court’s factual findings or its

determination of parental unfitness, see 22 M.R.S. § 4055(1)(B)(2)(b)(ii), but
6

asserts only that the court erred by concluding that termination of his parental

rights is in the child’s best interest, see id. § 4055(1)(B)(2)(a).2 “We review the

court’s factual findings related to the child’s best interest for clear error, and its

ultimate conclusion regarding 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.” In re Children of Christopher S., 2019 ME 31, ¶ 7, 203 A.3d 808

(quotation marks omitted).

        [¶9] Here, the court based its best interest determination primarily on

the child’s need for permanency. In determining whether termination of

parental rights is in the child’s best interest, the court is required to consider

“the needs of the child, including the child’s age, the child’s attachments to

relevant persons, periods of attachments and separation, the child’s ability to

integrate into a substitute placement or back into the parent’s home and the

child’s physical and emotional needs.” 22 M.R.S. §§ 4055(1)(B)(2)(a), (2)

(2018); see also In re Child of Mercedes D., 2018 ME 149, ¶ 21, 196 A.3d 888.

Also relevant to the court’s determination is the harm the child may suffer if the

parent’s rights are not terminated and the child’s need for permanence and



    To the extent that the father may be seen to assert that the court erred by concluding that he is
    2

parentally unfit, that contention is not persuasive. See In re Children of Anthony M., 2018 ME 146, ¶ 8,
195 A.3d 1229 (stating the standard of review of a court’s determination of parental unfitness).
                                                                                 7

stability.   See Adoption of Isabelle T., 2017 ME 220, ¶ 49, 175 A.3d 639.

“[P]ermanency is the ‘central tenet’ of the Child and Family Services and

Protection Act,” 22 M.R.S. §§ 4001 to 4099-H (2018). In re Children of Jessica D.,

2019 ME 70, ¶ 8, --- A.3d ---. “Permanency is a dynamic concept that must be

fashioned from the actual circumstances and needs of the child or children

before the court.” In re Child of Carl D., 2019 ME 67, ¶ 9, --- A.3d --- (quotation

marks omitted).

       [¶10] Contrary to the father’s assertions on appeal that the child already

had permanency and that her best interest was met through the trial placement

with him, the father testified that he would be fully ready to take custody and

care for the child if given another six months. As the GAL responded at the

hearing, six months is too long for the child to wait. See In re Child of Peter T.,

2019 ME 56, ¶¶ 6, 13, 207 A.3d 183. The child’s behavioral and medical needs

are significant. When, during the trial placement, he had the opportunity and

corresponding responsibility as the child’s primary caregiver to provide her

with a safe and nurturing home, the father came up materially short of meeting

her needs, and as a result the Department properly suspended the trial

placement. As the court also found, he has not fulfilled his obligation to
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effectively address his parenting deficiencies, which would be necessary for

him to be able to parent the child effectively.

      [¶11] There is sufficient evidence in the record for the court to have

found that “the time is now for [the child] to settle into a life of safety, stability,

routine, and love” and that “permanence must not be delayed,” but that the

father will not able to provide her with that permanence in a timely way. See In

re Jamara R., 2005 ME 45, ¶ 22, 870 A.2d 112 (“[O]nce a child has been placed

in foster care, a statutory clock begins ticking. In setting that clock, the

Legislature has spoken in terms of days and months, rather than in years, as

might better fit an adult’s timeframe for permanent change.”), overruled in part

on other grounds by In re B.C., 2012 ME 140, ¶ 14 n.2, 58 A.3d 1118. The court

did not err or abuse its discretion by concluding that terminating the father’s

parental rights is in the child’s best interest so that she can have the

permanence she needs. See 22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H., 2005

ME 123, ¶¶ 16-17, 889 A.2d 297.

      The entry is:

                    Judgment affirmed.
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Kevin P. Sullivan, Esq., Sullivan Law, P.C., Gardiner, for appellant father

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


Waterville District Court docket number PC-2017-12
FOR CLERK REFERENCE ONLY
