	
MAINE	SUPREME	JUDICIAL	COURT	                                                   Reporter	of	Decisions	
Decision:	    2019	ME	65	
Docket:	      Cum-18-386	
Submitted	
  On	Briefs:	 April	24,	2019	
Decided:	     May	7,	2019	
                                                                                                      	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                IN	RE	CHILD	OF	DANIELLE	F.		
	
	
PER	CURIAM	

          [¶1]		Danielle	F.	appeals	from	a	judgment	of	the	District	Court	(Portland,	

Powers,	 J.)	 terminating	 her	 parental	 rights	 to	 her	 child.1	 	 22	 M.R.S.	

§	4055(1)(B)(2)(a),	(b)(i)-(ii)	(2018).		She	contends	that	(1)	her	due	process	

rights	 were	 violated	 when	 the	 court	 commenced	 the	 termination	 hearing,	 as	

scheduled,	 in	 her	 absence,	 and	 (2)	 the	 court	 abused	 its	 discretion	 by	

terminating	 her	 parental	 rights	 rather	 than	 imposing	 a	 permanency	

guardianship.		We	affirm	the	judgment.		

          [¶2]	 	 Based	 on	 clear	 and	 convincing	 evidence	 in	 the	 record,	 the	 court	

found	that	the	mother	is	(1)	unable	to	protect	the	child	from	jeopardy	within	a	

time	which	is	reasonably	calculated	to	meet	the	child’s	needs,	and	(2)	unable	to	



    1		On	August	6,	2018,	the	District	Court	(Portland,	Powers,	J.)	entered	a	judgment	terminating	the	

father’s	parental	rights	after	the	father	consented	in	writing	to	the	termination	of	his	rights.		The	
father	initially	appealed,	but	later	voluntarily	dismissed	his	appeal.				
2	

take	responsibility	for	the	child.		See	id.	§	4055(1)(B)(2)(b)(i)-(ii).		The	court	

also	found	that	termination	of	the	mother’s	parental	rights	is	in	the	child’s	best	

interest.		See	id.	§	4055(1)(B)(2)(a)	(2018).				

      [¶3]		The	court	based	its	decision	on	the	following	findings	of	fact,	all	of	

which	are	supported	by	competent	record	evidence.		

             This	is	a	tragic	situation	involving	a	very	young	mother	who	
      experienced	 substance	 abuse,	 domestic	 violence,	 housing,	 and	
      mental	health	problems	which	overwhelm	her	and	seriously	affect	
      her	ability	to	parent	[the	young	child].		[The	mother]	unfortunately	
      at	times	refused	services	that	she	needed	and	did	not	understand	
      or	acknowledge	the	parenting	deficits	she	has	had	that	negatively	
      affected	 her	 son.	 	 Furthermore,	 she	 lied	 repeatably	 about	 her	
      ongoing	 contact	 with	 [the	 child’s	 father],	 who	 also	 had	 serious	
      parent[ing]	 issues,	 when	 no	 contact	 was	 permitted.	 	 This	 had	 a	
      detrimental	 effect	 on	 her	 as	 well	 as	 this	 child.	 	 [The	 mother’s]	
      insistence	on	seeing	[the	child’s	father]	resulted	from	poor	decision	
      making	 on	 her	 part,	 recognizing	 that	 she	 is	 young	 and	 had	
      numerous	 life	 stresses.	 	 Her	 credibility	 with	 the	 court	 is	 limited,	
      though	she	appeared	more	straightforward	at	the	hearing.			
      	
      	      [The	 mother]	 continues	 her	 regular	 use	 of	 marijuana,	 has	
      been	to	drug	counseling	off	and	on,	has	used	other	drugs	in	recent	
      months,	has	violated	group	home	rules	enough	to	lose	her	housing,	
      and	has	continued	to	see	a	man	who	was	violent	with	her	in	[the	
      child’s]	presence	or	otherwise.				
      	
      	      She	 has	 had	 just	 over	 two	 years	 to	 reunify	 and	 accept	
      necessary	 services.	 	 Her	 child’s	 trial	 placement	 did	 not	 end	 well.		
      Her	 efforts	 to	 reunify	 can	 be	 described	 as	 “poor”	 to	 “fair.”	 	 [The	
      mother’s]	 life	 itself	 has	 been	 stressful	 and	 chaotic	 with	 many	
      unresolved	parenting	issues	remaining.		Her	love	of	this	child	is	not	
      sufficient	to	remedy	her	deficits.			
      	      		
                                                                                                              3	

        	          All	 the	 above	 supports	 that	 she	 is,	 by	 clear	 and	 convincing	
        evidence,	unable	to	meet	this	child’s	 needs	and	protect	him	from	
        the	longstanding	jeopardy	within	any	reasonable	time	to	meet	his	
        needs	as	a	2½	year	old	boy.	.	.	.			
        	
        .	.	.	.		
        	
        	          This	child	has	been	in	custody	for	all	but	a	few	months	of	his	
        life.[ ]	 	 [He]	 needs	 stability,	 consistency,	 and	 permanency.	 	 He	
                 2

        cannot	benefit	from	more	uncertainty	related	to	this	case	and	his	
        mother’s	inability	to	be	a	safe	and	proper	parent.		His	best	chance	
        for	success	requires	termination	of	this	parent’s	rights,	followed	by	
        adoption.			
        	
        	          [The	child]	has	had	several	placements	in	the	last	two	years,	
        and	 many	 transitions	 and	 disruptions	 are	 not	 good	 for	 a	 still	
        developing	 and	 needy	 toddler.	 	 His	 current	 home	 is	 meeting	 his	
        basic	 needs	 and	 has	 [done	 so]	 for	 several	 months	 in	 total.	 	 This	
        home	is	pre-adoptive	and	 may	result	in	 permanency	in	that	way,	
        though	this	court	is	not	deciding	any	adoption	issue	at	this	point.			
        	
        	          [The	mother]	has	had	two	years	to	understand	and	deal	with	
        her	parenting	issues	outlined	in	the	petition	and	the	August	2016	
        jeopardy	 order.	 	 She	 has	 been	 largely	 unsuccessful	 and	 has	 not	
        always	given	the	full	effort	needed	to	reunify.		She	has	been	unable	
        to	prioritize	being	a	good,	safe	parent	for	her	son,	instead	focusing	
        on	substance	use	and	her	unsafe	relationship	with	.	.	.	the	father.			
        		
        	          It	is	sadly	but	clearly	in	[the	child’s]	best	interest	for	the	court	
        to	terminate	[the	mother’s]	parental	rights	to	him.			

   2		The	child	had	been	in	the	Department’s	custody	for	approximately	eighteen	months	at	the	time	

of	the	hearing,	but	was	in	the	mother’s	custody	for	approximately	twelve	months.		Because	the	record	
here	 contains	 other	 ample	 evidence	 for	 the	 court	 to	 base	 its	 parental	 unfitness	 and	 best	 interest	
determinations	on,	this	factual	error	is	harmless.		See	In	re	Child	of	Ronald	W.,	2018	ME	107,	¶	7	n.2,	
190	A.3d	1029	(“A	factual	error	in	a	child	protection	order	is	harmless	if	it	is	highly	probable	that	the	
error	did	not	prejudice	the	parents	or	contribute	to	the	result	in	the	case.”).	

   	
4	

	      [¶4]	 	 Following	 the	 issuance	 of	 the	 judgment	 terminating	 her	 parental	

rights,	 the	 mother	 timely	 appealed.	 	 See	 22	 M.R.S.	 §	 4006	 (2018);	 M.R.	 App.	

2B(c)(1).				

	      [¶5]		 The	mother	first	argues	that	the	termination	judgment	should	be	

vacated	because	she	was	denied	due	process	when	the	court	commenced	the	

termination	 hearing—as	 scheduled—in	 her	 absence,	 although	 it	 was	 aware	

that	 she	 would	 be	 arriving	 in	 a	 few	 hours.	 	 “In	 termination	 cases,	 where	

fundamental	interests	are	at	stake,	due	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	 Child	 of	 James	 R.,	 2018	 ME	 50,	 ¶	 17,	 182	 A.3d	 1252.	 	 Due	

process,	however,	“does	not	require	that	a	parent	be	physically	present	at	the	

termination	 hearing,	 as	 long	 as	 notice	 of	 the	 hearing	 was	 given	 in	 a	 manner	

calculated	to	give	actual	notice	and	the	parent	had	an	opportunity	to	be	heard.”		

In	re	Child	of	Tanya	C.,	2018	ME	153,	¶	10,	198	A.3d	777.	

       [¶6]		Because	the	mother	had	the	opportunity—through	her	attorney—

to	examine	witnesses	and	respond	to	claims	and	evidence,	see	In	re	Adden	B.,	

2016	ME	113,	¶	9,	144	A.3d	1158,	and	because	she	has	failed	to	demonstrate	

on	 appeal	 how	 her	 participation	 in	 the	 part	 of	 the	 trial	 where	 she	 was	 not	
                                                                                    5	

present	could	have	affected	the	court’s	findings,	see	In	re	G.W.,	2014	ME	30,	¶	9,	

86	A.3d	1228,	the	mother’s	due	process	rights	were	not	violated,	and	the	court	

did	 not	 abuse	 its	 discretion	 in	 determining	 that	 the	 hearing	 could	 proceed	

without	her	presence.	

      [¶7]	 	 The	 mother	 next	 contends	 that	 the	 court	 should	 have	 ordered	 a	

permanency	guardianship	rather	than	termination	of	her	parental	rights.		The	

mother	fails	to	recognize,	however,	that	(1)	the	grandparents	with	whom	the	

child	was	placed	were	not	open	to	a	permanency	guardianship,	(2)	the	guardian	

ad	litem	expressly	recommended	against	a	permanency	guardianship	as	well,	

(3)	there	were	tensions	between	the	mother	and	the	grandparents,	and	(4)	the	

court	found	that	the	child	needs	permanency	now,	not	years	down	the	road,	see	

22	M.R.S.	§	4050(2)-(3)	(2018).		See	In	re	Child	of	Domenick	B.,	2018	ME	158,	

¶	10,	197	A.3d	1076;	In	re	Cameron	B.,	2017	ME	18,	¶	13,	154	A.3d	1199;	In	re	

David	W.,	2010	ME	119,	¶	10,	8	A.3d	673.	

      [¶8]	 	 “We	 review	 the	 court’s	 determination	 regarding	 the	

appropriateness	 of	 a	 permanency	 guardianship	 for	 an	 abuse	 of	 discretion.”		

In	re	 Child	 of	 Domenick	 B.,	 2018	 ME	 158,	 ¶	 8,	 197	 A.3d	 1076;	 see	 In	 re	

Michaela	C.,	2002	ME	159,	¶	27,	809	A.2d	1245	(“The	District	Court’s	judgment	
6	

on	 the	 issue	 of	 best	 interest	 is	 entitled	 to	 substantial	 deference	 because	 that	

court	is	able	to	directly	evaluate	the	testimony	of	the	witnesses.”).		

         [¶9]		Before	a	court	may	terminate	a	parent’s	parental	rights,	the	court	

must	find	at	least	one	ground	of	parental	unfitness,	which	the	mother	does	not	

contest	 here,	 and	 determine,	 “by	 clear	 and	 convincing	 evidence	 .	 .	 .	 that	

termination	 is	 in	 the	 child’s	 best	 interest.”	 	 In	 re	 C.P.,	 2016	 ME	 18,	 ¶	 30,	

132	A.3d	174;	see	also	22	M.R.S.	§	4055(1)(B)(2).			

         [¶10]		Contrary	to	the	mother’s	contentions,	the	evidence	is	sufficient	to	

support	the	court’s	finding	that	termination	is	in	the	child’s	best	interest,	and,	

as	 such,	 the	 court	 did	 not	 abuse	 its	 discretion	 in	 terminating	 the	 mother’s	

parental	rights	instead	of	ordering	a	permanency	guardianship.		See	In	re	C.P.,	

2016	ME	18,	¶	34,	132	A.3d	174;	In	re	David	W.,	2010	ME	119,	¶	10,	8	A.3d	673.		

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	    	      	     	
	
Andrea	 S.	 Manthorne,	 Esq.,	 Roach,	 Hewitt,	 Ruprecht,	 Sanchez	 &	 Bischoff,	
Portland,	for	appellant	mother	
	
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	number	PC-2016-58	
FOR	CLERK	REFERENCE	ONLY	
