	
MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	     2018	ME	149	
Docket:		      Yor-18-236	
Submitted	 	
		on	Briefs:		 October	10,	2018	
Decided:	      November	13,	2018	
	
Panel:	        SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 IN	RE	CHILD	OF	MERCEDES	D.	
	
	
PER	CURIAM	

         [¶1]	 	 The	 mother	 and	 father	 of	 a	 child	 appeal	 from	 a	 judgment	 of	 the	

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

child	 pursuant	 to	 22	 M.R.S.	 §	 4055(1)(A)(1)(a)	 and	 (B)(2)(a),	 (b)(i)-(ii),	 (iv)	

(2017).		The	mother	challenges	the	court’s	denial	of	her	motion	to	continue	the	

termination	 hearing	 and	 appoint	 a	 guardian	 ad	 litem1	 for	 her.	 	 The	 father	

challenges	 the	 sufficiency	 of	 the	 evidence	 supporting	 the	 court’s	

determinations	that	he	is	parentally	unfit	and	that	termination	of	his	parental	

rights	is	in	the	best	interest	of	the	child.		We	affirm	the	judgment.	




    1	 	 Although	 the	 motion	 was	to	 continue	 the	 termination	 hearing	 and	appoint	 a	 “guardian,”	 the	

court	properly	treated	it	as	a	motion	for	appointment	of	a	guardian	ad	litem	for	the	mother.			
2	

                                   I.		BACKGROUND	

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

supported	 by	 the	 evidence,	 and	 the	 procedural	 record.	 	 See	 In	 re	 Evelyn	 A.,	

2017	ME	182,	¶	4,	169	A.3d	914.		

      [¶3]	 	 In	 July	 of	 2016,	 days	 after	 the	 child	 was	 born,	 the	 Department	 of	

Health	 and	 Human	 Services	 became	 aware	 of	 concerns	 regarding	 the	

newborn’s	safety	while	in	his	parents’	care.		A	safety	plan	was	created	for	the	

family,	requiring	the	parents	to	move	out	of	the	home	of	the	child’s	paternal	

grandmother—whom	the	Department	had	deemed	an	unsafe	person—and	live	

with	another	member	of	the	father’s	family.			

      [¶4]		The	following	month,	the	Department	was	notified	that	the	father’s	

family	 member	 could	 no	 longer	 provide	 housing	 to	 the	 family,	 and	 the	

Department	also	discovered	that	the	parents	had	left	the	child	alone	with	the	

father’s	 mother	 in	 violation	 of	 the	 safety	 plan.	 	 Consequently,	 on	 August	 17,	

2016,	 the	 Department	 filed	 a	 petition	 for	 preliminary	 protection	 and	 a	 child	

protection	petition.		See	22	M.R.S.	§§	4032-4033	(2017).		The	court	granted	the	

preliminary	protection	order	the	same	day	and	ordered	that	the	child	be	placed	

in	departmental	custody.			
                                                                                       3	

       [¶5]		The	court	issued	agreed-upon	jeopardy	orders	as	to	the	mother	and	

father	 in	 September	 and	 December	 of	 2016,	 respectively.	 	 In	 the	 jeopardy	

orders,	 the	 court	 found	 that	 each	 parent	 had	 mental	 health	 issues,	 cognitive	

delays,	and	limited	parenting	skills,	and	did	not	have	safe	and	stable	housing.		

Additionally,	the	court	found	that	the	father	had	a	history	of	anger	issues.		The	

child	remained	in	the	Department’s	custody	and	was	placed	with	the	father’s	

aunt,	where	the	child	has	since	lived.		

       [¶6]	 	 In	 the	 spring	 of	 2017,	 acting	 upon	 the	 Department’s	 motion,	 the	

court	directed	that	each	parent	undergo	a	court-ordered	diagnostic	evaluation	

(CODE)	 in	 order	 to	 assess	 mental	 health	 and	 cognitive	 issues.	 	 See	 22	M.R.S.	

§	4007(3)	(2017);	M.R.	Civ.	P.	35.		The	resulting	evaluation	of	the	father	did	not	

indicate	cognitive	limitations,	but	the	examiner	diagnosed	him	as	having	“other	

specified	 personality	 disorder	 with	 narcissistic	 and	 antisocial	 features;	

attention	 deficit	 hyperactivity	 disorder;	 .	 .	 .	 and	 adjustment	 disorder	 with	

anxiety.”			

       [¶7]	 	 The	 mother	 failed	 to	 show	 for	 the	 examination	 when	 it	 was	

originally	 scheduled	 but	 eventually	 submitted	 to	 the	 examination	 a	 month	

before	the	hearing	on	the	termination	petition.		The	examiner	determined	that	

the	 mother’s	 intellectual	 functioning	 was	 “borderline	 for	 language-mediated	
4	

tasks”	and	“in	the	average	range	for	non-verbal	related	intellectual	tasks.”		He	

also	 determined	 that	 her	 vocabulary	 was	 insufficient	 to	 undertake	 the	 full	

battery	 of	 psychometric	 testing.	 	 Based	 on	 that	 assessment,	 the	 examiner	

reported	 that	 “it	 would	 be	 important	 for	 anybody	 [who]	 interacts	 with	 [the	

mother]	to	make	sure	that	[the	mother]	understands	what	is	being	said.”		The	

examiner	diagnosed	the	mother	as	having	a	cognitive	disorder,	not	otherwise	

specified;	 attention	 deficit	 hyperactivity	 disorder;	 and	 post-traumatic	 stress	

disorder,	in	partial	remission.		The	examiner’s	report	did	not	reflect	any	explicit	

concerns	that	the	mother	lacked	the	capacity	to	participate	meaningfully	in	the	

termination	proceedings.			

        [¶8]		On	July	14,	2017,	the	Department	filed	a	petition	to	terminate	the	

parental	 rights	 of	 each	 parent,	 and	 the	 court	 held	 a	 two-day	 hearing	 on	 the	

petition	in	March	and	April	of	2018.		Before	the	presentation	of	evidence	on	the	

first	day	of	the	hearing,	the	court	addressed	a	motion	filed	by	the	mother	that	

day	 for	 the	 court	 to	 continue	 the	 termination	 hearing	 and	 order	 the	

appointment	of	a	guardian	ad	litem	for	her.2		See	M.R.	Civ.	P.	17(b).		The	motion	



    2		Although	the	attorney	representing	the	mother	was	present	on	the	first	hearing	day,	the	mother	

herself	did	not	appear,	reportedly	because	of	inclement	weather.		The	mother’s	attorney	made	clear	
to	 the	 court	 that	 she	 was	 not	 requesting	 a	 continuance	 due	 to	 the	 mother’s	 absence	 because	 the	
hearing	 would	 require	 a	 second	 day,	 which	 would	 allow	 the	 mother	 to	 be	 present.	 	 The	 mother	
attended	the	second	day	of	the	hearing	and	in	fact	presented	her	testimony	then.				
                                                                                      5	

recited	counsel’s	“concerns	about	the	mother’s	competency”	based	on	counsel’s	

review	of	the	CODE	report,	which	counsel	had	received	within	several	weeks	

before	the	hearing.		When	the	court	invited	counsel	to	be	heard	on	the	motion,	

counsel	stated	to	the	court	that,	according	to	the	CODE	report,	the	mother	has	

“very	low	vocabulary	levels”	and,	as	a	result,	had	been	unable	to	complete	the	

testing	 process;	 that	 the	 mother	 functions	 at	 a	 “fairly	 low”	 level,	 creating	

concerns	 about	 whether	 the	 mother	 “understands	 what’s	 actually	 happening	

today”;	and	that	a	“guardian	.	.	.	could	be	helpful,”	see	supra	n.1.		The	mother	did	

not	present	the	court	with	the	CODE	report	itself	at	that	time.			

      [¶9]	 	 After	 hearing	 from	 the	 parties,	 the	 court	 denied	 the	 mother’s	

motion,	stating,		

      I	 have	 no	 affidavit	 from	 any	 mental	 health	 professional.	 	 I	 don’t	
      have	any	relevant	portions	of	the	CODE	evaluation.		I	just	have	an	
      assertion	by	counsel	that	her	client	is	incompetent.	.	.	.		Appointing	
      a	guardian	is	serious	business.		What	you’re	saying	is	a	person	is	so	
      incapacitated	 that	 they	 don’t	 know	 what’s	 going	 on.	 	 They	 can’t	
      actively	 participate	 in	 their	 presentation	 of	 the	 case,	 you	 know.		
      That	might	be	so,	but	I	have	nothing	in	 front	of	me	that	confirms	
      that.	
             	
      [¶10]	 	 The	 court	 then	 proceeded	 with	 the	 termination	 hearing.	 	 The	

Department’s	 first	 witness	 was	 the	 examiner	 who	 performed	 the	 mother’s	

CODE	evaluation.		The	CODE	report	for	the	mother	was	admitted	in	evidence,	

and	 the	 examiner	 testified	 extensively	 about	 the	 report’s	 contents	 and	
6	

conclusions.	 	 None	 of	 the	 parties	 inquired	 about	 the	 mother’s	 capacity	 to	

participate	 in	 the	 proceedings,	 however,	 and	 the	 motion	 to	 continue	 and	 for	

appointment	 of	 a	 guardian	 ad	 litem	 was	 not	 renewed	 on	 the	 basis	 of	 the	

resulting	record.			

      [¶11]		In	May	of	2018,	the	court	issued	a	judgment	in	which	it	found,	by	

clear	and	convincing	evidence,	that	each	parent	(1)	was	unwilling	or	unable	to	

protect	 the	 child	 from	 jeopardy	 and	 that	 the	 underlying	 circumstances	 were	

unlikely	 to	 change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 the	 child’s	

needs;	 (2)	 was	 unwilling	 or	 unable	 to	 take	 responsibility	 for	 the	 child,	 a	

circumstance	that	would	not	be	alleviated	within	a	time	reasonably	calculated	

to	 meet	 the	 child’s	 needs;	 and	 (3)	 failed	 to	 make	 a	 good	 faith	 effort	 to	

rehabilitate	and	reunify	with	the	child.		See	22	M.R.S.	§	4055(1)(B)(2)(b)(i)-(ii),	

(iv).		The	court	also	found	that	termination	of	each	parent’s	parental	rights	is	in	

the	child’s	best	interest.		See	22	M.R.S.	§	4055(1)(B)(2)(a).			

      [¶12]		In	its	judgment,	the	court	made	the	following	findings	of	fact,	all	of	

which	are	supported	by	competent	evidence	in	the	record:	

             One	 of	 the	 recurrent	 concerns	 in	 this	 case	 has	 been	 [the	
      father’s]	 inconsistent	 visitation	 with	 [the	 child].	 	 Initially,	 visits	
      were	offered	three	times	a	week	and	were	supervised.		[The	father]	
      missed	a	significant	number	of	visits.		The	reasons	he	offered	for	
      that	 included	 that	 he	 had	 forgotten,	 he	 hadn’t	 felt	 well,	 and	 his	
      guinea	pig	had	an	abscess,	among	others.		When	[the	father]	didn’t	
                                                                                       7	

    call	 to	 cancel,	 [the	 foster	 parent]	 often	 drove	 [the	 child]	 into	 the	
    visitation	site,	a	trip	of	an	hour	and	fifteen	minutes	each	way.		That	
    lead	 the	 caseworker	 to	 insist	 that	 [the	 father]	 contact	 [the	 foster	
    parent]	in	advance	of	the	visit	to	confirm	he	would	 attend	or	the	
    visit	 would	 be	 cancelled.	 	 When	 the	 visits	 were	 supervised	 by	
    another	 agency,	 they	 were	 suspended	 three	 or	 four	 times	 due	 to	
    [the	father’s]	inconsistency.		 Each	time	they	did	not	resume	until	
    the	 Department	 was	 able	 to	 convene	 a	 meeting	 and	 discuss	 the	
    matter.			

          .	 .	 .	 When	 questioned	 at	 trial	 about	 why	 he	 had	 been	 so	
    inconsistent	with	visits,	[the	father]	replied	“I	guess	I	don’t	really	
    have	a	reason	why.”			

	   	      .	.	.	.	

           .	 .	 .	 [The	 father]	 has	 made	 little	 effort	 to	 learn	 about	 and	
    understand	the	medical	care	for	his	son.		He	is	more	than	content	
    to	leave	that	chore	to	others.		By	the	same	token,	he	is	not	receptive	
    to	advice	given	by	or	through	others.	.	.	.			

           .	.	.	.	

           [The	 father]	 has	 struggled	 throughout	 this	 case	 with	
    priorities	and	consistency.		Early	on	he	obtained	employment.		He	
    has	 worked	 hard	 to	 keep	 his	 job	 and	 to	 increase	 the	 hours	 and	
    responsibilities.	 .	 .	 .	 	 At	 times,	 however,	 he	 has	 accorded	 his	
    employment	priority	over	the	reunification	process	and,	in	turn,	his	
    child.	 	 It	 has	 interfered	 with	 his	 visit	 schedule.	 	 Although	 not	
    directly	stated,	it	appears	to	have	interfered	with	his	attendance	at	
    his	son’s	appointments	and,	perhaps,	his	attendance	at	counseling	
    as	well.		Although	he	was	notified	of	[the	child’s]	doctor	and	WIC	
    appointments	over	the	last	nineteen	months,	[the	father]	attended	
    only	[the	child’s]	six-week	checkup	and	one	WIC	appointment.		Not	
    only	was	his	attendance	designed	to	demonstrate	a	willingness	to	
    take	on	all	aspects	of	parenting,	it	was	also	intended	to	keep	him	
    informed	about	[the	child’s]	health	and	development.		[The	father]	
    fell	short	on	both	those	goals,	ceding	the	responsibility	back	to	[the	
    foster	parent].	.	.	.			
8	

            According	to	[the	father],	in	his	sessions	with	[his	counselor,]	
     they	have	been	working	on	anger	management	skills,	dealing	with	
     stress,	 and	 how	 to	 have	 self-control	 over	 his	 mind	 and	 his	
     emotions.	.	.	.		Unfortunately,	[the	father’s]	attendance	at	counseling	
     has	 been	 spotty.	 .	 .	 .		 Since	 he	 began	 treatment	 in	 the	 summer	 of	
     2016,	 [the	 father]	 has	 missed	 approximately	 40	sessions—more	
     than	he	actually	attended.	.	.	.			

            .	.	.	.	

            Even	now,	[the	father]	is	unable	to	acknowledge	that	it	had	
     been	unsafe	to	leave	[the	child]	with	his	mother.		At	trial,	he	went	
     to	 some	 lengths	 to	 discount	 what	 he	 believed	 to	 be	 the	
     Department’s	 most	 serious	 complaint	 about	 [the	 paternal	
     grandmother]—that	 she	 had	 been	 charged	 with	 child	
     endangerment	in	the	past,	a	charge	he	labeled	as	“really	iffy.”	.	.	.			
     	
            In	 general,	 [the	 father]	 finds	 it	 difficult	 to	 hear	 criticism	 or	
     accept	feedback/advice	from	others.		In	Family	Team	Meetings,	he	
     would	 sometimes	 be	 visibly	 angry	 and	 bark	 at	 others	 when	 the	
     topic	 of	 missed	 visits	 was	 addressed.	 	 He	 appears	 to	 discount	
     suggestions	 or	 advice	 from	 others	 until	 his	 own	 experience	
     confirms	it	is	sound.	.	.	.			
     	
            .	.	.	.	

           It	is	true	that	[the	father]	has	achieved	some	successes	over	
     the	last	year	and	one	half.	.	.	.		But	his	participation	in	counseling	
     has	been	sporadic	and	his	visitation	has	been	irregular.		He	has	not	
     undertaken	 the	 requested	 med	 management	 assessment.	 	 Those	
     were	 tasks	 designed	 to	 alleviate	 jeopardy	 and	 he	 failed	 to	 follow	
     through.	.	.	.	

              The	 truth	 is,	 this	 case	 has	 moved	 forward	 in	 spite	 of	 [the	
     father’s]	 actions,	 not	 because	 of	 them.	 	 Visitation	 expanded	 and	
     became	 less	 controlled	 in	 large	 part	 as	 an	 effort	 on	 the	
     caseworker’s	 part	 to	 entice	 [the	 father]	 to	 more	 fully	 engage.	 	 At	
     trial,	 [the	 father]	 proudly	 pointed	 out	 that	 he	 has	 not	 missed	 or	
     cancelled	 a	 visit	 since	 January	 15,	 2018.	 	 That	 is	 certainly	 an	
                                                                                    9	

accomplishment;	however,	it	remains	to	be	seen	if	he	will	maintain	
that	 over	 time.	 	 And	 it	 must	 be	 said	 that	 visitation	 now	 requires	
little	of	[the	father].		[The	foster	parent]	brings	[the	child]	to	[the	
father’s]	 house	 and	 retrieves	 him	 at	 the	 end	 of	 the	 visit.	 	 Only	
recently	 has	 [the	father]	been	asked	to	return	 [the	child]	back	to	
[the	 foster	 parent’s]	 home	 at	 the	 end	 of	 the	 Friday	 visit.	 	 A	 visit	
requires	 only	 that	 [the	 father]	 be	 at	 his	 home	 at	 the	 designated	
hour,	not	a	significant	burden.					

        There	is	evidence	that	[the	father’s]	mental	health	continues	
to	pose	problems	for	his	day	to	day	functioning.		Incidents	over	the	
life	of	this	case	reveal	a	young	man	who	is	impulsive	and	struggles	
to	 appropriately	 manage	 his	 emotions.	 	 Although	 he	 has	 been	
steadily	 employed,	 he	 has	 been	 unable	 until	 quite	 recently	 to	
secure	housing.		He	has	not	accepted	the	parental	responsibilities	
that	were	 accorded	to	him	in	the	reunification	process,	including	
visitation	and	attending	medical	appointments.		He	resists	advice	
and	 assistance	 from	 others	 even	 when	 they	 have	 greater	
experience.		And	he	fails	to	recognize	potential	risks	and	take	steps	
to	assess	them,	including	in	regard	to	his	mother	and	his	partner.		
Even	 if	 he	 made	 improvements	 in	 those	 aspects	 of	 his	 character	
now,	there	would	still	be	the	question	of	whether	[the	father]	could	
sustain	 that	 effort	 over	 time.	 	 Meanwhile,	 [the	 child]	 has	 been	 in	
foster	care,	and	with	[the	foster	parent],	since	he	was	a	month	and	
a	half	old.	.	.	.	

       .	.	.	.		

       [The	mother]	has	done	virtually	nothing	to	reunify	with	[the	
child].		She	has	not	maintained	contact	with	the	caseworker,	visited	
with	 her	 son,	 engaged	 in	 counseling	 and	 parenting	 education,	 or	
secured	safe	and	stable	housing	in	a	timely	fashion.		[The	mother]	
has	rarely	been	employed	and	even	then,	for	only	a	month	or	so	at	
a	 time.	 	 [The	 CODE	 examiner’s]	 evaluation,	 and	 [the	 mother’s]	
actions,	confirm	that	she	is	not	able	to	safely	parent	a	child	or	even	
visit	on	an	unsupervised	basis.		Much	of	this	inability	may	be	due	to	
her	cognitive	limitations,	a	factor	that	is	not	likely	to	significantly	
improve,	even	with	time	and	intervention.		The	Court	accepts	[the	
CODE	examiner’s]	conclusion	that	the	prognosis	for	[the	mother]	
10	

         making	 the	 necessary	 changes	 essential	 to	 reducing	 risk	 to	 [the	
         child]	is	poor.			

                 .	.	.	.	

                 .	 .	 .	 [The	 child]	 is	 doing	 very	 well	 in	 the	 care	 of	 [the	 foster	
         parents].	 	 He	 is	 healthy,	 developmentally	 on	 target,	 and	 happy.		
         There	is	evidence	he	is	strongly	connected	to	his	foster	parents	and	
         they	to	him.		As	the	Guardian	[ad	litem]	reported,	[the	child]	views	
         himself	 as	 part	 of	 that	 family.	 	 Terminating	 [the	 child’s]	 contact	
         with	his	father	would	not	adversely	affect	[the	child].		Terminating	
         [the	child’s]	relationship	with	the	 [foster	parents],	particularly	 at	
         this	 stage	 of	 his	 development,	 would	 be	 traumatic.	 	 He	 would	 be	
         separated	 from	 the	 only	 family	 he	 has	 ever	 known.		 That	 clearly	
         would	not	be	in	his	best	interest.		

(footnotes	omitted.)		
	
                                            II.		DISCUSSION	

	        [¶13]	 	 We	 address	 the	 parents’	 arguments	 in	 turn,	 beginning	 with	 the	

mother’s	contention	that	the	court	erred	by	denying	her	motion	to	continue	the	

termination	proceedings	and	appoint	a	guardian	ad	litem	for	her,	followed	by	

our	consideration	of	the	father’s	assertion	that	the	evidence	was	insufficient	to	

terminate	his	parental	rights.	

A.       Appointment	of	Guardian	Ad	Litem	

         [¶14]		The	mother	asserts	that	the	court	erred	by	denying	her	motion	to	

continue	the	termination	hearing	and	appoint	a	guardian	ad	litem.3		We	review	


     3		Although	the	mother	argues	on	appeal	that,	in	the	context	of	a	termination	hearing,	counsel’s	

expression	 of	 concern	 about	 the	 parent’s	 suspected	 diminished	 capacity	 is	 sufficient	 by	 itself	 to	
                                                                                                               11	

for	an	abuse	of	discretion	both	a	court’s	decision	to	appoint—or	not	appoint—

a	guardian	ad	litem,	see	Kelley	v.	Snow,	2009	ME	128,	¶	12,	984	A.2d	1281,	and	

its	decision	to	deny	a	motion	to	continue,	see	In	re	Arturo	G.,	2017	ME	228,	¶	14,	

175	 A.3d	 91.	 	 “A	 party	 seeking	 a	 continuance	 has	 the	 burden	 of	 showing	

sufficient	grounds	for	granting	the	motion	.	.	.	.”		In	re	Trever	I.,	2009	ME	59,	¶	28,	

973	A.2d	752	(quotation	marks	omitted).	

        [¶15]		Here,	the	basis	for	the	mother’s	motion	was	limited	to	counsel’s	

expression	of	concern	regarding	possible	limitations	on	the	mother’s	ability	to	

understand	“what’s	actually	happening	today”	and	to	participate	in	a	trial.		As	

explained	 by	 counsel,	 those	 concerns	 arose	 from	 her	 review	 of	 the	 mother’s	

CODE	report	and	perhaps	her	own	interactions	with	the	mother.		The	mother	

did	not	provide	the	court	with	the	CODE	report	at	that	time.4		Counsel	explained	


warrant	an	evidentiary	hearing	to	determine	the	parent’s	capacity,	she	did	not	request	that	the	court	
conduct	 such	 a	 hearing,	 and	 consequently	 she	 did	 not	 preserve	 this	 aspect	 of	 her	 argument	 for	
appellate	consideration.		See	In	re	Anthony	R.,	2010	ME	4,	¶	8,	987	A.2d	532	(“To	preserve	an	issue	
for	 appeal,	 the	 issue	 must	 first	 be	 presented	 to	 the	 trial	 court	 so	 that	 the	 trial	 court	 has	 the	
opportunity	to	assess	and	act	on	the	point	to	which	the	objection	is	directed.”).		Therefore,	we	address	
only	the	court’s	denial	of	the	mother’s	motion	to	continue	and	appoint	a	guardian	ad	litem.		
   4	 	 After	 the	 court	 denied	 the	 motion	 and	 began	 the	 hearing,	 the	 CODE	 report	 was	admitted	 in	

evidence,	but	the	mother	did	not	renew	her	motion	or	request	that	the	court	to	reconsider	its	ruling	
in	light	of	the	report	that	was	then	part	of	the	record.			

   We	also	note	that	on	the	second	hearing	date,	the	 mother	appeared	and	testified,	allowing	the	
court	to	make	first-hand	observations	about	her	level	of	functioning.		See	State	v.	Dyer,	371	A.2d	1079,	
1086	 (Me.	 1977)	 (holding	 that	 the	 court	 acted	 within	 its	 discretion	 by	 not	 inquiring	 into	 the	
competency	of	the	defendant	when	the	court	“had	the	opportunity	to	observe	the	defendant	and	to	
evaluate	his	rational	as	well	as	factual	understanding	of	the	.	.	.	proceedings	and	the	sufficiency	of	his	
ability	to	communicate	with	his	lawyer	and	assist	him	in	presenting	a	meaningful	allocution.”).		Even	
12	

to	the	court	that	a	guardian	ad	litem	would	be	“helpful”	to	assist	the	mother	

“through	the	process.”			

        [¶16]	 	 As	 framed	 in	 the	 mother’s	 motion,	 the	 sole	 justification	 for	 a	

continuance	was	the	requested	appointment	of	a	guardian	ad	litem.		Contrary	

to	the	mother’s	contention,	the	very	limited	record	presented	in	support	of	the	

motion	 did	 not	 require	 the	 court	 to	 continue	 the	 proceedings	 and	 appoint	 a	

guardian	 ad	 litem.	 	 Counsel	 did	 not	 explain,	 for	 example,	 why	 a	 guardian	 ad	

litem	 would	 be	 able	 to	 provide	 the	 mother	 with	 more	 guidance	 through	 the	

legal	process—which	was	the	focus	of	counsel’s	concern—than	counsel	herself	

could	provide.		Further,	in	explaining	the	reasons	for	denying	the	motion,	the	

court	 correctly	 noted	 that	 having	 “limited	 [cognitive	 functioning]	 is	 not	 the	

same	 as	 .	 .	 .	 [being]	 incompetent	 to	 proceed	 in	 this	 matter.”	 	 See	 State	 v.	

Nickerson,	2013	ME	45,	¶	9,	66	A.3d	568	(stating	that	“it	is	well	established	that	

a	party	may	be	both	mentally	ill	and	competent	to	stand	trial”);	see	also	State	v.	

Ledger,	 444	 A.2d	 404,	 419	 (Me.	 1982)	 (“[A]	 defendant	 may	 be	 mentally	

competent	 to	 stand	 trial	 although	 in	 some	 other	 respects	 his	 mind	 is	

unsound.”).	



then,	 the	 motion	 for	 appointment	 of	a	 guardian	ad	 litem	 was	not	 renewed.	 	 Beyond	 that,	 there	 is	
nothing	apparent	from	her	transcribed	testimony	that	raises	a	question	about	her	competence.	
                                                                                       13	

      [¶17]		We	recognize	that	an	attorney	bears	the	“responsibility	to	alert	a	

court	 to	 [his	 or	 her	 client’s]	 possible	 incompetence,”	 Middleton	 v.	 State,	

2015	ME	164,	¶	15,	129	A.3d	962,	and	we	are	not	critical	of	mother’s	counsel	

for	 bringing	 her	 concerns	 to	 the	 court’s	 attention.	 	 The	 question	 before	 us,	

however,	is	whether,	based	on	the	record	presented	to	the	court	at	the	time	it	

was	asked	to	adjudicate	the	motion,	the	court	abused	its	discretion	by	denying	

the	mother’s	motion.		We	conclude	that	the	court	did	not	do	so.		

B.    Parental	Unfitness	and	the	Best	Interests	of	the	Child	

      [¶18]		The	father	asserts	that	the	evidence	is	insufficient	to	support	the	

court’s	determinations	that	he	is	an	unfit	parent	within	the	meaning	of	the	child	

protection	 statutes	 and	 that	 termination	 is	 in	 the	 child’s	 best	 interest.	 	 “We	

review	 the	 trial	 court’s	 factual	 findings	 that	 a	 parent	 is	 unfit	 and	 that	

termination	of	parental	rights	is	in	the	child’s	best	interest	for	clear	error	and	

the	ultimate	decision	to	terminate	parental	rights	for	an	abuse	of	discretion.”		

In	re	Child	of	Kelcie	L.,	2018	ME	57,	¶	3,	184	A.3d	387.			

      [¶19]		With	respect	to	the	issue	of	parental	unfitness,	the	father	argues	

that	 although	 some	 deficits	 identified	 in	 the	 December	 2016	 jeopardy	 order	

remained	uncured	at	the	time	of	the	termination	proceedings,	those	factors	do	

not	constitute	parental	unfitness.		As	found	by	the	court,	those	shortcomings	
14	

included	his	failure	to	participate	in	a	medication	management	assessment	for	

his	mental	health	issues;	his	failure	to	manage	his	anger	appropriately;	and	a	

significant	 number	 of	 unjustified	 missed	 visits	 with	 the	 child	 and	 counseling	

sessions.	 	 The	 court	 was	 entitled	 to	 find	 that	 the	 nature	 of	 these	 problems,	

which	impeded	the	father’s	ability	to	safely	and	effectively	parent	the	child,	and	

the	persistence	of	the	problems	despite	more	than	a	year	and	a	half	of	extensive	

reunification	 efforts	 by	 the	 Department,	 are	 material	 indicia	 of	 his	 parental	

unfitness.					

       [¶20]	 	 Beyond	 that,	 the	 court’s	 findings,	 which	 are	 not	 limited	 to	 the	

deficiencies	 noted	 above,	 are	 supported	 by	 the	 record	 and	 are	 sufficient	 to	

support	 the	 court’s	 determination	 that	 the	 father	 is	 unwilling	 or	 unable	 to	

protect	the	child	from	jeopardy	or	take	responsibility	for	the	child	within	a	time	

reasonably	calculated	to	meet	the	child’s	needs,	and	that	he	failed	to	make	 a	

good	 faith	 effort	 to	 rehabilitate	 and	 reunify	 with	 the	 child.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b)(i)-(ii),	(iv).			

	      [¶21]		Next,	citing	the	progress	he	had	made	toward	alleviating	jeopardy	

and	his	“deep	bond	with	the	child,”	the	father	asserts	that	the	court	abused	its	

discretion	by	concluding	that	termination	of	his	parental	rights	is	in	the	child’s	

best	interest.		We	have	held,	however,	that	a	strong	bond	between	a	parent	and	
                                                                                       15	

a	child	“is	only	one	of	several	factors	that	the	trial	court	must	consider”	in	its	

best	 interest	 determination.	 	 In	 re	 Michaela	 C.,	 2002	 ME	 159,	 ¶	 26,	 809	 A.2d	

1245.		The	court	is	also	required	to	consider—as	it	did	here—“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(2)	 (2017);	 see	 also	 In	 re	 Jacob	 B.,	

2008	ME	168,	¶	14,	959	A.2d	734.		Moreover,	the	Legislature	has	stated	that	the	

purposes	 of	 the	 termination	 statute	 include	 “[e]liminat[ing]	 the	 need	 for	

children	to	wait	unreasonable	periods	of	time	for	their	parents	to	correct	the	

conditions	 which	 prevent	 their	 return	 to	 the	 family”	 and	 “[p]romot[ing]	 the	

adoption	 of	 children	 into	 stable	 families	 rather	 than	 allowing	 children	 to	

remain	in	the	impermanency	of	foster	care.”		22	M.R.S.	§	4050(2)-(3)	(2017).		

      [¶22]		At	the	time	of	the	termination	 proceeding,	the	child	was	twenty	

months	old	and	had	been	in	foster	care	since	he	was	six	weeks	old.		Based	on	

competent	evidence	in	the	record,	the	court	determined	that	the	progress	made	

by	the	father	during	that	eighteen-month	period	failed	to	meet	the	child’s	needs	

and	 the	 court-ordered	 rehabilitation	 and	 reunification	 plan,	 and	 that,	 rather	

than	 requiring	 the	 child	 to	 continue	 in	 the	 transience	 of	 foster	 care	 for	 an	
16	

uncertain	amount	of	additional	time,	the	child’s	best	interest	would	be	served	

by	 freeing	 him	 for	 adoption.5	 	 The	 court	 did	 not	 abuse	 its	 discretion	 by	

concluding	that	termination	of	the	father’s	parental	rights	is	in	the	best	interest	

of	the	child.			

	        The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	      	     	     	
	
Amy	McNally,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	P.A.,	
Biddeford,	for	appellant	mother	
	
Corey	 R.	 McKenna,	 Esq.,	 Fairfield	 &	 Associates,	 P.A.,	 Portland,	 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	
	
	
Biddeford	District	Court	docket	number	PC-2016-35	
FOR	CLERK	REFERENCE	ONLY	




    5		The	court	framed	its	best	interest	determination	based	in	part	on	an	expectation	that	the	child’s	

current	 foster	 parents	 would	 become	 his	 adoptive	 parents.	 	 As	 we	 have	 stated,	 the	 question	 of	
whether	termination	should	be	ordered	is	distinct	from	the	question	of	who	should	adopt	a	child	
post-termination,	because	the	latter	determination	is	made	in	a	separate	proceeding	governed	by	
18-A	M.R.S.	§§	9-301	to	9-315	(2017).		In	re	Kenneth	S.,	2017	ME	45,	¶	6,	157	A.3d	244.		The	discussion	
in	the	judgment	about	the	benefits	of	adoption	by	these	particular	foster	parents,	however,	does	not	
detract	 from	 the	 court’s	 fundamental	 conclusion,	 which	 is	 based	 on	 a	 proper	 analysis	 and	 enjoys	
support	in	the	record,	that	the	father	will	remain	parentally	unfit	for	too	long	as	measured	from	the	
child’s	perspective,	and	that	the	child’s	best	interest	will	be	served	with	the	permanence	that	comes	
with	adoption	generally.			
