MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	131	
Docket:	      Pen-18-128	
Submitted	
  On	Briefs:	 September	26,	2018	
Decided:	     October	4,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                              IN	RE	CHILD	OF	HEATH	D.	
	
	
PER	CURIAM	

       [¶1]	 	 Heath	 D.	 and	 Francine	 E.	 appeal	 from	 a	 judgment	 of	 the	 District	

Court	 (Bangor,	 Jordan,	 J.)	 terminating	 their	 parental	 rights	 pursuant	 to	

22	M.R.S.	 §	 4055(1)(B)(2)(a),	 (b)(i)-(ii),	 (iv)	 (2017).	 	 The	 mother	 and	 father	

both	 argue	 that	 there	 is	 insufficient	 evidence	 in	 the	 record	 to	 support	 the	

findings	 of	 parental	 unfitness.	 	 The	 father	 additionally	 argues	 that	 the	

Department	of	Health	and	Human	Services	failed	to	satisfy	its	responsibilities	

in	 making	 reasonable	 rehabilitation	 and	 reunification	 efforts.	 	 We	 affirm	 the	

judgment.			

       [¶2]		The	Department	filed	a	child	protection	petition	in	June	2016,	two	

weeks	 after	 the	 child	 was	 born.	 	 See	 22	 M.R.S.	 §	 4032	 (2017).	 	 The	 petition	

alleged	neglect	and	threat	of	neglect	by	the	mother	due	to	substance	abuse	and	

exposure	 to	 unsafe	 persons,	 including	 the	 father.	 	 The	 petition	 also	 alleged	

neglect	 or	 the	 threat	 of	 neglect	 by	 the	 father	 as	 a	 result	 of	 untreated	 mental	
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health	issues	and	substance	abuse.		A	week	later,	the	court	(Lucy,	J.)	granted	a	

preliminary	protection	order	after	the	maternal	grandmother	overdosed	in	the	

mother’s	home	with	the	child	present	and	the	mother	failed	to	prevent	contact	

between	the	father	and	the	child.		See	22	M.R.S.	§	4034	(2017).			

      [¶3]		In	October	2016,	the	court	(Jordan,	J.)	entered	a	jeopardy	order	by	

agreement.		See	22	M.R.S.	§	4035	(2017).		The	court	found	jeopardy	as	to	the	

mother	because	of	

      (1)	 Neglect	 and	 threat	 of	 neglect	 due	 to	 failure	 to	 protect	 from	
      unsafe	people	(2)	inadequately	addressed	mental	health	issues	and	
      (3)	history	of	substance	abuse.	
	
Jeopardy	 was	 found	 as	 to	 the	 father	 because	 of	 “past	 and	 present	 substance	

abuse	and	untreated	mental	health	issues,	to	wit	anxiety.”			

	     [¶4]		Included	in	the	jeopardy	order	were	detailed	requirements	for	both	

parents’	 reunification	 with	 the	 child.	 	 Both	 parents	 were	 to	 participate	 in	

random,	 observed	 drug	 screens;	 use	 only	 prescribed	 medications;	 allow	

announced	 and	 unannounced	 visits	 by	 the	 Department	 and	 the	 guardian	

ad	litem;	 maintain	 monthly	 contact	 with	 the	 Department;	 participate	 and	

engage	 in	 substance	 abuse	 and	 mental	 health	 counseling;	 and	 avoid	 contact	

with	unsafe	individuals.		Both	parents	also	agreed	to	participate	in	supervised	

visits	with	the	child	for	as	long	as	it	remained	in	the	child’s	best	interest.		The	
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father	 additionally	 agreed	 to	 participate	 in	 a	 level-of-care	 assessment	 by	 a	

substance	 abuse	 counseling	 agency	 and	 to	 participate	 in	 an	 informational	

session	at	the	Family	Treatment	Drug	Court.			

	     [¶5]	 	 The	 Department	 petitioned	 for	 termination	 of	 both	 parents’	

parental	rights	in	July	2017.		After	a	three-day	hearing	on	the	petition,	the	court	

found,	 by	 clear	 and	 convincing	 evidence,	 that	 both	 parents	 are	 unwilling	 or	

unable	 to	 protect	 the	 child	 from	 jeopardy	 and	 that	 these	 circumstances	 are	

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

needs;	the	parents	are	unwilling	or	unable	to	take	responsibility	for	the	child	

and	that	these	circumstances	are	unlikely	to	change	within	a	time	reasonably	

calculated	to	meet	the	child’s	needs;	and	the	parents	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);	In	re	Thomas	D.,	2004	ME	104,	¶	21,	854	A.2d	

195.		The	court	based	this	determination	on	the	following	findings	of	fact:	

             The	difficult	aspect	of	this	case	is	that	the	parents	have	done	
      some	 positive	 work.	 	 Additionally,	 the	 Court	 finds	 that	 it	 is	 quite	
      clear	that	they	love	their	child.		The	Court	also	finds	that	it	is	quite	
      clear	that	for	the	timeframe	of	an	hour	and	a	half	to	two	hours	they	
      are	 able	 to	 function	 appropriately	 with	 the	 child.	 	 However,	 the	
      parents’	 inconsistency	 with	 services	 and	 visits	 call	 into	 question	
      their	ability	to	parent	on	a	daily	basis.			
             	
             The	random	drug	tests	were	the	primary	method	that	could	
      help	the	parents	prove	that	they	were	ready	to	reunify	with	their	
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     child.	 	 They	 actively	 avoided	 those	 random	 drug	 tests.	 	 They	
     avoided	 those	 tests	 even	 after	 they	 knew	 that	 a	 termination	 of	
     parental	rights	petition	had	been	filed	and	pretried	on	August	18,	
     2017.		The	parents,	therefore,	had	five	months	of	living	under	the	
     threat	 of	 termination	 of	 their	 parental	 rights.	 	 Knowing	 that	 the	
     Department	 was	 pushing	 for	 successful	 random	 drug	 tests	 as	 an	
     indicator	of	their	having	made	enough	progress	to	have	their	child	
     returned	 to	 them,	 they	 still	 avoided	 demonstrating	 their	
     willingness	to	take	the	steps	necessary	to	show	that	jeopardy	was	
     alleviated.			
            	
            In	 addition	 to	 their	 evasion	 of	 random	 screening	 and	
     [Suboxone]	strip	counts,	their	failure	to	maintain	reliable	contact	
     with	the	Department,	the	father’s	recent	possession	of	numerous	
     syringes,	the	mother’s	possession	of	a	syringe	in	January	2017,	and	
     their	 joint	 deception	 regarding	 their	 continuing	 relationship	 all	
     lead	the	Court	to	conclude	that	 jeopardy	has	not	been	alleviated.		
     The	father	has	no	stable	housing,	and	it	looks	as	if	the	mother	may	
     lose	 her	 housing	 as	 a	 result	 of	 her	 pending	 eviction.	 	 The	 Court	
     concludes	 that	 it	 cannot	 responsibly	 place	 this	 child	 with	 either	
     parent.	
            	
            The	 case	 started	 June	 23,	 2016.	 	 As	 of	 the	 date	 of	 the	
     termination	 hearing,	 the	 case	 had	 been	 in	 the	 Court	 for	 nineteen	
     months.		The	child	has	been	in	the	State’s	custody	for	a	little	over	
     eighteen	 months.	 	 The	 Court	 concludes	 that	 it	 would	 take	 many	
     more	 months	 to	 reach	 permanency,	 even	 if	 the	 parents	
     unexpectedly	cooperate	fully.		The	child	does	not	have	the	time	to	
     wait	in	limbo	for	the	uncertain	outcome	of	the	parents’	efforts.		The	
     child	deserves	permanency	sooner	than	they	can	provide.	
	
           .	.	.	.		
     	
            .	.	.	Finally,	the	Court	finds	it	in	the	child’s	best	interests	to	be	
     free[d]	for	adoption	into	a	stable	and	loving	home.		[The	child]	has	
     lived	 in	 his	 current	 home	 since	 May	 of	 2017.	 	 The	 Guardian	 Ad	
     Litem	 makes	 clear	 that	 [the	 child]	 identifies	 those	 people	 as	 his	
     parents	and	their	daughter	as	his	family.			
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      [¶6]	 	 Based	 on	 these	 findings	 of	 fact,	 all	 of	 which	 are	 supported	 by	

competent	 evidence	 in	 the	 record,	 the	 court	 did	 not	 err	 in	 its	 unfitness	

determination.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(b)(i)-(ii),	 (iv);	 In	 re	 A.M.,	

2012	ME	118,	¶	29,	55	A.3d	463.		Nor	did	the	court	err	or	abuse	its	discretion	

by	determining	that	it	was	in	the	child’s	best	interest	to	terminate	both	parents’	

parental	rights.		See	22	M.R.S.	§§	4050(2),	(3)	(2017);	4055(1)(B)(2)(a);	In	re	

B.P.,	2015	ME	139,	¶	19,	126	A.3d	713.			

      [¶7]		The	father	additionally	argues	that	the	court	erred	in	determining	

that	 the	 Department	 satisfied	 its	 responsibilities	 in	 implementing	 the	

rehabilitation	 and	 reunification	 plan.	 	 Contrary	 to	 the	 father’s	 argument,	

competent	evidence	supports	the	court’s	finding	that	the	Department	satisfied	

its	obligations	under	the	statute.		See	22	M.R.S.	§	4041(1-A)(1),	(3)	(2017);	In	re	

Isabelle	 W.,	 2017	 ME	 81,	 ¶	 8	 n.3,	 159	 A.3d	 1225.	 	 The	 Department	 made	

continued	 attempts	 to	 contact	 the	 parents	 throughout	 the	 process,	 provided	

access	 to	 mental	 health	 and	 substance	 abuse	 services,	 provided	 payment	 for	

transportation,	 and	 had	 frank	 conversations	 regarding	 what	 was	 required	 of	

the	parents	for	successful	reunification.		See	In	re	Landon	S.,	2017	ME	199,	¶	5,	

171	 A.3d	 186.	 	 Despite	 the	 Department’s	 efforts,	 the	 parents	 were	 still	
6	

unsuccessful	in	reunification.		See	In	re	Child	of	Lindsay	D.,	2018	ME	87,	¶¶	7-9,	

188	A.3d	180.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	    	     	
	
Laura	P.	Shaw,	Esq.,	Camden	Law	LLP,	Camden,	for	appellant	father	
	
Amy	McNally,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	P.A.,	
Biddeford,	for	appellant	mother	
	
Janet	T.	Mills,	Attorney	General,	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	the	
Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of	 Health	 and	 Human	
Services	
	
	
Bangor	District	Court	docket	number	PC-2016-36	
FOR	CLERK	REFERENCE	ONLY	
