MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:    2019 ME 70
Docket:      Som-18-489
Submitted
  On Briefs: April 24, 2019
Decided:     May 14, 2019

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


                           IN RE CHILDREN OF JESSICA D.


PER CURIAM

         [¶1] Jessica D. appeals from a judgment entered by the District Court

(Skowhegan, Benson, J.) pursuant to 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii)

(2018) terminating her parental rights to her three children. She challenges

the court’s determination that she is parentally unfit and that termination of

her parental rights is in the best interests of the children. We affirm the

judgment.

                                   I. BACKGROUND

         [¶2] The Department of Health and Human Services initiated child

protection proceedings as to the mother’s three children on May 17, 2017,

alleging chronic substance abuse and significant neglect. See 22 M.R.S. § 4032

(2018). The court issued a preliminary protection order, placing the children

in the Department’s custody. See 22 M.R.S. § 4034 (2018). On August 30, 2017,

the court entered a jeopardy order, finding that the children were “in
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circumstances of jeopardy in the care of their mother . . . due to her substance

abuse and past neglect . . . . [And the mother is] unable to remain clean and sober

and safely care for her children.” See 22 M.R.S. § 4035 (2018). The court’s

jeopardy order specifically found that the mother failed to engage and follow

through consistently with the medical and mental health treatment of the

children, all of whom have high needs. The court also outlined the services and

steps the mother needed to take to ameliorate the jeopardy, including engaging

in dual-diagnosis counseling and medication management; obtaining a

court-ordered diagnostic evaluation (CODE); taking parenting classes;

maintaining a safe, stable, and sanitary home free of domestic violence, drugs,

and alcohol; and refraining from criminal conduct.

        [¶3] Despite the mother’s participation in some of these services, on

June 26, 2018, the Department petitioned the District Court to terminate the

mother’s parental rights.1 See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii). At the

termination hearing on September 20, 2018, the court heard testimony from a

physician who examined two of the children, a child psychologist, the guardian

ad litem, the Department social worker, the children’s current foster parent, the



    1 The father consented to the termination of his parental rights on July 24, 2018, and he is
therefore not a party to his appeal. See 22 M.R.S. § 4055(1)(B)(1) (2018).
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mother’s clinical counselor, and the mother. On November 8, 2018, the court

entered an order terminating the mother’s parental rights, finding, by clear and

convincing evidence, that the mother is unable to protect the children from

jeopardy and unable to take responsibility for the children within a time

reasonably calculated to meet their needs, and that termination of her parental

rights is in the best interests of the children. See id. The court based its decision

on the following findings, which are supported by competent record evidence.

      While [the mother] has been engaged in services throughout the
      pendency of this child protection proceeding she has not made any
      measurable progress in reunifying with her children.

             [The mother] has historically struggled with maintaining
      safe and stable housing for herself that is suitable for reunification
      with the [children] and that struggle is ongoing. . . . [A] DHHS
      permanency social worker . . . went to the [mother’s] home shortly
      after the mother had moved in and noted safety concerns including
      gaps between the walls and the exterior of the home and use of a
      homemade woodstove.

             [The mother’s] substance abuse and poorly managed mental
      health led to numerous Department involvement[s] dating back to
      2013. On more than one occasion the children were safety planned
      out of [the mother’s] care because her substance abuse and mental
      health deteriorated, and the children were neglected. When
      residing with [the mother] the children were hungry so frequently
      at school that reports were made to the Department and plans
      were made by the school to provide the children with extra food
      during the school day. On three occasions, [the mother] was not
      present to pick the children up from the bus stop and school
      officials weren’t able to reach her for lengthy periods of time. Every
      time the children were planned out of [the mother’s] care their
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    behaviors improved drastically, their academic performance
    improve[d], services [were] re-established, and their medical
    appointments [were] met. [The mother] has historically been able
    to achieve sobriety, engage in mental health treatment and
    stabilize[,] allowing the children to be returned to her care. When
    the children are returned to her care[,] however, she has stopped
    mental health treatment, her attendance in her services has also
    stopped and she has relapsed on illicit substances.

          [The mother] has no insight into her substance abuse issues,
    and, at the hearing, she downplayed the impact it had on her
    children. She testified that she didn’t use [drugs] when her
    children were home and ignored the obvious neglect the children
    were subjected to. [She] disputes using [c]ocaine despite her
    [positive] March 2018 drug screen . . . and the [c]ourt concludes
    that that [test] result was the result of a relapse. Despite the
    approximate 5 months of sobriety, [her] longstanding and cyclical
    struggle with substance abuse reveals she is only at the beginning
    of her recovery.

          [The mother] also has little or no insight into the extent her
    mental health has impacted her ability to parent and led to the
    neglect previously found by the [c]ourt in this matter.

          . . . [The mother] is minimally aware of her children’s many
    medical, behavioral and educational needs and services. [Her] plan
    is apparently for the children to do all services while at school and
    to ensure that they don’t have services that fall on the same day [as]
    her services do.

           . . . [She] was unable to clearly articulate how she would
    effectively manage the [children’s] behaviors other than to state
    [that it’s] not easy to do during visits.

          [The mother] does not enforce any rules about personal
    space with the [children] and she does not act as a parent during
    the visits but rather a peer of the children. After visits with [the
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      mother,] the [children] can be very difficult to redirect, and they
      struggle to keep their hands to themselves.

            . . . [The mother] has been unable to demonstrate an ability
      to meet and maintain her own mental health, substance abuse
      recovery, and living situation in addition to the mental health,
      medical, dental, vision and educational needs of the [children]. The
      Department has provided [her] with [numerous programs and
      services]. Despite all these services, she is unable to demonstrate
      [an] ability to achieve and maintain a level of stability and sobriety
      while juggling the high needs of her children.

            ....

             [The foster parent] has implemented a structure, routine,
      and consistency in the children’s schedule that has allowed them to
      feel safe and secure. The children are well bonded with [their
      foster parent] and she is committed to providing them with the
      care, supervision and love they require. . . . [C]hanging the kids’
      routines would be drastic and would cause huge regression in their
      behavior . . . .

            ....

            . . . While it is abundantly clear to the court that the mother
      loves her children very much, the clock has run out and after 15
      months in foster care it is time for [the children] to have the
      permanency they deserve.

                                 II. DISCUSSION

      [¶4] The mother argues on appeal that the record fails to support the

court’s finding that she is parentally unfit and that termination of her parental

rights are in the children’s best interests. We review the court’s factual findings

supporting its determination of parental unfitness and best interests of the
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children for clear error, and review its ultimate conclusion that termination is

in the best interests of the children for an abuse of discretion, “viewing the facts,

and the weight to be given them, through the trial court’s lens, and giving the

court’s judgment substantial deference.” In re Mathew H., 2017 ME 151, ¶ 2,

167 A.3d 561 (quotation marks omitted).

      [¶5]    Contrary to the mother’s argument that she has sufficiently

addressed her mental health and substance abuse issues, there is competent

evidence that the mother has tested positive for illegal substances numerous

times during the pendency of this case and consistently abuses marijuana.

There is also competent evidence to support the court’s finding that the mother,

who testified that she puts her mental health treatment on the “back-burner”

to care for her children, historically ceases substance abuse and mental health

counseling services once the children are returned to her care.

      [¶6] The mother also argues that the Department failed to make certain

parenting services available, which she argues are essential to her success.

Although it appears that the Department did not provide certain parenting

counseling services to her, there is no evidence that those additional services

would have made any difference. Moreover, even if the Department failed to

make reasonable efforts at reunification—which is not the case here—that
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failure is merely a factor in the unfitness analysis and does not preclude

termination of parental rights. In re Danika B., 2017 ME 209, ¶ 4, 172 A.3d 464.

      [¶7] Here, the court’s finding of unfitness was not based on the mother’s

failure to engage in parenting classes but rather in her persistent inability to

demonstrate stability and sobriety while the children are in her care. Although

the Department did not provide certain parenting services to her, the record

evidence, viewed as a whole, is sufficient to support the court’s findings of

unfitness by clear and convincing evidence. See In re Child of Christine M., 2018

ME 133, ¶ 7, 194 A.3d 390; In re Charles G. 2001 ME 3, ¶ 7, 763 A.2d 1163.

      [¶8] As to the best interests of the children, permanency is the “central

tenet” of the Child and Family Services and Child Protection Act. See In re

Thomas H., 2005 ME 123, ¶23, 889 A.2d 297; 22 M.R.S. §§ 4001 to 4099-H

(2018). When a child has been placed in foster care for fifteen of the most

recent twenty-two months, the Department must, with limited exceptions, file

a petition to terminate the parents’ rights. 22 M.R.S. § 4052(2-A)(A) (2018); see

In re B.P., 2015 ME 139, ¶ 19, 126 A.3d 713 (“Once 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
8

fit an adult’s timeframe for permanent change.” (alterations omitted)

(quotation marks omitted)).

      [¶9] The children entered foster care in May 2017; the termination

hearing was held sixteen months later, in September 2018. After living apart

for some time, the three children were reunited in March 2018 and have since

lived with a single foster parent. Based upon these facts, all of which are

supported by competent record evidence, the court did not err in finding, by

clear and convincing evidence, that the mother is unable to take responsibility

and unable to protect the children from jeopardy, that these circumstances are

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

needs, and that termination of her parental rights are in the best interests of

the children, nor did the court abuse its discretion in its ultimate decision to

terminate her parental rights. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii); In re

Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195.

      The entry is:

                   Judgment affirmed.
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Wayne Doane, Esq., Exeter, for appellant mother

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


Skowhegan District Court docket number PC-2017-26
FOR CLERK REFERENCE ONLY
