MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2018	ME	12	
Docket:	      And-17-360	
Submitted	
  On	Briefs:	 January	11,	2018	
Decided:	     January	23,	2018	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       IN	RE	ASANAH	S.	
	
	
PER	CURIAM		

	       [¶1]	 	 The	 father	 of	 Asanah	 S.	 appeals	 from	 a	 judgment	 of	 the	 District	

Court	 (Lewiston,	 Lawrence,	 J.)	 terminating	 his	 parental	 rights	 to	 Asanah	

pursuant	 to	 22	 M.R.S.	 §	4055(1)(A)(1)	 and	 (B)(2)(a),	 (b)(i)-(iii)	 (2017).1	 	 He	

alleges	 that	 the	 court	 impermissibly	 relied	 on	 his	 imprisonment	 in	 finding	

parental	 unfitness	 and	 argues	 that	 the	 court	 erred	 by	 determining	 that	

terminating	 his	 parental	 rights	 was	 in	 the	 child’s	 best	 interest.	 	 Because	 the	

evidence	 supports	 the	 court’s	 findings	 and	 discretionary	 determination,	 we	

affirm	the	judgment.	

	       [¶2]	 	 Based	 on	 competent	 evidence	 in	 the	 record,	 the	 court	 found,	 by	

clear	and	convincing	evidence,	that	the	father	is	unwilling	or	unable	to	protect	

the	child	from	jeopardy	and	these	circumstances	are	unlikely	to	change	within	


    1		The	child’s	mother	consented	to	the	termination	of	her	parental	rights	on	March	24,	2017,	and	

is	not	a	party	to	this	appeal.	
2	

a	 time	 which	 is	 reasonably	 calculated	 to	 meet	 her	 needs,	 that	 the	 father	 is	

unwilling	 or	 unable	 to	 take	 responsibility	 for	 the	 child	 within	 a	 time	

reasonably	 calculated	 to	 meet	 her	 needs,	 and	 that	 the	 father	 abandoned	 the	

child.		See	22	M.R.S.	§	4055(1)(B)(2)(b)(i)-(iii);	In	re	Cameron	B.,	2017	ME	18,	

¶	 10,	 154	 A.3d	 1199.	 	 The	 court	 also	 determined	 that	 termination	 of	 the	

father’s	 parental	 rights	 is	 in	 the	 child’s	 best	 interest.	 	 See	 22	M.R.S.	

§	4055(1)(B)(2)(a);	In	re	Cameron	B.,	2017	ME	18,	¶	10,	154	A.3d	1199.		The	

court	 based	 its	 findings	 of	 parental	 unfitness	 and	 its	 determination	 of	 the	

child’s	best	interest	on	the	following	findings	of	fact:	

      	      [The	 father]	 has	 been	 incarcerated	 since	 October	 of	 2010	
      for	 convictions	 on	 charges	 of	 Assault	 and	 Battery	 and	 being	 an	
      Armed	 Career	 Criminal.	 	 He	 believes	 he	 will	 be	 incarcerated	 on	
      these	charges	until	2020.	.	.	.		He	is	now	46	years	old	and	has	been	
      incarcerated	 for	 about	 20	 years.	 	 The	 only	 time	 that	 [the	 father]	
      actually	has	seen	[the	child]	was	one	time	in	2008.	.	.	.		[The	father]	
      acknowledged	that	he	is	unable	to	care	for	[the	child]	because	of	
      his	incarceration.	
      	
             [The	 father]	 is	 aware	 that	 [the	 child]	 is	 living	 with	 [her	
      maternal	grandfather]	and	he	believes	it	is	beneficial	for	her	to	be	
      living	 with	 him.	 .	 .	 .	 	 [He]	 asks	 the	 court	 to	 order	 a	 permanency	
      guardianship	with	[the	grandfather].	
	
            .	.	.	[The	child]	experienced	trauma	in	the	past	and	exhibited	
      symptoms	of	PTSD	and	anxiety.	.	.	.		[The	child]	is	grateful	for	her	
      placement	 with	 [her	 grandfather];	 she	 has	 a	 greater	 sense	 of	
      security	and	stability	because	she	feels	safe	with	him	and	has	no	
      concerns	 that	 he	 will	 hurt	 her.	 	 [The	 grandfather’s]	 boundaries	
                                                                                         3	

      and	 discipline	 have	 been	 appropriate.	 	 For	 [the	 child],	 [the	
      grandfather’s]	house	equals	home.	
            	
            .	.	.	[The	child]	does	not	recall	ever	meeting	[the	father]	.	.	.	.	
            	
            .	 .	 .	 [The	 grandfather]	 testified	 that	 he	 is	 absolutely	 ready,	
      willing	and	able	to	adopt	[the	child].	
            	
	     [¶3]		The	court	explained	that	“[i]ncarceration	is	an	important	factor	.	.	.	

to	consider	in	termination	proceedings,”	but	that	“it	is	not	dispositive.”		It	then	

outlined	 certain	 factors	 that	 a	 court	 should	 consider	 in	 a	 termination	

proceeding	 when	 a	 parent	 is	 incarcerated,	 including	 “the	 parent-child	

relationship	 before	 and	 after	 incarceration,”	 the	 psychological	 effect	 of	 the	

incarceration	on	the	child,	and	the	parent’s	ability	to	fulfill	his	or	her	parental	

responsibilities	 while	 incarcerated.	 	 See	 In	 re	 Alijah	 K.,	 2016	 ME	 137,	 ¶	 16,	

147	A.3d	 1159.	 	 With	 these	 factors	 in	 mind,	 the	 court	 found	 that	 the	 father	

“has	failed	to	develop	any	parent-child	relationship”	with	the	child;	the	father	

“will	be	serving	another	three	years	in	prison”;	the	child	“does	not	know	him”;	

and	 the	 child	 “has	 not	 had	 any	 contact	 with	 [the	 father’s]	 family	 or	 built	 a	

relationship	with	them.”		Given	these	findings,	the	court	found	that	the	father	

was	unfit	and	determined	that	terminating	his	parental	rights	is	in	the	child’s	

best	interest.	
4	

	      [¶4]	 	 The	 father	 relies	 on	 our	 decision	 in	 In	 re	 Cody	 T.,	 2009	 ME	 95,	

¶¶	28–31,	979	A.2d	81,	to	argue	that	the	court	impermissibly	terminated	his	

parental	 rights	 by	 “primarily”	 relying	 on	 his	 incarceration.	 	 The	 father	 also	

contends	that	the	court	erred	in	its	best	interest	determination	because	“there	

was	no	evidence	presented	that	[the	child]	would	be	harmed	by	maintaining	a	

legal	 relationship	 with	 her	 Father.”	 	 He	 argues	 that	 the	 court	 should	 have	

awarded	 a	 permanent	 guardianship	 rather	 than	 terminating	 his	 parental	

rights.	

       [¶5]	 	 The	 father	 is	 correct	 that	 “[a]	 parent’s	 long-term	 incarceration,	

standing	 alone,	 does	 not	 provide	 grounds	 for	 the	 termination	 of	 parental	

rights,”	Adoption	of	Hali	D.,	2009	ME	70,	¶	2,	974	A.2d	916,	but	his	arguments	

nonetheless	fail	in	several	respects.		First,	the	court	did	not	base	its	unfitness	

findings	or	terminate	the	father’s	parental	rights	solely	upon	his	incarceration.		

See	id.	¶	3.		The	court’s	order	indicates	that	it	based	its	findings	on	a	careful	

consideration	of	the	child’s	need	for	stability	and	permanency	and	the	father’s	

relationship	 with	 the	 child—a	 relationship	 affected,	 at	 least	 in	 part,	 by	 the	

father’s	 incarceration.	 	 The	 father’s	 arguments	 fail	 to	 recognize	 that	 “neither	

In	 re	 Cody	 T.	 nor	 any	 other	 authority	 gives	 a	 parent	 a	 ‘pass’	 on	 parental	

responsibilities	as	a	result	of	being	incarcerated.”		In	re	Alijah	K.,	2016	ME	137,	
                                                                                          5	

¶	 14,	 147	 A.3d	 1159.	 	 “A	 parent	 who	 is	 unable	 to	 fulfill	 his	 parental	

responsibilities	 by	 virtue	 of	 being	 incarcerated	 is	 entitled	 to	 no	 more	

protection	 from	 the	 termination	 of	 his	 parental	 rights	 than	 a	 parent	 who	 is	

unable	to	fulfill	his	parental	responsibilities	as	a	result	of	other	reasons.”		Id.		

Indeed,	“a	parent’s	incarceration	is	but	one	factor	to	be	considered	by	a	court	

faced	with	a	termination	petition,	but	it	is	a	factor—a	factor	that	may,	in	some	

cases,	lead	a	court	to	terminate	that	parent’s	rights.”		Id.	¶	16.	

       [¶6]		Here,	the	father	acknowledges	that	he	is	incapable	of	caring	for	the	

child	because	of	his	incarceration.		Additionally,	the	father	only	met	the	child	

once,	 in	 2008—when	 she	 was	 an	 infant—and	 has	 never	 “provide[d]	 a	

nurturing	 parental	 relationship.”	 	 Adoption	 of	 Hali	 D.,	 2009	 ME	 70,	 ¶	2,	

974	A.2d	916	(quotation	marks	omitted).		Since	his	incarceration	in	2010,	the	

father	has	failed	to	fulfill	any	of	his	“responsibilities	as	a	parent,”	or	establish	

any	 “longstanding	 parent-child	 relationship”	 with	 the	 child.	 	 In	 re	 Alijah	 K.,	

2016	ME	137,	¶¶	16,	18,	147	A.3d	1159	(quotation	marks	omitted).		Contrary	

to	the	father’s	contentions,	the	record	contains	ample	evidence	to	support	the	

court’s	 findings	 of	 parental	 unfitness.	 	 See	 In	 re	 K.M.,	 2015	 ME	 79,	 ¶¶	 9-10,	

118	A.3d	812;	22	M.R.S.	§	4055(1)(B)(2)(b)(i)-(iii).	
6	

       [¶7]		Second,	the	court	was	not	required	to	find	that	a	relationship	with	

the	 father	 would	 harm	 the	 child	 before	 determining	 that	 termination	 of	 the	

father’s	 parental	 rights	 with	 a	 permanency	 plan	 of	 adoption,	 rather	 than	 a	

permanency	 guardianship,	 is	 in	 the	 child’s	 best	 interest.	 	 See	 In	 re	 Jacob	 B.,	

2008	ME	168,	¶	17,	959	A.2d	734	(“Such	a	finding	of	prospective	harm	would	

have	 been	 difficult	 in	 a	 child	 abandonment	 case	 when	 there	 had	 been	 no	

parent-child	 relationship	 [and]	 such	 an	 affirmative	 negative	 finding	 is	 not	

necessary	 .	 .	 .	 .”).	 	 The	 court	 carefully	 considered	 the	 child’s	 needs	 and	

competent	evidence	supports	its	finding	that	establishing	a	relationship	with	

the	 father	 “would	 impede	 establishing	 permanency	 for	 [the	 child].”	 	 Because	

“[a]	permanency	guardianship	in	this	case	would	not	have	ensured	certainty	

and	stability	for	the	child,”	In	re	David	W.,	2010	ME	119,	¶	10,	8	A.3d	673,	and	

“instability	 and	 impermanency	 are	 contrary	 to	 the	 welfare	 of	 children,”	

22	M.R.S.	 §	 4050	 (2017),	 the	 court	 did	 not	 err	 or	 abuse	 its	 discretion	 by	

determining	 that	 termination	 of	 the	 father’s	 parental	 rights,	 with	 a	

permanency	 plan	 of	 adoption,	 is	 in	 the	 child’s	 best	 interest.	 	 See	 In	 re	

Thomas	H.,	2005	ME	123,	¶	16,	889	A.2d	297.	

	      The	entry	is:	

                     Judgment	affirmed.	
	
                                                                                 7	

	
	      	     	      	      	    	
	
Jeffrey	S.	Dolley,	Esq.,	Lewiston,	for	appellant	father	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Lewiston	District	Court	docket	number	PC-2016-60	
FOR	CLERK	REFERENCE	ONLY	
	
