MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 162
Docket:   Cum-19-250
Argued:   November 7, 2019
Decided:  December 10, 2019

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



                                 IN RE CHILD OF SHERRI Y.



MEAD, J.

         [¶1]      Sherri Y. appeals from a judgment of the District Court

(Portland, Eggert, J.) terminating her parental rights to her child. The mother

challenges the sufficiency of the evidence with regard to the court’s finding that

she is unfit within the meaning of 22 M.R.S. § 4055(1)(B)(2)(b)(i) and (ii)

(2018); disputes the court’s determination that termination of parental rights

was in the child’s best interest, see 22 M.R.S. § 4055(1)(B)(2)(a) (2018); and

asserts that the court violated her constitutional due process rights by refusing

to acknowledge that she was incompetent to participate in the termination

hearing. We affirm the judgment.

                                      I. BACKGROUND

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

supported by the evidence, and from the procedural record. See In re Child of

Scott A., 2019 ME 123, ¶ 2, 213 A.3d 117.                  On December 20, 2017, the
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Department of Health and Human Services filed a petition for a child protection

order. On January 3, 2018, the Department requested and was granted a

preliminary child protection order (Portland, Field, J.), see 22 M.R.S. § 4034

(2018), and the child was temporarily placed with the Department and entered

foster care.

          [¶3] With the parties’ agreement, the court (Portland, Eggert, J.) entered

a jeopardy order on March 5, 2018, finding that the mother had been unable to

care for the child because she had suffered severe brain injuries, had mental

health and substance use issues, and lacked stable housing. See 22 M.R.S.

§ 4035 (2018). On January 10, 2019, the Department petitioned to terminate

the mother’s and father’s1 parental rights, asserting that neither the mother nor

father could provide a safe environment and stable housing for the child. See

22 M.R.S. § 4052 (2018). On March 6, 2019, the father consented to the

termination of his parental rights.

          [¶4] On May 14, 2019, the court held a one-day hearing on the petition

to terminate the mother’s rights, see 22 M.R.S. § 4054 (2018). In two orders

issued May 17, 2019, the court removed the child’s grandfather as guardian2


    1   The child’s father is not a party to this appeal.

    2 The child’s maternal grandfather had been the child’s legal guardian since the child’s birth. He
is also the mother’s legal guardian.
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and terminated the mother’s parental rights. It also declared the child’s

permanency plan to be adoption. In regard to the mother, the court determined

that there was clear and convincing evidence that the mother failed to alleviate

jeopardy and that circumstances were unlikely to change within a time

reasonably    calculated     to   meet     the    child’s   needs,    see    22       M.R.S.

§ 4055(1)(B)(2)(b)(i); that she continued to be unable to take responsibility for

the child in a time reasonably calculated to meet the child’s needs, see 22 M.R.S.

§ 4055(1)(B)(2)(b)(ii); and that it would be in the child’s best interest to

terminate her parental rights, see 22 M.R.S. § 4055(1)(B)(2)(a). The court

based its determination on the following factual findings:


             [The child] was placed in the guardianship [of his
      grandfather] because his mother . . . was unable to care for him.
      [The mother] continued to live with her parents and [the child]
      after the guardianship was granted. On December 11, 2017, [the
      grandfather] was evicted from his home and he and four other
      unrelated individuals were served with no trespass orders to
      remove them. There was no report that [the mother] was living
      there, but [the child] was and he was placed by [the grandfather]
      with [the grandfather’s former daughter-in-law] . . . . During this
      time the Department of Health and Human [S]ervices had already
      been investigating a report from [the child’s] school concerning his
      behaviors in school and a Petition was filed with the Court on
      December 20, 2017. . . .

            [The child] is an incredibly high needs child. His behavior at
      school . . . prompted a referral to the Department in November
      2017 . . . . A recent foster parent . . . testified that [the child] required
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    a lot of work which was essentially one on one attention on a 24/7
    basis. A caregiver could not leave him alone for any length of time
    and expect he would be safe. . . .

          [The child] is presently placed with . . . a therapeutic foster
    parent . . . . She is an elderly and experienced foster parent who
    would not be considered for adoption of [the child]. She has a
    calming influence on [the child] who appears to be doing well for
    the time being in her care.

           [The child’s] guardian [his grandfather] has had no contact
    with [the child] for over a year. He is presently staying with friends
    and does not have any permanent place to live. He was not really
    able to care well for [the child] after his wife died in 2016, and [the
    child’s] present emotional, medical, and psychological condition
    may well be the result of that lack of good care.

          . . . Compounding [the mother’s] inability to care for [the
    child] was a brain injury suffered in 2012 from an assault. She is
    now subject to seizures and admits she has poor impulse control as
    demonstrated in the courtroom during this hearing. More
    importantly, she has demonstrated her inability to visit with [the
    child] and adequately interact with him on a consistent and
    appropriate basis.

           Mother was subject to a reunification plan that required her
    to undergo a substance abuse evaluation, a mental health
    evaluation, obtain a medication manager, obtain safe and stable
    housing, have a neuropsychological evaluation, and regularly
    attend supervised visits with [the child]. She does have a medical
    manager, and has done some counseling but has not adequately
    performed the other requirements of the plan. She has attended
    visits but not all that have been scheduled and often ends them
    early. She is not always appropriate at those visits, and has not
    been able to progress beyond the once a week supervised visits. At
    those supervised hearings she demonstrated that she could not be
    left alone and unsupervised with [the child].
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(Footnote omitted). The mother timely appealed the judgment terminating her

parental rights. See 22 M.R.S. § 4006 (2018); M.R. App. P. 2B(d)(1).


                                 II. DISCUSSION

A.    Sufficiency of the Evidence

      [¶5] The mother contends that the court lacked sufficient evidence to

justify the termination of her parental rights. Terminating a parent’s rights

without her consent requires finding by clear and convincing evidence “at least

one ground of parental unfitness and that termination of the parent’s rights is

in the child’s best interest.” In re Child of Rebecca J., 2019 ME 119, ¶ 5,

213 A.3d 108; see 22 M.R.S. § 4055(1)(B)(2) (2018). We review “the court’s

factual findings of unfitness and best interest for clear error, and we will uphold

those findings if there is any competent record evidence to support them.”

In re Child of Rebecca J., 2019 ME 119, ¶ 5, 213 A.3d 108. “Evidence is clear and

convincing when the court could reasonably have been persuaded that the

required factual findings were proved to be highly probable.” In re B.P.,

2015 ME 139, ¶ 16, 126 A.3d 713 (quotation marks omitted). We review for an

abuse of discretion the court’s ultimate determination that termination is in the

child’s best interest. In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212.
6

      [¶6] Regarding the court’s unfitness finding, the mother’s challenge

appears to be predicated entirely upon her due process argument that she was

entitled to a competency inquiry, discussed infra Section II.B; she fails to

explain how her competency argument relates in any way to her claim that the

court lacked sufficient evidence to find her unfit.

      [¶7] Concerning the court’s best interest finding, the mother asserts that

the court failed to make any findings specific to that element of the termination

standards. See 22 M.R.S. § 4055(1)(B)(2)(a). However, a court may draw from

the same findings in making its unfitness and best interest determinations.

Although parental unfitness and best interest of the child are two separate tests,

the court “may consider the findings of parental unfitness as relevant to best

interests. For example, the parent’s inability to protect the child from jeopardy

is relevant to the child’s best interest[].” In re Ashley A., 679 A.2d 86, 89

(Me. 1996). Further, the structure of the court’s order, which first presented all

of its factual findings and then rendered each of its legal determinations,

supports the conclusion that the court’s findings underlie both elements

required to terminate a parent’s rights.

      [¶8] At the termination stage, a court determines a child’s best interest

by considering factors including “the needs of the child, the child’s age,
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attachment to relevant persons, periods of attachment and separation, ability

to integrate into substitute placement or back into [the] parent’s home, and the

child’s physical and emotional needs.” Id.; see 22 M.R.S. § 4055(2). The court

heard evidence demonstrating the child’s high level of need, the many foster

homes that he lived in, and his comparatively strong performance during

periods of routine and consistency. See In re Jason B., 552 A.2d 9, 11 (Me. 1988)

(“Because there is clear and convincing evidence in the record to support the

finding, the trial court properly determined that it is in the best interests of the

children that . . . parental rights . . . be terminated.”). This evidence is reflected

in the court’s factual findings, which are supported by the record. The court

was entitled to find that its findings were “highly probable.” In re Breauna N.,

1999 ME 191, ¶ 19, 742 A.2d 911 (quotation marks omitted).

B.    Due Process

      [¶9] In three interrelated arguments, the mother contends that the court

violated her due process rights by (1) failing to examine her competency,

(2) declining to postpone the termination hearing when she began to struggle

in the courtroom, and (3) failing to assign her a guardian. We conclude that no

violation of the mother’s due process rights occurred.
8

      [¶10] The mother did not raise the issue of competency during the

termination hearing, and the mother does not tender a claim of ineffective

assistance of counsel on appeal. We apply the obvious error standard of review

to her constitutional due process claim. See In re Child of Lacy H., 2019 ME 110,

¶ 9, 212 A.3d 320. Obvious error is “seriously prejudicial error tending to

produce a manifest injustice.” Id. (quotation marks omitted).

      [¶11] The mother acknowledges that on several occasions during the

hearing she spoke out of turn. On one such occasion, the court temporarily

removed her from the courtroom after she interrupted a caseworker’s

testimony to dispute one of the caseworker’s statements. After the mother was

removed from the courtroom for a short recess, her attorney assured the court

that the mother had “calmed down” a “significant amount.” Nevertheless, after

hearing testimony from the caseworker and the child’s grandfather, the court

stated, “Mother seems to be sort of out of control at this point, and I’m

concerned about trying to put her on the stand in that condition,” and proposed

reconvening at a later date. After the attorneys expressed their schedule

conflicts, however, the court reconsidered and elected to proceed with the

hearing. The mother also identifies an instance in which her lawyer had to
                                                                              9

refocus her while discussing the same issue that had triggered her earlier

interjection.

        [¶12] In addition to these examples, the mother isolates a number of

other exchanges at the hearing that speak to her mental health concerns

generally. These include references to her time spent at a psychiatric hospital,

her traumatic brain injury and history of seizures, and portions of her own

testimony in which she experienced difficulty explaining how her medical

conditions affected her daily life.

        [¶13] We discussed the issue of a parent’s competency in relation to a

termination hearing in In re David H., 2009 ME 131, ¶ 16, 985 A.2d 490. We

said,

        Review of the termination hearing record, including the mother’s
        testimony, discloses no event or statement that might have
        suggested to the court that the mother could not answer questions
        appropriately, did not understand the nature and consequences of
        the proceeding, or was otherwise incompetent to assist counsel and
        participate in the proceedings.

Id. (emphasis added). We noted that, like in the present matter, “[a]t the

hearing, the mother, assisted by counsel, emphasized her competence, not her

incompetence.” Id.

        [¶14] We revisited the issue of competency in the similar context of a

parent’s consent to termination in In re H.C., 2013 ME 97, ¶ 16, 82 A.3d 80. In
10

that case, we held that in order for a parent to prevail on a claim of incapacity,

she “must prove that [she] was unable to reasonably understand the nature and

consequences of the consent.” Id. We further concluded that the District Court

may “inquire into whether a party’s act was a departure from the normal

pattern of similar transactions.” Id. In H.C., we decided that the parents’

consent to termination “was not a departure from prior related decisions”

because their “cognitive limitations were disclosed to the court throughout the

child protection process.” Id. Similarly, in the present matter, the court was

familiar with the mother’s health conditions.

      [¶15] None of the above instances noted by the mother demonstrates

that she lacked the ability to understand the nature and consequences of the

hearing or to participate in it. In fact, the mother’s own statements suggest that

she well understood the purpose and relevance of the termination hearing.

During her testimony, the mother demonstrated her familiarity with the child’s

particular medical and behavioral conditions, and she asserted that she knew

how to “take care of [her child’s] needs.” Suffering from mental health issues

does not necessarily render one incompetent to participate in a hearing. See

In re David H., 2009 ME 131, ¶ 28, 985 A.2d 490. We have observed that “having

limited cognitive functioning is not the same as being incompetent to proceed
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in [a child protection] matter.” In re Child of Mercedes D., 2018 ME 149, ¶ 16,

196 A.3d 888 (quotation marks and alterations omitted). The incapacity

inquiry focuses instead on a parent’s ability to grasp the consequences of the

present proceeding.

       [¶16] Here, like in David H. and in H.C., the court was aware of the

mother’s mental health issues, and the mother did not raise the issue of

incompetence prior to this appeal. See In re H.C., 2013 ME 97, ¶ 16, 82 A.3d 80

(“At no time prior to this appeal did either parent raise any concerns about his

or her mental capacity.”); In re David H., 2009 ME 131, ¶ 36, 985 A.2d 490 (“The

mother’s mental health issues were disclosed and addressed throughout the

child protective proceeding, including the termination hearing.”). We conclude

that on this record the mother has failed to demonstrate that she was unable to

understand the nature and consequences of the termination hearing, could not

answer questions, or was otherwise incompetent to participate in the hearing.

See In re H.C., 2013 ME 97, ¶ 16, 82 A.3d 80; In re David H., 2009 ME 131, ¶ 36,

985 A.2d 490. The court was not required to make a specific inquiry as to the

mother’s competency.3




  3 Moreover, the mother’s own guardian, her father, attended the hearing and made no request for
a competency review.
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      [¶17] Next, the court did not violate the mother’s due process when it

decided not to terminate the hearing. The mother admitted that her brain

injury impairs her ability to regulate emotions. However, intermittent lack of

emotional control is not the same as incapacity.          See In re David H.,

2009 ME 131, ¶¶ 37-38, 985 A.2d 490. The fact that the court considered

postponing the hearing before proceeding does not demonstrate that the

mother was incompetent to participate in the hearing; rather it reflects the

court’s sensitivity toward the mother based upon her emotional responses.

We conclude that, on this record, due process did not require the court to

continue the hearing.

      [¶18] Finally, due process did not require the court to sua sponte appoint

an additional support for the mother in the form of a guardian ad litem. The

mother’s counsel did not request a guardian ad litem for the hearing, and the

court had no evidence before it suggesting that a guardian ad litem would have

served a purpose or guided the mother more effectively through the hearing

than her lawyer could.     See Child of Mercedes D., 2018 ME 149, ¶ 16,

196 A.3d 888 (concluding that, where the mother’s counsel moved for a

continuance to request appointment of a guardian ad litem, counsel failed to

demonstrate the mother’s need for a guardian).
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        The entry is:

                           Judgment affirmed.



Kristina Dougherty, Esq. (orally), Chester & Vestal, P.A., Portland, for appellant
mother

Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee Department of
Health and Human Services


Portland District Court docket number PC-2017-92
FOR CLERK REFERENCE ONLY
