	
MAINE	SUPREME	JUDICIAL	COURT	                                                     Reporter	of	Decisions	
Decision:	    2019	ME	66	
Docket:	      Pen-18-426	
Submitted	
  On	Briefs:	 April	9,	2019	
Decided:	     May	7,	2019	
                                                                                                         	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                    IN	RE	CHILD	OF	ERICA	H.	
	
	
PER	CURIAM	

          [¶1]	 	 Erica	 H.	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	 (Bangor,	

Jordan,	J.)	terminating	her	parental	rights	to	her	child1	pursuant	to	22	M.R.S.	

§	4055(1)(B)(2)(a)	and	(b)(i)-(ii)	(2018).		She	contends	that	(1)	the	evidence	

is	 insufficient	 to	 support	 the	 court’s	 findings	 of	 parental	 unfitness,	 (2)	 the	

evidence	is	insufficient	to	support	the	court’s	determination	that	termination	

of	 her	 parental	 rights	 was	 in	 the	 child’s	 best	 interest,	 (3)	 the	 foster	 parents’	

separation	 made	 the	 best	 interest	 finding	 inappropriate,	 and	 (4)	 the	 court	

abused	its	discretion	when	it	denied	her	motions	for	a	new	trial	or	to	reopen	

the	evidence.2		We	affirm	the	judgment.		



    1		The	mother	has	five	children	in	total.		Her	parental	rights	have	been	terminated	as	to	four	of	her	

children,	including	the	child	who	is	the	focus	of	this	appeal.		The	father	of	the	mother’s	remaining	
child	has	sole	parental	rights	to	that	child.			
    2		The	father’s	parental	rights	were	also	terminated.		The	father	initially	appealed,	but	he	later	

voluntarily	dismissed	his	appeal.		See	M.R.	App.	P.	4(a)(2)(A).			
2	

                                         I.		CASE	HISTORY	

        [¶2]		On	October	27,	2017,	the	Department	of	Health	and	Human	Services	

filed	a	petition	to	terminate	the	mother’s	parental	rights.		See	22	M.R.S.	§	4052	

(2018).		The	court	held	a	three-day	hearing	on	the	petition	in	July	and	August	

2018.	 	 On	 September	 17,	 2018,	 the	 court	 found,	 by	 clear	 and	 convincing	

evidence,	that	the	mother	is	unable	to	protect	the	child	from	jeopardy	or	take	

responsibility	for	the	child	within	a	time	which	is	reasonably	calculated	to	meet	

the	child’s	needs.		Id.	§	4055(1)(B)(2)(b)(i)-(ii).		The	court	further	found	that	

termination	of	the	mother’s	parental	rights	is	in	best	interest	of	the	child.		Id.	

§	4055(1)(B)(2)(a).			

        [¶3]		The	court	based	its	decision	on	the	following	factual	findings,	which	

are	 supported	 by	 competent	 evidence	 in	 the	 record.	 	 See	 In	 re	 Child	 of	

Jonathan	D.,	2019	ME	14,	¶	5,	200	A.3d	799.			

        [¶4]	 	 The	 mother	 has	 a	 substantial	 history	 with	 the	 Department.3	 	 The	

child	who	is	the	focus	of	this	appeal	was	six	years	old	at	the	time	of	the	hearing.		


    3		The	mother’s	history	with	the	Department	is	lengthy—beginning	in	2004.		The	Department	has	

been	involved	in	this	child’s	life	on	three	separate	occasions,	starting	in	2012	when	the	Department	
filed	for,	and	was	granted,	an	order	of	preliminary	child	protection,	in	which	custody	was	granted	to	
the	Department.		In	February	2013,	the	court	(E.	Walker,	J.)	issued	a	jeopardy	order.		Following	the	
birth	of	a	sibling	in	February	2015,	the	child	and	his	sibling	were	returned	to	the	mother’s	custody	
and	 the	 proceedings	 were	 dismissed.	 	 In	 July	 2015,	 the	 Department	 became	 involved	 again	 after	
receiving	 reports	 that	 the	 mother	 was,	 among	 other	 things,	 manufacturing	 crystal	
methamphetamine.		Custody	of	the	child	was	again	granted	to	the	Department	through	a	preliminary	
protection	order.		The	case	was	dismissed	in	October	2015	because	the	child’s	father	had	alleviated	
                                                                                                   3	

During	his	life,	he	has	been	involved	in	child	protective	proceedings	on	three	

separate	occasions,	and	has	been	in	the	Department’s	custody	most	of	his	life.		

       [¶5]	 	 The	 mother	 has	 lived	 a	 “difficult	 and	 traumatic	 life,”	 with	 a	

significant	history	of	substance	abuse	and	mental	health	issues.		Although	she	

has	 been	 able	 to	 maintain	 her	 sobriety	 for	 an	 “extended	 period	 of	 time,”	 the	

mother	failed	to	engage	meaningfully	in	mental	health	counseling	until	after	the	

court	terminated	her	parental	rights	to	another	child	in	October	2017,	and	as	a	

result	 has	 considerable	 past	 trauma	 that	 remains	 unaddressed.4	 	 The	 court	

found	the	mother’s	recent	improvements	to	be	“encouraging,	but	.	.	.	not	timely”	

and	noted	that	the	mother’s	“track	record	is	not	simply	the	last	several	months,	

but	must	include	a	longer	period	of	her	history.”				

       [¶6]		 With	regard	to	the	 mother’s	 ability	to	safely	parent	the	child,	the	

court	recognized	that	she	has	become	more	amenable	to	suggestions	related	to	

her	parenting	deficits,	but	she	is	highly	unlikely	to	be	able	to	keep	the	child	safe	

on	 a	 daily	 basis.	 	 The	 court’s	 concerns	 were	 heightened	 by	 the	 mother’s	




jeopardy,	and	a	parental	rights	and	responsibilities	order	was	entered	granting	primary	residence	to	
the	father	and	supervised	visits	to	the	mother.				
   4		The	court	further	found,	based	on	the	mother’s	mental	health	counselor’s	testimony,	that	the	

mother	 “cannot	 be	 pushed	 too	 quickly	 [regarding	 her	 therapy],	 otherwise	 that	 can	 provoke	
regression	and	her	going	back	to	drug	abuse,”	and	that	the	mother	is	“early	on	in	her	recovery	and	
treatment	process.”				
4	

continued	 association	 with	 unsafe	 people,	 particularly	 her	 ex-boyfriend	 with	

whom	she	lived	for	a	period	of	time	despite	her	claims	that	he	had	been	violent	

toward	her	on	several	occasions.				

      [¶7]	 	 The	 court	 found	 that	 the	 child	 “had	 been	 in	 several	 placements	

before	 being	 placed	 with	 the	 current	 foster	 parents,”	 and	 that	 he	 “needs	

consistency,	dependability,	 and	predictability	from	a	parent.”		The	court	 also	

heard	testimony	from	the	child’s	foster	parents;	he	has	been	in	their	care	since	

the	fall	of	2016,	marking	“one	of	the	longest	periods	of	stability”	in	his	life.		The	

foster	parents	each	testified	about	their	recent	decision	to	separate	from	one	

another,	while	 also	highlighting	their	dedication	to	meeting	the	child’s	needs	

and	making	sure	that	his	life	is	 not	disrupted	by	their	separation.		 The	court	

ultimately	determined	that	the	child’s	best	interest	will	be	“served	by	freeing	

him	up	for	adoption	into	a	stable,	loving,	and	consistent	home,”	due	to	his	need	

for	permanency,	and	because	the	“uncertain	nature	of	the	time	necessary	for	

[the	mother	to	make	sufficient	progress]	is	too	substantial	a	problem	for	him	to	

have	to	wait.”			

      [¶8]		On	September	28,	2018,	the	mother	filed	a	motion	to	alter	or	amend	

the	judgment,	see	M.R.	Civ.	P.	59(e),	and	for	additional	findings	of	fact,	see	M.R.	

Civ.	P.	52(b),	along	with	 a	motion	for	a	 new	trial,	see	M.R.	Civ.	P.	 59(a),	or	to	
                                                                                       5	

reopen	the	evidence,	see	M.R.	Civ.	P.	43(j).		The	Department	filed	a	response	to	

the	mother’s	post-judgment	motions	on	October	18,	2018.		The	court	denied	in	

part	and	granted	in	part	the	mother’s	motion	for	additional	findings,	though	it	

did	not	alter	its	decision	to	terminate	the	mother’s	parental	rights,	and	it	denied	

the	 mother’s	 motion	 for	 a	 new	 trial	 or	 to	 reopen	 the	 evidence.	 	 The	 mother	

timely	appealed.		See	22	M.R.S.	§	4006	(2018);	M.R.	App.	P.	2B(c)(2)(B)-(D).			

                                II.		LEGAL	ANALYSIS	

A.	   Parental	Unfitness	

      [¶9]	 	 The	 mother	 first	 argues	 that	 there	 is	 insufficient	 evidence	 of	

parental	unfitness.		We	review	the	trial	court’s	factual	findings	that	a	parent	is	

unfit	for	clear	error.		In	re	Child	of	Tanya	C.,	2018	ME	153,	¶	13,	198	A.3d	777.		

Contrary	to	the	mother’s	contentions,	there	is	competent	evidence	in	the	record	

that	supports	the	court’s	findings	of	parental	unfitness.		The	court	supportably	

found	 that—despite	 the	 mother’s	 recent	 improvements—she	 had	 failed	 to	

participate	 in	 mental	 health	 services	 during	 a	 significant	 portion	 of	 the	

proceedings;	she	had	failed	to	set	safe	boundaries	for	the	child	at	supervised	

visits;	 she	 had	 a	 lengthy	 history	 with	 the	 Department;	 and	 she	 continued	 to	

associate	 with	 unsafe	 people.	 	 Accordingly,	 the	 court	 did	 not	 err	 in	 its	

determination	that	the	mother	is	unable	to	protect	the	child	from	jeopardy	or	
6	

take	responsibility	for	the	child	within	a	time	reasonably	calculated	to	meet	his	

needs.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(b)(i)-(ii);	 In	 re	 Child	 of	 Eric	 K.,	

2018	ME	32,	 ¶	 3,	 180	 A.3d	 666;	 In	 re	 Thomas	 D.,	 2004	 ME	 104,	 ¶	 21,	

854	A.2d	195.	

B.	     Child’s	Best	Interest	

	       [¶10]		The	mother’s	primary	challenge	on	appeal	appears	to	be	based	on	

the	foster	parents’	separation	and	its	effect	on	the	best	interest	of	the	child.		“We	

review	the	trial	court’s	factual	findings	.	.	.	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	 Children	 of	 Anthony	 M.,	

2018	ME	146,	¶	7,	195	A.3d	1229.	

        [¶11]	 	 The	 mother	 argues	 that	 the	 foster	 parents’	 recent	 separation	

presents	 concerns	 about	 their	 ability	 to	 provide	 the	 child	 with	 stability	 and	

consistency.5		However,	we	have	held	that	the	question	of	who	will	adopt	a	child	

after	parental	rights	have	been	terminated	is	not	an	issue	that	is	determined	in	

a	 termination	 proceeding.	 	 See	 In	re	 Children	 of	 Nicole	 M.,	 2018	 ME	 75,	 ¶	 17,	



    5		The	mother	cites	to	the	child’s	therapist’s	testimony	stating	that	she	“would	not	be	happy”	and	

it	would	be	a	“really	bad	situation”	if	the	foster	parents	were	to	separate.		The	mother	fails	to	account	
for	 the	 therapist’s	 later	 testimony	 that,	 in	 order	 for	 the	 foster	 parents	 to	 “carry	 off	 excellent	
co-parenting	and	not	.	.	.	have	negative	stressful	situations,	.	.	.	it	would	be	very	difficult,	and	they	
would	have	to	work	very,	very	hard,”	but	that	in	her	experience,	“they	did	work	very	hard.”				
                                                                                        7	

187	A.3d	 1;	 Adoption	 of	 Isabelle	 T.,	 2017	 ME	 220,	 ¶	 9,	 175	 A.3d	 639;	 In	 re	

Kenneth	 S.,	 2017	 ME	 45,	 ¶	 6,	 157	 A.3d	 244	 (noting	 that	 “the	 best	 interest	

determination	 to	 be	 made	 in	 a	 termination	 proceeding	 [is]	 distinct	 from	 the	

question	 of	 who	 should	 adopt	 the	 child,	 which	 is	 addressed	 in	 an	 adoption	

proceeding”	(citation	omitted)).			

      [¶12]		The	court	based	its	best	interest	findings	on	the	child’s	need	for	

permanency	 and	 the	 length	 of	 time	 the	 child	 has	 already	 spent	 in	 the	

Department’s	custody.		In	reaching	its	determination,	the	court	explicitly	found	

that	the	best	interest	of	the	child	“will	be	served	by	freeing	him	up	for	adoption	

into	 a	 stable,	 loving,	 and	 consistent	 home.”	 	 This	 finding	 is	 supported	 by	

evidence	in	the	record.		Accordingly,	the	court	did	 not	commit	clear	 error	or	

abuse	 its	 discretion	 in	 determining	 that	 termination	 was	 in	 the	 child’s	 best	

interest.		See	22	M.R.S.	§	4055(1)(B)(2)(a);	In	re	Child	of	Troy	C.,	2018	ME	150,	

¶	 13,	 196	 A.3d	 452;	 In	 re	 Children	 of	 Anthony	 M.,	 2018	 ME	 146,	 ¶¶	 14-15,	

195	A.3d	1229;	In	re	Thomas	H.,	2005	ME	123,	¶	24,	889	A.2d	297.	

C.	   Denial	of	Post-Judgment	Motions		

      [¶13]		The	mother	finally	argues	that	the	court	erred	when	it	denied	her	

motion	 for	 a	 new	 trial	 or	 to	 reopen	 the	 evidence	 because	 it	 should	 have	

“reconsidered	whether	it	was	in	[the	child’s]	best	interest[]	to	terminate	[the	
8	

mother’s]	 rights	 with	 more	 evidence	 about	 the	 precise	 circumstances	 of	 the	

home(s)	of	[the	foster	parents],	their	relationship,	and	how	their	separation	is	

affecting	[the	child],	along	with	any	additional	evidence	regarding	any	change	

or	improvement	in	[the	mother’s]	circumstances.”				

      1.     Motion	for	New	Trial	

      [¶14]	 	 In	 her	 motion	 for	 a	 new	 trial,	 the	 mother	 alleged	 that	 “[u]pon	

information	and	belief,	there	has	been	intensified	conflict	between	the	foster	

parents	that	has	led	the	Department	to	change	its	permanency	plan/placement	

with	regard	to	[the	child]”	as	shown	by	“additional	facts	[that	were]	discovered	

after	 the	 trial.”	 	 The	 court	 denied	 the	 mother’s	 motion,	 stating	 that	 the	

Department’s	 citation	 of	 In	 re	 Children	 of	 Nicole	 M.,	 2018	 ME	 75,	 ¶	 17,	

187	A.3d	1,	in	its	opposition	to	the	motion	accurately	states	the	law.			

      [¶15]		We	review	the	denial	of	a	motion	for	a	new	trial	deferentially	“for	

a	clear	and	manifest	abuse	of	discretion.”		In	re	Kaylianna	C.,	2017	ME	135,	¶	8,	

166	A.3d	976.		“Generally,	in	the	interest	of	judicial	economy	and	the	finality	of	

judgments,	[n]ew	trials	based	on	newly	discovered	evidence	are	disfavored	and	

granted	only	upon	convincing	proof,”	with	the	burden	of	proof	on	the	moving	

party.	 	 Estate	 of	 Fournier,	 2009	 ME	 17,	 ¶	 12,	 966	 A.2d	 885	 (alteration	 in	
                                                                                                     9	

original).		In	order	to	prevail	on	a	Rule	59(a)	motion	for	a	new	trial	based	on	

newly	discovered	evidence,	the	moving	party	must	prove	

         (a)	that	the	new	evidence	is	such	that	it	will	probably	change	the	
         result	upon	a	new	trial,	(b)	that	i[t]	has	been	discovered	since	the	
         trial,	(c)	that	it	could	not	have	been	discovered	before	the	trial	by	
         the	exercise	of	due	diligence,	(d)	that	it	is	material	to	the	issue,	and	
         (e)	that	it	is	not	merely	cumulative	or	impeaching.	
         	
Id.	

	        [¶16]		For	the	reasons	set	forth	above,	supra	¶	11,	additional	information	

about	 conflict	 between	 the	 foster	 parents	 was	 irrelevant	 to	 the	 termination	

proceeding,	 and	 thus	 the	 court	 did	 not	 abuse	 its	 discretion	 in	 denying	 the	

mother’s	motion	for	a	new	trial.6			

         2.	   Motion	to	Reopen	the	Evidence		

         [¶17]		We	review	a	court’s	denial	of	a	motion	to	reopen	the	evidence	for	

an	abuse	of	discretion.		See	In	re	Danielle	S.,	2004	ME	19,	¶	2,	844	A.2d	1148.		“A	

party	 who	 has	 rested	 cannot	 thereafter	 introduce	 further	 evidence	 except	 in	

rebuttal	 unless	 by	 leave	 of	 court.”	 	 M.R.	 Civ.	 P.	 43(j).	 	 “In	 the	 context	 of	 a	

proceeding	on	a	petition	for	termination	of	parental	rights,	we	have	held	that	a	


    6		 Additionally,	 the	 court	 denied	 the	 mother’s	 post-judgment	 motions	 after	 entering	 a	
post-termination	 judicial	 review	and	permanency	planning	 order	 in	which	 it	stated	 that	adoption	
was	still	the	permanency	plan	and	made	no	indication	of	a	change	in	the	child’s	placement.		Therefore,	
the	 court	 knew	 that	 the	 Department	 had	 not	 changed	 its	 permanency	 plan	 or	 placement,	 and,	
accordingly,	did	not	abuse	its	discretion	in	denying	the	mother’s	motion	for	a	new	trial	based	on	her	
erroneous	assertions.	
10	

court	should,	but	is	not	required	to,	reopen	the	evidence	when	there	is	evidence	

relevant	to	the	issues	in	the	case.”		In	re	Children	of	Jeremy	A.,	2018	ME	82,	¶	16,	

187	A.3d	602.			

       [¶18]		For	the	same	reasons	we	discussed	above,	supra	¶	11,	the	court	did	

not	abuse	 its	discretion	in	declining	to	reopen	the	record	to	allow	 additional	

evidence	about	the	foster	parents’	separation.		The	court	had	ample	evidence	

before	it	to	consider	the	issue	after	a	three-day	trial—during	which	the	mother	

had	 ample	 opportunity	 to	 cross-examine	 the	 foster	 parents	 about	 their	

separation—and	the	information	was	known	to	the	parties	at	trial.7		See	Light	

v.	D’Amato,	2014	ME	134,	¶	29,	105	A.3d	447	(holding	that	the	court	did	not	

abuse	 its	 discretion	 when	 it	 declined	 to	 reopen	 the	 record	 after	 a	 “lengthy	

process”	 had	 already	 taken	 place	 when	 the	 moving	 party	 was	 aware	 of	 the	

information	it	was	seeking	to	admit	before	the	court	entered	its	judgment).		

       The	entry	is:	




   7		The	court	also	knew	that	the	Department	had	not	changed	its	permanency	plan	or	the	child’s	

placement	when	it	made	its	decision	to	deny	the	motion.		See	supra	n.6.			
                                                                                11	

                            Judgment	affirmed.	
	
	      	     	     	      	      	
	
Erik	T.	Crocker,	Esq.,	Farrell,	Rosenblatt	&	Russell,	Bangor,	for	appellant	mother	
	
Aaron	M.	Frey,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	
of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Bangor	District	Court	docket	number	PC-2017-49	
FOR	CLERK	REFERENCE	ONLY	
