	
MAINE	SUPREME	JUDICIAL	COURT	                                                          Reporter	of	Decisions	
Decision:	    2018	ME	165	
Docket:	      Ken-18-238	
Submitted	
  On	Briefs:	 November	28,	2018	
Decided:	     December	20,	2018	
                                                                                                              	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               ADOPTION	OF	SHAYLEIGH	S.	et	al.	
	
	
PER	CURIAM	

          [¶1]		The	father	of	S.S.	and	P.S.	appeals	from	judgments	entered	by	the	

Kennebec	County	Probate	Court	(E.	Mitchell,	J.)	terminating	his	parental	rights	

in	anticipation	of	an	adoption	pursuant	to	18-A	M.R.S.	§	9-204(a)-(b)	(2017)1	

and	22	M.R.S.	§	4055(1)(A)(2),	(B)(2)(a),	and	(B)(2)(b)(ii)	(2017).		He	contends	

that	the	court	erred	in	its	use	of	statements	made	by	S.S.	during	an	in	camera	

interview	and	that	there	was	insufficient	evidence	to	support	the	court’s	finding	

of	parental	unfitness	as	to	both	children.		We	affirm	the	judgments.	

                                           I.		CASE	HISTORY	

	         [¶2]		This	appeal	arises	from	private	adoption	proceedings	and	petitions	

to	terminate	the	father’s	parental	rights	brought	by	the	mother	and	stepfather	

of	S.S.	and	P.S.	in	the	Kennebec	County	Probate	Court.		The	petitions	sought	to	



    1	Title	18-A	will	be	revised	and	recodified	as	Title	18-C	effective	July	1,	2019.		See	P.L.	2017,	ch.	402.		
2	

terminate	the	parental	rights	of	the	children’s	biological	father,	thereby	freeing	

the	children	for	adoption	by	their	stepfather.		A	one-day	hearing	was	held	on	

the	mother	and	stepfather’s	petitions	on	May	16,	2018,	at	which	the	mother	and	

father	testified.		On	the	same	day,	the	court	interviewed	S.S.	in	camera.				

	      [¶3]		On	May	30,	2018,	the	court	issued	two	judgments,	one	for	each	child,	

terminating	the	father’s	parental	rights.		In	its	judgments,	the	court	recited	the	

testimony	of	the	witnesses	and	also	issued	what	it	explicitly	characterized	as	

findings,	 applying	 the	 requisite	 clear	 and	 convincing	 evidence	 standard	 of	

proof.		See	In	re	Child	of	Portia	L.,	2018	ME	51,	¶	2,	183	A.3d	747.		Because	a	

court’s	findings	will	be	affirmed	on	appeal	if	they	are	supported	by	any	evidence	

in	the	record,	see	Adoption	of	Isabelle	T.,	2017	ME	220,	¶	30,	175	A.3d	639,	the	

recitation	of	testimony	in	a	 judgment	is	unnecessary	and	could	be	viewed	as	

limiting	 the	 support	 for	 certain	 findings	 to	 the	 recited	 testimony.	 	 If	 a	 court	

accepts	a	fact	stated	in	testimony	and	the	fact	is	important	to	the	judgment,	it	

is	best	stated	as	an	affirmative	finding	rather	than	as	a	reference	to	testimony.			

       [¶4]	 	 In	 both	 judgments	 the	 court	 made	 the	 following	 findings	 of	 fact,	

which	are	supported	by	competent	evidence	in	the	record:	

       	      Based	upon	clear	and	convincing	evidence	presented	at	the	
       hearing,	 this	 Court	 concludes	 that	 termination	 of	 the	 parental	
       rights	of	[the	father],	thereby	freeing	the	child	for	adoption	by	the	
       petitioners,	 would	 be	 in	 the	 child’s	 best	 interests.	 	 This	 Court	
                                                                                     3	

    specifically	finds	that	the	[father]’s	failure	to	make	any	attempt	to	
    establish	a	family	relationship	with	the	child,	or	contribute	in	any	
    way	 toward	 the	 child’s	 financial	 support,	 constitutes	 clear	 and	
    convincing	evidence	that	the	[father]	has	been	unwilling	or	unable	
    to	 take	 responsibility	 for	 the	 child	 within	 a	 time	 reasonably	
    calculated	to	meet	the	child’s	needs.		
	
    	          In	reaching	its	decision,	this	Court	has	considered	carefully	
    the	 needs	 of	 this	 child,	 the	 child’s	 age	 and	 relationship	 with	 the	
    [father]	and	with	the	petitioners,	and	the	amount	of	time	spent	with	
    each	 of	 the	 parties	 and	 the	 child’s	 ability	 to	 integrate	 into	 the	
    petitioner’s	home.		
    	
    .	.	.	.	
    	
    	          The	 parents	 of	 [S.S.]	 and	 [P.S.]	 were	 divorced	 on	
    July	20,	2015.		[The	father]	was	awarded	visits	every	3rd	weekend	
    and	three	weeks	in	the	summer.		He	also	was	ordered	to	pay	child	
    support	 of	 $87.50	 weekly	 for	 his	 two	 children.	 	 [The	 father]	 had	
    both	children	for	a	visit	at	his	mother’s	home	in	August	of	2015.		He	
    testified	 that	 he	 attempted	 to	 visit	 his	 children	 in	 September	 of	
    2015	 but	 found	 no	 one	 home	 when	 he	 arrived.	 	 He	 testified	 that	
    after	 a	 second	 unsuccessful	 attempt	 to	 visit,	 he	 ceased	 efforts	 to	
    visit	and	pay	child	support.		For	almost	three	years,	the	father	failed	
    to	make	responsible	attempts	to	establish	a	relationship	with	his	
    children	 and	 did	 not	 contribute	 to	 their	 financial	 support.	 	 The	
    disability	 needs	 of	 his	 young	 son	 [P.S.]	 make	 this	 absence	 more	
    damaging.				
    	
    .	.	.	.			
    	
    	          Both	 parents	 acknowledged	 the	 father’s	 criminal	 mischief	
    complaint	 for	 destruction	 of	 many	 household	 items	 with	 an	 axe.		
    Both	the	mother	and	the	daughter	[S.S.]	testified	that	these	events	
    caused	them	to	be	fearful.				
    	
4	

      [¶5]	 	 In	 its	 judgment	 regarding	 S.S.,	 the	 court	 made	 the	 following	

additional	findings:	

      	        Daughter	[S.S.]	is	17	years	old.		She	testified	in	camera	that	
      she	does	not	want	her	father	in	her	life	and	fears	for	herself	and	her	
      little	brother.		She	testified	that	she	wants	to	continue	her	current	
      family	structure	and	to	be	adopted	by	her	stepfather.		She	testified	
      that	he	is	supportive	of	her	successes	in	school	and	knows	how	to	
      take	care	of	her	brother’s	special	needs.		She	views	her	stepfather	
      as	her	father.				
      	
      .	.	.	.	
      	
      	        The	issue	of	continuity	for	caring	for	his	disabled	son	and	for	
      parenting	 his	 teenage	 daughter	 do	 go	 to	 the	 child’s	 best	 interest	
      standard.		In	light	of	the	father’s	lack	of	participation	in	any	way	in	
      the	care	or	financial	support	of	both	of	his	children	for	almost	three	
      years,	 the	 Court	 finds	 that	 it	 is	 in	 the	 daughter’s	 best	 interest	 to	
      formalize	 her	 relationship	 with	 her	 stepfather.	 	 [S.S]	 acts	 as	 an	
      important	 care	 taker	 of	 her	 brother.	 	 The	 father	 has	 consistently	
      demonstrated	 a	 lack	 of	 understanding	 and	 appreciation	 of	 the	
      special	 needs	 of	 his	 son	 and	 has	 difficultly	 dealing	 with	 his	
      daughter’s	 interactions	 with	 her	 brother.	 	 He	 is	 highly	 critical	 of	
      [S.S.]’s	treatment	of	her	brother.				
      	
      	        The	daughter	[S.S.]	can	petition	for	this	adoption	on	her	own	
      in	just	a	year	when	she	reaches	18.		She	stated	unequivocally	that	
      she	 wants	 adoption	 now	 based	 on	 her	 past	 experiences	 with	 her	
      biological	dad	and	her	recent	experiences	with	her	stepfather.				
      	
      [¶6]	 	 In	 its	 judgment	 regarding	 P.S.,	 the	 court	 made	 the	 following	

additional	findings:	

      	     [A	 pediatric	 center]	 diagnosed	 [P.S.]	 with	 [serious	
      disabilities].	 	 Although	 the	 father	 had	 the	 names	 of	 providers	 of	
      services	 to	 his	 son,	 he	 made	 no	 effort	 to	 reach	 out	 to	 see	 what	
                                                                                   5	

     assistance	he	could	provide	or	to	contribute	financially.		He	made	
     no	inquiries	to	the	mother	about	the	son’s	well-being.				
     	
     	        The	mother	testified	that	the	son’s	issues	require	structured	
     care	and	careful	transitions.		When	the	father’s	attorney	asked	him	
     what	 plans	 for	 reunification	 he	 had	 for	 his	 7	year	 old	 son,	 [the	
     father]	testified	that	if	the	court	took	too	long	to	decide,	he	would	not	
     wait	for	a	gradual	reintroduction	but	would	just	take	him,	in	spite	of	
     hearing	the	testimony	about	his	son’s	difficultly	with	transitions.				
     	
              .	.	.	[T]he	stepfather	of	this	child[]	has	been	in	his	life	since	
     marriage	to	his	mother	in	2015	after	her	divorce.		He	is	a	retired	
     veteran	who	provides	all	the	care	to	the	disabled	son	while	[the]	
     mother	 works	 full	 time.	 	 He	 takes	 the	 child	 to	 all	 his	 medical	
     appointments	 and	 follows	 the	 instructions	 for	 assisting	 the	 child	
     both	in	school	and	at	home.		No	evidence	was	presented	to	the	court	
     that	he	was	unsuitable	to	parent	this	child.				
     	
     .	.	.	.	
     	
     	        The	issue	of	continuity	of	care	for	[the	father’s]	disabled	son	
     does	go	to	the	child’s	best	interest	standard.		In	light	of	the	father’s	
     lack	of	participation	in	any	way	in	the	care	or	financial	support	of	a	
     severely	disabled	son	for	almost	three	years	and	his	testimony	that	
     he	would	not	consider	a	reunification	period	before	re-entering	his	
     son’s	life	should	the	Court	delay	its	opinion,	the	Court	finds	that	it	
     is	this	child’s	best	interest	to	remain	legally	in	a	secure,	sensitive	
     and	 consistent	 environment.	 	 The	 father	 has	 consistently	
     demonstrated	 a	 lack	 of	 understanding	 and	 appreciation	 of	 these	
     special	needs.				
     	
(emphasis	added).	
     	
	    [¶7]	 	 Following	 the	 judgments,	 the	 father	 timely	 appealed.	 	 See	 18-A	

M.R.S.	§	9-309	(2017);	M.R.	App.	P.	2B(c)(1).				
6	

                                 II.		LEGAL	ANALYSIS	

A.	   Interview	with	S.S.	

	     [¶8]	 	 The	 father	 challenges	 the	 court’s	 use	 of	 the	 statements	 S.S.	 made	

during	her	in	camera	interview.		He	argues	that	the	statements	were	not	made	

under	oath	and	that	he	did	not	have	the	opportunity	to	cross-examine	S.S.		He	

contends	that	the	court’s	use	of	the	statements	“as	evidence	of	a	pertinent	fact	

is	 beyond	 the	 intent	 of	 the	 in	 camera	 interview	 statute”	 because	 “[a]	 plain	

reading	 of	 the	 [authorizing]	 statute	 would	 seem	 to	 state	 that	 it	 is	 only	 the	

adoptee’s	attitudes	and	desires	that	a	court	may	take	into	account.”				

	     [¶9]		In	adoption	proceedings,	a	probate	judge	must	interview	a	potential	

“adoptee	 who	 is	 12	 years	 of	 age	 or	 older,	 outside	 the	 presence	 of	 the	

prospective	adoptive	parents	to	determine	the	adoptee’s	attitudes	and	desires	

about	the	adoption	and	other	relevant	issues.”		18-A	M.R.S.	§	9-305(a)	(2017).		

In	 this	 case,	 the	 court	 interviewed	 S.S.	 in	 camera	 during	 the	 hearing	 on	 the	

petitions	for	termination	of	parental	rights	and	discussed,	among	other	things,	

an	incident	where	her	father	picked	her	up	by	her	neck.		In	its	two	judgments	

terminating	the	father’s	rights	to	S.S.	and	P.S.	respectively,	the	court	said	that	

S.S.	“testified	in	camera	that	her	father	did	pick	her	up	with	a	choke	hold.”				
                                                                                       7	

	     [¶10]	 	 While	 the	 statements	 S.S.	 made	 regarding	 the	 choking	 incident	

ostensibly	 fall	 within	 the	 “other	 relevant	 issues”	 part	 of	 statute,	 the	 court	

exceeded	the	scope	of	the	statute	by	relying	on	these	statements	for	more	than	

just	context	that	explained	the	attitudes	and	desires	of	S.S.		Accordingly,	it	was	

error	 for	 the	 court	 to	 refer	 to	 the	 unsworn	 statements	 made	 by	 S.S.	 as	

testimony.			

      [¶11]	 	 The	 father,	 however,	 has	 failed	 to	 demonstrate	 how	 he	 was	

prejudiced	by	the	court’s	use	of	the	statements,	and	it	is	highly	probable	that	

the	 statements	 did	 not	 affect	 the	 outcome	 of	 the	 case.	 	 See	 In	 re	 M.B.,	

2013	ME	46,	¶	34,	65	A.3d	1260;	see	also	Greaton	v.	Greaton,	2012	ME	17,	¶	7,	

36	A.3d	913	(“In	appealing	a	judgment,	it	is	not	enough	to	challenge	procedural	

errors	allegedly	 made	by	the	trial	court	without	also	showing	 actual	error	in	

the	 judgment.”);	 In	 re	 A.M.,	 2012	 ME	 118,	 ¶	25,	 55	 A.3d	 463	 (“The	 mother’s	

failure	 to	 explain	 on	 appeal	 how	 her	 absence	 or	 the	 officer’s	 testimony	

[concerning	her	absence]	could	have	affected	the	trial	or	its	outcome	is	relevant	

in	determining	on	appeal	whether	she	has	been	deprived	of	due	process.”).			

      [¶12]	 	 The	 mother’s	 testimony,	 including	 her	 testimony	 about	 the	

choking	 incident	 involving	 S.S.,	 was	 substantively	 the	 same	 as	 what	 S.S.	 said	

in	camera	and	was	subject	to	cross-examination	by	the	father.		See	In	re	Elijah	R.,	
8	

620	A.2d	282,	 285-86	 (Me.	 1993)	 (holding	 that	 admission	 of	 inadmissible	

evidence	was	harmless	when	the	information	was	“duplicated	by	other	sources	

in	the	record”).		The	father	was	also	able	to	present	his	contradictory	testimony	

after	the	mother	testified.2		Therefore,	the	errors	the	court	made	with	regard	to	

the	statements	given	by	S.S.	during	the	in	camera	interview	were	harmless.		See	

In	 re	 M.B.,	 2013	 ME	 46,	 ¶	 34,	 65	 A.3d	 1260;	 In	 re	 A.M.,	 2012	ME	118,	 ¶	 25,	

55	A.3d	463.			

B.	      Sufficiency	of	the	Evidence	

	        [¶13]		The	father	argues	that	the	evidence	does	not	support	the	court’s	

finding	in	both	judgments	that	his	“failure	to	make	any	attempt	to	establish	a	

family	relationship	with	the	child,	or	contribute	in	any	way	toward	the	child’s	

financial	support,	constitutes	clear	and	convincing	evidence	that	[he]	has	been	

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

reasonably	 calculated	 to	 meet	 the	 child’s	 needs.”	 	 Specifically,	 his	 complete	

argument	is	as	follows:	

         	     The	evidence	showed	and	the	court	found	that	the	father	did	
         have	a	visit	in	August	of	2015	after	the	divorce.		The	father	testified	
         that	when	he	went	to	see	the	children	in	September,	no	one	was	
         home	although	he	checked	more	than	once	between	3	and	6.		The	
         mother	 testified	 that	 she	 moved	 to	 a	 new	 residence	 without	

     2		The	father	admitted	to	picking	up	S.S.	by	the	neck	when	she	was	twelve,	but	asserted	that	it	was	

by	the	back	of	her	neck	and	he	only	did	so	because	she	was	hurting	her	younger	brother,	P.S.			
                                                                                                            9	

       notifying	 the	 father	 despite	 the	 explicit	 language	 in	 the	 Divorce	
       Judgment	that	she	do	so.		The	father	also	testified	that	he	attempted	
       during	September	of	2017	to	see	the	children	in	accordance	with	
       his	 parental	 rights	 and	 was	 told	 to	 talk	 to	 her	 attorney.	 	 It	 is	
       therefore	clear	that	the	father	has	wanted	a	relationship	but	was	
       hindered	by	the	petitioner	and	is	not	“unable	to	protect	the	child	
       from	jeopardy[.]”3	
       	
(citations	omitted).			

	       [¶14]		“When	the	burden	of	proof	at	trial	is	clear	and	convincing	evidence,	

our	review	is	to	determine	whether	the	fact-finder	could	reasonably	have	been	

persuaded	 that	 the	 required	 findings	 were	 proved	 to	 be	 highly	 probable.”		

Adoption	of	L.E.,	2012	ME	127,	¶	11,	56	 A.3d	1234.		The	father	does	not	take	

issue	with	the	court’s	best	interest	findings.			

	       [¶15]		The	court	here	heard	evidence,	much	of	it	through	the	father’s	own	

admissions,	 supporting	 a	 finding	 by	 clear	 and	 convincing	 evidence	 that	 he	

neither	sought	nor	had	meaningful	contact	with	his	children	for	more	than	two	

years.		While	the	father	blames	the	mother	for	this	lack	of	contact,	he	took	no	

affirmative	steps	available	through	the	judicial	system	to	remove	any	perceived	

impediments	to	maintaining	relationships	with	his	children,	choosing	instead	




    3		In	his	last	sentence,	the	father	misstates	the	grounds	upon	which	the	court	found	that	he	was	an	

unfit	parent.		We	infer	from	the	issue	statement	in	his	brief	that	he	is	challenging	the	court’s	findings	
that	 he	 was	 “unable	 or	 unwilling	 to	 take	 responsibility	 for	 the	 child[ren]	 in	 a	 time	 reasonably	
calculated	to	meet	[their]	needs.”				
10	

to	withhold	any	child	support	payments	despite	having	the	ability	to	pay.		He	

admitted	that	he	never	contacted	the	mother	when	he	found	that	the	children	

were	 not	 home	 when	 he	 expected	 to	 have	 a	 visit	 in	 the	 fall	 of	 2015.		

Furthermore,	the	mother	testified	that	the	father’s	visits	were	sporadic	and	he	

was	supposed	to	call	first.				

      [¶16]		Although	the	mother	moved	without	telling	the	father,	she	testified	

that	 she	 did	 so	 in	 December	 2016,	 more	 than	 a	 year	 after	 his	 last	 attempted	

visit,	 and	 that	 she	 kept	 the	 same	 phone	 number.	 	 After	 the	 mother	 and	

stepfather	filed	their	 petitions	to	terminate	the	father’s	 parental	rights—two	

years	after	his	last	visit	with	the	children—the	father	sent	a	text	message	to	the	

mother	requesting	a	visit	with	the	children,	but,	when	she	asked	him	to	contact	

her	attorney,	he	never	did.		In	light	of	this	and	other	evidence	in	the	record,	the	

court	reasonably	could	have	been	persuaded	that	it	was	highly	probable	that	

the	father	is	unwilling	or	unable	to	take	responsibility	for	his	children	in	a	time	

reasonably	calculated	to	meet	their	needs.			

C.	   Sequence	of	Fact-finding	

      [¶17]		Although	not	raised	by	the	father	on	appeal,	one	other	aspect	of	

the	court’s	decision	requires	comment.		In	its	orders,	the	court	addressed	the	

children’s	best	interests	before	making	a	finding	of	parental	unfitness.		We	have	
                                                                                       11	

previously	 stated	 that,	 notwithstanding	 the	 sequence	 of	 issues	 stated	 in	

22	M.R.S.	§	4055(1)(B)(2),	the	trial	court	must	find	parental	unfitness	before	it	

proceeds	to	consider	the	best	interests	of	the	children.		See	Adoption	of	Hali	D.,	

2009	 ME	70,	 ¶¶	 4-5,	 974	 A.2d	 916;	 In	 re	 Michelle	 W.,	 2001	 ME	 123,	 ¶	 11,	

777	A.2d	283.		

         [¶18]		Because	the	father	does	not	challenge	the	court’s	misallocation	of	

fact-finding,	our	review	is	for	obvious	error.		See	In	re	Joshua	B.,	2001	ME	115,	

¶	9,	776	A.2d	1240.		Here,	the	trial	court	made	the	required	finding	of	parental	

unfitness	by	finding	by	clear	and	convincing	evidence	that	the	father	is	unable	

or	 unwilling	 to	 take	 responsibility	 for	 his	 children	 in	 a	 time	 reasonably	

calculated	to	meet	their	needs.		As	such,	the	father	was	not	deprived	of	a	fair	

trial	 and	 was	 not	 treated	 unjustly	 as	 a	 result	 of	 the	 trial	 court’s	 erroneous	

sequence	of	its	fact-finding.		See	id.	¶	12.		

         The	entry	is:	

                            Judgments	affirmed.	
	
	     	      	     	     	     	
	
Randy	G.	Day,	Esq.,	Garland,	for	appellant	father	
	
Justin	E.	French,	Esq.,	Ranger	Copeland	French,	P.A.,	Brunswick,	for	appellees	
mother	and	stepfather	
	
Kennebec	County	Probate	Court	docket	numbers	A2017-4635-1	and	A2017-4636-1	
FOR	CLERK	REFERENCE	ONLY	
