MAINE	SUPREME	JUDICIAL	COURT	 	             	     	    					  				Reporter	of	Decisions	
Decision:	    2017	ME	151	
Docket:	      Yor-17-44	
Submitted	
		On	Briefs:	 June	29,	2017	
Decided:	     July	11,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 IN	RE	MATHEW	H.	et	al.	
	
	
MEAD,	J.	

	       [¶1]		The	father	of	Mathew	H.	and	Kamron	H.	appeals	from	a	judgment	

entered	 by	 the	 District	 Court	 (Biddeford,	 Janelle,	 J.)	 terminating	 his	 parental	

rights	 to	 the	 children	 pursuant	 to	 22	 M.R.S.	 §	 4055(1)(B)(2)	 (2016).1	 	 He	

challenges	the	court’s	finding	by	clear	and	convincing	evidence	that	he	is	unfit	

and	its	finding	that	termination	of	his	parental	rights	is	in	the	children’s	best	

interest.	 	 Additionally,	 he	 contends	 that	 the	 court	 erred	 in	 not	 treating	 his	

former	 wife	 as	 the	 children’s	 de	 facto	 parent	 and	 in	 determining	 that	 the	

permanency	 plan	 for	 the	 children	 would	 be	 adoption,	 not	 a	 permanency	

guardianship.		Finally,	he	asserts	that	the	guardian	ad	litem	failed	to	perform	

her	statutorily-required	duties	by	not	meeting	with	him	individually.		Because	

the	 evidence	 supports	 the	 court’s	 factual	 findings	 and	 discretionary	


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   		The	boys’	mother,	who	has	had	five	children,	all	born	drug	affected,	was	previously	found	to	
have	abandoned	the	boys	and	is	not	a	party	to	this	appeal.	
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determinations,	and	because	we	conclude	that	the	father’s	other	contentions	

are	not	persuasive,	we	affirm	the	judgment.	

A.	   Sufficiency	of	the	Evidence	

	     [¶2]	 	 Applying	 the	 statute,	 the	 court	 found	 by	 clear	 and	 convincing	

evidence	that	the	father	(1)	is	unwilling	or	unable	to	protect	the	children	from	

jeopardy	 within	 a	 time	 reasonably	 calculated	 to	 meet	 their	 needs,	 (2)	 is	

unwilling	or	unable	to	take	responsibility	for	them	within	that	timeframe,	and	

(3)	 failed	 to	 make	 a	 good	 faith	 effort	 to	 rehabilitate	 and	 reunify	 with	 the	

children.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(b).	 	 The	 court	 then	 found	 that	

termination	 of	 the	 father’s	 parental	 rights	 is	 in	 the	 children’s	 best	 interest.		

See	22	M.R.S.	§	4055(1)(B)(2)(a).		We	review	the	factual	findings	supporting	

the	unfitness	determination	for	clear	error,	see	In	re	Logan	M.,	2017	ME	23,	¶	3,	

155	A.3d	430,	and	apply	the	same	standard	to	the	factual	findings	supporting	

the	 best	 interest	 determination,	 although	 we	 review	 the	 court’s	 ultimate	

conclusion	that	termination	is	in	the	children’s	best	interest	“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	Caleb	M.,	2017	ME	66,	¶	33,	159	A.3d	345	(quotation	marks	omitted).	
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	       [¶3]	 	 Here,	 the	 court’s	 factual	 findings	 are	 supported	 by	 competent	

evidence	in	the	record	and	are	therefore	not	clearly	erroneous.		See	In	re	M.B.,	

2013	 ME	 46,	 ¶	 40,	 65	 A.3d	 1260.	 	 In	 determining	 that	 the	 father	 is	 an	 unfit	

parent,	 the	 court	 found,	 by	 clear	 and	 convincing	 evidence,	 that	 the	 father’s	

incarceration	 until	 at	 least	 July	 2017	 means	 that	 reunification	 could	 not	

conceivably	begin	until	that	time.		The	court	concluded,	based	on	the	testimony	

of	mental	health	experts	at	the	hearing,	that	“[the	children]	are	very	damaged	

and	it	is	going	to	take	a	long	time	to	repair	the	damage.		If	everything	goes	well,	

they	 may	 adapt	 in	 adolescence,	 or	 it	 may	 take	 until	 adulthood	 until	 they	

overcome	 the	 damage.”	 	 If	 attempted,	 reunification	 “would	 take	 a	 significant	

amount	of	additional	work	to	get	to	the	point	where	[the	father]	might	possibly	

be	 able	 to	 have	 a	 relationship	 with	 the	 children	 due	 to	 their	 diagnoses.	 .	 .	 .		

The	children	have	been	suffering	daily	for	a	long	time	and	deserve	permanency	

today	.	.	.	.”	

	       [¶4]	 	 The	 court	 also	 cited	 the	 father’s	 significant	 criminal	 history;	 his	

history	 of	 substance	 abuse,	 including	 the	 use	 of	 an	 illegal	 drug	 in	

December	2015	while	he	was	incarcerated,	which	delayed	his	release	date	and	

thus	 any	 opportunity	 to	 care	 for	 the	 children;	 and	 his	 inconsistent	

communication	with	the	children.	
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	     [¶5]	 	 The	 court	 further	 found,	 again	 by	 clear	 and	 convincing	 evidence,	

that	 the	 children’s	 best	 interest	 required	 termination	 because	 “[t]he	 Court	

heard	over	and	over	again	through	the	testimony	of	service	providers	and	the	

caregiver	that	[the	children]	need:	permanency,	predictability	and	knowledge	

of	where	they	are	going	to	live	permanently.”		The	medical	experts	“emphasized	

the	 need	 for	 [the	 children]	 to	 continue	 to	 be	 in	 a	 permanent,	 stable	 and	

consistent	 environment	 in	 order	 to	 continue	 the	 healing	 process,”	 and	 a	

psychological	 evaluation	 noted	 that	 in	 the	 case	 of	 one	 of	 the	 children’s	 most	

serious	 mental	 health	 diagnoses,	 “it	 is	 typically	 much	 harder	 to	 repair	

attachment	dysfunction	when	attempted	by	a	parent	figure	who	is	implicated	

in	 creating	 the	 initial	 damage.”	 	 Although	 the	 court	 recognized	 the	 father’s	

“commendable”	participation	in	programs	offered	at	the	Maine	State	Prison,	it	

concluded	 that	 “it	 is	 simply	 not	 enough	 for	 these	 children	 who	 need	

permanency	now.	.	.	.	It	is	too	long	to	ask	[them]	to	wait.”	

	     [¶6]		For	the	same	reasons,	the	court	rejected	the	father’s	proposal	of	a	

permanency	 guardianship—which	 the	 foster	 mother,	 the	 guardian	 ad	 litem,	

and	the	Department	all	opposed—finding	that	

      [d]espite	 the	 name,	 a	 Permanency	 Guardianship	 in	 this	 matter	
      would	not	offer	real,	lasting	permanency	for	[the	children].	.	.	.	It	
      may	be	preferable	to	the	parent,	but	a	Permanency	Guardianship	is	
      not	in	the	best	interests	of	[these	children]	due	to	the	history	of	the	
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      case	and	their	significant	diagnoses.		It	has	been	reiterated	through	
      the	 testimony	 of	 the	 professionals	 and	 the	 caregiver	 that	 it	 is	
      critical	that	[the	children]	need	to	know	what	the	future	is	going	to	
      look	like	permanently.		It	is	also	critical	for	[their]	continued	well-
      being	that	their	permanent	home	be	reliable	and	dependable.	
      	
The	 court’s	 determination	 that	 a	 permanency	 guardianship	 is	 not	 an	

appropriate	 disposition	 in	 this	 case	 falls	 well	 within	 its	 discretion.	 	 See	

In	re	David	W.,	2010	ME	119,	¶¶	6-10,	8	A.3d	673;	In	re	C.P.,	2016	ME	18,	¶	34,	

132	A.3d	174.	

	     [¶7]	 	 In	 sum,	 the	 court’s	 supported	 findings	 explaining	 why	 the	 father	

cannot	protect	the	children	from	jeopardy	within	the	time	required	by	statute	

and	 why	 the	 children’s	 best	 interest	 requires	 termination	 are	 sufficient	 to	

support	the	judgment.		

B.	   Other	Issues	

	     [¶8]	 	 The	 father	 finally	 contends	 that	 his	 former	 wife,	 who	 had	 been	

inadequately	caring	for	the	children	when	they	were	taken	into	custody,	should	

have	been	found	to	be	the	children’s	de	facto	parent	and	afforded	counsel	in	

this	 matter,	 see	 19-A	 M.R.S.	 §	 1891	 (2016),	 and	 that	 the	 court’s	 judgment	 is	

invalid	because	the	guardian	ad	litem	allegedly	did	not	perform	her	statutorily-

required	duty	to	interview	him	“when	possible	and	appropriate,”	see	22	M.R.S.	

§	 4005(1)(B)(5)	 (2016).	 	 Neither	 claim	 was	 raised	 in	 the	 trial	 court	 and	 the	
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father’s	former	wife	made	no	request	to	intervene	in	the	case;	therefore,	on	this	

record,	we	conclude	that	neither	contention	requires	further	discussion.		See	

Karamanoglu	 v.	 Gourlaouen,	 2016	 ME	 86,	 ¶	 28,	 140	 A.3d	 1249	 (stating	 that	

failure	to	raise	an	argument	in	the	trial	court	limits	appellate	review	to	obvious	

error);	In	re	Kaleb	C.,	2002	ME	65,	¶	4	n.2,	795	A.2d	71	(affirming	the	judgment	

despite	the	guardian	ad	litem’s	deficient	performance	because	“the	deficiencies	

.	.	.	did	not	affect	the	result	in	this	case”).	

	        The	entry	is:	

                            Judgment	affirmed.	

	     	      	      	     	    	
	
Brittany	Sawyer,	Esq.,	Holmes	Legal	Group,	LLC,	Wells,	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		
	
	
Biddeford	District	Court	docket	number	PC-2015-25	
FOR	CLERK	REFERENCE	ONLY	
