MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision:   2013 ME 85
Docket:     And-13-61
Submitted
 On Briefs: September 26, 2013
Decided:    October 15, 2013

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


                                              IN RE A.H.


SAUFLEY, C.J.

         [¶1] In this appeal, we are asked to review a judgment entered in the District

Court (Lewiston, Beliveau, J.) terminating the mother’s and father’s parental rights

to a child who has extreme medical needs. See 22 M.R.S. § 4055(1)(A)(1)(a),

(B)(2) (2012). The parents argue that there was insufficient evidence to support

the court’s finding that, although they loved their child, they were unfit to parent

her and termination was in the child’s best interest.1 We affirm the judgment.

                                         I. BACKGROUND

         [¶2] Since her birth in November 2010, A.H. has suffered from severe

medical conditions that would challenge any parent. These conditions include

Alagille Syndrome, a genetic disorder affecting major organs; cholestasis, a



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     The parents also challenge the court’s finding that the Department satisfied its statutory obligation to
engage in good-faith reunification efforts with the parents pursuant to 22 M.R.S. § 4041 (2012). Based
on the evidentiary record and the rehabilitation and reunification plan filed with the court, which was
signed by both parents, we affirm the court’s determination that the Department satisfied its obligations,
and we do not discuss this issue further.
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condition affecting the liver; congenital heart disease; and kidney defects including

urinary reflux disorder.

      [¶3] The child required hospitalization three times when she was in the care

of her parents because she was not receiving adequate nutrition. As a result of the

third hospitalization, the Department petitioned for and was granted an order of

preliminary child protection for A.H. on November 3, 2011. The child was placed

in a foster home and has been there ever since. The court entered an order on

March 2, 2012, in which it found that the child was in circumstances of jeopardy to

her health and welfare in the care of her parents and ordered that the child remain

in the custody of the Department in her existing foster placement. See 22 M.R.S.

§ 4035 (2012).

      [¶4] After being placed with foster parents, the child had an immediate

weight gain, and she has continued to gain weight at a higher rate than when she

was in her parents’ care. Although the child remains quite small, she is following

the trajectory of the growth chart curve and has become healthier. She has not

been hospitalized since entering foster care.

      [¶5] The child is now mobile, and she requires at least as much care as she

did during her first year of life. Because she has a gastronomy pump that she is

unable to carry around by herself, the foster mother follows the child while holding

the pump.     While the child is attached to the pump—from 10:00 a.m. to
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3:30 p.m.—the foster mother watches her constantly. Because the child is also

attached to the pump overnight, the foster mother monitors her throughout the

night for fear that the pump cord could become wrapped around the child’s neck.

The child wakes up five to twenty times per night.

      [¶6] A.H. engages in physical, occupational, and speech therapy every week

at the foster home. She also has at least three medical appointments per month and

receives in-home help fifteen hours per week. Her pediatrician determined that she

cannot tolerate any amount of neglect.

      [¶7] From this record, it is not an overstatement to say that the child’s very

life depends on the consistent, unwavering attention of her caregivers. The foster

parents are able to manage care for this fragile child through their concerted joint

efforts. They would like to adopt A.H.

      [¶8] The mother and the father each underwent Child Abuse and Neglect

Evaluation Program (CANEP) evaluations, which demonstrated that they both

have limited intellectual capacity. They scored low in perceptual reasoning, a risk

factor for child maltreatment.

      [¶9] Despite being allowed visits with the child and having the opportunity

to attend the child’s medical appointments, the parents were not able to learn to

care for all of A.H.’s needs. The parents also could not be productive at family

team meetings because they did not recognize what they had done to place A.H. in
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jeopardy and blamed the Department for their child being removed from their

home.

        [¶10] Based on the CANEP evaluations and the parents’ lack of progress in

rehabilitation, the Department petitioned for the termination of each parent’s

parental rights in July 2012. After an evidentiary hearing, the court entered a

judgment terminating both parents’ parental rights on December 19, 2012.

        [¶11] The court determined that, although the parents love their daughter

and strongly desire reunification, there are minimal prospects for timely success in

that endeavor. The parents reluctantly admit that they may have made mistakes,

but they are unable to identify what those mistakes were or how they would

modify their behavior to care for the child. Due to the child’s substantial medical

needs and the poor prognosis for improvement in the parents’ ability to understand

and meet her needs, the court found that there was no prospect that the parents

would ever be able to safely parent this child.

        [¶12] Accordingly, the court found two grounds of unfitness: (1) that the

parents were unable to protect the child from jeopardy and that those

circumstances were unlikely to change within a time reasonably calculated to meet

the child’s needs, and (2) that the parents were unable to take responsibility for the

child within a time reasonably calculated to meet her needs.         See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i), (ii). The court further found that the termination of parental
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rights and adoption by the foster parents was in the child’s best interest. See

22 M.R.S. § 4055(1)(B)(2)(a). Both parents timely appealed. See 22 M.R.S.

§ 4006 (2012); M.R. App. P. 2(b)(3).

                                 II. DISCUSSION

      [¶13] The parents challenge the court’s findings regarding parental unfitness

and the best interest of the child. We address each issue separately.

A.    Unfitness

      [¶14] If any one of the alternative bases of parental unfitness found by the

court is supported by clear and convincing evidence, the determination of unfitness

will be affirmed. In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260. We review the

court’s factual findings regarding unfitness “to determine whether the fact-finder

could reasonably have been persuaded that the required findings were proved to be

highly probable.” Id. (quotation marks omitted).

      [¶15] Here, the court determined, with solid evidentiary support, that the

child has substantial and critical needs that the parents, despite their sincere desire

and efforts, will never be able to meet. Given the evidence that these parents,

however loving, will never have the capacity to adequately care for this child with

her significant medical needs, the court could reasonably have been persuaded that

it was highly probable that the parents were unable to protect the child from

jeopardy to her health or welfare and were unable to take responsibility for her
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within a time reasonably calculated to meet her needs.               See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i), (ii).

B.    Best Interest of the Child

      [¶16] “With regard to the best interest determination, we review the court’s

factual findings for clear error but its ultimate conclusion for an abuse of

discretion, viewing the facts, and the weight to be given them, through the trial

court’s lens.” In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260 (citations omitted)

(quotation marks omitted).     “[F]or all children, permanency and stability are

legislatively mandated goals, and the impermanency of foster care is to be

avoided.” In re Thomas H., 2005 ME 123, ¶ 27, 889 A.2d 297 (quotation marks

omitted). “[T]he strong public policy favoring permanency for children must

inform the trial court’s exercise of judicial discretion associated with determining a

child’s best interest, as well as any subsequent appellate review.” Id. ¶ 29.

      [¶17]    The court was faced with the difficult decision of whether to

terminate the parental rights of a loving mother and father who sincerely wished to

bring their child back into their home but who do not have the capacity to provide

the consistent, day-to-day intensive attention and care that she needs. Because of

the child’s precarious medical condition, the court prioritized the child’s health and

safety in making its decision, focusing on the child’s need for consistent lifesaving

nutrition and medical treatment.
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        [¶18] A.H. is very fortunate to have foster parents who are committed and

are willing to adopt her and provide a permanent home. Because of the parents’

poor prognosis for understanding and implementing necessary medical treatment,

and given the child’s need to have a permanent home, the court did not abuse its

discretion in concluding that, notwithstanding the parents’ love and affection for

the child, termination of the parents’ parental rights and adoption by the capable

and devoted foster parents are in the best interest of this fragile child.       See

22 M.R.S. § 4055(1)(B)(2)(a).

        The entry is:

                           Judgment affirmed.



On the briefs:

        Stephen J. Sucy, Esq., Lewiston, for appellant father

        Lorne Fairbanks, Esq., Lewiston, for appellant mother

        Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., Office
        of Attorney General, Augusta, for appellee Department of Health and
        Human Services



Lewiston District Court docket number PC-2011-69
FOR CLERK REFERENCE ONLY
