MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	43	
Docket:	      And-17-334	
Submitted	
  On	Briefs:	 March	7,	2018	
Decided:	     March	22,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                            IN	RE	CHILD	OF	GUSTAVUS	E.	
	
	
PER	CURIAM	

       [¶1]		In	this	child	protection	action	commenced	by	three	petitioners,	the	

father	 of	 the	 child	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	 Court	

(Lewiston,	 Dow,	 J.)	 terminating	 his	 parental	 rights	 pursuant	 to	 22	M.R.S.	

§	4055(1)(A)(1)(b)	 and	 (B)(2)(a),	 (b)(i)-(ii)	 (2017).	 	 The	 father	 primarily	

contends	 that	 the	 court	 erred	 by	 invoking	 the	 “rebuttable	 presumption”	

contained	in	22	M.R.S.	§	4055(1-A)(A),	(B)(8)	(2017)	in	its	unfitness	analysis	

because,	he	asserts,	the	evidence	in	its	entirety	does	not	support	a	finding	of	

unfitness.		Additionally,	he	argues	that	there	is	insufficient	record	evidence	to	

support	 the	 court’s	 finding	 that	 termination	 of	 his	 parental	 rights	 is	 in	 the	

child’s	best	interest.		Because	the	court	did	not	err	in	either	respect,	we	affirm	

the	judgment.			
2	

                                         I.		BACKGROUND	

        [¶2]		In	September	2016,	the	mother,	along	with	two	other	petitioners,	

filed	a	petition	for	child	protection,	see	22	M.R.S.	§	4032(1)(C)	(2017),	which	

alleged	that	the	child	was	in	jeopardy	due	to	the	father’s	recent	conviction	of	

unlawful	 sexual	 contact	 (Class	 C),	 17-A	 M.R.S.	 §	 255-A(1)(M)	 (2017).1	 	 In	

October	2016,	the	Department	of	Health	and	Human	Services	filed	a	motion	to	

cease	 reunification	 with	 the	 father	 based	 on	 the	 aggravating	 factor	 of	 his	

conviction.	 	 See	 22	 M.R.S.	 §	 4002(1-B)(A)(1)	 (2017);	 22	 M.R.S.	

§	4041(2)(A-2)(1)	(2017).		In	November	2016,	the	mother,	who	is	the	child’s	

legal	custodian,	see	22	M.R.S.	§	4002(5)	(2017),	filed	a	petition	to	terminate	the	

father’s	 parental	 rights	 to	 the	 child.	 	 See	 22	 M.R.S.	 §	 4052(1)	 (2017).2	 	 In	

April	2017,	 the	 court	 held	 a	 hearing	 on	 all	 pending	 matters:	 the	 petition	 for	

child	protection;	the	petition	to	terminate	the	father’s	parental	rights;	and	the	

Department’s	motion	to	cease	reunification	with	the	father.				

        [¶3]		 By	order	dated	July	 14,	2017,	the	 court	granted	the	 Department’s	

motion	 to	 cease	 reunification	 with	 the	 father	 and	 terminated	 the	 father’s	


     1		Title	17-A	M.R.S.	§	255-A(1)(M)	(2017)	provides	that	“[a]	person	is	guilty	of	unlawful	sexual	

contact	if	the	actor	intentionally	subjects	another	person	to	any	sexual	contact	and	.	.	.	[t]he	other	
person	is	in	fact	less	than	18	years	of	age	and	the	actor	is	a	parent,	stepparent,	foster	parent,	guardian	
or	other	similar	person	responsible	for	the	long-term	general	care	and	welfare	of	that	other	person.”		
    	
    2	 	 Although	 not	 required	 by	 22	 M.R.S.	 §	 4052(1)	 (2017),	 the	 termination	 petition	 was	 a	

three-party	petition.		Compare	22	M.R.S.	§	4032(1)(C)	(2017),	with	22	M.R.S.	§	4052(1).		
                                                                                      3	

parental	 rights.	 	 After	 the	 court	 entered	 judgment,	 the	 father	 appealed	 the	

court’s	termination	of	his	parental	rights.		He	primarily	argued	that	the	court	

misapplied	the	rebuttable	presumption	contained	in	22	M.R.S.	§	4055(1-A)(A),	

(B)(8)	 by	shifting	the	evidentiary	burden	to	the	father	in	contravention	of	our	

August	2017	opinion	in	In	re	Evelyn	A.,	which	held	that	“a	court	may	reach	an	

ultimate	finding	of	unfitness	only	if	the	evidence	in	its	entirety	supports	that	

finding	by	clear	and	convincing	evidence”	and	that	the	parent	whose	rights	are	

at	 stake	 has	 “neither	 a	 burden	 of	 production	 nor	 a	 burden	 of	 persuasion	 or	

proof	regarding	the	‘presumption’	addressed	in	section	4055(1-A).”		2017	ME	

182,	¶¶	31-32,	169	A.3d	914.		Because	In	re	Evelyn	A.	was	published	after	the	

hearing	 and	 the	 entry	 of	 judgment	 in	 this	 case,	 we	 granted	 a	 stay	 pending	

further	trial	court	action.		After	reconsideration	of	the	testimony	and	evidence	

presented	 during	 the	 April	 2017	 hearing,	 the	 court	 issued	 an	 amended	

judgment	dated	October	31,	2017,	terminating	the	father’s	parental	rights.				

      [¶4]		The	court,	in	its	amended	judgment,	found	the	following	facts,	which	

are	supported	by	competent	record	evidence:		

            The	father	is	incarcerated	and	is	under	probation	conditions	
      that	prohibit	contact	with	children.	.	.	.		
              .	.	.	.	
          	
4	

             Respondent-father	 was	 convicted	 of	 Unlawful	 Sexual	
     Contact,	Class	C,	on	February	9,	2016.	.	.	.			
             	
             The	 victim	 of	 the	 father’s	 crime	 was	 the	 daughter	 of	 his	
     live-in	partner.		The	father	was	in	a	stepparent	role	for	that	child	at	
     that	 time.	 	 The	 father	 touched	 that	 child’s	 vagina	 on	 multiple	
     occasions	when	the	child	was	between	six	and	eight	years	old.		The	
     Court	finds	this	conduct	to	be	heinous	and	abhorrent	to	society.		
             	
             .	.	.	.		
             	
             In	 February,	 2017,	 the	 father	 completed	 six	 months	 of	
     voluntary	 sex	 offender	 treatment	 called	 cognitive-behavioral	
     interventions	for	sex	offenders.		This	treatment	was	offered	.	.	.	by	
     the	 Department	 of	 Corrections	 (DOC).	 	 This	 treatment	 does	 not	
     require	 offenders	 to	 admit	 the	 sexual	 abuse.	 	 The	 six-month	
     duration	of	the	treatment	is	much	different	from	the	three-year	sex	
     offender	treatment	program	offered	at	other	facilities	in	DOC	or	to	
     probationers	 in	 the	 community.	 	 In	 addition	 to	 being	 six	 times	
     longer,	that	program	requires	offenders	to	admit	to	sexual	abuse.		
     When	the	father	started	the	treatment,	the	DOC	administered	the	
     STATIC-99	 assessment,	 which	 placed	 the	 father	 at	 moderate	 to	
     high	 risk	 for	 re-offense.	 	 By	 the	 time	 the	 father	 completed	 the	
     treatment,	 the	 DOC	 had	 adopted	 the	 policy	 of	 administering	 a	
     dynamic	risk	assessment,	the	Sex	Offender	Treatment	Intervention	
     and	 Progress	 Scale,	 at	 both	 ends	 of	 the	 treatment.	 	 The	 father’s	
     score	on	that	assessment	placed	him	at	low	risk	for	re-offense.		The	
     shift	 in	 risk	 assessment	 tools	 means	 that	 the	 Court	 would	 be	
     comparing	apples	to	oranges	if	it	tried	to	draw	conclusions	about	
     the	 father’s	 actual	 progress	 in	 treatment.	 	 The	 father	 was	 not	
     responsible	for	the	shift	in	risk	assessment	tools.			
             	
             Regardless	 of	 the	 utility	 of	 the	 risk	 assessment	 results,	 the	
     Court	 finds	 that	 the	 father’s	 voluntary	 engagement	 in	 the	 only	
     treatment	 available,	 given	 his	 short	 two-year	 sentence,	 is	 better	
     than	nothing.		The	treatment	fails,	however,	to	alleviate	the	Court’s	
     concern	that	[the	child]	would	be	subject	to	a	threat	of	sexual	abuse	
     or	exploitation	by	her	father,	and	that	threat	constitutes	jeopardy.			
                                                                                        5	

           	
           The	 Court	 also	 finds	 that	 the	 father’s	 substance	 abuse	 and	
    mental	 health	 history	 poses	 jeopardy	 to	 the	 child.	 	 Prior	 to	 his	
    incarceration,	 the	 father	 abused	 amphetamines	 and	 opiates.	 	 He	
    has	 suffered	 from	 serious	 anxiety	 and	 depression.	 	 It	 would	 take	
    treatment	 and	 measurable	 stability	 and	 health	 to	 alleviate	 that	
    jeopardy.				
           	
           If	everything	goes	well	for	the	father—he	gets	released	from	
    prison	this	fall,	starts	the	three-year	sex	offender	treatment,	as	well	
    as	mental	health	and	substance	abuse	treatment,	and	successfully	
    completes	it—[the	child]	will	then	be	the	same	age	as	the	known	
    victim	of	the	father’s	sexual	abuse.		The	father	will	be	on	probation	
    for	four	years	after	his	release,	with	one	of	the	conditions	being	no	
    contact	with	children	under	18.	.	.	.		The	Court	finds	that	jeopardy	
    cannot	possibly	be	alleviated	within	four-and-a-half	years.			
           	
	   	      .	.	.	.	
	
    	      Respondent-father’s	custody	of	[the	child]	has	been	removed	
    by	 an	 order	 of	 this	 Court	 .	 .	 .	 under	 the	 authority	 in	 19-A	 M.R.S.	
    §	1653.	.	.	.		
           	
           Turning	to	the	question	of	unfitness,	the	Court	finds	by	clear	
    and	convincing	evidence	that	respondent-father	is	unfit	to	parent	
    [the	 child]	 by	 virtue	 of	 his	 being	 unable	 to	 protect	 her	 from	
    jeopardy	 and	 unable	 to	 take	 responsibility	 for	 her	 in	 a	 time	
    reasonably	calculated	to	meet	her	needs.			
           	
           .	.	.	.		
           	
           .	.	.		Father’s	counsel	ably	elicited	testimony	from	the	father’s	
    prison-based	 counselor	 that	 he	 was	 at	 moderate	 to	 high	 risk	 for	
    re-offense	before	a	six-month	stint	of	sex	offender	treatment	and	at	
    low	risk	afterwards.		The	Court	is	not	able	to	give	that	testimony	
    great	 weight,	 for	 reasons	 discussed	 above.	 	 However,	 the	 Court	
    would	 not	 be	 persuaded	 of	 father’s	 fitness	 to	 parent	 even	 by	 a	
    statistically	valid	risk	assessment	comparison.		The	Court	finds	that	
6	

     the	father	has	much	more	work	to	do,	by	any	measure,	to	alleviate	
     the	risks	posed	by	his	history	of	sexual	abuse,	substance	abuse,	and	
     mental	health	struggles.				
            	
            .	.	.	.		
            	
            [The	 child]	 was	 born	 on	 November	 5,	 2013.	 	 Her	 parents	
     were	then	living	together.		The	investigation	into	the	father’s	sexual	
     abuse	of	the	other	child	began	in	March	of	2014.		In	May	of	2014,	
     [the	Department]	filed	a	child	protection	petition	and	[the	mother]	
     moved	to	her	mother’s	home	with	[the	child].		On	August	7,	2014,	
     the	 Court	 entered	 an	 interim	 order	 granting	 to	 the	 mother	 sole	
     parental	 rights	 and	 responsibilities	 and	 to	 the	 father	 supervised	
     visitation.	 .	 .	 .	 	 The	 father	 has	 not	 seen	 [the	 child]	 since	 he	 was	
     incarcerated.		
            	
            The	 Court	 draws	 from	 this	 evidence	 the	 reasonable	
     inferences	that	[the	child’s]	primary	attachment	is	with	her	mother.		
     [The	child’s]	only	opportunity	to	form	a	secure	attachment	with	the	
     father	 ended	 more	 than	 three	 years	 ago.	 	 [The	 child’s]	 ability	 to	
     integrate	into	the	father’s	home	.	.	.	would	be	the	same	as	her	ability	
     to	integrate	into	the	home	of	a	stranger.		It	would	be	stressful	for	
     [the	child].	.	.	.		
            	
            .	.	.	.		
            	
            The	 [guardian	 ad	 litem]	 believes	 that	 termination	 of	 the	
     respondent-father’s	 rights	 to	 [the	 child]	 is	 in	 the	 child’s	 best	
     interest.		Based	upon	the	clear	and	convincing	evidence,	the	Court	
     agrees.			
	
                                                                                                    7	

We	now	consider	the	father’s	timely	appeal.		See	22	M.R.S.	§	4006	(2017);	M.R.	

App.	P.	2	(Tower	2016).3			

                                         II.		DISCUSSION	

         [¶5]	 	 Although	 the	 father	 challenges	 the	 court’s	 application	 of	 the	

rebuttable	presumption	contained	in	 22	M.R.S.	§	4055(1-A)(A),	 (B)(8),	 he	 no	

longer	argues	that	the	court	improperly	shifted	the	burden	to	him	to	rebut	the	

presumption.		Instead,	the	father	argues	that	because	there	is	evidence	in	the	

record	 to	 show	 that	 he	 has	 made	 progress	 through	 services	 offered	 by	 the	

Department	of	Corrections,	the	court’s	unfitness	findings	are	not	supported	by	

sufficient	evidence.		He	also	challenges	the	court’s	finding	that	termination	is	in	

the	 best	 interest	 of	 the	 child.	 	 Reviewed	 for	 clear	 error,	 there	 is	 competent	

evidence	 to	 support	 both	 the	 court’s	 unfitness	 findings	 and	 its	 finding	 that	

termination	of	the	father’s	parental	rights	is	in	the	child’s	best	interest.		See	In	re	

Logan	M.,	2017	ME	23,	¶	3,	155	A.3d	430.			

A.	      Unfitness		

         [¶6]	 	 In	 its	 amended	 judgment,	 the	 court	 determined	 that	 its	 factual	

findings	regarding	the	father’s	conduct	and	conviction	created	“a	permissible	


      3		Although	the	amended	judgment	in	this	case	was	entered	after	September	1,	2017,	the	restyled	

rules	do	not	apply	because	the	father’s	notice	of	appeal	was	filed	before	September	1,	2017.		See	M.R.	
App.	P.	1.			
8	

inference	 of	 unfitness”	 pursuant	 to	 22	 M.R.S.	 §	 4055(1-A)(A),	 (B)(8),	 which	

provides,	

              1-A.	 	 Rebuttable	 presumption.	 	 The	 court	 may	 presume	
       that	 the	 parent	 is	 unwilling	 or	 unable	 to	 protect	 the	 child	 from	
       jeopardy	and	these	circumstances	are	unlikely	to	change	within	a	
       time	which	is	reasonably	calculated	to	meet	the	child’s	needs	if:	
              	
              A.		The	parent	has	acted	toward	a	child	in	a	manner	that	is	
              heinous	or	abhorrent	to	society	.	.	.	.		
              	
              B.		The	victim	of	any	of	the	following	crimes	was	a	child	for	
              whom	the	parent	was	responsible	or	the	victim	was	a	child	
              who	was	a	member	of	the	household	lived	in	or	frequented	
              by	the	parent	and	the	parent	has	been	convicted	of:		
              	       	
                      	.	.	.	.		
              	       	
                      (8)		Sexual	abuse	of	minors.	
	
We	have	recently	concluded	that	this	“rebuttable	presumption”	does	not	permit	

the	 shifting	 of	 any	 burden	 to	 the	 parent.	 	 See	 In	 re	 Evelyn	 A.,	 2017	 ME	 182,	

¶¶	24-33,	169	A.3d	914.		Rather,	it	“is	analogous	to	a	permissive	inference	in	

criminal	cases,	where	the	fact-finder	is	 entitled	to	reach	a	certain	conclusion	

based	 on	 a	 specified	 factual	 predicate.”	 	 In	 re	 Addilyn	 R.,	 2017	 ME	 236,	 ¶	 4,	

176	A.3d	184.	

       [¶7]	 	Here,	although	the	court	found	that	it	could	permissibly	make	an	

inference	 of	 unfitness,	 it	 nonetheless	 carefully	 considered	 In	 re	 Evelyn	 A.,	

2017	ME	182,	169	A.3d	914,	in	its	analysis	and	stated	that	before	it	could	make	
                                                                                        9	

any	 ultimate	 unfitness	 findings,	 it	 “must	 decide	 whether	 to	 infer	 from	 the	

father’s	conviction	and	all	other	evidence	presented	at	the	termination	hearing”	

that	the	father	was,	in	fact,	unfit.		(Emphasis	added.)		And	although	“the	court	

invoked	 the	 evidentiary	 analysis	 allowed	 by”	 the	 statute,	 “the	 judgment	

demonstrates	that	the	court	treated	that	statute	as	the	pathway	to	an	inference,	

and	placed	the	burden	of	proof	entirely	on	the	[petitioner]	and	did	not	require	

or	 expect	 the	 [father]	 to	 meet	 any	 evidentiary	 burden.”	 	 In	 re	 Addilyn	 R.,	

2017	ME	236,	¶	4,	176	A.3d	184.				

      [¶8]		It	is	clear	from	the	record	that	the	father	has	successfully	engaged	

in	some	services	during	his	incarceration.		Regardless,	viewing	the	evidence	in	

its	 entirety,	 there	 is	 competent	 evidence	 to	 support	 the	 court’s	 findings	 that	

(1)	the	father	is	unable	to	protect	the	child	from	jeopardy,	and	that	is	unlikely	

to	change	in	a	time	which	is	reasonably	calculated	to	meet	the	child’s	needs,	and	

(2)	the	father	is	 unable	to	take	responsibility	for	the	child	in	a	time	which	is	

reasonably	     calculated	    to	   meet	    her	    needs.	    	   See	   22	   M.R.S.	

§	4055(1)(B)(2)(b)(i)-(ii).			

B.	   Best	Interest	

      [¶9]		The	father	additionally	contends	that	there	is	insufficient	evidence	

to	support	the	court’s	finding	that	termination	is	in	the	best	interest	of	the	child.		
10	

Contrary	 to	 that	 contention,	 sufficient	 record	 evidence	 exists—including	

sufficient	 record	 evidence	 to	 support	 the	 court’s	 finding	 that	 the	 child’s	

opportunity	to	form	a	secure	attachment	with	the	father	ended	more	than	three	

years	 ago	 and	 its	 finding	 that	 any	 future	 integration	 into	 the	 father’s	 home	

would	be	akin	to	integrating	into	the	home	of	a	stranger—to	support	the	court’s	

determination	that	termination	of	the	father’s	parental	rights	is	in	the	child’s	

best	 interest.	 	 See	 In	 re	 Tyrel	 L.,	 2017	 ME	 212,	 ¶	15,	 172	 A.3d	 916;	 see	 also	

22	M.R.S.	§	4055(2)	(2017);	In	re	Jacob	B.,	2008	ME	168,	¶	14,	959	A.2d	734.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	    	     	      	      	    	
	
Richard	Charest,	Esq.,	Lewiston,	for	appellant	father	
	
Lorne	Fairbanks,	Esq.,	Lewiston,	for	appellee	petitioners	
	
	
Lewiston	District	Court	docket	number	PC-2016-62	
FOR	CLERK	REFERENCE	ONLY	
