MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision:    2019 ME 95
Docket:      And-18-508
Submitted
  On Briefs: May 30, 2019
Decided:     June 11, 2019

Panel:        SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                IN RE CHILD OF SHANNON S.


PER CURIAM

         [¶1] Shannon S. appeals from a judgment of the District Court (Lewiston,

Ham-Thompson, J.) terminating her parental rights to her child. 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i)-(ii) (2018).              The mother challenges the court’s

determination that termination of her parental rights is in the best interest of

her child. We affirm the judgment.

                                       I. BACKGROUND

         [¶2] On November 9, 2015, the Department of Health and Human

Services filed a child protection petition. See 22 M.R.S. § 4032 (2018). The

petition alleged that the mother struggled with substance abuse and exposed

the child to domestic violence between the parents in the home.1                               On

February 5, 2016, the court (Dow, J.) entered a jeopardy order, with the parents’



  1   Although both parents’ parental rights were terminated, the father has not appealed.
2

agreement, see 22 M.R.S. § 4035(1)-(2) (2018); however, custody remained

with the mother until May 22, 2017, when the court (Oram, J.) granted the

Department custody of the child after the mother was charged with two counts

of unlawful possession of scheduled drugs. The child was placed with a

relative.2

        [¶3] The Department petitioned for termination of the mother’s parental

rights on May 18, 2018.                See 22 M.R.S. § 4052 (2018).                 The court

(Ham-Thompson, J.) held a three-day hearing on the petition and, on

November 19, 2018, found by clear and convincing evidence that the mother is

unwilling or unable to protect the child from jeopardy or take responsibility for

the child within a time that is reasonably calculated to meet the child’s needs,

and that termination of the mother’s rights is in the best interest of the child.

See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii).

        [¶4] The court based its decision on the following factual findings, all of

which are supported by competent evidence in the record.

              [The mother] has a significant history of substance abuse. By
        her own admissions, she has had multiple relapses during the
        pendency of this case. [The mother] has participated in two
        residential treatment programs, multiple [Intensive Outpatient

    2On June 23, 2018, the child was moved to the home of another relative who previously had
provided some respite care for the child. The child was in this relative’s care at the time of the
termination hearing.
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      Programs], and individual counseling. Despite these services, [the
      mother] has and continues to actively abuse substances. [The
      mother] also has significant mental health issues and has been
      inconsistent in attending mental health treatment. During her
      testimony, [the mother] indicated that she did not see a correlation
      between her mental health issues and the impact on her child.

             ....

            . . . [The mother] has failed to do the things required in order
      to eliminate jeopardy. She has failed to refrain from using illicit
      substances, failed to adequately address her substance abuse
      history, failed to address her mental health issues, failed to provide
      a safe and stable home environment for her [child], and failed to
      demonstrate that she can be an emotionally stable parent to her
      [child].

The court found further that the mother’s “substance abuse has resulted in her

having a fairly extensive criminal history from 2004 to present” including

“multiple OUIs, thefts by unauthorized taking, illegal possessions of controlled

substances and violations of conditions of release.”

                                II. DISCUSSION

      [¶5]    On appeal, the mother challenges the court’s finding that

termination of her parental rights is in the child’s best interest. “We review the

trial court’s factual findings for clear error and its ultimate conclusion

regarding the best interest of the child for an abuse of discretion, viewing the

facts, and the weight to be given them, through the trial court’s lens.” In re

Kenneth S., 2017 ME 45, ¶ 3, 157 A.3d 244 (quotation marks omitted). Because
4

the trial court is “able to directly evaluate the testimony of the witnesses,” we

give substantial deference to the court’s judgment on the issue of best interest.

In re Caleb M., 2017 ME 66, ¶ 33, 159 A.3d 345 (quotation marks omitted).

      [¶6] The mother argues that the court abused its discretion because it

speculated about who might adopt the child after her parental rights were

terminated. The mother contends that the court improperly considered this

factor in its best interest analysis when it found that

      termination of parental rights is in [the child’s] best interest. [The
      child] seems happy in [the] current placement, and if [the parents’]
      parental rights are terminated, [the foster parent] would happily
      adopt [the child]. . . . Given the strong public policy favoring
      permanency for children . . . the court has no difficulty in finding
      that the plan of adoption is clearly in [the child’s] best interest so
      that [the child] has permanency in the happy home where [the child]
      is presently living.

(Emphasis added.)

      [¶7] It is well established that the court may, and often does, consolidate

permanency planning and termination proceedings; the two “cannot be

divorced from one another because a best interest decision necessarily

requires the court to consider the long-term living arrangement that will best

serve a child’s needs.     The court’s permanency plan for the child is an

inextricable part of that decision.” In re Children of Nicole M., 2018 ME 75, ¶ 15,

187 A.3d 1 (quoting In re Thomas H., 2005 ME 123, ¶ 28, 889 A.2d 297). In
                                                                                                    5

general, trial courts are permitted to consider in these consolidated

proceedings “evidence that the current foster placement is furthering the

child’s permanency plan, especially where that plan is to place the child for

adoption.” In re Kenneth S., 2017 ME 45, ¶ 6, 157 A.3d 244. However,

“permanency planning for a child in foster care, and the best interest

determination to be made in a termination proceeding, are distinct from the

question of who should adopt the child . . . .”3 Id. (citations omitted).

       [¶8] Courts should “not opine on who should become the adoptive

parent(s) in a prospective adoption proceeding.” In re Children of Bethmarie R.,

2019 ME 59, ¶ 8, --- A.3d ---. “The question of who is the best person to adopt

the child . . . is beyond the scope of a termination proceeding because that

question must be addressed in a separate adoption action governed by

[title 18].” In re Children of Nicole M., 2018 ME 75, ¶ 17, 187 A.3d 1. In this case,

while the court determined that the permanency plan for the child would be

adoption, see In re Thomas H., 2005 ME 123, ¶ 28, 889 A.2d 297, it did not



   3  In title 22 proceedings for the termination of parental rights, “the court does not begin to
consider post-termination placements until after termination of parental rights has been ordered.”
Adoption of Isabelle T., 2017 ME 220, ¶ 9, 175 A.3d 639. “[I]n a consolidated proceeding where the
court addresses a termination petition and establishes a permanency plan, while the court may
determine that as a general matter adoption is in the child’s best interest and will be the permanency
plan, the court would overreach if it were to designate the adoptive party.” In re Children of Nicole
M., 2018 ME 75, ¶ 17, 187 A.3d 1.
6

declare that “the inevitable result of its termination judgment” would be

adoption with the foster parent, In re Children of Bethmarie R., 2019 ME 59, ¶ 8,

--- A.3d ---. The court, therefore, stopped just short of determining who the

adoptive parent would be, but nonetheless determined that the child’s best

interest would be served through the permanency plan of adoption.

      [¶9] Given the strength of the record, particularly the length of time the

child has been in kinship care and the mother’s consistent and demonstrated

inability to provide a safe and stable home for the child, the court did not abuse

its discretion in concluding that termination of the mother’s parental rights is

in the child’s best interest. See In re Kenneth S., 2017 ME 45, ¶ 3, 157 A.3d 244.

Title 22 favors permanency; the child has been the subject of child protection

proceedings since November 2015, and termination of the mother’s parental

rights will finally allow the child to achieve that permanency. See 22 M.R.S.

§ 4050 (2018); In re Thomas H., 2005 ME 123, ¶ 23, 889 A.2d 297.

      The entry is:

                  Judgment affirmed.
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Rory A. McNamara, Esq., Drake Law, LLC, Berwick, 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


Lewiston District Court docket number PC-2015-70
FOR CLERK REFERENCE ONLY
