MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	89	
Docket:	      Oxf-16-535	
Submitted	
  On	Briefs:	 April	27,	2017	
Decided:	     May	9,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                    IN	RE	DANIEL	H.	
	
	
SAUFLEY,	C.J.	

       [¶1]	 	 The	 parents	 of	 Daniel	 H.	 appeal	 from	 a	 judgment	 entered	 in	 the	

District	 Court	 (Rumford,	 Carlson,	 J.)	 terminating	 their	 parental	 rights	 due	 to	

persistent	 concerns	 about	 Daniel’s	 basic	 health	 and	 safety,	 the	 parents’	

inability	 to	 understand	 and	 respond	 to	 his	 needs,	 their	 history	 of	 substance	

abuse,	 the	 mother’s	 serious	 intellectual	 limitations,	 and	 the	 father’s	 violence	

toward	the	mother	and	others.		We	affirm	the	judgment.	

                                    I.		BACKGROUND	

	      [¶2]	 	 The	 following	 facts	 are	 drawn	 from	 the	 court’s	 findings	 of	 fact,	

reached	 by	 clear	 and	 convincing	 evidence,	 all	 of	 which	 are	 supported	 by	

competent	evidence	in	the	record.		See	In	re	Logan	M.,	2017	ME	23,	¶	3,	155	

A.3d	430.		The	parents	met	in	Michigan	and	moved	to	Maine	in	March	2014	at	

around	 the	 time	 the	 father	 was	 charged	 in	 Michigan	 with	 a	 felony	 criminal	

sexual	conduct	offense	against	a	girl	under	the	age	of	thirteen.		A	warrant	for	
2	

the	 father’s	 arrest	 was	 issued	 in	 conjunction	 with	 the	 felony	 complaint	 on	

March	19,	2014.		The	mother	was	pregnant	at	the	time	of	the	move,	and	Daniel	

was	born	in	Maine	on	May	27,	2014.		The	parents	were	married	sometime	in	

2015.			

      [¶3]		The	Department	of	Health	and	Human	Services	was	involved	with	

the	family	repeatedly	before	petitioning	for	a	child	protection	order	and	order	

of	preliminary	protection	on	August	27,	2015.		The	petition	was	based	on	the	

father’s	physical	altercation	with	a	neighbor	while	holding	Daniel	in	his	arms,	

the	father’s	active	arrest	warrant	from	Michigan,	and	the	presence	of	choking	

and	 other	 health	 hazards	 within	 reach	 of	 the	 child.	 	 The	 court	 (Beliveau,	 J.)	

entered	an	order	of	preliminary	protection	granting	custody	of	Daniel	to	the	

Department.			

      [¶4]	 	 The	 parents	 waived	 the	 right	 to	 a	 summary	 preliminary	 hearing,	

and	 the	 court	 (Carlson,	 J.)	 entered	 a	 jeopardy	 order,	 with	 the	 parents’	

agreement,	in	November	2015.		Jeopardy	was	based	on	the	parents’	inability	

to	 safely	 supervise	 Daniel,	 including	 during	 the	 mother’s	 supervised	 visits	

with	 the	 child;	 their	 inability	 to	 keep	 hazardous	 items	 away	 from	 the	 child;	

allegations	 of	 the	 father’s	 sexual	 abuse	 of	 minors;	 substance	 abuse	 by	 both	

parents;	the	father’s	violence	toward	a	neighborhood	cat	in	front	of	the	child,	
                                                                                       3	

resulting	 in	 the	 cat	 being	 put	 down;	 and	 the	 father’s	 altercation	 with	 his	

neighbor.		By	the	time	of	the	next	judicial	review	in	April	2016,	the	father	was	

incarcerated	on	charges	of	operating	under	the	influence,	failure	to	submit	to	

arrest	 or	 detention,	 and	 assault	 on	 a	 police	 officer.	 	 He	 was	 convicted	 of	

assault	 on	 an	 officer	 and	 OUI	 in	 May	 2016	 after	 pleading	 guilty	 to	 those	

charges.			

	     [¶5]	 	 The	 Department	 petitioned	 for	 the	 termination	 of	 both	 parents’	

parental	 rights	 on	 July	 25,	 2016.	 	 After	 one	 additional	 judicial	 review,	 the	

court	held	a	hearing	on	the	termination	petition	on	October	31,	2016.			

	     [¶6]		With	respect	to	the	mother’s	parental	fitness,	the	court	found	that	

her	 parental	 rights	 to	 each	 of	 her	 four	 older	 children	 had	 been	 terminated,	

though	she	has	little	insight	into	why	any	of	the	children	were	removed	from	

her	 care.	 	 Between	 the	 ages	 of	 fifteen	 and	 twenty-one,	 the	 mother	 was	

addicted	 to	 crack	 cocaine,	 and	 up	 until	 a	 week	 before	 the	 hearing,	 she	 had	

been	 using	 marijuana,	 without	 a	 prescription,	 three	 times	 per	 week.	 	 At	 the	

time	of	the	termination	hearing,	the	mother	was	thirty-one	years	old.			

	     [¶7]	 	 Pursuant	 to	 the	 rehabilitation	 and	 reunification	 plan	 that	 the	

mother	 signed,	 the	 mother	 participated	 in	 a	 court-ordered	 diagnostic	

evaluation	 (CODE),	 which	 revealed	 an	 extremely	 low	 full	 scale	 intelligence	
4	

quotient	 of	 56.	 	 With	 this	 very	 low	 IQ,	 the	 mother	 would	 have	 difficulty	

keeping	 Daniel	 safe	 without	 twenty-four-hour	 supervision	 in	 a	 highly	

structured	 environment.	 	 Even	 during	 supervised	 visits,	 the	 mother	 lacked	

focus	and	would	often	lose	interest	in	the	child	halfway	through	her	two-hour	

visits,	appearing	annoyed	at	the	energy	that	it	took	to	attend	to	him.		She	did	

not	understand	how	to	feed	Daniel,	culminating	in	the	visit	supervisor	having	

to	use	the	Heimlich	method	to	prevent	Daniel	from	choking	on	an	overly	large	

piece	of	cheese	that	 the	mother	had	given	him.		After	visits	with	his	mother,	

Daniel	became	agitated	in	his	foster	home,	and	he	bit	his	foster	mother’s	other	

children	and	the	family	dog.			

	     [¶8]	 	 The	 mother	 only	 recently	 began	 to	 attend	 parenting	 education	

classes	and	did	not	attend	nonoffender	domestic	violence	treatment	because	

she	claims	that	she	was	not	told	where	she	had	to	go.		Since	separating	from	

the	 father	 due	 to	 domestic	 violence,	 the	 mother	 has	 become	 engaged	 to	

another	man	with	whom	she	resides.		The	father	still	visits	the	mother	in	her	

new	residence,	however,	including	just	before	the	hearing.			

	     [¶9]		With	respect	to	the	parental	fitness	of	the	father,	who	is	in	his	late	

fifties,	 the	 court	 found	 that	 the	 father	 lacks	 insight	 into	 the	 reasons	 for	

Daniel’s	 removal.	 	 The	 father	 has	 a	 long	 history	 of	 criminal	 or	 violent	
                                                                                        5	

behavior:	 he	 has	 four	 prior	 felony	 convictions	 and	 served	 fifteen	 years	 of	

incarceration	 in	 Michigan;	 he	 admitted	 to	 injuring	 a	 neighborhood	 cat	 in	

Daniel’s	presence;	he	was	convicted	of	assault	on	an	officer	and	OUI	after	the	

Department	took	custody	of	Daniel;	he	has	been	violent	toward	the	mother	on	

a	number	of	occasions;	he	engaged	in	a	physical	fight	with	his	neighbor	while	

holding	Daniel;	and	he	is	currently	subject	to	bail	conditions	prohibiting	him	

from	having	contact	with	minors	due	to	a	serious	charge	in	Michigan	of	sexual	

conduct	with	a	child.			

	     [¶10]		The	father	is	not	working.		He	had	difficulty	providing	a	current	

address	both	when	he	was	released	from	jail	and	at	the	termination	hearing.			

	     [¶11]		The	father	has	not	completed	any	reunification	services	that	are	

included	 in	 the	 reunification	 plans	 that	 he	 signed.	 	 He	 engaged	 in	 some	

substance	 abuse	 counseling	 but	 does	 not	 know	 the	 counselor’s	 name	 and	

denies	 having	 any	 addictions;	 he	 attended	 three	 parenting	 classes	 and	 then	

moved	to	another	city;	he	went	to	a	mental	health	evaluation	that	he	did	not	

complete;	 and	 at	 the	 time	 of	 the	 mother’s	 CODE,	 he	 was	 incarcerated.	 	 No	

evidence	 was	 offered	 to	 show	 progress	 in	 any	 of	 the	 services	 that	 the	 father	

says	he	has	received.		Although	the	father	claims	that	the	Department	failed	to	

make	referrals	for	him,	and	the	caseworker	admittedly	did	not	make	referrals	
6	

for	some	of	the	services,	the	caseworker	did	make	two	or	three	referrals	for	

mental	health	counseling	and	two	referrals	for	substance	abuse	evaluations.	

	        [¶12]		Based	on	its	detailed	factual	findings,	the	court	ultimately	found	

that	(1)	the	mother	is	unwilling	or	unable	to	take	responsibility	for	the	child	

within	 a	 time	 reasonably	 calculated	 to	 meet	 his	 needs;	 (2)	both	 parents	 are	

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;	 and	 (3)	 both	 parents	 failed	 to	 make	 a	

good-faith	 effort	 to	 rehabilitate	 and	 reunify	 with	 the	 child.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b)(i),	 (ii),	 (iv)	 (2016);	 see	 also	 22	 M.R.S.	 §	 4041(1-A)(B)	

(2016).	

	        [¶13]		With	regard	to	the	best	interest	of	the	child,	the	court	found	that	

Daniel	had	been	placed	with	two	foster	families	since	his	removal.1		When	he	

was	 initially	 placed	 in	 foster	 care	 in	 August	 2015,	 he	 did	 not	 exhibit	 much	

emotion,	but	he	adjusted	to	the	home	quickly.		He	needs	consistency,	stability,	

and	 permanence,	 but	 the	 mother	 is	 not	 likely	 ever	 to	 have	 the	 capacity	 to	

parent	him	safely,	and	the	father	will	not	be	able	to	have	contact	with	him	in	

the	 near	 future	 due	 to	 his	 pending	 criminal	 charges.	 	 Consistent	 with	 the	


     1		The	Department’s	caseworker	testified	that	Daniel	is	currently	in	a	pre-adoptive	placement.			
                                                                                           7	

recommendation	of	the	guardian	ad	litem,	the	court	found	that	termination	of	

both	 parents’	 parental	 rights	 is	 in	 the	 child’s	 best	 interest.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(a)	(2016).		Both	parents	timely	appealed	from	the	judgment.		

See	22	M.R.S.	§	4006	(2016);	M.R.	App.	P.	2.	

                                     II.		DISCUSSION	

	      [¶14]		The	mother’s	attorney	filed	a	brief	stating	that	she	did	not	believe	

that	 there	 was	 any	 arguable	 issue	 on	 appeal.	 	 The	 brief	 reports	 that	 counsel	

informed	 the	 mother,	 both	 in	 writing	 and	 personally	 by	 telephone,	 that	

counsel	discerned	no	arguable	issue	and	that	the	mother	was	required	to	file	a	

brief	 opposing	 the	 termination	 if	 she	 believed	 there	 was	 a	 valid	 basis	 for	

appeal	or	sought	new	counsel.		See	In	re	William	P.,	2001	ME	25,	¶	3,	765	A.2d	

76.	 	 Although,	 upon	 motion	 of	 the	 mother’s	 counsel,	 we	 ordered	 an	

enlargement	 of	 time	 for	 the	 mother	 to	 file	 a	 brief,	 the	 mother	 did	 not	 file	 a	

brief	 or	 any	 other	 document	 opposing	 the	 termination	 or	 requesting	 other	

counsel.	 	 In	 his	 brief,	 the	 father	 challenges	 the	 sufficiency	 of	 the	 evidence,	

arguing	 primarily	 that	 his	 lack	 of	 participation	 in	 services	 resulted	 from	 the	

Department’s	 failure	 to	 prioritize	 the	 most	 important	 of	 the	 recommended	

services	and	make	referrals.			
8	

	     [¶15]	 	 When	 a	 child	 protection	 proceeding	 has	 begun,	 the	 Department	

must	 produce	 a	 reunification	 plan	 identifying	 “the	 problems	 that	 present	 a	

risk	 of	 harm	 to	 the	 child”	 and	 “the	 services	 needed	 to	 address	 those	

problems,”	 22	 M.R.S.	 §	 4041(1-A)(A)(1)(a)	 (2016),	 and	 must	 “[m]ake	 good	

faith	efforts	to	cooperate	with	the	parent	in	the	pursuit	of	the	plan,”	22	M.R.S.	

§	4041(1-A)(A)(3)	 (2016).	 	 See	 In	 re	 Hannah	 S.,	 2016	 ME	 32,	 ¶	 11,	 133	 A.3d	

590.	 	 “The	 Department’s	 compliance	 with	 its	 rehabilitation	 and	 reunification	

duties	 as	 outlined	 in	 section	 4041	 does	 not	 constitute	 a	 discrete	 element	

requiring	 proof	 in	 termination	 proceedings,	 nor	 does	 the	 failure	 of	 the	

Department	 to	 comply	 with	 section	 4041	 preclude	 findings	 of	 parental	

unfitness.”	 	 Id.	 ¶	 12	 (quotation	 marks	 omitted).	 	 Instead,	 the	 court	 should	

consider	the	lack	of	reunification	efforts	as	one	of	many	factors	in	evaluating	

the	parent’s	fitness.		See	id.	

	     [¶16]	 	 Here,	 the	 court	 specifically	 found	 that	 the	 Department	 made	

repeated	referrals	for	mental	health	and	substance	abuse	counseling,	but	that	

the	 father	 became	 incarcerated	 before	 a	 CODE	 could	 be	 undertaken,	 he	

changed	 his	 residence,	 and	 he	 failed	 to	 follow	 through	 with	 services.	 	 The	

court	 also	 specifically	 acknowledged	 that	 the	 Department	 made	 no	 referrals	

for	 some	 of	 the	 services,	 which	 demonstrates	 that	 it	 fully	 considered	 the	
                                                                                       9	

extent	 of	 the	 Department’s	 compliance	 with	 its	 reunification	 duties.	 	 See	 id.	

¶¶	11-12.	

	     [¶17]		Having	reviewed	the	record	in	its	entirety	to	determine	whether	

the	evidence	of	parental	unfitness	and	the	child’s	best	interest	are	sufficient	as	

to	 each	 parent,	 we	 conclude	 that	 (1)	competent	 evidence	 in	 the	 record	

supports	the	court’s	finding,	by	clear	and	convincing	evidence,	of	one	or	more	

grounds	 of	 parental	 unfitness	 as	 to	 each	 parent,	 see	 22	 M.R.S.	

§	4055(1)(B)(2)(b);	 In	 re	 Thomas	 D.,	 2004	 ME	 104,	 ¶	 21,	 854	 A.2d	 195,	 and	

(2)	the	court	did	not	commit	clear	error	or	abuse	its	discretion	in	determining	

that	termination	of	each	parent’s	parental	rights	is	in	the	child’s	best	interest,	

see	 22	 M.R.S.	 §	4055(1)(B)(2)(a);	 In	 re	 Thomas	 H.,	 2005	 ME	 123,	 ¶¶	 16-17,	

889	A.2d	297.	

      The	entry	is:	

                    Judgment	affirmed.		
	     	      	      	    	     	
	
	
	
	
	
	
	
	
	
10	

Taylor	S.	Kilgore,	Esq.,	Taylor	S.	Kilgore,	Attorney	at	Law,	Turner,	for	appellant	
Mother	
	
Daniel	Dubé,	Esq.,	Dubé	&	Link,	P.A.,	Auburn,	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	
	
	
Rumford	District	Court	docket	number	PC-2015-9	
FOR	CLERK	REFERENCE	ONLY	
