MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision:    2020 ME 68
Docket:      Pen-19-501
Submitted
  On Briefs: May 4, 2020
Decided:     May 14, 2020

Panel:       MEAD, GORMAN, JABAR, HUMPHREY, and CONNORS, JJ.



                               IN RE CHILDREN OF JACOB S.


PER CURIAM

         [¶1] Jacob S., the father, and Jaime S., the mother, appeal from a judgment

of the District Court (Lincoln, Stitham, J.) terminating their parental rights to

their five children.1 Both parents challenge the sufficiency of the rehabilitation

and reunification efforts made by the Department of Health and Human

Services. The father additionally challenges the court’s determination that the

termination of his and the mother’s parental rights was in the children’s best

interests. We affirm the judgment.

         [¶2] The following facts are drawn from the court’s findings and from

the procedural record.           See In re Children of Corey W., 2019 ME 4, ¶ 2,

199 A.3d 683.




   1 Although several of the father’s relatives were granted intervenor status and the maternal
grandmother was granted interested person status, those individuals are not involved in this appeal.
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      [¶3] This matter began when the Department filed a petition for a child

protection order and a request for a preliminary protection order regarding the

children on April 28, 2017. See 22 M.R.S. § 4032, 4034 (2020). The petition

alleged that the children were at risk due to their parents’ neglect, emotional

abuse, and physical abuse. The court (Mallonee, J.) granted the Department’s

request for a preliminary protection order that same day and placed the

children in the Department’s custody. See id. § 4034(2). The parents later

waived the opportunity for a summary preliminary hearing. See id. § 4034(4).

      [¶4] The court (Stitham, J.) entered an agreed-to jeopardy order as to

both parents in November 2017. See 22 M.R.S. § 4035 (2020). In that order,

the court found that the children were in jeopardy as to the mother based on

the mother’s neglect and abuse, which included hitting the children with a

wooden backscratcher, punishing them with extremely hot and/or cold

showers, and threatening to shoot herself and them. The court found that the

children were in jeopardy as to the father based on neglect and abuse, which

included not protecting the children from the abuse and neglect of the mother,

withholding food from them as a punishment, and making threatening

statements to them. Both parents agreed in the order that any visits with the

children would occur “when therapeutically recommended.”
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      [¶5] Throughout the case, all five children remained adamant that they

did not want to see the parents. To support reunification, the Department fired

and replaced the children’s initial counselors when it became clear that those

counselors did not support that goal. The Department also made it clear to the

relative with whom the children were placed that if she or other family

members interfered with reunification, the children would be moved.

Nevertheless, as a result of the children’s intractable positions and counselor

recommendations that they should not be forced to visit with the parents, only

one ninety-minute visit between the children and the parents occurred.

      [¶6] In June 2018, the Department filed a petition to terminate the

parents’ parental rights. 22 M.R.S. § 4052 (2020). Thereafter, the parties

agreed to designate a forensic psychologist as an expert to review the case and

provide insight regarding the children’s unwillingness to visit with the parents

and the lack of reunification progress. The matter was continued by agreement

several times because the forensic psychologist required more time to prepare

her report. When the forensic psychologist’s report was finally finished, the

court held a five-day hearing on the termination petition in June and July 2019,

during which it heard extensive testimony from witnesses including the
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parents, the forensic psychologist, Department caseworkers, and various

counselors.

      [¶7] After receiving post-trial written closing arguments and proposed

findings from the parties, the court entered an order terminating both parents’

parental rights in November 2019. In that order, the court made the following

findings:

             The Court finds that the parents did abuse the children while
      they were in the parents’ care. The children have disclosed abuse
      at the hands of their parents to all six of their counselors, and [the
      guardian ad litem]. Each found the children credible. Some of the
      disclosures were consistent with admissions made by the parents
      in their own testimony, in their conversations with the State Police,
      and with the Jeopardy language that they agreed to. All of the
      children’s treating therapists found the children’s disclosures
      compelling, and observed physical reactions by the kids consistent
      with their reports and with kids who have been traumatized. . . .
      [The forensic psychologist] noted that sustained trauma-based
      symptoms cannot be coached, and that these symptoms have been
      exhibited since the time the children have come into care.

            [The father] has not made much progress in his reunification
      efforts. In his testimony at the TPR hearing [the father] denied
      everything in the Jeopardy Order that he had previously agreed to.
      He also claimed that the children were not traumatized in his home
      and that the children were fine prior to being placed with his
      parents. He essentially indicated that nothing inappropriate
      happened in his home, but if it did, it was the fault of his parents.
      [An evaluating psychologist] concluded that [the father] was not
      demonstrating empathy towards the children at the time of the
      evaluation he completed in . . . February 2018. His testimony
      during the hearing indicated that he had not developed an
      understanding of his children’s needs, nor did he take
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responsibility for the abuse that had occurred in his home.
However it is painfully obvious that [the father] is completely
unrealistic of the reality of where each of these children are
emotionally and psychologically when he testified at the hearing on
6/12/19, I would ask the Court to start visitation immediately and
bring my kids home. [The father] testified that what he agreed to in
the Jeopardy Order is not true. [The father] has not participated in
parenting education despite what the Jeopardy Order states and
what he agreed to.

       [The mother] has not made much progress in her
reunification efforts. Just as [the father] did, in [the mother’s]
testimony at the TPR hearing she denied everything in the Jeopardy
Order that she had previously agreed to. [An evaluating
psychologist] expressed concerns about [the mother’s] ability to
empathize with the children.          [The mother] was able to
acknowledge some wrong doing on her part, including physical and
emotionally abusive behavior. The Court does not find [the
mother’s] counselor[’s] testimony that [the mother] has made
significant progress on her issues credible. [The mother] also lied
to [a police detective] about the use of a backscratcher to hit the
children, acknowledged that lie . . . , agreed to a Jeopardy finding
about the use of a backscratcher in disciplining the children, and
then denied using the backscratcher during the hearing. She
indicated that she used the methods promoted in [the parenting
book] To Train Up a Child at the behest of her mother in law and
indicated that she had never been taught how to be a mother by her
own mother . . . . While [the mother] was able to demonstrate some
insight about what the children might be feeling in her letter to [the
oldest child] in the Spring of 2018, she then exhibited a lack of
understanding regarding the children’s trauma by supporting
placement of the children with her mother, who has no relationship
with the children, and who she had claimed to be an alcoholic and
abusive towards her.

      ....
6

          From April 28, 2017, to the present, none of the children have
    expressed a willingness to visit with their parents. [The GAL]
    became the third GAL in this case on 10/18/17. Since then at each
    and every visit with the children she discussed the possibility of
    contact with their parents and the children in various ways
    expressed that they did not want to visit with their parents. At no
    time have any of the six therapists who have treated the children
    recommended contact between the children and the parents. All
    have indicated that the children were not ready for contact with
    their parents, and to force them to visit against their express
    wishes would be traumatic to the children. . . .

          This Court concludes that speculation on what might have
    been if the children had been placed at the outset in a foster home
    and kept together[,] or if the children had been separated, with
    each living in his/her own separate foster home[,] or if any of the
    numerous counselors were more skilled or tried something
    different . . . is just not the point. What could have happened, did.
    This mother and this father each abused each of these children,
    causing each child to go a dark place, . . . causing the children at the
    hands of [the father] to be entrusted to [relatives], causing the
    children to go into DHHS custody[,] and so on and so forth until
    these parents and these five children all arrived at the last day of
    that TPR hearing. The Court concludes that any possibility of
    reunification of any of these children with their parents is years
    away, far more than two years—if at all.

          [The children] each need permanency. Each of these children
    deserves certainty and stability. [The relative with whom they live]
    has given them that. Instability and impermanency are contrary to
    the welfare of each of these children. The children cannot wait
    years for permanency on the off chance that the children may be
    able to reunify with their parents. Each child has developed a close
    attachment to [the relative with whom the children live] . . . and
    most encouragingly each child has started the process of being an
    individual. [The relative] is meeting the children’s needs, and any
    removal from [the relative’s] home, and any separation of the
    siblings would be devastating to each and every one of them. Such
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       would not be in any of their best interests. The reality is that the
       best interests of these children requires their remaining in the
       nurturing and stable home provided by [the relative] who wants to
       adopt each and every one of them. . . .

               ....

              The Court further finds that DHHS has made reasonable
       efforts to reunify and rehabilitate the parents with each child and to
       develop and finalize permanency plans for each child. The Court
       takes particular note of the Department[’s] commendable efforts of:
       discharging the first batch of counselors; and most noteworthy,
       paying for the additional costs to secure the report of [the forensic
       psychologist] and her lengthy testimony as well.[2] The Court
       further finds that the Department’s proposal of adoption as the
       permanency plan for each child is appropriate and in each child’s
       best interests at this time.

       [¶8] These findings, all of which are supported by competent evidence

except as noted supra n.2, are sufficient to support the court’s ultimate findings

that the parents are unable to protect the children from jeopardy or take

responsibility for them in a time reasonably calculated to meet their needs. See

22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii) (2020); In re Thomas D., 2004 ME 104, ¶ 21,

854 A.2d 195.




   2 Although the record reflects that the forensic psychologist’s work was the result of cooperation
between the Department and the parents, the record does not clearly indicate the extent to which the
Department paid for some of the forensic psychologist’s costs. Nevertheless, neither parent
challenges that aspect of the court’s judgment, and given the other evidence supporting the court’s
determination that the Department’s reunification efforts were reasonable, any error would be
harmless. See In re Stephenie F., 2018 ME 163, ¶ 2 n.2, 198 A.3d 203.
8

      [¶9]   We find no merit in the parents’ arguments concerning the

sufficiency of the Department’s efforts to rehabilitate them and reunify them

with the children.      The court carefully considered the Department’s

reunification efforts, and its finding that those efforts were reasonable in the

challenging circumstances of this case is supported by competent evidence. See

In re Child of Nicholas W., 2020 ME 16, ¶ 8, --- A.3d ---; In re Hannah S.,

2016 ME 32, ¶ 12, 133 A.3d 590.

      [¶10] Finally, the court did not commit clear error or abuse its discretion

when it determined that the termination of the parents’ parental rights was in

the children’s best interests. See 22 M.R.S. § 4055(1)(B)(2)(a) (2020); In re

Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297. The father contends that the

children have a therapeutic need to have contact with him and the mother, and

that the court should have kept the case open.        Contrary to the father’s

argument, the court did not err or abuse its discretion when it determined that

the children needed permanency after more than two years in the

Department’s custody, and that such permanency would be best accomplished

by freeing the children for adoption.

      The entry is:

                  Judgment affirmed.
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Wayne Doane, Esq., Exeter, for appellant mother

Erik T. Crocker, Esq., Farrell, Rosenblatt & Russell, Bangor, for appellant father

Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services


Lincoln District Court docket number PC-2017-13
FOR CLERK REFERENCE ONLY
