In re Child of Kelcie L. — 2018 ME 57

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2018 ME 57
Docket: 	And-17-476
Submitted
On Briefs: April 10, 2018
Decided: 	April 26, 2018
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF KELCIE L.
PER CURIAM
[¶1] The mother and father appeal from a judgment of the District Court
(Lewiston, Dow, J.) terminating their parental rights to their daughter pursuant
to 22 M.R.S. § 4055(1)(A)(1)(a), and (B)(2)(a), (b)(i), (ii), and (iv) (2017). Both
parents challenge the sufficiency of the evidence supporting the court’s findings
of unfitness. In addition, the father challenges the court’s determination that
termination of his parental rights is in the child’s best interest. 	The evidence
supports the court’s findings and discretionary determinations, and we affirm
the judgment.
I. BACKGROUND
[¶2] Based on competent evidence in the record, the court found, by clear
and convincing evidence, that both parents are unwilling or unable to protect
the child from jeopardy or take responsibility for her in a time reasonably
calculated to meet her needs, that both parents had failed to make a good faith

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effort to rehabilitate and reunify with the child, and that termination of both
parents’ parental rights is in the child’s best interest. 	See id.; In re Haylie W.,
2017 ME 157, ¶ 2, 167 A.3d 576. 	The court based its conclusion on the
following findings of fact:
[T]he 	Department 	has 	made 	reasonable 	efforts 	to
rehabilitate and reunify the family, and has made reasonable
efforts to identify and pursue an alternative permanency plan.
Those 	efforts 	include: 	safety 	assessment; 	rehabilitation 	and
reunification planning; family team meetings; supervised visitation
for the parents; kinship placement foster care; transportation
assistance; 	referrals 	for 	the 	parents 	to 	case 	management,
individual counseling, medication management, and parenting
education; parental assessment for the mother, and DHHS social
work services.
. . . .
[The mother] has not consistently participated in medication
management or mental health counseling. 	These services would
have been very important for reunification. . . .
[The mother’s] visits with the child do not go very well. She
was regularly prompted to engage with the child, but she remained
quite withdrawn. . . .
[The 	mother] 	is 	the 	victim 	of 	significant 	violence 	and
intimidation by [the father]. . . . They remain together as a couple,
living together in a two-bedroom apartment . . . . [The mother] has
chosen [the father] over [the child]. In the four months prior to the
TPR trial, she had declined to visit with [the child] because [the
father’s] visits had been suspended.
. . . .

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The 	father 	failed 	to 	participate 	in 	the 	[Court 	Ordered
Diagnostic Evaluation], which would have been helpful to the Court
in assessing his mental health, cognitive functioning, and parental
capability. However, the TPR trial itself provided the Court some
insight into the father’s behavior . . . . 	The father is nearly
unmanageable in a courtroom. 	Despite warnings from the Court
and attentive, professional coddling by his attorney, the father
repeatedly disrupted the proceedings with words and gestures. He
is aggressive, disagreeable, and paranoid. . . .
[The father] has not consistently participated in medication
management. . . . He has not consistently engaged in counseling.
[The father] is reported to be quite attentive to [the child]
during visits, and he loves her. He has a certain warmth towards
the child, and he tries to be a good dad. 	Still, he says the most
outlandish and despicable things . . . .
During [one] visit, . . . [the father] tried, while he held [the
child] in the car seat, to incite [the maternal grandfather] to hit
him. . . . [The father’s] behavior at that visit resulted in suspension
of the visits for four months. 	Visits resumed in May, but were
suspended again after two visits because [the father] had been
arrested again for a new aggravated assault, a random attack on a
stranger that left the stranger with a broken jaw. 	That charge
remains pending. 	[The mother] was allowed to visit, but she
declined, in solidarity with [the father]. There have been no visits
by either parent with the child in the four months prior to the trial.
[The father] is violent towards [the mother]. 	He told [the
maternal grandfather, “I almost killed your daughter . . . . I choked
her out to the point where I almost couldn’t bring her back,” and he
described 	strangling 	then 	reviving 	her 	by 	slapping 	her 	and
splashing water on her.
The 	Court 	now 	turns 	to 	the 	issue 	of 	the 	child’s 	best
interest. . . .

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The mother had not received prenatal care during the
pregnancy, and she used marijuana throughout. She did not inform
her mental health medication prescriber [of] her pregnancy, and
she had prescriptions for Ritalin, Klonopin, Seroquel, and Zoloft
during the pregnancy.
[The child] has been in the care of her foster parents, her
maternal grandfather and step-grandmother, since her release
from [the hospital] at 19 days old . . . .
. . . [The child] needs a calm and soothing environment, and
the foster parents provide that. . . .
[The child] absolutely needs permanency. 	She has been in
her grandparents’ care her whole life, and her parents are not
substantially closer to reunifying with her now than they were at
the inception of this case.
II. DISCUSSION
[¶3] We review the trial court’s factual findings that a parent is unfit and
that termination of parental rights is in the child’s best interest for clear error
and 	the ultimate decision to terminate 	parental rights for 	an 	abuse of
discretion. Adoption of Isabelle T., 2017 ME 220, ¶ 30, 175 A.3d 639.
A. 	Unfitness Findings
[¶4] Both parents argue that there was insufficient evidence to support
the court’s findings of parental unfitness. 	The mother contends that the
Department failed to meet its obligations pursuant to 22 M.R.S. § 4041(1-A)
(2017) and that this failure precludes any finding of unfitness. Contrary to the

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mother’s argument, the evidence in the record fully supports the court’s finding
that the Department satisfied its statutory obligation. In examining all relevant
factors, there is sufficient evidence to support the court’s finding, by clear and
convincing evidence, of at least one ground of unfitness as to the mother. 	See
In re Aliyah M., 2016 ME 106, ¶ 5, 144 A.3d 50.
[¶5] 	Although the father contends that he made progress towards
rehabilitation, the evidence was sufficient to support the court’s finding, by
clear and convincing evidence, of at least one ground of his parental unfitness.
See In re Hannah S., 2016 ME 32, ¶ 13, 133 A.3d 590.
B. 	Best Interest Determination
[¶6] 	The 	father 	also 	challenges 	the 	court’s 	determination 	that
termination of his parental rights is in the child’s best interest. He argues that
the 	court 	should 	have 	ordered 	a 	permanency 	guardianship 	instead 	of
terminating his parental rights. 	See 22 M.R.S. § 4038-C (2017). 	Because the
father did not argue for a permanency guardianship at trial, we review the
court’s decision not to grant a permanency guardianship for obvious error. See
In re L.T., 2015 ME 94, ¶¶ 19-20, 120 A.3d 650.
[¶7] “Permanency is a dynamic concept that must be fashioned from the
actual circumstances and needs of the child or children before the court.” In re

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Marcus S., 2007 ME 24, ¶ 10, 916 A.2d 225. Here, the court found that the father
avoided evaluation and treatment, used outlandish and despicable language
regarding the child during visits, was violent in the child’s presence, and was so
unable to control himself at trial that the court had to arrange for him to
participate from a separate courtroom. 	The court also found that the child
“absolutely 	needs 	permanency” 	and 	requires 	“a 	calm 	and 	soothing
environment.” 	Given the father’s circumstances and the specific needs of the
child, 	the court 	did not commit obvious error 	when it determined 	that
termination of the father’s parental rights, with a permanency plan of adoption,
is in the child’s best interest.
The entry is:
Judgment affirmed.
Heather Gonzales, Esq., Strike, Gonzales & Butler Bailey, Portland, for appellant
mother
Richard Charest, Esq., Lewiston, 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
Lewiston District Court docket number PC-2016-48
FOR CLERK REFERENCE ONLY