In re Child of Rebecca J.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 119
Docket: Ken-19-75
Submitted
On Briefs: July 18, 2019
Decided: July 25, 2019

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

IN RE CHILD OF REBECCA J.

PER CURIAM

[¶1] Rebecca J. appeals from a judgment of the District Court (Waterville,

Stanfill, J.) terminating her parental rights to her child. The mother challenges

the sufficiency of the evidence supporting the court’s findings of parental

unfitness and its determination that termination of her parental rights is in the

child’s best interest. We affirm the judgment.

I. BACKGROUND

[¶2] On August 18, 2017, the Department of Health and Human Services

filed a child protection petition as to both parents, 1 alleging that the mother had

a history of Department involvement as to her two older children and that the

mother had not alleviated the circumstances that necessitated the

1The father later consented to the termination of his parental rights, and he is not a party to this
appeal. See 22 M.R.S. § 4055(1)(B)(1) (2018). We therefore limit our discussion to the facts and
procedure relevant to the mother.
2

Department’s ongoing involvement as to her older children.2 On November 28,

2017, the court entered an agreed-to jeopardy order, incorporating the findings

from the jeopardy order issued in prior child protection matters regarding the

mother’s two older children. The court found that the mother did not

adequately supervise the children; the mother’s household was chaotic and

dirty; the older children—one of whom was a nonambulatory infant at the

time—sustained bruising and other physical injuries while in the mother’s care,

which the mother denied having noticed and could not explain; and the

“instability that has plagued [the mother] from the onset of [the older

children’s] case persists.” The court entered agreed-to judicial review and

permanency planning orders on March 30, 2018; June 11, 2018 (Davis, J.); and

November 28, 2018 (Stanfill, J.), maintaining custody of the child with the

Department.

[¶3] Meanwhile, on July 3, 2018, the Department petitioned for the

termination of the mother’s parental rights. After a contested hearing, by

judgment dated February 11, 2019, the court made the following findings of

fact, which are supported by competent record evidence.

2 Because the terms of a safety plan placed the child at issue here with other family members at
that time, the Department did not seek a preliminary protection order. See 22 M.R.S. § 4034 (2018).
3

[The mother] is the biological mother to three children [who]
have different fathers and are the subject of three separate child
protection cases. [The middle child] resides with his father. . . .
[P]arental rights of both parents [to the oldest child] have been
terminated. . . .

When [the youngest child, who is the subject of the present
matter,] was born . . . , it appeared that [the mother] was making
good progress in her reunification with the other children. They
were placed with her in March 2017 for a trial placement, and so
[this child] also remained in the home. Problems began to arise
again, however, and by May 2017 all the children were again
removed from the home. . . .

The reasons for the original removal of [the two older
children] in 2016 included, among other things, unexplained and
likely inflicted bruising to [the middle child] while in [the mother’s]
care. When all three children were removed [in] May 2017, there
were again unexplained bruises on both [older children]. While
there has never been a finding that [the mother] inflicted the
injuries, it is very concerning that they occurred while in her care
on more than one occasion and that she not only could not explain
the injuries but never noticed them. Because [the mother] still will
not recognize that 2 of her children were injured in her care, she
cannot take responsibility for either her actions or the conditions
that allowed the injuries to occur.

In addition to the injuries, the children evidenced general
neglect when removed. . . . When [the youngest child] came into
care, [she was] ill . . . , sufficiently so that she was seen in the ER.
The fact that a child is ill is not necessarily evidence of neglect, but
again it is concerning that [the mother] did not appear to recognize
the extent of the illness. While [the mother] called to authorize the
treatment at the hospital, she did not go to the hospital or
thereafter inquire how it went.

....
4

[The mother’s] detached parenting style continues to this
day. She rarely asks about [the child’s] life during the week. She
does not go to [the child’s] appointments and rarely inquires about
them. When [the child] was in her care, [the mother] tended to
leave her in the car seat and had little interaction with her. Current
visits are not much different: she brings snacks and will play with
[the child], but there is little physical affection or actual parenting.
[The mother] does not pick her up, hug or kiss her. . . . [I]t is clear
that [the child] does not view [the mother] as her parent [and she]
is more bonded to [her foster mother] than to [the mother]. In
short, . . . [the mother] appears to be unable to fully function at the
level necessary to be a parent. She wants to connect with [the
child], but does not appear to be able to do so.

Moreover, these circumstances are unlikely to change.
Further parenting education and counseling would not be helpful
as [the mother] does not accept that she has any parenting deficits
or that the two older children were injured in her care. No change
can occur absent taking responsibility for the past.

....

[The child] has been out of [the mother’s] home since she was
a little more than 3 months old . . . . She has lived with [the foster
parents] all that time, and they have provided good care. She was
withdrawn and rigid and would not make eye contact when she
first came into their home. She would not take a nap or sleep
through the night. She would scream when [the foster mother]
tried to bathe her or would leave her. It took months to get her to
do these things. Now, she is happy and playful and always on the
move. She sleeps through the night and the other issues have
resolved. She is putting words together. She calls [the foster
parents] Mom and Dad. She is integrated into and bonded with the
family.

[The child] deserves permanency. Disruption of her
placement would clearly be traumatic for her. . . .
5

(Footnotes omitted.)

[¶4] The court terminated the mother’s parental rights on the grounds

that the mother is unable to protect the child from jeopardy and unable to take

responsibility for the child in a time reasonably calculated to meet the child’s

needs and that termination is in the child’s best interest. See 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i), (ii) (2018). The mother timely appeals. See 22

M.R.S. § 4006 (2018); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶5] To terminate parental rights without the parent’s consent, the court

must find, by clear and convincing evidence, at least one ground of parental

unfitness and that termination of the parent’s rights is in the child’s best

interest. 22 M.R.S. § 4055(1)(B)(2)(a), (b); In re Zianna G., 2017 ME 226, ¶ 2,

174 A.3d 889. The mother challenges the sufficiency of the evidence supporting

the termination of her parental rights on the grounds that the Department

never filed a rehabilitation and reunification plan and did not offer her

sufficient services. We review the court’s factual findings of unfitness and best

interest for clear error, and we will uphold those findings if there is any

competent record evidence to support them. In re Zianna G., 2017 ME 226, ¶¶ 2,
6

6, 174 A.3d 889. We review the court’s ultimate determination of best interest

for an abuse of discretion. Id. ¶ 6.

[¶6] Pursuant to 22 M.R.S. § 4041 (2018), the Department is obligated,

with the participation of the parent, to develop a rehabilitation and

reunification plan that sets out, inter alia, the reasons the child was removed

from the home, the changes the parent must implement to eliminate jeopardy

to the child, and the services the Department will provide that must be

completed before the child may be returned to the parent’s custody. 22 M.R.S.

§ 4041(1-A)(A)(1); see In re Thomas D., 2004 ME 104, ¶¶ 23-26, 854 A.2d 195.

The rehabilitation and reunification plan is the “roadmap by which the

Department and a parent are expected to cooperatively seek to rehabilitate the

conditions that resulted in jeopardy to the child.” In re Thomas D., 2004 ME 104,

¶ 26, 854 A.2d 195.

[¶7] The Department concedes that it did not file a rehabilitation and

reunification plan with the court, contrary to the requirements of section

4041.3 Nevertheless, the court is not precluded from finding parental unfitness

3Two of the judicial review orders stated that a reunification plan had already been filed with the
court. The record contains no such plan, however, and the docket notes no such filing. At the
termination hearing, the Department caseworker testified that the Department used the same
reunification plan in this matter as the one already in place as to the two older children. The court
responded, “[J]ust as an FYI, there is no reunification plan in this file. Doesn’t mean there aren’t any
in other files.” Although the court took judicial notice of the orders entered in the prior child
7

because the Department’s compliance with section 4041 is not a factual

predicate to the termination of parental rights. See In re Child of Heather W.,

2018 ME 31, ¶ 11, 180 A.3d 661; In re Doris G., 2006 ME 142, ¶¶ 16-17,

912 A.2d 572; In re Thomas D., 2004 ME 104, ¶ 28, 854 A.2d 195. When the

parent is otherwise aware of what she needs to address to reunify with her

child, we have concluded that the lack of strict compliance with section 4041 is

relevant to a determination of parental unfitness but is not a bar to the

termination of that parent’s rights. In re Thomas D., 2004 ME 104, ¶ 28,

854 A.2d 195; see In re Child of Domenick B., 2018 ME 158, ¶ 7, 197 A.3d 1076

(“Throughout the entirety of this case, the father was on notice that addressing

his mental health concerns and remaining sober were the court’s and the

Department’s main concerns.”); In re Doris G., 2006 ME 142, ¶¶ 12, 15,

912 A.2d 572 (concluding that the jeopardy order, judicial review orders, and

the Department’s cease reunification motion sufficiently informed the parent

of the issues that needed to be addressed). “Only when the Department failed

to develop a formal reunification plan, and the parent’s rights were

nevertheless terminated for failure to comply with specific reunification

protection matters, it did not take judicial notice of the rehabilitation and reunification plan filed in
those cases.
8

obligations never communicated to that parent, have we vacated a judgment

terminating parental rights.” In re Doris G., 2006 ME 142, ¶ 17, 912 A.2d 572;

accord In re Thomas D., 2004 ME 104, ¶¶ 27-35, 42, 854 A.2d 195.

[¶8] Here, the mother was not found to be unfit based on her failure to

comply with certain specific requirements that were never communicated to

her. Indeed, the court expressly found that the mother had complied with

everything the Department required: “[The mother] is a hard worker and is

employed. She has safe and . . . stable housing and has transportation. She has

completed many DVDs for parenting education. She comes to her weekly visits

and brings snacks and the like. In short, she has done the services asked of

her. . . .”

[¶9] Rather, the mother’s unfitness was based on her continuing refusal

to acknowledge or take responsibility for the multiple instances in which her

older children were injured while in her care—and the likelihood that such

injuries would recur if the children were again in her care—as well as her

inability to bond with her child and her neglectful parenting style, none of

which was alleviated by the mother’s completion of all of the Department’s

proffered services.4

4In the agreed-to judicial review orders, the court found that the Department made reasonable
efforts to rehabilitate and reunify the family by providing “Case management service, HCI services,
9

[¶10] Moreover, the mother was on notice that these were the continuing

impediments to the reunification of her family. The jeopardy order informed

the mother that the same grounds of jeopardy found in the two prior child

protection cases were still at issue as to this child, including, as the State argues,

“a sharp focus on the injuries that her eldest children suffered while in her

care.” The jeopardy order, judicial review orders, and the order after a

summary preliminary hearing in the two prior child protection cases, as well as

a series of child abuse evaluations from 2016 and 2017, establish the

Department’s—and the court’s—longstanding emphasis on the mother’s

inability to acknowledge or protect her children from the injuries they have

sustained while in her care. The Department also relied on the rehabilitation

and reunification plans that it filed in the child protection matters as to the two

older children, and it was the mother’s parenting of the older children that

provided the bulk of the evidence regarding her unfitness to care for the child

now at issue.

[¶11] We conclude that there is sufficient record evidence to support the

court’s findings that the mother is unable to protect the child from jeopardy and

monthly contact, caseworker services, parenting classes, case management, Family Team Meetings,
Supervised visits, [and] counseling,” as well as placement support and housing assistance.
10

unable to take responsibility for the child within a time reasonably calculated

to meet the child’s needs, including the evidence that the mother is unable to

bond with her child, displays a general lack of interest in or affection for her

child, and still has not adequately addressed the multiple occasions in which

her older children sustained unexplained injuries while in her care. See

22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii). There was also competent evidence to

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

in the child’s best interest, and we discern no abuse of discretion in that best

interest determination. See In re Zianna G., 2017 ME 226, ¶¶ 2, 6, 174 A.3d 889.

Although the rehabilitation and reunification plan is the “centerpiece” of the

child protection proceeding, In re Thomas D., 2004 ME 104, ¶ 26, 854 A.2d 195,

compliance with the plan is not the final word on the ability to parent; as this

case demonstrates, a parent may comply with everything asked of her by the

Department yet remain unable to safely parent her child. See In re Skyler F.,

2017 ME 137, ¶¶ 2-3, 166 A.3d 124 (holding, notwithstanding that the parents

cared deeply for their children, had obtained suitable housing, and had

“complied superficially with most reunification requirements,” that the parents

still could not parent their children without supervision).
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The entry is:

Judgment affirmed.

Julian Richter, Esq., Richter Law, LLC, Gardiner, 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

Waterville District Court docket number PC-2017-29
FOR CLERK REFERENCE ONLY