In re Child of Shem A.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 65
Docket: Som-19-477
Submitted
On Briefs: May 4, 2020
Decided: May 12, 2020

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

IN RE CHILDREN OF SHEM A.

PER CURIAM

[¶1] Shem A. and the mother of six children each appeal from a judgment

of the District Court (Skowhegan, Benson, J.) terminating their parental rights

to their children. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2020). Both

parents argue that there is insufficient evidence to support the court’s findings,

by clear and convincing evidence, of parental unfitness. The father additionally

challenges the sufficiency of the evidence to support the court’s determination

that termination of his parental rights is in the best interests of the children.

We affirm the judgment.

I. BACKGROUND

[¶2] In July 2018, the Department of Health and Human Services filed a

petition for a child protection order and preliminary protection order against

both parents as to their six children, who then ranged from two to twelve years

old. See 22 M.R.S. §§ 4032, 4034(1) (2020). The Department alleged that it had
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received reports of—and that individual Department employees had

witnessed—severe neglect; a chronic lack of supervision; and unsanitary living

conditions, such as rotting food and garbage scattered around the home, that

placed the children at risk of serious harm. The Department further alleged

that the children had previously been removed from the parents’ custody in

Illinois and Missouri for similar reasons. The court (Dow, J.) entered a

preliminary protection order the same day, placing the children in the

Department’s custody. 22 M.R.S. § 4034(2) (2020). Both parents waived their

opportunity for a summary preliminary hearing. See 22 M.R.S. § 4034(4)

(2020).

[¶3] In October 2018, the court (Benson, J.) entered an agreed-to

jeopardy order, see 22 M.R.S. § 4035 (2020), based on the parents’ “inability

and unwillingness to provide adequate supervision to protect [the children]

from threats of serious harm.” The court’s jeopardy order noted, among other

things, that “[a]ll the children have been found to be chronically unsupervised

and [the three younger children] have been found alone in dangerous places

on multiple occasions”—including “playing in the middle of the busy main

road”—and that “[a]t the time of removal, the family home was extremely dirty
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and unsafe.” In April 2019, the Department petitioned to terminate both

parents’ rights. 22 M.R.S. § 4052 (2020).

[¶4] The court held a three-day contested hearing on the termination

petition in July and August 2019. By order dated October 28, 2019, the court

made the following findings of fact, which are supported by competent

evidence in the record, by clear and convincing evidence. See 22 M.R.S.

§ 4055(1)(B)(2) (2020); In re Children of Benjamin W., 2019 ME 147, ¶ 5, 216

A.3d 901.

[T]he mother either does not understand the impact [of] the
horrific living conditions of [the family’s] home in multiple states
resulting in [the children’s] entry into foster care in three different
states or refuses to acknowledge and address the problem. The
mother’s testimony highlights her complete lack of awareness of
her children’s many needs. . . .

. . . [T]he father lacks any accountability, understanding or
willingness to address the identified issues, . . . continues to fail to
make necessary behavioral changes to work towards reunification,
and . . . is completely oblivious to the many needs of his own
children because of his failures.

....

. . . The parents failed to address the many safety concerns
inside the home and spent a great deal of this case justifying the
condition at the time of removal and . . . building a wholly
ineffective 3-foot fence meant to prevent the children from
escaping unsupervised. . . .

....
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The Department’s repeated efforts to engage either parent in
reunification and rehabilitation services have been met with
resistance and delay on the [part] of the parents. . . . [D]uring the
13 month period that led up to the final day of [the termination]
hearing, neither parent made any meaningful attempt to engage in
the services offered by the Department. The Court finds the
parents’ asserted commitment disingenuous . . . .

....

. . . After more than a year in foster care in the State of Maine,
[and the parents’] minimal engagement in services with no
measurable amount of progress towards alleviating the chronic
issues of jeopardy found by this Court, the clock has run out and it
is time for the children to have the permanency they deserve.

[¶5] Based on these findings, the court concluded that (1) both parents

are unable to protect the children from jeopardy and those circumstances are

unlikely to change within a time reasonably calculated to meet the children’s

needs, (2) both parents have been unable to take responsibility for the children

within a time reasonably calculated to meet their needs, (3) both parents have

failed to make good faith efforts to rehabilitate and reunify with the children,

and (4) termination of parental rights is in the best interests of the children.

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

[¶6] The parents each timely appeal. See 22 M.R.S. § 4006 (2020);

M.R. App. P. 2B(c)(1), 2C(c).
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II. DISCUSSION

A. Unfitness Findings

[¶7] Notwithstanding both parents’ attempts to characterize their

arguments as issues of due process and equal protection, they actually

challenge the sufficiency of the evidence to support the court’s findings of

parental unfitness pursuant to 22 M.R.S. § 4055(1)(B)(2)(b).1 “We review the

court’s factual findings of parental unfitness . . . for clear error . . . .” In re Child

of Christine M., 2018 ME 133, ¶ 6, 194 A.3d 390. “When the burden of proof at

trial is clear and convincing evidence, our review is to determine whether the

fact-finder could reasonably have been persuaded that the required findings

were proved to be highly probable.” In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260

(quotation marks omitted).

[¶8] Contrary to the parents’ contentions, the court’s thorough factual

findings are amply supported by the evidence. On this record, it was entirely

reasonable for the court to credit the mental health evaluator’s statements that

the mother’s “responses to the current child protective case [were] laden with

1We reject the parents’ suggestions that the court improperly adopted the mental health
evaluator’s conclusions and thereby violated their due process rights. The court’s written decision
evinces a thorough and rigorous application of its independent judgment to the entire body of
evidence before it; indeed, the court went so far as to distinguish pointedly between the evaluator’s
statements and the court’s own factual conclusions after hearing the parents’ testimony. See In re
Marpheen C., 2002 ME 170, ¶¶ 5-7, 812 A.2d 972.
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deflection and distortion of facts as to the circumstances of . . . neglect and lack

of supervision” and that the father “does not acknowledge [that he or the

mother have] failed to protect or supervise their children safely” and “abdicates

his parental responsibilities to [the mother or the] older children.” It was

similarly reasonable for the court to reject the parents’ counselor’s competing

suggestion that, in the court’s words, “the biggest problem the parents grappled

with was not having [the] children in their care.” The court also had before it

the guardian ad litem’s (GAL) testimony and several reports, which included

statements that the parents “still do not seem to recognize that their actions

have resulted in extreme hardship for their children,” and it heard testimony

from the GAL in a previous child protective proceeding in Illinois regarding the

parents’ chronic inability or unwillingness to make changes to provide the

children with a safe environment.

[¶9] In sum, the court did not err in finding the mother and father unfit.

See In re Child of Christine M., 2018 ME 133, ¶ 6, 194 A.3d 390; In re M.B., 2013

ME 46, ¶ 37, 65 A.3d 1260.

B. Best Interests of the Children

[¶10] The father additionally argues that the court erred in determining

that termination of his parental rights is in the children’s best interests. “We
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review the court’s factual findings related to [a] child’s best interest for clear

error, and its ultimate conclusion regarding the child’s best interest for an

abuse of discretion . . . .” In re Children of Christopher S., 2019 ME 31, ¶ 7, 203

A.3d 808 (quotation marks omitted).

[¶11] Contrary to the father’s contentions, the court was presented with

evidence regarding the best interest of each individual child, including

testimony from the four older children’s counselors and the GAL’s reports that

the children are “comfortable and well supported” in their current placement

with a relative. See 22 M.R.S. § 4055(2) (2020). The court’s best interests

findings were also supported by the evidence bearing on the father’s parental

unfitness, as discussed above. See In re Children of Benjamin W., 2019 ME 147,

¶ 15, 216 A.3d 901. The court therefore did not abuse its discretion in

determining that termination of the father’s parental rights is in the children’s

best interests. See id. ¶ 14.

The entry is:

Judgment affirmed.
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Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A.,
Biddeford, for appellant Father

Ezra A.R. Willey, Esq., Willey Law Offices, Bangor, 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

Skowhegan District Court docket number PC-2018-51
FOR CLERK REFERENCE ONLY