In re Child of Troy C.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 150
Docket: Han-18-95
Submitted
On Briefs: September 26, 2018
Decided: November 13, 2018

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


IN RE CHILD OF TROY C.


PER CURIAM

[¶1] The mother and father of the child appeal from a judgment of the

District Court (Ellsworth, Roberts, J.) terminating their parental rights to their

son pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(iv) (2017).

The father contends that the court erred in its parental unfitness finding and

that he was denied due process. The mother contends that the court erred in

its determination that termination of her parental rights is in the best interest

of the child. We affirm the judgment.

I. BACKGROUND

[¶2] The following facts, which are supported by the evidence, are drawn

from the court’s judgment and the procedural record. See In re Dominyk T.,

2017 ME 222, ¶ 5, 173 A.3d 1065.

[¶3] The Department of Health and Human Services (the Department)

became involved with this family in February 2015 following reports of
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domestic violence and substance abuse. On the Department’s petition, the

court (Mallonee, J.) issued a preliminary protection order on February 20, 2015.

After the opportunity for a summary preliminary hearing, the court awarded

the father custody of the child with several conditions imposed, including that

the father participate in a substance abuse assessment and education program,

and that the father have no contact with the mother in the child’s presence.

[¶4] The court returned the child to the Department’s custody in April

2015, following the Department’s second request for a preliminary protection

order, in which the Department alleged that the child was present in the father’s

home when the mother assaulted the father.

[¶5] The Department petitioned to terminate both parents’ parental

rights on March 10, 2016. Following a hearing, the court (Roberts, J.) denied the

petition. In denying the petition, the court found that the mother, who had been

unable to provide care of the child for nine months due to substance abuse, met

all four statutory definitions of parental unfitness. See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(iv). Based on evidence that he had not attended

medical appointments and had missed several scheduled visits with the child,

the court found that the father had not made a good faith effort to rehabilitate

and reunify with the child. See 22 M.R.S. § 4041(1-A)(B) (2017). The court also
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found that the father did not understand the risk that the mother’s substance

abuse posed to the child. Nevertheless, because the court found that the

Department had not given the father “a clear indication of the steps he must

take to rehabilitate and reunify,” the court did not find that the father was unfit.

The court denied the Department’s petition with respect to both parents,

determining that it would not be in the child’s best interest to terminate the

mother’s parental rights when reunification with the father remained a

possibility.

[¶6] The court, therefore, denied the petition for termination and issued

a judicial review order clearly setting out the responsibilities of the father in

the upcoming reunification process. The court ordered that the father “shall

participate in random drug screening and abstain from use of any

non-prescribed mood altering substances; . . . [and] shall participate in an

updated substance abuse evaluation and follow all recommendations.”

Following this order, the Department sent several letters to the father

expressing concerns about positive results on drug tests.

[¶7] On June 19, 2017, the Department filed a second petition for

termination of parental rights. Following a two-day hearing, the court made
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the following findings of fact, all of which are supported by competent evidence

in the record:

[The mother’s] relationship with [the father] was marred by
domestic violence to a degree which would jeopardize [the child’s]
safety. [The mother] was unable to provide safe care for [the child]
for a period of 9 months preceding the first Termination hearing
due to substance abuse. . . . [The mother] acknowledges that she is
unable to provide for [the child] at this time. . . .

. . . .

[The father] began counseling . . . in April of 2017. . . .

. . . Unfortunately, [the father] was discharged from
[counseling] on July 19, 2017, due to repeated, unexcused
absences.

. . . He has not demonstrated an understanding of the impact
his drug usage will have on [the child].

. . . .

. . . [The father] deserves credit . . . . He has recently
purchased a new home suitable for [the child’s] care. [He] has been
responsive in counseling . . . , aside from the substance abuse issues.
He is making progress. . . .

The difficulty for the parents is one of timing. [The child] is
4 ½ years old. . . . He is smart and articulate and wants to know
where he will be living permanently. He cannot continue to wait
for his parents to do all the things necessary to set up a stable,
consistent and safe life. [The child] has established a strong bond
[in his current placement and] is very happy in [that] home. He
needs a permanent home now. This is a particularly troubling case
because it is clear to this court that [the parents] love [the child]
dearly. Despite that love, they are unable to take full responsibility
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for [the child] at this time. The Court does not believe that they will
be able to take responsibility for him within a time reasonably
calculated to meet his needs.

. . . .

Finally, the Court finds that it is in the best interest of [the
child] that the parental rights be terminated so as to allow
[adoption]. The Court has considered the parents’ proposal that a
permanency guardianship would be in [the child’s] best interest.
The Court disagrees. [The child] has been asking where he will go
permanently for some time now. He needs to have a definitive
answer to his question. A guardianship cannot give [the child] the
permanency that he needs.

Based on these findings and others, the court entered an order terminating both

parents’ parental rights, with a permanency plan of adoption. The parents

timely appealed. See M.R. App. P. 2B(c).

II. DISCUSSION

[¶8] The father challenges the sufficiency of the evidence to support the

court’s unfitness findings, and he contends that he was denied due process

because he was not notified that his use of unprescribed drugs would be

considered in making a determination regarding his parental unfitness. The

mother does not challenge the court’s findings of unfitness as to her, but she

contends that the court erred in its determination that termination of her

parental rights is in the child’s best interest. We review the court’s factual

findings related to parental unfitness and the best interest of the child for clear
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error, and we review the ultimate decision to terminate parental rights for an

abuse of discretion. See In re Child of Ronald W., 2018 ME 107, ¶ 6, 190 A.3d

1029.

A. Termination of the Father’s Parental Rights

[¶9] The father contends that the court improperly overlooked evidence

in the record demonstrating that he made significant steps toward

reunification. Contrary to the father’s contention, however, the court expressly

acknowledged the father’s progress. Determinations regarding the weight and

credibility to be assigned to evidence are squarely within the court’s province

as fact-finder. See In re Cameron B., 2017 ME 18, ¶ 10, 154 A.3d 1199. There

was competent evidence to support the court’s findings of unfitness as to the

father.1

[¶10] The father also argues that the termination order should be

vacated because he was denied due process of law when the court based its

findings of unfitness, in part, on his unprescribed use of prescription drugs as

stimulants—a factor that was not listed in the jeopardy order.2

1 Although she does not challenge the findings, there was also competent evidence in the record

to support the court’s findings of unfitness with respect to the mother.
2 Although this was clearly a topic of focus during the two-day hearing, the father did not object

at any time to consideration of his drug use.
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[¶11] As a factual matter, the father is incorrect in his assertion that he

was not notified that he was expected to abstain from drug use. Both the court

and the Department expressly notified the father that his use of substances

needed to be addressed as part of his rehabilitation and reunification, and the

Department’s second petition for termination of parental rights identifies the

father’s drug usage and missed tests as an issue.3 Moreover, we have never held

that the bases for a finding of parental unfitness must be limited to the issues

expressly identified in a jeopardy order. Cf. In re Child of James R., 2018 ME 50,

¶ 19, 182 A.3d 1252 (“[T]he basis for a termination determination is not

artificially limited to circumstances, frozen in time, that existed at some earlier

date.”). The court therefore did not err in considering evidence of the father’s

drug usage.

B. Termination of the Mother’s Parental Rights

[¶12] The mother’s sole contention is that the court abused its discretion

when it decided to terminate her parental rights instead of ordering a

permanency guardianship. She contends that, given that the child was residing

3 Moreover, the court found, based on competent evidence, that the father had been inconsistent

in his representations regarding his own substance use, rendering it difficult for the court or the
Department to understand the scope of the father’s challenges.
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with the mother’s relatives and the mother was no longer incarcerated and had

attained sobriety, a permanency guardianship was in the child’s best interest.

[¶13] “In determining the appropriate permanency plan, it is the policy

in this State that permanency plans for children, who are the subject of

protection proceedings, be implemented so that children will have stability and

certainty.” In re David W., 2010 ME 119, ¶ 8, 8 A.3d 673 (quotation marks

omitted); see also 22 M.R.S. § 4038-C (2017). The court here found that this

child has clearly expressed a need for the permanency that would be provided

by an adoption. The court did not abuse its discretion in its determination that

termination of the mother’s parental rights, with a permanency plan of

adoption, is in the child’s best interest.

The entry is:

Judgment affirmed.



Christopher J. Whalley, Esq., Ellsworth, for appellant father

Jeffrey C. Toothaker, Esq., Ellsworth, for appellant mother

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


Ellsworth District Court docket number PC-2015-10
FOR CLERK REFERENCE ONLY