In re Aurora M. et al. — 2018 ME 4

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2018 ME 4
Docket: 	Ken-17-308
Submitted
On Briefs: January 11, 2018
Decided: 	January 23, 2018
Panel: 	ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE AURORA M. et al.
PER CURIAM
[¶1] 	The father of Aurora M. and Juelz M. appeals from a judgment of
the District Court (Augusta, E. Walker, J.) terminating his parental rights to the
children pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(iv)
(2017).1 He contends that the guardian ad litem failed to satisfy his statutory
obligations to conduct an in-person interview with the father and to notify the
father’s 	attorney 	that 	the 	father 	was 	incarcerated 	before 	the 	cease
reunification order went into effect.2 	See 4 M.R.S. § 1554 (2017);3 22 M.R.S.
§ 4005(1) (2017). We disagree and affirm the judgment.
1 The District Court (Augusta, J. French, J.) entered a judgment terminating the mother’s parental
rights to the children after the mother consented to termination. See 22 M.R.S. § 4055(1)(A)(1)(a),
(B)(1) (2017). The mother does not appeal from that judgment.
2 	Counsel for the father filed an appellate brief containing only a procedural history and
statement of facts, accompanied by a motion for enlargement of time to allow the father to
personally file a supplemental brief. Counsel stated in his motion that he was unable to find any
arguable issues on appeal. 	We granted the motion to allow the father to personally file a brief,
which he did. 	See In re M.C., 2014 ME 128, ¶¶ 6-7, 104 A.3d 139; In re William P., 2001 ME 25,
765 A.2d 76.

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I. CASE HISTORY
[¶2] 	The court found by clear and convincing evidence the following
facts, which are supported by competent evidence in the record. 	See In re
Hannah S., 2016 ME 32, ¶ 3, 133 A.3d 590.
[¶3] 	The father was the primary caregiver of the children before the
Department took custody of the children in January 2016. 	He has a lengthy
history of illegal drug use. 	When the children were in his care, he injected
heroin at least four times a day and spent money on drugs instead of on basic
necessities for the children. 	The Department offered to provide the father
with 	a 	substance 	abuse 	evaluation 	and 	counseling, 	but 	he 	refused 	to
participate, stating that he needed more serious in-patient treatment. He also
blames his inability to pay even minimal fees and his lack of transportation for
his inability to attend counseling.
[¶4] 	The father has a lengthy criminal history and is currently in a
maximum-security facility after assaulting another inmate with a padlock
while in a minimum-security facility. 	He is expected to be released sometime
during the summer of 2018. 	The father has a history of domestic violence
3 	The Legislature repealed the sunset provision for this statute. 	See P.L. 2017, ch. 138, § 1
(emergency effective June 7, 2017) (repealing 4 M.R.S. § 1558, which had provided, “This chapter is
repealed October 1, 2017.”).

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against the children’s mother, with many of the incidents being witnessed by
both children. 	This has caused significant psychological damage to the
children, who openly fear him; Aurora suffers from severe post-traumatic
stress disorder as a result of witnessing the violence. 	The father shows no
understanding of the serious damage his abuse and neglect have caused his
children and has no realistic plan for caring for them in the future.
[¶5] 	The father has done almost nothing to reunify with his two
children. 	He has had minimal contact with his attorney, his probation officer,
the Department, and the court since the children were removed and has never
inquired about visitation or even how the children are doing. 	The father has
failed to appear for court, and he has failed to notify the Department of his
whereabouts and to notify his probation officer of address changes. The court
stated that it “understands that recovery is not a sprint, but is, instead, a
marathon. 	The problem is that Father still hasn’t even approached the
starting line in this race.” 	The children need a permanent home now and
cannot wait for the father to get his life in order.

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II. LEGAL ANALYSIS
[¶6] 	“We review the court’s factual findings for clear error, evaluated
pursuant to the clear and convincing evidence standard of proof.” 	In re
Hannah S., 2016 ME 32, ¶ 7, 133 A.3d 590.
A. 	Interview with Parent
[¶7] 	The father asserts that the guardian ad litem failed to conduct a
face-to-face interview with him to discuss the children’s needs 	and 	the
reunification plan, which the father alleges was a violation of the guardian
ad litem’s statutory obligations. 	The father does not assert that he was
prejudiced by the alleged failure.
[¶8] 	In child protection matters, the guardian ad litem, acting as the
court’s agent, “shall act in pursuit of the best interests of the child[ren].”
22 M.R.S. § 4005(1)(B), (G). 	To fulfill this duty, the guardian ad litem must
conduct an investigation “to ascertain the facts.” 	Id. § 4005(1)(B). 	The
investigation must include, “when possible and appropriate,” an interview
with the parents. 	Id. § 4005(1)(B)(5). 	Section 4005 does not specify the
manner 	or 	method 	by 	which 	any 	interview 	with 	the 	parents 	is 	to 	be
conducted. 	Cf. id. § 4005(1)(B) (requiring the guardian ad litem to have
face-to-face contact with the children in the children’s home within seven

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days of appointment by the court and at least once every three months
thereafter or on a schedule established by the court).
[¶9] 	The court did not, and was not required to, address the extent of
the guardian ad litem’s efforts to interview the father. 	The court found,
however, that the father did not maintain contact with his attorney, his
probation officer, the Department, or the court; that the father failed to notify
the 	Department 	of 	his 	whereabouts 	and 	changed 	his 	address 	without
notifying his probation officer; and that the father failed to appear for court
proceedings. 	Furthermore, the court found that the father had a history of
incarceration and that, at the time of the termination hearing, the father was
serving a nineteen-month sentence for a probation violation and had been
transferred from a minimum-security facility to a maximum-security facility
after assaulting another inmate. 	Under these circumstances, an interview
with the father may not have been “possible and appropriate.”4 Id.
[¶10] 	Moreover, the guardian ad litem’s compliance with section 4005
does not constitute a discrete element requiring proof in a parental rights
termination hearing. 	Cf. In re Hannah S., 2016 ME 32, ¶ 12, 133 A.3d 590
(holding that the Department’s satisfaction of its statutory obligations is not a
4 The court found, based on competent evidence in the record, that the father and the guardian
ad litem both participated in a September 2016 family team meeting.

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discrete element of proof that must be met for termination to occur); In re
Doris G., 2006 ME 142, ¶ 17, 912 A.2d 572 (same).
B. 	Notification of Incarceration
[¶11] 	The father also contends, based on his personal belief, that the
guardian ad litem was aware that the father had become incarcerated in
June 2016 while the order to cease reunification efforts was pending and that
the guardian ad litem failed to notify the father’s counsel of the father’s
incarceration in violation of his duties as a guardian ad litem. 	The father
contends that if the guardian ad litem had notified his attorney, then his
attorney would have contacted him in jail, and his attorney would have
contacted the Department to prevent the cease reunification order from going
into effect. The father’s argument fails for several reasons.
[¶12] 	First, 	the 	father’s 	assertion 	is 	based 	on 	an 	erroneous
understanding of the historical facts. 	On May 16, 2016, the father failed to
appear for the jeopardy hearing after having been provided due notice. 	The
court (Fowle, J.) held a contested hearing in the father’s absence and entered
an order finding jeopardy as to the father. 	The court additionally found that
the father’s compliance with the case plan had been “unacceptable” and that
the father had failed to meet with the Department. The court issued an order:

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“[The father] shall have thirty days to engage in reunification services through
the Department. If he fails to do so, a cease reunification order will enter on
6/16/16.”
[¶13] 	On June 8, 2016, the father was arrested for unlawful possession
of scheduled drugs (Class C), 17-A M.R.S. § 1107-A(1)(B)(1) (2017). 	He was
not released on bail until June 20, by which time the cease reunification order
had been entered. 	Three days after the father was released on bail, on
June 23, 	he 	was 	arrested 	for 	violation of condition 	of release (Class E),
15 M.R.S. § 1092(1)(A) (2017), and was held without bail. 	On June 30, the
guardian 	ad 	litem 	from 	this 	child 	protection 	matter 	was 	appointed 	to
represent the father in the criminal matter. 	Recognizing the conflict of
interest, the guardian ad litem immediately and appropriately filed a motion
to withdraw in the criminal matter, and another attorney was appointed to
handle the father’s criminal case. 	Thus, the guardian ad litem was not aware
of the father’s incarceration status during the thirty-day period when the
cease reunification order was pending, and, therefore, could not have known
to notify the father’s attorney, assuming arguendo that he had an obligation to
make such a notification. 	Contrary to the father’s assertion, the evidence in

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the record establishes that the guardian ad litem acted in good faith in
carrying out his duties.
[¶14] Second, although the guardian ad litem has a statutory duty to act
in 	the 	best 	interests 	of 	the 	children—which 	includes 	effectively
communicating 	with 	all 	parties, 	maintaining 	the 	highest 	standards 	of
professionalism, 	and 	recognizing 	that 	timely 	resolution 	serves 	the 	best
interests of the children and their need for stability—sections 1554 and 4005
do not impose an express obligation on a guardian ad litem to immediately
notify a parent’s counsel in a child protection matter that the parent has
become incarcerated.
[¶15] Third, there is no evidence in the record indicating that the father
was prevented from contacting, or was unable to contact, his attorney or the
Department on his own. 	There is ample record evidence, however, that the
father did not maintain contact with the other parties involved in these
proceedings and did not make his whereabouts known when he was not
incarcerated. 	Furthermore, the court (E. Walker, J.) found that the father
“ha[d] done virtually nothing to reunify with his two children.” Given that the
father failed to participate in services from the 	time the case began in
January 2016 to the termination of his parental rights in June 2017, we are not

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persuaded by the father’s argument that, but for the guardian ad litem’s
alleged failure to notify his attorney of his incarceration status in June 2016,
he would have contacted the Department to engage in reunification services.
C. 	Sufficiency of the Evidence
[¶16] 	Further, although not challenged by the father on appeal, the
court’s findings that father is unfit and that termination is in the children’s
best interests does not reflect any error or abuse of discretion. 	See 22 M.R.S.
§ 4055(1)(B)(2); In re Aubrey R., 2017 ME 37, ¶ 8, 157 A.3d 212.
The entry is:
Judgment affirmed.
Douglas F. Jennings, Esq., Walker & Jennings, PA, Hallowell, and the father
personally, 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
Augusta District Court docket number PC-2016-01
FOR CLERK REFERENCE ONLY