MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	136

Docket: Ken-18-109

Submitted

On	Briefs: September	26,	2018

Decided: October	4,	2018

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

IN	RE	CHILDREN	OF	BENJAMIN	D.

PER	CURIAM

[¶1]		Benjamin	D.	appeals	from a	judgment	of	the	District	Court	(Augusta,

Fowle,	J.)	terminating	his	parental	rights	to	his	two	children.

1		He challenges	the	

sufficiency	of	the	evidence	supporting	the	court’s	finding	of	parental	unfitness	

and	 the	 court’s	 discretionary	 determination	 that	 termination	 is	 in	 the	 best	

interests of	the	children.		See 22	M.R.S. § 4055(1)(B)(2) (2017).		Because	the	

evidence	 supports	 the	 court’s	 findings	 and	 discretionary	 determinations,	we	

affirm	the	judgment.

[¶2] Based	on	competent	evidence	in	the	record,	the	court	found	by	clear	

and	convincing	evidence	 that	 the	father (1)	is	unable	 to	protect	 the	children

from	jeopardy,	and	 these	circumstances	are	unlikely	 to	change	within	a	 time	

 1		On	 June	27,	2017,	 the	District	Court	 (Augusta,	Fowle,	J.)	entered	a	judgment	 terminating	 the	

mother’s	 parental	 rights	 after	 the	 mother	 consented	 in	 writing	 to	 the	 termination	 of	 her	 rights.		

See 22 M.R.S.	§	4055(1)(A)(1)(a),	B(1)	(2017).		The	mother	does	not	appeal	from	that	judgment.
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that is	reasonably	calculated	to	meet	the	children’s	needs	and	(2)	is	unwilling	

and	 unable	 to	 take	 responsibility	 for	 the	 children within	 a	 time	 that is	

reasonably	 calculated	 to	 meet	 the	 children’s	 needs.	 	 See 22	 M.R.S.	

§ 4055(1)(B)(2)(b)(i)-(ii) (2017).		The	court	also	found	that	termination	of	the	

father’s	 parental	 rights	 is	 in	 the	 children’s	 best	 interests.	 	 See	 22	 M.R.S.	

§ 4055(1)(B)(2)(a).		

[¶3]	 We	review	factual	findings	supporting the	unfitness	determination	

for	clear	error	and	apply	the	same	standard	to	the	factual	findings	supporting	

the	 best	 interest	 determination.	 	 See In	 re	 Child	 of	 James	 R.,	 2018	 ME	 50,	

¶¶ 11, 14,	 182	 A.3d	 1252.	 	 We	 review	 the	 court’s	 ultimate	 conclusion	 that

termination	is	 in	 the	 children’s	 best	interest	 for	 an	 abuse	 of	 discretion.	 	See	

In re Anastasia	M., 2017	ME	213,	¶	2,	172 A.3d	922.		

[¶4]		The	court	based	its	determinations	on	the	following	findings	of	fact:

The	Department	of	Health	and	Human	Services	(hereinafter	

DHHS)	has	been	involved	with	[the	father]	since	at	least	2009.	.	.	.	

[T]he	Department	 became	 involved	 again,	 following	 the	 birth	 of	

[his	 youngest	 daughter],	 [in	 June	 2016].	 She	 was	 born	 drug	

affected. .	.	. Because	of	other	reports	of	drug	use	by	[the	mother	

and	 the	 father],	 and	 domestic	 violence	 between	 them,	 the	

Department met with	the	father	at	his	residence.	.	.	.	 This	residence	

was	 actually	 a	 bedroom	 in	 [a	 friend’s] apartment,	 and	 it	 was	

cluttered.	On	June	20,	2016,	the	mother	was	arrested	for	assaulting	

the	 father.	 .	 .	 .	 On	 this	 same	 date, harmful	 chemicals	 were	

discovered	 in	 the	 father’s	 residence,	 and	 he	 was	 ultimately	

arrested,	 charged	 and	 convicted	 of	 Operation	 of	 a	
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Methamphetamine	 Lab. [The	 oldest	 daughter]	 was	 found	 to	 be	

filthy	and	was	placed	in	Interim	care	out	of	concern	that	she	may	

have	 been	 present	 while	 the	 Lab	 was	 in	 operation.	 	 The	 father	

denied	at	the	hearing	that	this	was	the	case,	but	did	acknowledge	

that	the	Lab	was	located	at	his	stated	residence.	.	.	.		

[The	father’s] treatment	with	[a	treatment	provider] started	

in	 August	 2017, and	 lasted	 until	 he	 was	 terminated	 from	 the	

program,	 for	 hanging	 up	 on	 treatment	 personnel	 who	 were	

attempting	to	conduct	a	pill	count	on	December	28,	2017.	.	.	. It	is	

also noted	 that	 the	 father	made	no	 further	effort	 to	get	back	into	

counseling,	and	was	not	in	counseling	at	the	time	of	the	hearing on	

January	24,	2018.	

[The	 father] tested	 positive	 for	 cocaine	 in	 the	 fall	 of	 2017,	

which	he	denies. In	2012,	he	was	convicted	 of	Assault,	Criminal	

Trespass	and	Theft.	 He	denied	the	assault	during	his	testimony.		In	

2009, he	was	convicted	of	Sexual	Abuse	of	a	minor.	.	.	.	 His	refusal	

to	accept	 full	responsibility	 for	his	actions,	has	more	significance	

with	 the	court,	than	 the	convictions	 themselves.		He	has	 fathered	

six	children	and	does	not	provide	care	for	any	of	them.	 The	record	

reflects	that	he	previously	discontinued	treatment	in	November	of	

2016,	 while	 he	 was	 waiting	 for	 the	 resolution	 of	 his	 charge	 for	

Operating	a	Methamphetamine	Lab.	 Similarly,	his	denial	that	the	

children	were	anywhere	near	the	methamphetamine	lab	does	not	

appear	to	ring	true. The	lab	was	operated at	[his	residence]	during	

the	 spring	 of	2016.		The	 record	 reflects	 that	during	this	 time	 the	

children	were	present	upon	those	premises.		

Of	additional	concern	 to	 the	court	is	 the	 father’s	continued

relationship	with	[the	mother].	.	.	.	 This	concerns	the	court	greatly,	

with	respect	to	whether	he	is	putting	the	needs	of	his	children first,	

as	he	also	acknowledged	that	[the	mother]	is	not	good	for	him	or	

the	children.		It	should	be	noted	that	[the	mother]	consented	to	a	

Termination	of	her	parental	rights	on	June	27,	2017.		[The	father]	

has	 alternatively	 stated	 that	 his	 relationship	 with	 [the	 mother]	

ended	fourteen	months	ago,	or	two	months	ago,	and	it	is	clear	that	

his	association	with	her	continued	until	the	hearing	in	January.			
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.	.	.	.	

[The	father]	has	engaged	in	counseling	and	treatment	with	[a	

treatment	provider] for	a	sustained	period	of	 five	months	before	

they	 terminated	 him	 from	 treatment.	 	 A	 cocaine	 relapse	was	 the	

significant	blemish	during	this	time	period.		The	court	is	concerned	

about	[the	father’s] termination	from	treatment.	.	.	.	 His	failure	to	

follow	up	with	other	 treatment	is	also	of	concern. His	continued	

association	 with	 [the	 mother] at	 a	 time	 when	 all	 of	 his	 efforts	

should	have	been	directed	toward	reunification	with	his	children	

may	be	the	biggest	concern	of	all.

.	.	.	.	

In	 the	 present	 case, [the	 oldest	 child]	 was	 born	 on	

May 5, 2014,	and	 [the	 youngest	child]	was	born	 on	 June	6,	 2016.

The	 children	 have	 been	 out	 of	 their	 parent’s custody	 since	

June 20, 2016.	 .	 .	 .	 In	 the	case	 of	 [the	 youngest	child], nearly	her	

entire	 life	 has	 been	 spent	 in	the	 care	 and	 custody	 of	 [her	 foster	

parents].		The	same	is	the	case	with	[the	oldest	child]	since	June	of	

2016.	 Both	children	have	been	living	with	the	[foster	parents]	for	

well	over	one	and	a	half	years.		The	 father	is	not	in	a	position	 to	

“soon	secure	full-time	parenting,”	and	his	future	prospects	to	do	so,	

are	at	best	uncertain,	and	a	long	time	in	the	future.			

The	court	concludes	by	clear	and	convincing	evidence	 that	

[the	 father]	 is	 unable	 to	 protect	 the	 children from	 jeopardy	 and	

these	 circumstances	 are	 unlikely	 to	 change	within	 a	 time	 period	

which	is	reasonably	calculated	to	meet	the	children’s	needs. The	

father	has	simply	not	made	sufficient	progress	with	his	counseling	

and	treatment,	nor	has	he	shown	a	demonstrated	commitment	to	

follow	 through	 on	 this. He	 is	 unemployed,	 without	 suitable	

housing,	 and	 has	 a	 difficult	 time	 accepting	 responsibility	 for	 his	

actions.	 In	addition,	his	continued	association	with	 [the	mother],	

when	 he	 acknowledges	 that	 this	 is	 bad	 for	 both	 him	 and	 the	

children, causes	 this	 court	 to	 conclude	 that	 he	 is	 not	 ready	 to	

assume	 full	 time	 parenting	 responsibilities	 nor	is	 he	likely	 to	 be	
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ready	in	 the	 short	 to	medium	 term,	 and	 certainly	 not	within	the	

three months	 proposed	 by	 [the	 father].	 Similarly,	 [the	 father]	is	

unwilling	or	unable	to	take	responsibility	for	the	children	within	a	

time	which	is	reasonably	calculated	to	meet	the	children’s	needs.

[¶5]	 Contrary	 to	 the	 father’s	contentions,	given	 these	 findings	and	 the	

court’s	other	specific	findings	of	fact,	there	is	competent	evidence	in	the	record	

to	support	the	trial	court’s	conclusion	that	the	father (1)is unable	to	protect	his	

children	from	jeopardy	and	these	circumstances	are	unlikely to	change	within	

a	 time	 period	 that is	 reasonably	 calculated	 to	meet	 the	 children’s needs and	

(2) is	unwilling	or	unable	to	take	responsibility	for	the	children	within	a	time	

that is	 reasonably	 calculated	 to	 meet	 the	 children’s	 needs. See

22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii); In	 re	 Thomas	 D.,	 2004	 ME	 104,	 ¶	 21,	

854 A.2d	195. Additionally,	 the	evidence	 supports	 the	court’s	determination	

that	termination	of	the	father’s	parental	rights	is	in	the	children’s	best	interests.

See	22 M.R.S.	§	4055(1)(B)(2)(a); In	re	A.H.,	2013 ME 85,	¶	16,	77	A.3d	1012.		

The	 court	 did	 not	 err in	 finding, or	 abuse	 its	 discretion	 in	 its	 ultimate	

conclusion, that	 the	 termination	 of	 the	 father’s	 parental	 rights	 was	 in	 the	

children’s best	interests.		See id.

The	entry	is:

Judgment affirmed.
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Aaron	B.	Rowden,	Esq.,	Waterville,	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-2016-47

FOR	CLERK	REFERENCE	ONLY