MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 62 Docket: Cum

- 18

- 422 Submitted

On	B riefs : April 9 ,	2019 Decided: April	30,	2019
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY , JJ.

IN	RE	CHILDREN	OF	ANTHONY	L.

PER	CURIAM [¶1] Anthony	L.	appeals	from	a	judgment	of	the	District	Court	(Portland,
Woodman , J. )	terminating	his	parental	rights	to	his children. The	father argues that	 the	 court	 erred by finding	 that	 he	 is	 unfit	 as	 a	 parent	 and	 abused	 its
discretion by determining	that	termination	of	his	parental	rights	is	in	the	best
interests	of	the	children

. We affirm	the	judgment.
I.		BACKGROUND [¶ 2 ] The court	 found	 the following	 facts , which	 are	 supported	 by competent	evidence	in	the	record. In	January	2018,	the	father	shot	and	killed
the	mother	in	the	kitchen	of	their family home.		The	children ,	ages	sixteen	and eleven, witness ed their	mother’s	body	and	 their	 father	 standing	in	 the	 room with	a	gun	on	the	floor .		The	children fled	the	house	and	the	oldest	child	called
9

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- 1.		The	next	day,	the	Department	of	Health	and	Human	Services	filed	a	child protection	 petition	 and a request	 f or	 a	 preliminary	 protecti on order. See2 22 M.R.S.	§§ 4032 , 4034 (2018).		The	court	( Eggert , J. )	granted	the	preliminary protecti on order,	placing	the	children	in	the	Department’s	custody. The	father
was	later	arrested	and	remains	incarcerated	while	awaiti ng	trial	on	a	charge	of murdering	the	mother. [¶ 3 ] A	 contested	 jeopardy	 hearing	 was	 held	 in	 May	 2018,	 following
which	the	court issued	an	order	finding	jeopardy	a s	to the	father

. See 22	M.R.S. §	4035	(2018). The	jeopardy	order	included finding s that “the	father	killed	the
mother” and that	“[t]he	evidence	presented	show[ed]	the	horrific	psychological impact	on	the	[children],

.	.	. constitut[ing] a	heinous	and	abhorrent	action	by their	 father,	an	aggravating	 factor.” See 22	M.R.S.	 § 4002(1

- B)(A)(1) (2018). Because	 the	 court	 found	 the	 existence	 of	 an	 aggravating	 factor, the	 court
relieved the	 Department of	 its	 responsibility	 to	 provide	 reunification	 and rehabilitation	services	to	the	father. See 22	M.R.S.	§	4036(1)(G

- 2) (2018). [¶ 4 ]		The	Departm ent	petitioned	to	terminate	the	father’s	parental	rights in	 June	 2018. See 22	M.R.S.	 §	 4052 (2018).		 The	court	 ( Woodman,	J. )	 held	a single

- day	hearing	in	September	2018, during which	it	took	judicial	notice	of	all prior	court	orders	in	the	case	and,	by	st ipulation	of	the	parties,	took “ judicial
notice ” of	 two	 reports	 of	 the	 guardian	 ad	litem. 1 Following	 the	 hearing,	 the

1 Guardian ad	litem	reports	are	not	properly	the	subject	of	judicial	notice	unless	the	reports	were previously	admitted	by	the same judge in	an	earlier	proceeding , see	In	re Caleb	M. ,	20 17 ME 66 ,	¶ ¶ 20,3 court	issued	a	judgment	terminating	the	father’s	parental	rights	to	the	children.
See 22 M.R.S.	§	4055(1)(B)(2)(a),	(b)(i),	(1

- A)(A) (2018). [¶ 5 ] The	 court’s ultimate	 decision	 to	 terminate	 the	 father’s	 parental rights	was	 based	 on	 the following	 findings	 of	 fact ,	which	 the	 court	 found	 by clear	and	convincing	evidence	and	which	are	supported	by	the	record : [The	father]	is	unable	to	protect	the

.	.	. children	from	jeopardy	and these	 circumstances	 are	 unlikely	 to	 change	 within	 a	 time	 that	 is reasonably	calculated	to	meet	the	children’s	needs.		Specifically,	the father	is	in	jail	awaiting	trial	on	charges	of	mu rder	of	the	mother	of the	minor	children. The	facts	as	described	by	Judge	Eggert	in	the [jeopardy ] [ o ] rder	 issued	 on	 May	 24,	 2018	 are	 grotesque. On January	7,	2018,	the	children	heard	a	noise	in	the	home	and	ran	to the	kitchen. They	saw	their	mother	on the	floor,	dead,	covered	in blood. They	 also	 saw	 a	 gun	 on	 the	 floor,	 with	 only	 the	 father standing	 there. [The	 older	 child]	 escaped	 the	 home	 with	 [the younger	 child] without	 any	 shoes	 or	 jackets	 even	 though	 this happened	in	the	middle	of	winter.		They	ra n	to	a	neighbor’s	home and	were	able	to	call	9

- 1

- 1.		Father	had	previously	made	threats	to kill	mother	which	the	[children]	heard.	.	.	. [T]he	court	found	by	a preponderance	 of	 the	 evidence	 that	 father	 killed	 mother. The [c]ourt	concluded	that	the	act	ha d	a	horrific	psychological	impact on	 the	 boys,	 and	 constitutes	 a	 heinous	 and	 abhorrent	 action	 by their	father	which	is	an	aggravating	factor

. Based	on	this	finding,

23,	159	A.3d	345, and	the	concept	of judicial	notice “should	not	be	referenced	except	in	circumstances that	 truly	constitute	judicial	notice.” Cabral	v.	 L’Heureux ,	2017	ME	50,	¶	11	&	n.4, 157	A.3d	795

. However,	because	the	court	may admit the	evidence	by	agreement	of	the	parties, id. , the	court	did not	commit	error	by	admitting	the	guardian	ad	litem’s	report s . Although	the father makes other	arguments related to	the	guardian	ad	litem	repor ts ,	these	issues were	not	raised	prior	to	this	appeal.		Because	there	is	no	obvious	error	in	the	court’s	consideration of	 the	 reports,	 we	 deem	 the	 father’s	 other	 arguments	 waived ,	 and,	 in	 any	 event, the	 father’s arguments are	not	persuasive

. See In	re	Ant hony	R. ,	2010	ME	4,	¶ ¶ 8

- 9 ,	987	A.2d	53 2

.4 the	 Department	 .	 .	 .	 was	 relieved	 from	 the	 requirement	 to	 make reasonable	efforts	to	reuni fy	the	children	with	the	father. Father	has	not	seen	the	children	since	the	day	of	the	murder. They had	initially	been	placed	with	paternal	grandfather. However,	due to	 the	 grandfather’s	 continual	 attempts	 to	 undermine	 mother’s family	 and	 unduly influence	 the	 children	 with	 regard	 to	 what occurred	 on	 the	 night	 their	 mother	 died,	 the	 children	 were removed	and	have	been	placed	with	maternal	uncle	.	.	.	and	family

. The	children	are	doing	well	there	and	wish	to	remain	there.	.	.	. Father	is	in	jail facing	murder	charges. If	he	is	convicted	he	will likely	spend	decades	in	prison.		The	children	have	not	seen	him	in nearly	 nine	 months	 and	 have	 no	 desire	 to	 see	 him	 or	 to	 have	 a relationship	with	him.
Father’s	 heinous	 and	 abhorrent	 actions	 towards	 mo ther	 and children	make	him	an	unfit	parent.

.	.	.	. The	 [c]ourt	 finds	 that	 the	 guardian ad	 litem made	 a	 thorough investigation	of	the	case	and	advised	the	[c]ourt	of	his	opinion	that termination	of	father’s	parental	rights	was	in	the	best	interests	of these	children. The	father	timely	appealed	the	court’s	judgment. See 22	M.R.S.	§ 4006	(2018) ; M .R.	App.	P.	2B(c) (1)

. II.		DISCUSSION
A. Parental	Unfitness [¶ 6 ] The	father	first	argues	that	the	court	erred	by	determining	that	he was	 unfit	 as	 a	 parent. “ We	 review	 the	 court’s	 factual	 findings	 on parental5 unfitness	 for	clear	error , ” In	re	Child	of	Everett	S. ,	2018	ME	93,	¶	3,	189	A.3d
240 , and	will affirm	 the	 court’ s	 findings	if	 they	 are	 supported	 by	 competent
evidence	in	the	record , In	re	Logan	M. ,	2017	ME	23,	¶	3,	155	A.3d	430

. [¶ 7 ]		Title 22	provides the statutory	grounds	pursuant	to	which the	court may	find	that a	parent is	unfit

. See 22	M.R.S.	§	4055(1)(B)(2)(b )(i)

- (iv) (2018)

. Here,	the	court	found	that	the	father “is	unwilling	or	unable	to	protect	the	child from	jeopardy	 and	 these	circumstances	 are	unlikely	 to	change	within	 a	 time which	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	 needs.” Id. § 4055(1)(B)(2)(b)(i). The	 court	 also	 invoked	 the	 statutory “[r]ebuttable presumption”	of	unfitness : 1
- A.	Rebuttable	presumption. The	court	may	presume	that the	parent	is	unwilling	or	unable	to	protect	the	child	from	jeopardy and	these	circumstances	are	un likely	to	change	within	a	time	which is	reasonably	calculated	to	meet	the	child ’ s	needs	if:
A. The	parent	has	acted	 toward	a	child	in	a	manner	 that	is heinous	or	abhorrent	to	society	or	has	failed	to	protect	a	child in	a	manner	that	is	heinous	or	abhorren t	to	society,	without regard	to	the	intent	of	the	parent

.

.	.	.	. 22	M.R.S.	§	4055(1

- A) (A). [¶ 8 ]		We	have	explained	that	this	“presumption”	does	not	shift	the	burden of	 proof	 to	 the	 parent	 to	 disprove parental unfitness. In	 re	 Addilyn	 R. ,6 2017	 ME 236,	 ¶ 4,	 176	 A.3d	 184 ; In	 re	 Evelyn	 A. ,	 2017	 ME	 182,	 ¶¶	 31

- 32, 169	 A.3d	 914

. Instead ,	 it	 operates	 by	 “delineat[ing]	 the	 specific	 facts	 and circumstances	 upon	 which	 a	 court	 may

— but	 need	 not

— reach	 an	 ultimate finding	of	parental	unfitness.” In	re	Evelyn A. ,	2017	ME	182,	¶	31,	169	A.3d	914. The	court	may	use	the	statutory	presumption	as “the	pathway	to	an	inference,”
but it must	“place[]	the	burden	of	proof	entirely	on	the	Department	and	[ may ] not	 require	 or	 expect	 the	 [parent]	 to	 meet	 any	 evidentiary	 bur den.” In	 re Addilyn	R. ,	2017	ME	236,	¶	4,	176	A.3d	184. The court	“may	reach	an	ultimate finding	of	unfitness only if	the	evidence	in	its	entirety	supports	that	finding	by clear	and	convincing	evidence.” In	re Evelyn	A. ,	2017	ME	182,	¶	31,	169	A.3d
914. [¶ 9 ] In	 this	case,	 the	court	 found	parental	unfitness	both	 directly	 and
based	 on an	 inference of	 unfitness. See 22	 M.R.S.	 §	 4055(1)(B)(2)(b)(i), (1

- A)(A).	 	 In	 reaching	 this	 determination,	 the	 court	 relied	 upon	 three	 main findings:	 (1)	 that	 the	 father	 k illed	 the	 mother, 2 (2)	 that	 the	 father has	 been

2 The	 father	 argues	 that	 actions	 taken	 toward	 the	 mother	 do	 not	 implicate	 the statutory presumption of	unfitness	because	they	were	not	taken	toward	the	children

. However,	the statutory presumption does	not	requir e actual physical	action	taken	toward	the	children.		As	we	explained	in In	 re	J.H. ,	an	action such	as	 killing	 the	mother	in	 the	children’s	presence can	be	considered to	be conduct toward	 the	 children	 “because	 emotional	 harm	 can	 create	 jeopardy	 in	 the	 same way	 as physical	harm

. ” 2015	ME	10,	¶¶	6

- 7,	108	A.3d	1271 ; see	also 22	M.R.S.	§ 4002(6)(A),	(10) (B) (2018) (defining	“jeopardy”	as	including	“[s]erious	mental	or	emotional	injury	or	impairment	which	no w	or in	the	future	is	likely	to	be	evidenced	by	serious	mental,	behavioral	or	personality	disorder,	including7 incarcerated	 for	 nine	 months	 and will	 be	 incarcerated	 for	 a	 long	 period	 if convicted, 3 and	(3)	that	the	father’s	actions	had	a	“horrific	psychological	impact on	the	[children].” Each	of	these	findings is supported	by	competent	evidence in	the	record. 4

severe	 anxiety,	 depression	 or	 withdrawal,	 untoward	 aggressive	 behavior,	 seriously	 delayed development	or	similar	serious	dysfunctional	behavior”).

3 We	note	that	“a	parent’s	long

- term	incarceration,	standing	alone,	does	not	provide	grounds	f or the termination	 of	 parental	 rights.” In	 re	 Asanah	S. ,	 2018	ME	 12,	 ¶	5,	 177	 A.3d	1273 (alteration omitted)	 (quotation	 marks	 omitted) .	 	 However,	 the	 court	 did	 not rely	 solely	 upon	 the	 father’s incarceration ;	 rather,	 the	 court considered the	 father’s	incarceration as	 one factor leading	 to	 the overall	determination	that	the	father	was	unfit	as	a	parent. See In	re	Child	of	Charles	V. ,	2018	ME	143, ¶	8,	195	A.3d	809

.
4 The	father	contends	that	the	court	erred	by	considering	the	factual	findings	contained	within the	jeopardy	order	issued	by	a	different	judge who presided	over	that	stage	of	the	proceedings	and that	without	such	findings,	the	court	could	not	have	found him	to	be	an	unfit	parent.		This	contention is	incorrect.		As	we	have	stated	on	multiple	occasions, [t ] he	 authority	 of	 the	 trial	 judge	 to	 take	 judicial	 notice	 of	 matters	 of	 record	 is distinct	 from	 the	 authority	 of	 a	 single	 judge	 to	 consider evidence	 pres ented in	 a pr evious stage	of	a	child	protective	proceeding

.	.	.	. When	a	court	enters	a	judgment	containing	findings	of	fact	and	conclusions	of	law, those	findings	become	a	matter	of	judicial	record.		A	judge	may	take	judicial	notice	of any	 matter	 of	 reco rd	 when	 that	 matter	 is	 relevant	 to	 the	 proceedings	 at	 hand. Particularly	 in	 the	 context	 of	 child	 protective	 proceedings,	 where	 the	 entire procedure	 occurs	 as	 a	 unified	 proceeding,	 a	 trial	 judge	 may,	 at	 any	 stage	 of	 the proceeding,	take	judicial	notice	of the	findings	and	conclusions	contained	in	any	prior judgments	or	orders. In	re	Scott	S. ,	2001	ME	114,	¶¶	12

- 13,	775	A.2d	11 4 4 ( footnote	and citation	omitted); see also	In	re Children	of	Bradford	W. ,	2019	ME	15,	¶	7,

--- A.3d

--- . In	this	case,	the	court st ated	in	its	judgment that	it	considered	 the findings	of	fact contained within	the	jeop a rdy	order	and	specified	that	it	subjected	all	facts	and	evidence	it	considered	to	the clear	and	convincing	standard	required	at	the	termination	of	parental	rights	stage. See In	re	Children of	Bradford	W. ,	2019	ME	15,	¶¶	8

- 9,

--- A.3d

--- .8 [¶1 0 ]	 	 The	 father	 also	 argues	 that his	 killing	 of	 the	 mother	 cannot	 be considered	“heinous	and	abhorrent” according	to	22	M.R.S.	§	4055(1

- A)(A) or otherwise	 form	 the	 basis	 of	 his	 parental	 unfitness	 becaus e	 he	 has	 yet	 to	 be convicted	of	murder. But,	as	we	have	noted	in	regards	to	the	similar	language used	to	define	an	“aggravating	factor” in	22 M.R.S.	§	4002(1

- B)(A)(1), 5 “it	is	not necessary	for	the	court	to	have had before	it	an	actual	criminal	conviction .” In re	 Jamara	 R. ,	 2005	 ME	 45,	 ¶	 16,	 870	 A.2d	 112 , partially	 overruled	 on	 other grounds by In	re	B.C. ,	2012	ME	140,	¶ 14	n.2,	58	A.3d	1118 .		The	language	of section	 4055(1

- A)(A)	 requires only a	 finding	 that	 “[t]he	 parent	 has	 acted toward	a	child	in	a	manner	that	is	heinous	or	abhorrent	to	society” ; it	does not require a	criminal	conviction. Had	the	Legislature	intended	that	a	conviction be	 required,	 it	 could	 have	 done so . C.f. 22	 M.R.S. § 40 55(1

- A)(B) (2018) (allowing	 for	 a	 presumption	 of	 unfitness	 when	 the	 child	 was	 the	 victim	 of certain	crimes	by	the	parent	that	“the	parent	has	been convicted of”	(emphasis added)). Accordingly,	it	was	not	error	for	the	court	to	determine by	clear	and

5 Title 22	M.R.S.	§	4002(1

- B)(A)(1) (2018) provides	the	definition	for	an	“ [ a ] ggravating	factor” that	a	court	may	find	at	the	jeopardy	stage, which occurs when	“[t]he	parent	has	subjected	any	child for	whom	the	parent	was	responsible	to	aggravated	circumstances,	including	.	.	.	treatment	that	is heinous	or	abhorrent	to	society. ”9 convi ncing	evidence that the	father’s	killing	of	the	mother in	the presence of	the
children was	heinous	and	abhorrent to	society

. [¶1 1 ]		Because	the	court’s	findings	are	supported	by	competent	evidence in	the	record,	the	court	did	not	err	in	determining	that	the	father	was	unable	or unwilling	 to	 protect	 the	 children	 from	 jeopardy	 within	 a	 time	 reasonably
calculated	to	meet	the	children’s needs	or in inferring	the	same	in	accordance with	the	statutory	presumption

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

- A)(A) ; In	re	Child	of	Everett	S. ,	2018	ME	93,	¶	3,	189	A.3d	240

. B. Best	Interests [¶1 2 ] The	 father	 also	 challenges	 the	 court’s	 determ ination	 that termination	of	his	parental	rights	is	in	the	best	interests	of	the	children because the	court	“failed	to	make	explicit	findings	addressing	all	the	statutory	factors	to
be	 considered.” “We	 review	 the	 court’s	 factual	 findings	 related	 to	 the
chi ld[ren]’s	 best	 interest[s]	 for	 clear	 error,	 and	 its	 ultimate	 conclusion regarding	the	child[ren]’s	best	interest[s]	for	an	abuse	of	discretion	.	.	.	.” In	re Children	 of	 Christopher	 S. ,	 2019	 ME	 31,	 ¶	 7,

--- A.3d

--- (quotation	 marks omitted). [¶1 3 ]		The	court’s	findings	“must	be	sufficient	to	inform	the	parties	of	the basis	 for	 the	 termination	 decision	 and	 to	 allow	 for	 meaningful	 review	 on10 appeal.” In	 re	 Aubrey	 R. ,	 2017	 ME	 37,	 ¶	 2,	 157	 A.3d	 212 (quotation	 marks omitted). Whe n a	court recites the facts	relevant	 to	its	decision,	even	if	“the factual	 findings	could	have	been	more	explicit,”	 the	judgment	is	sufficient as long	 as	 it “inform [s] the	 parties	 and	 this	 Court	 of	 the	 basis	 of	 the	 court’s
decision

. ” In	re	David	G. ,	659	A.2d	859,	862	(Me.	1995 ) .		Moreover, “ [a] lthough a	finding	of	parental	unfitness	and	a	finding	of	best	interest s of	the	child [ren] are	 two	 separate	 elements,	 the	 court	 may	 consider	 the	 findings	 of	 parental unfitness	as	 relevant	 to	best	interest s . For	example,	 the	parent ’ s	inabi lity	 to protect	 the	 child [ren] from	 jeopardy	 is	 relevant	 to	 the	 child [ren] ’ s	 best
interest s . ” In	re	Ashley	A. ,	679	A.2d	86,	89	(Me.	1996)

. [¶1 4 ]		Here,	the	court	determined	that	the	children	were	doing	well	in	a placement	with	 their	maternal	uncle	and	hi s	 family,	 that	 the	children	do	not wish	to	have	any	contact	or	relationship	with	the	father,	that	the	father	and	his family	attempted	to	influence	the	children	in	regard	to	the	criminal	case,	and that	 the	 guardian	 ad	 litem	 believes	 termination	 is	 in	 the	 ch ildren’s	 best
interests. Based	 on	 these	 findings,	 all	 of	which	are	 supported	by	competent evidence	in	the	record,	the	court	did	not	abuse	its	discretion	in	determining	that termination	of	the	father’s	parental	rights	is	in	the	best	interests	of	the	childr en. See In	re	Children	of	Christopher	S. ,	2019	ME	31,	¶	7,

--- A.3d

--- .11 The	entry	is: Judgment affirmed.

Kristina Dougherty, Esq., Chester & Vestal, P.A., Portland, for appellant f ather Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Portland	District	Court docket	number	PC

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- 2 F OR C LERK R EFERENCE O NLY