MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	147

Docket: Som-19-152

Submitted

On	Briefs: September 10,	2019

Decided: September	17,	2019

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

IN	RE	CHILDREN	OF	BENJAMIN	W.

HJELM,	J.

[¶1]	 Benjamin	W. appeals	from a	judgment	entered	by	the	District	Court	

(Skowhegan,	 Benson,	 J.)	 terminating	 his	 parental	 rights	 to	 his	two	 youngest	

children.1		See 22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i),	(ii),	(iv)	(2018).		He	asserts

that	 the	 court	 erred	by denying	 his	motion	 to	 continue	when	 he	was absent	

during	 the	 second	 day	 of	 the	 hearing because	 he	 had	 been	 arrested	 at	 the	

courthouse	shortly	before	the	proceedings	began,	and	he	challenges	the	court’s	

conclusion that	 termination	 of	 his	 parental	 rights	was in	the	 children’s	 best	

interests.		We	affirm	the	judgment.

I.		BACKGROUND

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

a	petition	for	a	child	protection	order	and	preliminary	protection	order	for	the	

 1 The	father	also	has	two	older	children.		The	termination	petition	filed	by	the	Department	does	

not	encompass	either	of	them,	although	one	is	also	the	subject	of	a	child	protection	action.
2

two	children at	issue	here,	who	were	 then	 ten	 and	 four	 years	 old.		22	M.R.S.	

§§ 4032,	4034	(2018).		The	petition	alleged	that between	2015	and	2018, the	

Department had	 received	 reports	 that	 the	 children	were	 at	 risk	 due	 to	 both	

parents’	 substance	use,	 the	presence	 of	dangerous	individuals	in	 their	home,	

and	neglect.		The	Department	further	alleged that	the	father	had	exposed	the

children	to	extreme violence.		On	the	same	day	the	petition	was	filed,	the	court	

(Fowle,	J.)	entered	a preliminary	protection order, placing	 the	children	in	 the	

Department’s	custody.		Id. § 4034(2).		The parents	later	waived	the	opportunity	

for	a	summary	preliminary	hearing.		See	id. § 4034(4).

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

jeopardy	 order as	 to	 both	 parents, see 22	 M.R.S.	 §	 4035	 (2018),	 based in	

relevant	 part	 on	the	 father’s “significant	 substance	 abuse,	 as	 well	 as	 severe	

violence,”	 including	 domestic	 violence	 he	 had	 perpetrated	 against	 the	

children’s	mother.		At	the	end	of	2018,	the	Department	petitioned	to terminate

both	parents’	parental	rights, 22	M.R.S.	§	4052	(2018), and	in March of 2019	the	

court held	a	two-day	contested	hearing	 on	 the	termination	petition as	 to	 the	

father.

2		

 2 Over	the	Department’s	objection,	the	court	continued	the	hearing	as	to	the	mother	to	allow	her	

to	participate	in	a	diagnostic	evaluation.		Her	parental	rights	were	not	adjudicated	in	the	judgment	

that	led	to	this	appeal.
3

[¶4] The	father	completed	his	testimony	on	the	first	day	of	the	hearing.		

Two	 weeks	 later,	 on	 the	 morning	 of	 the	 second	 day of	 the	 hearing	 and	 just	

before	the	hearing began,	the	 father	was	arrested	following an	altercation	in	

the	 courthouse	 lobby.

3	 	 After	 the	 arrest,	 his attorney	 moved	 the	 court	 to	

continue	the	second	day of	the	hearing	until	the	father	was	available.		The	court	

denied	the	motion,	finding	that	the	father’s	absence was	the	result	of	his	own	

voluntary	 conduct.	 See In	 re	 A.M.,	 2012	 ME	 118,	 ¶ 19,	 55	 A.3d	 463.	 	In	 the	

resulting	 termination	judgment,	 the	court	also	noted that	the	 father failed	 to	

make	any	post-trial offer	of	proof	as	to	what	“additional	relevant	information	

[he]	might	have . . . provided.”		

[¶5]	 	 After	 the	 hearing	 proceeded	 and	 the	 parties	 completed	 the	

presentation	 of	evidence,	 the	court	 orally	 stated	its	 findings	 and	its	ultimate	

conclusion	that	it	would	grant	the	termination	petition.		The	court	subsequently	

issued	 a	 written	 judgment	 that	 contained	 the	 following	 findings,	 which	 the	

court	 stated	 were	 based	 on clear	 and	 convincing	 evidence and which	 are	

supported	by	competent	evidence	in	the	record.		See 22	M.R.S.	4055(1)(B)(2)

(2018);	Vibert	v.	Dimoulas,	2017	ME	62,	¶	15,	159	A.3d	325.

 3		During	the	colloquy	about	the	effect	of	the	father’s	arrest on	the	scheduled	hearing,	the	mother’s	

attorney	and	the	children’s	guardian	ad	litem	reported	to	the	court	that	the	 father	was	taken	into	

custody	after	he	threatened	the	mother	that	he	would	“smash	her	face	into	a	million	f-ing	pieces.”	
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[A]side	 from	 attending	 [the	 court-ordered	 diagnostic	 evaluation,	

the	 father] has	 not	 engaged	 in	 any	 service	 requested	 by	 the	

Department	 or	[o]rdered	 by	 this	 Court.	 	He	 failed	 .	 .	 .	 to	 attend	

random	 drug	 screens	 requested	 by	 the	 Department;	 he	 failed	 to	

attend	 a	 certified	 Batterer’s	 Intervention	 Program;	 he	 failed	 to	

engage	in	any	meaningful	individual	mental	health	 treatment;	he	

failed	 to	 engage	 in	 any	 parenting	 education	 classes;	 he	 failed	 to	

maintain	 safe	 and	 stable	 housing	 that	 is	 free	 from	 domestic	

violence,	drugs,	and	alcohol;	and	he	failed	to	refrain	from	criminal	

activity.	

[The	 father]	 can	 charitably	 be	 described	 as	 an	

extraordinarily	difficult	individual	 to	work	with.		 In	 this	case,	 the	

Department	 went	 to	 heroic	 lengths in	 its	 attempts	 to	 work	 with	

[the	father],	.	.	.	in	spite	of	the	father’s	penchant	for	vulgar	behavior	

and	 language	 at	 the	 very	 least,	 and	 proclivity	 and	 potential	 for	

violence	at	the	worst.		

[The	father]	has	simply	refused	to	engage	in	a	single	service	

outside	of	the	medication	assisted	treatment	he	was	receiving	on	

his	 own	 .	 .	 .	 before	 the	Department	 became	involved.	 	The	Court	

finds	 that	 even	 this	 purported	 engagement	 in	 substance	 abuse	

treatment	is	incredible.		It	also	finds	that	[the	father]	went	out	of	

his	 way	 to	 obstruct	 the	 Department	 from	 obtaining	 even	 those	

treatment	records.		[The	father]	flatly,	frequently,	and	offensively[]	

refuses	to	entertain	the	reality	that	he	has	any	issues	to	address	as	

a	parent.		

[T]he	Department’s	repeated	efforts	to	engage	[the	father]	in	

reunification	 and	 rehabilitation	 services	 have	 come	 to	 nothing.		

[The	 father]	 made	 it	 clear	 during	 his	 testimony	 that	 he	 was	 still	

unwilling	 to	 engage	in	 services	 .	 .	 .	 .	 	 Rather,	 he	 asserted	 he was	

being	railroaded	and	wished	to	make	it	clear	he	was	requesting	an	

appeal	before	the	hearing	started.		

During	this	.	.	.	proceeding	the	children’s	addresses	needed	to	

be	 kept	confidential	 to	protect	 the	children	 from	 the	 threat	 their	

father	 poses	 to	 their	 physical,	 psychological	 and	 emotional	
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well-being.	 	 [One	 child]	 has	 been	 in	 crisis	 on	 more	 than	 one	

occasion	 during	 this	 action	 and	 has	 required	 in-patient	 mental	

health	 treatment.	 	 In	 fact,	 [that	 child]	went	 into	 a	 crisis	 unit	 the	

night	 before	 the	 second	 day	 of	 the	 termination	 hearing	 and	 this	

Court	concludes	 that	 this	 fact	is	 strongly	indicative	 of	a	need	 for	

permanency.		

After	 almost	 a	 year	 in	 foster	 care	 with	 no	 engagement	 in	

services	in	any	measurable	amount	by	 their	 father,	 the	clock	has	

run	 out	 and	it	is	 time	 for	 [the	 children]	 to	 have	 the	 permanency	

they	deserve.		

[¶6]	 	Based	 on	 these	 findings,	 the court	 concluded that	 the	 father	was

unwilling or	 unable to	 protect	 the	 children	 from	 jeopardy	 and	 unwilling	 or	

unable	 to	 take	 responsibility	 for	 the	 children	 and	 that	 those	 circumstances	

were	 unlikely	 to	 change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 their	

needs; that	 the	 father	 failed	 to	 make	 a	 good-faith	 effort	 to	 rehabilitate	 and	

reunify	with	the	children; and	that	termination	of	his	parental	rights	was in	the	

best	interest	of	each child.		See 22	M.R.S.	§ 4055(1)(B)(2)(a),	(b)(i),	(ii),	(iv).		

[¶7]		The	father	filed	a	timely	appeal.		See 22	M.R.S.	§	4006 (2018);	M.R.	

App. P.	2B(c)(1).		

II.		DISCUSSION

A. Denial	of	the	Father’s	Motion	to	Continue

[¶8]	 	 We	 review	 the	 denial	 of	 a	 motion	 to	 continue	 for	 an	 abuse	 of	

discretion,	In	 re	 A.M.,	 2012	ME	 118,	 ¶	 14,	 55	 A.3d	 463,	 and review	 de	 novo	
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“whether	an	individual	was	afforded	procedural	due	process,”	In	re	Adden	B.,	

2016	ME	113,	¶ 7,	144	A.3d	1158.

[¶9]		In	the	context	of a hearing	on termination	of	parental	rights,	“‘due	

process	requires:	notice	of	the	issues,	an	opportunity	to	be	heard,	the	right	to	

introduce	evidence	and	present	witnesses,	the	right	to	respond	to	claims	and	

evidence,	and	an	impartial	factfinder.’”		In re	A.M.,	2012	ME	118, ¶ 16,	55	A.3d	

463 (quoting	In	re	Kristy	Y.,	2000	ME	98,	¶	7,	752	A.2d	166 (footnotes omitted)).		

A	parent’s	voluntary	absence	from	the	termination	hearing	does not,	by	itself,	

constitute	the	denial	of that	parent’s	due	process.		Id. ¶	19; see also In	re	Adden	

B.,	2016	ME	113,	¶¶ 8-9,	144	A.3d	1158.

[¶10]	The	father	did	not	attend	the	second	day	of	the	termination	hearing	

because	he	had	been arrested	at	the	courthouse	shortly	before	the	hearing	was	

to	begin.		The	father’s	attorney	requested	that	the	court	continue	the	hearing,	

but	the	court	denied	the	motion,	finding	that	the	father’s absence	was	voluntary	

because	he	had	chosen to	engage	in	the	conduct	that	led	to	his	arrest.		We	have	

held	in	a	termination	case,	however, that	when	a	parent	is	arrested	the	night	

before	the	hearing	and	is	not	brought	to	the	courthouse the	following	day,	the	

resulting	 “absence	cannot	be	 regarded as .	 .	 . entirely voluntary.”	 	In	 re	A.M.,	

2012	 ME	 118,	 ¶ 19,	 55	 A.3d	 463.	 	 Yet	 because	 a	 parent	 does	 not	 have	 the	
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unqualified	 right	 to	 be	 physically	 present	 at	 a	 termination	 hearing,	 the	

dispositive	 question	 is not	 whether	 the	 parent’s	 absence	 is	 voluntary but,	

rather, whether	that absence	results	in	a	deprivation	of	the parent’s	right	to	due	

process.		Id.

[¶11] There	 was	 no	 such	 deprivation	 here.	 	 The	 father	 testified	

extensively	during	the	first	day	of	the	hearing,	and	all	parties completed	their	

examination	of	him.		On	the	second	and	final	hearing	day,	after	the	court	ruled	

that	 it	 would	 proceed with	 the	 hearing,	 the	 father	 did	 not	 ask	 the	 court	 to	

provide	an	alternative	mechanism	 for	him	 to	be	able to	participate.		Id. ¶	20	

(“When	a	parent	is	known	to	be	incarcerated	in	advance	of	a	hearing,	the	court	

must,	 upon	 request	 by	 the	 parent,	 provide	 a	 meaningful	 opportunity	 for	 the	

parent	to participate	in	the	hearing	whether	in	person,	by	telephone	or	video,	

through	 deposition,	 or	 by	 other	 means	 that	 will	 reasonably	 ensure	 an	

opportunity	 for	 the	 parent	 to	 be	 meaningfully	 involved	 in	 the	 hearing.”		

(Emphasis	added.)).	

[¶12] Further,	 the	 father	 did	 not	 pursue	 any	 number	 of	 additional	

processes	 that	 were	 available	 to	 protect	 any	 due	 process	 right	 that he	 now	

claims	was at	stake.		For	example,	he	did	not	request	that	the	court	leave	the	

record	open,	see M.R.	Civ.	P. 43(j);	he	did	not	seek	to	augment	the	record	with	
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additional	evidence,	see	id.;	and	he	did	not	make	an offer	of	proof	describing	

any additional	relevant	information	he	might have	provided	on	the	second	day

of	the	trial—a	point	particularly	salient	here	because	of	the	extensive	testimony	

he	provided	on	the	first	hearing	date,	ending	with	all	parties	stating	to	the	court	

that	they	had	no	further	questions	to	ask	him, see In	re	A.M.,	2012 ME	118,	¶ 23,	

55	A.3d	463.	And	on appeal	he	has	not	explained how	his	absence	on	the	second	

day	affected	the	court’s	findings,	which	were	supported	by	abundant	evidence.		

See	id.	¶	24.		

[¶13] For	these	reasons,	the	resumption	of	the	termination	hearing	when	

the	father	was	not	present	did	not	deprive	him	of	his	right	to	due	process.

B. Best	Interests of	the	Children

[¶14]		The	father	next	challenges	the	court’s	conclusion that	termination	

of	his	parental	rights	was	in	the	children’s	best	interests	and	will	provide	the	

children	with	“permanence	and	stability.”4		Adoption	of Isabelle	T.,	2017	ME	220,	

¶	49,	175	A.3d	639.		We	review a	 trial	court’s “factual	 findings	related	 to the	

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

 4 The	father	does	not	challenge	the	court’s	conclusion	that	the	Department	had	proved,	by	clear	

and	convincing	evidence,	three	kinds	of	parental	unfitness.	 See	22	M.R.S.	§	4055(1)(B)(2)(b)(i),	(ii),	

(iv) (2018).		On	this	record,	such	a	challenge	would	be	unavailing.		See	In	re	M.B.,	2013	ME	46,	¶	37,	

65	A.3d	1260 (“Where	the court	finds	multiple	bases	for	unfitness,	we	will	affirm	if	any	one	of	the	

alternative	bases	is	supported	by	clear	and	convincing	evidence.”).		
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child’s	best	interest	for	an	abuse	of	discretion.”		In	re	Children	of	Nicole	M.,	2018	

ME	75,	¶	12,	187	A.3d	1	(citations omitted) (quotation	marks	omitted).

[¶15]	 	 In	 determining	 whether	 termination	 of	 parental	 rights	 is	 in	 a

child’s	best	interest,	the	court	must	consider	“the	needs	of	the	child,	including	

the	 child’s	 age,	 the	 child’s	 attachments to	 relevant	 persons,	 periods	 of	

attachments and	 separation,	 the	 child’s ability	 to	 integrate	 into	 a	 substitute	

placement	 or	 back	 into	 the	 parent’s	 home	 and	 the	 child’s	 physical	 and	

emotional	needs.”		22	M.R.S.	§	4055(2)	 (2018).		Other	 factors	relevant	 to the	

best	interest	determination	are “the	harm	the	children	may	suffer	if the	parent’s	

rights	are	not	 terminated,	as	well	as	 the	children’s	need	 for	permanence	and	

stability.”		Adoption	 of Isabelle	T.,	2017	ME	220,	¶	49,	175	A.3d	639.		Thus,	a	

court’s	factual	findings	“that	bear	on	parental	unfitness	may	also	be	relevant	to	

the question	 of	 whether	 termination	 is	 in	 the	 child’s	 best	 interest.”	 	 In	 re	

Children	of	Christopher	S.,	2019	ME	31,	¶	8,	203	A.3d	808.

[¶16]	 Here,	much	 of	 the	 evidence	demonstrating	 the	 father’s	parental	

unfitness	also	bore	on	the	children’s	best	interests.		With	support	in	the	record,	

the	 court	 found,	 for	 example, that	 the	 father	 had not	 made	 even	 marginal	

progress	 toward	 reunification,	 that	 he	 was	 not	 receptive	 to	 the	 services	 he	

needs to	become	a	safe	and	nurturing	parent,	and that	he	posed a	threat	to	the	
10

physical,	psychological,	and	emotional	well-being of	the	children,	one	of	whom	

is	particularly	fragile.

5 See	In	re	Hope	H.,	2017	ME	198,	¶¶ 9-10,	170	A.3d	813.		

While	this	evidence	supported	the	court’s	determination	of	parental	unfitness,	

it	 also	 demonstrated	 that	 the	 children	 should	 be	 freed	 from	 the	 father’s	

parental	 bonds.	 	The	 court’s	 best interest	 determination	 was	 well	 within	 its	

discretion.

The	entry	is:

Judgment affirmed.

Wayne	Doane,	Esq.,	Exeter,	for	appellant	father

Aaron	M.	Frey,	Attorney	General,	and	Zach	Paakkonen,	Asst.	Atty.	Gen.,	Office	of	

the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	

Services

Skowhegan	District	Court	docket	number	PC-2018-34

FOR	CLERK	REFERENCE	ONLY

 5		We	are	not	persuaded	by	 the	 father’s	argument	 that	 the	court’s	best	interest	determination	

should	be	affected by	the pendency	of	the	termination	petition	as	to	the	mother.		See	In	re	Children	of	

Christopher	S.,	2019	ME	31,	¶	10,	203	A.3d	808.