MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 147 Docket: S om - 19

- 152 Submitted

On	B riefs : Sept ember 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	proceeding s	began ,	and he challenges	the	court’s
conclusion that	 termination	 of	 his	 parental	 rights wa s 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. T he	termination	petition	filed	by	the	Department	does not	encompass	either	of	them ,	a l though	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,	t he	court ( Fowle,	J. )	entered a preliminary	protection order, placing	 the	children	in	 the Department’s	custody. I d. § 4034(2). The parents later waived	the	opportunity for	a	summary	preliminary	hearing. See i d. § 4034(4). [¶ 3 ] In	 August of 2018 ,	 the	 court ( Benson,	 J. ) entered	 a n	 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 termina te both	parents ’	parental	rights, 22	M.R.S.	§	4052	(2018), and i n 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,	 o n	 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 .		T he	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,	 ¶ 1 9 ,	 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 th e 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 t he	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.”4 [A]side	 from	 attending	 [the court
- ordered	 diagn ostic	 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	fa ther’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 hi s	 own	 . .	 .	 before	 the	Department	 became	involved. The C ourt 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 tr eatment	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	 emotional5 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	 se cond	 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	 ou t	 and	it	is	 time	 for	 [the	 children]	 to	 have	 the	 permanency they	deserve. [¶ 6 ] Based	 on	 these	 findings,	 the court concluded that	 the	 father wa s 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	th e	children ; and	that	termination	of	his	parental	rights wa s 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	appea l

. 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	 novo6 “whether	an	individual	was	afforded	procedural	due	proces s ,” 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 ( foo tnotes 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 ; s ee also In	re Adden
B. ,	2016	ME	113,	¶ ¶ 8

- 9 ,	144	A.3d	1158. [¶1 0 ] 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 chose n to	engage	in	t he	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	 b ecause	 a	 parent	 does	 not	 have	 the7 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 th e parent’s	right	to due
process. Id. [¶1 1 ] 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,	a fter	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 ( “W hen	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.)). [¶1 2 ] Further,	 the father	 did	 not	 pursue	 any	 number	 of	 additional processes	 that	 were	 available	 to	 protect	 any	 due	 pro cess	 right	 that he	 now
claims	w as 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	with8 additional	evidence , see	id. ;	and	he	did	not ma k e an offer	of	proof descri bing
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 , s ee In	re	A.M. ,	2012 ME	118,	¶ 23 , 55	A.3d	463

. And	o n appeal	he has	not	explained how	his	absence on	the	second day affected	the	court’s	findings ,	which were	supported	by	abundant	evidence.
S ee id. ¶	24

. [¶1 3 ] 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	Interest s of	the	Children [¶1 4 ] 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

. S ee 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.”).9 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)

. [¶1 5 ] 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	 attachment s to	 relevant	 persons,	 periods	 of
attachment s 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

. [¶1 6 ] Here,	much	 of	 the	 evidence	demonstrating	 the	 father’s	parental
unfitness	also	bore	on	the	children’s	best	interests

. With	support	in	the	record,

t he	 court	 found ,	 for	 example, that	 the	 father	 ha d not	 made	 even	 marginal progress	 toward	 reunification, that	 he was	 not	 receptive	 to the services he
need s to	become	a	safe	and	nurturing	parent ,	and that	he posed a	threat	to	t he10 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: J udgment affirmed.

Wayne	Doane,	Esq.,	Exet er,	for	appellant f ather 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 F OR C LERK R EFERENCE O NLY

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	te rmination petition	as	to	the	mother

. See	In	re	Children	of Christopher	S. ,	2019	ME	31,	¶	10,	203	A.3d	808

.