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