MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	150

Docket: Han-18-95

Submitted

On	Briefs: September	26,	2018

Decided: November	13,	2018

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

IN	RE	CHILD	OF TROY	C.

PER	CURIAM

[¶1]	 The	mother	and	father of	the	child appeal	from	a	judgment	of	the	

District	Court	(Ellsworth,	Roberts,	J.)	terminating	their	parental	rights	to	their	

son pursuant	to	22	M.R.S.	§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(i)-(iv)	(2017).		

The	father	contends	that	the	court	erred	in	its	parental	unfitness	finding	and	

that	he	was	denied	due	process.		The	mother	contends	that	the	court	erred	in	

its	determination	that	termination	of	her	parental	rights	is	in	the	best	interest	

of	the	child.		We	affirm	the	judgment.		

I.		BACKGROUND

[¶2]		The	following	facts,	which	are	supported	by	the	evidence,	are	drawn	

from	 the	 court’s	judgment	 and	 the	 procedural	 record.	 	 See	In	 re	Dominyk T.,	

2017	ME	222,	¶ 5,	173 A.3d	1065.		

[¶3]		The	Department	of	Health	and	Human	Services	(the	Department)	

became	 involved	 with	 this	 family	 in	 February	 2015	 following	 reports	 of	
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domestic	 violence	 and	 substance	 abuse.	 	 On the	 Department’s	 petition,	 the	

court	(Mallonee,	J.)	issued	a	preliminary	protection	order on	February	20,	2015.		

After	the	opportunity	for	a	summary	preliminary	hearing,	the	court	awarded	

the	father	custody	of	the	child	with	several	conditions imposed,	including	that	

the	father	participate	in a	substance	abuse	assessment	and	education program,

and	that	the	father	have	no	contact	with	the	mother	in	the	child’s	presence.		

[¶4]		The	court	returned	the	child	to	the	Department’s	custody	in	April	

2015, following	the	Department’s	second	request	for	a	preliminary	protection	

order,	in	which	the	Department	alleged that	the	child	was	present	in	the	father’s	

home	when	the	mother	assaulted	the	father.

[¶5]	 	 The	 Department	 petitioned	 to	 terminate	 both	 parents’	 parental	

rights	on	March	10,	2016.		Following	a	hearing,	the	court	(Roberts, J.)	denied	the	

petition.		In	denying	the	petition,	the	court	found	that	the	mother,	who	had	been	

unable	to	provide	care	of	the child	for	nine	months	due	to	substance	abuse,	met	

all	 four	 statutory	 definitions	 of	 parental	 unfitness.	 See	 22	 M.R.S.	

§ 4055(1)(B)(2)(b)(i)-(iv).	 	 Based	 on	 evidence	 that	 he	 had	 not	 attended	

medical	appointments	and	had	missed	several	scheduled	visits	with	the	child,	

the	court	found	that	the	father	had	not	made a	good	faith	effort	to	rehabilitate	

and	reunify	with	the	child.		See	22	M.R.S. § 4041(1-A)(B)	(2017).		The	court	also	
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found	that	the	father	did	not	understand	the	risk	that	the	mother’s	substance	

abuse	 posed	 to	 the	 child.	 Nevertheless, because	 the	 court	 found	 that	 the	

Department	had	not	given	 the	 father	“a	clear	indication	of	 the	steps	he	must	

take	to	rehabilitate	and	reunify,”	the	court	did	not	find	that	the	father	was	unfit.		

The	 court	 denied	 the	 Department’s	 petition	 with	 respect	 to	 both	 parents,	

determining that	it	would	not	be	in	 the	child’s	best	interest	 to	 terminate	 the	

mother’s	 parental	 rights	 when	 reunification	 with	 the	 father	 remained	 a	

possibility.		

[¶6]		The	court, therefore, denied	the	petition	for	termination	and	issued	

a	judicial	review	order	clearly	setting	out	 the	responsibilities	of the	 father	in	

the	upcoming reunification	process.		The	court	ordered that	 the	 father	“shall	

participate	 in	 random	 drug	 screening and	 abstain	 from	 use	 of	 any	

non-prescribed	 mood	 altering	 substances;	 .	 .	 .	 [and]	 shall	 participate	 in	 an	

updated	 substance	 abuse	 evaluation	 and	 follow	 all	 recommendations.”		

Following	 this	 order,	 the	 Department	 sent	 several	 letters	 to	 the	 father	

expressing	concerns about	positive	results	on	drug	tests.		

[¶7]	 	 On	 June	 19,	 2017,	 the	 Department	 filed	 a	 second	 petition	 for	

termination	of	parental	rights.		 Following	a	 two-day	hearing,	 the	court	made	
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the	following	findings	of	fact,	all	of	which	are	supported	by competent	evidence	

in	the	record:	

[The	 mother’s]	 relationship	 with	 [the	 father]	 was	 marred	 by	

domestic	violence	to	a	degree	which	would	jeopardize	[the	child’s]

safety.		[The	mother]	was	unable	to	provide	safe	care	for	[the	child]	

for	a	period	of	9	months	preceding	 the	 first	Termination	hearing	

due	to	substance	abuse. .	.	.		[The	mother]	acknowledges	that	she	is	

unable	to	provide	for	[the	child]	at	this	time. .	.	.	

.	.	.	.	

[The	father]	began	counseling	.	.	. in	April	of	2017.	.	.	.	

.	 .	 . Unfortunately,	 [the	 father]	 was	 discharged	 from	

[counseling]	 on	 July	 19,	 2017,	 due	 to	 repeated,	 unexcused	

absences.				

.	.	.	He	has	not	demonstrated	an	understanding	of	the	impact	

his	drug	usage	will	have	on	[the	child].		

.	.	.	.	

.	 .	 .	 [The	 father]	 deserves	 credit	 .	 .	 .	 .	 	 He	 has	 recently	

purchased	a	new	home	suitable	for	[the	child’s]	care.		[He]	has	been	

responsive	in	counseling	.	.	.	,	aside	from	the	substance	abuse	issues.		

He	is	making	progress.		.	.	.	

The	difficulty	for	the	parents	is	one	of	timing.		[The	child]	is	

4 1⁄2	years	old.	.	.	.	 He	is	smart	and	articulate	and	wants	 to	know	

where	he	will	be	living	permanently.		He	cannot	continue	to	wait	

for	 his	 parents	 to	 do	 all	 the	 things	 necessary	 to	 set	 up	 a	 stable,	

consistent	and	safe	life.		[The	child]	has	established	a	strong	bond	

[in	his	current	placement and] is	 very	 happy	in	[that]	home.		He	

needs	a	permanent	home	now.		This	is	a	particularly	troubling	case	

because	it	is	clear	 to	 this	court	 that	 [the	parents]	love	 [the	child]	

dearly.	 Despite	that	love,	they	are	unable	to	take	full	responsibility	
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for	[the	child]	at	this	time.		The	Court	does	not	believe	that	they	will	

be	 able	 to	 take	 responsibility	 for	 him	 within	 a	 time	 reasonably	

calculated	to	meet	his	needs.		

.	.	.	.

Finally,	 the	Court	 finds	 that	it	is	in	 the	best	interest	of	 [the	

child]	 that	 the	 parental	 rights	 be	 terminated	 so	 as	 to	 allow

[adoption].		The	Court	has	considered	the	parents’	proposal	that	a	

permanency	guardianship	would	be	in	 [the	child’s]	best	interest.		

The	Court	disagrees.		[The	child]	has	been	asking	where	he	will	go	

permanently	 for	 some	 time	 now.	 	 He	 needs	 to	 have	 a	 definitive	

answer	to	his	question.		A	guardianship	cannot	give	[the	child]	the	

permanency	that	he	needs.

Based	on	these	findings and	others,	the	court	entered	an	order	terminating	both	

parents’	 parental	 rights,	 with a	 permanency	 plan	 of	 adoption. The	 parents	

timely	appealed.		See	M.R.	App.	P.	2B(c).		

II.		DISCUSSION

[¶8]		The	father	challenges	the	sufficiency	of	the	evidence	to	support	the	

court’s	 unfitness	 findings,	 and	 he	 contends	 that	 he	 was	 denied	 due	 process	

because	 he	 was	 not	 notified that	 his	 use	 of	 unprescribed	 drugs	 would	 be	

considered	in	making	a	determination	 regarding	his	parental	unfitness.		 The	

mother	does	not	challenge	 the	court’s	 findings	of	unfitness	as	 to	her,	but	she	

contends	 that	 the	 court	 erred	 in	 its	 determination	 that	 termination	 of	 her	

parental	 rights	 is	 in	 the	 child’s	 best	 interest.	 	 We	 review	 the	 court’s	 factual	

findings	related	to parental	unfitness	and	the	best	interest	of	the	child	for	clear	
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error, and	we	review	the	ultimate	decision	to	terminate	parental	rights	for	an	

abuse	of	discretion.	 See	In	re	Child	of	Ronald W.,	2018	ME	107,	¶ 6,	190 A.3d	

1029.

A. Termination	of	the	Father’s	Parental	Rights

[¶9]		The	father	contends	that	the	court	improperly	overlooked	evidence	

in	 the	 record	 demonstrating	 that	 he	 made	 significant	 steps	 toward	

reunification.		Contrary	to	the	father’s	contention, however, the	court	expressly	

acknowledged	the	father’s	progress.		Determinations	regarding	the	weight	and	

credibility	to	be	assigned	to evidence	are	squarely	within	the	court’s	province	

as	fact-finder.		See	In	re	Cameron	B.,	2017	ME	18,	¶ 10,	154	A.3d	1199.		There

was	competent	evidence	to	support	the	court’s	findings	of	unfitness	as	to	the	

father.1		

[¶10]	 	 The	 father	 also	 argues	 that	 the	 termination	 order	 should	 be	

vacated	because	he	was	denied	due	process	 of	law	when	 the	court	based	its	

findings	of	unfitness,	in	part,	on	his	unprescribed	use	of	prescription	drugs as	

stimulants—a	factor	that	was	not	listed	in	the	jeopardy order.

2		

 1		Although	she	does	not	challenge	the	findings,	there	was	also	competent	evidence	in	the	record	

to	support	the	court’s	findings	of	unfitness	with	respect	to	the	mother.		

2 Although	this	was	clearly	a	topic	of	focus	during	the	two-day	hearing,	the	father	did	not	object	

at	any	time	to	consideration	of	his	drug	use.		
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[¶11]		As a	factual	matter,	the	father	is	incorrect	in	his	assertion	that	he	

was	not	notified	that	he	was	expected	to	abstain	from	drug	use.		Both	the	court	

and	 the	 Department	 expressly	 notified	 the	 father that	 his	 use	 of	 substances	

needed	to	be	addressed	as	part	of	his	rehabilitation	and	reunification,	and	the	

Department’s	second	petition	for	termination	of	parental	rights	identifies	the	

father’s	drug	usage	and	missed	tests	as	an	issue.

3		Moreover,	we	have	never	held	

that	the	bases	for	a	finding	of	parental	unfitness	must	be	limited	to	the	issues	

expressly	identified	in	a	jeopardy	order.		Cf.	In	re	Child	of	James	R.,	2018	ME	50,	

¶ 19,	 182	 A.3d	 1252 (“[T]he	 basis	 for	 a	 termination	 determination	 is	 not	

artificially	limited	to	circumstances,	frozen	in	time,	that	existed	at	some	earlier	

date.”).		The	court	therefore	did	not	err	in	considering	evidence	of	the	father’s	

drug	usage.		

B. Termination	of	the	Mother’s	Parental	Rights

[¶12]		The	mother’s	sole	contention	is	that	the	court	abused	its	discretion	

when	 it decided to	 terminate	 her	 parental	 rights	 instead	 of	 ordering	 a	

permanency	guardianship.		She	contends	that,	given	that	the	child	was	residing	

 3 Moreover,	the	court	found,	based	on	competent	evidence,	that	the	father	had	been inconsistent	

in	his	 representations	 regarding	his	 own	substance	use,	 rendering it	difficult	 for	 the	court	 or	 the	

Department	to	understand	the	scope	of	the	father’s	challenges.		
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with the	mother’s	relatives	and	the	mother was	no	longer	incarcerated	and had	

attained	sobriety,	a	permanency	guardianship	was	in	the	child’s	best	interest.		

[¶13]		“In	determining	the	appropriate	permanency	plan,	it	is	the	policy	

in	 this	 State	 that	 permanency	 plans	 for	 children,	 who	 are	 the	 subject	 of	

protection	proceedings,	be	implemented	so	that	children	will	have	stability	and	

certainty.”	 	 In	 re	 David	 W.,	 2010	 ME	 119,	 ¶ 8,	 8	 A.3d	 673	 (quotation	 marks	

omitted);	see	 also	22	M.R.S.	 § 4038-C (2017).		The	court	here	found	 that	this

child	has	clearly	expressed	a	need	for	the	permanency	that	would	be	provided	

by	an	adoption.		The	court	did	not	abuse	its	discretion in	its	determination	that	

termination	 of	 the	 mother’s	 parental	 rights,	 with	 a	 permanency	 plan of	

adoption,	is	in	the	child’s	best	interest.		

The	entry	is:

Judgment affirmed.

Christopher	J.	Whalley,	Esq.,	Ellsworth,	for	appellant	father

Jeffrey	C.	Toothaker,	Esq.,	Ellsworth,	for	appellant	mother

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

Ellsworth	District	Court	docket	number	PC-2015-10

FOR	CLERK	REFERENCE	ONLY