MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 200 Docket: Pen

- 17

- 201 Submitted

On	B riefs : September	27,	2017 Decided: October	5,	2017

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

IN	RE MARCUS	E.

PER	CURIAM
[¶1] The mother of Marcus	E

. appeal s from	a	judgment	of	 the	District
Court	 ( Bangor
, Campbell ,	 J. )	 terminating her parental	 rights	 to Marcus

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

- (ii) (2016)

. 1

She challenge s the	 sufficiency	 of	 the	 evidence	 to	 support	 the	 judgment.
Because	 the	 evidence	 supports	 the	 court’s	 findings a nd	 discretionary

determination
, we affirm	the	judgment.

[¶2 ] On	 September 23,	 2015,	 the	 mother	 agreed	 to	 the	 following
language	of	a	jeopardy	order	for	the	child	and	his	sibling: 2

1 The	court	entered	a	judgment	terminating	the	parental	rights	of	the	child’s	father	on	June	27, 2016. The	father	is	not	a	party	to	this	appeal.

2 T he	child’s	sibling	is	in	the	custody	of	her	father	and	is	no	longer	part	of	these	proceedings.

At the	 termination	 hearing,	 t he	mother	 claimed	 that	 she	 had	 not	 been	aware	 that	 she	 could disagree	with	 the	jeopardy	 finding	and	 require	 the	Department of	Health	and	Human	Services to prove	 jeopardy	 at	 a	 contested	 hearing. The	 court’s	 finding	 that	 her	 claim was not	 credible is supported	by	evidence	that	the	court asked the	mother	at	the	jeopardy	hearing if she	was	aware	of her	rights	and if she	was	agreeing	to	the	jeopardy order of	her	own	free	will.2

The	 minor	 ch ildren	 are	 in	 circumstances	 of	 [j] eopardy	 to	 their health	and	welfare	in	the	c are	and	custody	of	their	mother	.	.	. due to	threat	of	seri ous	harm. [The	mother] allowed [the	children] to live	in	 the	 same	 home	as	 her	 father

.	 .	 . despite	 the	 fact	 that	 her father	was	convicted	of	sexually	abusing	her	as	a	child

.	.	.	. [The child’s	sibling] was	sexually	abused	by [the	mother’s	father] while i n [the] mother’ s	care. [The	mother] did	not	take	adequate	steps to	 protect	 her	 children	 and	 still	 resides	 with [her	 father]

. [She] has	struggled	to	recognize the	risk	posed	to	her	children.

[¶3 ]		On	April	24,	2017,	b ased	on	competent	evidence	in	the	record,	the
court	found,	by	clear	and	convincing	evidence,	that	the mother	was unwilling
or	unable	 to	protect	 the	child	 from	jeopardy and unwilling	or unable	 to	 take
responsibility	 for	 the	 child	 within	 a	 time	 reasonably	 ca lculated	 to	 meet	 his

needs	and that	termination	of her parental	rights	is	in	the	child’s	best	interest.

See 22	M.R.S.	§	4055(B)(2)(a),	(b)(i)

- (ii); In	re	Robert	S. ,	2009	ME	18,	¶	15,	966

A.2d	894

. The court based	this	determination	on the	following findings	of	fact :
[M] other	has	made	no	progress,	whatsoever,	on	the	central	issue in	 this	 case. Mother	 has	gained	 no	insight	into	 the	 risk	 that	 her father	 presents	 to	 her	 children. Rather	 than	 gaining	 insight, mother	is	trying	to	convince	people	that	her father	does	not	pose a	risk	to	children. The

.	.	. mother	continues	to	demonstrate	poor judgment	and	a	complete	lack	of	protective	capacity	with	respect to	her	children.

.	.	.	.

.	 .	 . The	 court	 does	 not	 believe	 that	 mother	 will	 keep	 her	 father away	from [the	child] if [the	Department] is	not	involved. Mother does	not	have	the	ability	to	recognize	and	protect [the	child] from3
unsafe	people	and	unsafe	situations. Nothing	has	changed	in two years.

.	.	.

.	.	.	. [The	 child] has	 been	 placed	 with [his	 foster	 parents] since February	of	2016. [They] have	provided	a	loving,	safe,	and	stable home	 for [him]

. [They] have	 been	 providing	 excellent	 care	 for [him].	.	.	.
.	.	.	[The	foster	par ents] love [the	child] very	much,	and	they	want very	much	to	adopt	him. [The	child] needs	a	safe	and	permanent home,	which	mother	is	unable	to	provide.
[¶4 ]		Given	these	findings and	the	court’s other specific	findings	of	fact,
all	of	which	are	supported	by	competent	evidence	in	the	record, t he	court did

not err	or abuse	its	discretion	in	determining	 that the	mother	was	unfit	and

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

adoption, is	in	the	child’s	best	interest. See In	re	Robert	S. ,	2009	ME	18,	¶	15,

966	A.2d	894 ; In	re	Thomas	H. ,	2005	ME	123,	¶¶ 16

- 1 8 ,	889	A.2d	297

. [¶5 ] T he	mother nonetheless	contends that	the	court’s	judgment	is	not
supported	by competent evidence	in	 the	record	because	 the	Department	di d

not	 pr ove that	 her	 father was	in	 fact	 convic ted	 of	 sexually	 abusing a	minor

. The	 court’s	 determination	 that	 the	 mother’s	 rights	 to	 the	 child	 should	 be
terminated,	however,	was	not	based	upon	a	 finding	 that her	 father	had	been

convicted	of a	specific	crime

. Rather ,	it	was	based	on	 the	mother’s failure

—4

even after	receiving	two	years	of	reunification	services

— to address	a	concern
for	the	child’s	safety	that	was	identified	by	the	Department	and	clearly	agreed
to	 by	 the	mother	 at	 the	jeopardy	 hearing

. 3 See In	 re	 Scott	 S. ,	 2001	ME	 114,

¶ 15 ,	775	A.2d	1144 (“[T] he [termination] hearing	focused,	as	it	should,	not	on

the	o riginal	reason	for	the	children’s	removal	from	the	parents’ home,	but	on

the	 parent s’ actions since	 that	 time	and	 their	ability,	 contemporaneous	with
the	 termination	 hearing	 and	 into	 the	 future,	 to	 provide	 safe	 care	 for	 the
[ children]

. ” )

. A lthough	 the	 mother testified at	 the	 termination	 hearing	 that
she	had	lied	when	she	 reported	 that	her	 father	had	sexually	abused	her and

that	 her	 father	 was	 innocent
, the	 court acted	 well	 within	 its authority in
determining	that her	testimony was	not credible

. S ee In	re	I.S. ,	2015	ME 100,

¶	 11,	 121 A.3d	 105 (“[I]t	 was	 within	 the	 court’ s	 province,	 as	 fact

- finder,	 to
determine	the	weight	and	credibility	to	be	afforded	to	evidence .”).
The	entry	is:
Judgment	affirmed.

3 Although	the	court	was	requ ired	 to	make	its	unfitness and	best	interest	determinations by	a higher	 standard	 of	 proof	 than its	 findings in earlier stages	 of the proceedings ,	 including the jeopardy stage , the	 same	 judge	 presided	 over nearly	 the	 entirety	 of	 these child	 protective proceeding s and	 was	 entitled	 to	 consider	 the	 evidence	 presented throughout

. See In	 re	 Scott	 S.
, 2001	ME	114,	¶¶	12

- 13,	775	A.2d	1144

. Additionally ,	 the	Department	was	not	required	 to	prove that	 the	mother’s	 father	was convicted of a	 certain	 crime at	each	 stage	 of	 t he	 proceeding. See	id. ¶ 15 ; In	re	Rachel	J. ,	2002	ME	148,	¶	19,	804	A.2d	418 (“ The	nature	of	the	proof	required	in	the	child protective	 context	 is	 different	 than	 in	 the	 criminal	 context;	 the	 court	 is	 assessing	 a	 risk,	 not determining	whether	the	father c ommitted	a	criminal	act

. ”)

.5

Randy	G.	Day ,	Esq.,	Garland,	for	appellant	m other
Janet	T.	Mills,	Attorney	General
, and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Offic e	of the	Attorney	General,	Augusta,	for	appellee Department	of	Health	and	Human Services

Bangor	District	Court	docket	number	PC

- 2015

- 2 9 F OR C LERK R EFERENCE O NLY