MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	200

Docket: Pen-17-201

Submitted

On	Briefs: 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.	appeals 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).

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She challenges the	 sufficiency	 of	 the	 evidence	 to	 support	 the	 judgment.

Because	 the	 evidence	 supports	 the	 court’s	 findings and	 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		The	child’s	sibling	is	in	the	custody	of	her	father	and	is	no	longer	part	of	these	proceedings.		

				At	the	 termination	 hearing,	 the	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.		
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The	 minor	 children	 are	 in	 circumstances	 of	 [j]eopardy	 to	 their	

health	and	welfare	in	the	care	and	custody	of	their	mother	.	.	.	due	

to	threat	of	serious	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	

in	[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,	based	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	 calculated	 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] from	
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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	parents] 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, the	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,	¶¶ 16-18,	889	A.2d	297.

[¶5]		The	mother nonetheless	contends that	the	court’s	judgment	is	not	

supported	by	competent	evidence	in	 the	record	because	 the	Department	did	

not	 prove that	 her	 father	was	in	 fact	 convicted	 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—
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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	original	reason	for	the	children’s	removal	from	the	parents’ home,	but	on	

the	 parents’ actions	 since	 that	 time	and	 their	ability,	 contemporaneous	with	

the	 termination	 hearing	 and	 into	 the	 future,	 to	 provide	 safe	 care	 for	 the	

[children].”). Although	 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.		See 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	required	 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	

proceedings 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	 the	 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 committed	a	criminal	act.”).
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Randy	G.	Day,	Esq.,	Garland,	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

Bangor	District	Court	docket	number	PC-2015-29

FOR	CLERK	REFERENCE	ONLY