MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 4 Docket: Ken

- 17

- 308 Submitted

On	B riefs : 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	s atisfy	his	statutory obligation s 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 T he District	Court	( Augusta , J. French ,	J. ) entered	a	judgment	terminatin g	the	mother’s	parental rights	to	the	children	after	the	mother consented	to	termination

. See 22	M.R.S. § 4 055(1)(A)(1)(a), (B)(1)	(2017 )

. The	mother does not	appeal	from	that	judgment.

2 Co unsel	 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

.2 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	 f ather 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 , stat ing	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	 f ather	 has	 a	 lengthy	 criminal	 history	 and	 is	 currently	 in a maximum

- security facility after assaulting ano ther	 inmate	 with	 a	 padl ock 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.” )

.3 against	the	children’s	mother , with	many	of	the	incidents	being	witnessed	by both	 children.	 	 This	 ha s	 caused	 significant	 psychological	 damage	 to	 the children,	 who	 openly	 fear	 him ; Aur ora suffers	 from	 severe	 post

- traumatic stress	 disorder as	 a	 result	 of	 witnessing	 the	 violence

. The	 f ather	 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	 f ather	 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	 r ecovery 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	f ather to	get	his	life	in	order.4 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,	 t he	 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	 with in	 seven5 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	 f ather. The	 court	 found, however , that	 the	 father	 did	 not	 maintain	 contact	 with	 his	 attorney,	 his probation	office r,	the	Department,	or	the	cour t ;	that the father	failed	to	notify the	 Department	 of	 his	 whereabouts	 and	 changed	 his	 address	 without notifying hi s	 probation	 officer ;	and	 that	 the	 father	 failed to	appear	 for	 court proceedings

. Furthermore, the	 court	 found	 that	 the	 father	 had	 a	 his tory	 of
incarceration and	that, at	the	time	of	the	termination	hearing,	the	 father	was serving	 a	 nineteen

- month	 senten ce	 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. [¶1 0 ] Moreover ,	t he	guardian	ad	litem’s	compliance	with	section	400 5 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	s atisfaction	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	Septe mber	2016	family	team	meeting.6 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 [¶1 1 ]	 	 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	f ather’s	argument	fails	for	several	reasons. [¶1 2 ] First,	 t he	 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	 find ing	jeopardy	as	 to	 the	 father. The	court	additio nally	 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 :7 “[The	f ather]	shall	have	thirty	days	to	engage	in	reunification	services	through the Department.		If	he	 fails	to	do	so,	a	cease	reu nification	order	will	enter	on 6/16/16.” [¶1 3 ] On	June	8,	2016 ,	t he	father	was	arrested	for	unlawful	p ossession of scheduled	d rugs (Class	C),	17

- A	M.R.S. § 1107

- A(1)(B)(1)	(2017 )

. He was

no t	released	on	bail until	June	20 ,	by	which	time	the	cease reunification	order had been	 entered

. Three days	 after	 t he	 father	 was	 released	 on	 bail, on June 23, he was arrested for violation	 of	 c ondition of	 r elease	 (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,	 t he	guardian	ad	litem	immediately and	appropriately filed	a	motion
to	 wi thdraw	 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	pend ing ,	and,	therefore,	c ould	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	in8 the	 record	 establishes	 that	 the	 guardian	 ad	 litem	 acted in	 good	 faith	 in carrying	out	his	duties. [¶1 4 ]		Second, al though	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 profe ssionalism,	 and	 recognizing	 that	 timely	 resolution	 serves	 the	 best interests	of	the	children	and	their	need	for	stability

— section s 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. [¶1 5 ] 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. The re 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 ,	w e	are	not9 persuaded by	 the	 fathe r’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 [¶1 6 ]	 	 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	M E	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	f ather Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office of the	Attorney	General, Augusta, for	appellee	Departme nt	of	Health	and	Human Services

Augusta	District	Court	docket	number	PC

- 2016

- 01 F OR C LERK R EFERENCE O NLY