MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 201 7 ME 222

Docket: Han

- 17

- 329

Submitted

On	B riefs : November	29,	2017

Decided: December	7,	2017

Panel: SAUFLEY,	C.J.,	and ALEXANDER

, MEAD ,	JABAR

, HJELM, and HUMPHREY

, JJ.

IN	RE DOMINYK	T.

PER	CURIAM

[¶1] The	parents	of	Dominyk	T.	appeal	from	a	judgment	of	the	District

Court	 ( Ellsworth

, Roberts,	 J. ) terminating	 their	 parental	 rights	 to	 the	 child.

The	mother	argues,	and	the	father joins	in	her	argument ,	that	the	Department

of	 Health	 and	 Human	 Services failed	 to	 satisfy	 its	 obligation	 to	 provide

necessary	 services	 to the	 mother and	 that	 the	 record	 cannot	 support	 the

finding	of	parental	unfitness	or	the	determination	that the termination	of	her

parental	 rights	is	in	Dominyk’s	 best	interest. The	 father also contends	 that,

although	 he	 is	 unable	 to	 care	 for	 the	 child,	 the	 mother	 an d	 he	 should	 both

retain	their	parental	rights.		We	affirm	the	judgment.

[¶ 2 ] When the	 Department	 petitioned	 for	 a	 child	 protection	 order	 in

February	2015,	 the	child had already been residing	apart	 from both parents

with	 family	member s as	part	of	an	agreed upon	safety	plan. The	child	has a

genetic	 disorder that causes rapid growth	 in	 the	 first	 years	 of	 life and	 can2

result	 in physical	 and behavior al challenges

. The	 Department	 alleged	 in	 its

petition	 that	 the	 father	was	unable	 to	maintain	sobriety	and	 that the	mother

could	not	maintain	a	stable	home	and	saf ely	care	for	the	child.

[¶ 3 ]		Upon	 the	parties’	agreement,	 the	court	 found in	March	2015 that

the	child	was	in	jeopardy	with	the	mother	due	to	the involuntary termination

of	 her	 parental	 rights	 to two other	 children	 in	 2005,	 her	 inability	 to	 keep

Dominyk	safe	or	meet	his medical needs,	her	inability	to	maintain	appropriate

housing,	and	her repeated choice	of	unsafe	partners. See 22	M.R.S.	§§ 4002(6),

4035(2)	 (2016). The	 father	conceded	 that,	due	 to	h is struggles	with alcohol

abuse,	he	w as	unable	to	care	for	Dominyk.

[¶ 4 ] The	 Department	 first	 filed	 a	 petition	 to	 terminate	 the	 parents’

parental	 rights	 in	 February	 2016. The	 court	 held	 a	 trial	 on	 that	 petition	 in

November	and	December	2016	and	was	not	p ersuaded	 that	 the	Department

had	 established the	 mother’s unfitness. On	 that	 basis,	 the	 court	 denied	 the

petition ,	 and	 the	 Department	 then	 transitioned	 the	 child	 into	 the	 mother’s

care

.

[¶ 5 ]	 	 After	 the	 Department	 received new evidence of	 injuries	 to

Dominyk ,	it	filed	another	petition	to	terminate	the	parents’	parental	rights	on

April	11,	2017. The	court	held	a	 trial	 on	 that	petition	and	 on	 July	11,	2017,3

entered	 a	 judgment	 granting	 the	 petition	 to	 terminate	 the	 parents’	 parental

rights	after	finding, by	clear	and	convincing	evidence,	the	following	facts,	all	of

which	 are	 supported	 by	 competent	 evidence	 in	 the	 record. See 22 M.R.S.

§ 4055(1) (A)(1)(a), (B)(2)	(2016); In	re	A.M. ,	2012	ME	118,	¶	29 ,	55	A.3d	463.

[The	 mother] is	 very	 willing	 to	 take	 res ponsibility	 for	 Dominyk and	to	protect	him	from	jeopardy. She	is	simply	unable	to	care	for him	 consistently. [The	 mother] worked	 extremely	 hard	 to alleviate	 the	 issues	 that	 brought	 him	 into	 care. She	 engaged	 in counseling

.	 .	 . for	 close	 to	 2	 years. [The	 counselor] remains supportive	 of [the	 mother] indicating	 that	 she	 is	 a	 competent parent	 committed	 to	 her	 child	and	able	 to	 set	appropriate	limits

for	 him. At	 hearing, [the	 mother] articulated	 the	 parenting knowledge	 that	 she	 has	 acquired. She	 can	 de scribe	 Dominyk’s needs	and	the	parenting	skills	that	she	would	utilize	to	deal	with

him. [Her] parenting	progress	is	contradicted	by	the	observations

of	the	in

- home	care	providers. She	cannot	consistently	apply	the parenting skills	that	she	has	acquired.

Dominyk	 was	 transitioned	 into [the	 mother’s] care	 on December	 30,	 2016,	 following	 the	 court’s	 denial	 of	 the Department’s	 first	 termination	 petition. [The	 mother] received

HCT [home	 and	 community	 treatment] services

.	 .	 . following Dominyk’s	placement in	her	home. [The HCT worker] noted	that Dominyk	 exhibited	 heightened	 aggression	 following	 his	 return.

She	 observed	 that [the	mother] has	a	low	 stress	 threshold	while Dominyk	is	quick	to	agitate. This	resulted	in	clashes	between	the

two. [The	 mother] would	 become	 agitated	 with	 Dominyk,	 he would	 respond	 with	 aggression	 and	 the	 HCT	 worker	 would intervene	 to	 calm	 the	 situation.	 	 Unfortunately, [the	 mother]

admitted	 that	she	couldn’t	maintain	 the	calm	environment. [The mother]’s partner	 confirmed	 that	 he and [the	 mother] were becoming	 irritable	 before	 March	 30 th

. They	 weren’t	 calm. Dominyk	was	hard	to	handle. [The	mother’s	fiancé] felt	that	they really	needed	time	away	from	Dominyk.4

[The	 HCT	 worker] and

.	 .	 . Dominyk’s	 school	 nurse	 note d

that [phys iolog ical	 hygiene	 issues	 were] a	 signific ant	 concern during	 his	 placement	 with [the	 mother].

.	 .	 . [ The	 HCT	 worker]

addressed	 her	 concerns	 with [the	 mother]

. [The	 mother] could acknowledge	the	issue	and	seek	guidance	from [the	HCT	worker]

. Unfortunately

, [the	 mother] was	 unable	 to	 adequately	 assist Dominyk.

.	.	.

Dominyk	 needs	 physical	 activity	in	 his	 daily	 routine. [The HCT	 worker] provided [the	 mother] with	 a	 sheet	 of	 physical activities	 designed	 to	 assist	 Dominyk. While	 she	 acknowledged the	 impo rtance	 of	 physical	 activities	 for	 Dominyk [the	 mother] failed	 to	 prompt	 him	 to	 engage	 in	 the	 activities. [The	 mother] reported	 that	 Dominyk	 was	 unable	 to	 complete	 specific developmentally	targeted	tasks.

The	 trial	 placement	 ended	 on	 March	 30,	 2017.	 	 T he Department	 removed	Dominyk	 from	 his	mother’s	 care	 following reports	 from [the	HCT	worker] and [the	school	nurse] of	injuries that	 they	 had	 observed	 on	 him. The	 most	 concerning	 injuries were	a	bruise	on	his	wrist	and	a	black	eye. [The	mother] and	her

p artner

. . . have	given	inconsistent	explanation s for	these	injuries. Dominyk’s	 explanations	 have	 also	 been	 inconsistent. More troubling	to	the	court	is [the	mother]’s	asser tion	that	she	was	not aware	of	his	black	eye.		Dominyk’s	injury	was	clearly	visible	to	his school	nurse	and	is	clearly	visible	on	photographs	taken	after	her
report. At	a	minimum [the	mother] failed	to	care	for	a	concerning injury.

[The	 mother] is	 sim ply	 unable	 to	 take	 responsibility	 for Dominyk	 within	 a	 time	 reasonably	 calculated	 to	meet	 his	 needs. [The	mother] is	unable	to	protect	him	from	jeopardy	within	a	time reasonably	 calculated	 to	 meet	 his	 needs.	 	 While	 she	 is	 able	 to understand	 appropriate	 pa renting	 techniques	 she	is	 consistently unable	 to	 apply	 them. [The	 foster	 mother] has	 provided	 foster care	for	Dominyk	for	over	2	years.		Dominyk	was	returned	to	her care	after	March	30,	2017.		She	noted	that	he	regressed	physically5

and	 emotionally	 while	 w ith [the	 mother] .	 	 He	 was	 able	 to complete	simple	physical	tasks	while	in	the [foster] home	that	he had	been	unable	 to	accomplish	with	his	mother. He	was	able	 to regain	his	toilet training	in	her	care	as	well.

This	court	finds	by	clear	and	convincing	evidence	that	DHHS

offered [the	 mother] and [the	 father] appropriate	 services	 and referred	them	to	providers. [The	father] was	simply	unwilling	or unable	 to	engage	 or	make	changes. [The	mother] was	unable	 to

make necessary	 changes. This	 court	 finds	 that	 there	 is	 nothing

more	 that	 DHHS	 could	 have	 done	 to	 assist [the	 mother] or [the father] in	this	case.

.	.	.	.

[The	mother] has	worked	exceptionally	hard	to	acquire	the parenting	skills	needed	for	Dominyk’s	care. The	difficulty	for [the mother] is	one	of	timing. Dominyk	cannot	continue	to	wait	for	his [mother] to	 do	 all	 the	 things	 necessary	 to	 set	 up	 a	 stable,

consistent	and	safe	life.

.	.	. He	needs	a	permanent	home	now	and cannot	 wait	 any	 longer	 for [the	mothe r] to	 get	 her	 life	in	 order. This	is	a	particularly	troubling	case	because	it	is	clear	to	this	court

that [the	 mother] loves	 Dominyk	 dearly.	 	 Despite	 that	 love

, [the mother] is	 unable	 to	 take	 full	 responsibility	 for	 Dominyk	 at	 this

time. The	 court	 does	 not	 believe	 that	 she	 will	 be	 able	 to	 take responsibility	for	him	within	a	time	reasonably	calculated	to	meet

his	needs.

.	.	.	.

This	court	finds	by	clear	and	convincing	evidence	that	even though [the	 mother] may	 be	 willing,	 she	 is	 unable to	 protect Dominyk	 from	 Jeopardy	 and	 these	 circumstances	 are	 u nlikely	 to change	within	 a	 time which	is	 reasonably	 calculated	 to	meet	 his needs.		This	court	also	finds	by	clear	and	convincing	evidence	that even	 though [the	 mother] may	 be	 willing,	 she	 is	 un able	 to	 take responsibility	 for	 Dominyk within	 a	 time which	 is	 reasonably

calculated	to	meet	his	needs.6

[¶ 6 ] T he	mother	contends on	appeal that	the judgment	terminating	her

parental	 rights	must	 be	 vacated	 because	 the Department	 failed	 to	 satisfy	its

reh abilitation	 and	 r eunification	 obligations ,	 particularly by	 failing	 to

investigate	 the	 cause	 of	 Dominyk’s	 bruises	 more	 thoroughly. Se e 22	 M.R.S.

§ 4041	(2016)

. T he	court found that the	Department	made	significant	efforts

to	assist	the	mother	and	that	she	received	multiple	and	appropriate	services.

The	 court	 also	 found	 that,	 d uring	 Dominyk’s three

- month trial	 placement

—

the	 first	 time	 he	 had	 resided	 full

- time	 with	 his	 mother in	 three or	 more

years

— the	 mother was	 unable	 to imp lement	 learned	 parenting	 skills

,

resulting	 in	 significant	 physical	 and	 behavioral	 problems	 for	 Dominyk ; she

could	not respond	effectively	when Dominyk became	agitated;	she	could	not

control	 her	 own	 emotional	 react ions to	 his	 behavior; and Dominyk suffered

injuries that,	at	a	minimum,	 the	mother	 did	 not	 treat while Dominyk was	in

her	care

.

[¶ 7 ] Based	 on the facts	 that	 the	 court	 found ,	 all	 of	 which	 have

evidentiary	 support, the	 court	 did	 not	 err in	 finding that	 the mother	 was

unable	 to protect Dominyk from	 jeopardy or take	 responsibility	 for him

within	 a	 time that	 is reasonab ly	 calculated	 to	 meet	 hi s	 needs

, see 22	 M.R.S.

§ 4055(1)(B)(2)(b)(i ) ,	(ii) ; In	re	Thomas	D. ,	2004	ME	104,	¶	21,	854	A.2d	195

,7

and it did	not	er r or	abuse	its	discretion	in	determining	that the termination	of

her parental	 rights	 was	 in Dominyk ’s	 best	 interest, see 22 M.R.S.

§ 4055(1)(B)(2)( a) ; In	re	A.M. ,	2012	ME	118,	¶	29,	55	A.3d	463; In	re	Thomas

H. ,	2005	ME	123,	¶¶	16

- 17,	889 A.2d	297

. Nor	did	the	court	err	or	abuse	its

discretion	 in	 terminating	 the	 parental	 rights	 of	 the	 father. See 22 M.R.S.

§ 4055 (1 )(B)(2)(a),	(b)(i),	(ii),	(iv) ; In	re	Daniel	H. ,	2017	ME	89,	¶	17,	160	A.3d

1182

.

The	entry	is:

Judgment affirmed.

Dawn	 M.	 Corbett,	 Esq.,	 Law	 Office	 of	 Dawn	 M.	 Corbett,	 PA,	 Ellsworth,	 for appellant m other

Mary	Kellett	Gray,	Esq .,	Brooklin,	for	appellant	f ather

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	Distri ct	Court	docket	number	PC

- 2015

- 09

F OR C LERK R EFERENCE O NLY