MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	222

Docket: Han-17-329

Submitted

On	Briefs: 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	 and	 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	members 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	 can	
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result	 in physical	 and behavioral 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	safely	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	his	struggles	with	alcohol	

abuse,	he	was	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	persuaded	 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,	
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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	 responsibility	 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	 describe	 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	 30th. They	 weren’t	 calm.		

Dominyk	was	hard	to	handle.		[The	mother’s	fiancé] felt	that	they	

really	needed	time	away	from	Dominyk.		
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[The	 HCT	 worker] and	 .	 .	 .	 Dominyk’s	 school	 nurse	 noted	

that	 [physiological	 hygiene	 issues	 were] a	 significant	 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	 importance	 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.	 	 The	

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	

partner . . . have	given	inconsistent	explanations for	these	injuries.	

Dominyk’s	 explanations	 have	 also	 been	 inconsistent.	 More	

troubling	to	the	court	is	[the	mother]’s	assertion	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	 simply	 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	 parenting	 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	physically	
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and	 emotionally	 while	 with	 [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	mother] 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	 unlikely	 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	 unable	 to	 take	

responsibility	 for	 Dominyk	 within	 a	 time which	 is	 reasonably	

calculated	to	meet	his	needs.
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[¶6]		The	mother	contends	on	appeal	that	the judgment	terminating	her	

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

rehabilitation	 and	 reunification	 obligations,	 particularly by	 failing	 to	

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

§ 4041	(2016).		The	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,	 during	 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	 implement	 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	 reactions 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	 reasonably	 calculated	 to	 meet	 his	 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,	
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and	it	did	not	err	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	mother

Mary	Kellett	Gray,	Esq.,	Brooklin,	for	appellant	father

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-2015-09

FOR	CLERK	REFERENCE	ONLY