MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 174 Docket: Cum

- 19

- 248 Submitted

On	B riefs : November	21,	2019 Decided: December	30,	2019

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

IN	RE	CHILDREN	OF	DANIELLE	M.

PER	CURIAM [¶1] Danielle	M.	appeals	from	a	judgment	entered	by	the	District	Court (Portland, Eggert,	J. )	terminating	her	parental	rights	to	her	three	children,	and the	 father	 appeals	 from	 a	 judgment	 entered	 by	 the	 court	 terminating	 his parental	rights	 to the child they	have	in	common ,	who	is	 the	youngest	of	 the

children

. See 22	 M.R.S.	 §	 4055(1)(B)(2)(a),	 (b)(i),	 (ii),	 (iv)	 (2018). Each
parent	 argues that	 there	 was	 insufficient	 evidence	 to	 support	 an	 order
terminating his	 or	 her parental	 rights,	 and the	 father	 also argues	 that	 the Department	 of	 Health	 and	 Human	 Services	 did	 no t	 provide	 appropriate	 and necessary	reunification	services.		We	affirm	the	judgment.

I.		BACKGROUND [¶ 2 ]	 	 In	 December	 2017,	 the	 Department	 filed	 a	 petition	 for	 a	 child protection	 order	 and	 preliminary	 protection	 order	 for	 each	 of	 the	 three
children,	who	at that	 time	were	eight,	 four,	and	 two	years	old.		The	petitions2 alleged,	 and	 the	 accompanying	 affidavits	 from	 the	 Department	 averred,	 that the	mother	was	 abusing	illicit	 drugs	 and	 alcohol	 and	 that	 the	 children	were present	during	three	different	violent	alt ercations	involving	the	mother.		With respect	 to	 the	 father	 of	 the	 youngest	 child,	 the	 petition	 and	 affidavit	 further

cited	as	bases	for a preliminary protection order a	domestic	violence	incident during	which	the	father	pushed	the	mother	down	the	stairs	a nd	strangled	her with	the	children	present , and	a	physical	altercation	between	him,	the	mother,

and	 the	 father	 of	 the	 oldest	 child involving	 a	 crowbar ,	 during	 which	 the

children	were nearby

. [¶ 3 ]	 	 The	 court	 ( Powers, J. )	 entered	 order s of	 preliminary	 protection placing	 the	children	in	 the	Department ’ s	custody. 1 After	 the	parents	 of	each child	 waived	 the	 opportunity	 for	 a	 summary	 preliminary	 hearing,	 the	 court

entered an	order maintaining	the	Department ’ s	custody	of	each	child. [¶ 4 ]		In March	2018,	the	court	( Eggert , J. )	entered	a	jeopardy	order ,	with the	parents ’ agreement, as	to	each	of	the	three	childre n .		Jeopardy	was	based

1 Originally,	two	separate	petitions	were	filed	because	of	the	different	parentage	of	the	children: one	petition	was	 for	 the	oldest	child,	and	 the	other	was	 for	 the	 two	 younger	children. T he	court ( Lawrence,	J. )	issued	preliminary	protection	orders regard ing	the	three	children on	December	11, 2017. However,	the	second	petition	was	subsequently	amended	to	remove	the	middle	child,	and	a third	petition	was	filed naming	only the	middle	child	and	listing that	child’s father	as	unknown. The court ( Powers,	J. ) issued	preliminary	protection	orders regarding the	youngest	child	and	the	middle child	o n	December 13, 2017 , based	on	the	amended second petition	and	the third petition, and	the Department	retained	custody	of	all	th re e	children.3 on	alcohol	and	substance	abuse,	mental	health	issues,	exposure	of	the	children

to violence ,	and	the	family ’ s	prior	child	protective	history.		The	court	ordered the	 parents	 to	 participate	 in	 mental	 health	 evaluations	 and	 follow recommendations,	 undergo	 substance	 abuse	 evaluations	 to	 determine appropriate	treatment,	and	submit	to	random	drug	testing.		The	permane ncy plan	was for reunification	of	the	children	with	their	parents. [¶ 5 ]	 	 In	 February	 2019,	 the	 Department	 petitioned	 to	 terminate	 the

mother ’ s	parental	rights	to	all	three	children,	and	the	father ’ s	parental	rights to	 the	youngest	child, 2 based	on	 their lack	of	consistent	progress	 toward	any of	the	rehabilitation	and	reunification	goals. [¶ 6 ]	 	 A	 hearing	 was	 held	 on	 the	 petitions	 to	 terminate	 the	 parents ’ parental	 rights	 on	 May	 13 and 14,	 2019. After	 hearing	 testimony	 and accepting	documents	in	evidence ,	the	court	entered two	judgments,	which,	in
combination, terminat ed the	 parental	 rights	 of	 both	 parents	 to	 their respective	children	 on	May	 23,	2019. In	each	judgment,	 t he	court made the following	 findings	 by	 clear	 and	 convincing	 evidence,	 and	 its	 findings	 are

2 The	 Department	 also	 pet itioned	 to	 terminate	 the	 parental	 rights	 of	 the	 father	 of	 the e ldest child. However, th at father later	 consented	 to	 the	 termination	 of	 his	 parental	 rights, and the termination	of	his	parental	rights	is	not	at	issue	in	this	appeal.4 supported	by	competent	evidence	in	the	record. See	In	re	Daniel	H. ,	2017	ME 89,	¶	2,	160	A.3d	1182.
On	December	7,	2017,	Mother	and	 the	children	were	involved	in an	automobile accident	as	passengers	and	Mother	had	a	physical altercation	 with	 the	 driver	 of	 the	 other	 car	 while	 the	 children were	 present.	 	 The	 police	 responded	 and	 were	 concerned	 that Mother	 was	 under	 the	 influence	 of	 alcohol.	 	 The	 next	 day	 [the mother	and	both	fathe rs]	were	involved	in	a	serious	altercation

. . . with	a	crowbar	in	front	of	the	children.		Again	it	was	believed	that Mother	was	under	the	influence	of	alcohol.		[The	mother	and	one of	 the	 fathers]	 were	 arrested	 and	 [the	 other	 father]	 was hospitalized.		Th e	children	were	safety	planned	and	placed	with	a former	foster	parent.		Criminal	charges	against	Mother	were	later dismissed.	 	 Mother	 was	 ordered	 to	 participate	 in	 a	 substance abuse	evaluation	to	determine	appropriate	treatment,	and,	also	to participate	 in a	 mental	 health	 evaluation	 and	 follow recommendations.
Mother ’ s	 Rehabilitation	 Plan	 focused	 upon	 Mental	 Health treatment	 and	 Substance	 Abuse	 Treatment.	 	 There	 was	 concern about	 her	 drug	 and	 alcohol	 use	 while	 she	 was	 caring	 for	 the children.		The	goal	of the	substance	abuse	 treatment	was	 to	help Mother	 get	 to	 a	 place	 where	 she	 could	 be	 a	 safe	 and	 sober caretaker	for	her	children.		Mother	was	 to	submit	to	drug	testing upon	request.		Mother	was	also	to	have	regular	visitation	with	the children.	 	 Throughout this	 case	 those	 visits	 have	 been	 regularly attended	 and	 have	 been	 fully	 supervised.	 	 Mother ’ s	 progress	 on her	reunification	plan	has	been	irregular	and	other	than	visitation none	of	the	steps	have	been	completed.
In	 her	 earlier	 case	 Mother	 was	 able	 to	 co mplete	 her reunification	 program	 and	 be	 successfully	 reunited	 with	 the children	in	about	seventeen	months.		She	knows	how	to	do	it. In this	 case	 she	 is	 now	 seventeen	 months	 from	 the	 date	 of	 the granting	 of	 the	 PPO,	 and	little	 progress	 has	 been	made. She has done	 no	 mental	 health	 counseling	 which	 she	 acknowledges	 she5 needs	 for	her	panic	anxiety	and	depression,	but	has	not	engaged in	 the	 counseling	 that	 would	 help	 her.	 	 She	 has	 participated	 in some	 substance	 abuse	 counseling,	 but	 not	 consistently	 with	 any
o ne	program	to	make	any	significant	progress.		She	has	taken	only three	 drug	 screens	 and	 all	 were	 positive	 for	 a	 substance	 she should	not	have	been	using.		The	initial	petition	included	concerns about	her	alcohol	intoxication,	and	complaints	of	her	alcohol use has	dogged	her	throughout	the	case	including	as	recently	as	April 17,	2019	when	she	was	intoxicated	at	the	METRO	substation	and creating	a	scene	when	she	couldn ’ t	produce	a	pictu r e	i.d.	for	a	bus pass.	 	 Again	 she	 acknowledges	 her	 need	 for	 help	 with	 her addictions,	but	has	not	completed	any	of	the	programs	which	may have	helped	her.
The	 Guardian ad	 litem has	 smelled	 the	 odor	 of	 alcohol	 on Mother ’ s	 breath	 the	 last	 three	 times	 they	 had	 been	 in	 court together	 including	 on	 the	 first	 day	 of	 this	 hearing.	 	 M other appears	 to	 be	 using	 alcohol	 to	 cope	 with	 her	 anxiety	 and	 that usage	is	 continuing	 to	 the	 present.	 	 In	 addition	 the	 GAL	 has	 also learned	 that	 Mother	 has	 lost	 her	 apartment	 and	 has	 been homeless.		She	does	not	presently	have	the	ability	to	provide	safe and	stable	housing	for [ the	children ]

. [The	 children]	 w[ere]	 out	 of	 her	 care	 for	 much	 of	 the seventeen	 months	 of	 the	 duration of	 her	 first	 child	 protection petition.	 	 [They]	 ha[ve]	 now	 been	 out	 of	 her	 care	 for	 another seventeen	months	during	this petition.		Contrary	to	the	first	time when	 she	 successfully	 went	 from	 supervised	 visits	 through	 the process	leading	up	to	trial	placement	and	dismissal	of	the	petition in	 seventeen	 months,	 in	 this	 petition	 seventeen	 months	 have elapsed	 and	 she	 has	 not	 prog ressed	 beyond	 supervised	 visits. Because	 of	 her	 behavior	 and	 reactivity	 to	 reports	 from	 the children	 during	 visits	 no	 plans	 have	 been	 made	 to	 progress	 to check	 in	 visits,	 never	 mind	 in	 home	 or	 unsupervised	 visits. Allowing	more	time	to	participate	in	the programming	she	should have	been	doing	all	along	is	not	in	the	children ’ s	best	interests.6 [¶ 7 ] In	 addition	 to his	involvement	in	 the	 violent	incidents	 described above,	the	court	made	the	following	specific	findings	pertaining	to	the	father :
In addition	to	the	evaluations	ordered	in	the	Jeopardy	Order [the	 father]	was	 required	by	his	 reunification	plan	 to	participate in	education	about	violence,	and	to	participate	in	a	mental	health evaluation.		He	did	obtain	a	psychosocial	screening,	but	that	is not a	substitute	 for	a	mental	health	evaluation	which	would	be	more comprehensive	 and	 be	 based	 upon	 input	 from	 others.	 	 When asked	 about	 performing	 the	 reunification	 requirements,	 he responded	that	the	assessment	was	enough	and	that	he	was	really only	a	 s upport	 for	Mother	and	not	interested	in	 reunification	 for himself.		He	did	attend	supervised	visits	up	until	October	31,	2018 when	 he	 was	 arrested	 and	 charged	 with	 attempted	 murder	 and other	lesser	charges	by	indictment	based	upon	an	allegation	of	an attac k

.	 .	 . with	his	automobile. He	 remains	incarcerated	and	his case	is	set	for	jury	trial

.	.	. . No	evidence	was	presented	during	the hearing	to	allow	the	Court	to	make	findings	on	the	strength	of	the charges,	 but	 he	 will	 be	 incarcerated	 at	 least	 until	 af ter	 the	 jury trial. He	has	in	any	event	expressed	no	interest	in	being	involved in	the	reunification	process. [¶ 8 ] With	respect	to	the	two	younger	children,	the	court	found, [They]	 now	 have	 a	 stable	 placement	 with	 the	 same	 family

. . . .		[The youngest	child ]	has	had	some

.	.	. issues	being	dealt	with in	counseling.

.	.	. [The	youngest	child] is	doing	well	and	is	happy and	comfortable	with [the] foster	family.		[The	middle child ]	is

.	.	. engaging	and	 talkative

.	 .	 . with	great	energy. [The	ch ild] is	 very bright and has	 superior	 reading	 skills

.	 .	 . [and] is	 happy	 and comfortable	 in [the] foster	 home

.	 .	 . .	 	 The	 foster	 family	 makes sure	that	both	children	have	contact	with [the	oldest	child]

. [¶ 9 ]		With	respect	to	the o ldest	child,	the	cour t	found, [ The	 child ]	 now	 has	 a	 stable	 placement	 with	 a	 family.

.	 .	 . [The child] has [established	 a] place	 in	 the	 foster	 family	 with	 three7
other [children] ,	and	has	adjusted	well. [The	child] is	doing	well in	school	and	teachers	say [the	child] is	a	pleasure	to	have	in	class. [The	child] is	participating	in	counseling .		[The	child] says	that	all is	well	in [the] foster	home

. [¶1 0 ]		Based	on	these	findings,	the c ourt	found	that	the	Department	had

made	 reasonable	 efforts	 to	 rehabilitate	 and reunify	 the	 family,	 including through	 placement	 and	 monitoring	 in	 licensed	 foster	 homes,	 supervised
visitation,	referrals	for	mental	health	and	substance	abuse	treatment	services, family	 team	 meetings,	 and	 case	 worker	 assistance.	 	 The	 court	 found	 that,

des pite	 these	 efforts,	 the	 parents	 were	 unable	 to	 protect	 the	 children	 from jeopardy	 and	 these	 circumstances	 are	 unlikely	 to	 change	 within	 a	 time reasonably	calculated	to	meet	the	needs	of	the	children;	that	the	parents	were unable	 to	 take	 responsibility	 for the	 children	 within	 a	 time	 reasonably
calculated	 to	 meet	 the	 needs	 of	 the	 children;	 that	 t he	 parents had	 failed	 to make	a	good	faith	effort	to	rehabilitate	and	reunify	with	the	children;	and	that termination	 of	 the	parents ’ parental	 rights	is	in	 the	childr en ’ s	best	interest s
. See 22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i),	(ii),	(iv). The	court	also	found	that	all three	children	have	good	prospects	to	be	adopted.8 [¶1 1 ]	 	 The	 parents	 timely	 appealed	 from	 the	 court ’ s	 judgment. 3

See 22 M.R.S.	§	4006	(2018);	M.R.	App.	P.	2A,	2B.

II.		DISCUSSION

A. Termination	of	the	Mother ’ s and	Father ’ s Parental	Rights [¶1 2 ] Both	 parents	 argue that	 there	 was	 insufficient	 evidence	 to

s upport the	court ’ s judgment terminating their parental	rights.		We	review	the

court ’ s	 factual	 findings	 supporting	 the	 unfitness	 and	 best	 interest
determinations	for	clear	error,	and	we	review	the	court ’ s	ultimate	conclusion

that	 termination	 was	 in	 the	 child ’ s	 best	 interest	 for	 an	 abuse	 of	 discretion,

“ viewing	 the	 facts,	and	 the	weight	 to	be	given	 them,	 through	 the	 trial	court ’ s lens,	giving	the	court ’ s	judgment	substantial	deference. ” In	re	Gabriel	W. ,	2017 ME	133,	¶	2,	166	A.3d	982 (quotation	marks	omitted). [¶1 3 ]		Before	a	court	orders	 the	 termination	of	parental	rights,	it	must

first find	 by	 clear	 and	 convincing evidence that	 one	 of	 the	 following

circumstances	exists: (i) The	parent	is	unwilling	or	unable	to	protect	the	child	from	jeopardy and	these circumstances	are	unlikely	to	change	within	a	time	which	is reasonably	calculated	to	meet	the	child ’ s	needs;

3 On	June	5,	2019,	prior	to	filing	a	notice	of	appeal,	the	father	moved	for	reconsideration	and for the	 court to	 amend its findings	and issue additional	 findings	 of	 fact	and	 conclusions	 of	law.		 The father ’ s	motion	was	denied	on	July	1,	2019

.9 (ii) The	parent	has	been	unwilling	or	unable	to	take	responsibility	for the	 child	 within	 a	 time	 which	 is	 reasonably	 calculated	 to	 meet	 the child ’ s	needs; (iii) The	child	has	been	abandoned;	or (iv) The	 parent	 has	 failed	 to	make	 a	good	 faith	effort	 to	 rehabilitate and	reunify	with	the	child	pursuant	to	section	4041. 22	 M.R.S.	 §	 4055(1)(B)(2)(b)	 (2018)

. T he n,	 the court	 must determine

whether	 there	 is clear	 and	 convincing	 evidence to	 support	 a	 finding that termination	 of	 parental	 rights	 is	 in	 the	 best	 interest	 of	 the	 child. Id

. § 4055(1)(B)(2)(a). [¶1 4 ] We	 have	 reviewed	 the	 record	 in	 its	 entirety	 to	 determine

whether	 the evidence	 of	 parental	 unfitness	 and	 the	 child ren ’ s	 best	 interest s are	 sufficient,	 and	 we	 conclude	 that	 (1)	 competent	 evidence	 in	 the	 record supports	the	court ’ s	finding,	by	clear	and	convincing	evidence,	of	one	or	more grounds	 of	 parental	 unfitness as	 to	 each	 parent , see id .	 § 4055(1)(B)(2)(b), and	 (2)	 the	 court	 did	 not	 commit	 clear	 error	 or	 abuse	 its	 discretion	 in determining	that	termination	of each	parent ’ s parental	rights	is	in each	child’s
best	interest, see id

. §	4055(1)(B)(2)(a). See In	re	D aniel	H. ,	2017	ME	89,	¶	17,

160	A.3d	1182. [¶1 5 ]	 	 To	 the	 extent	 the	 father	 argues	 that	 the	 Department	 failed	 to provide	appropriate	and	necessary	reunification	services,	we	note	that “ [t]he10 Department ’ s	 compliance	 with	 its	 rehabilitation	 and reunification	 duties	 .	 .	 . does	 not	 constitute	 a	 discrete	 element	 requiring	 proof	 in	 termination proceedings,	 nor	 does	 the	 failure	 of	 the	 Department	 to	 comply	 with	 [its duties]	 preclude	 findings	 of	 parental	 unfitness. ” Id. ¶	 15 (quotation	 marks omitted)

. Any	 lack	 of	 reunification	 efforts	 is	 considered	 as “ one	 of	 many factors	in	evaluating	the	parent ’ s	fitness. ” Id. [¶1 6 ]	 	 Although	 the	 father	 contends	 that	 the	 Department	 failed	 to perform	 its	 duties,	 the	 Department	 developed a rehabilitation	 and

reunifica tion	plan	 for	him. Cf. In	 re	Thomas	D. ,	2004	ME	104,	¶ ¶	41

- 42,	854

A.2d	 195 .	 	 There	is	 competent	 evidence	in	 the	 record	 to	 support	 the	 court ’ s finding	that the	father was	not	interested	in	reunification	for	himself	and	was merely	 supporting	 the	 mother

. Therefore,	 we	 cannot	 conclude	 that	 the Department	 failed	 to “ [m]ake	good	 faith	efforts	 to	cooperate	with	 the	parent in	pursuit	of	the	plan. ” 22 M.R.S.	§ 4041(1

- A)(A)(3) (2018)

. The	entry	is: Judgment affirmed.11 Seth	Berner,	Esq.,	Portland,	for	appellant m other Matthew	Govan,	Esq.,	Govan	Law	Office,	P.A.,	Portland,	for	appellant f ather Aaron	 M.	 Frey,	 Attorney	 General,	 and	 Hunter	 C.	 Umphrey,	 Asst.	 Atty.	 Gen., Office	of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and Human	Services

Portland	District	Court	docket	numbers	PC

- 2017

- 84,	PC

- 2017

- 85,	and	PC

- 201 7

- 86 F OR C LERK R EFERENCE O NLY