MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	174

Docket: Cum-19-248

Submitted

			On	Briefs: 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	 not	 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	petitions	
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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	altercations	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	and	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	 orders 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	children.		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.		The	court	

(Lawrence,	J.)	issued	preliminary	protection	orders	regarding	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	on	December	13,	2017, based	on	the	amended	second	petition	and	the	third petition,	and	the	

Department	retained	custody	of	all	three	children.	
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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	permanency	

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,	 terminated the	 parental	 rights	 of	 both	 parents	 to	 their	

respective	children	 on	May	 23,	2019.	 	In	each	judgment,	 the	court	made the	

following	 findings	 by	 clear	 and	 convincing	 evidence,	 and	 its	 findings	 are	

 2	 	 The	 Department	 also	 petitioned	 to	 terminate	 the	 parental	 rights	 of	 the	 father	 of	 the	 eldest	

child.	 	 However,	 that father later	 consented	 to	 the	 termination	 of	 his	 parental	 rights,	 and the	

termination	of	his	parental	rights	is	not	at	issue	in	this	appeal.
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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	fathers]	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.		The	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	 complete	 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	 she	
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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	

one	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	picture	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.	 	 Mother	

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	 progressed	 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.	
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[¶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	 support	 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	

attack .	 .	 .	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	 after	 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	child] 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	oldest	child,	the	court	found,

[The	 child]	 now	 has	 a	 stable	 placement	 with	 a	 family.	 .	 .	 .	 	[The	

child] has	 [established	 a] place	 in	 the	 foster	 family	 with	 three	
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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.		

[¶10]		Based	on	these	findings,	the	court	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,	

despite	 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	 the	 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	children’s	best	interests.		

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.		
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[¶11]	 	 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

[¶12]	 	 Both	 parents	 argue that	 there	 was	 insufficient	 evidence	 to

support 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).

[¶13]		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.
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(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).	 	 Then,	 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).		

[¶14]	 	 We	 have	 reviewed	 the	 record	 in	 its	 entirety	 to	 determine	

whether	 the	 evidence	 of	 parental	 unfitness	 and	 the	 children’s	 best	 interests

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	Daniel	H.,	2017	ME	89,	¶	17,	

160	A.3d	1182.

[¶15]	 	 To	 the	 extent	 the	 father	 argues	 that	 the	 Department	 failed	 to	

provide	appropriate	and	necessary	reunification	services,	we	note	that	“[t]he	
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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.

[¶16]	 	 Although	 the	 father	 contends	 that	 the	 Department	 failed	 to	

perform	 its	 duties,	 the	 Department	 developed	 a	 rehabilitation	 and	

reunification	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.
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Seth	Berner,	Esq.,	Portland,	for	appellant	mother

Matthew	Govan,	Esq.,	Govan	Law	Office,	P.A.,	Portland,	for	appellant	father

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-2017-86

FOR	CLERK	REFERENCE	ONLY