MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	146

Docket: Pen-18-185

Submitted

on	Briefs: October	10, 2018

Decided: November	6,	2018

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

IN	RE	CHILDREN	OF	ANTHONY	M.

PER	CURIAM

[¶1]	 The	mother	and	father	of	three	children	appeal from a	judgment	of	

the	District	Court	(Bangor,	Jordan,	J.)	terminating	their	parental	rights	to	their	

two	 older	 children	 pursuant	 to 22	 M.R.S.	 §	 4055(1)(A)(1)(a)	 and	 (B)(2)(a),	

(b)(i)-(ii)	 (2017).

1 The	 parents challenge	 the	 sufficiency	 of	 the	 evidence	

supporting the	court’s determination of	parental	unfitness	and	further	contend	

that	the	court erred	by	concluding that	termination	of	their	parental	rights	is	in	

the	best	interests	of	the	children. We	affirm	the	judgment.		

 1 The	judgment terminating	 parental	 rights	 also	includes	 a	jeopardy	 order that	pertains	 to	 a	

separate	child	protection action	relating	to	the	parents’	third	and	youngest	child.		The	mother	initially	

appealed the	jeopardy	order	but	later	withdrew	it,	leaving	only	the	appeal	from	the	termination	order	

relating	to	the	two	older	children.		Unless	indicated	otherwise,	our	references	in	this	opinion	to	the	

children	mean	the	two	older	children	as	to	whom	the	parents’	rights	have	been	terminated.
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I.		BACKGROUND

[¶2]		The	following	facts,	which	are	supported	by	the	evidence,	are	drawn	

from	the	judgment2 and	the	procedural	record.		See	In	re	Children	of	Nicole	M.,	

2018	ME	75,	¶	2,	187	A.3d	1.

[¶3]		In	July	of	2016,	the	Department of	Health	and	Human	Services	filed	

a	 petition	 for	 preliminary	 protection	 and	 a	 child	 protection	 petition	 with	

respect	to	the	mother	and	father’s	two	children,	the	younger	of	whom	had	just	

been	born.		See	22	M.R.S.	 §§	4032-4033	 (2017).		The	preliminary	 protection	

order	was	granted	by	the	court	(Budd,	J.),	and	the	children	were	placed	in	the	

custody	of	the	Department	at	that	time.		

[¶4]		By	 agreement,	in	 February	 of 2017,	 the	court	(Jordan,	J.)	made	a	

finding	of	jeopardy	against	the	mother	and	father	based on	the	father’s	history	

of	violence	and	criminal	involvement, the	mother’s	pattern	of	choosing	unsafe	

partners,	and	each	parent’s	untreated	mental	illness.		The	court’s	permanency	

planning	 order	 included requirements that	 each	 parent	 complete	 a	 mental	

health	evaluation and	that the	father	be	evaluated	for	the	batterers	intervention	

 2 The	judgment	also	contains	descriptions	of	 testimony	 that	 the	court	did	not	characterize	as	

findings	of	fact.		We	restrict	our	narrative	to	those	facts that	the	court	framed	as	its	findings.	
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program.		Both	parents	were	ordered	to	follow	any	recommendations	made	by	

the evaluators.		

[¶5]	 	 The	 following	 June, the	 Department	 petitioned	 the	 court	 to	

terminate both	 parents’ parental	 rights. While	 the	 termination	 petition	was	

pending, the	mother	gave	birth	to	the	parents’	third child,	who	is	the	subject	of

a	separate child	protection	proceeding.		See	supra	n.1.		After	holding a three-day

hearing in	 March	 of	 2018,	 the	 court	 entered	 a	 judgment	 terminating	 both	

parents’ parental	 rights to	 the	 two	 older	 children.	 	 Based	 on	 clear	 and	

convincing	evidence,	the	court	found	that	each	parent was unwilling	or	unable	

to	protect	 those children	 from	jeopardy	and	 that	that	was unlikely	 to	change	

within	a	time reasonably	calculated	to	meet	the	children’s	needs,	and	that	each	

parent	was unwilling	or	unable	to	take	responsibility	for	the	children	and	could	

not	do	so	within	a	time	reasonably	calculated	to	meet	the	children’s	needs.		See	

22	M.R.S.	§ 4055(1)(B)(2)(b)(i)-(ii).		The	court	also determined, by	clear	and	

convincing	evidence,	that termination	of	each	parent’s	parental	rights	is in	the	

children’s	best	interests.		See	22	M.R.S.	§	4055(1)(B)(2)(a).		

[¶6]		The	court	made	the	following	factual findings, all	of	which	are	drawn	

from	competent evidence in	the	record:

.	.	.	The	parents	have	a	substantial	history	with	the	Department	of	

Health	&	Human	Services	(DHHS)	Child	Protection	Division.		Each	
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parent	 has	 other	 children	 in	 the	 custody	 of	 other	 parties.	 	 Both	

parents	have	been	determined	by	the	Court	to	have	longstanding	

problems	that	impact	on	their	ability	to	safely	parent	children.		The	

principal	 question	 before	 this	 Court: Have	 they	 addressed	 those	

problems	in	a	substantial	enough	 fashion	 that	jeopardy	has	been	

alleviated?		

.	.	.	.	

.	 .	 .	[The	 mother’s] jeopardy	 is	 based	 upon	 threat	 of	 neglect	 and	

neglect/failure	to	protect.		She	was	diagnosed	with	PTSD	and	was	

not	in	treatment	at	the	time	of	the	Jeopardy	Order.		She	also	had	a	

pattern	of	choosing	unsafe	partners	including	.	.	. the	father	of	these	

.	.	. children.		The	jeopardy	as	 to	[the	 father] was	due	 to	physical	

abuse	and	threat	of	neglect.		He	was	found	to	have	a	lengthy	history	

of	 violence,	 including	 being	 physically	 violent	 with	[the	 mother]

while	she	was	pregnant	with	[the	middle child].		He	had	untreated	

mental	health	issues	including	bi-polar	disorder	and,	at	that	time,	

had	warrants	in	the	State	of	Nebraska.

The	 parties	 both	 have	 criminal	 records.	 .	 .	 .	 [The	 mother’s]

convictions	 [include] theft, .	 .	 . and	 operating	 while	 license	

suspended	or	revoked	on	June	21,	2017.		[The	mother] also	has	a	

number	of	pending	charges.		

The	criminal	record	of	[the	father]	is	also	significant	[and	includes]	

.	 .	 .	 assault;	 .	 .	 .	 domestic	 violence	 assault,	 criminal	mischief,	 and	

operating	with	a	suspended	license,	conviction	date	April	5,	2010;	

two	 unlawful	 possession	 of	 scheduled	 drugs,	 conviction	 date	

August	 19,	 2010;	 unlawful	 furnishing	 of	 drugs,	 conviction	 on	

November	[8],	2012;	 two	Class	C	 felony	convictions	 for	unlawful	

possession	 of	 hydrocodone	 and	 oxycodone	 respectively	 on	

April 19,	 2013;	 [three convictions	 for]	 operating	 while	 license	 is	

suspended	 or	 revoked	 [in]	 2017;	 and	 a	 theft	 conviction	 on	

October 4,	2017.		[The	father]	also	acknowledges	having	a	domestic	

abuse	conviction	from	2016	in	Nebraska	involving	[the	mother].		
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.	 .	 .	 [A]	 Licensed	 Clinical	 Social	 Worker	 who	 does	 batterers	

intervention	program	[BIP]	assessments .	.	.	did	an	assessment	of	

[the father].	 .	 .	 .	 She	 testified	 that	 there	 were	 inconsistencies	

between	 the	 paperwork	 and	 her	 face-to-face	interview	with	[the	

father].		

[The	 LCSW] stated	 that	 those	 inconsistencies	 concern	 substance	

abuse	 and	 domestic	 violence.	 	 In	 his	 written	 report	 [the	 father]

denied	having	any	substance	abuse	problems.		He	also	denied	any	

domestic	 abuse.	 When	 interviewed	 by	 [the	 LCSW],	 he	

acknowledged	 that	he	had	several	convictions	 for	drugs.		He	also	

verbally	 admitted	 to	 three	 convictions	 for	 domestic	 abuse.	 	 He	

explained	the	apparent	inconsistencies	by	stating	that	although	he	

pled	 guilty	 to	 the	 domestic	 violence	 charges,	 he	 had	 not	 been	

domestically	violent.		

The	Court	finds	that	[the	father’s] explanation	does	not	make	sense.		

.	 .	 .	 Having	 been	 convicted	 on	 a	 number	 of	 occasions	 of	 drug	

possession	or	furnishing	drugs,	he	clearly	had	legal	problems.		The	

same	analysis	applies	to	the	domestic	violence	area.	.	.	.	 The	Court	

finds	 that	 his	 answers	 were	 evasive	 and	 attempts	 to	 avoid	

responsibility	for	his	conduct.		Neither	of	those	findings	is	helpful	

to	showing	an	alleviation	of	jeopardy.

.	 .	 .	[A	nurse	who] works	at	Eastern	Maine	Medical	Center	in	 the

neonatal	intensive	care	unit	.	.	.	worked	with	 these	parents	when	

their	[youngest	child] was	born [in August	of	2017].	 [The	child]

was	 exhibiting	 symptoms	 of	 neonatal	 abstinence	 syndrome.		

Essentially,	she	was	experiencing	withdrawal	 from	 the	drugs	she	

was	exposed	to	while	in	utero.		

[The	 nurse] testified	 that	 [in	 one	 interaction	 she	 had	 with	 the	

father, he] became	very	angry	and	threatening	toward	[her].		She	

credibly	testified	he	said	that	if	she	did	not	leave	the	room,	he	might	

do	something	that	would	get	him	kicked	out. .	.	.	 The	Court	finds	

that	this	circumstance	also	points	to	continuation	of	jeopardy	as	of

the	date	of	birth	of	[the	youngest	child.]
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.	.	.	.

Just	 prior	 to	 the	 last	 hearing	 date,	 [the	 father] began	 attending	

. . . BIP.		[The	person	who]	runs	that	program	. . . testified	that	[the	

father] first	came	to	their	program	in	May 2017 [but]	did	not	do	the	

intake	 work	 until	 January	 2018 [and his] first	 session	 was	

February 8,	2018.	.	.	. [The	father] had	attended	two	sessions	out of	

the	forty-eight	[as	of	the	end	of	February	of	2018].	.	.	.

.	.	.	.	

[The	mother] and	[the	father] have	both	tested	positive	for	illegal	

substances	 in	 2017.	 	 [The	 father] tested	 positive	 as	 recently	 as	

November	2017	for	opiates	and	other	drugs.		The	meconium	of	[the	

youngest	child] tested	positive	for	cocaine	and	another	drug.		The	

Court	finds	that	the positive	test	of	the	meconium	could	only	have	

come	from	[the	mother’s use	of] cocaine	during	pregnancy. .	.	.

.	.	.	.

.	 .	 .	 The	 Court	 found	 [the	 father’s	 current	 therapist] to	 be	 very	

credible.		He	testified	that	[the	father’s] attendance	has	improved	

since	his	sporadic	first	attendance.		He	testified	that	[the	father] has	

a	severe	cannabis	use	disorder.	.	.	.	

[The	father’s	therapist] testified	that	during	the	last	five	weeks	[the	

father] has	done	well	with	his	attendance.		He	has	concluded	that	

[the	 father] still	lacks	insight	into	his	problems.		He	 testified	 that	

[the	 father] is	 in	 the	 pre-contemplative	 mode,	 which	 means	 he	

doesn’t	believe	there	is	a	problem.	.	. .

[The	 therapist] also	 testified	 that	 [the	 father] is	 impulsive	 and	

immature,	 but	 he	 is	 authentic	 in	 who	 he	 presents	 himself	 to	 be.	

[The	father] has	shown	a	willingness	to	do	better.		The	treatment	

plan	 for	[the	 father] is	lengthy.		The	goal	is	 to	 first	get	him	off	of	

drugs,	 and	 then	 get	 at	 the	 underlying	 problems.	 	[The	 therapist]

testified	that	he	believes	[the	father] can	benefit	from	an	intensive	
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outpatient	treatment	program.		The	Court	concludes	the	evidence	

supports	that	opinion. .	.	.

.	.	.	.

The	 two	 oldest	 children	 have	 been	 in	 State	 custody	 for	 over	

eighteen	 months.	 	 The	 Court	 cannot	 set	 a	 firm	 date	 for	 when	

jeopardy	 would	 be	 alleviated	 enough	 to	 have	 a	 trial	 home	

placement.	 	 The	 uncertainty	 regarding that	 time	 and	 how	long	 a	

trial	 home	 placement	 could	 go	 (and	 whether	 it	 would	 be	

successful)	. .	. puts	 this	case	well	beyond	 the	statutory	 timelines	

for	permanency	for	these	two	children.	.	.	.

Accordingly,	the	Court	finds	by	clear	and	convincing	evidence	that	

[the	 mother] and	 [the	 father] have	 been	 unwilling	 or	 unable	 to	

protect	 the	 children	 from	 jeopardy	 within	 a	 time	 which	 is	

reasonably	 calculated	 to	 meet	 the	 children’s	 needs.	 	 The	 Court	

further	finds	that	[the	mother] and	[the	father] have	been	unwilling	

or	 unable	 to	 take	 responsibility	 for	 the	 children	 which	 is	

reasonably	calculated	to	meet	the	children’s	needs.		

.	.	.	The	Court	further	finds	by	clear	and	convincing	evidence	that	

termination	is	in	 the	children’s	best	interests.		The Court	 further	

finds	that	it	is	in	[the]	best	interests of	[the	children]	to	be	free	for	

adoption .	.	.	.

II.		DISCUSSION

[¶7]		“We	review	the trial	court’s	factual	findings	that	a	parent	is	unfit	and	

that	termination	of	parental	rights	is	in	the	child’s	best	interest for	clear	error

and	 the	 ultimate	 decision	 to	 terminate	 parental	 rights	 for	 an	 abuse	 of	
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discretion.”		In	re	Child	of	Amber	L.,	2018	ME	91,	¶	3,	188	A.3d	876 (quotation	

marks	omitted). 		

A. Parental	Unfitness

[¶8]		“[I]n	 order	 to	 terminate	parental	 rights[,] the	court	must	 find, by	

clear	 and	 convincing	 evidence,	 at	 least	 one	 of	 the	 four	 statutory	 grounds	 of	

parental	unfitness.”		In	re	Children	of	Melissa	F.,	2018	ME	110,	¶	9,	191	A.3d	348

(alterations	 in	 original) (quotation	 marks	 omitted).	 	 A finding	 of	 parental	

unfitness	will	be	vacated “only	if	there	is	no	competent	evidence	in	the	record	

to	 support	 it, if	 the	 fact-finder	 clearly	 misapprehends	 the	 meaning	 of	 the	

evidence, or	if	the	finding	is	so	contrary	to	the	credible	evidence	that	it	does	not	

represent	the	truth	and	right	of	the	case.” In	re	Child	of	Amber	L.,	2018	ME	91,	

¶	4,	188	A.3d	876 (quotation	marks	omitted). 		

[¶9]	 	 Each	 parent contends that	 the evidence	 presented	 at	 trial	 was	

insufficient	to	support	either	of	the	two	types of	parental	unfitness found	by	the	

court	given	 the	evidence	 of	 their	progress	toward	alleviating	their	parenting	

deficits.		We	conclude	that competent	evidence	in	the	record	exists	to	support	

both	types of	parental	unfitness.		

[¶10]		Since	the	court’s	February	2016 finding	of	jeopardy,	each	parent’s

court-ordered	engagement	in	mental	health	 treatment has	been inconsistent.		
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As	 the	 court	 found,	 with	 support	 in	 the	 record,	 the	 parents’	 attendance	 in	

individual	counseling was	often	sporadic, and	the	father’s delay in enrolling in	

the	batterers	intervention	 program—despite	 knowing	that	his	 attendance	in	

the	program	was	a	condition	for	increased	contact	with	the	children—meant	

that, as	of	the	time	of	the	termination	hearing,	he	had	barely	begun the	program.		

While the court	recognized	that	the parents	had	made	some	progress	in their

mental	health	treatment	by the	time	of	the	termination	hearing, the	testimony	

of	the	parents’ mental	health	professionals	indicated—and	the	court	found—

that	each parent	still	has	a	long	therapeutic	road	ahead.		Moreover,	since	the	

jeopardy	hearing, both	parents	have tested	positive	for	illegal substances,	and	

both	parents	have been	involved	in	new	criminal	activity.

[¶11]	 	“Marginal	 progress	 toward	 reunification	 and	 a	 simple	 desire	 to	

remain	 parents	 is	 not	 enough	 to	 ameliorate	 jeopardy	 .	 .	 .	 .”	 	 In	 re	 Hope	 H.,	

2017 ME	198, ¶	10,	170	A.3d	813.		On	this	record, the	court	did	not	clearly	err	

by finding	 that,	 despite	 their	 recent	 progress,	 the	 parents	 are	 unlikely	 to	

become	 fit within	 a	 time	 reasonably	 calculated	 to	 meet	 the	 needs	 of	 the	

children. See	In	re	Child	of	Amber	L.,	2018	ME	91,	¶	5,	188	A.3d	876. 		
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B. Best	Interests	of	the	Children

[¶12]	 	 The	 parents	 also	 contend	 that	 the	 court	 failed	 to	 provide	 a	

sufficient	 explanation	 for	 its	 finding that	 the	 termination	 of	 each	 parent’s	

parental	rights	is	in	the	best	interests	of	the	children.		Contrary	to	this assertion,	

the	court’s	findings,	based	on clear	and	convincing	evidence	in	the	record,	are

sufficient	to support	its best	interest	determination.		

[¶13]		The	children	at	issue	here	have	been	in	 foster	care	since	 July	of	

2016,	and	in	the	home	of	their	current	foster	family	since	November	of	2016.		

At	the	time	of	the	termination	proceedings, the	older	child	was	three	years	old,	

and	the	younger was nineteen	months. The	court	acknowledged	the	parents’	

recent	 progress	 toward	 alleviating	 jeopardy	 but	 also	 properly	 found	 that,	 at	

best,	“it	would	take	many	more	months”	before	the	parents	could	participate	

even	in	a	trial	home	placement	that	would	be	safe	for	the	children.		

[¶14]	 	 The	 Legislature	 has	 explicitly	 stated	 that	 the	 purposes	 of	 the	

termination	 statute	include	 “[e]liminat[ing]	 the	need	 for	 the children	 to	wait	

unreasonable	periods	of	time	for	their	parents	to	correct	the	conditions	which	

prevent	their	return	to	the	family” and	“[p]romot[ing]	the	adoption	of	children	

into	 stable	 families	 rather	 than	 allowing	 the	 children	 to	 remain	 in	 the	
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impermanency	 of	 foster	 care.”	 22	 M.R.S.	 §	 4050(2)-(3) (2017).	 	 See	 In	 re	

Children	of	Melissa	F.,	2018	ME	110,	¶	13,	191 A.3d	348.		

[¶15]	 	 The	 court did	 not	 abuse	 its	 discretion	 by finding	 that	 the	 best	

interests	of	the children	would	be	served, not	by	 forcing	 them to	continue	 to	

wait	 for	 an	 uncertain	 and	 unreasonable	 amount	 of	 time for	 the	 parents	 to	

alleviate	 circumstances	 of jeopardy,	 but	 by allowing	 them	 to	 be free	 for

adoption.

The	entry	is:

Judgment affirmed.

Robert	E.	Meggison,	Esq.,	Belfast,	for	appellant	father

Nicholas	Fowler,	Esq.,	Bangor,	for	appellant	mother

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

Bangor	District	Court	docket	number	PC-2016-47	and	PC-2017-80

FOR	CLERK	REFERENCE	ONLY