MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 146 Docket: Pen

- 18

- 185 Submitted

on	Briefs : October	1 0 , 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 t hat termination	of their parental	rights	i s	in

the	best	interest s	of	the children

. W e	affirm	the	judgment.

1 T he	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	refe rences	in	this	opinion	to	the children	mean	the	two	older	children	as	to	whom	the	parents’	rights	have	been	terminated.2
I.		BACKGROUND [¶ 2 ] The	following	facts,	which	are	supported	by	the	evidence,	are	drawn from	the	judgment 2 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	you nger	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	t he	children	were	placed	in	the custody	of	the	Department	at	that	time. [¶ 4 ] By	 agreement,	in	 February	 of 2017,	 t he	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	co urt’s	perm anency planning	 order	 included requirement s that	 each	 parent	 comp lete	 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	narrat ive to	those	facts that	the	court	framed	as	its	findings.3

p rogram.		Both	parents	were	ordered	to	follow	any	recommendations	made	by

the evaluat ors. [¶ 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 th at each	parent was un willing	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 respon sibility	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 paren tal	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. Each4 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	pa rent	children.		The princi pal	 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	 part ies	 both	 have	 criminal	 records.	 .	 .	 . [The	 mother’s] convictions [include] theft , .	 .	 . and	 operating	 while	 license suspended	o r	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	lice nse,	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	 oxyco done	 respectively	 on April 19,	 2013;	 [ three convictions	 for]	 operating	 while	 licens e	 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].5

.	 .	 . [ 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	 writte n	 report	 [th e	 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
ex plained	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	 n umber	 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, h e ] beca me	very	angry	and	threatening	toward [her] .		She credibly	testified	he	said	that	if	she	did	not	leave	the	room,	he	might do	something	that	wou ld	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

. ]6

.	.	.	. 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 si nce	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	 fa ther] 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	 underlyin g	 problems. [The	 therapist] testified	that	he	believes [the	father] can	benefit	from	an	intensive7 outpatient	treatment	program.		The	Court	concludes	the	evidence supports	that	opinion.

.	.	.

.	.	.	. The	 two	 oldest	 children	 have	 been	 in	 State	 custody	 f or	 over eighteen	 months.	 	 The	 Court	 cannot	 set	 a	 firm	 date	 for	 when jeopardy	 would	 be	 alleviated	 enough	 to	 have	 a	 trial	 ho me 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	perm anency	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	 fro m	 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	interest s 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	 of8
discretion

. ” In	re	Child	of	Amber	L. ,	2018	ME	91,	¶	3,	188	A.3d	876 (quotation marks	omitted)

. A. Parental	Unfitness [¶ 8 ] “ [ I ] n	 ord er	 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) (quot ation	 marks	 omitted). A finding of	 parental

unfitness will	be vacated “only	if	there	is	no	competent	evide nce	in	the	record
to	 support	 it, if	 the	 fact

- finder	 clearly	 misapprehe nds	 the	 meaning	 of	 the
evidence, or	if	the	finding	is	so	contrary	to	the	credible	evidence	that	it	d oes	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 contend s 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

. [¶1 0 ] Since	the court’s	Fe bruary	2016 finding of jeopardy , each	parent’s

court

- ordered engagement	in	mental	health	 treatment has	been inconsistent

.9 As	 the	 court	 found,	 with	 support	 in	 the	 record, the	 parents’ attendan ce	 in

individual counseling was often sporad ic , and the	father ’s delay in enroll ing in the	batterers	intervention	 program

— d espite	 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

. Wh ile 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	ha ve tested positive	for illegal substances , and both	parents	ha ve been	in volved	in	new	criminal	activity. [¶1 1 ] “M arginal	 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 with in	 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

.10
B. Best	Interests	of	the	Children [¶1 2 ] 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	i s	in	the	best	interests	of	the	children.		Contrary	to this assertion,

t he	court’s	findings , based	on clear	and	convincing	evidence	in	the	record, are
sufficient	to support its best	interest	determination

. [¶1 3 ] 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. T he	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

. [¶1 4 ] 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

pre vent	their	return	to	the	family ” and	“[p]romot[ing]	the	adoption	of	children into	 stable	 families	 rather	 than	 allowing	 the	 children	 to	 remain	 in the11 imperma nency	 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

. [¶1 5 ] T he	 court did	 not	 abuse	 its	 discretion	 by finding	 that	 t he 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

a doption

. 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 F OR C LERK R EFERENCE O NLY