MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	3

Docket: Ken-19-296

Submitted

On	Briefs: December	17,	2019

Decided: January	7,	2020

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

IN	RE	CHILD	OF	COREY	B.

PER	CURIAM

[¶1]	 	 Corey	 B.	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Waterville, Montgomery, J.)	terminating	his	parental	 rights	 to	his	child.	 The	

father	challenges	the	court’s	findings that	he	was	unable	to	take	responsibility

for	the	child within	a	time	reasonably	calculated	to	meet	the	child’s	needs,	see	

22	M.R.S.	§	4055(1)(B)(2)(b)(i),	(ii)	(2018),	and	that	termination	of	his	parental	

rights	 is	 in	 the	 child’s	 best	 interest,	 see	 id.	 § 4055(1)(B)(2)(a) (2018).		

In addition,	 he alleges	 that	 the	 court	 violated	 his	 constitutional	 rights.

We affirm	the	judgment.

I.		BACKGROUND

[¶2]		On	July	6,	2017,	when	the	child	was	two	years	old,	the	Department	

of	Health	and	Human	Services	filed	a	petition	for	a	child	protection	order.		See

id.	§	4032 (2018).		The	mother	agreed	to	a	finding	of	jeopardy	(Stanfill,	J.) on

October	 25,	 2017,	 and the	 father	 agreed	 to	 a	 finding	 of	 jeopardy on
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January 30, 2018. See	id. §	4035 (2018).		On	November 8, 2018,	the	Department	

filed	a	petition	to	terminate	the	mother’s1 and	father’s	parental	rights.		See id.

§ 4052 (2018).	 After	a	two-day hearing	on	March 29,	2019,	and	May 9, 2019,

see	 id. §	 4054 (2018), the	 court (Montgomery, J.) entered a	 judgment	

terminating	the	father’s	parental	rights	to	the child.

[¶3]		The	court	made	the	following	findings	of	fact,	which	are	supported	

by	competent	record	evidence. See	In	re	Child	of	Kimberly	K.,	2019	ME	145,	¶	4,	

217 A.3d 63.

[The	 child] was	 born	 drug-affected	 .	 .	 .	 .	 	At	 that	 time,	 [the	

father]	 was	 incarcerated.	 	 He	 was	 released	 from	 prison	 on	

March 8, 2017[,]	with	 three	 years’	 probation.	 	 Shortly	 thereafter,	

[the	mother] was	arrested	for	Domestic	Violence	Assault,	and	she	

faced	a	full	probation	revocation. [She]	placed	[the	child]	with	her	

mother	.	.	.	.		At	some	point	thereafter,	[the	child] began	staying	with	

[the	father]	at	[the	father’s]	mother’s	home.

.	.	.	.	

By	 mid-June	 2017,	 [the	 mother	 and	 father]	 indicated	 their	

intent	to	reconcile	and	live	together	in	an	apartment	[the	mother]	

had	secured.		DHHS	asked	the	couple	to	participate	in	random	drug	

screening,	 but	 both	 parents	 failed	 to	 go. On	 June	 29,	 2017,	 [the	

mother]	 overdosed	 on	 heroin.	 	[The	 child]	 was	 with	 her	 at	 that	

time.		In	fact,	[the	father]	was	also	initially	present	at	[the	mother’s]	

residence,	 but	 he	 left	 her	 residence	 because	 [she]	 was	 using.		

Despite	 knowing	 that	 she	 was	 using	 drugs,	 [the	 father]	 left	 [the	

child]	there	with	[the	mother]. .	.	.

 1	 	 The	 child’s	 mother	 consented	 to	 an	 order	 terminating	 her	 parental	 rights	 to	 the	 child	 on	

March 29,	2019,	and	she	is	not	a	party	to	this	appeal.
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.	.	. [The	father]	was	taken	by	police	to	the	hospital	in	early	

September	2017	for	a	possible	overdose.		[The	father]	admitted	to	

using	 heroin	 at	 that	 time.	 	 In	 early	 November,	 [the	 father’s	

probation	officer]	reported	that	[the	father]	was	living	with	several	

other	people	in	an	apartment	where	 there	were	mattresses	lined	

up	on	the	floor. The	Department	was	unable	to	make	any	contact	

with	 [the	 father]	 throughout	 November	 and	 December	 2017.		

In mid-December	 2017,	 [the	 father’s]	 requested	 paternity	 test	

result	showed	him	to	be	[the	child’s]	father.

[The	 child]	 entered	 foster	 care	[in	October	 2017].	 	He	was	

placed	with .	.	. his	maternal	grandmother.		By	April 3, 2018,	DHHS	

reported	 that	 [the	child]	had	achieved	stability	and	had	begun	 to	

show	more	 age-appropriate	 behaviors.	 	He	was	 enrolled	in	 child	

care	where	he	received	socialization,	structure	and	exercise.

On	January	30,	2018,	[the	child’s	father]	agreed	to	Jeopardy,	

and	he	began	to	make	efforts	toward	reunification	with	[the	child].		

As	part	of	the	reunification	plan,	he	agreed	to	participate	in	services	

to	address	his	mental	health	issues	and	significant	substance	abuse.		

[The	 father]	 also	 completed	 drug	 screens	 through	 probation,	

consistently	testing	positive	for	marijuana	use	(for	which	he	had	a	

card)	and	for	Suboxone,	for	which	he	did	not	have	a	prescription.		

He	did	not,	however,	participate	in	the	recommended	random	drug	

screens	through	DHHS.

[The	 father]	 agreed	 to	 participate	 in	 the	 MEPP [Maine	

Enhanced	 Parenting	 Project] program,	 but	 his	 consistent

marijuana	 use	 was	 a	 potential	 obstacle	 in	 the	 MEPP	 abstinence	

program. .	.	.	

Despite	 the	marijuana	 use	 and	[a] transportation	 problem,	

[the	father]	did	well	in	MEPP.		He	was	reportedly	forthright,	open	

to	 suggestions	 and	 fully	 participating	 in	 groups.	 	 He	 was	 set	 to	

graduate	in	July	2018.		He	was	employed	full	time	and	doing	well	at	

his	job.		He	moved	into	Serenity	House,	so	his	living	situation	was	

more	 stable	 (although	 not	 appropriate	 for	 [the	 child]).	 	 He	 was	

working	toward	obtaining	permanent	housing.		He	was	attending	
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weekly	 visits	 with	 [the	 child],	 for	 which	 he	 was	 appropriately	

prepared .	.	. .	The	visits	were	going	very	well. .	.	.

[The	father]	completed	the	MEPP	IOP [Intensive	Outpatient	

Program] and	parenting	sessions	in	July	2018.		He	remained	sober	

while	in	the	program—with	the	exception	of	marijuana	use—and	

worked	to	decrease	that	as	well.		At	the	same	time,	he	was	doing	

very	well	with	his	probation	conditions.		Although	recommended,	

however,	 [the	 father]	 did	 not	 engage	 in	 follow-up	 counseling	 at	

Crossroads	when	he	graduated	 from	MEPP.		He	did	begin	 seeing

[a physician	who	specializes	in	addiction] for	Suboxone	treatment.

Beginning	in	mid-August,	[the	father’s]	visits	with	[the	child]	

were	increased	from	two	hours	to	four	hours	and	thirty	minutes.		

The	longer	visits	seemed	to	go	very	well.

During	 the	 month	 of	 September	 2018,	 although	 he	 had	

visited	with	 [the	child]	consistently	up	 to	 that	point,	 [the	 father]	

began	missing	visits. .	.	.

In	 mid-October,	 [the	 father]	 was	 involuntarily	 discharged	

from	his	Suboxone	treatment .	.	.	. One	of	[the	father’s]	drug	tests	

was	 positive	 for	 alcohol	 and	 Opana	 (oxymorphone,	 an	 opiate).		

While	[the	father]	readily	admitted	to	using	alcohol,	he	vehemently	

denied	 using	 opiates.	 	 Believing	 the	 positive	 test	 results	 were	

legitimate	and	not	the	result	of	lab	error,	[his physician] discharged

[the	 father]	 from	 the	 Suboxone	 treatment.	 	 Likewise,	 as	 a	

consequence	 of	having	missed .	 .	 . three	 visits	in	September,	 [the	

father’s]	visitation	was	suspended	in	November	2018.

[The	 child]	 continued	 to	 make	 positive	 strides	 in	 his	

placement.	 	He	 had	 difficulty,	 however,	 with	 regulating	 his	 own	

emotions	and	behaviors.		He	was	referred	to	child	development	and	

counseling	services.

At	the	January	22,	2019[,] [Facilitated	Family	Team	Meeting],

[the	father]	reported	that	he	had	started	counseling	at	Crossroads.		

He	had	lost	his	job	but	was	looking	for	a	new	one.		He	was	not	back	
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in	Suboxone	treatment	but	reported	that	he	was	doing	well	without	

it.	 	He	 continued	 to	 comply with	 the	 conditions	 of	 his	 probation	

with	 the	 exception	 of	 losing	 his	 job	 and	 failure	 to	 find	 stable	

housing.

In	essence,	DHHS	seeks	 to	 terminate	 [the	 father’s]	parental	

rights	 to	 [the	 child]	 for	 several	 reasons	 related	 to	 his	 own	

consistency	and	stability.		First,	the	Department	contends	that	[the	

father]	missed	enough	visits	with	[the	child]	in	September	2018	to	

result	 in	 suspension	 of	 visitation. In	 fact,	 even	 once	 visits	 were	

reinstated	in	 January	2019,	he	missed	 two	more.		By	 the	 time	 of	

hearing,	 [the	 father]	 had	 not	 seen	 [the	 child]	 since	

February 8, 2019.

Additionally,	 since	 July	 2017,	 [the	 father]	 had	 several	

housing	 arrangements—some	 with	 family,	 some	 with	 friends—

none	 of	 which	 would	 accommodate	 [the	 child].	 	 Moreover,	 he	

contended	at	hearing	that	his	grandmother	had	room	for	both	he	

and	 [the	 child]	 and	 that	 he	 was	 moving	 there.	 	 Although	 his	

grandmother	confirmed	 that	he	could	stay	at	her	home	with	 [the	

child],	[the	father]	had	not	taken	the	steps	necessary	to	finalize	that	

move.		In	fact,	the record	evidence	showed	that	[the	father]	knew	

from	the	time	of	his	release	from	prison	that	stable	housing	was	a	

significant	 factor	 in	 reunification.	 	A	 year	 and	 nine	 months	 after	

[the	child]	entered	foster	care,	however,	[the	father]	is	still	without	

a	track	record	of	living	in	a	stable	home	environment	for	more	than	

a	few	months.

Finally,	 [the	 father’s]	 employment	 situation	 has	 also	 been	

inconsistent.	 	 While	 [the	 father]	 has	 been	 fairly	 dedicated	 to	

looking	 for	 and	 obtaining	 employment,	 he	 has	 not	 consistently	

maintained	employment	for	more	than	a	few	months	at	a	time	since	

he	was	released	from	prison.

While	the	court	acknowledges	and	commends	[the	father]	on	

his	extended	sobriety	as	to	opiates,	along	with	the	progress	he	has	

made	to	be	“comfortable	in	[his]	own	skin,”	[the	father]	has	not	yet	
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achieved	 the	 kind	 of	 stability	 and	 consistency	 in	 his	 own	 life	 to	

nurture	and	care	for	[the	child].

.	.	.	.	

.	.	.	In	short,	the	court	finds	by	clear	and	convincing	evidence	

that	 the	 first	 two	 statutory	 definitions	 of	 parental	 unfitness	 are	

established	with	respect	to	[the	father].

.	.	.	.

[The	 child]	 continues	 to	 reside	 with	 his	 maternal	

grandmother,	 her	 partner,	 and	 .	 .	 . his	 13-year-old	 half-brother.		

Although	the	home	is	small	and	the	boys	must	share a	room,	[the	

child]	 has	 clearly	 benefitted	 from	 the	 routine	 and	 stability	

established	there.		He	is	a	happy	and	active	four-year-old	boy	who	

continues	to	show	very	good	development.		He	speaks	much	more	

clearly	 and	 has	 increased	 his	 vocabulary.	 	 He	 responds	 well	 to	

redirection	 but	 still	 struggles	 some	 with	 aggressive	 behavior	

toward	other	children.		The	court	does	not	doubt	that	a	safe,	loving,	

and	stable	home	is	in	[the	child’s]	best	interest.

II.		DISCUSSION

A. The	Father’s	Unfitness

[¶4]		The	father	argues	that	at	the	time	of	the	termination	hearing,	he	was	

willing	and	able	to	alleviate	jeopardy	and	take	responsibility	for	the	child.		We	

set	aside a	 trial	court’s	 finding	 of	unfitness based	upon	clear	 and	convincing	

evidence “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	
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truth	and	right	of	the	case.”		In	re	Cameron	B.,	2017	ME	18,	¶	10,	154 A.3d 1199

(quotation	marks	omitted).		Evidence	is	clear	and	convincing	when	“the	 trial	

court	could	have	 reasonably	been	 persuaded	 on	 the	basis	 of	 evidence	in	 the	

record	that	the	required	factual	findings	were	highly	probable.”		In re	Charles G.,	

2001	ME	3,	¶	5,	763	A.2d	1163	(quotation	marks	omitted).

[¶5]		Here,	the	court concluded based	upon	clear	and	convincing	evidence

that, despite	his progress, the	father	“has	not	yet	achieved	the	kind	of	stability	

and	consistency”	necessary	to	care	for	the	child.		Given	the	court’s	supported	

factual	findings,	that	conclusion	is	not	clearly	erroneous.		See	In re Cameron	B.,	

2017	ME	18,	¶	10,	154	A.3d	1199.

[¶6]	 	The	 father	 next	 contends	 that	 the	 court	 erred	 in	 finding	 that	 he	

tested positive	 for	 oxymorphone	 while	 he	 was a	 patient	 of	 the	 physician

treating	him	for	addiction.		The	finding	was	based	on	the	physician’s	testimony.		

Ordinarily,	“[w]e	review	a	trial	court’s	decision to	admit	evidence	for abuse	of	

discretion	 or	 clear	 error.”	 	In re Arturo	 G.,	 2017	ME	 228,	 ¶	 19,	 175	 A.3d	 91.		

However,	where	a	challenge	was	not	preserved	for	appellate	review, we	apply	

the	 obvious	 error	 standard.	 	 See	 M.R.	 Evid.	 103(d); State	 v.	 Haji-Hassan,	

2018 ME	42,	¶	13,	182 A.3d 145.
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[¶7]		The	father	objected	to	the	physician’s	testimony	at	the	hearing	on

reliability	and	hearsay grounds.		However, the	fact	that	the	physician	had	stated	

that	the	father	tested	positive	for	the	opiate	was	already	admitted	in	evidence

in	the agreed-to	findings	of	the	court’s	(Stanfill, J.) November	28,	2018,	judicial	

review	and	permanency	 planning	 order,	and	 the	 father	 did	 not	 object	 to	 the	

order’s	 admission	 at	 hearing.	 	 See	 M.R.	 Evid.	 703;	 see	 also State	 v.	 Archer,	

2011 ME	80,	¶	20,	25 A.3d	103	(concluding	that	the	trial	court	was	correct	to	

allow	 the	 State’s	 medical	 expert	 to	 testify	 about a	 medical	 record	 that	 was	

already	in	evidence);	In	re	Scott	S.,	2001	ME	114,	¶	12,	775 A.2d	1144	(“When	

a	different	trial	judge	presides	at	a	later	stage	of	the	process,	that	trial	judge	.	.	.	

may	consider	and	rely	on	the	findings	of	fact	and	conclusions	of	law	contained	

in	the	orders	or	judgments	entered	by	the	prior	judge.”).

[¶8]		The	court (Montgomery,	J.) here	did	not	commit	obvious	error	when	

it	considered the	finding regarding	the	positive	drug	test in	the November	2018	

order.	 	 Furthermore,	 the	 father	 has	 failed	 to	 demonstrate	 that	 he	 was	

prejudiced	by	the	admission	of	the	physician’s	testimony	concerning the	drug	

test.	 See	In re Joshua	 B.,	 2001	ME	 115,	¶	 10,	 776	 A.2d	 1240	 (explaining the	

obvious	 error	 standard	 and	 noting	 that	 a	 “party	 claiming	 error	 must	

demonstrate	prejudice	from	the	error”). The	court’s	findings	rest	on	a	number	
9

of	grounds	apart	 from	 the	 father’s	drug	 test	 result.		The	court	did	not	 err	in	

finding	the	father	unfit.

B. Best	Interest	of	the	Child

[¶9]	 	 Contrary	 to	 the	 father’s	 contention,	 the	 court	 did	 not	 abuse	 its	

discretion in	 determining	 that	 termination	 of	 the	 father’s	 rights	 was	 in	 the	

child’s	best	interest.		See	22	M.R.S.	§	4055(1)(B)(2)(a).		“We	review	the	court’s	

factual	 findings	 related	 to	 the	 child’s	 best	 interest	 for	 clear	 error,	 but	 its	

ultimate	conclusion	regarding	the	child’s	best	interest	for	abuse	of	discretion.”		

In	 re	Thomas	H.,	2005	ME	123,	¶	16,	889	A.2d	297.		Specifically,	 the	 father’s	

argument	centers	around	an	assertion that	the	child’s	current	placement with	

his	maternal	grandmother fails	to	achieve	permanency.

[¶10]		The	question	of	who	should	adopt	a	child	is	beyond	the	scope	of	a	

termination	 proceeding. See	In	 re	 Children	 of	 Nicole	 M.,	 2018 ME 75,	 ¶	 17,	

187 A.3d	1.		However,	the	court	may	evaluate	a	child’s	current	placement	as	

part	 of	 its	 best	 interest	 determination.	 	 22 M.R.S.	 §	 4055(2)	 (2018); see	

In re Kenneth S.,	2017	ME	45,	¶	6,	157	A.3d	244	(“[I]n	conducting	a	best	interest	

analysis,	the	court	may	consider	evidence	that	the	current	foster	placement	is	

furthering	the	child’s	permanency	plan,	especially	where	that	plan	is	to	place	

the	child	for	adoption.”);	In	re Annie	A.,	2001	ME	105,	¶	28,	774	A.2d	378. Here,	
10

substantial	evidence	in	the	record	supported	the	court’s	finding	that	the	child’s	

current	 placement	 with	 his	 maternal	 grandmother	 benefits	 the	 child.		

Combined	 with	 the	 court’s	 other	 best	 interest	 findings regarding	 the	 child’s	

developmental	progress,	the	court	did	not	err	in	determining	that	termination	

of	the	father’s	rights	was	in	the	child’s	best	interest.

C. Due	Process

[¶11]	 	 The	 father	 argues that	 his	 constitutional	 rights	 were	 violated	

because the	court	placed	greater	weight	 on	 the	child’s	need	 for	permanency	

than	 on	the	 father’s fundamental	 due	 process right	 to	 parent his	 child. See	

Santosky	v.	Kramer,	455	U.S.	745,	753-54	(1982).		His	argument	centers	on the	

trial	court’s	language	measuring	the	length	of	time	the	father	needs in	order to	

be	able	 to	protect	 the	child	from	jeopardy	against	 the	 time	within	which	 the	

child	should	achieve	permanency:

As	 in	 most	 protective	 child	 custody	 cases,	 when	 this	 case	

began,	two	timeclocks	began	to	run.		One	measured	the	time	[the	

father]	 needed	 to	 stabilize	 himself,	 especially	 in	 the	 areas	 of	

housing,	 employment,	 and	 sobriety	 maintenance.	 	 The	 other	

measured	 the	maximum	 time	 period	 necessary	 for	 [the	 child]	 to	

achieve	permanency.		Unfortunately,	these	two	timeclocks	do	not	

measure	the	same	length	of	time.

On	the	one	hand,	the	kind	of	stability	[the	father]	is	struggling	

to	achieve	in	his	own	life	takes	time,	and	[he]	may,	in	fact,	be	on	the	

path	 to	 success	 in	 this	 regard.	 	 Even	 so,	 however,	 each	 of	 these	

goals—housing,	employment,	and	sobriety—are	reached	 through	
11

a	process	that	requires	time,	trial	and	error,	developed	insights,	and	

consistency.		Despite	the	age	of	this	case,	[the	father]	has	not	met	

any	of	these	goals	for	any	significant	duration.

On	the	other	hand,	the	maximum	time	period	necessary	for	

[the	child]	 to	achieve	permanency	has	 turned	out	 to	be	a	shorter	

period	 than	 the	 time	 [the	 father]	needs	 to	achieve	 stability.		 The	

time	 for	 [the	child]	 to	achieve	permanency	is	 now;	 the	 time	 [the	

father]	needs	to	achieve	stability	still	requires	months.	.	.	.

[¶12]		Because	the	father	raises	this	constitutional	argument	for	the	first	

time	on	appeal,	we	apply	the	obvious	error	standard	of	review.		See In	re	Child	

of	Lacy	H.,	2019	ME	110,	¶	9,	212	A.3d	320. The	Legislature	measures	a	parent’s	

ability	to	“protect	the	child	from	jeopardy”	or	“take	responsibility	for	the	child,”

in	terms	of	a	“time	which	is	reasonably	calculated	to	meet	the	child’s	needs.”		

22 M.R.S.	 § 4055(1)(B)(2)(b)(i),	 (ii).	 	 As	 we	 have	 frequently	 noted,	 the	trial	

court	must	assess	the	time	frame	within which	the	parent	can	protect	the	child	

from	 the	 perspective	 of	 the	 child	 rather	 than	 the	 parent.	 	 See	In	 re	 Child	 of	

Dawn B.,	2019 ME	93,	¶	16,	210	A.3d	169.

[¶13]		“Through	many	 years	 of	interpretation,	we	have	concluded	 that	

the	procedures,	burdens,	and	standards	set	out	in	section	4055	constitute	the	

means	by	which	the	fundamental	constitutional	right	to	parent	is	safeguarded.”		

Adoption	of	Tobias	D., 2012	ME	45,	¶	17,	40	A.3d	990.		We	have	recognized that	

“[w]hen	 the	 Legislature	 enacted	 the	 Child	 and	 Family	 Services	 and	 Child	
12

Protection	 Act,	 it	 established	 permanency	 as	 the	 central	 tenet	 of	 the	 act.”		

In re B.P.,	2015	ME	139,	¶	19,	126	A.3d	713; see	In	re	Jamara	R.,	2005	ME 45,	

¶ 22,	870	A.2d	112	(“[O]nce	a	child	has	been	placed	in	foster	care,	a	statutory	

clock	begins	ticking.		In	setting	that	clock,	the	Legislature	has	spoken	in	terms	

of	 days	 and	 months,	 rather	 than	 in	 years,	 as	 might	 better	 fit	 an	 adult’s	

timeframe	 for	 permanent	 change.”),	 overruled	 in	 part	 on	 other	 grounds	 by	

In re B.C.,	 2012	 ME	 140,	 ¶	 14	 n.2,	 58	 A.3d	 1118.	 	Because	 Maine’s	 clear	 and	

convincing	 evidence	 standard	 is	 constitutional,	 and	 the	 court	 here	 correctly	

applied that	 standard,	 we	 affirm	 the	 court’s	 judgment.	 	 See	 In	 re	 Child	 of	

Shayla S.,	2019	ME	68,	¶	9,	207	A.3d	1207; In	re	Child	of	Scott	L.,	2019	ME	102,	

¶	11,	210	A.3d	845.

The	entry	is:

Judgment affirmed.

Julian	Richter,	Esq.,	Richter	Law,	LLC,	Gardiner,	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

Waterville	District	Court	docket	number	PC-2017-24

FOR	CLERK	REFERENCE	ONLY