MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 3 Docket: Ken

- 19

- 296 Submitted

On	Briefs: December	1 7 ,	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	finding s 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 on2
January 30, 2018

. See id. § 4035 (2018). O n	November 8, 2018,	the	Department
filed	a	petition	to	terminate	the	mother ’s 1 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	fol lowing	findings	of	fact,	which	are	supported
by	competent record	evidence

. S ee 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. D HHS	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]

re sidence,	 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

.3

.	.	. [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	sh owed	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

- appropriat e	 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	reunifi cation	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)	an d	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	housi ng.		He	was	attending4
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	rema ined	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	 couns eling	 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	thirt y	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	Nove mber	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 [
, ] [ Facilita ted	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	back5
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	stabil ity. 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	 con sistently 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	yet6
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	 defi nitions	 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	 respon ds	 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 ] T he	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	 the7
truth	and	right	of	the	case.” In	re	Cameron B. ,	2017	ME	18,	¶	10, 154 A.3d 1199
(quotation	marks	omitted)

. E vidence	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 ] T he	 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 145.8
[¶ 7 ] Th e	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	 orde r, 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,	2 5 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	th e	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 considere d the finding regarding	the	positive	drug	test in	the November	2018

order. Furthermore,	 t he	 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	number9
of	grounds	apart	 from	 the	 father’s	drug	 test result. The	court	did	not	 e rr	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.

[¶1 0 ] T he	question	of	who	should	adopt	a	child	is	beyond	the	scope	of	a
termination	 proceeding

. S ee 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); s ee

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
[¶1 1 ] The father	 argue s 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

. S ee
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	m easured	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	time clocks	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 goal s

— housing,	employment,	and	sobriety

— are	reached	 through11

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	ot her	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]	nee ds	to	achieve	stability	still	requires	months.	.	.	.

[¶1 2 ] 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.

[¶1 3 ] “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	 Child12
Protection	 Act,	 it	 established	 permanency	 as	 the	 central	 tenet	 of	 the	 act.”

In re B.P. ,	2015	ME	139,	¶	19,	126	A.3d	713 ; s ee 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	 pe rmanent	 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	 j udgment. 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 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

Waterville	District	Court	docket	number	PC

- 2017

- 24 F OR C LERK R EFERENCE O NLY