MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	63

Docket: Pen-19-496

Submitted

On	Briefs: May	4,	2020

Decided: May	12,	2020

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY, HORTON,	and	CONNORS, JJ.

IN	RE	CHILD	OF	JESSICA	C.

PER	CURIAM

[¶1]	 	 Jessica	 C. appeals	 from a	 judgment	 of	 the	 District	 Court	

(Bangor, Jordan,	J.)	terminating	her	parental	rights	to	her	child.		See	22	M.R.S.	

§ 4055(1)(B)(2)(a),	 (b)(i)-(ii)	 (2020).	 	 The	 mother	 argues	 that	 the	 court’s

findings	of	parental	unfitness	and	best	interest	are	not	supported	by	sufficient	

evidence and	 that	 its	 ultimate	 determination	 of	 the	 child’s	 best	 interest	

constituted an	abuse	of	discretion.		We	affirm	the	judgment.

I.		BACKGROUND

[¶2]		On	May	2,	2017,	when	the	child	was	just	over	one	month	old, the	

Department	of	Health	and	Human	Services	filed	a	petition	for	a	child	protection	

order.		See 22	M.R.S. §	4032 (2020).		In November	2017,	a	jeopardy	order	was	

issued	 only	 in	 relation to	 the	 father,	 but	 in	 January	 2018,	 the	 Department	

amended	its	petition	to	allege	jeopardy	against	the	mother	due	to	concerns	of	

substance	use,	untreated	mental	health	issues,	and	unstable	living	conditions.		
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After	 the	child’s	 father	passed	away	due	 to	a	drug	overdose,	 the	Department	

filed	 an	 affidavit	 in	 support	 of	 a	 preliminary	 child	 protection	 order.	 	 See	

22 M.R.S.	 §	 4034 (2020). In	 July	 2018,	 the	 court	 granted	 the preliminary	

protection	 order,	temporarily	 removing	 the	 child	 from	 the	mother’s	 custody	

and	 placing	 him	 in	 the	 Department’s	 custody.	 	 See	 22 M.R.S.	 §§	 4034(2),	

4036(1)(F)	(2020). The	child	was	placed	with	a	relative	and	has	resided	there	

since	 July	 2018.	 	 In	 August	 2018,	 the	 mother	 appeared	 at a summary	

preliminary	hearing (Campbell,	J.),	at	which	she	waived	her	right	to	contest	the	

temporary	order.		See	id. §	4034(4).

[¶3]	 	 In	 December	 2018,	 the	 mother	 agreed	 to	 a jeopardy order

(Jordan, J.),	 which	 required	 her	 to	 engage	 in	 rehabilitation	 and	 reunification	

services.

1		In	March	2019, when	the	child	was	two	years	old, the	Department	

filed	a	petition	to	terminate	the	mother’s	parental	rights.		See	22	M.R.S. §	4052

(2020).		After	a	one-day	hearing	on	November	19,	2019,	see	22	M.R.S. §	4054

(2020),	the	court	entered	a	judgment	terminating	the	mother’s	parental	rights	

to	the	child.

[¶4]	 	The	 following	 findings	 by	 the	 court	 are	 supported	 by	 competent	

evidence in	the	record.		See	In	re	Child	of	Corey	B.,	2020	ME	3,	¶	3,	223	A.3d	462.

 1		The	jeopardy	order	included both	of	the	mother’s	children,	but	only	one	child	is	involved	in	this	

appeal;	custody	of	the	other	child	was	granted	to	that	child’s	father.
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[The	 child]	 has been	 in	 State	 custody	 since	 July	 26,	 2018,	 for	 a	

present	 total	 of	 sixteen	 (16)	 months.	 	 The	 Court	 finds	 that	 the	

mother	has	not	progressed	from	her	initial	situation	in	July	of	2018.		

Although	she	made	some	progress	originally,	she	has	regressed	for	

a	 number	 of	 months.	 	 Given	 the	 mother’s	 history,	 the	 Court	

concludes	that	it	would	take	many	months	more	to	possibly	correct	

and	stabilize[]	her	situation	such	that	the	child	could	be	returned	

to	her	care.		[The	child]	cannot	and	should	not	have	to	wait	for	his

mother	to	possibly	do	better.

The	 Court	 finds	 that	 [the	 mother]	 has	 repeatedly	 made	 excuses	

about	her	conduct	and	promises	 to	change	 throughout	 the	life	of	

this	case.		She	now	promises	the	Court	she	will	do	much	better	if	

given	a	few	more	month[s]	to	prove	herself.		The	Court	finds	that	

her	 explanations	 of	 her	 failures	 to	 this	 point	 as	 deriving	 from	 a	

combination	of	being	badly	affected	by	the	trauma	of	finding	[the	

child’s]	 father	 dead	 from	 an	 overdose	 and	 her	 need	 to	 work	 to	

support	herself	taking	up	a	lot	of	her	time	to	be	insufficient.

The	Court	finds	that	[the	mother’s]	contact	with	the	child	has	been	

sporadic.		She	has	not	attended	or	been	involved	with	consistent	

mental	 health	 and	 substance	 abuse	 counseling.	 	 The	 Court	 finds	

that	it	would	be	unfair to	[the	child]	and	harmful	to	him	to	continue	

exposing	him	to	her	unpredictable	and	neglectful	behavior.

[¶5]		The	court	found	that	the	State	had	proved by	clear	and	convincing	

evidence	that	the	mother	was	an	unfit	parent	on	two	statutory	grounds,	namely	

that the	mother	was	unwilling	or	unable	to	protect	the	child	from	jeopardy and	

that	she	had	been	unwilling	or	unable	to take	responsibility	for	the	child	within	

a	 time	 reasonably	 calculated	 to	 meet	 his	 needs.	 	 See	 22	 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii).		The	court	then	determined	that	termination	of	the	
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mother’s	 parental	 rights	 was	 in	 the	 child’s	 best	 interest.	 	 See	 id.	

§ 4055(1)(B)(2)(a).

II.		DISCUSSION

[¶6]	 	In	 order	 to	 terminate	 a	parent’s rights	without	 consent,	 the	 trial	

court	must	find,	by	clear	and	convincing	evidence,	at	least	one	of	the	statutory	

bases	for	parental	unfitness	and that	termination	is	in	the	child’s	best	interest.		

See 22	M.R.S. §	4055(1)(B)(2) (2020);	In	re	Child	of	Sherri	Y.,	2019 ME 162,	¶	5,	

221 A.3d	120.		We	review	these	factual	findings	for	clear	error	and	will	uphold	

the findings so	 long	 as	 any	 competent	 record	 evidence	 supports	 them.		

In re Child	of	Sherri	Y.,	2019	ME	162,	¶	5,	221	A.3d	120.		Clear	and	convincing	

evidence	exists	where	“the	court	could	reasonably	have	been	persuaded	 that	

the	required	factual	findings	were	proved	to	be	highly	probable.”		Id.	(quotation	

marks	omitted).

[¶7]		Regarding	the	court’s	unfitness	findings,	the	mother contends	that	

the	Department failed	to	present clear	and	convincing	evidence that	she	was	an	

unfit	parent because	it	relied	on	the absence of	evidence of	drug	screens	and	

signed	releases	of	records.		We	conclude	that	the	court’s	unfitness	findings	were	

supported	 by	 clear	 and	 convincing evidence,	 including	 testimony	 from	 the	

guardian	ad	litem,	the	caseworker, and	the	mother’s	counselor,	which indicated
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that	 the	mother	had	 failed	 to	make	sufficient	progress over	 the	course	of	 the	

sixteen	 months	 that	 the	 child	 was	 in	 the	 Department’s	 custody.	 	 Further,	 in	

evaluating	conflicting	evidence,	the	court	was	entitled	to	find	that	the	mother’s	

testimony	 was	 not	 credible	 on	 a	 number	 of	 counts.	 	 See	 In re	 Children	 of	

Tiyonie R.,	 2019	 ME	 34,	 ¶	 6,	 203	 A.3d	 824	 (“Although	 the	 mother	 offered	

contradictory	 evidence	 regarding	 her	 fitness	 as	 a	 parent,	 the	 weight	 and	

credibility	of	that	evidence	was	for	the	trial	court’s	determination.”).

[¶8]		We	review	the	court’s	ultimate	determination	of	best	interest	for	an	

abuse	 of	 discretion	 and	 its	 underlying	 factual	 findings	 for	 clear	 error.	 	 See	

In re Child	of Corey	B.,	2020	ME	3,	¶	9,	223	A.3d	462.		In	determining	a	child’s	

best	interest,	the	trial	court	considers factors	including “the	needs	of	the	child,	

the	 child’s	 age,	 attachment	 to	 relevant	 persons,	 periods	 of	 attachment	 and	

separation,	 ability	 to	 integrate	 into	 substitute	 placement	 or	 back	 into	 the	

parent’s	 home,	 and	 the	 child’s	 physical	 and	 emotional	 needs.”	 	In	 re	 Child	 of	

Sherri	 Y.,	 2019	 ME	 162,	 ¶	 8,	 221	 A.3d	 120	 (quotation	 marks	 and	 alteration	

omitted);	see	22	M.R.S.	§	4055(2)(2020).		The court’s	findings	concerning	these

best	 interest	 considerations	 were	 supported	 by	 record	 evidence,	 such	 as	

evidence	regarding	the	child’s	very	young	age,	the	fact	that	he	had	been	in	the	
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Department’s custody	 for	the	latter	 half	 of	his	life,	 and	his	anxiety	when	 the	

mother	would	schedule	a visit	and	then	fail	to attend.

[¶9]		In	addition,	the	court	heard	evidence	demonstrating	that	the	child	

benefitted	 from	 the	 relative’s	 care.	 	 See	 In re Kenneth	 S.,	 2017	 ME	 45,	 ¶	 6,	

157 A.3d	244	(observing	that, although	the	question	of	who	should	adopt	the	

child	is	separate	from	a	termination	proceeding,	“in	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”).	 	 The	 mother	 contends that,	 in	 conducting	 its	 best	

interest	 analysis, the	 court	 did	 not	 properly	 consider	 a	 permanency	

guardianship	with	the	relative as	an	alternative	to	termination and	adoption.		

We	 discern	 no	 abuse	 of	 discretion	 in	 the	 court’s	 determination.	 	 See	

In re Cameron	B.,	2017 ME 18,	¶¶	11-13,	154	A.3d	1199.		The	court	was	entitled	

to	rely	on	the	guardian	ad	litem’s	opinion that	due	to	the	child’s	young	age,	the	

certainty	 of	 adoption	 was	 in	 the	 child’s	 best	 interest and	 preferable	 to	 a	

permanency	guardianship.		See	In re Haylie	W.,	2017	ME	157,	¶	4,	167	A.3d	576.

The	entry	is:

Judgment affirmed.
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Amy	McNally,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	P.A.,	

Biddeford,	for	appellant	Mother

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

Bangor	District	Court	docket	number	PC-2017-56

FOR	CLERK	REFERENCE	ONLY