MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	93

Docket: Fra-18-41

Submitted

On	Briefs: June	27,	2018

Decided: July	10,	2018

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

IN	RE	CHILD	OF	EVERETT	S.

PER	CURIAM

[¶1]	 The	 mother	 and	 father	 appeal	 from	 a	 judgment	 of	 the	 District	

Court	 (Farmington,	Carlson,	J.)	 terminating	 their	 parental	 rights	 to	 their	 son	

pursuant	 to	 22	 M.R.S.	 §	 4055(1)(A)(1)(a)	 and	 (B)(2)(a),	 (b)(i)-(ii)	 (2017).		

Both	parents	challenge	 the	sufficiency	of	 the	evidence	supporting	 the	court’s	

findings	 of	 unfitness and	 best	 interest	 as	 well	 as	 the	 court’s	 discretionary	

determination that	 the	 termination of	 their	parental	rights	was	in	 the	child’s	

best	interest.		Because	 the	evidence	supports	 the	court’s	factual	findings	and	

discretionary	 determinations, and	 because	 the	 court	 did	 not	 abuse	 its	

discretion	in	determining	that	termination	was	in	the	child’s	best	interest, we	

affirm	the	judgment.
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I.		BACKGROUND

[¶2]		After	a	 two-day	 termination	hearing,	 the	court	issued	a	judgment	

containing	 the	 following	 findings	 of	 fact,	which	are	supported	by	 the	 record.		

See	In	re	Child	of	James	R.,	2018	ME	50,	¶	2,	182 A.3d 1252.		

[The	 parents]	 are	 a	 married	 couple .	 .	 .	 who	 have	 had	

extensive	 involvement	 with	 DHHS	 child	 protection	 services	 for	

approximately	 twenty	 years	 off	 and	 on.	 	 The	 issues	 have	 largely	

been	unsanitary	living	conditions	and	neglect.		

.	.	.	.	

On	May	11,	2016,	the	[c]ourt	entered	a	Jeopardy	Order	with	

respect	 to	 [the	child,]	which	 found	him	 to	be	in	circumstances	of	

jeopardy	 in	 the	 custody	 of	 his	 parents	 based	 on	 the	 threat	 of	

serious	 harm,	 [and	 the]	 deprivation	 of	 adequate	 food,	 shelter,	

clothing, supervision	and	education.		

. . . .

After	DHHS	 took	custody	of	 [the	child],	he	was	placed	with	

his	 older	 half-brother	 and	 his	 wife. [The	 parents]	 were	 able	 to	

buy	the	trailer	that	they	had	been	renting	and	told	DHHS	that	they	

were	 going	 to	 make	 improvements	 that	 would	 remedy	 the	

unsanitary	 living	 conditions.	 They	 claimed	 that	 their	 former	

landlord	 had	 essentially	 contributed	 to	 the	 unsanitary	 living	

conditions	and	it	was	not	their	fault.		

Over	the	next	few	months,	living	conditions	in	[the]	parents’	

home	appeared	to	be	getting	better.	 Both	[of	the	parents]	were	in	

counseling	 with	 counselors	 that	 they	 had	 been	 seeing	 for	 a	

number	of years.	

.	.	.	.	
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[The	 parents]	 both	 completed	 [Court	 Ordered	 Diagnostic	

Evaluations (CODE)]	 . . . .	 Given	 the	 history	 of	 DHHS	 child	

protection	 involvement	 for	 the	 same	 issues	 and	 [the	 mother’s]	

mental	 state,	 [the	 CODE	 evaluator]	 does	 not	 believe	 that	 [the	

mother]	can	make	sufficient	changes	that	could	reduce	the	risk	of	

further	 incidences	 of child	 maltreatment.	 She	 tends	 to	 blame	

others	 for	 the	 circumstances	 that	 have	 caused	 [the	 child’s]	

removal,	 which	 indicates	 a	 lack	 of	 motivation	 to	 make	 any	

appreciable	changes . . . .		

[The	father]	was	unable	to	identify	any	of	DHHS’s	concerns	

during	 his	 CODE	 evaluation	 with	 the	 exception of	 a	 lack	 of	

cleanliness	 which	 he	 and	 [the	 mother]	 blamed	 on	 their	

landlord.	 His	IQ	score . . . indicated	an	intellectual	disability.	.	.	.	

[The	CODE	evaluator]	concluded	that:

‘the	 mere	 presence	 of	 an	 intellectual	 disability	 does	

not	 necessarily	 guarantee	 that	 a	 parent	 will	 be	

neglectful	 or	 abusive.	 However,	 in	 this	 case,	 it	

appears	 that	 [the	 father’s]	 limited	 ability	 to	

conceptualize	 the	 big	 picture	 situation	 at	 home	 has	

left	him	pretty	ineffective	in	addressing	issues	such	as	

cleanliness	 of	 the	 household	 or	 management	 of	 his	

older	 son’s	 aggressive	 behavior	 toward	 his	 younger	

brother.	 Therefore,	 this	 is	 a	 case	 where	 cognitive	

limitation	can	reasonably	be	seen	as	a	risk	factor.	.	.	.’

.	.	.	.	

[The	child]	has	expressed	 that	he	wants	 to	 return	home	 to	

his	parents,	although	he	was	excited	about	 the	prospect	 of	going	

to	 [the	 residential	 facility].	 In	 June	 2017,	 the	 [permanency	

caseworker]	 visited	 the	 [parents’]	 home	 and	 saw	 clutter	 in	 the	

home,	 including	[the	 child’s] bedroom	 blocked	 by	 large	 items,	 a	

dirty	kitchen,	a	hole	in	the	hallway	floor,	a	hole	in	the	shower	and	

[what	appeared	to	be]	feces	around	the	toilet.	 She	did	not	believe	
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that	 jeopardy	 had	 been	 ameliorated	 or	 that	 the	 parents	 were	

capable	of	meeting	[the	child’s]	needs.		

. .	. .

[The	mother]	 does	 not	believe	 that	DHHS	has	helped	 [her]

and	 [her	 husband]	 with	 the	 unsanitary	 living	 conditions,	

particularly	ridding	the	home	of	cockroaches.		

.	 .	 .	 [The	 father]	 believes	 that	 he	 and	 [the	 mother]	 could	

safely	 supervise	 [the	 child]	 in	 their	 home.	 He	 did	 indicate	 that	

while	 he	 and	 [his	 wife]	 were	 trying	 to	 make	 improvements	 to	

their	 trailer,	 he	 had	 given	 up	 on	 it	 and	 did	 not	 want	 to	 do	 any	

further	work.		

[The	child’s]	Guardian ad	Litem . . . believes	 that	it	is	not	in	

the	 child’s	 best	 interest	 to	 return	 home.	 She	 believes that	 [the	

child]	needs	to	know	where	he	is	going	and	that	he	needs	stability	

and	permanency.		

There	 were	 reunification	 and	 rehabilitation	 plans	 in	 this	

case	 that	were	 done	in	 March	 2016	 [and] July	 2016[,] and	 three	

judicial	review	orders.		

[The	 child]	 is	 a	 very	 high	 needs	 child	 who	 requires	

caregivers/parents	 who	 are	 highly	 skilled,	 focused	 on	 his	 needs,	

able	 to	 make	 good	 judgments,	 have	 the	 ability	 to	 keep	 him	 safe	

and can provide	 a	 clean,	 stable	 home.	 [The	 child]	 has	 been	 in	

DHHS	custody	since	May	2016.		

Based	 on	 [the	 parents’]	 own	 limitations,	 their	 failure	 to	

make	the	changes	in	their	living	environment	and	their	lives	that	

are	 necessary	 to	 keep	[the	 child]	 safe	 and	 which	 are	 unlikely	 to	

change	as	well	as	the	high	needs	of	this	child,	the	[c]ourt	finds,	by	

clear	 and	 convincing	 evidence,	 that	 they	 are	 unwilling	 or	 unable	

to	protect	 their	child	 from	jeopardy	and	 these	circumstances	are	

unlikely	to	change	within	a	time	reasonably	calculated	to	meet	his	

needs	and	 they	are	unwilling	 or	unable	 to	 take	 responsibility	 for	
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their	child	within	a	time	that	is	reasonably	calculated	to	meet	his	

needs.		

The	 [c]ourt	 further	 finds	 that	 it	 is	 in	 [the	 child’s]	 best	

interests	 that	 [the	mother’s]	and	 [the	 father’s]	parental	 rights	be	

terminated.	 	 The	 [c]ourt	 bases	 this	 on	 [the	 child’s]	 age,	 his	 .	 .	 .	

needs	 and	 the	 fact	 that	he	has	been	in	DHHS	custody	 for	 twenty	

months	 and	 needs	 stability	 and	 permanency.	 	 His	 emotional	

deterioration	is	 a	 sign	 that	 he	is	 unable	 to	move	 forward	 due	 to	

his	uncertainty	as	to	his	future.	

II.		DISCUSSION

[¶3]	 	 We	 review	 the	 court’s	 factual	 findings	 on	 parental	 unfitness	 for	

clear	error	and	its	determination that	 the	 termination	of	parental rights	was	

in	the	child’s	best	interest	for	an	abuse	of	discretion.		In	re	Hope	H.,	2017	ME	

198,	¶ 8,	170	A.3d	813.

A. Unfitness	Findings

[¶4]		The	mother	and	the	father	both	argue that	the	court’s	findings	are	

unsupported	 by	 the	 record	 because	 the	 Department	 failed	 to	 provide	 the	

services	recommended	by	the	psychologist	who	performed	the	CODE for	each	

parent.	 	 See	22	M.R.S.	 §	 4041	 (2017).	 	Further,	the	 parents contend that	 the	

Department failed	 to	 provide	 certain	 services	 outlined	 in	 the	 reunification	

plans.			

[¶5]		We	consider	allegations	of	the	failure	of	the	Department	to	provide	

reunification	services	as	a	part	of	the	determination	of	parental	unfitness.		See,	
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e.g., In	 re	 Emma	 S.,	 2018	ME	 8,	 ¶	 5,	 177	 A.3d	 632.	 Contrary	 to	 the	 parents’	

contentions,	 the	 court’s	 findings	 are	 supported	 by	 the	 record	 because the	

Department created	 reunification	 and	 rehabilitation	 plans,	 provided	 social	

worker	 services,	 and	made	 referrals	 to	 other	 services throughout	 the	 nearly	

two	 decades	 that	 the	 Department	 has	 been	 involved	 with	 this	 family.	 	 In	

addition,	supported	by	the	CODE	report	for	each	parent,	the	court	found	that	

it	is	unlikely	 that	 the	mother	 “can	make	 sufficient	changes	 that	could	 reduce	

the	 risk	 of	 further	 incidences	 of	 child	 maltreatment”	 and,	 in	 regards	 to	 the	

father,	 “[t]he	 prognosis	 for	 change	 is	 poor,	 because	 it	 is	 unlikely	 that	 his IQ	

will	ever	improve.”		(Quotation	marks	omitted.)		Moreover,	“the	Department’s	

compliance	 with	 its	 rehabilitation	 and	 reunification	 duties	 as	 outlined	 in	

section	 4041	 does	 not	 constitute	 a	 discrete	 element	 requiring	 proof	 in	

termination	 proceedings,	 nor	 does	 the	 failure	 of	 the	 Department	 to	 comply	

with	 section	 4041	 preclude	 findings	 of	 parental	 unfitness.”	 	 In	 re	 Child	 of	

Heather	W.,	2018	ME	31,	¶	11,	180	A.3d	661 (quotation	marks	omitted).		

[¶6]		The	court	 therefore	did	not	 clearly	err	when	it	 found	 that,	based	

on	 the	 parents’	 own	 limitations	 and	 “their	 failure	 to	 make	 changes	 in	 their	

living	environment	and	their	lives	that	are	necessary	to	keep	[the	child]	safe,”	

the	parents	were	unwilling	and	unable	to	protect	their	child	from	jeopardy	or	
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take	responsibility	for	their	child,	and	that	these	circumstances	are	unlikely	to	

change	 within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	 high

needs.		See	22	M.R.S.	§	4055(1)(B)(2)(b)(i)-(ii);	see	also	In	re	Logan	M.,	2017	

ME	23,	¶	3,	155	A.3d	430.

B. Best	Interest	Determination

[¶7]	 	 Both	 parents	 also	 challenge	 the	 court’s	 determination	 that	

termination	 of	 their	 parental	 rights	 was	 in	 the	 child’s	 best	 interest.	 	 They	

argue	 that	 this	 was	 an	 error	 and	 abuse	 of	 discretion	 because	the	 child	 had

voiced	 a	 desire	 to	 return	 to	 their	 care	 and	 that	 the	 child’s behavior	 had	

deteriorated while	he	was in	the	custody	of	the	Department.		The	court made

specific	 findings	 regarding	 the	 child’s	 misbehavior	 during	 his	 time	 in	 the	

custody	 of	 the	Department	 and	 noted	 that	 the	 child	 “has	 expressed	 that	 he	

wants	 to	 return	 home	 to	 his	 parents.”	 	 Despite	 these	 findings,	 the	 court	

ultimately	determined	that	termination	was	in	the	child’s	best	interest	based	

on	the	child’s	“age,	his .	.	.	needs	and	the	fact	that	he	has	been	in	DHHS	custody	

for	twenty	months	and	needs	stability	and	permanency.”		This	determination	

is	 supported	 by	 the	 record	 and	 was	 not an	 abuse	 of	 discretion.	 	 See	 In	 re	

Logan M.,	2017	ME	23,	¶	5,	155	A.3d	430.
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The	entry	is:

Judgment affirmed.

Luann	L.	Calcagni,	Esq., Plymouth,	Massachusetts,	for	appellant	father

Bradley	P.	Sica,	 Jr., Esq.,	Christopher	S.	Berryment,	LLC,	Mexico,	 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

Farmington	District	Court	docket	number	PC-2016-4

FOR	CLERK	REFERENCE	ONLY