MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME	55

Docket: Yor-17-423

Submitted

On	Briefs: April	10,	2018

Decided: April	24,	2018

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

IN	RE CHILDREN	OF	AMBER	L.

PER	CURIAM

[¶1]		The	mother	and	the	father appeal1 from a	judgment	of	the	District	

Court	 (Springvale,	 Janelle, J.) terminating	 their parental	 rights	 to	 their	 two

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

(2017),	 as	 to	 the	 father, and	 22	 M.R.S.	 §	 4055(1)(A)(1)(a)	 and	 (B)(2)(a),	

(b)(i)-(ii),	(iv) (2017),	as	to	the	mother.	 The	father challenges the	sufficiency	

of	 the	 evidence	 supporting	 the	 court’s	 findings	 of	 unfitness	 as	 well	 as	 the	

sufficiency	of	the	evidence	supporting	the	court’s	finding	that	termination	is	in	

the	best	interests	of	the	children.		He	also	argues	that	the	court’s	termination	of	

his	parental	rights	constituted an	abuse	of	discretion	because	it	failed	to	take	

 1		Pursuant	to	the	procedure	outlined	in	In	re	M.C.,	2014	ME	128,	¶	7,	104	A.3d	139,	counsel for	

the	mother	filed	a	brief	indicating	that	there	are	no	arguable	issues	of	merit	for	appeal. We	entered

an	order	permitting	the	mother	to	file	a	supplemental	brief	on	or	before	December 28,	2017, but	the	

mother	did	not	do	so.		
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into	 account	 “the	 negative	 consequences”	 of	 termination.2	 	 We	 affirm	 the	

judgment.		

I.		BACKGROUND

[¶2]		The	court	made	the following	supported	findings	of	fact	pertaining

to	the	parents’	fitness	to	parent	their	children:	

The	children	lived	with	their	parents	in	New	Hampshire	from	

the	 time	 of	 their	 births	 to	 2008.	 In	 April	 of	 2008,	 they	 were	

removed	 from	 their	 parents’	 care	 and	 placed	in	New	Hampshire	

Division	 of	 Children,	 Youth	 and	 Families	 (hereinafter	 “DCYF”)	

custody. .	 .	 . It	 is	 not	 completely	 clear	 why	 the	 children	 were	

removed	from	their	parents’	home.	 [The mother]	testified	that	the	

children	were	removed	because	of	domestic	violence between	her	

and	[the	father].		There	was	also	testimony	that	[the	mother]	had	a	

substance	abuse	problem	at	 one	 time.		The	children	 remained	in	

foster	care	until	February	2012,	when	they were returned	to	their	

parents’	custody.		

[The	 parents]	 were	 separated	 when	 the	 children	 were	

returned	to	them.	[The	mother]	remained	living	in	New	Hampshire	

and	[the	father]	had	relocated	to	Maine,	where	he	currently	resides.		

From	2012	to	2015,	the	children	went	back	and	forth	between	their	

parents’	 homes.	 	 Although	 it	 is	 not	 known	 how	 much	 time	 they	

spent	in	each	home,	the	girls	were	living	in	[southern	Maine	with	

the	father],	his	girlfriend,	.	.	.	and	another	roommate .	.	.	when	the	

Department	 formally	 became	 involved	 with	 the	 family	 in	 the	

summer	of	2015.			

 2	 	 Although	 the	 father	 additionally	 argues	 that	 the	 court’s	 acceptance of the	 Department’s	

proposed	findings	of	fact	constitutes	a	failure	by	the	court	to	exercise	its	independent	judgment, we	

do	not	entertain	that	argument	because	the	father	failed	to	request	further	findings	of	fact,	pursuant	

to	M.R.	Civ.	P.	52(b), after	 the	court	entered	its	judgment.		See	In	 re	Caleb	M.,	2017	ME	66,	¶	15,	

159 A.3d	345 (“[W]e	will	no	longer	entertain	a	challenge	to	the	trial	court’s	independent	judgment	

based	on	the	court’s	adoption	of	a	party’s	proposed	order,	absent	a	parent’s	motion	for	further	or	

clarified	findings	pursuant	to	Maine	Rule	of	Civil	Procedure	52(b).”).
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.	.	.	.

As	 of	 this	 date,	 [the	 parents]	 have	 had	 twenty	 months	 to	

engage	 in	 the	 services	 outlined	 in	 their	 reunification	 plans	 to	

alleviate	jeopardy	and	to	prove	to	the	girls	that	they are	now	safe	

and	reliable	caregivers.		Neither	parent	has	alleviated	jeopardy	or	

arrived	at	the	point	where	they	can	meet	these	girls’	needs.		[The	

mother]	fails	to	acknowledge	that	her	past	issues	have	anything	to	

do	 with	 the	 children’s	 current	 struggles.	 	 She	 testified	 that	 her	

substance	abuse,	domestic	violence	and	mental	health	issues are	in	

the	past and	have	nothing	 to	do	with	what	is	going	 on	 now,	 and	

[that	she]	does	not	need	any	mental	health	treatments.		[She]	has	

refused	counseling.		She	has	not	attended	any	parenting	sessions,	

even	though	she	maintains	this	is	the	only	service	that	she	had	to	

do.	 [She]	lacks	sensitivity	around	 the	girls’	attachment	issues,	as	

evidenced by	 her	 telling	 [the	 younger	 child]	 that [her]	 foster	

mother	is	just	a	care giver	.	.	.	.	 [She]	has	visited	the	children	a	total	

of	three	times	.	.	.	.		[She]	cited her	work	schedule,	distance	and	car	

trouble	as	reasons	for	her	failure	to	see	her	children.		However,	the	

Department	 offered	 transportation	 assistance	 and	[a	 counseling	

agency] made	 changes	 to	 the	 visitation	 schedule	 based	 on [the	

mother’s]	reported	changes	in	her	work	schedule.		This	past	April,	

[the	mother’s]	schedule	changed	and	she	was	asked	to	contact	[the	

counseling	agency] to	set	up	visits,	however,	this	did	not	occur.		

[The	 mother]	 has	 all	 but	 abandoned	 [the	 children].	 	 Her	

failure	 to	 visit	 does	 nothing	 to	 show	 [the	 children]	 that	 she	 is	 a	

reliable	 caregiver	 and	 can	 provide	 a	 safe,	 stable	 and,	 nurturing	

environment.		

Neither	is	[the	father]	in	a	position	to	parent	the	girls,	but	not	

for	 lack	 of	 contact	 with	 the	 girls	 or	 the	 Department.	 	While	 [the	

father]	has	not	yet	found	new	housing,	he	has	engaged	in	the	other	

services	and	responsibilities	outlined	in	his	reunification	plan.		[He]	

continues	to	live	with	[his	girlfriend	and	roommate],	who	he	agrees	

cannot	be	around	his	children.	.	.	. Despite	[the	father’s	efforts, he]

continues	 to	 lack	 insight	 into	 the	 impact	 of	 his	 substance	 abuse	

issues	 on	his	parenting	and	does	not	know	how	 to	communicate	
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with	 the	 girls	 who	 have significant	 attachment	 issues. .	 .	 . [The	

father]	continues	to	believe	that	the	girls	need	to	respect	him	and	

their	behaviors	need	to	change	before	they	will	be	ready	to	return	

home.		In	other	words,	[the	father]	blames	the	girls	for	the	fact	that	

they	are	in	foster	care.		At	his	last	visit	with	the	girls this	past	May,	

[the	father]	became	angry	when	[the	younger	child]	would	not	eat	

the	food	that	he	brought	and	told	her	that	he	was	going	to	tell	the	

Department	 that	he	did	not	want	 to	see	her	again.		Whatever	 the	

reason	for	the	remark,	it	could	not	have	assured	[the	child]	that	her	

father	will	always	be	there	for	her.	.	.	.		

(Footnotes omitted) (quotation	marks	omitted).		

[¶3]	 The	court	also	made the	following supported	findings	regarding	the	

extensive	needs	of	the children,	both	of	whom	are on	the	cusp	of	their	teenage	

years:	

When	 the	children	 entered	 the	Department’s	custody,	 they	

were	placed	in	separate	therapeutic	foster	homes	supported	by	[a

counseling	 agency].	 .	 .	 .	 	 The	 Department’s	 caseworker	 sought	

therapeutic	 placements	 in	 southern	 Maine,	 but	 was	 unable	 to	

locate	families	that	could	meet	the	girls’	needs	in	the	area.		

Although	the	[foster	family	of	the	older	child	has]	struggled	

with	[her]	behaviors	in	their	home,	[she]	remains	in	their	care	and	

there	are	no	plans	for	[her]	to	leave	their	home.		However,	they	are	

not	a	pre-adoptive	 family	as	 they	do	not	 feel	 they	will	be	able	 to	

meet	[the	child’s]	needs	without	support	from	the	Department	and	

other	agencies.	 [Her]	behaviors	in	the	home	have	included	verbal	

aggression	and	property	destruction.	.	.	.	

While	 [the	 older	 child]	 has	 been	 fortunate	 to	 have	 been	in	

one	placement	over	the	last	twenty	months,	[the	younger	child]	has	

not	 been	 so	 lucky.	 [One	 family]	 asked	 the	 Department	 to	 move	

[her]	 because	 they	 could	 not	 handle	 her	 behaviors,	 as	 [she]	was	

verbally	aggressive	toward	members	of	the	.	.	.	household.		She	was	
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also	 physically	 aggressive	 and	 had	 a	 great	 deal	 of	 difficulty	

regulating	herself.	.	.	.	

.	.	.	.

As	with	her	other	placements,	[she]	has	been	a	challenge	for	

[her	current	foster	parents].		Although	she	loves	[them]	and	wants	

to	stay	in	their	home,	she	is	physically	and	verbally	abusive	(fiery	

and	 explosive)	 to	 everyone	 in	 the	 household.	 .	 .	 . Some	 of	 her	

behaviors	 raise	 safety	 concerns	 for	 herself	 and	 others.	 .	 .	 . [The	

foster	 mother]	 has	 taken	 [her]	 for	 crisis	 assessments	 and	 has	

developed	protocols	with	[the	counseling	agency] for	when	 [her]	

behaviors	escalate.		[The	foster	parents]	are	committed	to	keeping	

[her]	for	the	long	term,	but	do	not	believe	they	can	adopt	[her]	for	

the	same	reasons	given	by	[her	sister’s]	foster	parents.		

At	 hearing,	 the	 children’s	 therapists	 spoke	 about	 the	 girls’	

treatment	plans	but	admitted	that	they	have	not	been	able	to	get	

very	far	in	treatment	because	they	are	so	busy	“putting	out	fires.”	

Both	 counselors	 testified	 that	it	is	important	 for	 the	 girls	to	 find	

their	permanent	homes	and	achieve	stability	so	 they	can	process	

their	 trauma	histories.		 It	is	 very	important	 for	 the	girls	 to	 know	

that	 they	 are	 with	 safe,	 reliable	 caregivers.	 	 The	 counselors	 are	

concerned	 that	 if	 they	 cannot	 work	 on	 the	 girls’	 trauma	 sooner

rather than	later,	there	is	a	high	probability	that	they	will	struggle	

with	poor	mental	health	in	adulthood.		

Both	 counselors	 also	 addressed	 whether	 it	 would	 be	

beneficial	 for	 [the	 children]	 to	 engage	 in	 family	 counseling	 with	

their	 parents.	 	 If	 the	 parents	 are	 able	 to	 acknowledge	 that	 they	

neglected	or	abused	the	girls,	and	are	ready	to	prove	to	them	that	

they	are	now	safe	and	reliable	caregivers,	family	therapy	may	work.

But,	if	 the	parents	are	not	able	 to	acknowledge	 the	abuse	and	its	

impact	 on	 the	children,	 family	 therapy	could	do	more	harm	 than	

good.		

.	.	.	.	
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Although	 the	 children	 are	 not	 in	 pre-adoptive	 placements,	

they	 are	 in	 stable,	 long-term	 placements	 with	 safe,	 reliable	

caregivers	who	are	doing	 their	best	 to	maintain	 the	girls	in	 their	

homes	and	make	sure	the	girls	are	engaged	in	appropriate	services.		

It	is	vital	for	the	girls	to	achieve	some	level	of	permanency	at	this	

time,	even	if	the	only	permanency	the	Court	can	provide	right	now	

is	to	let	them	know	they	will	not	be	returning	to	their	parents	and	

to	free	them	for	adoption.	.	.	. [The	younger	child]	has	been	clear	

throughout	this	case	that	she	does	not	want	to	return	to	her	parents	

and	[the	older	child]	has	recently	told	the	Guardian	ad	Litem	that	

she	does	not	want	to	go	back	either.		Although	the	girls	are	young,	

the	Court	takes	their	wishes	into	consideration	to	determine	what	

is	in	the	best	interest[s]	of	the	children.		

(Footnotes	omitted.)

II.		DISCUSSION

[¶4]		These	findings	are	sufficient	to	support the court’s	determination

that both parents	 are	 (1) unwilling	 or	 unable	 to	 protect	 the	 children	 from	

jeopardy	 and	 that	 these	 circumstances	 are	 unlikely	 to	 change	 within	 a	 time	

which	is	reasonably	calculated	to	meet	the	children’s	needs, and	(2)	unwilling	

or	 unable	 to	 take	 responsibility	 for	 the	 children	 within	 a	 time	 which	 is	

reasonably	 calculated	 to	 meet	 their needs.	 	 See	 22	 M.R.S.	

§ 4055(1)(B)(2)(b)(i)-(ii);	see	also	In	re	Meena	H.,	2018	ME	13,	¶	3,	177	A.3d	

1276.		They	are	also	sufficient	to	support	the	court’s	finding that	the	mother	has	

failed	to	make	a	good	faith	effort	to	rehabilitate	and	reunify	with	the	children,	

see	 22	 M.R.S.	 §§ 4041(1-A)(B),	 4055(1)(B)(2)(b)(iv) (2017),	 and	 that
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termination	 of	 both parents’	 rights	 is in	 the	 children’s	 best	 interests.	 	 See	

22 M.R.S.	§ 4055(1)(B)(2)(a).		

[¶5]		The	father	also	argues	that the	court’s	ultimate	termination	of	his	

parental	rights	constituted	an	abuse	of	discretion	because	termination at	this	

point,	when the	current	foster	families	are	not	immediately	ready	to	adopt	the	

girls,	fails	to	establish	permanency	for	the	children.		The	father	is	correct	that	

there	is	 no	 one-size-fits-all answer	when	it	 comes	 to	 permanency. We have	

therefore	frequently	stated	that	the	concept	of	permanency	is	a	dynamic	one,	

and permanency	 in	 a	 particular	 case	 “must	 be	 fashioned	 from	 the	 actual	

circumstances	and	needs	of	the	.	.	.	children	before	the	court.”		In	re	Marcus	S.,	

2007	ME	24,	¶	10,	916	A.2d	225.		And “permanency	planning	for	[children] in	

foster	care	and	the	best	interest[s] determination	to	be	made	in	a	termination	

proceeding	are	distinct	from	the	question	of	who	should	adopt	the	child[ren].”

In	re	Kenneth	S.,	2017	ME	45,	¶	6,	157	A.3d	244 (citations	omitted).		Based	on	

the	record	before	us,	the	court	did	not	abuse	its	discretion	when	it	determined

that	termination is	in	the	best	interests	of	these two children when	the	parents	

have	demonstrated	that	they	are	unable	to	offer	the	children any	semblance	of	
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permanency,	 due	 to	their	 failure	 to alleviate	 jeopardy	 over	 a	 twenty-month	

period	of	time even	with ample	support	from	the	Department.

The	entry	is:

Judgment affirmed.

Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Berwick,	for	appellant	father

Caitlin	Ross	Wahrer,	Esq.,	Chester	&	Vestal,	P.A.,	Portland,	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

Springvale	District	Court	docket	number	PC-2015-41

FOR	CLERK	REFERENCE	ONLY