MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions
Decision: 201 8 ME 55
Docket: Yor

- 17

- 423
Submitted

On	B riefs : April	1 0 ,	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 appeal 1 from a	judgment	of	the	District

Court	 (Springvale, Janelle

, J. ) terminating their parental	 rights	 to	 the ir	 two

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

- (ii)

(2017) ,	 a s	 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 challenge s 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 ,	c ounsel 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	supplemen tal	bri ef	on	or	before	December 28,	2017

, but	the
mother	did	not	do	so.2

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

rem oved	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,	w hen	they were returned	to	their parents’	custody.

[The	 parents]	 were	 separated	 when	 the	 c hildren	 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	201 5,	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	girlfri end,	.	.	.	and	another	roommate .	.	.	when	the Departme nt	 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).”).3

.	.	.	.

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	a ttended	any	parenting sessions

, even	though	she	maintains	this	is	the	on ly	service	that	she	had	to
do. [She]	lacks	sensitivity	around	 the	girls’	attachment	issues,	as
evidence d 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	 counsel ing agency] made	 changes	 to	 the	 visitation	 schedule	 based	 on [the mother’s]	reported	change s	in	her	work	schedule.		This	past	April, [the	mother’s] schedule	changed	an d she	was	asked	to	contact [the counseling	agency] to	set	up	visits,	however,	this	did	no t	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	reunificat ion	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	n ot	kn ow	how	 to	communicate4

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 w hen	[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	as sured	[ the	child ]	that	her father	will	always	be	there	for	her.

.	.	.

(Footnote s 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	cu sp	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	t heir	home,	[she]	remains	in	their	care	and there	are	no	plan s	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	agenci es. [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	 fami ly]	 asked	 the	 Department	 to	 move [her]	 because	 they	 could	 not	 handle	 her	 behaviors,	 as	 [she]	was verbally	aggressive	toward	members	of	the	.	.	.	household.		She	was5

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	c ommitted	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’	 t rauma	 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

im pact	 on	 the	children,	 family	 therapy	could	do	more	harm	 than good.

.	.	.	.6

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	gir ls	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	ret urning	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	t heir	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	calculat ed	to	meet	the	children’s	needs, and	(2)	unwilling

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

rea sonably	 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

,

s ee 22	 M.R.S.	 §§ 4041 (1

- A)(B) ,	 4055(1)(B)(2)(b)(iv) (2017)

, and	 that7

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,	whe n the current foster	families	are	not	immediately	ready	to	adopt	the

girls

, fails	to	establish	permanency	for	the	children. T he	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	i n	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,	t he court	did	not	abuse	its	discretion when	it	determined

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

have	demonstrated	that	they	are	unable	to	offer the	children any	sembla nce	of8

permanency,	 due	 to the ir failure	 to alleviate jeopardy	 over	 a	 twenty

- month

period	of	time even	w ith ample	support	from	the	Department

.

The	entry	is:

Judgment affirmed.

Rory	A.	McNamara,	Esq.,	Drake	La w,	LLC,	Berwick,	for	appellant	f ather

Caitlin	Ross	Wahrer,	Esq.,	Chester	&	Vestal, P.A., Portland,	for	appellant m other

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

F OR C LERK R EFERENCE O NLY