MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	130

Docket: And-17-6

Submitted

On	Briefs: June	14,	2017

Decided: June	22,	2017

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

IN	RE	MACKENZIE	P. et	al.

PER	CURIAM

[¶1]	 The	 mother	 of	 Mackenzie	 P.	 and	 Antonio	 P. appeals from	 a	

judgment	 of	 the	 District	 Court	 (Lewiston,	 Dow,	 J.)	 terminating	 her parental	

rights	 to	 her children pursuant	 to	 22	 M.R.S.	 §	 4055(1)(A)(1), (B)(2)(a),	

(b)(i)-(ii) (2016).	 She challenges the	 sufficiency	 of	 the	 evidence	 to	 support	

the	 judgment and	 the	 court’s	 discretionary	 determination	 of	 the	 children’s

best	interests. The	mother	also	argues	that	she	was	deprived	of due	process	

because	the	court	terminated her	parental	rights	when	the	guardian	ad	litem

(GAL)	 had	 not	 complied	 with 22	 M.R.S.	 § 4005(1)(B)	 (2016). Because	 the	

evidence	 supports	 the	 court’s	 findings and	 discretionary	 determination,	 and	

we	conclude	that	the	mother	received	due	process, we	affirm	the	judgment.

[¶2]	 	 Based	 on	 competent	 evidence	 in	 the	 record,	 the	 court	 found,	 by	

clear	 and	 convincing	 evidence,	 that	 the	 mother	 is	 unwilling	 and	 unable	 to	

protect	the	children	from	jeopardy	and	that	these	circumstances	are	unlikely	
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to	 change	 within	 a	 time	that is	 reasonably	 calculated	 to	meet	 the	 children’s	

needs,	 she	 is	 unwilling	 and	 unable	 to	 take	 responsibility	 for	 the	 children	

within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 their	 needs, and	

termination	 of	 her	 parental	 rights	 is	 in	 the	 children’s best	 interests.		

See 22 M.R.S.	 § 4055(1)(B)(2)(a),	 (b)(i)-(ii). The	 court	 based	 these

determinations on the	following	findings	of	fact.

[¶3]	 	Although	 she succeeded	in	 obtaining adequate	 and	 safe	 housing,	

the	 mother	 “failed	 to	 visit	 consistently	 with	 the	 children” and	 “regularly	

disappointed	them	by	failing	to	appear	at	scheduled	visits” in	violation of	the	

reunification	 plan	 she	 had	 agreed	 to with	 the	 Department of	 Health	 and	

Human	Services.

1 The	mother’s behavior showed	“a	reckless	disregard	for	the	

emotional	 health	 of	 [the]	 children” and—considering evidence that	 the	

mother	 could	 keep	 other	 appointments—“an	 unwillingness,	 not	 a	 mere	

inability,” to	comply	with	the	reunification	plan.	 Because	the	mother	failed	to	

comply	with	the	reunification	plan,	she	did	not	show	progress	in	her	ability	to	

protect	 the	 children	 from	 unsafe	 people	 or	 supervise	 and	 care	 for	 them	

appropriately.	 The children,	 now	 twelve	 and	 seven,	 have	 been	 out	 of	 the

 1		The	mother	acknowledged	that	she	had	been	inconsistent	in	visiting	the	children	and	in	other	

areas	of	the	reunification	plan	for	about	fourteen	out	of	the	eighteen	months	that	elapsed	between	

the	 children	 entering	 Department custody	 and	 the	 termination	 hearing.	 The	 record	 contains	

heartbreaking	evidence	 of	 the	 children	waiting	 for	 their	mother	 to	arrive	 at	 scheduled	 visits	 and	

being	sad	and	disappointed	time	after	time.		
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mother’s	care	for	over	two	years	and	need	“protection	and	permanency.” The	

elder child	is	“[e]xhausted” by	 the	 failed	 reunification	process	and	wishes	 to	

be	 adopted.	 The	 younger	 child	 needs	 stability.	 Both	 children	 have	 bonded	

with	the	foster	parents,	who	are willing	to	adopt	them.		

[¶4]		Given	 these and	other findings of	 fact,	all	of	which	are	supported	

by	competent	evidence	in	the	record, the	court	adequately	explained	how	the	

mother	is	unwilling	 or	unable	to	take	 responsibility	 for	 the	 children	despite	

receiving	 eighteen	 months of	 reunification	 services	 and	 support	 from	 the	

Department. Although,	as	 she	 points	 out, the	mother	 recently	 became	more	

consistent	in	attending counseling	and	in	making	phone	calls to	the	children,	

the	 court	 did	 not	 err	 in	 considering	 her	 lengthy history	 of	 unsuccessful	

reunification	efforts.

2 In	re	B.P.,	2015	ME	139,	¶	19,	126	A.3d	713 (explaining	

that	there	is	a	limited	time	available	for	reunification	efforts	and	“[i]n	setting	

[the	statutory] clock,	the	Legislature has	spoken	in	terms	of	days and	months,

rather	 than	 in	 years” (quotation	 marks	 omitted)).	 	Nor	 did	 the	 court	 err	 or	

 2	 	 Contrary	 to	 the	 mother’s	 contention,	 the	 Department’s	 decision	 to	 suspend	 visits with	 the	

children	 after	 the	 mother	 exhibited	 a	 pattern	 of	 nonattendance	 for	 the	 vast	 majority	 of	 these	

proceedings did	not	amount	to a	failure	to	facilitate	reunification. See	In	re	Alexander	D.,	1998	ME	

207,	¶	15,	716	A.2d	222 (“The	mother’s	engagement	in	court-ordered	services	had	to	be	balanced	

against	 the	Department’s	 efforts	 to	 protect	 the	 best	interest	 of	 the	 children,	 and	 to	 complete	 the	

children’s	 transition	 into	 a	 permanent	 situation	 in	 a	 timely	 manner.”);	 see also In	 re	 Denise	 M.,	

670 A.2d	390,	394	n.8	(Me.	1996) (“Although	we	find	here	no	lack	of	good	faith	in	the	reunification	

effort,	 .	 .	 .	 [t]here	 is	 no	 [statutory]	 indication	 .	 .	 .	 that	 failure	 by	 the	 department	 to	 meet	 its	

reunification	 obligation	 will	 preclude	 termination	 of	 parental	 rights	 .	 .	 . if	 the	[requisite]	 factual	

findings	.	.	. are	established	by	clear	and	convincing	evidence.” (citation omitted)).
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abuse	its	discretion	in	determining	that	termination	of	the	mother’s parental	

rights with	a	permanency	plan	of	adoption is	in	the	children’s best	interests.

3		

See	In	re	Thomas	H.,	2005	ME	123,	¶¶	16-17,	889 A.2d	297.

[¶5]		The	mother	also	contends	that	the	court	violated	her	right	to	due	

process	by	ordering	the	termination	of	her	parental	rights	when	the	GAL had	

exceeded	the	three-month period	in	which	she	was	required	to	have	in-person

contact	with	 the	children	and	also	filed	a	late	report.		See U.S.	Const.	amend.	

XIV,	§ 1; Me.	Const.	art.	 I,	§	6-A;	22	M.R.S.	§	4005(1)(B).		She	argues that the	

GAL’s	 failure	 to	 fulfill	 these	 statutory	 duties prejudiced	 her. The	 court,	

however,	acted at	the	mother’s	request to	prevent	any	prejudice	by	excluding	

the	GAL’s	testimony	and the untimely	report	at	the	termination	hearing.	 Cf.	In	

re	 Kaleb	 C.,	 2002	 ME	 65,	 ¶	 4	 n.2,	 795 A.2d	 71 (explaining	 that	 the	 GAL’s	

deficient	 performance	 did	 not	 affect	 the	 outcome	 of	 the	 termination	

proceedings).	 The	mother	points	to	no	concrete	prejudice	resulting	from	the	

 3	 	 The	 mother	 contends	 that	 the	 court	 abused	 its	 discretion	 in	 making	 its	 best	 interest	

determination because	 it improperly	 relied	 upon	 the	 opinions	 and	 fourth	 report	 of	 the	 GAL

although	 it	 had	 excluded	 the	 GAL’s testimony	 and	 that	 untimely	 report.	 	 We	 find	 this	 argument	

unpersuasive.		The	findings	the	mother	points	to	as	stemming	from	the	fourth	report	are	supported	

elsewhere	in	 the	 record,	including	the	 testimony	 of	a	 caseworker	and the	GAL’s	earlier,	 properly

admitted	reports.	 To	the	extent	that	the	findings	supporting	the	court’s	discretionary	best	interest	

determination	 are	 contradicted	 by	 other	 evidence	 in	 the record,	 it	 was	“the	 trial	 court’s	 role	 to	

weigh	 and	 credit	 the	 evidence	 before	 it” and	 to	 accept	 and	 reject	 the	 evidence	 presented. In	 re	

Scott S.,	2001	ME	114,	¶ 35,	775	A.2d	1144.	
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court’s	 evidentiary	 rulings.

4 Moreover,	 based	 on the	 court’s	 supported	

findings that	the	mother	had	failed	to	progress	in	reunifying	with	the	children	

over	a	significant period	of	 time	and	had	exhibited	“a	reckless	disregard” for	

the	 children’s	 emotional	 well-being,	 the	 court’s	termination	 of the	 mother’s	

parental	 rights	 was	 narrowly	 tailored	 to	 serve	 the	 compelling	 government	

interest	in	achieving	permanency	 for	the	children.	 See 22	M.R.S.	§§ 4003(4),	

4055(1)(B)(2)(b) (2016); In	re	Thomas	H.,	2005	ME	123,	¶¶	23-34,	889	A.2d	

297;	In	re	Richard	G.,	2001	ME	78,	¶	7,	770	A.2d	625.

The	entry	is:

Judgment	affirmed.

Jeffrey	S.	Dolley,	Esq.,	Dolley	Law	Firm,	Lewiston,	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

Lewiston	District	Court	docket	number	PC-2015-23

FOR	CLERK	REFERENCE	ONLY

 4	 	 The	 mother	 also	 argues—paradoxically,	 see	 supra n.3—that	 the	 absence of	 testimony	 and	

recent	reports	of	 the GAL prejudiced	her.	 There	is	no	indication	 that	 the	admission	of	 the	 fourth	

report,	 which	 contained	 the	GAL’s	most	 up-to-date	 observations	 and	 recommendations	 as	 to	 the	

children’s	best	interest, would	have altered	the	outcome	of	these	proceedings	as	it	was	consistent	

with testimonial	and	other	evidence	on	which	the	court	properly	relied in	reaching	its	unfitness	and	

best	interest	determinations.