MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 130 Docket: And

- 17

- 6 Submitted

On	B riefs : June	1 4 , 2 017 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 Mack enzie	 P.	 and	 Antonio	 P. appeal s 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 challenge s the	 sufficiency	 of	 the	 evidence	 to	 support the	 judgment and	 the	 court ’ s	 discretionary	 determination	 of the	 children ’ s best	interest s . 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	th e	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	unlikely2 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	 i s	 in	 the	 children ’ s best	 interest s . See 22 M.R.S.	 § 4055(1)(B)(2)(a),	 (b)(i)

- (ii)

. The court based	 the s e determination s on the	following findings	of fact

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

t he 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 h ad agreed	 to with	 the	 Department of	 Health	 and
Human	Services

. 1 T he	mother ’ s behavior showed “ a reckless	disregard	for	the emotional	 health	 of	 [the]	 children ” and

— considering evidence that	 the mother	 could k eep	 other	 appointments

— “ an	 unwi llingness,	 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	 h earing

. 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.3

m ot her ’ 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, t he	court	adequately	expl ained	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	 l engthy history	 of unsuccessful
reunification	efforts

. 2 In	re	B.P. ,	2015	ME	139,	¶	19, 126	A.3d	713 (ex plaining that	there	is	a	limited	time	available	for	reunification	efforts	and “ [i]n	setting [the	statutory] clock,	the Legislature has	spoken	in	terms	of	day s and	months, rather	 than	 in	 years ” (quotation	 marks	 omitted) ). Nor	 did	 t he	 court err	 or

2 Contrary	 to	 the	 mother ’ s	 contentio n ,	 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	 permanen t	 situation	 in	 a	 timely	 manner. ” ); s ee also In	 re	 Denise	 M. , 6 70 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	 par ental	 rights

.	 .	 . if	 the [requisite] factual findings

.	.	. are	established	by	cl ear	and	convincing	evidence. ” (citation omitted)).4 ab use	its	discretion	in	determining	that termination	of	the mother ’ s parental rights wit h	a	permanency	plan	of	adoption is	in	the	children ’ s best	interest s . 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 th e 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 th e 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 supporte d elsewhere	in	 the	 record,	including the	 testimony	 of	a	 case worker	and the GAL ’ s	earlier,	 properly admitted	reports. To	the	extent	that	th e	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	 an d	 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

.5
court ’ s evidentiary	 rulings

. 4 Moreover, based	 on the court ’ s	 supported finding s that the	mother had	failed	to	progress	in	reunifying	with	the	children

over	a significant period	o f	 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

. S ee 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	D epartment	of	Health	and	Human Services

Lewiston	District	Court	docket	number PC

- 2015

- 23 F OR C LERK R EFERENCE O NLY

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	t he	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.