MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2014 ME 54

Docket: Yor-13-350

Submitted

 On Briefs: February 27, 2014

Decided: April 8, 2014

Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

IN RE M.S.

LEVY, J.

[¶1] The mother and father of M.S. appeal from a judgment entered in the 

District Court (York, Foster, J.) terminating their parental rights pursuant to 

22 M.R.S. § 4055 (2013). The father contends that the court erred in excluding 

testimony regarding his relationship with his daughter, M.S.’s half-sister. Both 

parents also challenge the sufficiency of the evidence. We affirm the judgment. 

I. BACKGROUND

[¶2] Over the course of one weekend in March 2012, police were repeatedly 

called to the parents’ home in response to a prolonged verbal confrontation 

between them that occurred while M.S. and M.S.’s half-sister were present. M.S. 

was two years old at the time. The mother’s erratic behavior during the weekend 

was caused, at least in part, by her use of bath salts that the father had provided to 

her. At one point during the weekend, the father left the house, leaving the 

mother—who has a history of mental health and substance abuse issues—alone 
2

with M.S. Before the father returned home, a relative entered the house, found 

M.S. sitting unattended in a full bathtub with the water running, and took the child 

into her care. Soon after that, the father called DHHS to report that the mother 

posed a danger to M.S. 

[¶3] In response, the Department sought and obtained an ex parte 

preliminary protection order and removed M.S. from the home. The parents 

waived their rights to a summary preliminary hearing and subsequently agreed to 

the court’s entry of a jeopardy order as to both parents. The order found that 

jeopardy arose from the mother’s “inability to provide adequate care and 

supervision to the child and risk of physical harm to the child due to her mental 

health issues and history of using illegal substances,” and the father’s “failure to 

protect the child from the risk of harm posed by the mother’s substance abuse as 

well as his own contribution to the jeopardy posed due to his providing illegal 

drugs to the mother and using illegal drugs with [her].”

[¶4] An assessment of M.S. soon revealed that he was cognitively delayed, 

overly aggressive, and disliked physical affection. Although a social worker 

successfully worked with M.S. and his foster parents to improve his behavior, M.S. 

will need a caretaker who is able to access necessary services and provide a stable 

and predictable environment for him.
3

[¶5] In the summer of 2012, the mother—who had been convicted of 

aggravated trafficking in scheduled drugs in August 2011—began serving a

one-year sentence at the Maine Correctional Center. Despite being informed on 

numerous occasions about the substance abuse and mental health services available

in prison, the mother only completed one brief program during her incarceration. 

The mother denied having a substance abuse problem or needing to improve her 

parenting skills, describing herself as a “great parent,” and expressed no interest in 

obtaining her GED. The mother also had only one supervised visit with M.S. since 

beginning her sentence, after which the child’s behavior regressed and he

experienced severe nightmares. Upon her release, the mother moved back in with 

the father. Shortly thereafter, against the express directives of DHHS, the father 

brought M.S. to their home to have several hours of unsupervised contact with the 

mother. 

[¶6] In October 2012, the Department filed a petition for termination of both 

parents’ parental rights, alleging that the mother had failed to take responsibility 

for her mental health issues, her substance abuse, and her abusive relationship with 

the father. The petition further alleged that the father had failed to protect the child 

from the risk of harm posed by the mother. The court (Foster, J.) conducted a 

two-day hearing on the Department’s petition in June of 2013. At the hearing, 

caseworkers from DHHS and the Maine Correctional Center testified that the 
4

mother had not undertaken any efforts to address the jeopardy identified at the 

commencement of the proceedings. The court also received testimony regarding 

the father’s inability to extricate himself from the abusive relationship with the 

mother and his failure to appreciate the risk she poses to M.S. For example, the 

father continued to express disbelief that the mother had left the child alone in a 

full bathtub. The father also acknowledged that he had allowed the mother to

move back in with him upon her release from prison, and that he had brought M.S. 

to have several hours of unsupervised contact with her even though he knew that 

such contact was prohibited by the Department.

1

 The father also failed to work 

with the child’s social worker, who had offered to help the father address the 

child’s negative behaviors. 

[¶7] In addition, at the hearing the father’s counsel sought to elicit 

testimony from a DHHS caseworker concerning the positive quality of the father’s 

relationship with his daughter, M.S.’s half-sister, who resides with her mother. 

Upon the Department’s objection, the court excluded the testimony as irrelevant 

because there did not exist an outstanding jeopardy order as to the daughter. Later 

in the hearing, the father testified without objection regarding his relationship with 

 1

 The evidence indicated that the father’s inability to end his relationship with the mother is a result, at 

least in part, of his need for the mother’s Social Security income to pay the mortgage on his home. 
5

the daughter, his unsupervised visits with her and M.S., and the fact that the 

children are close. 

[¶8] The court entered a judgment on June 27, 2013, terminating both 

parents’ parental rights to M.S. The court found that the parents were unwilling or 

unable to protect M.S. from jeopardy or take responsibility for M.S. within a time 

reasonably calculated to meet his needs, see 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), 

and had failed to make a good faith effort to rehabilitate and reunify with M.S., see 

id. § 4055(1)(B)(2)(b)(iv). The court also determined that termination is in M.S.’s

best interest. See id. § 4055(1)(B)(2)(a). This appeal followed.

II. DISCUSSION

A. The Court’s Exclusion of Testimony Regarding the Father’s Relationship 

with His Daughter

[¶9] The father first contends that the court erred in excluding the testimony 

of a DHHS caseworker regarding the father’s care for his daughter from a prior 

relationship. The court reasoned that the father’s care for his daughter was 

irrelevant to his ability to parent M.S. because there existed no jeopardy order as to 

the daughter.

[¶10] We review a court’s determination regarding relevance for clear error. 

State v. Roberts, 2008 ME 112, ¶ 21, 951 A.2d 803. Evidence is relevant if it has 

“any tendency to make the existence of any fact that is of consequence to the 
6

determination of the action more probable or less probable than it would be 

without the evidence.” M.R. Evid. 401. This standard for relevance is a low one. 

See State v. LeBlanc, 559 A.2d 349, 352 (Me. 1989) (referring to the standard of

relevance as “minimal”); see also United States v. Tinoco, 304 F.3d 1088, 1120 

(11th Cir. 2002) (“The standard for what constitutes relevant evidence is a low 

one . . . .”); State v. Sladek, 835 S.W.2d 308, 314 (Mo. 1992) (en banc) (Thomas, 

J., concurring) (“This is a very low-level test that is easily met.”). 

[¶11] Measured against the low standard for relevance, the exclusion of the

caseworker’s testimony regarding the father’s care for and relationship with his 

daughter was clear error. According to the guardian ad litem, the father’s family 

reported that the father “has had a loving relationship with his daughter since [her] 

birth.” The daughter and M.S. regularly visited each other under the father’s 

supervision and, in the opinion of the guardian ad litem, “this sibling relationship 

should be maintained, encouraged, and supported by the Department throughout 

this process.” Thus, the excluded testimony was relevant to the court’s 

determinations regarding M.S.’s best interest and the father’s ability to act as a fit 

parent. See 22 M.R.S. § 4055(1)(B)(2)(a)-(b). That the daughter was not subject 

to an outstanding jeopardy order is of no consequence. 

[¶12] Although we conclude that the court’s exclusion of the evidence was 

error, the error was harmless. See M.R. Civ. P. 61. In the context of a termination 
7

of parental rights proceeding, a preserved error is harmless if “it is highly probable 

that the error did not prejudice the parents or contribute to the result in the case.” 

In re Scott S., 2001 ME 114, ¶ 29, 775 A.2d 1144. On the second day of the 

hearing, the father testified without objection regarding his relationship with his 

daughter, the relationship between the daughter and M.S., and his ability to care for 

both children. Because it is highly probable that the court’s error had no 

prejudicial effect and did not affect the outcome of the case, the error was 

harmless. See id. ¶¶ 29-30.

B. Whether Sufficient Evidence Supported the Termination of the Parents’ 

Parental Rights

[¶13] Both parents also challenge the sufficiency of the evidence supporting 

the court’s finding, by clear and convincing evidence, that the parents are unfit

pursuant to 22 M.R.S. § 4055(1)(B)(2)(b). “When reviewing sufficiency 

challenges for clear and convincing evidence, we examine whether the trial court 

could have reasonably been persuaded on the basis of evidence in the record that 

the required factual findings were highly probable.” In re Annie A., 2001 ME 105, 

¶ 19, 774 A.2d 378 (quotation marks omitted). Accordingly, “if rational or 

competent support in the record exists for the District Court’s findings, we must 

sustain them.” Id. (quotation marks omitted). Proof of any one of the four 

statutory definitions of parental unfitness set out at 22 M.R.S. § 4055(1)(B)(2)(b)
8

will justify termination if supported by clear and convincing evidence. In re 

Charles G., 2001 ME 3, ¶ 6, 763 A.2d 1163. 

[¶14] With respect to the mother, there is ample competent evidence that 

she does not recognize the threat that her mental health issues and substance abuse 

pose to the child; has not seriously engaged in services, substance abuse treatment, 

or mental health counseling since the commencement of this case; and has not 

made any meaningful efforts to reunify with M.S. With respect to the father, 

competent evidence demonstrates that he fails to understand the emotional and 

physical risk that the mother poses to the child, and is incapable of ending his 

relationship with her despite his understanding that his failure to do so will 

effectively prevent him from regaining custody of M.S. The father’s failure to 

work with a social worker to remedy M.S.’s behavioral issues further demonstrates 

his inability to meet his son’s needs. For these reasons, competent evidence 

supports the court’s finding, by clear and convincing evidence, of at least one 

ground of parental unfitness as to each parent. See id. ¶¶ 5-6.

[¶15] In addition, the father contends that the court erred or abused its 

discretion in determining that termination of his parental rights would be in the 

best interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a). We review the 

court’s factual findings related to the child’s best interest for clear error, and its 

ultimate conclusion regarding the child’s best interest for abuse of discretion. In re 
9

Thomas H., 2005 ME 123, ¶ 16, 889 A.2d 297. Here, the court’s finding that the 

father “remains enmeshed in a relationship with a mentally and emotionally 

abusive partner, despite understanding what that means for regaining custody of 

his son,” was not clear error. The court likewise did not abuse its discretion in 

concluding that terminating the father’s parental rights would be in M.S.’s best 

interest. See id.

[¶16] We find no merit in the father’s remaining contentions and do not 

address them separately. 

The entry is:

Judgment affirmed.

On the briefs:

Lisa D. Chmelecki, Esq., Fairfield & Associates, Lyman, for 

appellant mother 

Thomas P. Elias, Esq., Elias Law Office, York, for appellant 

father 

Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. 

Gen., Office of Attorney General, Augusta, for appellee 

Department of Health and Human Services

York District Court docket number PC-2012-2 

FOR CLERK REFERENCE ONLY