MAINE	SUPREME	JUDICIAL	COURT 				 				Reporter	of	Decisions

Decision: 2016 ME	162

Docket: Yor-16-99

Submitted

		On	Briefs: September	29,	2016

Decided: November	8,	2016

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

IN	RE	CAMERON	Z.	et	al.

MEAD,	J.

[¶1]	 	 The	 mother	 and	 father	 of	 Cameron	 Z.,	 Calvin	 Z.,	 Cole	 Z.,	 and	

Lawrence	Z.	appeal	 from	a	judgment	of	 the	District	Court	 (Biddeford,	Foster,	

J.) terminating	 their	 parental	 rights	 to	 the	 children	 pursuant	 to	 22	 M.R.S.	

§ 4055(1)(B) (2015).1	 	 Both	 parents	 contend that	 the	 evidence	 was	

insufficient	to	support	the	court’s	 findings,	by	clear	and	convincing	evidence,	

of	at	least	one	ground	of	unfitness as	to	each	parent,	and	that	termination	of	

their	 parental	 rights	 was	 in	 the	 children’s	 best	 interest.	 	 See	 id. The	 father	

additionally	 contends	 that	 the	 court	 erred	 in	 admitting	 hearsay	 statements	

made	by	one	of	the	children,	and	that	the	trial	judge	should	have	granted	his	

motion	to	recuse.2 We	affirm	the	judgment.

 1	 	 The	 mother	 consented	 to	 a	 termination	 of	 her	 parental	 rights	 to	 Lawrence;	 she	 does	 not	

challenge	that	part	of	the	court’s	judgment.

2		We	have	fully	considered	the	father’s	arguments	on	those	issues.		We	discern	no	error, and	we	

conclude	that	they	do	not	warrant	further	discussion.
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I.		BACKGROUND

A. Procedural	History

[¶2]	 	 On	 February	 6,	 2014,	 the	 Department of	 Health	 and	 Human	

Services filed	 a	 petition	 for	 a	 child	 protection	 order	 and	 a	 request	 for	 a	

preliminary	order	concerning	Lawrence,	who	was	at	that	point	unnamed	and	

still	in	the	hospital	after	being	born	drug-affected	on	January	21.		See	22	M.R.S.	

§§	 4032,	 4034(1) (2015).3 The	 Department	 alleged	 that	 the	 baby	 had	

effectively	been	abandoned	at	the	hospital	by	the	parents,	and	that	the	father’s	

six-year-old	 son	 from	 another	 relationship,	 D.G.,	 who	 lived	 in	 the	 parents’	

home,	had	recently received	unexplained inflicted	injuries.	 The	court	granted	

a	 preliminary	 order	 the	 same	 day	 giving	 custody	 of	 Lawrence	 to	 the	

Department.	 The	parents	later	failed	to	appear	for	the	summary	preliminary	

hearing.	 Also	on	February	6,	the	Department petitioned for	a	child	protection	

order	concerning	Cameron,	Calvin,	and	Cole;	it	did	not	request	a	preliminary	

order	 and	 the	 children	 remained	 in	 their home	 pursuant	 to	 a	 safety	 plan

developed	by	the	Department.

[¶3]	 On	May	15, the	court	entered	a	jeopardy	order	as	to	the	mother	by	

agreement	 concerning	 all	 four	 children;	 the	 father	 did	 not	 appear for	 the	

 3		Title	22	M.R.S.	§	4034(1)	has	since	been	amended,	but	not	in	any	way	that	affects	this	appeal.		

P.L. 2015,	ch.	501,	§	9	(effective	July	29,	2016).
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hearing.		See	22	M.R.S.	§	4035 (2015).	 The	court	found	jeopardy	based	on	the	

mother’s	substance	abuse	issues,	her	inadequate	supervision	of	 the	children,	

and	her	 failure	to	appreciate	the	risk	posed	to	them	by	the	 father.	 Cameron,	

Calvin,	 and	 Cole were	 placed	 in	 the	 mother’s	 custody	 subject	 to	 several	

conditions,	one	of	which	was	that	she	“not	permit,	tolerate	or	facilitate	contact	

between	 the	 father	 .	 .	 .	 and	 any	 or	 all	 of	 the	 children	 without	 the	 written	

approval	 of	 the	 Department.”	 Lawrence	 remained	 in	 the	 Department’s	

custody	at	his	foster	home.

[¶4]	 	 Based	 on	 the	 father’s	 representation	 that	 he	 was	 returning	 to	

Maine	from	Florida	to	contest	a	jeopardy	finding,	the	court	reset	his	jeopardy	

hearing	 for	 May 30.	 On	 that	 date	 the	 father	 again	 did	 not	 appear;	

unbeknownst	 to	 the	 court,	 he	 had	 been	 arrested	 a	 few	 hours	 before	 the	

scheduled	hearing	and	was	in	 the	Cumberland	County	 Jail.	 The	court	held	a	

testimonial	hearing	in	 his	 absence	 at	 which he	 was	 represented	 by	 counsel,	

following	 which	 it made	 detailed	 findings	 and	 entered	 a	 jeopardy	 order	

against	the	father	as	to	all	of	the	children,	finding	that	he (1)	failed	to protect	

D.G.	 from	 assault	 in	 the	 home	 in	 that,	 “at	 a	 minimum he	 was	 aware	 of	 the	

physical	 violence,	 did	 nothing	 to	 protect	 the	 child,	 and	 took	 active	 steps to	

conceal	it	from	others”;	(2)	failed	to	protect	Lawrence	from	the	mother’s	drug	
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use during	her	pregnancy,	resulting	in	the	baby	being	born	drug-affected;	and	

(3) abandoned	the	children	by	leaving	the	state,	having	no	contact	with	them,	

and	 “providing	 no	 assistance,	 financial	 or	 otherwise.” We	 affirmed	 the	

jeopardy	 order	 when the	 father	 appealed. In	 re	 D.G.,	 Mem	 15-36	

(June 9, 2015).

[¶5]	 	 On	 the	 day	 of	 the	 father’s	 rescheduled	 jeopardy	 hearing, the	

Department	 filed	 a	 petition	 to	 terminate	 the	 parents’	 rights to	 Lawrence.	

See 22 M.R.S.	§ 4052 (2015).	 The	mother	consented	to	the termination	of	her	

parental	rights;	the	father	did	not.

[¶6]	 	 On	 October	 10, the	 Department	 requested	 a	 preliminary	

protection	 order	 concerning	 Cameron,	 Calvin,	and	 Cole	 based,	in	 part,	 on	an	

allegation	 that	 the	 father	 had	 been	 having	 unsupervised	 contact	 with	 the	

children	 in	 violation	 of	 the	 jeopardy	 order that	 the	 mother	 agreed	 to.	 The	

court	 issued	 a preliminary	 order	 granting custody	 of	 the	 children	 to	 the	

Department.	 The	parents	appeared	at	the	summary	preliminary	hearing	and	

contested	the	preliminary	order.	 The	court	heard	evidence	that	two	Assistant	

Attorneys	General	had	seen the	father	in	a	car	with	Cameron,	Calvin,	and	Cole.	

The	 court made	 a	 finding	 that	 it	 had	 “no	 confidence	 in	 the	 parents’	
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representations	or	promises,”	and	ordered	that	the	preliminary	order	remain	

in	effect.

[¶7]		On	April	10,	2015,	the	Department	filed	a	petition	to	terminate	the	

parents’	rights	to Cameron,	Calvin,	and	Cole.	 A	hearing	held	over	three	days	in	

November	 2015	 resulted	 in	 the	 court	 issuing	 a	 detailed	 twenty-page order	

terminating	both	parents’	rights	to	Cameron,	Calvin, Cole,	and	Lawrence.	 The	

father	left	the	courtroom	on	the	afternoon	of	the	first	day	of	the	hearing	and,	

without	 explanation,	 never	 returned;	 he	 continued	 to	 be	 represented	 by	

counsel	throughout.	 Both	parents	appealed.

B. Facts	Found	in	the	Termination	Order

[¶8]	 	 The	 court	 found	 the	 following	 facts	 by	 clear	 and	 convincing	

evidence in	its	 order	 terminating	parental	 rights;	 the findings	are	 supported	

by	evidence	in	the	record.		See	In	re	K.M.,	2015	ME	79,	¶¶	9,	11,	118	A.3d	812.

1.		Father

[¶9]	 	In	 2009,	five	 years	 before	 this	 case	 began,	the	 court	(Douglas,	J.)	

issued	 a	 jeopardy	 order	 as	 to	 the	 father	 concerning	 Cameron4 in which	 the	

court	found,	reminiscent	of	the	jeopardy	order	in	this	case, that	the	father	had	

failed to	protect	Cameron	from	the	mother’s	substance	abuse,	resulting	in	the	

 4	 	 The	 jeopardy	 order	 notes	 that,	 as	 in the	 present	 case,	 the	 father	 initially	 appeared	 for	 the	

hearing	and	then	left.
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child	 being	 born	 drug-affected.	 The	 court	 also	 found	 that	 the	 father	 had	

inflicted	 domestic	 violence	 on	 the	mother,	 and	 noted	 his	 “lengthy	 history	 of	

criminal	conduct,	including	domestic	violence	against	his	former	wife,	as	well	

as	convictions	for	theft,	burglary,	and	[]	disorderly	conduct.		[He]	has	spent	a	

good	part	of	his	adult	life	on	probation	or	in	jail.” When	reunification	efforts	

with	the	mother	were	successful, the	child	protection	case	was	dismissed	and	

replaced	with	 a	 parental	 rights	 and	 responsibilities	 order	 barring	 the	 father	

from	having	unsupervised	contact	with	Cameron.

[¶10]	 	In	 January	 2014,	 the	 current	 child	 protection	 case	 began	 when	

six-year-old	D.G. came	to	school with	unexplained	bruises.	 Dr. Lawrence	Ricci,	

co-director	 of	 the	 Spurwink	 Child	 Abuse	 Program, opined	 that	 the	 injuries	

were	inflicted.	 The	mother	was	 then	 pregnant	with	 Lawrence,	who,	like	 his	

brother, was	 born	 drug-affected;	 the	 father	 did	 not	 visit	 Lawrence	 at	 the	

hospital.	 In	 January	2015, the	Department	scheduled	a	supervised	visit	with	

Lawrence	 for	 the	 father;	 he	 confirmed	 the	 date	 and	 time	 with	 the	 visit	

supervisor	but	did	not	attend.	 The	father	also	did	not	follow	through	with	the	

opportunity	for	approved	visits	with	the	other	children after	last	seeing	them	

in	September 2014.
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[¶11]		The	court	further	found	that	throughout	the	child	protection	case

the	 father	maintained	a	relationship	with	 the	mother,	although	he	knew	 that	

his	 actions	 affected	 the	 likelihood	 of	 the	 mother	 keeping	 custody	 of	 the	

children.	 The	children	were	aware	of	domestic	violence	that	he	perpetrated	

occurring	in	the	home.	 In	February	2015	there	was	a	heroin	“drug	bust”	at	the	

mother’s	apartment	where	the	father	was	present;	the	father’s	brother-in-law	

was	arrested.	 The	court	summarized	the	factors	on	which	it	based	its	finding	

of	the	father’s	parental	unfitness:

There	is	no	evidence	that	he	has	engaged	in	any	services	designed	

to	 address	 the	 jeopardy	 identified	 by	 this	 Court	 in	 its	 order	 of	

June 5,	 2014.	 	 He	 actually	 left	 the	 trial	 in	 this	 matter	 midway	

through	 and	 did	 not	 return.	 	 His	 actions	 continue	 to	 constitute	

abandonment	 of	 his	 children.	 	 His	 continued	 refusal	 to	 separate	

from	 [the	mother]	and	provide	her	 the	space	and	opportunity	 to	

address	 her	 own	 issues	 has	 seriously	 impeded	 her	 ability	 to	

alleviate	 jeopardy	 and	 regain	 custody	 of	 her	 sons.	 	 There	 is	 no	

evidence	that	any	of	the	children	has	a	firm,	positive	connection	to	

their	father.

2.		Mother

[¶12]		The	mother has a	long-standing substance	abuse	problem,	which	

she	acknowledged	in	 the	2009	and	2014	jeopardy	orders,	that	she has made	

some	progress	in	addressing. The	court	found	that	“[i]t	is	likely	that	she	will	

continue	 to	 have	 some	 success	 if she	 can	 remain	 in	 opiate	 replacement	

therapy.”
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[¶13]		She	has	done	less	well,	and	often	failed,	in	taking	advantage	of	the	

many services	offered	to	her	by	the	Department	through	numerous	providers

to	 address	 a	 wide	 range	 of	 other	 issues	 affecting	 potential	 reunification.		

Those	 services	 included	 opportunities for	 supervised	 visitation	 with	 the	

children; case	management; psychiatric	treatment; medication	management;

individual	 counseling concerning	 her	 mental	 health	 issues; assistance	 with	

parenting	issues;	and help	with the	issue	of	domestic	violence.

[¶14]		A	central	concern for	the	court—a	concern	well-supported	by	the	

record—was the	mother’s	ongoing	clandestine	relationship	with	the	father:

[The	mother]	still	does	not	accept	that	[the	father]	presents	a	risk	

of	harm	to	her	children	and	has	not	been	willing	or	able	to	sever	

her	 ties	 with	 him.	 .	 .	 .	 It	 was	 imperative	 in	 this	 matter	 that	 [the	

mother]	 demonstrate	 a	 relatively	 long-term,	 reliable	 history	 of	

separation	 from	 [the	 father].	.	.	.	 In	light	of	[the]	history	 [of	 their	

relationship],	as	well	as	[the	mother’s]	failure	to	be	honest	on	any	

number	of	issues,	the	representation	that	she	has	been	separated	

from	 [the	 father]	 for	 several	months,	 carries	 virtually	 no	 weight	

with	the	Court.

3.		Children

[¶15]	 	 The	 court	 found	 that the	 children	 have	 significant	 difficulties	

caused,	 at	 least	 in	 part,	 by	 their	 parents	 and	 their	 parents’	 relationship;	

however,	 Cameron,	 Cole,	 and	 particularly	 Lawrence	 are	 doing	 well	 in	 their	

current	 placements.	 Although	 Calvin	 is	 struggling, the	 court	 found	 that	 he	
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cannot	 make	 progress	 without	 the	 chance	 to	 become	 established	 in	 a	

permanent	home.	 The	children	have	been	exposed	to	domestic	violence	when	

living	with	their	parents.	 Additionally,	the	children	have	sometimes	indicated	

that	 they	were not	 to tell	 the	 truth	 to	authorities	about	what	went on	in	 the	

home	and	who	was there,	and	have	been	labeled	as	liars by	the	mother	when	

they	have	made	such	reports.

II.		DISCUSSION

[¶16]		The	termination	of	parental	rights	is	governed	by	statute.5		When	

a	court	enters	a	judgment	terminating	a	parent’s rights	to	a	child,

 5		The	governing	statute	provides:

1. Grounds. The	court	may	order	termination	of	parental	rights	if:

.	.	.	.

B.		Either:

(1)		The	parent	consents	to	the	termination.		Consent	shall	be	written	and	

voluntarily	and	knowingly	executed	in	court	before	a	judge.	The	judge	shall	

explain	the	effects	of	a	termination	order;	or

(2)		The	court	finds,	based	on	clear	and	convincing	evidence,	that:

(a)	 Termination	is	in	the	best	interest	of	the	child;	and

(b)		Either:

(i)	 	 The parent	 is	 unwilling	 or	 unable	 to	 protect	 the	 child	 from	

jeopardy	 and	 these	 circumstances	 are	 unlikely	 to	 change	 within	 a	

time	which	is	reasonably	calculated	to	meet the	child’s	needs;
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[w]e	 review	 the court’s	 factual	 findings	 for	 clear	 error	 and	 its	

ultimate	conclusion	regarding	the	best	interest	of	the	child	for	an	

abuse	of	discretion,	viewing	 the	 facts,	and	 the	weight	 to	be	given	

them,	 through	 the	 trial	 court’s	 lens.	 	 Evidence	 is	 sufficient	 to	

affirm	an	order	terminating	parental	rights	when	a	review	of	the	

entire	 record	 demonstrates	 that	 the	 trial	 court	 rationally	 could	

have	 found	 clear	 and	 convincing	 evidence	 in	 that	 record to	

support	 the	 necessary	 factual	 findings	 as	 to	 the	 bases	 for	

termination.

In	 re	 R.M.,	 2015	 ME	 38,	 ¶	 7,	 114	 A.3d	 212	 (citations	 and	 quotation	 marks	

omitted).

[¶17]	 	Here,	 the	 court’s	 factual	 findings	 recited	supra have	 support	in	

the	record	and	are	not	clearly	erroneous.		See	State	v.	Lowden,	2014	ME	142,	¶	

8,	 106 A.3d 1134.	 	 As	 to	 the	 mother,	 the	 court	 found	 that	 she	 had	 the	

opportunity	 to	 utilize	 numerous	 services	 offered	 by	 the	 Department	 in	 an	

effort	 to	reunify	with	 the	children;	her	cooperation	with	and	participation	in	

those	services	was	insufficient,	and	she	was	unwilling	to	end	her	relationship	

with	 the	 father,	 which	 the	 court	 found	 to	 be	 a	 compelling	 factor.	 As	 to	 the	

 (ii) The	 parent	 has	 been	 unwilling	 or	 unable	 to	 take	 responsibility	

for	the	child	within	a	time	which	is	reasonably	calculated	to	meet	the	

child’s	needs;

(iii)		The	child	has	been	abandoned;	or

(iv)		The	parent	has	failed	to	make	a	good	faith	effort	to	rehabilitate	

and	reunify	with	the	child	pursuant	to	section	4041.

22	M.R.S.	§	4055(1)(B) (2015).
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father,	 the	 court	 found	 “no	 evidence	 he	 ha[d] engaged	 in	 any	 services	

designed	to	 address	 the	 jeopardy	 identified	 by	 this	 Court,”	 and	 that	 he	 had	

abandoned	 the	 children,	 which	 is	 sufficient,	 standing	 alone,	 to	 establish	

unfitness.	 22	 M.R.S.	 § 4055(1)(B)(2)(b)(iii).	 	 The	 court	 also	 properly	

considered	“the	centrality	of	permanency	in child	protective	proceedings,”	In

re Thomas	 H.,	 2005	 ME	 123,	 ¶ 25,	 889	 A.2d	 297,	 and	 had	 in	 evidence	 the	

report	 and	 testimony	 of	 the	 guardian	 ad	 litem supporting	 the	 petition	 for	

termination.

[¶18]		From	those	facts and	legal	authorities,	the	court	could	rationally	

find	 by	 clear	 and	 convincing	 evidence	 that	 both	 parents were unwilling	 or	

unable	 to	 protect	 the	 children	 from	 jeopardy or to	 take responsibility	 for	

them;	 that	 neither	 of	 those	 circumstances is likely	 to	 change	 within	 a	 time	

reasonably	calculated	to	meet	the	children’s	needs;	that the	father	abandoned	

the	 children;	 and	 that	 termination	 of	 the	 parents’	 rights	 is in	 the	 children’s	

best	interest.	See 22 M.R.S.	§	4055(1)(B)(2).		Accordingly,	the	court	did	not	err	

or	abuse	its	discretion	in	entering	a judgment	terminating	the	parents’	rights.

The	entry	is:

Judgment	affirmed.
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On	the	briefs:

Amy	McNally,	Esq.,	Woodman	Edmands	Danylik	Austin	Smith	&	Jacques,	

P.A.,	Biddeford,	for	appellant	mother

Philip	Notis,	Esq.,	Portland,	for	appellant	father

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

Biddeford	District	Court	docket	number	PC-2014-07

FOR	CLERK	REFERENCE	ONLY