MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	121

Docket: Cum-19-106

Submitted

On	Briefs: July	18,	2019

Decided: July	25,	2019

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

IN	RE	CHILD	OF	WALTER	C.

PER	CURIAM

[¶1]	 Walter	C.	appeals	from	a	judgment	of	the	District	Court	(Portland,	

Powers,	J.)	 terminating	 his	parental	 rights	 to	his	child.		He	contends	 that	 the	

court	erred	in	its	determination that	he	is	parentally	unfit	and	that	termination	

of	his	parental	rights	is	in	the	best	interest	of	the	child.		We	affirm	the	judgment.		

I.		CASE	HISTORY

[¶2]	 	 In	 November 2017, sixteen	 days after	 the	 child	 was	 born, the	

Department of	Health	and	Human	Services	filed	a	petition	for	a	child	protection	

order	and	a	request	for	a	preliminary	protection	order.		See	22 M.R.S.	§§	4032,	

4034 (2018).	 	 The	 petition	 alleged	 that	 the	 father	 struggled	 with	 substance	

abuse	 and	 untreated	 mental	 health	 issues	 that	 manifested	 in him	 burning

himself.		The court	(Janelle,	J.) granted	the	request	for	a	preliminary	protection	

order,	granting	custody	to	the	Department, and	the	child	was	placed	in	foster	
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care.

1 On	 February	 5,	 2018,	 the	 court	 (Powers,	 J.)	 entered	 an	 agreed-upon

jeopardy	order, and	custody	of	 the	child	remained	with	 the	Department.		See	

22 M.R.S.	§ 4035(1)-(2)	(2018).		

[¶3]		The	Department	petitioned	for	termination	of	the	father’s	parental	

rights	on	November	30,	2018.2		See	22	M.R.S.	§	4052 (2018).		The	court	held	a

single-day	 hearing	 on	 the	 petition,	 see 22	 M.R.S.	 §	 4054 (2018), and,	 on	

February	27,	2019,	 found	by	clear	and	convincing	evidence	 that	 the	 father	is	

unwilling	or	unable	to	protect	the	child	from	jeopardy	or	take	responsibility	for	

the	child	within	a	time	that	is	reasonably	calculated	to	meet	the	child’s	needs,	

and	determined	that	termination	of	the	father’s	rights	is	in	the	best	interest	of	

the	child, see 22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i)-(ii) (2018).			

[¶4]		The	court	based	its	decision	on	the	 following	 findings,	which	are	

supported	by	the	record.

The	 family’s	 issues	 involved	 untreated	 marijuana	 and	 alcohol	

misuse,	untreated	mental	health	problems,	and	relationship	issues.		

The	child	was	not	safe	in	the	care	of	either	parent.			

 1		On	November	17,	2017,	the	Department	filed	an	amended	child	protection	petition	and	request	

for	a	preliminary	protection	order	to	correct	a	clerical	error	contained	in	the	previous	petition, which	

listed	an	incorrect	agent	for	the	Department.		The	court	(Eggert,	J.)	entered	an	amended	preliminary	

order	the	same	day.			

2		The	mother	consented	to	the	termination	of	her	parental	rights	and	is	not	a	party	to	this	appeal.		

See	22	M.R.S.	§	4055(1)(B)(1)	(2018).		We	focus	on	the	procedural	history	and	findings	pertaining	to	

the	father.	
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.	.	.	.	

[The	 father]	 is	 29	 and	 has	 lived	 in	 a	 one-bedroom	 .	 .	 .	

apartment	 for	 three	months.		He	was	homeless	before	 then	 from	

February	2018.	.	.	.	

The	 father	 admits	 to	 a	lengthy	 history	 of	 excessive	 alcohol	

and	marijuana	use.	.	.	.		He	was	assessed	for	[a]	.	.	.	substance	use	

program	 in	 March	 2018,	 entered	 it	 in	 April,	 and	 completed	 the	

program	at	the	end	of	August	2018.		The	program	included	regular	

intensive	 outpatient	 treatment	 for	 substance	 use	 and	 parenting	

education	 sessions	 with	 some	 individual	 counseling	 late	 in	 the	

program.			

Drug	 testing	 was	 [also]	 part	 of	 the	 program. His	 testing	

showed	[marijuana]	use	during	each	of	the	21	weeks.		[The	father]	

would	 typically	admit	his	ongoing	use	of	marijuana.		He	also	had	

positive	 alcohol	 tests	 for	 the	 first	 few	 weeks	 and	 then	 negative	

test[s]	for	the	last	four	months . .	.	.		The	[substance	use	program]	

clinician	had	concerns	about	[the	father]	at	[the]	program’s	end	for	

his	 lack	 of	 sober	 supports,	 a	 need	 for	 more	 AA	 attendance,	 and	

ongoing	[marijuana]	use.			

[The	 father]	admitted	 to	drinking	[alcohol]	days	before	 the	

hearing	 and to	 using	 marijuana	 every	 other	 day	 or	 so	 presently.		

[The	father’s]	aftercare	program	included	going	to	AA/NA	support	

meetings	and	ongoing	counseling.		He	did	not	go	to	counseling	after	

August	 2018	 and	 did	 not	 attend	 AA	 or	 NA,	 instead	 focusing	 on	

getting	housing.		The	father	did	not	work	during	the	last	year	or	so	

and	is	still	unemployed.[3] .	.	.				

 3		When	asked	about	his	employment	at	the	termination	hearing,	the	father	testified	that	he	did	

not	have	a	job	at	the	time	of	the	hearing,	and	that	since	the	child	came	into	custody,	he	has	“worked	

a	 couple	different	jobs,	 but	 they	 didn’t	last	long.”	 	Because	 the	 record	 here	 contains	 ample	other	

evidence	on	which	the	court	could base	its	parental	unfitness	and	best	interest	determinations,	this	

factual	error	is	harmless.		See	In	re	Child	of	Ronald	W.,	2018	ME	107,	¶	7	n.2,	190	A.3d	1029 (“A	factual	

error	in	a	child	protection	order	is	harmless	if	it	is	highly	probable	that	the	error	did	not	prejudice	

the	parents	or	contribute	to	the	result	in	the	case.”);	see	also	M.R.	Civ.	P.	61.	
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[The	 father]	 also	 suffers	 from	 ongoing	 anxiety	 which	 he	

treats	only	by	taking	[a]	“deep	breath.” .	.	.		

He	also	failed	to	attend	several	DHHS	requested	drug	tests,	

going	only	[twice] .	.	.	.		Generally,	his	testing	history	is	consistent	

with	regular	marijuana	and	occasional	alcohol	use.		

[The	father]	did	attend	[a]	risk	assessment	in	February	2018	

related	 to	 sexual	 reoffending.	 	 He	 had	 a	 history	 of	 youthful	 sex	

abuse	before	age	ten	and	was	abused	himself	when	he	was	three.		

He	also	has	a	history	of	pornography	use	.	.	.	.		[The	psychologist]	

felt	[the	father]	was	at	an	average	risk	of	reoffending.		[The	father]	

has	a	recent	conviction	for	theft	of	alcohol.			

[The	 father]	 and	 the	 child’s	 mother	 were	 arguing	 and	 he	

grabbed	 her	 wrists	 leading	 to	 a	 domestic	 violence	 arrest.	 	 The	

mother	 complained	 that	 he	was	 controlling	in	 their	 relationship.		

She	 sought	 a	 protection	 from	 abuse	 order	 against	 [the	 father]	in	

2018	but	apparently	did	not	follow	through.	 The	GAL	describes	the	

parents’	relationship	as	“rocky”	and	“off	and	on.”		That	relationship	

today	 is	 still	 unclear.	 	 He	 has	 not	 addressed	 domestic	 violence	

concerns.		

.	.	.	.	

.	.	. The	GAL	is	supportive	of	termination	of	the	father’s	rights.		

She	feels	[the	child]	is	not	safe	with	either	parent. . . .		

.	 .	 .	 [The	 father’s]	only	 real	 progress	 relates	 to	 the	 recently	

acquired	apartment	and	attending	.	.	. visits	with	his	son.			

.	.	.	.	

.	.	.	 [The	 father’s]	ongoing	substance	use	and	mental	health	

issues,	his	continued	use	of	substances,	his	history	of	sexual	abuse	

and	domestic	violence	involvement,	and	limited	treatment	for	the	

above	show	that	his	life	is	still	somewhat	chaotic.		He	cannot	focus	

on	his	son’s	medical	and	other	needs	as	a	15-month-old.		It	is	highly	
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likely	the	father’s	issues	will	continue	for	months	if	not	years.		He	

cannot	 meet	 his	 own	 needs	 and	 has	 not	 addressed	 many	 of	 his	

parenting	deficits	.	.	.	.	

.	.	.	.	

Termination	 will	 provide	 the	 permanence,	 stability,	 and	

consistency	 that	 this	 boy	 needs.	 	 The	 father	 has	 had	 since	

November	 2017	 to	 remedy	 his	 serious	 parenting	 issues.	 [The	

child]	has	been	in	custody	all	but	a	couple	weeks	of	his	short	life.	

[The	child] is	bonded	with	 [his	 foster	 family].		The[y]	have	cared	

well	for	him	for	15	months.	.	.	.		[The	father] still	will	require	many	

months,	if	not	longer,	to	become	an	appropriate	caregiver.	.	.	.		[The	

child]	 can	 obtain	 permanence	 and	 stability	 soon	 if	 rights	 are	

terminated,	freeing	[the	child]	for	adoption.	.	.	.

II.		LEGAL	ANALYSIS

[¶5]		The	father	contends	that	the	court	erred	in	determining that	he	is	

unfit	 to	parent	and	 that	it	is	in	 the	best	interest	 of	 the	child	 to	 terminate	his

parental	 rights.	 “We	 review	 the	 trial	court’s	 factual	 findings	 that	 a	parent	is	

unfit	and	 that	 termination	of	parental	rights	is	in	 the	child’s	best	interest	 for	

clear	error	and	the	ultimate	decision	to	terminate	parental	rights	for	an	abuse	

of	discretion.”		In	re	Child	of	Kelcie	L.,	2018	ME	57,	¶	3,	184 A.3d 387.

[¶6]		With	 respect	 to	 the	issue	 of	parental	unfitness,	 the	father	asserts	

that	 “[a]lthough he	 may	 not	 have	 achieved	 the	 level	 of	 participation	 in	 the	

reunification	plan that	DHHS	was	looking	for,	he	did	well	enough	to	assure	that	

no	serious	harm	would	come	to	the	child.”		Contrary	to	the	father’s	contention,	
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the	 court	 did	 not	 err	 in	 determining that,	 despite	 the	 father’s	 progress,	 he	

remains unable	to	protect	the	child	from	jeopardy	or	take	responsibility	for	the	

child	 within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 the	 child’s	 needs.		

22 M.R.S.	 §	 4055(1)(B)(2)(b)(i)-(ii);	 see	 In	 re	 Hope	 H., 2017 ME	 198,	 ¶	 10,	

170 A.3d	813 (“Marginal	progress	toward	reunification	and	a	simple	desire	to	

remain	[a]	parent[]	is	not	enough	to	ameliorate	jeopardy and	meet	the	child[]’s	

needs.”).4	 	 As	 the	 court	 found, with	 support	 in	 the	 record,	 the	 father had	

engaged	only	in	“limited	treatment”	for	his	substance	abuse,	mental	health	and	

sexual	abuse	issues. Furthermore, the father	admitted	to	his	continued	use	of	

substances in	the	days leading	up	to	the	hearing.			

[¶7]	 	 The	 father also asserts	 that	 the	 court	 abused	 its	 discretion	 by	

determining that	termination	of	his	parental	rights	is	in	the	child’s	best	interest	

because	he	“needed	very	little	additional	time	to	show	the	trial	court	and	DHHS	

that	he	could	parent.”		At	the	time	of	the	termination	proceeding,	the	child was	

fifteen	 months	 old	 and	 had	 been	 in	 the	 Department’s	 custody	 since	 he	 was	

 4		In	his	brief,	the	father	does	not	dispute	the	court’s	finding	that	he	is	unwilling	or	unable	to	take	

responsibility	for	the	child	within	a	time	that	is	reasonably	calculated	to	meet	the	child’s	needs.		See	

22	M.R.S.	§	4055(1)(B)(2)(b)(ii)	(2018).		We	have	repeatedly	held	that	“[i]f	any	one	of	the	alternative	

bases	of	parental	unfitness	 found	by	 the	court	is	supported	by	clear	and	convincing	evidence,	 the	

determination	of	unfitness	will	be	affirmed,”	In	re	A.H.,	2013	ME	85,	¶	14,	77	A.3d	1012,	and	that	a	

parent’s	failure	to	contest	an	alternate	finding	in	his	or	her	brief	“constitutes	a	waiver	of	[that]	issue	

on	appeal,”	In	re	Alexavier G.,	2017	ME	227,	¶	1	n.1,	174 A.3d 891.
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sixteen	days	 old.	 The	 trial	court	 found,	based	 on	competent	evidence	in	 the	

record,	that	the	father	would	“require	many	months,	if	not	longer,	to	become	an	

appropriate	caregiver.”		(Emphasis	added.)		We	have	repeatedly	stated	that	“the	

court	must	examine	from	the	child’s	perspective—not	the	parent’s—the	time	

within	which	the	parent	can	take	responsibility	for	a	child	and	protect	that	child	

from	jeopardy.”		In	re	Children	of	Tiyonie	R.,	2019	ME	34,	¶	6,	203	A.3d	824.		As	

in	In re	Child	of	Mercedes	D.,	2018	ME	149,	¶	22	n.5,	196	A.3d	888,	the	father	

here	 “will	 remain	 parentally	 unfit	 for	 too	long	 as	measured	 from	 the	 child’s	

perspective,	and	.	.	.	the	child’s	best	interest	will	be	served	with	the	permanence	

that	comes	with	adoption	. .	. .” Accordingly,	the	court	did	not	err	or	abuse	its

discretion	by	concluding	that	termination	is	in	the	best	interest	of	the	child.	

The	entry	is:

Judgment affirmed.

Philip	Notis,	Esq.,	Portland,	for	appellant	father

Aaron	M.	Frey,	Attorney	General,	and	Zack	Paakkonen,	Asst.	Atty.	Gen.,	Office	of

the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	

Services

Portland	District	Court	docket	number	PC-2017-75

FOR	CLERK	REFERENCE	ONLY