MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 121 Docket: Cum

- 19

- 106 Submitted

On	B riefs : 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	Hea lth	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 burn ing

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

order, granting	custody	to	the	Department
, and	the	child	was	placed	in	foster2

care

. 1 On	 February	 5,	 2018,	 the court ( Powers,	 J. )	 entered	 a n	 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	t ake	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
, s ee 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	ca re	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.3

.	.	.	. [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	us e.

.	.	. 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	 se ssions	 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	 th ey	 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.3 d	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.	61.4
[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	te s ts, 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	 you thful	 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	alcoh ol.
[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	 fa ther’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	hi s	son’s	medical	and	other	needs	as	a	15

- month

- old. It	is	highly5
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	 f amily ].		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	par ental	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	contenti on ,6
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 ] T h e	 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	hav e	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 p arent’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

.7
sixteen	days	 old

. T he	 trial	court	 found,	based	 on	competent	evidence	in	 the
record,	that	the	father	would	“require many	months ,	if	not	longer,	t o	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	je opardy.” 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

. .	. . ” A ccordingly,	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	Noti s ,	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 F OR C LERK R EFERENCE O NLY