MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 ME 11

Docket: Ken

- 17

- 363

Submitted

On	Briefs : January	11,	2018

Decided: January	23,	2018

Pane l: ALEXANDER,	MEAD,	GORMAN,	JABAR, and	HUMPHREY,	JJ.

IN	RE ZARIANNA	C.	et	al.

PER	CURIAM

[¶1] The father	of	Zarianna	C.,	Zariyah	C.,	and	Zaylah	C. appeals from	a

judgment	of	the	District Court	(Waterville

, Stanfill ,	J. )	terminating	his parental

rights to the	child ren pursuant	to 22	M.R.S.	§	4055 (1)(A)(1)(a)	and	(B)(2)(a),

(b)(i)

- (ii) (2017 ). 1 After	r eviewing the	record,	we	conclude	that	the	evidence

support s the	 court’s	 finding	 of	 parental unfitness	 and	 its	 discretionary

determination	that	termination	is	in the	children ’s	best	interest s .		A ccordingly,

we	affirm	the	judgment.

[¶2 ] Based	 on	 competent	 evidence	 in	 the	 record,	 the	 court	 found	 by

clear	 and	 convincing	 evidence	 that	 the father (1)	 is	 unwilling o r	 unable	 to

protect	 the	 child ren from jeopardy	 within	 a	 time	 reasonably	 calculated	 to

meet their needs and (2)	is unwilling	or	una ble	to	take	responsibility	for them

within	 that	 time frame. See 22	 M.R.S.	 §	 4055(1)(B)(2)(b) (i)

- (ii)

. The	 court

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

also found	 that termination	of	 the fa ther’s pa rental	rights	is	in the	children’s

best	 interest s

. See 22	 M.R.S.	 §	 4055(1)(B)(2)(a). We	 review the	 factual

findings	 supporting the	 unfitness	 determination	 for	 clear	 error, see

In re Logan M. ,	2017 ME	23,	¶	3, 155	A.3d	430,	and	apply	the	same	standard	to

the	 factual	 findings	 supporting the	 best	interest	 determination,	 although	we

review	 the	 court’s ultimate conclusion	 tha t	 termination	 is	 in	 the	 child ren ’s

best	interest s “for	an	abuse	of discretion,	viewing	the	facts,	and	the	weight	to

be	given	them,	through	the	trial court’s	lens,”	and	giving	the	court’s	judgment

“substantial	 deference,” In	 re	 Caleb M. ,	 2017	 ME	 66,	 ¶	 33,	 159	 A.3d 345

(quotation	marks	omitted).

[¶3 ] T he	court	based	its	determination on	the	following	findings	of	fact:

This	 case	 began	 in	 November	 2015,	 but	 the	 family’s involvement	 with	 the	 Department	 started	 long	 before	 that. The first	case	was	filed	in	December	2011	and	involved	only	Zarianna

because	the	other	t wo	girls	had	not	yet	been	born

. [T]he	case	was dismissed	 .	 .	 .	after	 some	 two	 years	with	 successful	 reunification

with	 the	 mother. The	 second	 case	 involved	 both	 Zarianna and Zariyah,	and was	filed	August 22, 2014,	approximate [ly] 8	months

later

. That	case	was	dismissed	after	abo ut	14	months,	in	October

2015. The	dismissal	was	ordered	after	entry	of	a	Parental	Rights Judgment	 which	 provided	 for	 the	 girls	 to	 live	 with	 thei r	 mother and	 have	 supervised	 visits	 with	 their	 father. [The	 father] was incarcerated	at	the	time.

This	case	was	filed	November	6,	2015,	only	one	month	after

the	 last	 case	 was	 dismissed. [The	 current	 foster	 parents] have been	 the	 foster	 placement	 for	 all three	 cases. At	 this	 point,3

Zarian na	 has	 lived	 with	 them	 almost	 5 years	 of	 her	 life	 and Zariyah	 for	 almost	 3	 years	 of	 her	life. Zaylah	 has	lived	with	 the [ foster	parents] since	she	was	9 months	old	and	she	is	now	over two	years	old. In	short,	all	three	girls	have	lived	with	the [foster parents] the majority	of	their	short	lives.

The	Jeopardy	Order	in	this	case	found	that	the	girls	were	in jeopardy	 based	 on [the	 father]’s	 “ past	 extensive	 and	 severe substance	 abuse	 issues;	 past	 perpet ration	 of	 domestic	 violence, continued	 criminal	 activity	 and	 incarcerations;	 and	 recent incarceration	that	prevents [the	father] from	bein g	a	caregiver	to
the	children.” [The	 father] has	never	been	the	primary	caregiver for	 the	 children,	 and	 did	 not	 engag e	 in	 substantial	 reunification services	or	efforts	during	either	of	the	first	two	cases.

After	years	of	 failing	to	appropriately	take	care	of	the	girls, [the	father] began	to	try	to	make	changes	in	his	life. He	has	felony drug	convictions	from	2009	and	2 010,	but	not	since	then. He	has three	OUI	convictions,	in	2009,	2013,	and	2014. He	went	through Drug	Court. He	has	a	significant	substance	abuse	history	that	has

made	 him	 unavailable	 for	 the	 children.	 	 He started	 substance abuse	 and	 [dual] diagnosis	 cou nseling	 in	 August	 2016	 but	 was discharged	 for	missing	appointments. He	had	started	again	with another	 counselor	 by	 the	 time	 of	 the	 hearing,	 but	 had	 only	 seen that	counselor	4	times	and	was	also	suspended	for	his	attendance. He	 claims	 he	 no	 longer	 uses	 an y	 drugs	 and	 has	 not	 had	 a	 drink since	his	birthday	in	September	2016. But

, he	tested	positive	for alcohol	on	October	26,	2016 [,] and	 tested	positive	 for	cocaine	on January	 31,	 May	 18	 and	 May	 31,	 2017. He	 continues	 to	 use marijuana	regularly. He	has	a	me dical	marijuana	card	but	obtains his	marijuana	off	the	street. Indeed,	his	explanation	for	the	failed drug	 tests	 is	 that	 his	 marijuana	 must	 have	 been	 tainted,	 an explanation	 the	 court	 rejects. Thus,	 although	 he	 seems	 to	 have made	good	progress	with	his substance	abuse,	he	clearly	has	not obtained	consistent	sobriety.

[The	 father] consistently	 denied	 any	 domestic	 violence history	 and	 therefore	 did	 not	 address	 that	 issue. Despite	 that4

denial,	he	recently	began	a	certified	batterer’s	intervention	group

a nd	was	about	12	weeks	into	 the	48

- week	program	at [the] time

of	 trial. The	 court	is	 persuaded	 by	 the	evidence,	including	 prior findings,	 Zarianna’s	 statements	 and	 Zarianna’s	 reaction (nightmares	 with	 fear	 of	 being	 hit)	 that	 there	 was	 violence

.	 .	 . betwee n [the	 father] and [the	mother] and	that	at	least	the	older

t wo	 children	 were	 also	 victims. It	 does	 not	 appear [that	 the father] has	taken	responsibility	for	those	actions.

Although	 affectionate	 and	 loving, [the	 father] has	 not

demonstrated	that	he	is	ab le	to	manage	all	three	children	as	their primary	 caretaker. He	 has	 struggled	 to	 visit	 consistently. [Supervised	 visits were] discontinued	 in	 January	 or	 February

because	 of	 missed	 sessions. The	 visits	 are	 chaotic,	 and [the father] is	 reluctant	 to	 follow through	 with	 direction	 or	 to	 set

boundaries. He	enrolled	in	a	parenting	class	(Peaceful	Parenting of	 Young	 Children)	 but	 only	 attended	 two	 out [of] the	 thr ee workshops	in	November	2016.

The	issue	presented	to	the	court	is	whether [the	father] has

the	 abi lity	 to meet	 the	 needs	 of	 the	 children

— to	 protect	 them

from	 serious	 harm	 and take	 responsibility	 for	 them

— within	 an appropriate	 time	 frame. [The	 father] has	 progressed	 in	 the	 last year	and	is	addressing	the	issues	that	exist	in	his	case,	and	he	has come	 a	 long	 way.	 	 Nonetheless,	 the	 court	 is	 persuaded	 by	 clear and	 convincing	 evidence	 that	 he	 does	 not	 have	 the	 ability	 to provide	a	consistent,	safe,	stable and	predictable	environment	for the	girls,	which	is	 the	environment	 these	children	must	have.

.	.	. Indeed, [the	 father] himself	 has	 acknowledged	 that	 there	 is	 still

work	to	be	done.

The	 court	 is	 also	 persuaded	 by	 clear	 and	 convincing

evidence	 that [the father] is	 not	 able	 to	 do	 what	 he	 needs	 to	 do within	 a	 time	 reasonably	 calculated	 to	 meet	 the	 needs	 of	 the

children.

.	.	. This	case	has	been	pending	for	well	over	19	months, and	 follows	 shortly	after	another	episode	 of	 care	 for	 14	months,

which	 followed a n	 episode	 of	 care	 for	 2	 years. Reunification services	have	been	available	for	years. The	children	have	all	been5

in	 foster	 care	 for	 the	 majority	 of	 their	 young	 lives. Zarianna	 in particular	is	very	anxious	and	“just	wants	it	to	be	over”	and	to	be

reassur ed	she	can	stay	with	the [the	foster	parents] ,	the	p lace	and family	 she	 calls	 home. Permanency	 is	 of	 the	 utmost	 critical importance	for	these	children,	and	they	cannot	wait	any	longer.

.	.	.	.

The [foster	parents] would	adopt	 the	girls	if	 they	are	 freed for	 adoption. The	 children	 have	 lived	 with	 the [foster	 parents]

most	of	their	lives. They	are	very	attached	and	bonded	with	them. They	 seek	 out [the	 foster	 parents] for	all	 their	 needs. Indeed,	it

can	be	hard	fo r	the	younger	children	to	separate	from	their	foster

parents. Zarianna	 is	 the	 only	 one	 old	 enough	 to	 express	 a preference,	 and	 she	 has	 clearly	 and	 repeatedly	 stated	 that	 she wants	 to	 stay	 where	 she	 is. Given	 the	 strong	 public	 policy favoring	 permanency	 f or	 children,	 the	 court	 has	 no	 difficulty	 in finding	 that	 termination	is	 clearly	in the	 children’s	 best	interest. Zarianna,	 Zariyah	 and	 Zaylah	 cannot	 wait	 any	 longer;	 they	 are entitled	to	permanency	now.

(Citations	omitted).

[¶4 ] Given	 these	 findings, a ll	 of which	 are	 supported	 by	 competent

evidence	in	the	record,	the	court	did not	err	in	its	determination	of	unfitness

,

nor	 did	 it	 err	 or	 abuse	 its	 discretion	 in determining	 t hat	 termination	 of	 the

father ’s	 parental	 rights,	 with	 a permanency	 plan	 of adoption,	 is	 in	 the

child ren ’s	best	interest s

. See In	re	Logan M. ,	2017 ME	23,	¶	3, 155	A.3d	430 ;

In re	Thomas H. ,	2005	ME	123,	¶¶	16

- 17,	889 A.2d	297.

The	entry	is:

Judgment affirmed

.6

Jason	R.	Ranger, Esq.,	Lewiston,	for	appellant	f ather

The	Department	of	Health	and	Human Services	did	not	file	a	brief

Waterville	D istrict	Court	docket	number	PC

- 2015

- 34

F OR C LERK R EFERENCE O NLY