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

Panel: 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	children pursuant	to	22	M.R.S.	§	4055(1)(A)(1)(a)	and	(B)(2)(a),	

(b)(i)-(ii) (2017).1 After	reviewing the	record,	we	conclude	that	the	evidence	

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

determination	that	termination	is	in	the	children’s	best	interests.		Accordingly,

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 or	 unable	 to	

protect	 the	 children from jeopardy	 within	 a	 time	 reasonably	 calculated	 to	

meet	their needs and	(2)	is unwilling	or	unable	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.
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also found	 that termination	of	 the	father’s parental	rights	is	in	the	children’s

best	 interests. 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	 that	 termination	 is	 in	 the	 children’s	

best	interests “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]		The	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	two	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	about	14	months,	in	October	

2015.		The	dismissal	was	ordered	after	entry	of	a	Parental	Rights	

Judgment	 which	 provided	 for	 the	 girls	 to	 live	 with	 their	 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,	
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Zarianna	 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	 perpetration	 of	 domestic	 violence,	

continued	 criminal	 activity	 and	 incarcerations;	 and	 recent	

incarceration	that	prevents	[the	father] from	being	a	caregiver	to	

the	children.” [The	 father] has	never	been	the	primary	caregiver	

for	 the	 children,	 and	 did	 not	 engage	 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	2010,	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	 counseling	 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	 any	 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	medical	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	 that	
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denial,	he	recently	began	a	certified	batterer’s	intervention	group	

and	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	 .	 .	 .	

between	[the	 father] and	[the	mother] and	that	at	least	the	older	

two	 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	able	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	 three	

workshops	in	November	2016.

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

the	 ability	 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	 an	 episode	 of	 care	 for	 2	 years.	 Reunification	

services	have	been	available	for	years.	 The	children	have	all	been	
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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	

reassured	she	can	stay	with	the	[the	foster	parents],	the	place	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	for	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	 for	 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, all	 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	 that	 termination	 of	 the	

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

children’s	best	interests.	 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.
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Jason	R.	Ranger, Esq.,	Lewiston,	for	appellant	father

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

Waterville	District	Court	docket	number	PC-2015-34

FOR	CLERK	REFERENCE	ONLY