MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 148 Docket: Lin

- 18

- 72 Submitted

On	Briefs: September	26,	2018 Decided: November 8 ,	2018

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

IN	RE	CHILD	OF	MATTHEW	R.

PER	CURIAM

[¶1] Matthew	 R. appeals	 from a	 judgment	 of	 the	 District	 Court

(Wiscasset, Raimondi,	J. )	terminating	his	parental	rights	to	his	son. He	argues

that	the	court	erred	and	abused	its	discretion	in	finding	that	he	was unwilling

or unable	to	protect	the	child	from	jeopardy	and	that	th os e	circumstances	were

unlikely	to	change	within	a	time	reasonably	calculated	to	meet	the	child ’ s	needs

and	in finding	that	termination	of	the	father ’ s	parental	rights	was	in	the	child ’ s

best	interest. See 22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i)	(2017). We	affirm	 the

judgment.

[¶ 2 ]		In	August	2016, while the	child	was	residing	with a	family	member

pursuant	 to	 a	 saf ety	 plan between the	 Department	 of	 Health	 and	 Human

Services and	 the	 child ’ s	 parents, the	 Department	 filed	 a	 petition	 for	 a	 child

protection	 order. The	 petition	 alleged	 that	 the	 mother	 had	 a	 significant

substance	 abuse	 problem	 with	 related periods	 of inca rceration	 and	 that	 the2

father	was	unable	 to	maintain	a	safe,	clean	home	unaffected	by	 the	mother ’ s

drug	abuse. On	November	3,	2016,	the	court	entered an	agreed

- upon jeopardy

order	with	 respect	 to	 each	 parent .	 	 Jeopardy as	 to the father	 arose	 from	 the

fath er ’ s	failure	to	protect	the	child	from	being	exposed	to	risks	resulting	from

the	 mother ’ s	 drug	 abuse,	 including	 an	 unsanitary	 home	 visited	 by	 unsafe

people.	 	 Jeopardy	 was	 also	 based	 on	 the	 father ’ s	 inability	 to	 exercise

independent	 judgment

, separate	 from the	 mother

, to	 protect	 the	 child. The

court	placed	the	child	in	the	Department ’ s	custody and	maintained	the	kinship

placement

. [¶ 3 ]	 	 By	 August	 2017,	 the	 mother	 had been incarcerated for	 violating

probation and	 conditions	 of	 house	 arrest ,	 and	 the Department	 petitioned	 to

terminate	both	parents ’ parental	rights. The	petition	alleged	that	the	mother

ha d proved	 unable	 to stop using	 drugs	 and	 that	 the	 father,	 who would not

separate	from	the	mother,	was	unrealistically	confident	that	she	would	recover

from	her	addiction	and	that	she	could	be	trusted	with	the	child ’ s	care.

[¶ 4 ]		The	termination	hearing	was	held	over	the	course	of	three	days

—

December	 5,	 18,	 and	 19,	 2017. The	 court	 then

, upon	 the	 mother’s	 consent,

entered	a	judgment	terminating	the	mot her ’ s	parental	rights. After	considering

all of	the	evidence	presented,	the	court carefully considered the facts	weighing3

against	termination	and	those	weighing	in	favor	of	termination and found ,	by

clear	and	convincing	evidence, the	 following	 fact s	with respect	 to	 the	 father

.

See In	re	Children	of	Melissa	F. ,	2018	ME	110,	¶ 11, 191 A.3d 348.

There	 are	 a	 number	 of	 factors	 that	 would	 support	 the conclusion	 that	 termination	is	not	appropriate	in	 this	case. [The father] does	 not	 have	 a	 problem	 with	 substance	 abuse. He	 has consistently	held	down	a	full

- time	job

.	.	. for	more	than	5	years. He has	facially	complied	with	some	of	the	Department ’ s	requirements. He	has	obtained	safe	and	appropriate	housing. He	did	particip ate in	a	CODE [court	ordered	diagnostic] evaluation. He	has	attended counseling. He	 has	 visited	 regularly	 and	 consistently	 with [the child]

. He	 has	 met	 and	 co

- operated	 with	 the	 Department ’ s caseworker. The	 CODE	 evaluator

.	 .	 . makes	 it	 clear	 that	 lack of intelligence	and	capacity	to	parent	is	not	an	issue	here. [The	father] and [the	child] have	a	bond	with	each	other. There	is	no	question that [the	 father] cares	 about [the	 child]

. All	 those	 factors	weigh against	termination.

The	 factors	 that support	 termination	are	clearly	laid	out	in the	Guardian ’ s	final	summary:

[The	 father] has	 a	 problematic	 co

- dependent	 relationship with [the	 mother] that	 has	 spanned	 over	 numerous long

- term	 incarcerations	 and	 continued	 drug	 use. His unyielding	 loyalty	 to [the	 mother] comes	 at	 the	 price	 of jeopardizing [the	 child] ’ s safety. [The	 father] ’ s inability and/or	refusal	to	recognize	the	extent	of [the	mother] ’ s drug use	and	take	proactive	measures	to	protect [the	child] from the	 risk [the	 mother] ’ s substance	 abu se	 poses	 has	 caused [the	father] to	be	an	unsafe	caregiver	for [the	child]

. The	only

reason [the	 father] is	 safely	 able	 to	 have	 unsupervised visitation	 with [the	 child] now	 is	 because [the	 mother] is incarcerated	and [the	child] is	not	at	risk	of	being	ex posed	to her	substance	abuse	or	the	effects	thereof.4

It	 is	 difficult	 for	 the	 court	 to	 reconcile [the	 father] ’ s intelligence	level	and	capacity	to	parent	with [the	child] ’ s condition and	 the	conditions	in	which [the	child] was	living	when	he	came into	c are. As	the	Guardian	noted	in	her	report	dated [August ] 2016 :

“ At	almost	5	years	old, [the	child has significant speech delays]

. ” At the	 home	 visit	 immediately	 preceding	 the	 filing	 of	 the	 petition, there	was	a	loaded	syringe	within [the	child] ’ s reach	on	the	porch. The	home	was	filthy	with	trash	and	feces	on	the	floor. Even	during the	pendency	of	this	case	unsanitary	conditions	persisted	until	the home	 was	 foreclosed	 upon	 and [the	 mother] went	 to	 jail. [The mother] was	in	jail	 for	 two	years	af ter [the	child] ’ s birth. During that	time [the	father] was	responsible	for [the	child] ’ s care. [The child] ’ s condition	as	of	the	filing	of	the	Department ’ s	petition	is	the most	compelling	evidence	as	 to	 the	care	and	quality	of	parenting provided	by	both [the	father] and [the	mother]

. The	 question	 presented	 to	 the	 court	 is	 how	 a	 competent, caring	parent	could	allow	these	things	to	happen,	and	if	anything has	 changed	 such	 that [the	 child] would	 be	 safe	in [the	 father] ’ s care	in	the	future.

[The father] ’ s	 updated	 reunification	 plan	 as	 of [May	 2017] provided	that,	among	other	things:

• He	was	to	attend	Al

- Anon	meetings;

• Demonstrate	that	he	is	able	to	make	independent	judgments in	the	best	interest	of [the	child] ;

• Know	who	 the	 people	 are	 that	 are	 around [the	 child] and who	associates	with [the	mother] ;

• Be	involved	in [the	child] ’ s pediatrician,	dental,	eye	doctor and	Early	Headstart	appointments	and	follow	through	with [the	child] ’ s provider ’ s	recommendations;	an d5

• Make	 a	 plan	 in	 the	 event	 that [the	 mother] relapses	 or associates	with	people	who	are	known	to	use	drugs	and/	or have	criminal	involvement.

[The	father] never	attended	Al

- Anon	meetings. These	were particularly	recommended	to	assist	him	in	dealing with	his	issues of	 co

- dependency	 with	 respect	 to [the	 mother]

. He	 did	 go	 to counseling,	but	both	his	counselors	were	of	the	opinion	that	he	was not	 engaged	 in	 the	 counseling	 or	 motivated	 to	 change. He	 was attending	 because	 the	 Department	 made	 it	 a	 requi rement	 for reunification.

[The	 father] has	 not	 demonstrated	 that	 he	is	 able	 to	make independent	judgments	in	the	best	interest	of [the	child]

. He	lost unsupervised	 visitation	with [the	 child] because	 he	 allowed [the mother] to	have	unsupervised	contac t	with [the	child] in	violation of	DHHS	restrictions.

.	.	.

.	.	.	. [The	 father] is	 not	 a	 bad	man. He	would	 not	intentionally expend	 energy	 to	 commit	 a	 bad	 act	 or	 to	 harm	 someone. [The father] lives	life	in	survival	mode. Life	happens	 to	him. He	does what	he	can	to	meet	his	basic	needs. He	has	support	from	his	fami ly members	 who	 step	 in	 to	 help

— if	 they	 can

— i n	 the	 event	 of catastrophe. [The	 father] does	not	appear	 to	have	 the	insight	 or emotional	energy	to	care	for	others	or	to	understand	the needs	of others. He	 addresses [the	 mother] ’ s	 needs	 because	 she	 insists upon	it. Otherwise, [the	father] does	what	he	has	to	do	to	get	by	as best	he	can. He	works. He	cares	for [the	child] in	his	way,	but	has no	understanding	of [the	child] ’ s	needs,	an d,	therefore,	no	concept of	how	to	meet	them.

[The	father] ’ s	most	recent	counselor	testified	at	hearing	that one	 of [the	 father] ’ s	 positive	 qualities	 was	 steadfastness	 and loyalty. He	has	been	consistently	loyal	to [the	mother]

. When [the mother] is in	his	life, [the	mother] and	her	needs	are	the	focus	of his	 attention. The	 irony	 of	 this	 is	 that [the	 father] ’ s	 loyalty,6

dependence	and	deference	to [the	mother] causes	him	to	be	blind to	the	safety	issues	caused	by	her	substance	abuse. [T he	child] has been	put	at	risk	as	a	result. [The	father] ’ s	focus	on	survival	and	on [the	mother] ’ s	needs	has	left	no	room	for	understanding	or	insight with	respect	to [the	child] ’ s	needs. Nothing	about	t his	has	changed during	 the	 pend ency	 of	 this	 case. [The	 father] ’ s continued dependence	on [the	mother] and	lack	of	insight	compels	the	finding that [the	 child] would	 continue	 to	 be	 at	 risk	 if returned	 to [the father] ’ s care.

.	.	.	. Therefore,	 based	 on	 the	 foregoing,	 the	 court	 finds	 by	 clear and	convincing	evidence th at [the	father] 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.

The	court	also	finds	that	it	is	in [the	child] ’ s	best interest	to terminate	the	p arental	rights	of [the	father]

.	.	.	.

.	.	.	.

.	 .	 .	 . [The	 child]

.	 .	 . is	 doing	 very	 well [in	 his	 current placement] ,	and	thriving	in	his	environment. When	he	first	came
to [the placement ] ,	 he

.	 .	 . had	 significant

.	 .	 . del ays. He	 is	 now developmentally	 on	 target	 and	 his [abilities] ha [ve] improved immeasurably.

.	 .	 . [H]e has	 received	 all	 the	medical,	 educational and	 special	 services	 he	 needs	 to	 address	 the	 issues	 that	 existed when	he	came	into	care.

[¶ 5 ]		The	father	timely	appealed	from	the	judgment. See 22	M.R.S.	§	4006

(2017) ;	M.R.	App.	P.	2A (a),	2B(c)(1)

. [¶ 6 ]		Based	 on these facts,	which	have strong evidentiary	 support, the

court	did	not	err	in	finding that ,	despite	his	efforts to	comply	with	the services7

arranged	 by	 the	 Department ,	 the	 father	 remains unable	 to understand	 the

child ’ s	 needs	 and protect him from the jeopardy presented	 by	 the	 mother ’ s

substance	abuse	and	related	conduct within	a	time that	is reasonab ly	calculated

to	meet the	child ’ s needs. See 22	M.R.S.	§ 4055 (1)(B)(2)(b)(i); In	re	Thomas	D.

, 2004	ME	104,	¶	21,	854	A.2d	195

. T he	father	argues	that	he	was placed	in	an

untenable	position because	to	retain	his	parental	rights	to	the	child he	would

have to	implicate	the	mother	in	crimi nal	conduct	and	break	off	contact	with	her

while	she	was	in	prison	and	expecting	their	second	child .		T he	findings	of	the

court	were ,	however, properly	focused	on	the	needs	of	the	child	as	required	by

statute. Se e 22	M.R.S.	§ 4055 (1)(B)(2)(b)(i). The	court	found,	with	evidentiary

support,	 that	 the	 father	 understood	 and	 responded	 to	 the	 mother’s	 clearly

articulated	 wishes	 but	 did	 not	 understand	 the	 child’s	 needs	 and	 could	 not

prioritize	 them

— a	 circumstance	 that	was	 not	likely	 to	 change	within	 a	 time

reasonably	calculated	to	meet	the	child’s	needs. See	id.

[¶ 7 ] Nor	did	the	court	err or	abuse	its	discretion	in	determining	that the

termination	of the	father ’ s parental	rights	was	in the	child ’ s	best	interest. S ee

22 M.R.S.	 § 4055(1)(B)(2)( a ); In	 re Thomas	 H. ,	 2005	 ME	 123,	 ¶¶	 16

- 17,

889 A.2d	297

. The	court’s	determination	is	fully	supported	by	its	findings	that

the	 child	 needs nothing	 short	 of permanency as	 he	 recovers	 from	 a	 young8

childhood	during	which	the	parents	exposed	him	to damaging instability	and

living	conditions	that	did	not	meet	his	developmental	needs. 1

The	entry	is:

Judgment	affirmed.

Kristina	Dougherty,	Esq.,	Wise	Old	Law,	LLC,	Portland,	for	appellant	father

Janet	T.	Mi lls,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human Services

Wiscasset	District Court	docket	number P C

- 201 6

- 8
F OR C LERK R EFERENCE O NLY

1 The child	was	so	badly	deprived	of	love	and	support	in	his	early	years	with	both	parents	that	he was	unable	to	speak	in	clear	words	when	he	was	five	years	old.		He	has	made rapid	and	remarkable
progress since	being	placed away	from	his	parents

.