MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 68 Docket: Han

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- 451 Submitted

On	Briefs: April	24,	2019 Decided: May	9,	2019

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

IN	RE	CHILD	OF	SHAYLA S.

PER	CURIAM [ ¶1] Shayla	 S.	 appeals	 from	 a	 judgment	 of	 the	 District	 Court ( Ellsworth, Roberts,	J. )	terminating	her	parental	rights	to	her	child	pursuant	to 22	M.R.S.	§ 4055 (1)(B)(2)(a),	(b)(i)

- (ii),	(iv) (2018).		The	mother	contends	that the	standard	of	proof	in	termination	of	parental	rights	cases	is constitutional ly inadequate. We	affirm	the	judgment.

I.		BACKGROUND [¶ 2 ] The	following	facts	are	drawn	from	the	court’s	findings,	which	are supported	by	the	evidence,	and	from	the	procedura l	record. In	re	Children	of Corey	W. ,	2019	ME	4, ¶	2, 199	A.3d	683. On November	2,	2016,	two	days	after the	child	was	born, the	Department	of	Health	and	Human	Services	filed	a	child protection	 petition and	 a	 request	 for	 a	 preliminary	 protection	 order. S ee

22 M.R.S. § § 4032 , 4034 (201 8 ).		The	petition	alleged	that the	mother	had	a	long history	 of	 serious	 mental	 health	 issues	 that	 had	 at	 times	 required2 hospitalization,	that	she	had	not	been	receiving	medications	or	mental	health services	to	address	her	sig nificant	diagnoses,	and	that	she	had	been	involved with	law	enforcement	on	multiple	occasions	due	to	concerns	about	her	being

assaultive	and	about	her	mental	health. The	court granted	 the request	 for a preliminary	 protection	 order.	 	 On	 November	 10,	 2016, the	 court	 held	 a summary	 preliminary	 hearing.	 	 At	 the	 hearing,	 the	 court	 entered	 an	 order continuing	the	placement	of	the	child	with	the	Department.		The court then held

a n	uncontested jeopardy	hearing as	to	the	mother 1 on	February	27,	2017,	and entered	an	order	finding	that	the	child	was	in	jeopardy. [¶ 3 ] On February	2,	2018 ,	the	Department	filed	a	petition	for	termination of	the	mother’s	parental	rights. See 22	M.R.S.	§ 4052 (2018). The	court	held	a hearing	on	the	p etition	on	August	29 and	31,	2018, and issued	an	order	gra n ting the	Department’s	petition on	October	26,	2018

. See 22	M.R.S. §§ 4054 , 4055 (2018). Based	on	the	testimony	presented	at	the	hearing	and	other	competent evidence	in	the	record,	the	court	found by	clear	and	convincing	evidence	that

the	mother	was unwilling	or	unable	to	protect	the	child	from	jeopardy	and	that those	 circumstances	 were	 unlikely	 to	 change	 within	 a	 time	 reasonably calculated	to	meet	the	child’s	needs,	that	the	mother	was	unwilling	o r unable	to

1 The	father	of	the	child	has	not	yet	been	identified.3 take	responsibility	for	her	child	within	a	time	reasonably	calculated	to	meet	the

child’s	 needs ,	 that	 the	 mother	 had	 failed	 to	 make	 a	 good	 faith	 effort	 to rehabilitate	and	reunify	with	the	child, and	that	it	was	in	the	best	interest	of	the

chil d	 that the	 mother’s parental	 rights	 be	 terminated. See id. § 4055(1)(B)(2)(a),	(b) (i)

- (ii) ,	(iv)

. [¶ 4 ] The	court	based	its	decision	on	the	following	findings	of	fact,	all	of which	are	supported	by	competent	evidence	in	the	record. [The	 mother]	 has	 a history	 of	 impulsive	 and	 assaultive behaviors.	 	 She	 made	 progress	 moderating	 her	 aggressive behaviors	 and	learning	 to	 accept	 guidance	 and	 suggestions	 from providers.	 	 Unfortunately,	 she	 failed	 to	 address	 her	 underlying history	of	trauma.		[The	mother]	has not	demonstrated	an	ability	to translate	her	work	in	therapy	into	behavioral	change.		She	refuses to	consider	guidance	from	those	she	perceives	as	a	threat,	including DHHS	caseworkers	and	[the	foster	mother].		Her	interactions	with [the	child]’s	foster	mot her	and	DHHS	caseworkers	are	continually conflictual.		Her	decisions	to	drop	out	of	medication	management and	 post	 false	 allegations	 on	 social	 media	 demonstrate	 her continuing	impulsive	behavior.

.	.	.	. [The	child]	cannot	wait	any	longer	for	her	mother to	begin	to make	the	changes	needed	to	meet	her	needs.		She	has	been	in	foster care	 for	almost	all	 of	her	2	 years	 of	life.		She	needs	 a	permanent home.

.	.	.	. [The	 child]	 has	 settled	 into	 a	 comfortable	 routine	 at	 the [foster]	home.		She	has	spent	a	s ignificant	portion	of	her	life	in	their4 care.	 .	 .	 .	 The	 Guardian ad	 litem supports	 termination	 of	 [the mother’s]	parental	rights	and	agrees	that	adoption	is	in	[the	child]’s best	interest.

[¶ 5 ] Following	 the	issuance	 of	 the	judgment	 terminating	her	 par ental rights,	 the	 mother	 timely	 appealed. See 22	 M.R.S.	 § 4006 (2018);

M.R. App. P. 2B (c) (1)

. II.		DISCUSSION [¶ 6 ] The	mother	challenges	the	constitutional	adequacy	of	the	standard of	proof	in	 termination	of	parental	rights	cases.		She	argues	 that due	p rocess requires	 that	 the	 Department	 prove	 parental	 unfitness	 beyond	 a	 reasonable doubt	and	that	the	statutory	standard	burden	of	proof	of	clear	and	convincing evidence, see 22 M.R.S. § 4055(1)(B)(2), is	 constitutionally	insufficient .	 	 “We review	 questions	 of	 law,	 including	 alleged constitutional violations	 and statutory	 interpretation,	 de	 novo.” In	 re	 Robert	 S. ,	 2009	 ME	 18,	 ¶	 12,

966 A.2d 894. We presume	 that	 Maine	 statutes	 are	 constitutional. See Guardianship	of	Chamberlain ,	2015 ME	76,	¶ 8,	118 A.3d 229. [¶ 7 ] The	 Supreme	 Court	 of	 the	 United	 States	 has concluded that requiring	 proof	 by	 clear	 and	 convincing	 evidence	 in	 termination	 of	 parental rights	proceedings	satisfies	the C onstitution	because	it “ adequately	conveys	to

the	 fact finder	 the	level	of	subjective	certainty	about [ the ] factual	conclusions5 necessary	to	satisfy	due	process. ” Santosky	v.	Kramer ,	455	U.S. 745, 769 (1982) ;

see also Guardianship	 of	 Chamberlain ,	 2015	 ME	 76,	 ¶	 23,	 118	 A.3d	 229.	 	 In Santosky ,	 the	 Court	 declined	 to	 require	 proof	 beyond	 a	 reasonable	 doubt	 in termination	 of	 parental	 rights	 cases	 because	 termination	 proceedings	 often require	the	factfinder	“to	decide	issues	difficult	to	prove	to	a	level	of	absolute certainty.”		455	U.S.	at	769. The	Court	further	held	that	“determination	of	the precise	burden	equal	 to	 or	greater	 than	 [clear	and	convincing	 evidence]	is	 a matter	of	state	law	properly	left	 to	state	legislatures	and	state	courts.” Id. at

769

- 70. [¶ 8 ] We	 have	 since	 affirmed	 that	 the standard	 of	 proof	 of clear	 and convincing evidence is	 constitutionally	 sufficient	 in	 termination	 of	 parental rights	cases, In re Crystal	S. ,	483	A.2d	1210,	1210,	1213	(Me.	1984),	and	stated that	“[t]he	Maine	Legislature	appropriately	adopted	 the	clear	and convincing evidence	standard	in	the	statute	governing	the	termination	of	parental	rights , ” Guardianship	 of	Chamberlain ,	2015	ME	 76,	¶	23,	118	A.3d	229.		We	 reaffirm today	that	the standard	of	proof	of clear	and	convincing evidence adequately protects	a	parent’s	due	process	rights. See Adoption	of	Isabelle	T. ,	2017	ME	220, ¶ 32 ,	175 A.3d	639 (stating	that	“due	process	requires that findings	of	unfitness be	made	by	clear	and	convincing	evidence”); Adoption	of	Tobias	D. ,	2012	ME	45,6 ¶ 17,	40 A.3d	990	(“ Through	many	years	of	interpretation,	we	have	concluded that	the	procedures,	burdens,	and	standards	set	out	in	section	4055	constitute the	 means	 by	 which	 the	 fundamental	 constitutional	 right	 to	 parent	 is safeguarded. ”). [¶ 9 ] “ We	will therefore	affirm	a	judgment	terminating	parental	rights	if a	review	of	 the	record	demonstrates,	inter	alia,	 that	 the	 trial	court	rationally could	have	found	clear	and	convincing	evidence	in	that	record	to	support	the necessary	factual	findings	as	to	the	ba sis	for	termination	provided	in [section 4055(1)(B)].” In	re	H.C. ,	2013	ME	97,	¶	11,	82	A.3d	80 .		Even	though	the	mother has	not	explicitly	challenged	the	sufficiency	of	the	evidence,	we	conclude	that there	 is	 evidence	 in	 the	 record	 to	 support	 the	 court’s findings,	 by	 clear	 and convincing	evidence,	that	at	least	one	ground	of	unfitness	exists,	and	that	the court	acted	within	its	discretion	in	determining	that	termination	is	in	the	child’s

best	interest. The	entry	is: Judgment affirmed.7 Jeffrey	C.	Toothaker,	Esq.,	Ellsworth,	for	appellant	mother Aaron	M.	Frey,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human Services

Ellsworth	District	Court	docket	number	PC

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- 30 F OR C LERK R EFERENCE O NLY