MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	94

Docket: Cum-18-515

Submitted

On	Briefs: May	30,	2019

Decided: June	11,	2019

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

IN	RE	CHILD	OF	RAUL	R.

PER	CURIAM

[¶1]	 Raul	R.	and	Jessie H. appeal	from	a	judgment	of	the	District	Court	

(Portland,	 Eggert,	 J.)	 terminating	 their parental	 rights	 to their child.	 	 Both	

parents	challenge	 the	court’s	parental	unfitness	 determinations	and	contend	

that	the	Department of	Health	and	Human	Services failed	to	meet	its	obligation	

to	provide	reunification	services	pursuant	to	22	M.R.S.	§	4041(1-A)(2018).		The	

mother	additionally	argues that	her	due	process	rights	were	violated when	the	

court	commenced	 the	 termination	hearing—as	previously	 scheduled—in	her	

absence	and	with	the	knowledge	that	she	had	been	arrested while	travelling	to	

the	hearing.		We affirm the	judgment.

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

and	convincing	evidence	that	both	parents	(1)	are	unable	to	protect	the	child	

from	jeopardy	 and	 these	circumstances	 are	unlikely	 to	change	within	 a	 time	

that	is	reasonably	calculated	to	meet	the	child’s	needs, (2)	are	unable	to	take	
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responsibility	for	the	child	within	a	time	that	is	reasonably	calculated to meet	

the	child’s	needs,	and	(3)	failed	to	make	good	faith efforts to rehabilitate	and	

reunify	with	the	child.		See	22	M.R.S.	§ 4055(1)(B)(2)(b)(i)-(ii),	(iv)(2018).		The	

court	also	determined	that	termination	of	the	parents’	parental	rights	is	in	the	

child’s	best	interest.		See id.	§	4055(1)(B)(2)(a) (2018).		

[¶3]	 	 The	 court	 found	 the	 following	 facts by	 clear	 and	 convincing	

evidence,	all	of	which	are	supported	by	competent record evidence.		See In	re	

Child	of	Adam	E.,	2018	ME	157,	¶	2,	197	A.3d	527.		

At	 the	 time	 this	case	began	on	August	31,	2016,	 [the	child]	

was	3	1⁄2	years	old.	 He	.	.	.	[was] living	in	a	household	scarred	by	

domestic	violence.		At	the	time	[the	child’s]	mother	was	unable	to	

protect	him	from	the	violence	occurring	in	the	home.	 [The	child’s]	

father	was	the	perpetrator	of	the	violence	which	was	severe.	.	.	.

Mother	had	filed	for	a	Protection	from	Abuse	Order	earlier	in	

2016,	 but	 had	 later	 dismissed	 the	 action.	 	 Police	 also	 became	

involved	 and	 felony	 domestic	 violence	 charges	 were	 brought	

against	 [the]	 father.	 	 Neither	 of	 these	 actions	 were	 successful	 in	

stopping	 the	 violence	 as	 father	 violated	 his	 bail	 conditions	 and	

returned	 to	 the	home	where	 the	 violence	continued.		 [The	child]	

was	protected	from	the	violence	only	when	he	was	removed	from	

the	home	and	placed	with	his	maternal	grandparents.			

.	.	. For	sentencing	[the	father]	.	.	. had	a	choice	of	a	suspended	

sentence	 with	 nine	 months	 in	 jail	 and	 probation,	 or	 serving	 a	

straight	sentence	in	the	Department	of	Corrections	custody	of	three	

years.	 	He	 chose	 the	 three[-]year	 sentence	which	 has	 resulted	in	

him	being	in	prison	for	all	or	most	of	the	time	that	[the	child]	has	

been	 in	 Department	 custody	 and	 will	 keep	 him	 in	 prison	 until	

July 22,	2019.		He	has	had	no	contact	with	 [the	child]	during	 this	
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time.		He	was	also	not	always	residing	with	[the]	mother	and	[child]	

during	 the	 time	 from	 [the	 child’s]	 birth	 until	 his	 placement	 in	

Department	 custody	 and	 therefore	 has	 not	 been	 a	 consistent	

presence	in	[the	child’s]	life.		At	the	time	of	the	father’s	release	from	

prison,	[the	child]	will	be	over	six	years	old,	and	if	this	case	were	

still	proceeding,	it	would	be	almost	three	years	old. .	.	.	

[¶4]		The	court	also	found	that	the	mother	has	untreated	mental	health	

issues	 that	 have	 significantly	 affected	 her	 ability	 to	 meaningfully	 engage	 in	

visits,	meetings	with	 the	Department,	 and	 evaluations	 for	 various	 programs.		

Her	behavior,	as	well	as	her	lack	of	attendance, resulted	in	her	visitation	with	

the	 child	 being	 suspended	 in	 December	 2017;	 visitation	 was	 never	

reestablished.1	 	 The	 mother	 engaged	 in	 mental	 health	 counseling	 for	 a	 few	

months,	but	she	was	discharged	by	the	counselor	for	missing seven	sessions.		

When	the	Department	tried	to	help	her	reengage	in	mental	health	counseling,

she	refused	to	see	a	counselor	chosen	by	the	Department	and	stated	that	she	

did	not	need	counseling. The	mother’s	own	efforts	to	get	into	counseling	have	

also	 been	 unsuccessful. The	 mother’s	 behavior	 further	 affected	 her	

rehabilitation	 and	 reunification	 efforts	 after	 she	 tested	 positive	 for	 drugs in	

 1		The	court	found	that	“[a]t Family	Team	Meetings[,	the] mother	would	often	lose	control	and	yell	

and	 curse	 at	 others	 such	 that	 the	 meetings	 would	 end.	 	 The	 same	 behavior	 was	 also	 present	 at	

supervised	visits	with	[the	child]	to	the	extent	that	visits	were	suspended	in	December	2017	and	have	

never	been	reestablished.”		The	evidence	also	shows	that	the	visits	were	canceled	because	the	mother	

missed	three	visits,	and	due	to	the	occurrence	of	a	“serious	incident”	at	the	last	visit.			
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2017,2 and	 was	 required	 by	 the	 Department	 to	 complete	 substance	 abuse	

treatment. Although	 the	Department	made	 referrals	and	 the	mother	 started

various	programs,	 her	 behavior	 caused	 her	 to	 be	 discharged	 before	 she	was	

able	to	complete	any	of	the	them.		

[¶5]		In	March	2018,	the	mother	started—but	did	not complete—a	court	

ordered	 diagnostic	 evaluation.	 	 The	 psychologist	 was	 unable	 to	 perform	 the	

psychometric	 portion	 of	 the	 testing	 due	 to	 the	 mother’s	 “emotional	

dysregulation.”			

[¶6]		Based	on	the	foregoing,	the	court	ultimately	concluded,

The	 hoped[-]for	 partnership	 [between	 the	 mother	 and	 the	

Department]	 was	 not	 successful	 because	 of	 mother’s	 inability	 to	

regulate	her	emotions	and	to	reasonably	discuss	and	plan	for	the	

programs	 she	 needed	 to	 complete.	 	 The	 Department	 tried	 to	

arrange	 the	 programs	 but	 mother	 failed	 to	 follow	 through	 to	

become	enrolled,	or	failed	to	be	admitted	by	the	programs	because	

of	her	own	behavior.	.	.	.	

After	[approximately]	twenty[-]seven	months	that	this	case	

has	been	open,	[the]	mother	has	not	completed	any	of	her	mental	

health	 counseling,	 parenting	 education,	 or	 substance	 abuse	

counseling.	 	 She	 has	 not	 had	 a	Department	 sanctioned	 visit	with	

[the	 child]	 in	 almost	 a	 year	 .	 .	 .	 .	 	 Mother	 herself	 describes	 her	

residence	 as	 “here,	 there,	 and	 everywhere”	which	 certainly	 does	

not	describe	a	situation	where	one	can	safely	house	a	child. .	.	.		

 2		A	drug	screen	was	ordered	after	a	Department	caseworker	suspected	that	the	mother	might	be	

using	 drugs,	 which	 came	 back	 positive	 for	 marijuana,	 cocaine,	 benzoylecgonine,	 amphetamines,	

methamphetamines, and	alcohol.		
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[The	child]	is	presently	living	with	[foster] parents	.	.	.	.		After	

improving	 and	 doing	 well	 in	 the	 home	 of	 his	 grandparents,	 he	

continues	 to	 make	 great	 strides	 in	 his	 development	 in	 his new	

home.	.	.	.		He	is	fitting	into	the	[foster] parents[’]	household	well	

and	they	are	willing	to	adopt	him.		The	[c]ourt	finds	that	it	is	in	his	

best	interest[]	that	the	parental	rights	of	his	parents	be	terminated	

at	this	time.	

The	 Guardian	 ad	 litem also	 recommends	 that	 the	 parents’	

rights	be	terminated	at	this	time	so	that	[the	child]	can	be	free	to	

be	adopted.		

[¶7]		Reviewed	for	clear	error,	the record	contains competent	evidence	

to	 support	 the	 court’s	 findings,	 by	 clear	 and	 convincing	 evidence,	 of	 both	

parents’	parental	unfitness.		See	In	re	Henry	B.,	2017	ME	72,	¶	18,	159 A.3d 824.	

[¶8]	 	The	 parents	 also	 contend	 that	 the	 court’s	 findings	 as	 to	 parental	

unfitness	 are	 unsupported	 by	 the	 record	 because	 the	 Department	 failed	 to	

provide	 services	 outlined	 in	 the	 reunification	 plans.	 	 See	 22	 M.R.S.	 §	 4041.		

Contrary	to	the	parents’	contentions, the	evidence	in the	record	shows	that	the	

Department	 did	 provide	 services, but the	 parents	 did	 not	 sufficiently	

participate	 in	 the	 counseling	 and	 rehabilitation	 services	 they	 were	 offered.		

Moreover,	 even	 if	 we	 were	 to	 accept	 the	 parents’	 contentions	 that	 the	

Department failed to	provide	services,	that failure would	be “merely	a	factor	in	

the	unfitness	analysis	and	does	not	 preclude	 termination	 of	parental	 rights.”		

In re	 Children	 of	Jessica	D.,	 2019	ME	 70,	 ¶ 6, ---A.3d	---.	 	Because	 the	 court’s	
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findings	 of	 parental	 unfitness	 are	 supported	 by	 ample	 record	 evidence,	 the	

court	did	not	err.	

[¶9]		Finally,	the	mother	contends	that	the	court	violated	her	due	process	

rights	by	denying	her	motion	to	continue	and then commencing the	termination	

hearing—as	previously	 scheduled—in	 her	 absence,	with	 the	 knowledge	 that	

she	had	been	arrested.		U.S.	Const.	amend.	XIV,	§ 1;	Me.	Const.	art.	I,	§ 6-A.	 “We	

review	a	court’s	decision	to	deny a	motion	to	continue	for	abuse	of	discretion.		

When	 due	 process	 is	 implicated,	 we	 review	 such	 a	 procedural	 ruling	 to	

determine	whether	the	process	struck	a	balance	between	competing	concerns	

that	was	fundamentally	fair.”		In	re	Arturo	G.,	2017	ME	228,	¶	14,	175	A.3d	91

(citation	omitted).

[¶10]		“In	 termination	cases,	where	fundamental	interests	are	at	stake,	

due	process	requires:	notice	of	the	issues,	an	opportunity	to	be	heard,	the	right	

to	introduce	evidence	and	present	witnesses,	the	right	to	respond	to	claims	and	

evidence,	and	an	impartial	fact-finder.”		In	re	Child	of	James	R.,	2018 ME	50,	¶ 17,	

182	 A.3d	 1252.	 	 Due	 process,	 however,	 “does	 not	 require	 that	 a	 parent	 be	

physically	present	at	the	termination	hearing,	as	long	as	notice	of	the	hearing	

was	given	in	a	manner	calculated	to	give	actual	notice	and	the	parent	had	an
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opportunity to	 be	 heard.”	 	 In	 re	 Child	 of	 Tanya	 C.,	 2018 ME	 153,	 ¶	 10,	

198 A.3d 777.		

[¶11]		“When	incarceration	is	not	involved	and	a	parent	fails	to	appear,	

courts	generally	discern	no	abuse	of	discretion	or	violation	of	due	process	in	

proceeding	 with	 the	 hearing	 if	 the	 parent’s	 absence	 was	 occasioned	 by	

circumstances	 voluntarily	 created	 by	 that	parent.”	 	In	 re	 A.M.,	 2012	ME	 118,	

¶ 19,	 55	 A.3d	 463.	 	 When,	 on	 the	 other	 hand,	 “a	 parent	 is	 known	 to	 be	

incarcerated	 in	 advance	 of	 a	 hearing,	 the	 court	 must,	 upon	 request	 by	 the	

parent,	provide	a	meaningful	opportunity	 for	 the	parent	 to	participate	in	 the

hearing	whether	in	person,	by	 telephone	 or	 video,	 through	deposition,	 or	by	

other	means	 that	will	 reasonably	ensure	an	 opportunity	 for	 the	parent	 to	be	

meaningfully	involved	in	the	hearing.” Id.	¶	20.	

[¶12]		The	mother	in	this	matter	was	arrested	on	her	way	to	the hearing,	

and	thus	missed	the	first	day	of	the	hearing,	but	was	present	for	the	second	day.		

She	contends	that	because	she	was	deprived	of	her	“right	to	respond	to	claims	

and	 evidence”	 on	 the	 first	 day	 of	 the	 hearing,	 her	 due	 process	 rights	 were	

violated.			

[¶13]		Although the mother	contends	that	she	was	personally unable	to	

respond	 to	claims	and	 evidence	 on	 the	 first	day,	“she	had	 the	 opportunity—
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through	 her	 attorney—to	 respond	 to	 claims	 and	 evidence.”	 	 In	 re	 Child	 of	

Danielle	F.,	2019	ME	65,	¶	6,	--- A.3d	---. Further,	the	mother	could	have,	either	

in	her	testimony on	the	second	day	or in	an	offer	of	proof,	explained	how	her	

participation	on	the	 first	day	 of	 the	hearing	 “would	have	affected	 the	court’s	

determinations that	 [s]he	 was	 parentally	 unfit,”	 In	 re	 Kaylianna	 C.,	

2017 ME 135,	¶	11,	166 A.3d	976,	but	she	failed	to	do	so.		Lastly,	the	mother	did	

not	seek	to	present additional	evidence during	or	after	the	hearing.		See	In	re	

A.M.,	2012	ME	118,	¶ 23,	55	A.3d	463.		Therefore,	the	mother	failed	to	show	that	

she	 was	 prejudiced	 by	 her	 partial	 absence.	 	 The court	 did	 not	 abuse	 its	

discretion	in	denying	the	mother’s motion	to	continue, and	the	mother	was	not	

deprived	of	due	process	when	the	court	commenced	the	hearing	in	her	absence.

See	In	re	Randy	Scott	B.,	511	A.2d	450,	453-54 (Me.	1986).	

The	entry	is:

Judgment affirmed.
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Angela	M.	Thibodeau,	Esq.,	Holmes	Legal	Group,	LLC,	Wells,	for	appellant	father

Molly	 Butler	 Bailey,	 Esq.,	 Strike,	 Gonzales	 &	 Butler	 Bailey,	 Portland,	 for	

appellant	mother

Aaron	M.	Frey,	Attorney	General, and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	

of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Portland	District	Court	docket	number	PC-2016-73

FOR	CLERK	REFERENCE	ONLY