MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 94 Docket: Cum

- 18

- 515 Submitted

On	B riefs : 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	Jess ie 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	pr ocess	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	take2 responsibility	for	the	child	within	a	time	that	is	reasonably	calculated to meet the	child’s	needs ,	and	(3) failed	to	make	good	faith effort s 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 domest ic	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	earlie r	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	 an d 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 sent ence	 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	 this3 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	thr ee	years	old.

.	.	. [¶ 4 ] The	court	also	found	that	t he	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	beha vior ,	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	counse lor 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

. T he	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	reestabl ished.” T he	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.4 2017, 2 and	 was	 required	 by	 the	 Department	 to	 complete	 su bstance	 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 comple te

— 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 arra n ge	 the	 programs	 but	 moth er	 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 no t	describe	a	situation	where	one	can	safely	house	a	child.

.	.	.

2 A	drug	screen	was	ordered	after	a	Department	caseworker	suspected	that	the	mot her	might	be using	 drugs,	 which	 came	 back	 positive	 for	 marijuana,	 cocaine,	 benzoylecgonine,	 amphetamines, methamphetamines , and	alcohol.5 [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 ] Review ed	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, t he	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’	 contention s	 that t he 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’s6 findings	 of parental	 unfitness	 are	 supported	 by	 ample	 record	 evidence , the
court	did	not	err. [¶ 9 ] Finally,	t he	mother	contends	that the	court violated	her	due	process rights	by	denying	her	motion	to	continue	and then commenc ing 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). [¶1 0 ] “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	J ames	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	an7 opportunity to	 be	 heard.” In	 re	 Child	 of	 Tanya	 C. ,	 2018 ME	 153,	 ¶	 10,
198 A.3d 777

. [¶1 1 ] “ 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,	 o n	 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. [¶1 2 ]		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.
S he	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	 w ere violated. [¶1 3 ] Although the mother	contends	that she was	personally unable	to respond	 to	claims	and	 evidence	 on	 the	 first	day, “ she	had	 the	 opportunity

—8 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
determination s that	 [s]he	 was	 parent ally	 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 .	 	 T he 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	r e	Randy	Scott	B. ,	511	A.2d	450,	453

- 54 (Me.	1986)

. The	entry	is: Judgment affirmed.9 Angela	M.	Thibodeau,	Esq.,	Holmes	Legal	Group,	LLC,	Wells,	for	appellant f ather Molly	 Butler	 Bailey,	 Esq.,	 Strike,	 Gonzales	 &	 Butler	 Bailey,	 Portland,	 for appellant m other 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 F OR C LERK R EFERENCE O NLY