MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	66

Docket: Cum-16-286

Submitted

On	Briefs: January	19,	2017

Decided: April	6,	2017

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

IN	RE	CALEB	M.	et	al.

SAUFLEY,	C.J.

[¶1]	 More	than	two and	a	half years	after Caleb	M.	and	Ayden	R.	were	

first	 removed	 from their mother’s	 care	 because	 of	 her substance	 abuse	 and	

consequent	 neglect,	 the	 mother’s	 parental	 rights	 to	 the	 children	 were	

terminated	 by	 a	 judgment	 of	 the	 District	 Court	 (Portland,	 Eggert,	 J.).	 The	

mother	 appeals,	 arguing	 that the	 court	 did	 not	 independently	 exercise its	

judicial	function,	that	the	court improperly	relied on	the	reports	of a	guardian	

ad	 litem	 (GAL),	 and	 that	 the	 evidence	 was	 insufficient	 to	 support	 the	

termination	of	her	parental	rights.		We	affirm	the	judgment.

I.		BACKGROUND

[¶2]	 	 On November	 7,	 2013,	 the	 Department	 sought	 child	 protection	

orders	on	behalf	of	Caleb	M.	and	Ayden	R.	due	to	allegations	of	neglect	caused
2

by	the	mother’s	substance	abuse.1 By	agreement,	on	March	3,	2014,	the	court	

(Goranites,	J.)	made	a	finding	of	jeopardy against	the	mother	as	to	each	child,

based	on	the	mother’s	exposure	of	the	children	to	drug	use,	criminal	activity,	

and	 unsafe	 individuals;	 and	 her	 lack	 of appropriate	 housing.	 While	 these	

proceedings	 were	 pending,	 the	 mother	 gave	 birth	 to	 a	 daughter	 who is	 the	

subject	of	a	separate	child	protection	proceeding.		

[¶3]	 Judicial	 reviews	 were	 held	 on	 March 3 and	 September	 3,	 2014;

March	3 and September	9,	2015; and	March	8,	2016,	and	orders	were	entered	

by	agreement after	each	of	these	reviews.	 Reports	of	a	GAL were	admitted	in	

evidence	at	each	of	the	judicial	reviews.	 The	September	9,	2015,	and	March	8,	

2016,	judicial	reviews	were	presided	over	by	the	same	judge	(Eggert,	J.)	who

ultimately	presided	over	the	termination	hearing.		

[¶4]		On	December	14,	2015,	the	Department	filed	a	petition	to	terminate	

the	 mother’s	 parental	 rights	 to	 Caleb,	 and	 on	 February	 18,	 2016,	 the	

Department	filed	a	petition	to	terminate	her	parental	rights	to	Ayden.	 In	both	

petitions,	 the	 Department	 alleged	 that	 the	 mother	 had	 inconsistently	

participated	in	mental	health	and	substance	abuse	services,	and	had	continued	

 1		At	the	time	the	Department	filed	its	petition,	the	children	had	been	placed	with	their	maternal	

aunt	since	September	2013, pursuant	to	a	safety	plan.
3

to	permit	unsafe	individuals,	including	the	three	fathers	of	her	children,	to	be	

present	around	the	children.

[¶5]		The	court	conducted	a	hearing	on	the	petitions	on	May 12	and	16,	

2016,	during	which	the	court	heard	testimony	from	the	mother,	the	mother’s	

and	 the	 children’s	 providers,	Department caseworkers,	 and	 the	 GAL.	 At	 the	

conclusion	 of	 the	 hearing,	 the	 court	 sought	 proposed	 orders	 from	 both	 the	

mother	and	the	Department.		In	a	judgment	entered	on	June	2,	2016,	in	which	

the	 court	 largely	 adopted	 the	 Department’s	 proposed	 order,	 the	 court	

terminated	 the	mother’s	parental	rights	 to	both	children.

2 In	a	 footnote,	 the	

court	 noted that	it	 had	 used	 the Department’s	 proposed	 order	 “extensively”	

because	 “the	 Department’s	 proposed	 findings	 align	 quite	 closely	 with	 the	

court’s	view	of	the	evidence.”

[¶6]		In	its	judgment,	the	court	made the	following	supported	findings	by	

clear	and	convincing	evidence.	 See In	re	Hannah	S.,	2016	ME	32,	¶ 3,	133	A.3d	

590.		The	mother	has	had a	substance abuse	problem for	several	years.	 She	

participated	 in	 various	 treatment	 programs	 including	 outpatient,	 intensive	

outpatient,	 and	 residential	 programs.	 	Her	 compliance	 with	 these	 treatment	

 2		The	fathers’	parental	rights	were	terminated	by	judgments	entered	on	May	26,	2016.	 Neither	

father	appealed	the	termination of	his	parental	rights.
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programs	was inconsistent,	and	she	was	discharged	from	one	program	for	her	

failure to	 make	 progress.	 	 Needles	 were	 found	 in	 her	 room	 at	 one	 of	 the	

treatment	programs.		

[¶7]	 	The	mother relapsed	 on	 several	 occasions,	and	 recent	 drug	 tests	

performed	by	her	doctor	showed elevated	levels	of	her	prescribed	medications	

and	 indications	 that	 she	 was	 also	 using	 nonprescribed	 medications.	 In	

December	 2015,	 the	 mother	 admitted	 that	 she overused	 her	 prescribed	

Suboxone.	 Only	 two	 months	 before	 her	 parental	 rights	 were	 terminated,	 a	

Department	caseworker	found	needles	in	her	bedside	table.		

[¶8]		The	mother	permitted	several	“unsafe	men”	to	be	present	with	the	

children.	 	In	 early	 2016,	 a	Department	 caseworker	making	 an	 unannounced	

visit	to	the	mother’s	home	discovered	Ayden’s	father	hiding	in	a	closet	despite	

the	mother’s	 denial	 that	 he	was	 there.	 Ayden’s	 father	was	 then	arrested	 on	

outstanding	warrants. In	April	2016,	a	caseworker	visiting	the	mother’s	home	

noticed	her	infant daughter’s	father	leaving.	 When	the	caseworker	asked	the	

mother	 about	 needles	 that	 were	 found	 in	 a	 nightstand,	 she	 blamed	 the	

daughter’s	father	and	his friend.		

[¶9]		Caleb	was	afraid	 of	 returning	 to	live	with	his mother	because	he	

worried that	he	would	be	the	one	who	would	have	had	to	care	for	Ayden	and	
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their sister.	 	He	 worried about	 having	 enough	 food to	 eat,	 and	 he	 regularly	

checked the	cupboards	in	his foster	home	to	see	that	there	was	enough	food.	

Caleb	has	been	diagnosed	with autism	spectrum disorder,	and	is	on	the	waiting	

list	 for	more	intensive	in-home	support,	as	well	as	 trauma-focused	cognitive

behavioral	 therapy.	 Caleb’s	 therapist believes	 that	 returning	 Caleb	 to	 his	

mother’s care	would	“re-traumatize”	him.		

[¶10]		The	mother	did	not consistently	attend visits	with	her	children.	

The	 visit	 supervisor	 testified	 that	 Caleb	 seemed	 to	 “r[u]n	 the	 show” during	

visits	with	the	mother. When	the	mother	misses	visits	with	Caleb,	he	becomes	

very	upset.	 The	Department	intends	to	seek	an	adoptive	placement	for	Caleb.		

[¶11]		Ayden	has	been	diagnosed	with	ADHD.	 In	his	foster	placement,	

Ayden	thrived on	structure	and	routine.	 In	late	2015,	the	mother	was	given	the	

opportunity	 to	have	Ayden	with	her	again.	 He was	returned	 to	his	mother’s	

care	in a	trial	placement	but	had	to	be	removed	again	in	early	2016.		

[¶12]		Supporting	the	decision	to	remove	Ayden,	the	GAL	testified	that	

during	the	trial	placement,	Ayden’s “level	of	care	suffered	enormously	when	he	

was	with	his	mother.”	 According	 to	 the	GAL,	he	was	“falling	asleep	in	class,”

“behind	academically,”	and	“hungry.” “His	mother	was	not	picking	. . . him	up	
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reliably,” and	“he	was	having	hygiene	issues.”		The	Department	plans	to	seek	an	

adoptive	placement	for	Ayden.		

[¶13]	 	The	 court	 ultimately	 found	 that,	despite	 the	mother’s	 access	 to	

services	for	more	than	two	years,	the	mother	could	not rebut	the	presumption	

of	unfitness	that	arose	because	of	her	chronic	substance	abuse.	 See 22	M.R.S.	

§ 4055(1-A)(C)	(2016).	 At	the	time	of	the	hearing,	the	mother	was	unable	to	

care	 for	 the	children, and	 she	may	never	be	able	 to	do	 so.	 Caleb	and	Ayden	

“need permanency”	 after	 having	 lived	 in	 a	 state	 of	 “limbo”	 for	 nearly	 three	

years.	 Both	children	“deserve	the	permanency	of	adoption.”	 The	court	found	

that	 adoption	 is	 in	 the	 best	 interest	 of	 each	 child.	 See 22	 M.R.S.	

§ 4055(1)(B)(2)(a)	(2016).		The	mother	timely	appealed.		See	22	M.R.S.	§ 4006	

(2016);	M.R.	App.	P.	2(b)(3).

II.		DISCUSSION

[¶14]		The	mother	contends	on	appeal	that	the	court	failed	to	exercise	its	

independent	 judgment	 in	 terminating	 her	 parental	 rights and erred	 in	

considering	GAL	reports,	and	that	the	evidence	was	insufficient	to	support	the	

court’s	decision	to	terminate	her	parental	rights.
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A. Trial Court’s	Independent	Judgment

[¶15]	 	 The	 mother	 first	 argues	 that	 the	 court	 did	 not	 exercise	 its	

independent	 judgment	 in	terminating	 her	 parental	 rights	 because	 the	 court

adopted	the	Department’s	proposed	order	with	minimal	changes.	 We	note	that	

the	mother	 failed	 to	 file	a	motion	 for	 further	 findings	 or	 for	 reconsideration	

before	 raising	 this	issue	in	 her	appeal.	 As	we	 have	 recently	 noted,	 “appeals	

challenging	orders	based	upon	an	alleged	lack	of	independent	judgment	by	a	

judge	should	be	preceded	by	an	appropriate	motion	that	identifies	the	issue	and	

allows	 the	 trial	 judge	 an	 opportunity	 to	 address	 those	 concerns	 prior	 to	

appellate	review.”		Yap	v.	Vinton,	2016	ME	58,	¶	9	n.1,	137	A.3d	194.		We	now	

clarify	 the	 importance	 of	 such	 a	 motion in	 the	 context	 of	 a	 child	 protection	

proceeding.	 	In	 order	 to	 avoid	 the	 delay	inherent	in	 a	later	 challenge	 to	 the	

court’s	order	that	could have	been	expeditiously	addressed	by	the	trial	court,	

we	 will	 no longer entertain	 a	 challenge	 to	 the	 trial	 court’s	 independent	

judgment based	on	the	court’s	adoption	of	a	party’s	proposed	order, absent	a	
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parent’s	motion	for	further	or	clarified	findings	pursuant	to	Maine	Rule	of	Civil	

Procedure	52(b).3

[¶16]		Because	we	have	not	previously	announced	this	requirement,	we	

proceed	 to	 consider	 the	 merits	 of	 the	 mother’s	 argument.	 	 “In	 reviewing	

whether	 the	 trial	 court	 performed its	 judicial	 function,	 we	 must	 determine	

whether	 the	 findings	 adequately	indicate	 the	 factual	 basis	[for] the	 ultimate	

conclusion.”		In	re	Sabrina	M.,	460	A.2d	1009,	1013	(Me.	1983).		“If	the	proposed	

findings	are	argumentative	or	insufficiently	objective	because	they	are	drafted	

by	a	party,	a	judgment	adopting	 those	 findings	may	be	defective.”		In	re	C.P.,	

2016	ME	18,	¶ 19,	132	A.3d	174.

[¶17]		Although	“a	verbatim	adoption	of	findings proposed	by	one	party	

. . .	is	disfavored,	as	such	an	approach	suggests	that	the	court	has	not	applied its	

independent	judgment	in	making	its	 findings	and	conclusions,”	draft	 findings	

proposed	by	either	side can	aid	the	court’s	fact-finding.		In	re	Marpheen	C.,	2002	

ME	170,	¶	7,	812	A.2d	972.		“[W]hen	draft	orders	are	adopted	without	change	

or	with	little	material	change,”	and	the	court’s findings	have	not	changed	as	a	

 3 Such	a	motion	terminates	the	running	of the	time	for	filing	an	appeal,	with	the	time	for	appeal	

then	commencing	to	run	from	the	entry	of	the	ruling	on	that	motion.	 M.R.	App. P.	2(b)(3).		Therefore,	

the	 Rule	 52(b)	motion	 should	 not be	 accompanied	 by	 a	 notice	 of	 appeal	 and	 should	 be	 acted	 on	

expeditiously.
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result	 of a	properly	 filed	motion	 for	 further	 or	clarified	 findings	pursuant	 to	

Rule	52(b),	the	key	question	for	our	review “will	be	whether	the	findings	and	

order	reflect	the	application	of	judgment	by	the	court	and	not	simply	one	of	the	

parties.”		See	Yap,	2016	ME	58,	¶	10,	137	A.3d	194.

[¶18]		It	is	evident	that	the	court’s	judgment in	this	matter resulted	from

the	court’s	careful	application	of	its own	independent	judgment.		The	judgment	

is	 not	 a	 verbatim	 adoption	 of	 the	 Department’s	 proposed	 order.	 	 The	 court	

specifically	 acknowledged	 that	 it	 made	 extensive	 use	 of	 the	 proposed	 order

because	it	 articulated the	 court’s	 view	 of	 the	 case.	 Further,	 the	 court	made	

substantive	additions	to	five paragraphs	and made	other	changes to	reflect	that	

the	court	did	not	believe	parts	of	the	mother’s	testimony.	 The	court’s	judgment	

was	the	product	of	 the	proper	exercise	of	its	judicial	 function	and	it	was	not	

defective.		See	id.;	In	re	Marpheen	C.,	2002	ME	170,	¶¶ 7-8,	812	A.2d	972.

B. GAL	Reports

[¶19]		The	mother	next	argues	that	her due	process	rights	were	violated	

when	the	court	took	judicial	notice	of	all	of	the	GAL	reports	in	the	court’s	file	

and	then	relied	on	those	reports	in	its	judgment.		Specifically,	she	contends	that	

the	 reports	 were	 largely	 hearsay	 and	 that	 she	 had	 no	 opportunity	 for	

cross-examination	or	rebuttal	of	 the	information	in	 the	reports.	 The	mother	
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further	 asserts	 that	 the	 court	 made	 six	 factual	 findings	 that	 were clearly	

erroneous	because	they	were	supported	only	by	GAL	reports	 that	she	insists	

the	court	was	not	permitted	to	consider.		

1. Admission	in	Evidence

[¶20]		The	admission	of	GAL	reports	in	evidence	is	specifically	authorized	

by	statute.		22	M.R.S.	§	4005(1)(D) (2016);	see	also	M.R.	Evid.	802 (providing	

that hearsay	is	not	inadmissible	if	a	statute	provides	for	its	admissibility);	In	re	

Chelsea	C.,	2005	ME	105,	¶	10,	884	A.2d	97	(“[T]here	is	no	question	 that	 the	

Legislature	may	authorize	court	consideration	of	the	contents	of	guardian	ad	

litem	reports	as	an	exception	to	the	hearsay	rule.”). Thus,	the	admission	of	GAL	

reports	 at	 earlier	 stages	 in	 the	 proceedings	 comported	 with	 the	 law and	

allowed	the	court, at each	stage, to	rely	on	the	report to	the	extent	it	deemed	

appropriate	in	light	 of all	 of	 the	evidence	presented	 or	the	agreement	 of	 the	

parties.		See	In	re	Chelsea C.,	2005	ME	105,	¶	16,	884	A.2d	97.

[¶21]	 	Nor	 did	 the	 admission of	 those	 reports	 at	 the	 judicial	 reviews	

violate	the	mother’s	due	process	rights.		“[D]ue	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.”	 	Id. Judicial	 reviews	 provide	 an	 opportunity	 for	 an	 evidentiary	
11

hearing.		22	M.R.S.	§	4038(5) (2016). At those	reviews,	the	mother	had	notice	

of	the	hearing,	court-appointed	counsel,	and	an	opportunity	to	challenge	any	

evidence	offered	through	the	GAL	report	or	otherwise.

[¶22]		The	mother	agreed	to	the	orders	entered at	the	judicial	reviews,	

all	of which	stated	that	the	GAL	reports	were	admitted	in	evidence,	and	there	is	

no	indication	that	she was	denied	the	opportunity	for	a	hearing that	provided

each	of	the	essentials	of	due	process.		See	In	re	Chelsea	C.,	2005	ME	105,	¶	16,	

884	A.2d	97.

2. Termination	Court’s	Consideration	of	GAL	Reports

[¶23]	 	 The	 remaining	 question	 is	 whether	 the	 court	 that	 held	 the	

termination	 hearing	 could	 consider	 evidence	 contained	 only	 in	 previously	

admitted	GAL reports.		When a	GAL report	was admitted	in	evidence in	a	prior	

stage	of	the	proceeding,the	court conducting	a	hearing	on	a	later	judicial	review	

or	 termination	 petition	 can	 consider	 and	 rely	 on	 that	 report	 only	 if	 it	 was	

admitted	by	the	same	judge in	the	earlier	proceeding.		See	In re	Scott	S.,	2001	

ME	114,	¶	12,	775	A.2d	1144.		“The	authority	of	the	trial	judge	to	take	judicial	

notice	of	matters	of	record	is	distinct	 from	 the	authority	of	a	single	judge	 to	

consider	evidence	presented in	a	previous	stage	of	a	child	protective	proceeding	

when	that	evidence	was	presented	to	the	same	trial	judge.”		Id.		“When	the	trial	
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judge	 has	 actually	 heard	 the	 evidence	 presented	 in	 prior	 stages	 of	 a	 child	

protection	proceeding,	that	judge	may	consider the	evidence	in	the	 following	

stages	because	 the	process	is,	in	 fact,	a	unified	proceeding.”		Id.;	 cf.	 Cabral	v.	

L’Heureux,	2017	ME	50,	¶¶ 10-11 &	n.3,	--- A.3d	--- (in	non-unified proceedings,	

different	rules	apply). “When	a	different	trial	judge	presides	at	a	later	stage	of	

the	process,	that	trial	judge	may	not	rely	on	the	evidence presented	to	the	prior	

judge	.	.	.	.”		In	re	Scott	S.,	2001	ME	114,	¶	12,	775	A.2d	1144.		The	trial	judge	at

the	termination	proceeding	may,	however,	take	judicial	notice	of	the	existence	

of	prior	orders and	judgments	and	the	actions	taken	by the	court.		See	M.R.	Evid.	

201;	Cabral,	2017	ME	50,	¶	11,	--- A.3d	---;	see also United	States	v.	Jones,	29	F.3d	

1549,	1553	(11th	Cir.	1994).

[¶24]		In	this matter,	the	court	did	not	explicitly	admit	any	of	the	GAL’s	

prior	reports	in	evidence	during the	termination	hearing. Thus,	the	only	prior	

reports	available	for the	court’s	potential	consideration	were those	that	were	

admitted	in	prior	proceedings	held by	the	same	judge	who presided	over	the	

termination	 hearing.	 	 See	In	 re	 Scott	 S.,	 2001	 ME	 114,	¶	 12,	 775	 A.2d	 1144.		

Specifically,	the	termination	court	could	consider	only	those GAL	reports	that	

had	been admitted	during	the	September	9,	2015,	and	March	8,	2016,	judicial	

reviews that	the	same	judge	had	held, along	with	the	GAL’s	report	prepared	for	
13

the	termination	proceeding.

4 Consequently,	of	the	six	factual	findings	that	the	

mother	challenges,	four were	not	supported	by	the	record because	they	were	

supported	 only	 within GAL	 reports	 that	 this	 particular	 judge could	 not	

consider.

5		See	Guardianship	of	Hailey	M., 2016	ME	80,	¶	15,	140	A.3d	478	(“A	

finding	 of	 fact	 is	 clearly	 erroneous	 if	 there	 is	 no	 competent	 evidence	 in	 the	

record	to	support	it .	.	.	.”).

[¶25]		We are	not,	however,	required	to	vacate	the	trial	court’s	judgment	

if	the	court’s	factual	errors	are	harmless.		See	M.R.	Civ.	P.	61. “In	the	context	of	

a	termination	of	parental	rights	proceeding,	a	preserved	error	is	harmless	if	it	

is	highly	probable	that	the	error	did	not	prejudice	the	parents	or	contribute	to	

the	result	in	 the	case.”		In	re	M.S.,	2014	ME	54,	¶	12,	90	A.3d	443	(quotation	

marks	omitted).

[¶26]	 	 Here,	 none	 of	 the	 unsupported findings	 were	 important	 in	 the	

court’s	findings	regarding	the	mother’s	substance	abuse	or	the	best	interest of	

each	 child—the	 grounds	 for	 the	 court’s	 determination	 to	 terminate	 her	

 4	 	 The	 court	 did	 admit	 the	 GAL’s	 most	 recent	 report	 for	 each	 child,	 both	 dated	 May	 2,	 2016.		

Evidence	supporting	the	challenged	findings	was	not	contained	in	either	of	those	reports.		

5	 	 Specifically, the	 evidence	 that	 could	 be	 considered	 by	 the	 court	 cannot	 support	 the	 court’s	

findings	that	the	mother	never	had	a	case	manager	for	housing	support,	the	Department	“lost	touch”	

with	the	mother for	a	period	of	time,	the	mother	explained	the	presence	of a	bottle	of	urine	in	her	

room	at	one	of	the	treatment	programs	by	asserting	that she	had	been	“too	lazy”	to	get	up	and	use	

the	bathroom,	and	the	mother	never participated	in	mental	health	treatment.
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parental	rights.		As	we	discuss	below,	there	was	ample	competent	evidence	for	

the	court	to	have	found,	by	clear	and	convincing	evidence,	that	the	presumption	

of	unfitness	applied	and	that	termination	was	in	the	best	interest	of	each	child.		

Thus,	it	was	highly	probable	that the	erroneous	findings	did	not	prejudice	the	

mother	 or	 contribute	 to	 the	 court’s	 ultimate	 determination,	 and	 the	 court’s	

mistaken	 reliance	 on	 certain	 GAL	 reports	 was	 harmless	 error.	 	 See	 id.		

Accordingly,	we	turn	to	the	sufficiency	of	the	evidence	supporting	the	court’s	

judgment.	 	 In	 reviewing	 the	 mother’s	 challenge	 to	 the	 sufficiency	 of	 the	

evidence,	we	disregard	the	court’s	unsupported findings.

C. Sufficiency	of	the	Evidence

[¶27]	 Before a	court	may	terminate	a	parent’s	parental	rights,	the	court	

must	 find,	“by	clear	and	convincing	evidence,	at	least	one	ground	of	parental	

unfitness	.	.	.	and	that	termination	is	in	the	child’s	best	interest.”		In	re	C.P.,	2016	

ME	18,	¶ 30,	132	A.3d	174;	see	also 22	M.R.S.	§ 4055(1)(B)(2)(2016).		“Evidence	

is	clear	and	convincing	when	the	court	could	reasonably	have	been	persuaded	

that	the	required	factual	findings	were	proved	to	be	highly	probable.”		In	re	C.P.,	

2016	ME	18,	¶	30,	132	A.3d	174 (quotation	marks	omitted).		“The	weight	and

credibility	of	the	testimony	and	other	evidence,	including	GAL	reports,	is	for	the	

fact-finder’s	determination.”	 In	re	Cameron	B.,	2017	ME	18,	¶ 10,	--- A.3d	---.
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1. Unfitness

[¶28] The trial	court	may	presume	that	a	parent	is	unfit	when

[t]he	 child	 has	 been	 placed	 in	 the	 legal	 custody	 or	 care	 of	 the	

department,	 the	 parent	 has	 a	 chronic	 substance	 abuse	 problem,	

and	the	parent’s	prognosis	indicates	that	the	child	will	not	be	able	

to	return	to	the	custody	of	the	parent	within	a	reasonable	period	of	

time,	 considering	 the	 child’s	 age	 and	 the	 need	 for	 a	 permanent	

home.	 The	fact	that	a	parent	has	been	unable	to	provide	safe	care	

of	 a	 child	 for	 a	 period	 of	 9	 months	 due	 to	 substance	 abuse	

constitutes	a	chronic	substance	abuse	problem.

22	M.R.S.	§	4055(1-A)(C);	see	also	22	M.R.S.	§	4055(1)(B)(2)(b)(i).		The	mother	

contends	that	the	statute	defines “chronic	substance	abuse	problem” to	mean	

that “a	parent	has	been unable	 to	provide	safe	care	of	a	child	 for	a	period	of	

9 months	due	 to	substance	abuse.”	 Accordingly,	 the	mother	argues,	because	

she	cared	for	her	daughter	after	the	daughter	was	born,	and	because	Ayden	was	

placed	with	her	on	a	trial	basis until January	2016,	she	does	not	have	a	chronic	

substance	abuse	problem	within	the	meaning	of	the	statute,	and	therefore	the	

court	 erred	 in	 applying	 the	 presumption	 of	 unfitness	 provided	 by	 22	 M.R.S.	

§ 4055(1-A)(C). We	 review	 the	 interpretation	 of	 a	 statute	 de	 novo.	 	 In	 re	

Jacob C.,	2009	ME	10,	¶	9,	965	A.2d	47.		“When	a	statute	is	not	ambiguous,	its	

plain	meaning	will	govern.”		Id.

[¶29]	 	 Contrary to	 the	 mother’s	 contention,	 the	 plain	 meaning	 of	 the	

statutory	language	 that	a	parent’s	inability	 to	provide	safe	care	of	a	child	 for	
16

nine	months	“constitutes”	a	chronic	substance	abuse	problem	does	not	mean	

that	 a “chronic	 substance	 abuse	 problem”	 is	 limited	 to	 only	 those	

circumstances.

[¶30]	 	 It	 is	 imperative,	 however,	 that	 we	 not	 use	 the	 broad	 brush	 of	

“chronic	substance	abuse”	to	enable	the	continued	separation	of children	from	

their	parents	when	the	children’s	health	and	safety	do	not	require	it.		In	a	time	

when	 far	 too	many	young	parents	struggle	with	drug	and	alcohol	addictions,	

every	effort	must	 be	made	 to	 help	 those	parents	 find	 sobriety	and	 return	 to	

their	parental	roles.		To	do	otherwise	risks	the	separation	of	children	from	their	

birth	 families when	 it	 could	 have	 been	 avoided.	 	 Thus,	 a trial	 court	 must

carefully	consider	whether	the	substance	abuse	of	the	parent	is	truly	“chronic.”

[¶31]	 Sadly for	 the	children in	 the	matter	 before	 us,	 there	was	ample

competent	 evidence	 for	 the	 court	 to	 have	 found,	 by	 clear and	 convincing	

evidence,	that	the	mother has	engaged	in chronic substance	abuse;	that	she	has	

been	provided	many	services,	including	multiple	opportunities	to	work	toward	

recovery	and	sobriety; that	she	was	even	provided	a	trial	placement	of	Ayden	

and	could	not	keep	him	safe; and	that	Caleb	and	Ayden	will	not	be	able	to	be	

returned	to	her	custody	within	a	reasonable	time.		
17

[¶32]		The mother’s	substance	abuse	made	her	unable	to	care	for	Caleb	

and	Ayden	for	a	period	that	far	exceeds nine	months.		At	the	time	of	the final	

hearing	in	 this	matter,	Caleb	 and	 Ayden	 had	 been	in	 the	Department’s	legal	

custody	for	more	than	two	years, during	which time she	made	little	progress	in	

recovering	from	her	addiction. Despite	opportunities,	she	remained	unable	to	

provide	 safe	 care	 for	 her	 children,	 as	 demonstrated	 by	 the	 removal	 of	 her	

daughter	 from	 her care,	 and	 the	 removal	 of Ayden from	 her	 care—for	 the	

second	 time—following the	trial	placement. The	court	did	not	err	in	 finding	

that	the	presumption	of	unfitness	applied	and	that	the	mother	failed	to	rebut	it.

2. Best	Interest	of	Each	Child

[¶33]	 	 The	 mother	 further	 asserts	 that	 the	 court	 erred	 or	 abused	 its	

discretion	in	determining	that	the	termination	of	her	parental	rights	was	in	the	

best	interest	of	 each	 child.

6 We	 review	 the	 court’s	factual	 findings for	 clear	

error	and	its	ultimate	conclusion	regarding	the	best	interest	determination	“for	

an	 abuse	 of	 discretion,	 viewing	 the	 facts,	 and	 the	 weight	 to	 be	 given	 them,	

 6		The	mother	argues,	citing	our	opinion	in	In	re	Thomas	H.,	2005	ME	123,	¶	32,	889	A.2d	297,	that	

the	court	was	required	to	find	a	“compelling	reason”	to	terminate	her	parental	rights	because	Caleb	

and	Ayden	were	doing	well	in	foster	care	and	there	were	no	identified	adoptive	placements.		Contrary	

to	the	mother’s	argument,	in	In	re	Thomas	H.,	we	held	that	the	court	was	required	to	find	a	compelling	

reason	not to	terminate	parental	rights	when	the	children	would	be	“consigned	to	the	instability	and	

impermanence	of	long-term	foster	care.”		Id. ¶	35.		The	court	was	not	required	to	find	a	compelling	

reason	to	terminate	the	mother’s	parental	rights	in	this	matter.		See	id.
18

through	 the	 trial	 court’s	 lens.”	 	In	 re	 M.B.,	 2013	 ME	 46,	 ¶ 37,	 65	 A.3d	 1260	

(quotation	marks	omitted).		“The	District	Court’s	judgment	on	the	issue	of	best	

interest	is	entitled	to	substantial	deference	because	that	court	is	able	to	directly	

evaluate	the	testimony	of	the	witnesses.”		In	re	Michaela	C.,	2002	ME	159,	¶ 27,	

809	A.2d	1245.

[¶34]	 	Here,	Caleb	 and	 Ayden	were	 first	 removed	 from	 their	mother’s	

care	nearly three	years	before	the	hearing and	had	been	in	the	Department’s	

custody	for	more	than	two	years. During	that	time,	the	mother	had	made	no	

substantial	 progress	in	 recovering	 from	 her	 addiction,	 and	 she	 continued	 to	

allow	unsafe	individuals	to	be	around	her	children. The	court	found that Caleb	

and	Ayden	need the	permanency	of	adoption	and, because	of	their	young	ages

and the	length of	time	they	have already	spent	in	foster	care,	they	cannot	wait	

any	longer	 for	 their	mother	 to	be	 able	 to	 care	 for	 them.	 	These	 findings	 are	

supported	by	the	evidence	in	the	record.		The	court	did	not	commit	clear	error

or	abuse	its	discretion	in	determining	that	termination	was	in	each	child’s	best	

interest.		See	In	re	M.B.,	2013	ME	46,	¶	37,	65	A.3d	1260.

The	entry	is:

Judgment	affirmed.	
19

Virginia	Lee	Holt,	Esq.,	Holt	Family	Law,	Saco,	for	appellant	mother

Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	

the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	

Services

Portland	District	Court	docket	numbers PC-2013-99	and	-100

FOR	CLERK	REFERENCE	ONLY