MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME 80

Docket: Ken-19-517

Submitted

On	Briefs: May	28,	2020

Decided: June	4,	2020

Panel: GORMAN,	JABAR,	HUMPHREY, HORTON, and CONNORS,	JJ.

IN	RE	CHILDREN	OF	BRANDON	D.

PER	CURIAM

[¶1]	Brandon	D. and	the	mother	appeal	from	separate	judgments entered	

by the	District	Court	(Augusta,	Nale,	J.)	terminating	their parental	rights	to	the

children.	 	 The	 mother,	 whose	 parental	 rights	 were	 terminated	 pursuant	 to

22 M.R.S	§	4055(1)(A)(1)(a) and (B)(1) (2020),	argues	that	the	court	erred	in	

finding	 that	 her	 consent	 to	 the	 termination	 was	 made	 knowingly	 and	

voluntarily.	 	The	 father,	 whose	 parental	 rights	 were	 terminated	 pursuant	 to	

22 M.R.S.	 § 4055(1)(B)(2)(a) and (b)(i)-(ii) (2020), argues	 that	 there	 is	

insufficient	evidence	in	the	record	to	support	the	court’s	findings	of	at	least	one	

ground	of	parental	unfitness	and	that	termination	was	in	the	best	interests	of	

the	children.	 We	affirm	the	judgments.

I.		BACKGROUND

[¶2]		On	April	25,	2018,	the	Department	of	Health	and	Human	Services	

filed	a	petition	for	a	child	protection	order	regarding	the	older	child,	alleging	
2

that	the	parents	were	unable	to	manage	their	substance	abuse	issues	and	that,	

as	 a	 result,	 the	 child	 was	 exposed	 to	 unsafe	 conditions	 and	 neglect.1	 	 See

22 M.R.S.	 §	 4032 (2020).	 	 At	 the	 time	 the	 petition	 was	 filed,	 the	 father	 was	

incarcerated.	 	 Two	 days	 later,	 the	 court	 (Fowle, J.)	 entered	 an	 order	 of	

preliminary	protection	and	placed	the	child	in	the	custody	of	the	Department.		

See 22	M.R.S.	§	4034 (2020).		The	parents later	waived	their opportunity	for	a	

summary	preliminary	hearing, after	which	the	court	(Nale,	J.)	entered	an	order	

maintaining the	Department’s	custody	of	 the	child	and	placing	 the	child	with	

the child’s paternal	step-grandmother.		

[¶3]	 	 Following	 the	 birth	 of	 the	 younger	 child,	 the	 Department	 filed	 a

petition	for	a	child	protection	order for	that child	on	May	23,	2018.		On	the same	

day,	the	court	(E.	Walker,	J.)	entered	an	order	of	preliminary	protection.		After	

the	parents	again	waived	their	opportunity	for	a	summary	preliminary	hearing,	

the	court	(Nale,	J.)	placed	the	younger	child	with	the	paternal	step-grandmother	

and	maintained	the	Department’s	custody	of	the	child.		On	August	16,	2018,	the	

court	entered	a	jeopardy	order as	to	both	children	with	the	agreement	of	the	

parents.		See 22	M.R.S.	§	4035 (2020).		The	jeopardy	order	conditionally	placed	

 1		Additionally,	the	petition	sought	to	protect	 the	child	 from	 the	maternal	grandmother	who,	at	

that	time,	was	the	child’s	legal	guardian.		
3

the	older	child	with	 the	maternal	grandmother	and	maintained placement	of	

the	younger	child	with	the	paternal	step-grandmother.		

[¶4]		In	March	2019,	the	father	was	released	from	prison.		On	March	25,	

2019,	he	signed	a	rehabilitation	and	reunification	plan,	agreeing to	attend	the	

children’s	medical	appointments,	secure	and	maintain	an	appropriate	home	for	

the	children	and	himself,	and	complete	a	substance	abuse	evaluation.		

[¶5]		On	May	21,	2019,	the	Department	filed	a	petition	to	terminate	the	

parental	rights of	the	mother	and	the	father.		See 22	M.R.S.	§	4052 (2020).		The	

Department	 alleged that	 the	 mother	 continued	 to	 struggle	 with	 substance	

abuse	issues	and	was	unable	to	secure	an	appropriate	home	for	the	children,	

and	 that father	had	 “just	begun	 to	address	his	longstanding	 substance	abuse	

issues.”		In	August	2019,	 the	mother	 and	 father	were	involved	in	a	domestic	

dispute,	 which	 resulted	 in	 the	 father being incarcerated for	 assaulting	 the	

mother.		The	father	was	released	from	jail	in October 2019.		

[¶6]	 	 The	 court	 held	 a	 hearing	 on	 the	 termination petition	 on	

November 14,	2019.	 At	the	beginning	of	the	hearing,	the	mother	informed	the	

court	 that	 she	 planned to	 consent to	 the	 termination	 of	 her	 parental	 rights

“under	advice	from	my	counsel.”		The	court	asked	the	mother	if	she	“personally	

.	.	.	intended[ed]	to	terminate	[her] parental	rights	in	this	matter.”		The	mother	
4

replied:	“If	it’s	going	 to	help	my	 kids	be	adopted	by	 [the]	Grandmother,	 then	

yeah.”		

[¶7]		The	court	then	informed	the	mother	that	she	would	be	waiving	her	

right	 to	a	 trial if	 she	consented, and	it	explained	 the	 effects	 of	a	termination

order.		The	mother	stated	that	she	understood.		The	mother	also	assured	the	

court	 that	 she	 was	 not	 under	 the	 influence	 of	 any	 alcohol	 or	 drugs,	 had	 the	

opportunity	to	discuss	her	consent	with	her	attorney,	and	was	not	pressured	or	

threatened	 to	 consent.	 	 The	 court	 then	 had	 the	 following	 exchange	with	 the	

mother:	

THE	 COURT:	 	 You	 understand	 that	 there’s	 no	 guarantee—listen	

very	carefully,	there’s	no guarantee	that	the	children	will	be	placed	

where	 they	 are	 now	 or	 that	 the	 permanency	 plan,	 adoption	 or	

whatever,	will	go	forward?		Something	could	happen	in	the	future	

to	 stop	it	and	 you	cannot	 object	 to	 that	plan.	Do	 you	understand	

that?

MOTHER:		I	do, yeah.

The	court	continued	its	colloquy	with	 the	mother,	again	informing	her	of	 the	

prospective	effects	of	consenting to	the	termination	of	her	parental	rights.		After	

the	 mother	 confirmed	 to	 the	 court	 that	 it	 was	 her	 intent	 to	 consent	 to	 the	
5

termination,	the	mother	signed	the	consent	form	and	the	court	terminated	her	

parental	rights.2		See 22	M.R.S.	§	4055(1)(B)(1).		

[¶8]	 	 Following	 the	 mother’s consent	 to	 termination,	 the	 court	 held a	

contested	hearing	regarding	the	termination	of	the	father’s	parental	rights.	The	

court	concluded	that	the	father	has	been “unable to	take	responsibility	for	the	

children	within	a	time	which	is	reasonably	calculated	to	meet	the	needs	of	the	

children,”	 finding	 that	 the	 father	 had	 failed	 to	 take	 part	 in	 substance	 abuse	

counseling	and	had	not found	“safe	housing”	for	himself	and	the	children.		The	

court	also	 found	 that the	children	are	 “being	well	cared	 for”	in	 their	current	

placements and	that the time	that	the father	needs	“to	heal	.	.	.	[and]	to	move	

forward	is	inconsistent	with	the	time	that [the]	children	need.”		

[¶9]		By	judgment	entered	 on	December	23,	2019, the	court	made	 the	

following additional findings	of	fact,	all	of	which	are	supported	by	competent	

evidence	in	the	record.		See In	re	Child	of	Corey	B.,	2020	ME	3,	¶	3,	223	A.3d	462.

[T]he Department	has	made	reasonable	efforts	to	rehabilitate	and	

reunify	the	family	and	has	made	reasonable	efforts	to	identify	and	

pursue	 an	 alternative	 permanency	 plan.	 	 The	 Department	

caseworker	 has	 made	 numerous	 efforts	 to	 engage	 the	 father	 in	

reunification	 services	 .	 .	 .	 documented	 in	 the	 two	 signed	

reunification	 plans.	 	 [T]he	 Department	 caseworker	 held	 at	 least	

two	 Family	 Team	 Meetings	 and	 twice	 traveled	 to	 [a	 correctional	

facility]	 to	 visit	 the	 father	 while	 he	 was	 incarcerated.	 	 [T]he	

 2		The	court	entered	an	order	terminating	the	mother’s	parental	rights	on	December	23,	2019.		
6

Department	caseworker	has	[made]	efforts	to	refer	the	father	for	a	

substance	abuse	evaluation.		To	date,	this	evaluation	has	not	taken	

place. . . . The	expectations	for	the	father were	clearly	outlined	in	

the	reunification	plan	from	March,	25,	2019,	which	was	completed	

after	 the	 father	 was	 released	 from	 incarceration.	 	As	 part	 of	 the	

plan,	the	father	was	required	to	.	.	.	participate	in	a	substance	abuse	

evaluation,	and	participate in	the	Department’s	drug	testing	line.		

.	.	.	.

The	 Court	 finds	 that	 the	 father	 .	 .	 .	 was	 aware	 of	 why	 the	

children	were	removed	 from	 the	parents.		The	 father	agreed	 to	a	

jeopardy	 order	 on	August	[16],	2018,	which	expressly	 stated	 the	

issues	 placing	 the	children	in	circumstances	 of	jeopardy. .	 .	 . The	

father	has	not	complied	with	the	services	in	the	reunification	plan	

dated March 25,	2019.		[The	father]	agreed	to	find	safe	housing	for	

himself	and	his	children	as	part	of	the	reunification	plan.		The	Court	

believes	that	[the	father]	is	searching	for	housing	but	finds	that	the	

father	did	not	exhibit	fervor	or	urgency	in	doing	so.		[The	father]	

spent	 several	months	 after	 his	 release	 	 from	incarceration	living	

with	his	brother	in	a	living	situation	that	was	not	appropriate	for	

children.		[The	father]	recognized	this	fact	but	continued	to	make	

minimal	 efforts	 to	 obtain	 adequate	 housing.	 	 As	 of	 the	 time	 of	

hearing,	[the	father]	had	still	not	obtained	adequate	housing	for	his	

children.	 	 [The	 father]	 has	 not	 participated	 in	 the	 Department’s	

drug	testing	line	and	has	not	obtained	a	substance	abuse	evaluation	

as	agreed	to	in	the	reunification	plan.		Additionally,	[the	father]	has	

only	attended	approximately	two	of	[the	younger	child’s]	medical	

appointments.	.	.	.	This	is	despite	 [the	 younger	child’s]	numerous	

appointments.		

Additionally,	 the	 father	 was	 involved	 in	 a	 domestically	

violent	physical	altercation	with	the	mother	in	August	2019	which	

left	the	mother	injured.		As	a	direct	result	of	his	actions,	[the	father]	

was	 incarcerated	 for	 approximately	 one	 month	 between	

September	2019	and	October	2019.		The	father’s	issues	for	violence	

[have] not	 been	 addressed and	 he	 cannot	 even	 identify	 what	

caused	 the	 argument	 between	 himself	 and	 the	 mother	 in	 the	
7

August	2019	incident.		[The	father]	has	just	started	the	.	.	.	batterer’s	

intervention	 program	 and	 has	 forty-four	 weeks	 left	 to	 complete	

this	program.		During	that	month	that	the	father	was	incarcerated	

again,	visits	with	both	children	were	interrupted	and	[the	father]	

was	 not	 able	 to	 attend	 his	 regular	 medication	 assisted	

treatment. . . .	 [The	 father]	 never requested	 increased	 visits	 with	

the	children	 throughout	 the	lifetime	 of	 this	case. .	 .	 . [T]he	 father	

was	provided	ample	time	in	this	case	to	complete	the	services	that	

was	asked	of	him	by	the	Department.		This	did	not	happen	despite	

the	clear	Rehabilitation	and	Reunification plan	which	specified	the	

services	 that	 the	 father	 needed	 to	 participate	 in	 to	 alleviate	

jeopardy.		

.	.	.	.

.	 .	 .	 .	 In	 this	 case,	 despite	 the	 reasonable	 efforts	 of	 the	

Department,	 the	 father	 did	 not	 rectify	 or	 resolve[]	 the	 problems	

that	prevented	the	return	of	the	child[ren]	to	the	home	and	made	

minimal	 efforts	 to	 engage	 in	 services	 in	 accordance	 with	 the	

rehabilitation	and	reunification	plan.		

.	.	.	.	

.	.	.	.	Both	children	are	in	safe	and	nurturing	placements.		The

[younger	child]	remains	in	the	only	home	he	has	ever	known. .	.	.	

[The	older	child]	has	remained	with	the	maternal	grandmother	for	

over	a	year	since	the	pendency	of	this	case.	

[¶10]		Based	on	these	findings,	the	court	terminated	the	father’s	parental	

rights,	 concluding	 that	 the	 father is	 unable	 to	 protect	 the	 children from	

jeopardy	and	has	been	unable	to	take	responsibility	for	the	children within	a	

time that	is	reasonably	calculated	to	meet	the	children’s	needs.		See 22	M.R.S.	

§ 4055(1)(B)(2)(b)(i)-(ii).	 	The	 court	 also	 concluded	 that termination	 of	 the	
8

father’s	parental	 rights	is in	 the	best	interests	 of	 the	children.		See 22	M.R.S.	

§ 4055(1)(B)(2)(a).		

[¶11]	 	 Both	 parents	 timely appealed.	 See 22	 M.R.S.	 §	 4006 (2020);

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

II.		DISCUSSION

A. The	Mother’s	Consent

[¶12]	 	 The	 mother	 contends	 that	 the	 court	 erred	 in	 finding	 that	 she	

voluntarily	and	knowingly	consented	to	the	termination	of	her	parental	rights,	

arguing	 that the	 court	 did	 not	 ask	 about	 her	 motivations for	 consenting or	

whether	 she	 had	 been	 given	 “sufficient	 time” to	 consider	 her	 consent	 and	

discuss	it with	her	attorney.		We	review	for	clear	error	a	court’s	finding	that	a	

parent	voluntarily	and	knowingly	consented	to	an	order	terminating	parental	

rights.		See	In	re	H.C.,	2013	ME	97,	¶	11,	82	A.3d	80.		

[¶13]		“Before	it	may	 terminate	a	parent’s	rights	pursuant	 to 22	M.R.S.	

§ 4055(1)(B)(1),	the	District	Court	must	find	by	clear	and	convincing	evidence	

that	the	parent	consented	to	the	termination	voluntarily	and	knowingly.”		In	re	

Child	 of	 Rebecca	J.,	2019	ME	 76,	 ¶ 12,	 208	 A.3d	 405.	 To	make	 this	 required	

finding,	“a	court	must,	at	minimum,	(1)	explain	to	the	parent	his	or	her	parental	

rights	and	the	effects	of	his	or	her	decision	thereon,	(2)	inquire	into	the	parent’s	
9

understanding	of	the	effects	of	the	decision,	and	(3)	determine	that	the	parent’s	

decision	 is	 freely	 given.”	 	 Id. (quotation	 marks	 omitted);	 see 22	 M.R.S.	

§ 4055(1)(B)(1).		Section	4055	also	requires	that	a	parent’s	consent	be	“written	

and	. . .	executed	in	court	before	a	judge.”		22	M.R.S.	§ 4055(1)(B)(1).

[¶14]		In	this	case, the	mother	initially	appeared	to	condition	her	consent	

upon	her	children	“be[ing]	adopted	by [the]	grandmother.”		After	the	mother’s	

response,	 however,	 the	 court	 informed	 the	 mother	 of	 her	 right	 to	 a	 trial,	

explained	the	effects	of	a	termination	order,	and	confirmed that	the	mother	had	

previously	 had	 an	 opportunity	 to	 discuss	 her	 consent	 with	 her	 attorney.3		

Further,	the	mother,	after	questioning	by	the	court,	informed	the	court	that	she	

understood	that	there was “no	guarantee	that	the	children	will	be	placed	where	

they	are	now”	if	she	consented,	and	that	she	would	be	unable	to	object	to	any	

future	permanency	plan.		

[¶15]	 	 Therefore,	 based	 on	 the	 court’s	 colloquy	 with	 the	 mother,	 we	

discern	 no	 error	 in	 the	 court’s	 finding	 that	 the	 mother knowingly	 and	

voluntarily	consented	to the	termination	of	her parental	rights.	 See	In	re	Child	

of	Rebecca	J.,	2019	ME		76,	¶¶	14-15,	208	A.3d	405.

 3		The	mother’s	attorney	also	represented	to	the	court	that	she	had	“reviewed	the	[consent]	form”	

with	the	mother	and	“had	read	through	the	language	in	the	form	with	her.”		
10

B. Termination	of	Father’s	Parental	Rights

[¶16]		The	father	argues	that	there	is	insufficient	evidence	in	the	record	

to	support	the	court’s	findings	of	at	least	one	ground	of	parental	unfitness and	

that	termination	was	in	the	best	interests	of	the	children,	arguing	that	he	has	

shown	progress	in	alleviating	jeopardy	and	reunifying	with	the	children.		

[¶17]		To	terminate	the	father’s	parental	rights	without	his consent,	“the	

trial	court	was	required	to	find,	by	clear	and	convincing	evidence,	at	least	one	

ground	of	parental unfitness	and	that	termination	is	in	the	best	interest[s] of	

the	child[ren].”		In	re	Child	of	Amber	D.,	2020	ME	30,	¶	6,	--- A.3d	---;	see 22 M.R.S.	

§ 4055(1)(B)(2).	 	 “We	 review	 the	 court’s	 factual	 findings	 for	 clear	 error	 and	

review	the	court’s	ultimate	conclusion	that	termination	of	parental	rights	is	in	

the	best	interest	of	[each] child	for	an	abuse	of	discretion.”		In	re	Child	of	Megan	

D.,	2019	ME	52,	¶	6,	206	A.3d	899.		

[¶18]		Contrary	to	the	father’s	contention,	there	is	competent evidence	in	

the	record	supporting	the	court’s	findings	of	parental	unfitness.		See 22	M.R.S.	

§ 4055(1)(B)(2)(b)(i)-(ii).	 	 Although	 the	 father	 was	 incarcerated	 at	 the	

beginning	 of	 the	 child	 protection	 proceedings,	 the	 father	 agreed,	 upon	 his	

release,	to	a	rehabilitation	and	reunification	plan	that	required	him	to	complete	

a	substance	abuse	evaluation,	attend	his	children’s	medical	appointments,	and	
11

secure	 an	 appropriate	 home	 for	 himself	 and	 the	 children.	 	The	 court	 found,	

however,	that	the	father	had	failed	to	complete	a	substance	abuse	evaluation	

and	he	was	unable	to	secure	“adequate	housing”	for	himself,	and	these	findings	

were	 supported	by	 testimony	 from	a	Department	caseworker	 and	 the	 father	

himself.		The	court	also	found	that	the	father	was	unfamiliar	with	the	children’s	

medical	 care	 providers	 and	 had	 attended	 only	 two	 of	 the	 younger	 child’s	

medical	 appointments	 since	 March	 2019.	 	 Because	 the	 court’s	 findings	 are	

supported	by	the	record,	the	court	did	not	err	in	finding	that	the	father	is	unable	

to	 protect	 the	 children	 from	 jeopardy	 and	 has	 been	 unable	 to	 take	

responsibility	for	the	children	within a	time	which	is	reasonably	calculated	to	

meet	 their	needs.		See id. § 4055(1)(B)(2)(b)(i)-(ii);	In	re	Children	of	Anthony	

M.,	2018	ME	146,	¶	11,	195	A.3d	1229 (“Marginal	progress	toward	reunification	

and	a	simple	desire	to	remain	[a]	parent[]	is	not	enough	to	ameliorate	jeopardy

. . . .” (quotation	marks	omitted)).		

[¶19]		Further,	we	discern	no	abuse	of	discretion	in	the	court’s	conclusion	

that	termination	of	the	father’s	parental	rights	was	in	the	best	interests	of	the	

children.		“[A]	court	determines	a child’s	best	interest	by	considering	 factors	

including	the	needs	of	the	child,	the	child’s	age,	attachment	to	relevant	persons,	

periods	 of	 attachment	 and	 separation,	 ability	 to	 integrate	 into	 substitute	
12

placement	 or	 back	 into	 [the]	 parent's	 home,	 and	 the	 child's	 physical	 and	

emotional	 needs.”	 	In	 re	 Child	 of	 Sherri	 Y.,	 2019	 ME	 162,	 ¶	 8,	 221	 A.3d	 120

(quotation	marks	omitted);	see 22	M.R.S.	§	4055(2) (2020).		“Also	relevant	to	

the	 best	 interests	 determination	 is	 the	 harm	 the	 children	 may	 suffer	 if	 the	

parent’s	 rights	 are	 not	 terminated,	 as	 well	 as	 the	 children’s	 need	 for	

permanence	and	stability.”		In	re	Children	of	Christopher	S.,	2019	ME	31,	¶	8,	203	

A.3d	 808 (quotation	 marks	 omitted).	 	 Here,	 the	 record	 demonstrates	 that,	

although the	children are	being	“well	cared	for”	in	their	current	placements,	the	

father	is	unable	to	meet	their	current	needs.		See	id. (“[E]ven	though	parental	

unfitness	and	a	child’s	best	interest	are	separate	elements	of	a	termination	case,	

the	court's findings that	bear	on	parental	unfitness	may	also	be	relevant	to	the	

question	of	whether	termination	is	in	the	child’s	best	interest.”).

[¶20]		Therefore,	the	court	did	not	clearly	err	or	abuse	its	discretion	in	

finding	at	least	one	ground	of	parental	unfitness	and	that	termination	was	in	

the	best	interests of	the	children.		See In	re	Child	of	Megan	D.,	2019	ME	52,	¶	8,	

206	A.3d	899.

The	entry	is:

Judgment affirmed.
13

Andrew	Wright,	Esq.,	Brunswick,	for	appellant	father

David	Paris,	Esq.,	Bath,	for	appellant	mother

Aaron	M.	Frey,	Attorney	General,	and	Zack	Paakkonen,	Asst.	Atty.	Gen.,	Office	of	

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

Services

Augusta	District	Court	docket	numbers	PC-2018-25	and	PC-2018-28

FOR	CLERK	REFERENCE	ONLY