MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	5

Docket: Ken-19-262

Argued:	 December	5,	2019

Decided: January	9,	2020

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

ADOPTION BY	STEFAN S.

JABAR,	J.

[¶1]		The	father	of	two	children appeals	from	judgments of	the	Kennebec	

County	 Probate	 Court	 (E.	 Mitchell,	 J.)	 terminating	 his	 parental	 rights	 in	

anticipation	of	adoptions pursuant	to	18-A	M.R.S.	§	9-204(b)	(2018);	22	M.R.S.	

§	4055(1)(A)(2),	(B)(2)(a),	and	(B)(2)(b)(ii)	(2018).1		He	argues	on	appeal	that	

the	record	contains	insufficient	evidence	to	support	the	court’s	findings that	he	

is	an	unfit	parent	and	that	termination of	his	parental	rights	is	in	his	children’s	

best	interests.		See 18-A	M.R.S.	§	9-204(b)	(2018);	22 M.R.S.	§	4055(1)(B)(2).		

He	also	contends	that	the	court	erred	as	a	matter	of	law	by	reaching	these	two	

 1		The	Maine Probate	Code	was	recently	repealed	and	recodified.	 P.L.	2017,	ch.	402.		This	matter	

was	fully	litigated	prior	to	the	effective	date	of	the	recodified	Probate	Code.		Therefore,	all Probate	

Code citations	in	this	opinion	are	to	the repealed 2018	version,	codified	in	Title	18-A	of	the	Maine	

Revised	Statutes. The	relevant	text	is	substantively	unchanged	in	the	new	codification.		See P.L.	2017,	

ch.	402,	§ A-2 (codified	at	18-C	M.R.S.	§§	9-103,	9-204,	9-302	(2019));	P.L.	2019,	ch.	417,	§	A-103	

(establishing	effective	date	of	September	1,	2019).
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findings	in	an	improper	sequence,	 and	by	 failing	 to	 consider	 open	adoptions

that	would	have	left	his	parental	rights	intact.		We	affirm	the	judgments.		

I.		BACKGROUND

[¶2]	 	On	 July	30,	 2018,	 the	mother	and	 stepfather	 of	the	children filed	

petitions	to adopt the	children	the	Kennebec	County	Probate	Court,	seeking	to	

establish	 the	stepfather	as	 the	children’s	legal	 father	pursuant	 to	18-A	M.R.S.	

§ 9-103	 (2018). Soon	 thereafter,	 the	mother	 filed	 petitions to	 terminate	 the	

father’s	parental	rights	pursuant	to	18-A	M.R.S.	§ 9-204	(2018),	thereby	freeing	

the	children	for	adoption	by	the	stepfather.		The	father	was	duly	served	with	

notice	of	the	petitions	to	terminate	his	parental	rights,	to	which	he registered	

his	objection.		The	court	held	a	one-day	hearing	on	the	matter	on	May 22,	2019.

On	 June	 10,	 2019,	 the	 court	 entered	 judgments	 terminating	 the	 father’s	

parental	rights	with	regard	to	the	children. The	father did	not	file	a	motion	for	

further	 findings	 of	 fact	 and	 conclusions	 of	 law,	 M.R.	 Civ.	 P.	 52, or	 any	 other	

post-trial	 motion.	 	 The	 father timely	 appealed	 from	 both	 orders.	 	 M.R.	

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

[¶3]		The	following	facts	are	drawn	from	the	court’s	explicit	findings	and	

the	trial	record.		See Guardianship	of	Ard, 2017	ME	12,	¶	15,	154	A.3d	609	(“In	

the	absence	of	a	motion	for	findings	of	fact,	see	M.R.	Civ.	P.	52(a),	we	assume	
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that	the	court	found	all	of	the	facts	needed	to	support	its	decision	if	those	facts	

are	supported	by	competent	evidence.” (quotation	marks	omitted)).		The	older	

child was	 born	 in	 2006	 and	 is	 developmentally	 disabled.	 He	 attends	 public	

school,	 where	 he	 receives	 intensive	 special	 education	 services	 as	 part	 of	 an	

Individualized Education	Program (IEP).		The	younger	child was	born	in	2009	

and	also	has	been	diagnosed	with genetic	and	behavioral	disorders.		He attends	

a	 public	 school	 where	 his	 education	 is	 directed	 by	 an	 IEP	 and	 he	 receives	

one-on-one	 supervision	 at	 all	 times	 during	 the	 school	 day.	 	 He exhibits	

aggressive	behaviors	and	is	sometimes	violent.		

[¶4]		The	mother	and	father	divorced	in	2012,	and	a	parental	rights	and	

responsibilities	 order	 was	 issued	 in	 conjunction	 with	 the	 divorce,	 awarding	

primary	residence	to	the	mother	and	contact rights	to	the	father. In	practice,	

the	 amount	 of	 time	 that	 each	 child	 spent	 with	 the	 father varied	 over	 time.		

Beginning	in 2015,	 the	 father’s	 contact with	 the	 children	 declined	 gradually.		

The	 father	 has	 not	 seen	 the	 children	 since	 July	 2016,	 and	 has	 had	 no	

communication	with	the	children	since	May	2018. This	lack	of	contact	is	at	least	

partially	 the	 result	 of	 the	 mother’s	 conduct—the	 court	 found	 that	 she	

“wrongfully	made	it	difficult	for [the	father]	to	contact	her.”		Since	at	least	2015,	

the	 children	 have	 resided	 primarily	 with	 the	 mother	 and	 stepfather.	 	 The	
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stepfather	is	consistently	involved	in	caring	for	the	children	and	interacts	on	a	

daily	basis	with	their	educational	and	medical	providers.		

[¶5]		The	two	orders	issued	by	the	court	are	mirror	images	of	one	another	

except	 for	 the	 relevant	 child’s	 name.	 	 The	 court	made	 the	 following	 findings	

with	regard	to	both	children:	

[T]he	 termination	 of	 the	 parental	 rights	 of	 [the	 father]	 thereby	

freeing	the	child	for	adoption	by	[the	stepfather]	would	be	in	the	

child’s	 best	interests.	 This	 Court	 also	 specifically	 finds	 that	 [the	

father’s]	 failure	 to	 make	 any	 attempt	 to	 establish	 a	 family	

relationship	with	 the	 child,	 or	 contribute	in	 any	way	 toward the	

child’s	financial	support,	constitutes	clear	and	convincing	evidence	

that	[the	father]	has	been	unwilling	or	unable	to	take	responsibility	

for	the	child	within	a	time	reasonably	calculated	to	meet	the	child’s	

needs.

[¶6]		The	court	also	found	that “[the	father]	has	not	taken	the	necessary	

steps	in	a	reasonable	time	frame	to	care	for	his	son	with	highly	special	needs	

well	known	 to	him.		He	has	been	absent	 from	his	life	 for	over	two	years	and	

owes	over	$30,000	in	child	support.”	 Although the	court	noted	that	the	mother

had	wrongfully	made	it	difficult	for	the	father to	contact	her	or	the	children,	the	

court	 found	that	the father “made	no	effort	 to	legally	enforce	his	 rights	or	 to	

contact	 [the	 child’s]	 medical	 providers	 or	 his	 school.”	 	 The	 medical	 and	

educational	professionals	who	worked	with	the	children “had	never	met	[the	

father].”	 	 The	 court	 stated	 that	 both	 children “will	 need	 special	 care	 and	
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attention	for	the	rest	of	[their	lives],” and	that the	father “has	done	nothing	to	

assist	 with	 this	 challenge	 and	 did	 not	 demonstrate	 a	 valid	 reason	 for	 his	

absence.”		

II.		DISCUSSION

A. Legal	Standard

[¶7]	 	 “When	 a	 private	 individual	 invokes	 court	 action	 to	 terminate	

parental	 rights	 .	 .	 .	 the	 court	 engages	 in	 state	 action	 that	 implicates	 the	

constitutionally	protected	liberty	interest	a	parent	has	in	parenting	his	or	her	

child	free	from	state	interference.”		Adoption	of	Isabelle	T., 2017	ME	220,	¶	3,	

175	A.3d	639.		These	protections	are	not	absolute.		Id. ¶¶	5-6.		 “A	 state	may	

interfere	with	a	 parent’s	 fundamental	 right	 to	parent	 a	child	when	 the	court	

makes	a	finding,	by	clear	and	convincing	evidence,	that	the	parent	is	unfit	and	

the	child’s	best	interest	will	be	served	by	state	intervention	to	avoid	harm	to	

the	child.”		Id.	¶	6.		

[¶8]	 	 Petitions	 for	 private	 adoptions	 in	 Maine	 Probate	 Courts	 are	

governed	 by	 the Adoption	 Act,	 18-A	 M.R.S.	 §§	 9-101	 to	 9-315	 (2018).	 	 The	

Adoption	 Act	incorporates	 by	 reference	22	 M.R.S.	 §§	 4050-4059	 (2018), the	

statutory	 framework	 governing	 termination	 in	 child	 protection	 proceedings.		

18-A	 M.R.S.	 §	 9-204(b)	 (2018).	 	 In	 Title	 18-A	 adoption	 proceedings,	
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“termination	of	parental	rights occurs	prior	to	the	adoption	in	order	to	enable	

the	child	.	.	.	to	be	legally	available	for	adoption.”2		Adoption	of	Isabelle	T., 2017	

ME	 220,	 ¶	 9,	 175	 A.3d	 639.	 	 In	 determining	 whether	 to	 terminate	 parental	

rights,	 the	 court	 engages	 in	 a	 two-step	 analysis,	 first	 making	 a	 finding	 of	

parental	unfitness	using	the	factors	outlined	in 22	M.R.S.	§	4055(1)(B)(2)(b),

and	only	then	determining	whether	termination	is	in	the	best	interests	of	the	

child, 22	M.R.S.	§	4055(1)(B)(2)(a).		See	Adoption	of	Shayleigh	S.,	2018	ME	165,	

¶	17,	198	A.3d	791.		

[¶9]		A	court’s	finding	of	unfitness	must	be	grounded	in	one	or	more	of	

the	following	findings:	

(i)	 The	 parent	 is	 unwilling	 or	 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;

(ii)	The	parent	has	been	unwilling	or	unable	to	take	responsibility	

for	the	child	within	a	time	that	is	reasonably	calculated	to	meet	the	

child’s	needs;	[or]

(iii)	The	child	has	been	abandoned;	.	.	.	.

22	M.R.S.	§	4055	(1)(B)(2)(b).		

 2 The	Probate	Court,	according	to	statute,	cannot	grant	an	adoption	petition	absent	the	consent	of	

each	of	the	adoptee’s	living	parents.		18-A	M.R.S.	§	9-302(a)(2) (2018).		Such	consent	is	not	required,	

however,	from	a	parent	whose	“rights	have	been	terminated	according	under	Title	22,	chapter	1071,	

subchapter	VI.”		18-A	M.R.S.	§	9-302(b)(2).		Thus,	termination	of	a	nonconsenting	parent’s	parental	

rights	is	often	a	prerequisite	to	adoption	under	Title	18-A.		Such	is	the	case	here.		See	infra Part	II(D).	
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[¶10]		We	review factual	findings	regarding	whether	termination	is	in	the	

best	interest	 of	a	child	 for	clear	error.		Adoption	 of	 Isabelle	T., 2017	ME	220,	

¶ 30,	175	A.3d	639.		A	finding	of	parental	unfitness	is	also	reviewed	for	clear	

error,	and	we	will	find	such	an	error	“only	if	there	is	no	competent	evidence	in	

the	record	to	support	it;	if	the	fact-finder	clearly	misapprehended	the	meaning	

of	the	evidence;	or	if	the	finding	is	so	contrary	to	the	credible	evidence	that	it	

does	not	represent	the	truth	of	the	case.”		Id.		“When	the	burden	of	proof	at	trial	

is	 clear	 and	 convincing	 evidence,	 our	 review	 is	 to	 determine	 whether	 the	

fact-finder	could	 reasonably	have	been	 persuaded	 that	 the	 required	 findings	

were	 proved	 to	be	highly	 probable.”	 Adoption	 of	Shayleigh	S.,	2018	ME	165,	

¶ 14,	198	A.3d	791.		The	court’s	“ultimate	decision	to	terminate	parental	rights”	

is	reviewed	 for	an	abuse	of	discretion.		Adoption	 of	 Isabelle	T., 2017	ME	220,	

¶ 30,	175	A.3d	639.

B. Sufficiency	of	the	Evidence

[¶11]		The	father	challenges	the	sufficiency	of	the	evidence	underpinning	

the	trial	court’s	findings that	he	was	unfit	and	that	termination	would	be	in	the	

children’s	best	interests.		Contrary	 to	his	contentions,	 the	 record	evidence	is	

such	 that	 the	 trial	 court	 “could	 reasonably	 have	 been	 persuaded	 that	 the	

required	findings	were	proved	to	be	highly	probable.”	 Id.	¶	33.		The	court	did	
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not	err	in	reaching	its	findings,	nor	did	it	abuse	its	discretion	in	its	decision	to	

terminate	the	father’s	parental	rights.	 Adoption	of	Shayleigh	S.,	2018	ME	165,	

¶ 14,	198	A.3d	791;	Adoption	of	Isabelle	T., 2017	ME	220,	¶	30,	175	A.3d	639.

1. Finding	of	Unfitness

[¶12]		Record	evidence	demonstrates	that the	father’s	efforts	to	maintain	

contact	with	his	two	children	have	been	sporadic	and	ineffective.		Prior	to	2016,	

he	 had	 regular	 contact	 with	 the	 children	 and	 took	 advantage	 of	 his	 contact

rights.	 	 After	 March	 2016,	 he	 had	 virtually	 no	 in-person	 contact	 with	 the	

children	and	any	phone	contact	was	short	and	intermittent.		After	June	2018,	

he	had	no	direct	contact	with	the	children.		His	efforts	to	maintain	contact	were	

limited	to	contacting	the	mother.		What	little	indirect	contact	did	occur	was	a	

product	of	the	efforts	of	the	paternal	grandparents.		The father	moved	to	Florida

in	December	2016,	to	seek	employment	and	work	on	his	sobriety,	staying	for	

nearly	two	years.		

[¶13]	 	 The mother	 imposed	 roadblocks	 to	 the	 father	 contacting	 the	

children,	 severely	 curtailing	 the	 father’s	 contact	 after	 he	 was	 arrested	 in	

March 2016.	 She	also	moved	to	a	new	address	in	October	2017,	and	changed	

her	 phone	 number	 in	 June	 2018. The	 trial	 court	 acknowledged	 the	

wrongfulness	 of this conduct and	 took	 it into	 consideration	 in	 its	 orders.		
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However,	the	father’s	record	of	minimal	contact	with	the	children	predated	the	

imposition	of	these	roadblocks.	 By	mid-2015,	his	contact with	the	children	had	

declined	to,	at	most, one	overnight	visit	per	weekend.		Further,	after	the	mother

cut	off	his	contact,	the father did	not	attempt	to	enforce	his	rights	through	the	

judicial	 system	 or	 otherwise	 try	 to	 pursue	 contact.	 	 He	 did	 not	 contact	 the	

maternal	 grandparents,	 the	 children’s	 schools or medical	 providers,	 or	 the	

stepfather.		

[¶14]	 	 The	 court	 found	 that	 both	 children	 will	 need	 special	 care	 and	

attention	 for	 the	 rest	 of	 their	 lives,	 and	 the	 record	 demonstrates	 that	 their	

disabilities	 render	 change,	 uncertainty,	 and	 transition	 extremely	 difficult	 for	

both	children.		The	trial	court	reasonably	could	have	been	persuaded	that	it	was	

highly	probable	the	father was	either	unwilling	or	unable	to	take	responsibility	

for	the	children	in	a	time	reasonably	calculated	to	meet	their	needs.		

2. Finding	Regarding	the	Children’s Best	Interest

[¶15]		The	significant	special	needs	of	the	children are	also	relevant	 to	

the	court’s	second	core	finding—that	termination	of	the	father’s	parental	rights	

would	be	in	 the	children’s	best	interests.		22	M.R.S.	§	4055(1)(B)(2)(a).		The	

best	interest	factors	considered	in	a	Title	18-A	proceeding	are	the	same	as	those	

in	a	Title	22	proceeding:	
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In	considering	the	children’s	best	interests,	the	court	is	required	to	

consider	the	needs	of	the	children,	including	the	children’s	age,	the	

children’s	attachments	to	relevant	persons,	periods	of	attachments	

and	separation,	the	children’s	ability	to	integrate	into	a	substitute	

placement	 or	 back	 into	 their	 parent’s	 home	 and	 the	 children’s	

physical	and	emotional	needs.	 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.	

Adoption	 of	 Isabelle	 T., 2017	 ME	 220,	 ¶	 49,	 175	 A.3d	 639	 (quotation	 marks	

omitted)	(alterations	omitted).		

[¶16]		The	trial	court	considered	the	needs	of	each	child,	their	respective	

ages	and	relationships	with	their	parents	and	step-father,	the	time	spent	with	

the	parties,	and	their	ability	to	integrate	into	the	mother	and	stepfather’s	home.		

The	record	evidence	shows	that	both	children,	and	the	younger	child especially,	

require	consistency,	routine,	and	predictability	in	order	to	function well in	the	

home	and	in	school.		Strong coordination	among the	caregivers,	educators,	and	

medical	providers	is necessary	in	order	 for	 the	children	 to	coexist	with	 their	

family	members	and	peers,	and	to	progress	toward	their	social	and	educational	

goals.	 	 The	 evidence	 shows	 that	 the	 father	 has	 not	 contributed	 to	 those	

coordinated	efforts,	but	 that	the	stepfather has.		The	evidence	 further	shows	

that	sporadic	contact	with	the	father	interferes	with	the	children’s	routine	and	

progress.		With	regard	to	the	younger	child,	changes	to	routine	correlate with	
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increased	aggressive	behaviors.		In	light	of	the	evidence	presented	at	trial,	the	

trial	 court	 could	 reasonably	 have	 been	 persuaded	 that	 the	 required	 findings	

were	proved	to	be	highly	probable,	and	thus	did	not	clearly	err	in	determining	

termination	to	be	in	the	best	interest	of	each	child.		

[¶17]		Because	the	trial	court	did	not	clearly	err	in	its	determinations	that	

the	 father	 has	 been	 unwilling	 or	 unable	 to	 take	 responsibility	 for	 the	 two	

children	 within	 a	 time	 reasonably	 calculated	 to	 meet	 their	 needs	 and	 that	

termination	was	in	the	best	interest	of	each	child,	the	trial	court	did	not	abuse	

its	discretion	in	terminating	the	father’s	parental	rights.		

C. The	Court’s	Sequence	of	Findings

[¶18]		The	father	next	argues	that	the	trial	court	erred	as	a	matter	of	law	

by	first	determining	that	termination	was	in	the	best	interest	of	each	child	and	

then	finding	that	he	has	been	unwilling	or	unable	to	take	responsibility	for	the	

children	within	a	time	that	is	reasonably	calculated	to	meet	their	needs.		The	

father	 raises	 this	 challenge	 for	 the	 first	 time	 on	 appeal.	 	 See supra Part	 I.		

Therefore,	we	review	for	obvious	error.		In	re	Joshua	B.,	2001	ME	115,	¶ 9-10,	

776	A.2d	1240;	see Alexander,	Maine	Appellate	Practice,	§ 402(a)	at	310	(5th	

ed.	 2018);	see	 also	MP	Assocs.	 v.	 Liberty,	 2001	 ME	 22,	 ¶	 18,	 771	 A.2d	 1040.	
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Obvious	error	is	that	which	deprives	a	party	of	a	fair	trial	or	otherwise	treats	a	

party	unjustly.		See Shayleigh	S.,	2018	ME	165,	¶	18,	198	A.3d	791.		

[¶19]		Title	22	 §	4055(1)(B)(2) lists	 two	 findings	as	prerequisites	 to	a	

termination	of	parental	rights:	first,	that	termination	is	in	the	best	interest	of	

the	child;	and	second,	that	the	parent	has	demonstrated	unfitness	in	one	of	four

ways.		22 M.R.S. §	4055(1)(B)(2).	 Notwithstanding the	order	in	which	 these	

two	 findings	are	laid	out	in	 the	statute,	the	constitution	requires that	“a	 trial	

court	 must	 find	 parental	 unfitness	 before	 it	 proceeds	 to	 consider	 the	 best	

interest	of	the	children.”		Adoption	of	Shayleigh	S.,	2018	ME	165,	¶	17,	198	A.3d	

791;	see	 also Adoption	 of	 Hali	 D.,	 2009	 ME	 70,	 ¶¶	 4-5,	 974	 A.2d	 916;	 In	 re	

Michelle	W., 2001	ME	123,	¶	11,	777	A.2d	283.

[¶20]		In	both	of	the	trial	court’s	judgments,	it	first	stated	that	it	found	

termination	to	be	in	the	child’s	best	interests.		Then,	in	a	separate	sentence,	the	

trial	 court	 found	 that	 the	 father	 “has	 been	 unwilling	 or	 unable	 to	 take	

responsibility	for	the	child	in	a	time	reasonably	calculated	to	meet	the	child’s	

needs.”		However,	the	language	of	the	trial	court’s	order	does	not	necessarily	

suggest	that	it made	a	finding	as	to	the	children’s	best	interests	before	reaching	

the	 question	 of	 fitness;	 the record	 demonstrates	 that	 the	 trial	 court	 clearly	

understood	that	the	two	findings	were	distinct	and	that	a	finding	as	to	fitness	
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must	be	reached	before	it	could	proceed	to	a	best	interest	analysis.		At	trial,	the	

court	stated,	“[Y]ou	don’t	even	get	[to]	the	best	interest	of	the	child	standards	

until	you	deal	with	the	termination	standard.”	

[¶21]		The	trial	court’s	order	and	the	record	evidence	do	not	support	a	

conclusion	 that	 the	 father was	 denied	 a	 fair	 trial	 or	 subjected	 to	 a	 serious	

injustice.	 	 The	trial	 court	 made	 all	 required	 findings,	 correctly	 applying	 the

standard	of clear	and	convincing	evidence	to	both	the	best	interest	prong	and	

the	 fitness	 prong.	 	 The	 trial	 court	 understood	 that	 these	 findings	 were	

independent	 of	 one	 another	 and	 a	 finding	 as	 to	 one	 should	 not inform	 the	

finding	 as	 to	 the	 other.	 	 Therefore,	 any	 mistake	 made	 by	 the	 trial	 court	 in	

arranging	its	findings	within	the	termination	orders	was	not	obvious	error.	 Cf.

In	re	Michelle	W., 2001	ME	123,	¶¶ 8, 11, 777	A.2d	283;	In	re	Joshua	B.,	2001	ME	

115,	¶ 8,	776	A.2d	1240.		

D. Necessity	of	Termination	

[¶22]		Finally,	the	father argues	that	the	trial	court	erred	in	concluding	

that	his parental	rights	needed	to	be	terminated	in	order	for	the	stepfather to	

adopt	the	children.		Instead,	the	father argues,	the	trial	court	could	have	granted	

the	adoption	petition	without	terminating	his	rights,	leaving	the	children	with	
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three	 legal	 parents.	 	 This	 argument	 reflects	 a	 misunderstanding	 of	

Title 18-A adoption	proceedings	and	is	not	persuasive.	

[¶23]		The	Probate	Court	is	a	court	of	limited	jurisdiction.		Marin	v.	Marin,	

2002	ME	88, ¶	9, 797	A.2d	1265.		The	Adoption	Act	grants	the	Probate	Court	

jurisdiction	over	adoption	petitions.		18-A	M.R.S.	§	9-103(1)(a)	(2018);	see	also

In	re	Melanie	S.,	1998	ME	132,	¶	8,	712	A.2d	1036.		Before	the	court	may	grant	

a	petition	for	adoption,	however,	written	consent	is	required	from	each	of	the	

adoptee’s	 living	 parents,	 unless	 an	 exception	 is	 satisfied.	 	 18-A M.R.S.	

§§ 9-302(a)(2), (b)	 (2018).	 	 A	 parent’s	 consent	 is	 not	 required	 if	 his	 or	 her	

parental	 rights	 have	 been	 terminated	 pursuant	 to	 22	 M.R.S.	 §§ 4050-4059	

(2018).3		Limited	by	its	statutory	mandate,	the	Probate	Court	is	left	with	two	

choices	in	 the	 face	of	a	nonconsenting	parent:	deny	 the	petition	 for	adoption	

because	the	petitioner	has	failed	to	prove	that	the	nonconsenting	parent	is	unfit	

or,	if	 the	petitioner	has	established	 that	 the	parent	is	unfit	and	 that	adoption	

would	 be	 in	 the	 child’s	 best	 interest,	 terminate	 the	 nonconsenting	 parent’s	

parental	 rights,	 thereby	 obviating	 the	 need	 for	 the	 parent’s	 consent.	 	 See

Adoption	 of	 Isabelle	 T., 2017	 ME	 220,	 ¶	 12,	 175	 A.3d	 639	 (noting	 that	 the	

 3 The	Title	22	termination	procedures	are	incorporated	by	reference	in	18-A	M.R.S.	§	9-204, which	

authorizes	the	Probate	Court	to	terminate	parental	rights	in	conjunction	with	an	adoption	petition.	
15

Adoption	Act	does	not	authorize	rehabilitation	or	reunification	efforts	prior	to	

or	 instead	 of	 termination	 of	 parental	 rights).	 	 We review	 a	 trial	 court’s	

determination	of	its	own	authority	de	novo.		Bonner	v.	Emerson,	2014	ME	135,	

¶	9,	105	A.3d	1023.

[¶24]		Here,	the	father	was	a	living	parent	of	both	prospective	adoptees	

and,	as	such,	the	trial	court	could	not	grant	either	petition	without	his	consent,	

which	the	father	did	not	provide.		18-A	M.R.S.	§	9-302(a)(2).		The	mother	filed	

petitions	to	terminate	the	father’s	parental	rights,	and	the	trial	court	granted	

those	petitions.	 Only	after	the	court	determined	that	the	father’s	consent	was	

not	 legally	 necessary—because	 his	 rights	 had	 been	 terminated—could	 it	

proceed	to	consider	the	adoption	petitions.	

[¶25]		The	trial	court	did	not	have	the	authority	to	pursue	the	third	option	

described	 by	 the	 father: an	 open	 adoption	 granted	 with	 his	 parental	 rights	

intact	 but	 without	 his	 written	 consent.	 	 Although	 the	 Maine	 Parentage	 Act	

contemplates	 more	 than	 two	 parents,	 the	 Adoption	 Code	 does	 not.	 	 Title	

18-C M.R.S.	§9-308 states that	the	effect	of	an	adoption	is	to	“divest[]	the	parent	

and	 child	 of	 all	legal	 rights,	 privileges,	 immunities,	 duties	 and	 obligations	 to	

each	other	as	parent	and	child,	except	an	adoptee	inherits	from	the	adoptee’s	

former parents	 if	 provided	 in	 the	 adoption	 decree.”	 	 18-C	 M.R.S.	 §	 9-308(6)	
16

(2019)	 (emphasis	 added).	 	The	 Code	 contains	 no	 provision	 for	 parents	 who	

wish	 to	 “consent”	 to	 the	 adoption	 of	 their	 children	 by	 someone	 else,	 unless	

those	consents	are	accompanied	by	voluntary	termination	of	parental	rights.	

[¶26]		The	 trial	court	did	not	err	in	 failing	 to	consider	an	adoption	not	

authorized	by	law.		

The	entry	is:

Judgments affirmed.	

Caleb	 J.	 Gannon,	 Esq.,	 and	 John	 E.	 Baldacci,	Jr.,	Esq. (orally),	 Lipman	 &	 Katz,	

Augusta,	for	appellant	father

Maryellen	Sullivan,	Esq.,	and	Joe	Lewis,	Esq. (orally),	Port	City	Legal,	Portland,	

for	appellees	mother	and	stepfather

Kennebec	County	Probate	Court	docket	numbers	A2018-4689	and	A2018-4690

FOR	CLERK	REFERENCE	ONLY