MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	59

Docket: Ken-18-436

Submitted

			On	Briefs: April 9,	2019

Decided: April	18,	2019

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

IN	RE	CHILDREN OF	BETHMARIE	R.

PER	CURIAM

[¶1]		The	mother	of	the	two	children at	issue	in	this	case	appeals	from	a	

judgment	of	the	District	Court	(Waterville,	Stanfill,	J.)	terminating	her	parental	

rights	to	the	children pursuant	to	22	M.R.S.	§	4055(1)(A)(1)(a),	(B)(2)(a)-(b)(i),	

(iv) (2018).1	 	 The	 mother	 contends	 that (1)	 the	 evidence	 admitted	 at	 the	

termination	hearing	was	insufficient	 to	support	 the	court’s	unfitness	 finding,	

(2)	in	making	its	best	interest	finding	the	court	erred	by	focusing	on	who	should	

adopt	the	children	rather	than	focusing	on	the	central	question	of	whether	they	

should	be	adopted	by	anyone,	and	(3)	the	procedural	interaction	between	the	

Probate	Court	and	the	District	Court	in	this	case	deprived	her	of	due	process.		

We	affirm	the	judgment.

 1	 	 Concerning	 one	 of	 the	 children,	 the	 father’s	 parental	 rights	 were	 previously	 terminated;	

concerning	 the	other,	 the	putative	 father’s	motion	 for	genetic	 testing	was	granted	and	 the	 results	

were	pending	at	the	time	the	court	entered	its	judgment.
2

[¶2]		We	recently	addressed	this	matter in	affirming	the	court’s	jeopardy	

order	concerning	these	children.		In	re	Children	of	Bethmarie	R.,	2018 ME	96,	

¶ 1,	189 A.3d	252.		In	doing	so,	we	recited	in	detail	the	procedural	history	of	the	

case	 leading	 to	 the	 jeopardy	 order	 as	 well	 as	 the	 court’s	 supported	 factual	

findings;	we	do	 not	 repeat	 them	here.		Id. ¶¶	2-13,	 25.		Similarly,	we	do	 not	

repeat	 the	 relevant	 facts	 relating	 to	 the	 mother’s	 conviction	 for	 criminal	

restraint	 by	 a	 parent	 (Class	 C),	 17-A	M.R.S.	 §	 303(1)(A)	 (2018)—a	 case	 that

concerned	 these	 children—which	 we	 discussed	 in	 State	 v.	 Retamozzo,	

2016 ME 42,	135	A.3d	98.

[¶3]		While	our	decision	in	the	mother’s	appeal	from	the	jeopardy	order	

was	pending, the	Department	of	Health	and	Human	Services	filed	a	petition	to	

terminate	the	mother’s	parental	rights.		Following	our	decision,	the	court	held	

an	 evidentiary	 hearing	 on	 August	 8,	 2018,	 at	 which	 the	 children’s	 maternal	

grandmother,	the	 grandmother’s ex-husband,	 the	 Department’s	 caseworker,	

a Waterville	Police	detective,	the	mother,	the	children’s	former	therapist,	and	

the	 guardian	 ad	 litem	 testified.	 	 On	 October	 16,	 2018,	 the	 court	 entered	 its	

judgment	 terminating	 the	 mother’s	 parental	 rights,	 from	 which	 the	 mother	

timely	appealed.
3

[¶4]	 	 The	 court	 made	 the	 following	 findings	 of	 fact by	 clear	 and	

convincing	evidence,	all	of	which	are	supported	by	competent	evidence	in	the	

record:2

In	 the	 jeopardy	 order,	 this	 court	 found	 that	 the	 children	 had	

suffered	 serious	 emotional	 harm	 from	 [the	 mother],	 and	 would	

continue	 to	 do	 so	 if	 returned	 to	 her	 care.	 	 The	 court	 found	 that	

contact	between	[the	mother] and	the	children	was	not	in	the	best	

interest	 of	 the	 children.	 	 The	 court	 specifically	 found	 that	 [the	

mother] subjected	 the	 children	 to	 “treatment	 that	 is	 heinous	 or	

abhorrent	to	society”	under	22	M.R.S.	§	4002(1-B)	and	that	she	had	

abandoned	five	of	her	other	children.		As	a	result,	the	court	found	

that	not	only	were	the	children	in	jeopardy	with	[the	mother]	but	

that	 reunification	 with	 her	 was	 not	 in	 the	 best	 interest	 of	 the	

children.

Nothing	has	happened	since	then	to	change	this	court’s	view	

of	the	situation.		[The	mother]	has	not	accepted	any	responsibility	

for	her	actions,	nor	does	she	have	any	insight	into	the	impact	on	the	

children	 of	 any	 of	 her	 actions.	 Indeed,	 her	 view	 of	 the	 past	 and	

present	situation	is	notably	inconsistent	with	reality	and	truth.

Despite	 this	 court’s	 finding	 that	 visits	were	 not	in	 the	 best	

interest	 of	 the	 children	 and	 despite	 this	 court’s	 denials	 of	 [the	

mother]’s	 repeated	 requests	 for	 visits,	[the	mother]	continued	 to	

take	matters	into	her	own	hands.		She	showed	up,	uninvited	and	

unannounced,	 at	 several	 events	 the	 children	 attended	 with	 [the	

grandmother].	 She	 repeatedly	 tried	 to get	 [her	 daughter] in	

particular	 to	 come	with	 her.	 	 She	 caused	 scenes	 at	 these	 events,	

upsetting	 the	 children	 and	 family.	 She	 repeatedly	 called	 [her	

daughter] to	come	out	and	meet	her.		She	 frequently	goes	by	 the	

children’s	 home,	 parks	 her	 car	 nearby,	 and	 watches	 what	 is	

happening	in	an	effort	to	see	the	children.

 2		Because	the	same	judge	heard	the	evidence	at	the	jeopardy	hearing,	the	court	was	entitled	to	

consider	 that	evidence	at	 the	 termination	stage.		In	 re	Children	 of	Bethmarie	R.,	2018 ME	96,	¶	1,	

189 A.3d	252;	In	re	Caleb	M.,	2017	ME	66,	¶	23,	159	A.3d	345.
4

The	children,	especially	[her	daughter],	were	 triggered	and	

escalated	after	the	confrontations	at	[two	events].		At	both	of	these	

events,	[the	mother]	caused	a	scene . .	.	. She	would	refuse	to	leave	

and	would	yell	things	like	the	children	need	to	come	with	her,	that	

she	 has	 a	 plan,	 that	 the	 Department	 and	[the	 grandmother] are	

stealing	 her	 children,	 and	 the	 like.	 	 This	 kind	 of	 behavior	 is	 a	

particular	 trigger	 for	 the	children	in	light	of	all	of	 the	unresolved	

issues	 surrounding	 the	 time	 she	 “kidnapped”	 them. (Footnote	

omitted.)

.	.	.	.

[The	mother]’s	testimony	is	very	telling.		She	denied	that	she	

had	ever	abandoned	[another of	her] daughter[s] .	.	.	.	She	denied	

she	had	ever	abandoned	her	other	four	children.		She	denied	being	

aware	that	any	of	her	parental	rights	have	ever	been	terminated	to	

any	other	children.	 She	denied	that	she	had	taken	[the	children at	

issue	 in	 this	 case] without	 permission;	 indeed,	 she	 continued	 to	

insist	 to	 this	 court	 that	 she	 had	 permission	 to	 bring	 the	 kids	 to	

Florida.		All	of	 those	statements	are	contrary	 to	 findings	of	other	

courts	and	contrary	to	the	findings	of	this	court	as	set	forth	in	the	

Jeopardy	Order.		She	denied	having	any	mental	health	issues	that	

needed	 to	 be	 addressed.	 She	 disagreed	 with	 [an	 examining	

psychologist’s] diagnosis	 and	 findings.	 	 She	 denied	 she	 had	 any	

pattern	 of	 self-defeating	 behavior. She	 denied	 that	 she	 has	

“different”	 views	 on	 parenting	 except	 to	 say	 that	 everyone	 does.		

She	 denied	 that	 the	 children	 have	 any	 concerns	 about	 the	

“kidnapping[.]”	 If	 they	 did,	 she	 denied	 that	 those	 concerns	 are	

warranted.

Although	she	acknowledged	that	she	understood	this	court’s	

jeopardy	findings,	she	flatly	stated	that	they	were	not	accurate.		She	

does	not	feel	that	she	has	anything	to	work	on	in	order	to	reunify	

with	her	children.		When	asked	about	the	court’s	findings	regarding	

the	incident	of	biting	[her	son] and	taking	the	children	out	of	Maine,	

she	flatly	stated	“these	are	not	facts	to	me[.]”
5

She	admitted	going	to	[a] school	concert	in	March.	 She	knew	

there	was	a	court	order	that	said	it	was	not	in	the	best	interest	of	

the	children	to	see	her.		Nonetheless,	she	felt	it	was	not	a	mistake	

for	her	to	be	there.		She	would	do	the	same	thing	again.		It	did	not	

ruin	the	experience	for	[her	daughter] or	have	any	negative	impact	

on	her.

She	also	admitted	showing	up	at	[a	community] event	in	June.		

She	went	 there	specifically	 to	see	 the	children.		Again,	she	said	it	

was	not	a	mistake	 for	her	 to	be	 there.		She	would	not	have	done	

anything	differently,	except	maybe	she	would	have	come	earlier.

She	admitted	calling	 the	[grandmother’s] home	and	having	

[her	daughter] come	out	and	meet	her	on	several	occasions.		She	

understood	 that	 neither	 the	 Department	 nor	 [the	 grandmother]

permitted	her	to	do	that,	but	testified	that	it	was	not	a	mistake	on	

her	part.		She	also	testified	that	if	she	had	to	do	it	over,	she	would	

call	more	often.

She	admitted	going	to	the	[grandmother’s] home	in	July.		She	

did	it	to	see	the	children.		She	was	aware	she	was	not	supposed	to	

do	that	according	to	the	Department.		Again,	when	asked	what	she	

would	 do	 if	 she	 had	 the	 opportunity	 to	 do	 it	 over,	 she	 said	 she	

would	do	it	again.		She	simply	wanted	to	see	the	children	and	could	

not	understand	why	there	was	anything	wrong	with	that.

When	 asked,	[the	 mother] stated	 that	 she	 knows	 how	 the	

children	 feel.		She	is	adamant	 that	 they	love	her,	 that	she	is	 their	

mother,	and	that	they	want	to	be	with	her.		It	is	entirely	the	fault	of	

the	 Department	 and	 of	 [the	 grandmother] that	 they	 are	 not	

together.

This	 court	 agrees	 with	 the	 assessment	 of	 the	 Guardian	

ad litem.	 [The	 mother]	 has	 not	 accepted	 responsibility	 for	

anything.		She	has	no	insight	into	how	anything	she	has	done	has	

impacted	 the	children,	when	in	 fact	everything	she	has	done	has	

impacted	 them. Without	 any	 insight	 and	 without	 any	
6

acknowledgment	of	her	past	actions,	she	has	not,	can	not,	and	will	

not	change.

.	.	.	.

The	court	also	finds	that	termination	is	in	the	best	interest	of	

the	 children	 so	 that	 they	 may	 have	 permanency.	 	 The	 Child	 and	

Family	Services	and	Protection	Act	clearly	states	a	policy	favoring	

permanency	for	children.	 (Citations	omitted.)

The	children	have	been	in	the	care	of	[the	grandmother] for	

most	of	their	lives,	with	her	ex-husband .	.	. also	acting	as	caretaker.		

That	is	the	home	they	know.		Although	[the	daughter] in	particular	

wants	her	mother	in	her	life,	they	are	bonded	to [the	grandmother]

and	settled	in	to	that	home.		It	is	in	their	best	interest	to	have	a	safe,	

predictable	and	stable	home.		It	is	particularly	in	their	best	interest	

to	 end	 all	 the	 ongoing	 court	 proceedings,	 proceedings	 that	 have	

raised	 and	 dashed	 hopes	 and	 have	 sent	 mixed	 signals	 to	 the	

children	for	years.		They	need	closure,	both	from court	proceedings	

and	from	worrying	about	what	will	happen	with	their	mother.

The	 plan	 has	 been	 for	 adoption	 by	 [the	 grandmother].	

Consideration	ought	 to	be	given	 to	adoption	by	[her	ex-husband]

as	a	coparent	as	well.	.	.	. Absent	termination,	there	will	always	be	

doubt	and	uncertainty	for	[the	grandmother] and	for	the	children	

as	to	what	the	future	holds	with	[the	mother].	

.	.	.	.

In	 summary,	 therefore,	 this	 Court	 finds	 by	 clear	 and	

convincing	 evidence	 that	 [the	 mother]	 is	 unable	 to	 protect	 her	

children	 from	 jeopardy	 and	 these	 circumstances	 are	 unlikely	 to	

change	within	a	 time	which	is	 reasonably	calculated	 to	meet	 the	

children’s	needs,	and	that	she	has	failed	to	make	a	good	faith	effort	

to	 reunify	 and	 rehabilitate.	 22	 M.R.S.	 §4055(1)(B)(2)(b)(i), (iv).	

Likewise,	 it	 is	 in	 the	 children’s	 best	 interest	 that	 [the	 mother]’s	

rights	be	terminated.	 22	M.R.S.	§4055(1)(B)(2)(a).
7

[¶5]	 	 Given	 these	 supported	 factual	 findings,	 we	 review	 the	 court’s	

unfitness	 finding	 for	clear	error	and	 find	none.		See	In	re Child	of	Kaysean	M.,	

2018	ME 156,	¶	5,	197	A.3d	525.

[¶6]		Concerning	the	court’s	ultimate	conclusion	that	termination	was	in	

the	children’s	best	interests,	which	we	review	for	an	abuse	of	discretion,	id.,	the	

mother	is	correct	in	noting	that	we	have	said	that	“[t]he	question	of	who is	the	

best	 person	 to	 adopt	 the	 child .	 .	 . is	 beyond	 the	 scope	 of	 a	 termination	

proceeding	 because	 that	 question	must	 be	 addressed	in	 a	 separate	 adoption	

action	.	.	.	[t]herefore,	in	a	consolidated	proceeding	where	the	court	addresses	

a	termination	petition	and	establishes	a	permanency	plan,	while	the	court	may	

determine	that	as	a	general	matter	adoption	is	in	the	child’s	best	interest	and	

will	be	the	permanency	plan,	the	court	would	overreach	if	it	were	to	designate	

the	adoptive	party.”		In	re	Children	of	Nicole	M.,	2018	ME	75,	¶	17,	187	A.3d	1	

(citations	omitted).

[¶7]		For	two reasons,	the	court’s best	interest	findings	do	not	constitute

factual	 errors or an	 abuse	 of	 discretion.	 	 First,	 contrary	 to	 the	 mother’s	

argument,	the	 court’s	 findings were not	 predicated	 solely	 on	 an	 assumption	

that	the	grandmother	would	adopt	the	children.		The	court	found	that

[i]t	is	in	[the	children’s]	best	interest[s]	to	have	a	safe,	predictable	

and	stable	home.		It	is	particularly	in	their	best	interest[s]	to	end	all	
8

the	 ongoing	court	proceedings,	proceedings	 that	have	 raised	and	

dashed	hopes	and	have	sent	mixed	signals	to	the	children	for	years.		

They	need	closure,	both	from	court	proceedings	and	from	worrying	

about	what	will	happen	with	their mother.

Those	 findings,	 which	 acknowledge	 our	 oft-stated	 recognition	 of	 the	

Legislature’s	 emphasis	 on	 permanency	 for	 children,	 see,	 e.g.,	 In	 re	 Child	 of	

Amanda	H.,	2019	ME	39,	¶	5,	--- A.3d	---,	are	not	predicated	on	an	adoption	by	a	

specific	person.

[¶8]		Second,	while	the	court	noted that	“[t]he	plan	has	been	for	adoption	

by	[the	grandmother],”	it	did	not	declare	that	to	be	the	inevitable	result	of	its

termination judgment;3 rather,	 the	court	simply	recognized	 the	reality	of	 the	

situation—the	children	had	been	in	the	legal	care	of	their	grandmother	for	the	

great	majority	 of	 their	lives.		See	 In	 re	Children	 of	Bethmarie	R.,	2018	ME	96,	

¶¶ 2-9,	 189	 A.3d	 252.	 	 To	 the	 extent	 the	 court	 may	 have	 “overreach[ed],”

In re Children	of	Nicole	M.,	2018	ME	75,	¶	17,	187	A.3d	1,	we	make	clear	that	we	

do	not	 opine	 on	who	should	become	the	adoptive	parent(s)	in	a	prospective	

adoption	proceeding.		See	id.

[¶9]	 	 Finally,	 the	 mother	 contends	 that	 the	 interaction	 between	 the	

Probate	 Court	 and	 the	 District	 Court	 in	 resolving	 their	 respective	 cases	

 3	 	 The	 court	 could	 not	 have	 made	 such	 a	 determination	 given	 that	 the	 parental	 rights	 of	 the	

putative	father	of	one	of	the	children	had	not	been	resolved	at	the	time	of	the	hearing,	see	supra n.1.
9

concerning	the	children	deprived	her	of	due	process.		Although	that	question	

concerned	 us	 as	 well	 in	 the	 mother’s	 first	 appeal,	 see	 In	 re	 Children	 of	

Bethmarie R.,	 2018 ME	 96,	 ¶¶	 26-27,	 189	 A.3d	 252,	 we	 concluded that	 the	

mother	had	not	been	deprived	of	due	process,	id. ¶	25.		Nothing	that	occurred	

at	the	termination	hearing	changes	that	conclusion.

The	entry	is:

Judgment affirmed.

Julian	Richter,	Esq.,	Richter	Law,	LLC,	Gardiner,	for	appellant	mother

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

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

Waterville	District	Court	docket	numbers	PC-2017-41	and	-42

FOR	CLERK	REFERENCE	ONLY