Submitted On Briefs: January 19, 2017
A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant
T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee
Department of Health and Human Services
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
The father of Forest G. appeals from a judgment of the
District Court (Farmington, Oram, J.) terminating
his parental rights to his child. See 22 M.R.S.
§ 4055(1)(B)(2), (1-A)(A) (2016). The father argues, for
the first time on appeal, that the court violated his right
to due process by applying a rebuttable presumption of
parental unfitness and improperly placing the burden of proof
on him. See id. § 4055(1-A)(A). We affirm the
In its termination order, the court explicitly stated that it
found two grounds of parental unfitness based on clear and
convincing evidence- namely, that the father "is
unwilling or unable to protect [the child] from jeopardy
within a time which is reasonably calculated to meet his
needs, and that he is unwilling or unable to take
responsibility for [the child] within a time which is
reasonably calculated to meet his needs." See
id. § 4055(1)(B)(2)(b)(i), (if). After making those
separate findings of unfitness, the court also noted that a
statutory rebuttable presumption of unfitness arose based on
an "aggravating factor" consisting of conduct that
the court, in a jeopardy order to which the father agreed,
found was "heinous and abhorrent to society."
See id. § 4055(1-A)(A).
For two reasons, we need not and do not reach the
father's argument that, as applied in this case, the
court's application of a rebuttable presumption of
parental unfitness violated his right to due process. Cf.
In re Sarah T., 629 A.2d 53, 55 (Me. 1993) (concluding
that a court's application of a rebuttable presumption of
parental unfitness in a termination case did not violate a
parent's right to due process or equal protection).
First, when certain predicate facts are proved, the express
terms of section 4055(1-A)(A) authorize a court to presume
only one of the two forms of parental unfitness that the
court found here, namely, the parent's inability or
unwillingness to protect the child from jeopardy. Because the
court also found an alternative form of parental unfitness,
its reference to the statutory presumption does not draw into
question its ultimate determination that the father's
parental rights should be terminated. See In re KM,
2015 ME 79, ¶ 9, 118 A.3d 812 ("Where the court
finds multiple bases for unfitness, we will affirm if any one
of the alternative bases is supported by clear and convincing
evidence." (quotation marks omitted)); Malenko v.
Handrahan, 2009 ME 96, ¶25, 979 A.2d 1269 ("As
an appellate court, we seek to avoid answering important
statutory and constitutional questions unless the answer is
truly necessary to the resolution of the parties'
Second, the court's affirmative findings supporting its
parental unfitness determination, which it set out in the
judgment even before referring to the statutory presumption,
are well supported by the evidence, to the clear and
convincing standard of proof, as illustrated by the
• In 2009, the father pleaded guilty to one count of
endangering the welfare of a different child (Class D), 17-A
M.R.S. § 554(1)(C) (2009),  and agreed to a jeopardy
order in this case in which the court found that the serious
injuries that were the basis of the 2009 conviction-including
injuries to that child's head "with intra-cranial
hemorrhage"-were deliberately inflicted.
• During the pendency of these proceedings, the father
denied that he had deliberately injured the child in the 2009
case despite a contrary medical opinion, instead explaining
to a Department of Health and Human Services caseworker that
he had been "young and irresponsible" and that the
child had been injured when the father fell down the stairs
after taking unprescribed Percocet.
• Although the father's initial visits with the
child in this case went well, the visits were ultimately
terminated after the father threatened to leave with the
child, prompting supervisors to contact law enforcement.
• The father initially prevented the Department from
performing a scheduled hair follicle drug test by shaving his
entire body, and when he eventually submitted to a number of
subsequent tests they were positive for marijuana, and two
tests in late fall 2015 were positive for opiates and
• The father was convicted of operating under the
influence only one month before the ...