IN RE MACKENZIE P. et al.
Submitted On Briefs: June 14, 2017
Jeffrey S. Dolley, Esq., Dolley Law Firm, Lewiston, for
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, HJELM, and
The mother of Mackenzie P. and Antonio P. appeals from a
judgment of the District Court (Lewiston, Dow, /.)
terminating her parental rights to her children pursuant to
22 M.R.S. § 4O55(1)(A)(1), (B)(2)(a), (b)(i)-(ii)
(2016). She challenges the sufficiency of the evidence to
support the judgment and the court's discretionary
determination of the children's best interests. The
mother also argues that she was deprived of due process
because the court terminated her parental rights when the
guardian ad litem (GAL) had not complied with 22 M.R.S.
§4005(1)(B) (2016). Because the evidence supports the
court's findings and discretionary determination, and we
conclude that the mother received due process, we affirm the
Based on competent evidence in the record, the court found,
by clear and convincing evidence, that the mother is
unwilling and unable to protect the children from jeopardy
and that these circumstances are unlikely to change within a
time that is reasonably calculated to meet the children's
needs, she is unwilling and unable to take responsibility for
the children within a time that is reasonably calculated to
meet their needs, and termination of her parental rights is
in the children's best interests. See22M.R.S. §
4O55(1)(B)(2)(a), (b)(i)-(ii). The court based these
determinations on the following findings of fact.
Although she succeeded in obtaining adequate and safe
housing, the mother "failed to visit consistently with
the children" and "regularly disappointed them by
failing to appear at scheduled visits" in violation of
the reunification plan she had agreed to with the Department
of Health and Human Services. The mother's behavior showed
"a reckless disregard for the emotional health of [the]
children" and-considering evidence that the mother could
keep other appointments-"an unwillingness, not a mere
inability, " to comply with the reunification plan.
Because the mother failed to comply with the reunification
plan, she did not show progress in her ability to protect the
children from unsafe people or supervise and care for them
appropriately. The children, now twelve and seven, have been
out of the mother's care for over two years and need
"protection and permanency." The elder child is
"[e]xhausted" by the failed reunification process
and wishes to be adopted. The younger child needs stability.
Both children have bonded with the foster parents, who are
willing to adopt them.
Given these and other findings of fact, all of which are
supported by competent evidence in the record, the court
adequately explained how the mother is unwilling or unable to
take responsibility for the children despite receiving
eighteen months of reunification services and support from
the Department. Although, as she points out, the mother
recently became more consistent in attending counseling and
in making phone calls to the children, the court did not err
in considering her lengthy history of unsuccessful
reunification efforts. In re B.P., 2015 ME 139, ¶
19, 126 A.3d 713 (explaining that there is a limited time
available for reunification efforts and "[i]n setting
[the statutory] clock, the Legislature has spoken in terms of
days and months, rather than in years" (quotation marks
omitted)). Nor did the court err or abuse its discretion in
determining that termination of the mother's parental
rights with a permanency plan of adoption is in the
children's best interests.See In re Thomas K, 2005
ME 123, ¶¶ 16-17, 889 A.2d 297.
The mother also contends that the court violated her right to
due process by ordering the termination of her parental
rights when the GAL had exceeded the three-month period in
which she was required to have in-person contact with the
children and also filed a late report. See U.S.
Const, amend. XIV, § 1; Me. Const, art. I, § 6-A;
22 M.R.S. § 4OO5(1)(B). She argues that the GAL's
failure to fulfill these statutory duties prejudiced her. The
court, however, acted at the mother's request to prevent
any prejudice by excluding the GAL's testimony and the
untimely report at the termination hearing. Cf. In re
Kaleb C, 2002 ME 65, ¶ 4 n.2, 795 A.2d 71
(explaining that the GAL's deficient performance did not
affect the outcome of the termination proceedings). The
mother points to no concrete prejudice resulting from the
court's evidentiary rulings. Moreover, based on the
court's supported findings that the mother had failed to
progress in reunifying with the children over a significant
period of time and had exhibited "a reckless
disregard" for the children's emotional well-being,
the court's termination of the mother's parental
rights was narrowly tailored to serve the compelling
government interest in achieving permanency for the children.
See 22 M.R.S. §§ 4003(4), 4O55(1)(B)(2)(b)
(2016); In re Thomas K, 2005 ME 123, ¶¶
23-34, 889 A.2d 297; In re Richard G., 2001 ME 78,
¶ 7, 770 A.2d 625.