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In re Aliyah A.

Supreme Court of Maine

October 24, 2017

IN RE ALIYAH A. et al.

          Submitted On Briefs: September 27, 2017

          Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant father

          Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

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

          SAUFLEY, C.J.

         [¶1] The question presented in this appeal is whether the court erred in finding an aggravating factor as to the father of Aliyah A. and her five younger siblings based on conduct that is "heinous or abhorrent to society, " 22 M.R.S. §4002(1-B)(A)(1) (2016), when the father left the children living with their mother in squalid conditions without adequate food or heat. The father appeals from the finding of an aggravating factor as part of a jeopardy order entered by the District Court (Portland, Powers, J.) after a contested hearing. We discern no error in the court's finding of an aggravating factor, and we affirm the judgment.

         [¶2] Based on competent evidence in the record, the court found, by a preponderance of the evidence, that the six children in this matter were in circumstances of jeopardy to their health or welfare if placed in either parent's care.[1] See 22 M.R.S. § 4035(2) (2016). The court found the existence of an aggravating factor as to the father for his treatment of the children in a manner that was "heinous or abhorrent to society" because he left the six children in the mother's care for weeks, without providing support or checking on them, when he knew that the conditions in the home were unsanitary and unsafe. Id. § 4002(1-B)(A)(1). Accordingly, the court entered an order authorizing the Department of Health and Human Services to cease reunification efforts with the father. See 22 M.R.S. §§ 4036(1)(G-2), 4041(2)(A-2)(1) (2016).[2]

         [¶3] The court based its determinations on detailed findings of fact, including the following:

The three oldest children were in DHHS custody in 2011 due to neglect and returned to the parents with a dismissal of the case in 2013. Jeopardy in that case in 2011 was "significant neglect based on unsafe and unhealthy living conditions, exposure to unsafe people, and the developmental delays of Aliyah and [the next oldest child]." [The guardian ad litem in this case] was also involved in the 2011 case.
On December 2, 2016 [the mother] was at home, arrested, and jailed for violating bail conditions. [The father] was not around. He later said he had left them 5 months ago. DHHS entered the home and found it to be in a "deplorable" condition. There were feces on walls, cat urine on the floor, and garbage piled high. The house smelled of feces and urine and trash was everywhere. [The two youngest children] were purple, swollen, and cold .... [One of them] was face down on a mattress in a soiled diaper and had no pants or socks on. The four children at home were taken for evaluation to Maine Medical Center. The two youngest had frostbite and stayed a few days there. The other two were medically fine. Portland Water District had shut off water to the home several weeks before December 2. The home itself was cold, certainly under 60 degrees. There were some broken windows in the home. The Portland Police Department civilian coordinator who also went to the home on December 2, and described its condition as "disgusting, filthy, and cluttered." She said it was the worst building she had entered during her 15 years of employment. She noted [that one of the younger children] picked up crumbs . . . and tried to eat them. [The mother] said the children were not hungry. The children needed socks and shoes. The oldest two also came to the hospital from school later that day.
The Portland code enforcement officer had gone to this home in January 2015 and the family vacated for 5 days to clean up the home. He went again on December 2, 2016.... He saw the cluttered home, which had a space heater inside with broken windows to the outside. Shards of glass were within reach of the children. It was very dark and cold inside. He said the home was unsafe due to life safety issues, including no functioning smoke detector. He described the home as being in the "top two" he has seen in terms of its bad condition. The building has not been inhabited since then and remains boarded up with no water or power. The water had been shut off for at least a week before December 2, 2016
These parents have been in a relationship for about 10 years. Their relationship developed problems earlier in 2016, and [the father] would be gone, probably out of state, for days at a time. He says he has not been staying in the Portland home since September 6, 2016. He has a new girlfriend, with whom he has been staying since October 2016. The mother says he left the home on October 27, 2016. He has not been a primary caregiver and has had some recent one hour supervised visits with children. [The father] claims to want to reunify. He signed an updated reunification plan at a team meeting on January 24, 2017. He says the children were all in good health, that the home was not a mess, and that he was unaware of the youngest children's developmental delays when he left on September 6, 2016. Those comments are not likely accurate based on other evidence in this case.
.... Neither parent accepts any responsibility for the serious, long-term neglect and its impact on all the children
The GAL concludes that the children are in jeopardy and have suffered from long-term neglect, which has been most obvious in the four youngest children. The two youngest showed signs of malnutrition as well. He notes all six have some level of special needs and have not received regular medical and other services to meet their individual needs. The needs are likely related to their long-term neglect. The parents have taken no responsibility for their role. The GAL [indicated] "this lack of understanding is dangerous and unlikely to change without an extreme shift in thinking by each parent." The children's recent situation is worse than it was four years ago. He concludes that ...

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