IN RE AIDENJ. Et al.
Submitted On Briefs: November 29, 2017
Richard W. McCarthy, Jr., Esq., Pittsfield, 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, JABAR, HJELM, and
REPORTER OF DECISIONS
The mother of Logan J., Aiden J., Marissa J., Belladonna J.,
and Jessie B. appeals from a judgment of the District Court
(Skowhegan, Nale, J.) terminating her parental
rights to her five children pursuant to 22 M.R.S.
§4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(ii)
(2016). She challenges the sufficiency of
the evidence to support both the courts finding of parental
unfitness and its determination that termination is in the
childrens best interests. The mother also argues that the
Department of Health and Human Services failed to comply with
22 M.R.S § 4041 (2016) because it did not provide the
mother with Home Community Treatment (HCT) services. We
affirm the judgment.
Based on competent evidence in the record, the court found by
clear and convincing evidence that the mother (1) is unable
to protect the children from jeopardy and these circumstances
are unlikely to change within a time which is reasonably
calculated to meet the childrens needs; and (2) is unable to
take responsibility for the children within a time that is
reasonably calculated to meet the childrens needs.
See 22 M.R.S. § 4055(1) (B)(2) (b)(i)-(ii). The
court also found that termination of the mothers parental
rights is in the childrens best interests. See 22
M.R.S. § 4055(1)(B)(2)(a). We review factual findings
supporting the unfitness determination for clear error and
apply the same standard to the factual findings supporting
the best interest determination, although we review the
courts ultimate conclusion that termination is in the
childrens best interests for an abuse of discretion. See
In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260.
The court based its determinations on the following findings
There is ... no question that [the mother] has made some
progress participating in the services that were designed to
help her address her mental-health issues. . . . However, the
progress that [the mother] has made in reunifying with her
children over the past seventeen-to-twenty-two months is
insufficient to meet these five childrens needs, as explained
by [the psychologist] in his Court Ordered Diagnostic
Evaluation and expanded upon in his testimony. The Court
accepts [the psychologists] conclusions and assigns a great
weight and credibility to his report and testimony. Based on
[the psychologists] evaluation and testimony, the Court finds
that [the mother] is not yet close to alleviating jeopardy.
The critical issue, for [the mother], is her ability to
protect the children and take responsibility for them. The
original jeopardy with regard to all five children centered
around [the mothers] inability to provide the children
adequate supervision and care. With regard to this, the issue
of [the mothers] relative parental fitness, the Court is most
persuaded by [the psychologist]. His written evaluation, in
conjunction with his testimony, demonstrated to the Court the
troublingly high probability that the progress she has made,
such as it is, would collapse if these children were returned
to her custody.
At the outset, [the psychologist] was asked to assess whether
[the mother] is "capable of providing for the needs of
these five children, including two [Logan and Aiden] which
have been specifically identified with special needs."
He answered simply: "By herself, no." Having heard
from all the childrens foster parents, and the counselors for
Logan and Aiden, the Court is familiar with these five
childrens particular needs. The Court agrees with [the
psychologist] and finds that, by herself, [the mother] is
simply not capable of providing for [the children].
Based on the complete picture of the evidence before it, but
particularly [the psychologists] report and testimony, the
Court finds that it is essentially a full-time task for [the
mother] to tend to her own high needs. The Court recognizes
that, in answering "[b]y herself, no, " [the
psychologist] raised the possibility that, with the
assistance of a capable adult, it is conceivable that [the
mother] could find some way to meet these five childrens
needs someday. However, looking at all the evidence, and in
particular [the mothers husbands] own live testimony, the
Court is unable to find that [the mothers] husband is a
person who is capable of helping her sufficiently shorten the
substantial amount of time it would take her to alleviate the
persistent jeopardy that was first found to exist in
September of 2015.
[The mother] finds herself in tragic circumstances. In her
testimony, she asked for acknowledgment that where she finds
herself today is not entirely the result of choices that she
has made. The Court does acknowledge that. She has been
abused in her life. That is not her fault.
However, as evidenced by her own testimony, [the mother]
still does not have an adequate understanding as to what
effect her own mental-health challenges have already had-and
are highly likely to continue having-on her children. What
she must do to protect and take responsibility for these five