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In re Arturo G.

Supreme Court of Maine

December 12, 2017

IN RE ARTURO G.

          Submitted On Briefs: November 29, 2017

          Erika S. Bristol, Esq., Auburn, for appellant father.

          Jack Hunt, Esq., Kennebunk, for appellant mother.

          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, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] The parents of Arturo G. appeal from a judgment of the District Court (Biddeford, Foster, J.) terminating their parental rights to Arturo pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a), (b)(T), (ii) (2016) and, with respect to the father, § 4O55(1)(B)(2)(b)(iv). Arturo is two and a half years old and, as a result of his parents' drug addictions, has lived with four different care providers in his short life. The father challenges the sufficiency of the evidence to support the court's finding of unfitness. He also argues that he was deprived of due process when the court denied his motion to continue a hearing on the ground that he was experiencing withdrawal from Suboxone. The mother argues that the court erroneously admitted hearsay evidence in the form of drug test results. The evidence supports the court's factual findings; the father received due process; and the court did not abuse its discretion in admitting evidence of the mother's drug test results. We affirm the judgment.

         I. BACKGROUND

         [¶2] On April 23, 2015, the Department of Health and Human Services filed a petition for a child protection order concerning the child, who at that time was only two weeks old. The Department based its petition on the parents' significant history of substance abuse and incarceration and on a prior order terminating the mother's parental rights to her older daughter. On June 5, 2015, the court entered a jeopardy order with respect to the father, to which he agreed. Pursuant to that jeopardy order, the father was required to submit to random testing for drugs and alcohol by both hair and urine, and the Department was required to facilitate the father's substance abuse counseling.

         [¶3] On July 17, 2015, the court entered a jeopardy order as to the mother, to which she agreed. Pertinent to this appeal, that order included a provision that "[u]pon request of the Department, mother shall promptly submit to random testing for drugs and/or alcohol by both hair and urine; test results shall be admissible in these proceedings."

         [¶4] The Department filed a petition to terminate the parental rights of both parents on August 11, 2016. A hearing on the petition was held on May 8 and 9, 2017. On the morning of the first day of the hearing, the father moved to continue the hearing on the ground that he was suffering from symptoms of withdrawal from Suboxone. He stated that the withdrawal resulted from the Department's decision to cut off payments for the Suboxone in order to force the father into releasing records documenting his substance abuse counseling. In support of the motion, the father's counsel stated that because of the withdrawal symptoms, the father was "at a little bit of a disadvantage." He later stated, "I don't believe he's incoherent, but he's saying that it has affected his ability somewhat."

         [¶5] The court summarized the positions of the parties: "The Department's saying they have an obligation... to make sure the person is using the medication as prescribed and is attending counseling as recommended [The father] is arguing the Department calculatedly did so to place him at a disadvantage at a time that we are on the verge of hearing." The court clarified that the Department was not withholding Suboxone but withholding payments until the father provided the Department with records showing that he had been receiving treatment.[1] The court stated, "[the father] had every reason to understand the Department would be seeking those records and had an obligation to sign the releases in a timely fashion." It denied the motion to continue.

         [¶6] The Department's first witness was a substance abuse counselor. He testified that within seventy-two hours of Suboxone withdrawal, a person is likely to experience "[h]eadaches, poor sleep, chills, sweating, diarrhea, vomiting, weakness, craving, anxiety, depression, [and] frustration." The father renewed his motion to continue. The Department objected to the motion and offered to obtain an immediate authorization for a prescription. The court once again denied the motion. The father received treatment during a break on the first day, and he testified on the following day.

         [¶7] Also on the morning of the first day of the hearing, the mother objected to the admission of certain positive drug test results from a laboratory engaged by the mother's substance abuse counseling service pursuant to her reunification plan. The mother contended that the reports were inadmissible hearsay and were not covered by the ...


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