Submitted On Briefs: January 11, 2018
A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant
Nathaniel Seth Levy, Esq., Brunswick, for appellant father
T. Mills, Attorney General, and Hunter C. Umphrey, 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 parents of three children appeal from a judgment of the
District Court (Wiscasset, Raimondi, J.) terminating
their parental rights to the children. Although the parents
do not challenge the court's conclusion that they are
unfit within the meaning of 22 M.R.S. § 4055(1)(B)(2)(b)
(2017), they contend that the court erred by determining that
termination is in the children's best interests,
see 22 M.R.S. § 4055(1)(B)(2)(a) (2017),
because the court also ordered a permanency plan that
includes either adoption or a permanency guardianship. Given
the court's findings regarding the circumstances and best
interests of the children, the court did not err by
terminating the parents' rights to them while also
approving a permanency guardianship as a possible permanency
plan. We therefore affirm the judgment.
The following facts, which are supported by the evidence, are
drawn from the court's judgment and the procedural
record. See In re Dominyk T., 2017 ME 222, ¶ 5,
173 A.3d 1065.
The Department of Health and Human Services became involved
with this family in January of 2016 when one of the children
was rushed to the hospital after suffering seizures.
Ultimately, that child and one of the other children were
diagnosed with "failure to thrive" as a result of
the parents' life-threatening failure to feed them
adequately. Several weeks after the first child was
hospitalized, the Department filed a child protection
petition as to all three children, and in late February, the
three children were placed with their paternal grandmother
pursuant to a safety plan. In April of 2016, with the
agreement of the parents, the court entered a jeopardy order
placing the children in the Department's custody and
ordering that the children continue to live with the
Both parents have learning disabilities, and the mother also
has cognitive impairments and suffers from depression.
Neither parent has meaningful insight into the reasons why
the children are in foster care, nor has either parent
adequately participated in court-ordered diagnostic and
therapy services or in their children's doctor
appointments. The parents initially missed so many visits
that the visits were suspended for a time. When visits
eventually resumed, the quality of the parents'
interactions with the children was concerning until the last
few weeks before the termination hearing, when the visits
went better. The parents love their children and want to
reunite with them, but their personal difficulties have
contributed to their failure to "understand, let alone
provide [, ] the steps necessary to foster a home environment
that eliminates the threat of jeopardy and support[s] the
nurturing and well-being of their children."
Since coming to live with the grandmother, the condition of
the two children who had failed to thrive improved
"spectacularly, " and all three children are doing
very well in her care. The grandmother supports the
parents' continued involvement with the children and is
willing to either serve as the children's permanency
guardian or adopt them.
A year after the children came into its custody, the
Department filed a petition to terminate the parents'
rights to the children, and in May of 2017, the court held a
three-day consolidated hearing on the termination petition
and on a permanency plan for the children. The next month,
the court issued a judgment terminating both parents'
parental rights. The court found by clear and convincing
evidence that both parents are unfit because they are unable
or unwilling to protect the children from jeopardy and would
not do otherwise within a time reasonably calculated to meet
the children's needs; they are unwilling or unable to
take responsibility for the children within a time reasonably
calculated to meet the children's needs; and they did not
make a good faith effort to rehabilitate and reunify with the
children. See 22 M.R.S. §4055(1)(B)(2)(b).
The court also concluded that termination is in the
children's best interests because of the stability and
care provided to them by the grandmother as well as her
"tireless" advocacy for their interests. In making
these best interest determinations, the court considered the
children's greatly improved condition while in the
grandmother's "excellent care"; the successful
integration of the children into the grandmother's
family, which includes four other children; and the
grandmother's effectiveness in assisting the parents to
"maintain their attachment to the children" and her
continued willingness to do so. The court also credited the
strong support from the children's guardian ad litem for
continued placement with the grandmother.
In its judgment, the court also established the permanency
plan for the children. See 22 M.R.S. § 4038-B
(2017). After recognizing the policy found in statutes and
case law that favors permanence for children, the court
stated that it had "no difficulty in finding that the
plan of either permanency guardianship or adoption is clearly
in the best interest of [the children] so that they may have
permanency with their paternal grandmother in the stable and
nurturing environment where they have been placed during the
pendency of this action." The court recognized that the
grandmother had applied with the Department to be licensed as
a foster parent but that the application was denied because
of the Department's concerns with the grandmother's
domestic partner. The court stated that it was not bound by
that administrative decision, however, and found explicitly
"that continued placement with [the grandmother] is in
the best interest of these children."
Both parents appealed from the termination order.
See M.R. App. P. 2(b)(3); 2(b)(5) (Tower
On this appeal, the parents do not contest the court's
determination that they are unfit as the children's
parents. Rather, they challenge only the court's
determination that termination is in the children's best
interests, given the court's finding that their best
interests would also be served if they continued to live with
the grandmother as a permanency guardian.
Because the predicate of the parents' challenge to the
termination order is the permanency plan that would provide
for either a permanency guardianship or an adoption,
the scope of this appeal must be established with clarity.
Although an appeal can be taken from a termination order, a
permanency plan order is treated by operation of statute as
an interlocutory order and is therefore not itself
appealable. 22 M.R.S. § 4006 (2017). Consequently, the
parents' appeal cannot be used as a vehicle to directly
challenge the permanency plan ordered by the court. Rather,
the cognizable question presented here is whether one of the
necessary predicates to a termination order, namely, that