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In re Child of Emily K.

Supreme Court of Maine

June 19, 2018

IN RE CHILD OF EMILY K.

          Submitted On Briefs: April 12, 2018

          Valerie A. Randall, Esq., Rioux, Donahue, Chmelecki & Peltier LLC, Portland, 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, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM.

         [¶1] Emily K. appeals from a judgment entered by the District Court (Lewiston, Ende, J.) terminating her parental rights to her child. The mother argues that the court erred in determining that the termination of her parental rights was in the child's best interest when the child was placed in a permanency guardianship with his paternal grandparents and his father's parental rights were not terminated. We affirm the judgment.

         I. BACKGROUND

         [¶2] In December 2015, the court [Oram, J.) entered a preliminary protection order placing the child in the custody of the Department of Health and Human Services upon allegations that the child's mother threatened suicide in his presence and took steps to avoid contact with the Department, which had been assisting her in obtaining substance abuse and mental health treatment. The Department filed a petition for a child protection order at that time, and the court [Dow, J.) entered an order after the mother waived the opportunity for a summary preliminary hearing on January 8, 2016, retaining custody with the Department. The child was placed with his paternal grandparents and has remained in their care ever since.

         [¶3] The mother agreed to the entry of a jeopardy order in February 2016 and the father agreed to the entry of a jeopardy order one month later. Following judicial review and permanency planning hearings held in July and December 2016, the Department petitioned for termination of both parents' parental rights in January 2017. After pretrial case management and unavoidable continuances, the court [Ende, J.) held a hearing on the petition to terminate the mother's parental rights in June 2017. The court entered a judgment terminating her parental rights on August 14, 2017, in part based on the grandparents' availability and willingness to adopt the child. The mother timely appealed on August 28, 2017. See 22 M.R.S. § 4006 (2017); M.R. App. P. 2 (Tower 2016).[1]

         [¶4] The Department withdrew the petition to terminate the parental rights of the father on September 7, 2017. The mother moved for us to authorize additional process in the trial court so that she could move for relief from judgment based on the Department's withdrawal of the petition as to the father. We authorized the trial court to act and stayed the appeal until a court ruling could be reached on the mother's anticipated motion for relief from judgment.

         [¶5] The trial court [Dow, J.) ultimately ordered, with the father's consent, that the child would be placed in a permanency guardianship with the child's paternal grandparents. See 22 M.R.S. § 4038-C (2017). Because of the change in the permanency plan from adoption to permanency guardianship and the father's retention of his parental rights, the mother moved for relief from the judgment entered against her and sought to reopen the record so that the court could reconsider whether her rights should be terminated. The court [Ende, J.) granted the motion to reopen the record. The Department, joined by the mother, moved to stay the appeal pending the new hearing, and we granted that motion.

         [¶6] On November 20, 2017, the court held a hearing and took additional evidence. After hearing that evidence, the court entered the judgment now on appeal terminating the mother's parental rights. The court found, by clear and convincing evidence, the following facts, all of which are supported by competent evidence in the record. See In re Aurora M., 2018 ME 4, ¶ 2, 177 A.3d 617.

[The child] came into Departmental custody on or about December 17, 2015, at a time when [the mother] threatened suicide in [the child]'s presence, while she continued to evade DHHS, continued to use drugs and to display unregulated mental health symptoms, which violated a December 1, 2015 Safety Plan in which she had agreed to get mental health and substance abuse treatment and submit to random drug tests at DHHS request. A Jeopardy Order was entered against the Mother on February 22, 2016, after she waived her right to a contested hearing on the issue of jeopardy. Jeopardy Findings relating to the Mother were as follows:
[The child] is at risk for serious physical harm, serious emotional harm and/or serious neglect based on his mother's substance abuse, untreated mental health issues, exposure of [the child] to unsafe people and chronic unsafe/unstable housing. [The mother] has been diagnosed in the past with bipolar disorder, depression, PTSD, and anxiety disorder but has failed to maintain recommended treatment. [The mother]'s mental health concerns have led to her expressing her suicidal ideation in front of her young son. Due to the unstable lifestyle and chronic homelessness [the ...

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