Submitted On Briefs: September 26, 2018
Richard Charest, Esq., Lewiston, 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, and
Joshua S. appeals from a judgment entered by the District
Court (Lewiston, Beliveau, J.) terminating his
parental rights to his child pursuant to 22 M.R.S. §
4055(1)(B)(2)(a), (b)(i)-(ii) (2017). The father challenges
the court's determination that termination of his
parental rights is in the best interest of his child rather
than a permanency guardianship with the child's maternal
grandmother. We affirm the judgment.
This case began on January 23, 2017, when both of the
child's parents were arrested after law enforcement,
working with the mother's probation officer, entered the
family residence and seized heroin, cocaine, marijuana, and
various items of drug paraphernalia. At the time of their
arrest, the police observed needles, cocaine, heroin, and
fentanyl out in the open. The child-then six years old-was
present during the arrest.
As a result of the arrests, on February 2, 2017, the
Department of Health and Human Services filed a petition for
a child protection order, alleging that both parents abused
drugs, the father was trafficking scheduled drugs out of the
home, and that the child was exposed to unsafe conditions,
including access to scheduled drugs and domestic violence
between the mother and father. The court [Dow, J.)
granted a preliminary protection order that day, placing the
child in the custody of the Department.
On April 24, 2017, the District Court [Oram, J.)
entered a jeopardy order by agreement, finding that the
parents had untreated substance abuse and mental health
issues and exposed the child to an unsafe living environment
and unsafe individuals. By judicial review order dated
September 14, 2017, the court [Dow, J.) ordered the
Department to cease reunification efforts with the father
because continuing such efforts would be "inconsistent
with the permanency plan for the child." On January 3,
2018, the Department petitioned the District Court to
terminate the parental rights of both parents. See
22 M.R.S. §4055(1)(B)(2)(2017).
After a one-day testimonial hearing, by judgment dated April
11, 2018, the court [Beliveau, J.) terminated the
father's parental rights, having found, by clear and
convincing evidence, that (1) the father was "unable to
take responsibility for his child and is unable to protect
[the child] from jeopardy within a reasonable time to meet
[the child's] needs," and the "circumstances
clearly indicate that there will be no change within a time
reasonably calculated to meet the child's needs" and
(2) termination was in the best interest of the child. See 22
M.R.S. §4055(1)(B)(2)(a), (b)(i)-(ii). The court based
its decision on the following findings, which are supported
by competent record evidence.
The child  has been in foster care since February 2, 2017.
[The child] is now 7 years of age. The father is still
incarcerated and his expected release date is March 2020. He
has been incarcerated since January of 2017. He was expected
to participate in substance abuse and mental health
counseling while incarcerated. He attended IOP [Intensive
Outpatient Program] while in jail but did not participate in
follow up treatment..... Prior to his incarceration he had
been abusing illegal drugs since age 25 years. This continued
for at least 5 years prior to his incarceration. ... During
those years, he attended the local Grace St. IOP program but
still relapsed. He never attended any counseling or treatment
programs after completing the IOP program.... According to
the Father's testimony, his longest period of sobriety
was 7 months during the 4 to 5 years prior to his
incarceration. He has waited till just recently to attend a
parenting class in jail.
The [Department] caseworker . . . testified the Father was
given DHHS contact information but never called to ask how
his child was doing. In addition, [the Department caseworker]
said that the Father upon release would have to undergo
mental health and substance abuse counseling and prove he can
be sober before caring for his child. This [c]ourt finds that
it would be a long period of time for this to happen. His
history of unsuccessful treatment and sobriety are negatives
in relation to the time it would take for him to be
This [c]ourt found and concluded in its Jeopardy Order that
[the child] was in "circumstances of jeopardy to [the
child's] health and welfare as evidenced by the threat of
serious harm and the threat of neglect." [The Father]
continues to have serious untreated substance abuse, mental
health issues as well as a history of domestic violence. In
addition, the parents exposed the ...