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In re Child of Matthew R.

Supreme Court of Maine

November 8, 2018

IN RE CHILD OF MATTHEW R.

          Submitted On Briefs: September 26, 2018

          Kristina Dougherty, Esq., Wise Old Law, LLC, Portland, for appellant father

          Janet 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

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

          PER CURIAM.

         [¶l] Matthew R. appeals from a judgment of the District Court (Wiscasset, Raimondi, J.) terminating his parental rights to his son. He argues that the court erred and abused its discretion in finding that he was unwilling or unable to protect the child from jeopardy and that those circumstances were unlikely to change within a time reasonably calculated to meet the child's needs and in finding that termination of the father's parental rights was in the child's best interest. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i) (2017). We affirm the judgment.

         [¶2] In August 2016, while the child was residing with a family member pursuant to a safety plan between the Department of Health and Human Services and the child's parents, the Department filed a petition for a child protection order. The petition alleged that the mother had a significant substance abuse problem with related periods of incarceration and that the father was unable to maintain a safe, clean home unaffected by the mother's drug abuse. On November 3, 2016, the court entered an agreed-upon jeopardy order with respect to each parent. Jeopardy as to the father arose from the father's failure to protect the child from being exposed to risks resulting from the mother's drug abuse, including an unsanitary home visited by unsafe people. Jeopardy was also based on the father's inability to exercise independent judgment, separate from the mother, to protect the child. The court placed the child in the Department's custody and maintained the kinship placement.

         [¶3] By August 2017, the mother had been incarcerated for violating probation and conditions of house arrest, and the Department petitioned to terminate both parents' parental rights. The petition alleged that the mother had proved unable to stop using drugs and that the father, who would not separate from the mother, was unrealistically confident that she would recover from her addiction and that she could be trusted with the child's care.

         [¶4] The termination hearing was held over the course of three days- December 5, 18, and 19, 2017. The court then, upon the mother's consent, entered a judgment terminating the mother's parental rights. After considering all of the evidence presented, the court carefully considered the facts weighing against termination and those weighing in favor of termination and found, by clear and convincing evidence, the following facts with respect to the father. See In re Children of Melissa ¶., 2018 ME 110, ¶ 11, 191 A.3d 348.

There are a number of factors that would support the conclusion that termination is not appropriate in this case. [The father] does not have a problem with substance abuse. He has consistently held down a full-time job ... for more than 5 years. He has facially complied with some of the Department's requirements. He has obtained safe and appropriate housing. He did participate in a CODE [court ordered diagnostic] evaluation. He has attended counseling. He has visited regularly and consistently with [the child]. He has met and co-operated with the Department's caseworker. The CODE evaluator . . . makes it clear that lack of intelligence and capacity to parent is not an issue here. [The father] and [the child] have a bond with each other. There is no question that [the father] cares about [the child]. All those factors weigh against termination.
The factors that support termination are clearly laid out in the Guardian's final summary:
[The father] has a problematic co-dependent relationship with [the mother] that has spanned over numerous long-term incarcerations and continued drug use. His unyielding loyalty to [the mother] comes at the price of jeopardizing [the child]'s safety. [The father]'s inability and/or refusal to recognize the extent of [the mother]'s drug use and take proactive measures to protect [the child] from the risk [the mother]'s substance abuse poses has caused [the father] to be an unsafe caregiver for [the child]. The only reason [the father] is safely able to have unsupervised visitation with [the child] now is because [the mother] is incarcerated and [the child] is not at risk of being exposed to her substance abuse or the effects thereof.
It is difficult for the court to reconcile [the father]'s intelligence level and capacity to parent with [the child]'s condition and the conditions in which [the child] was living when he came into care. As the Guardian noted in her report dated [August] 2016: "At almost 5 years old, [the child has significant speech delays]." At the home visit immediately preceding the filing of the petition, there was a loaded syringe within [the child]'s reach on the porch. The home was filthy with trash and feces on the floor. Even during the pendency of this case unsanitary conditions persisted until the home was foreclosed upon and [the mother] went to jail. [The mother] was in jail for two years after [the child]'s birth. During that time [the father] was responsible for [the child]'s care. [The child]'s condition as of the filing of the Department's petition is the most compelling evidence as to the care and quality of parenting provided by both [the father] and [the mother].
The question presented to the court is how a competent, caring parent could allow these things to happen, and if anything has changed such that [the child] would be safe in ...

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