Submitted On Briefs: September 26, 2018
Kristina Dougherty, Esq., Wise Old Law, LLC, Portland, for
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
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.
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
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.
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
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