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In re Child of Troy C.

Supreme Court of Maine

November 13, 2018

IN RE CHILD OF TROY C.

          Submitted On Briefs: September 26, 2018

          Christopher J. Whalley, Esq., Ellsworth, for appellant father Jeffrey C. Toothaker, Esq., Ellsworth, 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, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] The mother and father of the child appeal from a judgment of the District Court (Ellsworth, Roberts, /.) terminating their parental rights to their son pursuant to 22 M.R.S. § 4O55(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(iv) (2017). The father contends that the court erred in its parental unfitness finding and that he was denied due process. The mother contends that the court erred in its determination that termination of her parental rights is in the best interest of the child. We affirm the judgment.

         I. BACKGROUND

         [¶2] 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.

         [¶3] The Department of Health and Human Services (the Department) became involved with this family in February 2015 following reports of domestic violence and substance abuse. On the Department's petition, the court [Mallonee, J.) issued a preliminary protection order on February 20, 2015. After the opportunity for a summary preliminary hearing, the court awarded the father custody of the child with several conditions imposed, including that the father participate in a substance abuse assessment and education program, and that the father have no contact with the mother in the child's presence.

         [¶4] The court returned the child to the Department's custody in April 2015, following the Department's second request for a preliminary protection order, in which the Department alleged that the child was present in the father's home when the mother assaulted the father.

         [¶5] The Department petitioned to terminate both parents' parental rights on March 10, 2016. Following a hearing, the court [Roberts, J.) denied the petition. In denying the petition, the court found that the mother, who had been unable to provide care of the child for nine months due to substance abuse, met all four statutory definitions of parental unfitness. See 22 M.R.S. §4055(1)(B)(2)(b)(i)-(iv). Based on evidence that he had not attended medical appointments and had missed several scheduled visits with the child, the court found that the father had not made a good faith effort to rehabilitate and reunify with the child. See 22 M.R.S. §4041(1-A)(B) (2017). Thecourtalso found that the father did not understand the risk that the mother's substance abuse posed to the child. Nevertheless, because the court found that the Department had not given the father "a clear indication of the steps he must take to rehabilitate and reunify," the court did not find that the father was unfit. The court denied the Department's petition with respect to both parents, determining that it would not be in the child's best interest to terminate the mother's parental rights when reunification with the father remained a possibility.

         [¶6] The court, therefore, denied the petition for termination and issued a judicial review order clearly setting out the responsibilities of the father in the upcoming reunification process. The court ordered that the father "shall participate in random drug screening and abstain from use of any non-prescribed mood altering substances; . . . [and] shall participate in an updated substance abuse evaluation and follow all recommendations." Following this order, the Department sent several letters to the father expressing concerns about positive results on drug tests.

         [¶7] On June 19, 2017, the Department filed a second petition for termination of parental rights. Following a two-day hearing, the court made the following findings of fact, all of which are supported by competent evidence in the record:

[The mother's] relationship with [the father] was marred by domestic violence to a degree which would jeopardize [the child's] safety. [The mother] was unable to provide safe care for [the child] for a period of 9 months preceding the first Termination hearing due to substance abuse[The mother] acknowledges that she is unable to ...

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