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In re Child of Mercedes D.

Supreme Court of Maine

November 13, 2018


          Submitted on Briefs: October 10, 2018

          Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant mother

          Corey R. McKenna, Esq., Fairfield & Associates, P.A., 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 MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] The mother and father of a child appeal from a judgment of the District Court (Biddeford, Foster, J.) terminating their parental rights to the child pursuant to 22 M.R.S. § 4O55(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(ii), (iv) (2017). The mother challenges the court's denial of her motion to continue the termination hearing and appoint a guardian ad litem[1] for her. The father challenges the sufficiency of the evidence supporting the court's determinations that he is parentally unfit and that termination of his parental rights is in the best interest of the child. We affirm the judgment.

         I. BACKGROUND

         [¶2] The following facts are drawn from the court's findings, which are supported by the evidence, and the procedural record. See In re Evelyn A, 2017 ME 182, ¶ 4, 169 A.3d 914.

         [¶3] In July of 2016, days after the child was born, the Department of Health and Human Services became aware of concerns regarding the newborn's safety while in his parents' care. A safety plan was created for the family, requiring the parents to move out of the home of the child's paternal grandmother-whom the Department had deemed an unsafe person-and live with another member of the father's family.

         [¶4] The following month, the Department was notified that the father's family member could no longer provide housing to the family, and the Department also discovered that the parents had left the child alone with the father's mother in violation of the safety plan. Consequently, on August 17, 2016, the Department filed a petition for preliminary protection and a child protection petition. See 22 M.R.S. §§ 4032-4033 (2017). The court granted the preliminary protection order the same day and ordered that the child be placed in departmental custody.

         [¶5] The court issued agreed-upon jeopardy orders as to the mother and father in September and December of 2016, respectively. In the jeopardy orders, the court found that each parent had mental health issues, cognitive delays, and limited parenting skills, and did not have safe and stable housing. Additionally, the court found that the father had a history of anger issues. The child remained in the Department's custody and was placed with the father's aunt, where the child has since lived.

         [¶6] In the spring of 2017, acting upon the Department's motion, the court directed that each parent undergo a court-ordered diagnostic evaluation (CODE) in order to assess mental health and cognitive issues. See 22 M.R.S. § 4007(3) (2017); M.R. Civ. P. 35. The resulting evaluation of the father did not indicate cognitive limitations, but the examiner diagnosed him as having "other specified personality disorder with narcissistic and antisocial features; attention deficit hyperactivity disorder; . . . and adjustment disorder with anxiety."

         [¶7] The mother failed to show for the examination when it was originally scheduled but eventually submitted to the examination a month before the hearing on the termination petition. The examiner determined that the mother's intellectual functioning was "borderline for language-mediated tasks" and "in the average range for non-verbal related intellectual tasks." He also determined that her vocabulary was insufficient to undertake the full battery of psychometric testing. Based on that assessment, the examiner reported that "it would be important for anybody [who] interacts with [the mother] to make sure that [the mother] understands what is being said." The examiner diagnosed the mother as having a cognitive disorder, not otherwise specified; attention deficit hyperactivity disorder; and post-traumatic stress disorder, in partial remission. The examiner's report did not reflect any explicit concerns that the mother lacked the capacity to participate meaningfully in the termination proceedings.

         [¶8] On July 14, 2017, the Department filed a petition to terminate the parental rights of each parent, and the court held a two-day hearing on the petition in March and April of 2018. Before the presentation of evidence on the first day of the hearing, the court addressed a motion filed by the mother that day for the court to continue the termination hearing and order the appointment of a guardian ad litem for her.[2]See M.R. Civ. P. 17(b). The motion recited counsel's "concerns about the mother's competency" based on counsel's review of the CODE report, which counsel had received within several weeks before the hearing. When the court invited counsel to be heard on the motion, counsel stated to the court that, according to the CODE report, the mother has "very low vocabulary levels" and, as a result, had been unable to complete the testing process; that the mother functions at a "fairly low" level, creating concerns about whether ...

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