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In re Child of Kaysean M.

Supreme Court of Maine

December 6, 2018

IN RE CHILD OF KAYSEAN M.

          On Briefs: November 28, 2018

          James S. Hewes, Esq., South Portland, for appellant father.

          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, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM.

         [¶1] Kaysean M. appeals from a judgment of the District Court (Portland, Eggert, J.) terminating his parental rights to his child pursuant to 22 M.R.S. §4055(1)(A)(1)(a) and (B)(2)(a), (b)(i)-(iv) (2017).[1] The father contends that he received insufficient notice of the termination hearing through service by publication and that the court erred by admitting in evidence the testimony of a Department of Health and Human Services supervisor. We affirm the judgment.

         [¶2] Based on competent evidence in the record, the court found by clear and convincing evidence that the father (1) is unwilling or unable to protect the child from jeopardy and these circumstances are unlikely to change within a time which is reasonably calculated to meet the child's needs; (2) is unwilling or unable to take responsibility for the child within a time which is reasonably calculated to meet the child's needs; (3) failed to make a good faith effort to rehabilitate and reunify with the child; and (4) abandoned the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(iv). The court also found that termination of the father's parental rights is in the child's best interest. See 22 M.R.S. § 4055(1)(B)(2)(a). The court based its determinations on the following findings of fact.

         [¶3] At the jeopardy hearing on September 11, 2017, where the father failed to appear but was represented by counsel, the court found that

letters sent to the Department by the father ... [and] presented as evidence show that his thoughts about his child are not based in reality. In addition, he is not present today nor has he had contact with the Department for some time, since most recently getting out of jail. He has abandoned his child.

See In re Marcus E., 2017 ME 200, ¶ 5 n.3, 171 A.3d 190 ("Although [at the termination hearing] the court was required to make its unfitness and best interest determinations by a higher standard of proof than its findings in earlier stages of the proceedings, including the jeopardy stage, the same judge presided over nearly the entirety of these child protective proceedings and was entitled to consider the evidence presented throughout")

         [¶4] At the conclusion of the termination hearing held on May 7, 2018, where the father again failed to appear but was fully represented by counsel, the court found from the bench at the close of the evidence:

[N]ot only has [the father] abandoned his child, he's abandoned the proceedings themselves .... All the legal efforts have been made and [they have not] been sufficient to get him here, and he hasn't contacted the Department throughout the process ... so he's made no efforts whatsoever to be involved in the rehabilitation, reunification process so that he could be a parent. And everybody, probably, in the criminal justice system from a judicial standpoint has had some contact with [the father] over time

         In its written order, the court found that

[t]he last contact that the caseworker had with the father was in court, when he was still incarcerated, in May, 2017. He sent some letters to the Department, but has had no contact with the Department since he was released from jail. He has had issues of mental health, substance abuse, and homelessness The child is thriving [in a placement with a relative]. . . . [The ...

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