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In re Children of Corey W.

Supreme Court of Maine

January 10, 2019

IN RE CHILDREN OF COREY W.

          Submitted On Briefs: November 28, 2018

          Charlene Hoffman, Esq., Portland, for appellant Father

          Thomas L. Richard, Esq., Rioux, Donahue, Chmelecki & Peltier, LLC, Portland, 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, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] The mother and father appeal from a judgment of the District Court (Bridgton, Darvin, J.) terminating their parental rights to two of their children.[1] The father asserts that the Department of Health and Human Services placement of the children with a kinship foster family in Florida frustrated his ability to reunify with them, rendering the Departments reunification plan noncompliant with the requirements prescribed in 22 M.R.S. § 4041(1-A)(A)(1) (2017). He further contends that the court erred by approving the childrens out-of-state placement in its order after judicial review. The mother challenges the sufficiency of the evidence underlying the courts determination that she is parentally unfit within the meaning of 22 M.R.S. § 4055(1)(B)(2)(b)(ii)-(iv) (2017). We affirm the judgment.

         I. BACKGROUND

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

         [¶3] In October of 2016, the Department filed petitions for child protection and preliminary protection orders concerning the two children at issue here. See supra n.1. The court (Dow, J.) issued a preliminary protection order at that time, granting custody of the children to the Department, which placed them with their maternal grandparents. In February of 2017, while both parents were incarcerated, [3] the court (Darvin, J.) issued an agreed-upon jeopardy order as to each parent. The jeopardy findings included each parents untreated mental health problems, longstanding addiction and substance abuse issues, significant criminal histories, and failure to protect the children from unsafe people and provide the children with a safe and secure home.

         [¶4] In late 2016, the childrens grandparents determined that they could not meet the older childs high level of specialized needs and requested that the Department find an alternative placement for both children. The Department was unsuccessful in locating a suitable therapeutic foster placement in Maine where the children could be placed together. The following April, the children were placed in the home of the fathers cousin and her wife in Florida, both of whom were already licensed foster care parents.

         [¶5] At the time the children were placed in Florida, the father had been released from jail, see supra n.3, completed an inpatient substance abuse program, and moved into a sober house. Asserting that the childrens geographic separation from him would be a barrier to reunification, in May of 2017 the father filed a motion for the court to hold an expedited judicial review hearing where he could challenge the childrens out-of-state placement.[4] See 22 M.R.S. § 4038(2) (2017). The court granted the request and, after holding a judicial review hearing in September of 2017, [5] issued an order that allowed the childrens placement in Florida to continue "on a temporary basis." Along with other requirements outlined in the Departments rehabilitation and reunification plan, the court ordered the father to complete "specific and targeted tasks to address the major outstanding concerns." These tasks included contacting the older childs treatment professionals and completing Department-recommended parenting courses. The court explained that "[b]y completing the required tasks and complying with the terms of this order [, the] father should be able to demonstrate a clear path toward reunification." The court also provided for contact between the father and the younger child, including "telephone and Internet based visitation ... at least twice a week," and in-person contact in Florida to be arranged and paid for by the Department. The court stated that at the next judicial review hearing it would consider whether placement of the younger child, who did not face the significant challenges presented by the older child, should be moved to Maine.

         [¶6] In February of 2018, the Department filed a petition to terminate the parental rights of both parents, and in April, shortly after the mother was released from federal prison, see supra n.3, the court held a two-day hearing on the petition. The following month, the court entered a judgment terminating the parental rights of each parent. Based on clear and convincing evidence in the record, the court determined that each parent was unable to take responsibility for the children and had failed to make a good faith effort to rehabilitate and to reunify with the children, and that these circumstances were unlikely to change within a time reasonably calculated to meet the childrens needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(ii), (iv). The court also concluded that the mother had abandoned both children by failing to communicate meaningfully with the children and their foster parents and providers during the preceding year, and that the father had abandoned the older child by failing to engage and communicate with him. See id. § 4055(1)(B)(2)(b)(iii). Finally, the court concluded that termination of the parents parental rights is in the childrens best interests. See 22 M.R.S. § 4055(1)(B)(2)(a) (2017).

         [¶7] In support of those determinations, the court made the following findings of fact, all of which are supported by competent record evidence.

The [older child] is now 4 ½ years old. As of the hearing date he had been in DHHS custody for more than 18 months and one third of his life. . . . [The older child] has been receiving regular therapeutic counseling and special education services for more than one year in Florida....[H]is behavior this past year noticeably worsened or regressed immediately following his previous communication or contact with his father....In general, [the older childs] behavior has improved ... following the cessation of direct communication with his father authorized by the 9/26/17 judicial review order. [He] . . . expresses considerable distress at the thought of returning to Maine. As of the hearing date [the older child] had not had any contact or communication with his father since July 2017 (when telephone/Skype communication was terminated) and has not seen his father in person since sometime in March 2017....
[The younger child] was a little more than 9 months old when this case was commenced and she is now almost 2 ½ years old.... [T]here were numerous telephone communications [between the father and the younger child] that did not take place as scheduled due to fathers failure to follow through or abide by reasonable contact guidelines. . . . [T]he level of attachment and interest between father and daughter appears minimal. . . . [The younger child] has been given a formal [mental health] diagnosis....
The mother . . . must remain in the sober house for at least the next few months before she may be permitted to look for other housing....She is at the early stages of creating a life and support system outside of jail that hopefully will allow her to sustain her sobriety and independent living. As of the hearing date [the mother] had not had any in person contact with either child in more than 16 months and had only brief telephone communication with [the older child] during a few telephone calls prior to April 2017. Throughout her lengthy ...

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