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In re Child of Carl D.

Supreme Court of Maine

May 9, 2019

IN RE CHILD OF CARL D.

          Submitted On Briefs: April 24, 2019

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

          Nathaniel Seth Levy, Esq., Brunswick, for appellant mother

          Aaron M. Frey, Attorney General, Jamie Lynn Bice, Stud. Atty., 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, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] Carl D. and the mother of his child appeal from a judgment of the District Court (Portland, Powers, /.) terminating their parental rights to their child. 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2018). The father challenges the court's unfitness determination, and both parents contend that termination of their parental rights is contrary to the best interest of their child. We affirm the judgment.

         I. BACKGROUND

         [¶2] On September 22, 2016, the Department of Health and Human Services filed a child protection petition and a request for a preliminary protection order. See 22 M.R.S. §§ 4032, 4034 (2018). The petition alleged that the mother exposed the child to unsafe individuals and violence in the home and that both parents have been unable to keep the child safe and meet the child's significant behavioral needs. The court [Darvin, J.) entered an order transferring custody of the child to the Department on the same day. On December 29, 2016, the court [Powers, J.) entered a jeopardy order, with the parties' agreement, and custody remained with the Department. See 22 M.R.S. §4035(1)-(2)(2018).

         [¶3] The Department first petitioned for termination of the parents' rights on August 9, 2017, see 22 M.R.S. § 4052 (2018); however, the Department withdrew the petition during a period of trial placement with the father. The Department filed a second petition for termination of the parents' rights on May 30, 2018, after the child had been removed from the parents' care and placed in a residential treatment setting. The court held a three-day hearing on the petition and, on November 6, 2018, found by clear and convincing evidence that the parents are unwilling or unable to protect the child from jeopardy or take responsibility for the child within a time that is reasonably calculated to meet the child's needs, and that termination of the parents' rights is in the best interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii).

         [¶4] The court based its decision on the following factual findings, all of which are supported by competent evidence in the record.

This case has been pending for over 25 months, resulting in [the child's] removal from the home. [The child] has had recent mental health hospital and crisis center stays. [The child] suffered from trauma at home with [the] mother[, ] who was caring for [the child]. The father was in New York and not actively involved. The mother has had alcohol and drug use issues since she was a teenager. She is now 42. She has also had mental health diagnoses, which have required her to take several medications. [The mother] has led a chaotic life and she still does except for obtaining an appropriate apartment in 2017. [The mother] has apparently been "clean" for a few months except that she smokes marijuana daily. She has not been totally honest with providers about her alcohol and drug use history and has had some positive tests in 2017 and 2018. [The mother] admits that her alcohol issue is substantial, and it has affected her ability to be a safe and stable parent. She has had counseling off and on for years and still struggles with substance use and her mental health. Two separate trial placements with both parents have failed. [The mother's] obvious love for [the child] is not enough to keep [the child] safe.
[The father] has had some substance abuse counseling in New York but still has not been able to keep his drinking under control. He had a driving under the influence conviction there and started treatment in February 2017. His counselor opines believably that the [child's] father needs to be completely abstinent. The treatment ended in January 2018, and it is clear [the father] has continued to drink alcohol. He admits his problems typically relate to alcohol. He has also tested positive in 2017 for marijuana.
[An] April 16, 2018 incident [occurring during the child's second trial placement with the father] involved improper use of alcohol and untruthful statements about what happened when he went out to bars and later had an argument with [the mother] after hiding a woman in the apartment. Police came, and the father's second trial placement ended. [The father] admitted that he really made a huge ...

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