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In re Child of Haley L.

Supreme Court of Maine

July 11, 2019

IN RE CHILD OF HALEY L.

          Submitted On Briefs: June 26, 2019

          Thaddeus V. Day, Esq., Law Offices of Thaddeus V. Day, P.L.L.C, Cumberland Center, for appellant mother

          Aaron M. Frey, 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, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] Haley L. appeals from a judgment entered by the District Court (Portland, Eggert, J.) terminating her parental rights to her child.[1] See 22 M.R.S. § 4055(1)(A)(1)(a), (B)(2)(a), (b)(i), (ii), (iv) (2018). She argues that the court erred in finding that she had been provided proper notice of the hearing and in finding that the Department of Health and Human Services had satisfied its obligation to provide rehabilitation and reunification services, and she challenges the court's determinations of parental unfitness and the best interest of the child. We affirm the judgment.

         I. BACKGROUND

         [¶2] In July 2017, the Department filed a petition for a child protection order and preliminary protection order for the child, then fourteen months old, and his two-month-old brother. The petition alleged, and the accompanying affidavit from the Department averred, that the child and his brother were at risk of physical abuse or neglect after the brother was admitted to the hospital with a life-threatening injury he sustained while in his father's care. With respect to the mother, the petition and affidavit further cited as bases for protection the mother's untreated mental health issues, her lack of follow-through with previously recommended services, and the lack of safe and stable housing for the family. The affidavit indicated that the mother, an adult, was under the guardianship of her mother due to mental health issues.

         [¶3] The court [Dobson, J.) immediately entered an order of preliminary protection placing the children in the Department's custody. In late July 2017, the child's brother died, [2] and the court [Powers, J.) dismissed that child as a party later in August. Soon after the infant's death, the court [Eggert, J.) entered an order, after the parents waived the opportunity for a summary preliminary hearing, maintaining the Department's custody of the child. See 22 M.R.S. §4034(4) (2018).

         [¶4] In November 2017, the court entered a jeopardy order with the parents' agreement. See 22 M.R.S. § 4035(2), (3), (4-A) (2018). Jeopardy was based on the brain injury of the brother while in the father's care, the parents' untreated mental health issues, the mother's mental breakdown and ensuing hospitalization in September 2017, the father's previous domestic violence convictions, previous child protection history regarding the child, and the parents' recognition that they could not provide a safe, stable home because they were homeless and living in a tent. The court ordered the parents to participate in mental health treatment, including any recommended medication management, and to follow treatment recommendations, establish housing suitable for reunification, participate in a court ordered diagnostic evaluation, and have contact with the child consistent with the child's best interest. The permanency plan was reunification with the parents.

         [¶5] In the rehabilitation and reunification plan signed by the mother in November 2017, she agreed to address the reasons for the child's removal and to eliminate jeopardy by obtaining mental health treatment at the appropriate level of care, exhibiting sustained mental health stability, and providing a safe, sanitary, and stable living environment. She agreed to complete outpatient mental health treatment, participate in supervised visits, submit to psychiatric medication management, and maintain secure housing. The Department agreed to ensure the provision of outpatient mental health and psychiatric treatment, a level-of-care assessment, transportation support, and supervised visitation.

         [¶6] In May 2018, the Department petitioned to terminate the mother's parental rights based on her lack of consistent progress toward any of the rehabilitation and reunification goals. See 22 M.R.S. § 4052 (2018). The petition was served in hand on both the mother and the mother's guardian. See 22 M.R.S. § 4053 (2018). On May 25, 2018, the court entered an order that provided notice of a trial management conference to be held on September 4, 2018, and of a trial to be on the trailing docket that would run from September 6 to 15, 2018.

         [¶7] The court sent a notice in early July 2018 stating that a hearing on termination petition would be held on September 6, 2018, and that the parties must appear "in person or by counsel." The notice did not mention the pretrial conference already scheduled for September 4, 2018.

         [¶8] The court [Foster, J.) held the pretrial conference on September 4, 2018, and the parents did not appear. The court entered a judicial review and permanency planning order and order terminating the parents' parental rights. The court [Eggert, J.) vacated the termination judgment upon the Department's motion in November 2018 because the court's notice of the termination hearing had omitted mention of the pretrial conference and had incorrectly stated that the parents could appear at the termination hearing by counsel.[3] In its order, the court scheduled a trial management conference for ...


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