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In re Child of Nathaniel B.

Supreme Court of Maine

July 25, 2019


          Submitted On Briefs: July 18, 2019

          Harold J. Hainke, Esq., Hainke & Tash, Whitefield, for appellant father

          The Department of Health and Human Services did not file a brief

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

          PER CURIAM

         [¶1] Nathaniel B. appeals from a judgment of the District Court (Skowhegan, Nale, J.) terminating his parental rights to his child.[1] In accordance with the procedure outlined in In re M.C., 2014 ME 128, ¶¶ 6-7, 104 A.3d 139, counsel for the father filed a brief indicating that there are no arguable issues of merit for appeal. We entered an order permitting the father to personally file a supplemental brief on or before May 15, 2019, but he did not do so. We affirm the judgment.

         [¶2] The Department of Health and Human Services filed a petition for child protection and preliminary protection orders two days after the child was born in March 2018. The petition alleged, among other things, that the child was in circumstances of jeopardy because of the father's unstable housing, frequent encounters with law enforcement, history of domestic violence, involvement with unsafe people, and inability to care for his other children safely. The court [Benson, J.) issued a preliminary protection order granting the Department custody of the child, and the child was placed in foster care. The father waived his right to a summary preliminary hearing, see 22 M.R.S. § 4034(4) (2018), and he later agreed to the entry of an order finding jeopardy to the child based on his recent arrest for theft, failure to participate in any scheduled drug screens, lack of involvement with the child, and inability to attend to the child's needs, see 22 M.R.S. § 4035 (2018). In September 2018, the Department petitioned for the termination of the father's parental rights to the child.

         [¶3] At the hearing on the termination petition in January 2019, the father's attorney was present, but the father did not appear even though the court found that he had received notice of the hearing. Based on the evidence presented at the hearing and the prior orders in the case, the court [Nale, J.) orally stated its conclusion that the State had proved by clear and convincing evidence that the father was parentally unfit pursuant to three of the statutory definitions of unfitness and that termination of the father's parental rights was in the best interest of the child.

         [¶4] A week later, the court issued a written judgment and made the following findings of fact by clear and convincing evidence.

As an initial matter, the Court has no trouble whatsoever concluding the Department made reasonable efforts to rehabilitate and reunify the family, as well as reasonable efforts to finalize the permanency plan. The evidence was overwhelming that the parents were offered all conceivably necessary services and that the Department went above and beyond. The crux of the problem was the parents' failure to engage.
The Court found the testimony of [a] former D.H.H.S. caseworker . . . particularly credible in this regard. The parents were provided with, inter alia, D.H.H.S. social worker services, safety assessment and planning, family team meetings, supervised visitation, and referrals for outside services, but they largely squandered these opportunities to participate, alleviate jeopardy, and take responsibility for raising [the child]. In this sense, their failure to appear for trial was consistent with their performance throughout much of this child protection case, when they missed family team meetings, [the child's] appointments, and even opportunities to visit with her. The fact that the visits that did occur were largely positive makes it all the more tragic that neither parent's visit attendance was acceptable, and that the parents sometimes chose to depart early from the visits that did occur. By the time of trial, it appears neither parent had visited with the child since the foster mother brought her to the hospital just prior to the mother's surgery last fall. (It should be noted that the father was invited to this visit and failed to appear, although he had led the foster mother to believe that he was coming.)
For his part, the father participated in only about fifteen minutes of a two-hour counseling assessment and no other services whatsoever. The Jeopardy Order had warned him that missed screens would count as positive screens, but he never participated in a single substance screen scheduled by the Department
Had the parents, or either one of them, actually gotten engaged in a productive manner, this case could and should have been on track for a successful reunification. It should be noted that both parents have other children to whom their parental rights have not needed to be terminated. . . . The father's sons are with their mother, and the father is able to visit with them under safe circumstances at his parents' home. However, in this particular case both parents failed to live up to their responsibilities in a timely fashion, and that constitutes unfitness within the framework the Legislature has provided in the Child Protection Act.
The parents were also unduly difficult for the D.H.H.S. caseworkers to reach and remain in communication with, often declining to inform the Department where they were living, staying, or working at any given time. They remained in a relationship with one another throughout much of the case, but there appeared to be chaos constantly swirling around them as they dealt with one arrest or criminal prosecution after another and moved from ...

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