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In re Child of Scott A.

Supreme Court of Maine

July 30, 2019

IN RE CHILD OF SCOTT A.

          Submitted On Briefs: July 18, 2019

          Seth Berner, Esq., Portland, for appellant father

          Aaron M. Frey, Attorney General, and Hunter C. Umphrey, 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, and HJELM, JJ.

          HJELM, J.

         [¶1] Scott A. appeals from a judgment of the District Court (Biddeford, Sutton, J.) terminating his parental rights to his child pursuant to 22 M.R.S. §4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2018).[1] The father asserts that the judgment violates his right to due process because the court predicated factual findings that he was involved in illegal drug activity in part on his invocation at trial of his Fifth Amendment privilege against self-incrimination. We affirm the judgment.

         I. BACKGROUND

         [¶2] The following facts are drawn from the court's findings, which are supported by competent record evidence, and from the procedural record. See In re Child of Shayla S., 2019 ME 68, ¶ 2, 207 A.3d 1207.

         [¶3] The Department of Health and Human Services first became involved with this family in 2004 due to various reports of abuse and neglect. In March of 2017, the older sibling of the child at issue here reported that the parents were both abusing drugs and selling drugs from the home.[2] The sibling also stated that the child was not attending school and that his needs were not being met.

         [¶4] During a departmental caseworker's interview of the child, he reported being very fearful of both of his parents and of activities in the basement of the home. He told the caseworker that he woke up "bawling" each morning, that many people went in and out of the home, that his mother drank a lot, and that his mother had told him that she wished that she and the child were dead.

         [¶5] Three days after the Department received that information, police were dispatched to the home in response to the mother's report of a domestic violence incident. When the police arrived, the mother recanted her initial complaint but had visible bruising on her face, reported feeling suicidal, and stated that she had been drinking. Shortly after, with the father's consent, a safety plan was implemented, and the child began to live with his grandparents. The child was still living in his grandparents' household when the termination order was issued nearly two years later.[3]

         [¶6] Near the end of March of 2017, the Department filed a child protection petition. See 22 M.R.S. § 4032 (2018). In the petition, the Department alleged that the child was in jeopardy due to neglect, emotional abuse, and the threat of physical abuse due to the parents' ongoing substance abuse, untreated mental health issues, and exposure to domestic violence.

         [¶7] In July of 2017, the parents agreed to a jeopardy order and judicial review and permanency planning orders [Cantara, J.), which placed the child in departmental custody.[4] The order required, among other things, that the father engage in substance-abuse and domestic-violence treatment and in other therapy to address his "emotional dysregulation." The order explicitly provided that the therapeutic provider was to be someone approved by the Department. Despite that requirement and his long-standing addiction to a narcotic prescription medication, he subsequently refused to engage in substance abuse treatment except with a person who had not been approved by the Department. After the jeopardy order was issued, the father twice tested positive for cocaine.

         [¶8] The Department filed a petition for termination of parental rights in February of 2018. See22 M.R.S. §4052 (2018). Two months later, while driving his vehicle, the father was stopped by local police officers and Maine Drug Enforcement agents. During the stop, one of the officers observed a container with what appeared to be packets of heroin in the vehicle. The father was arrested and ultimately indicted in federal court for one count of possession of fentanyl and one count of possession of fentanyl with the intent to distribute and conspiracy to distribute fentanyl, 21 U.S.C. §§ 841(a)(1), 846 (LEXIS through Pub. L. No. 116-29). The father was later granted pretrial release to attend a month-long residential substance use treatment program. Although he made progress during the program and came to acknowledge that he had been an ...


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