Submitted On Briefs: June 26, 2019
McNally, Esq., Woodman Edmands Danylik Austin Smith &
Jacques, P.A., Biddeford, for appellant mother
Krishna Dougherty, Esq., Chester & Vestal, P.A.,
Portland, for appellant Father
M. Frey, Attorney General, and Zack Paakkonen, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee
Department of Health and Human Services
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and
A mother and father appeal from a consolidated judgment of
the District Court (York, Duddy, J.) terminating
their parental rights to their children. See 22
M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii)
(2018). Both parents challenge the sufficiency of
the evidence supporting the court's determination that
they are parentally unfit and contend that the court abused
its discretion in determining that termination was in the
children's best interests. Additionally, the father
challenges the denial of his post-judgment Rule 60(b)(6)
motion for relief from judgment on the ground of ineffective
assistance of counsel. See M.R. Civ. P. 60(b)(6). We
affirm the judgments.
In June 2017, the Department petitioned to terminate the
parents' parental rights as to the girls, and the
mother's parental rights as to the boy. See 22
M.R.S. § 4052 (2018). The court [Duddy, J.)
held a three-day hearing, from September 25 through September
27, 2018, on the Department's petition at which both
parents were present and represented by counsel. See
22 M.R.S. § 4054(2018).
By judgment dated November 2, 2018, the court terminated the
parents' parental rights as to the girls, and the
mother's parental rights as to the boy. See id.
§ 4055(1) (B)(2) (a), (b)(i)-(ii). The court found by
clear and convincing evidence that each parent (1) is
unwilling or unable to protect the children from jeopardy and
these circumstances are unlikely to change within a time
which is reasonably calculated to meet the children's
needs and (2) has been unwilling or unable to take
responsibility for the children within a time which is
reasonably calculated to meet the children's needs.
See id. § 4055(1)(B)(2)(b)(i)-(ii). The court
also found by clear and convincing evidence that termination
of the parents' parental rights is in the children's
best interests. See id. § 4055(1)(B)(2)(a);
In re Caleb M, 2017 ME 66, ¶ 6, 159 A.3d 345.
The court's supported factual findings as to the
mother's fitness are as follows:
The children were taken into custody over two years ago.
Since that time, [the mother] has failed to resolve her
chronic substance abuse and to address her mental health.
[The mother] has continued to use drugs and alcohol, has
failed to get clean and sober, and is currently abusing
alcohol and Subutex. [The mother] bullies and threatens her
treating physician to support her various substance use
habits. [The mother] lies about and minimizes her substance
use, and is in a state of denial and dishonesty. [The mother]
has failed to seek out and obtain mental health treatment,
and has failed to address her mental health issues. [The
mother] has failed to nurture a healthy attachment with [the
children]. The GAL testified at trial that in his opinion
[the mother] has not improved at all since the start of this
case, and the Court agrees.
Given her continued state of poly substance abuse, [the
mother] is currently unable and unwilling to protect her
children from jeopardy. She is also currently unable and
unwilling to take responsibility for her children. After two
years, [the mother]'s visits with her children are still
fully supervised. Even in a supervised setting, [the mother]
is barely able to feed [the boy], and totally unable to take
responsibility for a child with his profound disabilities.
[The mother]'s visits with [the girls] have been hurtful
and counterproductive. [The mother] has demonstrated no
understanding of or ability to manage [the younger
girls]'s anxiety disorder or [the older girl]'s PTSD.
In view of [the mother]'s failure for over two years to
make any progress toward sobriety and improved mental health,
and her current state of denial, [the mother] shows no
prospect for the foreseeable future of protecting the
children from jeopardy, or taking responsibility for them.
court's supported evidentiary findings as to the
father's parental fitness are as follows:
In the over two years since [the girls] were taken into
Department custody, [the father] has done next to nothing to
alleviate jeopardy or take responsibility for the girls. When
he was given visitation in late 2016, after being released
from jail, he missed several visits and his visitation was
suspended. Soon after visitation was resumed, [the father]
relapsed, and he asked for visitation to be suspended. He
failed to engage consistently or successfully in any services
while he was not incarcerated. He has only recently begun
participating in services during his current jail sentence.
He concedes that it will be at least nine to ten months
before he might be ready to parent the girls.... [T]he Court
finds that prediction unrealistic. The smallest thing
triggers [the father]'s drug use, and his track record
establishes that [the father] is not willing or able to do
the work necessary to improve his situation. [The father]
will not be able to protect the girls from jeopardy, or take
responsibility for them, anytime in the foreseeable future.
Accordingly, [the father] is unable or unwilling to protect
the girls from jeopardy, or to take responsibility for them,
within a time reasonably calculated to meet their needs.
The court also made the following supported findings
regarding the best interests of the children:
[The boy] ... has lived with the [foster parents] for most of
his life. The [foster parents] have learned how to interpret
[the boy]'s facial expressions and how to read his body
language. [The foster mom] understands how to implement
lessons learned from [the boy]'s many therapies. [She]
has also figured out how to successfully feed [the boy]. The
[foster parents'] household is stable, and provides a
safe environment in which all of [the boy]'s substantial
physical and emotional needs can be met. [The boy] is not old
enough, or intellectually able, to express a meaningful