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In re Children of Benjamin W.

Supreme Court of Maine

September 17, 2019


          Submitted On Briefs: September 10, 2019

          Wayne Doane, Esq., Exeter, for appellant father

          Aaron M. Frey, Attorney General, and Zach Paakkonen, 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] Benjamin W. appeals from a judgment entered by the District Court (Skowhegan, Benson, J.) terminating his parental rights to his two youngest children.[1] See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(T), (ii), (iv) (2018). He asserts that the court erred by denying his motion to continue when he was absent during the second day of the hearing because he had been arrested at the courthouse shortly before the proceedings began, and he challenges the court's conclusion that termination of his parental rights was in the children's best interests. We affirm the judgment.

         I. BACKGROUND

         [¶2] In April of 2018, the Department of Health and Human Services filed a petition for a child protection order and preliminary protection order for the two children at issue here, who were then ten and four years old. 22 M.R.S. §§ 4032, 4034 (2018). The petition alleged that between 2015 and 2018, the Department had received reports that the children were at risk due to both parents' substance use, the presence of dangerous individuals in their home, and neglect. The Department further alleged that the father had exposed the children to extreme violence. On the same day the petition was filed, the court [Fowle, J.) entered a preliminary protection order, placing the children in the Department's custody. Id. § 4034(2). The parents later waived the opportunity for a summary preliminary hearing. See id. § 4034(4).

         [¶3] In August of 2018, the court [Benson, J.) entered an agreed-to jeopardy order as to both parents, see 22 M.R.S. § 4035 (2018), based in relevant part on the father's "significant substance abuse, as well as severe violence," including domestic violence he had perpetrated against the children's mother. At the end of 2018, the Department petitioned to terminate both parents' parental rights, 22 M.R.S. § 4052 (2018), and in March of 2019 the court held a two-day contested hearing on the termination petition as to the father.[2]

         [¶4] The father completed his testimony on the first day of the hearing. Two weeks later, on the morning of the second day of the hearing and just before the hearing began, the father was arrested following an altercation in the courthouse lobby.[3] After the arrest, his attorney moved the court to continue the second day of the hearing until the father was available. The court denied the motion, finding that the father's absence was the result of his own voluntary conduct. See In re A.M., 2012 ME 118, ¶ 19, 55 A.3d 463. In the resulting termination judgment, the court also noted that the father failed to make any post-trial offer of proof as to what "additional relevant information [he] might have ... provided."

         [¶5] After the hearing proceeded and the parties completed the presentation of evidence, the court orally stated its findings and its ultimate conclusion that it would grant the termination petition. The court subsequently issued a written judgment that contained the following findings, which the court stated were based on clear and convincing evidence and which are supported by competent evidence in the record. See 22 M.R.S. 4055(1)(B)(2) (2018); Vibert v. Dimoulas, 2017 ME 62, ¶ 15, 159 A.3d 325.

[A] side from attending [the court-ordered diagnostic evaluation, the father] has not engaged in any service requested by the Department or [o]rdered by this Court. He failed ... to attend random drug screens requested by the Department; he failed to attend a certified Batterer's Intervention Program; he failed to engage in any meaningful individual mental health treatment; he failed to engage in any parenting education classes; he failed to maintain safe and stable housing that is free from domestic violence, drugs, and alcohol; and he failed to refrain from criminal activity.
[The father] can charitably be described as an extraordinarily difficult individual to work with. In this case, the Department went to heroic lengths in its attempts to work with [the father], ... in spite of the father's penchant for vulgar behavior and language at the very least, and proclivity and potential for violence at the worst.
[The father] has simply refused to engage in a single service outside of the medication assisted treatment he was receiving on his own . . . before the Department became involved. The Court finds that even this purported engagement in substance abuse treatment is incredible. It also finds that [the father] went out of his way to obstruct the Department from obtaining even those treatment records. [The father] flatly, ...

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