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In re Child of Olivia F.

Supreme Court of Maine

October 1, 2019


          Submitted On Briefs: September 10, 2019

          Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant mother.

          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.

          PER CURIAM.

         [¶1] Olivia F. appeals from a judgment of the District Court (Lewiston, Martin, J.) terminating her parental rights to her child pursuant to 22 M.R.S. §4055(1)(A)(1)(a), (B)(2)(a), and (B)(2)(b)(i)-(iv) (2018).[1] She argues that the court erred as a matter of law in concluding that her failure to appear on the second day of the two-day termination hearing constituted "abandonment," and she asserts that there was not clear and convincing evidence to support the court's finding that she had the "intent to forego parental duties." 22 M.R.S. §4002(1-A) (2018). The mother further argues that the court abused its discretion in determining that termination of her parental rights is in the best interest of the child because, in making that determination, the court went beyond the scope of a termination proceeding and speculated about who would adopt the child post-termination. We affirm the judgment.

         I. BACKGROUND

         [¶2] The Department petitioned for a child protection order and a preliminary protection order for the child in October 2017, when the child was two years old. One year later, following the entry of a preliminary protection order and a jeopardy order, the Department filed a petition to terminate the mother's parental rights to the child. See 22 M.R.S. § 4052 (2018). The court held a consolidated hearing on that petition and on the issue of placement on January 25 and February 25, 2019.[2] The mother was present at the first day of the hearing, but at the outset of the second day, the mother's attorney stated on the record that although her client had "been in the courthouse this morning," she was "not in the courtroom," had "chosen not to come in," and may in fact have "left the courthouse." The mother was paged to the courtroom, and the court recessed while two Department caseworkers tried to locate her. The parties, other than the mother, and counsel returned to the courtroom, and the mother's attorney reported on the record that she had reached the mother by telephone and learned that the mother "is not present in the courthouse, and does not plan to return." The court proceeded with the hearing, taking additional evidence, including evidence related to placement. Before us, the mother does not dispute these facts.

         [¶3] The court entered a judgment in March 2019 granting the petition to terminate the mother's parental rights after finding by clear and convincing evidence all four statutory grounds of parental unfitness and that termination is in the best interest of the child. See 22 M.R.S. § 4055(1) (B)(2) (a), (b)(i)-(iv) (2018). The court found as follows:

[The mother] is 19 years-old and suffers from chronic substance use. Evidence reveals that [the mother's] drug use is longstanding and significant. Much of it stems from her own trauma suffered as a young child. Nonetheless, her drug abuse and chaotic lifestyle has landed her in jail on several occasions throughout the reunification process. In fact, initially the Department's obligation to reunify with [the mother] was suspended until [the mother] was released from jail. Over the course of the reunification process [the mother] has done little to alleviate jeopardy.
The Jeopardy Order ... required [the mother] to participate actively and consistently in services; sign all necessary releases; not to use or possess alcohol, illicit drugs, or prescription drugs except when used as prescribed by a qualified health professional; subject to random drug and alcohol testing; maintain safe and stable housing free from domestic violence, drugs and alcohol; and refrain from any/all criminal involvements and abide by the terms of probation conditions, if any.
Although there is evidence that [the mother] did well in services between July 2018 and September 2018 when she attended Crossroads (substance abuse recovery program), she has failed to successfully complete the reunification process including Crossroads aftercare plan. For example, despite her successes during these 2 1/2 months, she's had no contact with [the child] since September 2018; was incarcerated on three different occasions; her whereabouts were unknown during the months of November and December 2018 and she was arrested again on January 2, 2019 with a release date of January 31, 2019; was not consistent in individual or substance abuse counseling; did not follow recommendations of engaging in the Maine Enhancement Parenting Program (MEPP) and/or the Family Treatment Drug Court (FTDC); and did not complete the CODE evaluation. There simply has been no substantial progress over the last 16 months on [the mother's] part. [The mother] has failed to make a good faith effort to rehabilitate and reunify with [the child].
. . . . The Court finds that [the mother] has a chronic substance use disorder that has not been alleviated and has prevented her from taking responsibility for her child. In fact, [the mother] tested positive for cocaine just a day prior to the second day of trial in this case-just one of the reasons she chose not to attend the second day of the termination hearing.
The Court further finds that [the mother] abandoned [the child] by failing to attend the second day of the termination trial. 22 MRS § 4002(1-A)(E) and (F); see also, 22 MRS [§ 4055(1)(B)(2)(b)(iii)]. Such a refusal to participate in the termination proceeding indicates a strong "intent to forego parental duties." Id. ยง ...

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