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In re Child of Rebecca R.

Supreme Court of Maine

December 12, 2019


          Submitted On Briefs: November 21, 2019

          Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant mother

          James S. Hewes, Esq., South Portland, for appellant father

          Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services


          PER CURIAM

         [¶1] A mother and father appeal from a judgment of the District Court (Biddeford, Duddy, J.) terminating their parental rights to their child pursuant to 22 M.R.S. § 4055(1)(A)(1)(a), (B)(2)(a), (B)(2)(b)(i)-(ii), (iv) (2018). The parents contend that the court erred in finding by clear and convincing evidence that each of them is unfit. See 22 M.R.S.§ 4055(1)(B)(2)(b)(i)-(ii), (iv). The mother additionally contends that the court violated her constitutional rights to due process and equal protection by terminating her parental rights "based solely on [her] economic status." The father separately contends that the court erred in (1) finding by clear and convincing evidence that termination was in the child's best interest, see 22 M.R.S. § 4055(1)(B)(2)(a); (2) declining to allow a witness who testified at the hearing to testify as an expert; and (3) failing to accommodate his disability at the hearing. We affirm the judgment.[1]

         A. Unfitness and Best Interest Findings

         [¶2] The court made its unfitness findings, as well as its finding that termination was in the child's best interest, based on competent evidence in the record. "We review the court's factual findings supporting its determination of parental unfitness and best interest[] of the child[] for clear error, and review its ultimate conclusion that termination is in the best interest[] of the child[] for an abuse of discretion, viewing the facts, and the weight to be given them, through the trial court's lens, and giving the court's judgment substantial deference." In re Children of Jessica D., 2019 ME 70, ¶ 4, 208 A.3d 363 (quotation marks omitted).

         [¶3] The court's supported, thorough factual findings underlying its unfitness and best interest determinations include the following:

This is a deeply frustrating and somewhat odd case. [The father and mother] are the biological parents of [the three-year-old child]. [The child's] parents do not suffer from domestic violence or substance use disorder. Jeopardy in this case should have been easily rectifiable. Instead, over the course of nearly three years [the father and mother] selfishly elevated their own lifestyle choices over the needs of [the child], stubbornly refused to engage in key aspects of the reunification plan, and persistently failed to alleviate lack of safe and stable housing, which was a critical element of jeopardy. As a result of their actions, [the child] has remained in foster care for most of her young life
... The Court finds by clear and convincing evidence that the Department has made reasonable efforts to rehabilitate and reunify the family, and has made reasonable efforts to identify and pursue an alternative permanency plan
The Court finds the following facts by clear and convincing evidence. . . . Within days of [the child's] birth, [hospital] staff reported concerns regarding [the child's] parents to the Department due to the mother's untreated mental health and difficulty managing [the child's] care, and the father's lack of engagement with the infant. As a result, the Department opened an assessment of the family. [The child] was discharged from [the hospital]... to the care of her parents with a Department Safety Plan in place requiring the mother be supervised at all times with [the child].
[Eight months later], another report was made to the Department with concerns for [the child] and her parents. [The parents] had left [the] eight month old [child] in the care of two individuals they had just met at a grocery store. These two individuals were not safe or appropriate caregivers for [the child]. One of the individuals had significant cognitive limitations. The other individual had child protective history and had lost the custody of her own children. [The parents] left [the child] in their care for approximately one month, allegedly because where they were living had become infested with bed bugs. Neither [parent] recognized the risk of their judgment and decision to leave [the child] with these individuals.
The Department requested and received an Order of Preliminary Child Protection granting custody of [the child] to the Department.... A Jeopardy Order as to both parents was [later] entered by agreement of the parties ... with custody of [the child] remaining with the Department. By this point, [the parents] had been evicted from their housing and were homeless
The Jeopardy Order set forth several required steps....Both parents were required to participate in parenting education. [The mother] was required to consistently engage in mental health treatment and follow recommendations. [The father] was to participate in a mental health evaluation and follow the resulting recommendations. [The parents] for the most part complied with these requirements. However, both parents were also required to establish and maintain safe, stable housing suitable for family reunification. Toward this end, the parents were required to notify the Department and Guardian Ad Litem of any changes in the composition of their household, since one of the grounds for jeopardy was the parents' inability to recognize safe and appropriate caregivers for [the child]. [The parents] failed to satisfy these requirements.
[The parents] initially participated in joint supervised visits through Home Counselors, Inc. (HCI) with [the child]. However, it soon became clear that [the father] was unable to participate meaningfully in morning visits with [the child]. This was the first indication the Department had that something was seriously amiss with [the father].... The visit supervisor reported safety concerns due to [the father's] inability to care for [the child]. [The mother] did not appear to recognize the risk posed by [the father]. Both parents reported that [the father's] dysfunction was due to his sleep schedule and that he was up most of the night and slept during the day. The visits were suspended in order to have a Family Team Meeting to address the visit supervisor's concerns.... [T]he issues created by ...

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