Full Opinion (html_with_citations)

MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:
2015 ME 139
Docket:     Pen-15-75
Submitted
 On Briefs: July 23, 2015
Decided:    October 29, 2015

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.



                                       IN RE B.P.

SAUFLEY, C.J.

         [¶1] The parents of B.P. appeal from a judgment entered by the District

Court (Newport, Fowle, J.) terminating their parental rights to B.P., their son,

pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2) (2014).              The parents

primarily challenge the sufficiency of the evidence supporting the District Court’s

finding that they are not fit to parent B.P. We affirm the judgment.

                                   I. BACKGROUND

         [¶2]     This case began when the state police responded to a physical

altercation between the mother and the father that occurred in B.P.’s presence on

July 3, 2012, when B.P. was just over a year old. During the assault, the mother hit

the father, knocking one of his teeth out. Subsequently, B.P. was removed from

the family home with custody granted to the Department of Health and Human

Services through a preliminary protection order.        On November 5, 2012, the

District Court entered a jeopardy order, finding that both the mother and father had

abused substances and exposed the child to domestic violence. The Department
2

placed B.P. in foster care with his maternal great aunt and uncle pending

reunification with the parents.

      [¶3] In July 2013, the Department of Health and Human Services filed a

petition to terminate the parents’ parental rights. After several continuances, the

termination hearing began in April 2014. Because the father was demonstrating an

improved capacity to safely parent B.P., the court recessed the hearing and entered

a judicial review order establishing a new reunification plan as to the father. The

plan contained a timeline toward trial placement of B.P. in the father’s home with

an ultimate goal of reunification with the father. By agreement of the parties, the

judicial review order that created the reunification plan contained several

conditions, including (1) a strict prohibition of contact, direct or indirect, between

the father and the mother, and (2) an order that the father continue counseling. The

agreed-to order containing the reunification plan for the father also included a

cease reunification order with respect to the mother.

      [¶4] In a judicial review order dated October 8, 2014, the court noted that

B.P.’s trial placement with his father had begun two days earlier. The order also

included the court’s finding that the father “has continued to participate in

services,” and that supervised visits would continue for the mother. Less than

seven weeks later, on November 24, 2014, the Department removed B.P. from the

trial placement with his father and returned him to the care of the foster parents.
                                                                                                       3

The termination of parental rights hearing was resumed. In late December 2014

and January 2015, the trial on the petition for termination of parental rights was

completed. The court entered a judgment terminating each parent’s parental rights

on February 5, 2015. The court found the following facts by clear and convincing

evidence, and its findings are supported by competent evidence in the record. See

In re K.M.,
2015 ME 79, ¶ 9
,
118 A.3d 812
.

        [¶5] The mother has been convicted of drug trafficking, domestic violence

assault, and theft. She has not been in drug treatment since April 2013 and failed

to complete anger management counseling. Her challenges limit her ability to take

care of herself, let alone her child.

        [¶6] The father, unbeknownst to the Department at the time, had unilaterally

withdrawn from counseling in August 2014, four months after the termination

hearing had been recessed to allow for additional reunification efforts, and had

been having contact with the mother.                    It was only because the court, the

Department, and the GAL were operating on the assumption that the father was

complying with the conditions of the reunification plan1 that the trial placement

with B.P. had commenced in October 2014.




   1
     It is not clear from the record why the Department, which was paying the father’s service providers,
was unaware that the father had stopped attending his counseling sessions in August 2014.
4

      [¶7] Nine days before the end of the trial placement—and the planned full

reunification of B.P. with the father—a sheriff’s deputy responded to an altercation

between the father and the mother’s stepbrother at a gas station. The confrontation

began when the stepbrother saw the mother with the father and B.P., and took a

picture to document it. When the stepbrother left the station in his truck, the father

pulled his vehicle in front of him, stopped, got out of the vehicle, confronted the

stepbrother, and angrily accused the stepbrother of following him. The father later

reported to the police that the stepbrother had deliberately rear-ended his vehicle

and threatened him with a gun. No damage to the father’s vehicle was observed,

no gun was discovered, and the police were unable to substantiate any of the

father’s claims.

      [¶8] When the termination hearing recommenced in late December 2014,

the father’s counselor testified that although the father had been making progress,

the father stopped attending the sessions in August 2014 because he felt that he did

not need the counseling and that he was too busy. The counselor also testified that

the father continues to have difficulty controlling his verbalizations and that he is

often overwhelmed by emotions. The counselor opined that although the father is

an adequate parent most of the time, he is not able to foresee dangerous situations

and has inconsistent coping skills that create an unsafe environment for B.P.
                                                                                    5

      [¶9] At the hearing, the father was evasive about his relationship with the

mother. He said that he did not know what type of relationship he would have with

her. Although he insisted that he had not had much contact with the mother, he did

not think that she was using drugs and he was convinced that he would be able to

tell if she was. The father also testified that he did not have any concerns with the

mother having unsupervised contact with B.P.               In addition, the father

acknowledged that domestic violence in a previous relationship had led to the

removal of his other children from the home for a period of sixteen months.

      [¶10] The court found, and the record confirms, that the mother and father

had been violating the no-contact order on a regular basis. B.P. told his great aunt

and uncle that he saw his parents together more than once after the April 2014

agreement, and the mother once told B.P. that his father would bring B.P. to see

her soon. Although B.P. reported seeing them together, the parents claimed that

B.P. was fantasizing. Caseworkers also reported seeing the parents together on

more than one occasion immediately before and after attending supervised visits.

The evidence strongly supports the court’s findings that the father is not credible or

honest, and cannot be relied upon to honor his agreements with the Department or

to abide by court orders.

       [¶11] The father’s unwillingness to protect B.P. from the mother’s violence

was an important factor in the trial court’s decision, but so, too, was the father’s
6

inability to control his own behavior.       The court found that, throughout the

pendency of this matter, the father has referred to the Department caseworker as a

“whore,” “streetwalker,” “bitch,” and “downtown girl.” Many of these derogatory

comments were made in a loud, hostile, and confrontational tone in the presence of

his impressionable toddler. Most telling of his inability to control himself, after the

stepbrother testified in court, the father confronted him in the parking lot and

yelled: “Thanks, I will be paying you back while I am raping your daughter.”

       [¶12] As this evidence demonstrates and the court found, the father is highly

volatile and unstable, and has ongoing difficulty regulating his emotional behavior.

Given his own challenges, any contact between the mother and the father is likely

to create more situations of domestic violence with resulting adverse impacts on

B.P.   Despite the history of domestic violence between them, the mother’s

persistent and completely untreated drug abuse, and their failure to complete or

even acknowledge the need for any continued counseling, the mother and father

intend to get back together, see no reason why they should not be together, and

believe that the mother is capable of caring for B.P. in an unsupervised setting.

       [¶13] Most importantly, the court found that the parents’ behavior has had a

negative effect on B.P., and the record supports this finding. That record reveals

that B.P. has been unusually destructive with property, unusually aggressive with

other children and household pets, and has shown a troubling proclivity for
                                                                                   7

self-harm. Evidence of the effect that the parents’ behavior has had on B.P. also

includes episodes in which B.P. said to his great aunt, “you don’t love me anymore

. . . you’re going to throw me in the trash,” and told his great uncle that B.P.’s

father was “going to choke [the great aunt]” and that “daddy said he’s going to

kill” B.P.’s grandfather. Perhaps most alarming, B.P. attempted to choke their cat

after returning from the trial placement with his father.

      [¶14] The court found that B.P.’s great aunt and uncle have provided B.P. a

warm, loving, and supportive home. They are willing to adopt B.P.

      [¶15] The court found by clear and convincing evidence three grounds of

unfitness as to the mother: (1) that she is unwilling or unable to protect B.P. from

jeopardy and that these circumstances are unlikely to change within a time period

that is reasonably calculated to meet B.P.’s needs, (2) that she is unable or

unwilling to take responsibility for B.P. within a time that is reasonably calculated

to meet B.P.’s needs, and (3) that she has failed to make a good faith effort to

rehabilitate and reunify with B.P. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii), (iv).

As to the father, the court found by clear and convincing evidence that he is

unwilling and unable to protect B.P. from jeopardy and that these circumstances

are unlikely to change within a time that is reasonably calculated to meet B.P.’s

needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i). The court also found that termination
8

is in B.P.’s best interest. See 22 M.R.S. § 4055(1)(B)(2)(a). Both parents timely

appealed. See 22 M.R.S. § 4006 (2014); M.R. App. P. 2(b)(3).

                                 II. DISCUSSION

      [¶16] The parents argue that the court’s decision to terminate their parental

rights was not supported by clear and convincing evidence because of evidence

that they have been making progress. “Evidence is sufficient to affirm an order

terminating parental rights when a review of the entire record demonstrates that the

trial court rationally could have found clear and convincing evidence in that record

to support the necessary factual findings as to the bases for termination.” In re

Marcus S.,
2007 ME 24, ¶ 6
,
916 A.2d 225
 (quotation marks omitted). Evidence is

clear and convincing when the court “could reasonably have been persuaded that

the required factual findings were proved to be highly probable.” In re Thomas D.,
2004 ME 104, ¶ 21
,
854 A.2d 195
 (quotation marks omitted).

       [¶17] There was more than sufficient evidence in the record to support the

findings that the mother is unable to take care of herself, let alone her son. She has

continued to abuse drugs, she had contact with the father when she knew that doing

so would put their child’s return home to his father at risk, and she is violent with

the people she professes to love. From this evidence, the court could reasonably

have been persuaded to a clear and convincing level that at least one ground of

parental unfitness existed as to the mother. See In re D.C.,
2015 ME 24, ¶¶ 3, 5
,
                                                                                  9
112 A.3d 938
 (per curiam) (affirming a finding of parental unfitness based upon

competent evidence that the parent had not fully engaged in treatment programs

and had tested positive for multiple illegal substances).

      [¶18] There was also more than sufficient evidence in the record to support

the finding that the father has problems with anger, volatility, and emotional

control; that these issues cause the father to behave inappropriately around B.P.;

and that his behavior has been having a significant and strongly negative impact on

B.P.’s behavior. Substantial evidence in the record supports the court’s finding

that the father ignored the court’s order—and the advice of the Department and his

counselor—directing him not to have contact with the mother. He instead allowed

the mother to have unsupervised contact with B.P. The evidentiary record also

provided sufficient evidence that the father has little respect for the court or the

Department, and was only complying with their orders when he saw it as

convenient to do so. On this record, the court did not err in finding, by clear and

convincing evidence, that the father is unable to protect B.P. from jeopardy and

that these circumstances are unlikely to change within a time that will meet B.P.’s

needs. See In re Thomas H.,
2005 ME 123, ¶¶ 9, 20-21
,
889 A.2d 297
 (affirming a

court’s finding of unfitness as to a parent who was unable to identify the risk of

harm posed to her children by certain individuals).
10

          [¶19] Finally, we note the significant efforts undertaken to reunify B.P. with

the father, including a trial placement after the termination petition was initially

filed. Yet, despite receiving numerous opportunities, the father appears to have

sabotaged his chances to be reunified with his child. When the Legislature enacted

the Child and Family Services and Child Protection Act, it established permanency

as the central tenet of the act. Id. ¶ 23. Therefore, with only limited exceptions,

the Department is required to petition for termination of parental rights when a

child has been in foster care for fifteen of the most recent twenty-two months.

22 M.R.S. § 4052(2-A)(A) (2014); see also In re Jamara R.,
2005 ME 45, ¶ 22
,
870 A.2d 112
 (“[O]nce a child has been placed in foster care, a statutory clock

begins ticking. In setting that clock, the Legislature has spoken in terms of days

and months, rather than in years, as might better fit an adult’s timeframe for

permanent change.”), overruled in part on other grounds by In re B.C.,
2012 ME 140
, ¶ 14 n.2,
58 A.3d 1118
. This case has been ongoing for longer than three

years. The lack of permanence during the length of this case has already had too

great an impact upon B.P., and the court did not err or abuse its discretion in

determining that termination of both parents’ parental rights is in B.P.’s best

interest. See 22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H.,
2005 ME 123, ¶¶ 16-17
,
889 A.2d 297
. The clock has run out.2

     2
         Because we affirm the judgment as to both parents, we do not address the mother’s additional
                                                                                                       11

        The entry is:

                    Judgment affirmed.



On the briefs:

        Randy G. Day, Esq., Garland, for appellant father

        Joseph P. Belisle, Esq., Bangor, for appellant mother

        Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.,
        Office of the Attorney General, Augusta, for appellee Department of Health
        and Human Services



Newport District Court docket number PC-2012-18
FOR CLERK REFERENCE ONLY




argument that the judgment terminating her parental rights should be vacated if the court erred in
terminating the father’s parental rights. See In re Scott S.,
2001 ME 114, ¶ 35
,
775 A.2d 1144
 (vacating a
judgment terminating a mother’s parental rights because the finding as to the father was made in error).