In Re Amanda D.

549 A.2d 1133, 1988 Me. LEXIS 274

• Court: Supreme Judicial Court of Maine
• Decided: October 28, 1988
• Status: Published

Opinions

WATHEN, Justice.

Gail B., mother of Amanda D. and Eric D., appeals from a judgment of the District Court (Madawaska, Daigle, J.) terminating her parental rights. 22 M.R.S.A. § 4055 (Supp.1987). On appeal, she challenges the sufficiency of the evidence supporting the order of termination. The State moves for dismissal of the appeal, claiming that the appeal was not perfected in a timely manner. We deny the State’s motion and affirm the judgment terminating parental rights.

We first address the State’s motion to dismiss the appeal. An appeal from an order terminating parental rights proceeds directly from the District Court to the Law Court. 22 M.R.S.A. § 4006 (Supp.1987-1988). Although Gail B. did not file a notice of appeal to this Court within the thirty-day time limit, we find a showing of excusable neglect to warrant an extension of time for filing under M.R.Civ.P. 73(a). After entry of the termination order on October 27, 1987, Gail B. filed within thirty days a notice of appeal to the Superior Court. Upon learning of the error shortly after the appeal period expired, she sought relief in the District Court on December 1, 1987, in the form of a motion to amend the notice of appeal to reflect the proper court. In the alternative, she asked that the motion to amend be considered as a motion to extend the period for filing the notice. The District Court declined to entertain the motion. We treat Gail B.’s motion to amend dated December 1, 1987, as a motion for extension of time and a new notice of appeal to this Court as of that date. We find that the record contains a sufficient demonstration of excusable neglect to warrant an extension of time to include the December 1, 1987 notice. We deny the State’s motion for dismissal and reach the merits of this case.

Upon review of the merits, however, we find that the District Court had sufficient evidence before it to support its conclusion that the statutory requirements for termination of parental rights were proved to a high degree of probability. See In re Maria C., 527 A.2d 318, 319 (Me.1987); In re John Joseph V., 500 A.2d 628, 629 (Me.1985). Although the District Court did not issue any separate findings of fact, “[w]hen no findings of fact are made, it is assumed on appeal that the trial court found for the prevailing party on all factual issues necessarily involved in the decision and such assumed findings will not be set aside unless clearly erroneous.” Blackmer v. Williams, 437 A.2d 858, 861 (Me.1981).¹

After reviewing the record, we find that the District Court had sufficient evidence before it to determine that it was highly probable that Gail B. was unwilling or unable to take responsibility for her children or to protect them from jeopardy in the form of serious neglect, evidenced by lack of supervision or care. 22 M.R.S.A. § 4055(l)(B)(2)(b)(i), (ii) (Supp.1987); 22 M.R.S.A. § 4002(6)(B) (Supp.1987). The record contains evidence that the children were first taken from Gail B. because they were not being adequately fed, nurtured, cared for, or supervised. To deal with this problem, the Department arranged counseling, parenting specialist services, and parent aide services. Despite these attempts, Gail B. showed limited progress with her parenting skills, particularly concerning child safety and supervision. For example, there was testimony that, even after numerous discussions and warnings by the Department and others about the importance of supervision and safety, she allowed the children, then ages 3 and 4, to go unattended down a cellar stairway that had no railing and had a sheer drop to a cement floor and to play in animal feces in the cellar; she allowed Amanda to wander around outside the apartment complex unsupervised; she allowed Eric to play unattended upstairs banging a metal knife on a charged electrical appliance while she watched television downstairs; and on more than one occasion she allowed food to remain unrefrigerated until it decomposed.

Further, the District Court had sufficient evidence to conclude that the conditions were unlikely to change within a reasonable time to meet the needs of her children. 22 M.R.S.A. § 4055(l)(B)(2)(b)(i), (ii). There was testimony that Gail B. lacked the motivation to change because she saw the source of her problems outside of herself and not within herself. There was also testimony that she did not believe that she needed help with her parenting skills because her behavior was acceptable.

Finally, the District Court had sufficient evidence before it to determine that it was highly probable that termination of parental rights is in the best interests of both Amanda and Eric. 22 M.R.S.A. § 4055(l)(B)(2)(a). In addition to the evidence presented concerning the safety of both Amanda and Eric and their lack of structure while in the custody of the mother, the record also contained evidence that, particularly with Eric, there is a strong need for structure in order to deal with his extremely active and destructive tendencies. Also the District Court could consider the testimony of an independent psychologist that both children have multiple needs that are not being met and that the longer a final resolution is delayed, the greater the degree of risk to the children. In this respect the psychologist testified that the children should be in a permanent stable home environment, at the latest, by the time they are in the school system. Finally, the District Court could consider the preference for placing children in permanent homes. See 22 M.R.S.A. §§ 4003(4), 4050 (Supp.1987). The evidence adequately supports the court’s conclusion that termination of parental rights is in the best interest of both Amanda and Eric.

The entry is:

Judgment affirmed.

McKUSICK, C.J., and CLIFFORD and HORNBY, JJ., concurring.

1 . We note that, although the District Court is not required to issue findings of fact under M.R.Civ.P. 52(a) unless requested by a party, the prudent procedure in parental termination cases is to find the facts separately so as to better inform the parties and this Court of the basis for its decision. See 1 Field, McKusick & Wroth, Maine Civil Practice § 52.1 at 684 (2d ed.1970). Cf. In re Sabrina M., 460 A.2d 1009, 1013 (Me.1983).