MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 65 Docket: Som-19-477 Submitted On Briefs: May 4, 2020 Decided: May 12, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
IN RE CHILDREN OF SHEM A.
PER CURIAM
[¶1] Shem A. and the mother of six children each appeal from a judgment
of the District Court (Skowhegan, Benson, J.) terminating their parental rights
to their children. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2020). Both
parents argue that there is insufficient evidence to support the court’s findings,
by clear and convincing evidence, of parental unfitness. The father additionally
challenges the sufficiency of the evidence to support the court’s determination
that termination of his parental rights is in the best interests of the children.
We affirm the judgment.
I. BACKGROUND
[¶2] In July 2018, the Department of Health and Human Services filed a
petition for a child protection order and preliminary protection order against
both parents as to their six children, who then ranged from two to twelve years
old. See 22 M.R.S. §§ 4032, 4034(1) (2020). The Department alleged that it had 2
received reports of—and that individual Department employees had
witnessed—severe neglect; a chronic lack of supervision; and unsanitary living
conditions, such as rotting food and garbage scattered around the home, that
placed the children at risk of serious harm. The Department further alleged
that the children had previously been removed from the parents’ custody in
Illinois and Missouri for similar reasons. The court (Dow, J.) entered a
preliminary protection order the same day, placing the children in the
Department’s custody. 22 M.R.S. § 4034(2) (2020). Both parents waived their
opportunity for a summary preliminary hearing. See 22 M.R.S. § 4034(4)
(2020).
[¶3] In October 2018, the court (Benson, J.) entered an agreed-to
jeopardy order, see 22 M.R.S. § 4035 (2020), based on the parents’ “inability
and unwillingness to provide adequate supervision to protect [the children]
from threats of serious harm.” The court’s jeopardy order noted, among other
things, that “[a]ll the children have been found to be chronically unsupervised
and [the three younger children] have been found alone in dangerous places
on multiple occasions”—including “playing in the middle of the busy main
road”—and that “[a]t the time of removal, the family home was extremely dirty 3
and unsafe.” In April 2019, the Department petitioned to terminate both
parents’ rights. 22 M.R.S. § 4052 (2020).
[¶4] The court held a three-day contested hearing on the termination
petition in July and August 2019. By order dated October 28, 2019, the court
made the following findings of fact, which are supported by competent
evidence in the record, by clear and convincing evidence. See 22 M.R.S.
§ 4055(1)(B)(2) (2020); In re Children of Benjamin W., 2019 ME 147, ¶ 5, 216
A.3d 901.
[T]he mother either does not understand the impact [of] the horrific living conditions of [the family’s] home in multiple states resulting in [the children’s] entry into foster care in three different states or refuses to acknowledge and address the problem. The mother’s testimony highlights her complete lack of awareness of her children’s many needs. . . .
. . . [T]he father lacks any accountability, understanding or willingness to address the identified issues, . . . continues to fail to make necessary behavioral changes to work towards reunification, and . . . is completely oblivious to the many needs of his own children because of his failures.
....
. . . The parents failed to address the many safety concerns inside the home and spent a great deal of this case justifying the condition at the time of removal and . . . building a wholly ineffective 3-foot fence meant to prevent the children from escaping unsupervised. . . .
.... 4
The Department’s repeated efforts to engage either parent in reunification and rehabilitation services have been met with resistance and delay on the [part] of the parents. . . . [D]uring the 13 month period that led up to the final day of [the termination] hearing, neither parent made any meaningful attempt to engage in the services offered by the Department. The Court finds the parents’ asserted commitment disingenuous . . . .
. . . After more than a year in foster care in the State of Maine, [and the parents’] minimal engagement in services with no measurable amount of progress towards alleviating the chronic issues of jeopardy found by this Court, the clock has run out and it is time for the children to have the permanency they deserve.
[¶5] Based on these findings, the court concluded that (1) both parents
are unable to protect the children from jeopardy and those circumstances are
unlikely to change within a time reasonably calculated to meet the children’s
needs, (2) both parents have been unable to take responsibility for the children
within a time reasonably calculated to meet their needs, (3) both parents have
failed to make good faith efforts to rehabilitate and reunify with the children,
and (4) termination of parental rights is in the best interests of the children.
See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv).
[¶6] The parents each timely appeal. See 22 M.R.S. § 4006 (2020);
M.R. App. P. 2B(c)(1), 2C(c). 5
II. DISCUSSION
A. Unfitness Findings
[¶7] Notwithstanding both parents’ attempts to characterize their
arguments as issues of due process and equal protection, they actually
challenge the sufficiency of the evidence to support the court’s findings of
parental unfitness pursuant to 22 M.R.S. § 4055(1)(B)(2)(b).1 “We review the
court’s factual findings of parental unfitness . . . for clear error . . . .” In re Child
of Christine M., 2018 ME 133, ¶ 6, 194 A.3d 390. “When the burden of proof at
trial is clear and convincing evidence, our review is to determine whether the
fact-finder could reasonably have been persuaded that the required findings
were proved to be highly probable.” In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260
(quotation marks omitted).
[¶8] Contrary to the parents’ contentions, the court’s thorough factual
findings are amply supported by the evidence. On this record, it was entirely
reasonable for the court to credit the mental health evaluator’s statements that
the mother’s “responses to the current child protective case [were] laden with
1We reject the parents’ suggestions that the court improperly adopted the mental health evaluator’s conclusions and thereby violated their due process rights. The court’s written decision evinces a thorough and rigorous application of its independent judgment to the entire body of evidence before it; indeed, the court went so far as to distinguish pointedly between the evaluator’s statements and the court’s own factual conclusions after hearing the parents’ testimony. See In re Marpheen C., 2002 ME 170, ¶¶ 5-7, 812 A.2d 972. 6
deflection and distortion of facts as to the circumstances of . . . neglect and lack
of supervision” and that the father “does not acknowledge [that he or the
mother have] failed to protect or supervise their children safely” and “abdicates
his parental responsibilities to [the mother or the] older children.” It was
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 65 Docket: Som-19-477 Submitted On Briefs: May 4, 2020 Decided: May 12, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
IN RE CHILDREN OF SHEM A.
PER CURIAM
[¶1] Shem A. and the mother of six children each appeal from a judgment
of the District Court (Skowhegan, Benson, J.) terminating their parental rights
to their children. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2020). Both
parents argue that there is insufficient evidence to support the court’s findings,
by clear and convincing evidence, of parental unfitness. The father additionally
challenges the sufficiency of the evidence to support the court’s determination
that termination of his parental rights is in the best interests of the children.
We affirm the judgment.
I. BACKGROUND
[¶2] In July 2018, the Department of Health and Human Services filed a
petition for a child protection order and preliminary protection order against
both parents as to their six children, who then ranged from two to twelve years
old. See 22 M.R.S. §§ 4032, 4034(1) (2020). The Department alleged that it had 2
received reports of—and that individual Department employees had
witnessed—severe neglect; a chronic lack of supervision; and unsanitary living
conditions, such as rotting food and garbage scattered around the home, that
placed the children at risk of serious harm. The Department further alleged
that the children had previously been removed from the parents’ custody in
Illinois and Missouri for similar reasons. The court (Dow, J.) entered a
preliminary protection order the same day, placing the children in the
Department’s custody. 22 M.R.S. § 4034(2) (2020). Both parents waived their
opportunity for a summary preliminary hearing. See 22 M.R.S. § 4034(4)
(2020).
[¶3] In October 2018, the court (Benson, J.) entered an agreed-to
jeopardy order, see 22 M.R.S. § 4035 (2020), based on the parents’ “inability
and unwillingness to provide adequate supervision to protect [the children]
from threats of serious harm.” The court’s jeopardy order noted, among other
things, that “[a]ll the children have been found to be chronically unsupervised
and [the three younger children] have been found alone in dangerous places
on multiple occasions”—including “playing in the middle of the busy main
road”—and that “[a]t the time of removal, the family home was extremely dirty 3
and unsafe.” In April 2019, the Department petitioned to terminate both
parents’ rights. 22 M.R.S. § 4052 (2020).
[¶4] The court held a three-day contested hearing on the termination
petition in July and August 2019. By order dated October 28, 2019, the court
made the following findings of fact, which are supported by competent
evidence in the record, by clear and convincing evidence. See 22 M.R.S.
§ 4055(1)(B)(2) (2020); In re Children of Benjamin W., 2019 ME 147, ¶ 5, 216
A.3d 901.
[T]he mother either does not understand the impact [of] the horrific living conditions of [the family’s] home in multiple states resulting in [the children’s] entry into foster care in three different states or refuses to acknowledge and address the problem. The mother’s testimony highlights her complete lack of awareness of her children’s many needs. . . .
. . . [T]he father lacks any accountability, understanding or willingness to address the identified issues, . . . continues to fail to make necessary behavioral changes to work towards reunification, and . . . is completely oblivious to the many needs of his own children because of his failures.
....
. . . The parents failed to address the many safety concerns inside the home and spent a great deal of this case justifying the condition at the time of removal and . . . building a wholly ineffective 3-foot fence meant to prevent the children from escaping unsupervised. . . .
.... 4
The Department’s repeated efforts to engage either parent in reunification and rehabilitation services have been met with resistance and delay on the [part] of the parents. . . . [D]uring the 13 month period that led up to the final day of [the termination] hearing, neither parent made any meaningful attempt to engage in the services offered by the Department. The Court finds the parents’ asserted commitment disingenuous . . . .
. . . After more than a year in foster care in the State of Maine, [and the parents’] minimal engagement in services with no measurable amount of progress towards alleviating the chronic issues of jeopardy found by this Court, the clock has run out and it is time for the children to have the permanency they deserve.
[¶5] Based on these findings, the court concluded that (1) both parents
are unable to protect the children from jeopardy and those circumstances are
unlikely to change within a time reasonably calculated to meet the children’s
needs, (2) both parents have been unable to take responsibility for the children
within a time reasonably calculated to meet their needs, (3) both parents have
failed to make good faith efforts to rehabilitate and reunify with the children,
and (4) termination of parental rights is in the best interests of the children.
See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv).
[¶6] The parents each timely appeal. See 22 M.R.S. § 4006 (2020);
M.R. App. P. 2B(c)(1), 2C(c). 5
II. DISCUSSION
A. Unfitness Findings
[¶7] Notwithstanding both parents’ attempts to characterize their
arguments as issues of due process and equal protection, they actually
challenge the sufficiency of the evidence to support the court’s findings of
parental unfitness pursuant to 22 M.R.S. § 4055(1)(B)(2)(b).1 “We review the
court’s factual findings of parental unfitness . . . for clear error . . . .” In re Child
of Christine M., 2018 ME 133, ¶ 6, 194 A.3d 390. “When the burden of proof at
trial is clear and convincing evidence, our review is to determine whether the
fact-finder could reasonably have been persuaded that the required findings
were proved to be highly probable.” In re M.B., 2013 ME 46, ¶ 37, 65 A.3d 1260
(quotation marks omitted).
[¶8] Contrary to the parents’ contentions, the court’s thorough factual
findings are amply supported by the evidence. On this record, it was entirely
reasonable for the court to credit the mental health evaluator’s statements that
the mother’s “responses to the current child protective case [were] laden with
1We reject the parents’ suggestions that the court improperly adopted the mental health evaluator’s conclusions and thereby violated their due process rights. The court’s written decision evinces a thorough and rigorous application of its independent judgment to the entire body of evidence before it; indeed, the court went so far as to distinguish pointedly between the evaluator’s statements and the court’s own factual conclusions after hearing the parents’ testimony. See In re Marpheen C., 2002 ME 170, ¶¶ 5-7, 812 A.2d 972. 6
deflection and distortion of facts as to the circumstances of . . . neglect and lack
of supervision” and that the father “does not acknowledge [that he or the
mother have] failed to protect or supervise their children safely” and “abdicates
his parental responsibilities to [the mother or the] older children.” It was
similarly reasonable for the court to reject the parents’ counselor’s competing
suggestion that, in the court’s words, “the biggest problem the parents grappled
with was not having [the] children in their care.” The court also had before it
the guardian ad litem’s (GAL) testimony and several reports, which included
statements that the parents “still do not seem to recognize that their actions
have resulted in extreme hardship for their children,” and it heard testimony
from the GAL in a previous child protective proceeding in Illinois regarding the
parents’ chronic inability or unwillingness to make changes to provide the
children with a safe environment.
[¶9] In sum, the court did not err in finding the mother and father unfit.
See In re Child of Christine M., 2018 ME 133, ¶ 6, 194 A.3d 390; In re M.B., 2013
ME 46, ¶ 37, 65 A.3d 1260.
B. Best Interests of the Children
[¶10] The father additionally argues that the court erred in determining
that termination of his parental rights is in the children’s best interests. “We 7
review the court’s factual findings related to [a] child’s best interest for clear
error, and its ultimate conclusion regarding the child’s best interest for an
abuse of discretion . . . .” In re Children of Christopher S., 2019 ME 31, ¶ 7, 203
A.3d 808 (quotation marks omitted).
[¶11] Contrary to the father’s contentions, the court was presented with
evidence regarding the best interest of each individual child, including
testimony from the four older children’s counselors and the GAL’s reports that
the children are “comfortable and well supported” in their current placement
with a relative. See 22 M.R.S. § 4055(2) (2020). The court’s best interests
findings were also supported by the evidence bearing on the father’s parental
unfitness, as discussed above. See In re Children of Benjamin W., 2019 ME 147,
¶ 15, 216 A.3d 901. The court therefore did not abuse its discretion in
determining that termination of the father’s parental rights is in the children’s
best interests. See id. ¶ 14.
The entry is:
Judgment affirmed. 8
Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant Father
Ezra A.R. Willey, Esq., Willey Law Offices, Bangor, 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
Skowhegan District Court docket number PC-2018-51 FOR CLERK REFERENCE ONLY