In Re David W.

2010 ME 119, 8 A.3d 673, 2010 Me. LEXIS 125, 2010 WL 4723764
CourtSupreme Judicial Court of Maine
DecidedNovember 23, 2010
DocketDocket: Yor-10-130
StatusPublished
Cited by14 cases

This text of 2010 ME 119 (In Re David W.) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re David W., 2010 ME 119, 8 A.3d 673, 2010 Me. LEXIS 125, 2010 WL 4723764 (Me. 2010).

Opinion

GORMAN, J.

[¶ 1] The mother of David W. appeals from a judgment entered in the District Court (Biddeford, Foster, J.) terminating her parental rights to the child pursuant to 22 M.R.S. § 4055(1)(B)(2) (2009). She argues that the court erred in fashioning a permanency plan for the child by terminating her parental rights rather than placing the child in a permanency guardianship pursuant to 22 M.R.S. § 4038-C (2009). 1 Because we conclude that the court did not abuse its discretion, we affirm the judgment.

I. BACKGROUND

[¶ 2] Shawn A. is the mother of a boy, David W., who is now six years old. In the summer of 2008, after two years of offering services to Shawn, who was David’s custodial parent, the Department of Health and Human Services realized David was not safe in his mother’s care and attempted to avoid the necessity for a *675 court proceeding by placing him with other family members. When those placements fell apart, in August 2008, the Department requested and obtained a preliminary protection order. Through that order, the Department obtained temporary custody of David, and it placed him in a therapeutic foster home.

[¶ 3] Shortly thereafter, both parents 2 agreed to the entry of a jeopardy order. In its order, the court found that jeopardy to David was caused by his mother’s mental health issues, her undiagnosed blackouts, her history of relationships involving domestic violence, her failure to follow through with services for her child, and a history of unsanitary living conditions. During the next eight months, David remained in foster care, in the Department’s custody, pursuant to orders entered by the court, based on agreements among all parties.

[¶ 4] After the Department filed a petition to terminate the parents’ parental rights, the court held a two-day hearing in November 2009 that involved evidence presented on the termination petition and on the statutorily-required review of the jeopardy order and determination of a permanency plan. See 22 M.R.S. §§ 4038(1), 4038 — B(1)(B) (2009). In December 2009, the court issued a review and permanency planning order, finding that the Department made reasonable efforts to rehabilitate and reunify the family and noting that the Department and the mother disagreed on the appropriate permanency plan. The Department was requesting that the mother’s parental rights be terminated, and that David be placed with his maternal aunt and uncle for adoption. The mother was seeking a permanency guardianship with the same maternal aunt and uncle. The court ordered that David was to remain in the Department’s custody pending resolution of the termination proceeding.

[¶ 5] In February 2010, the court terminated the mother’s parental rights on grounds that she (1) was unwilling or unable to protect the child from jeopardy and the circumstances were unlikely to change within a time reasonably calculated to meet the child’s needs; (2) was unwilling or unable to take responsibility for the child within a time that was reasonably calculated to meet the child’s needs; and (3) had failed to make a good faith effort to rehabilitate and reunify with the child. See 22 M.R.S. § 4055(l)(B)(2)(b)(i), (ii), (iv). The court found that termination of the mother’s parental rights was in the child’s best interest and that permanency could best be achieved for the child through adoption. In light of tumultuous family dynamics, the court declined to place the child in a permanency guardianship pursuant to 22 M.R.S. § 4038-C. The mother timely appeals.

II. DISCUSSION

[¶ 6] A “central tenet” of Maine’s Child and Family Services and Child Protection Act (the Act), 22 M.R.S. §§ 4001 to 4099-G (2009), is the importance of permanency for children subject to child protection proceedings. See In re Thomas H., 2005 ME 123, ¶¶ 23-25, 889 A.2d 297, 303-06. Section 4050, which sets forth the purpose of the Act’s termination subchap-ter, currently provides:

Recognizing that instability and imper-manency are contrary to the welfare of children, it is the intent of the Legislature that this subehapter:
1. Termination of parental rights. Allow for the termination of parental rights at the earliest possible time *676 after rehabilitation and reunification efforts have been discontinued and termination is in the best interest of the child;
2. Return to family. Eliminate the need for children to wait unreasonable periods of time for their parents to correct the conditions which prevent their return to the family;
3. Adoption. Promote the adoption of children into stable families rather than allowing children to remain in the impermanency of foster care; and
4. Protect interests of child. Be liberally construed to serve and protect the best interests of the child.

22 M.R.S. § 4050.

[¶ 7] Our decisions also reflect this fundamental principle of permanency. See In re Thomas H., 2005 ME 123, ¶ 29, 889 A.2d at 307 (“The Act, our decisions, and practice all reinforce the fundamental principle that the strong public policy favoring permanency for children must inform the trial court’s exercise of judicial discretion associated with determining a child’s best interest, as well as any subsequent appellate review.”); In re Michaela C., 2002 ME 159, ¶ 28, 809 A.2d 1245, 1253 (stating that the Act “has a clearly stated policy favoring permanency for children”); In re Kafia M., 1999 ME 195, ¶ 15, 742 A.2d 919, 925 (“For all children, permanency and stability are legislatively mandated goals, and the impermanency of foster care is to be avoided.”).

[¶ 8] In fashioning a permanency plan, the District Court must determine whether the child will be: (1) “[rjeturned to a parent,” (2) “[pjlaced for adoption,” (3) “[cjared for by a permanency guardian ... or a guardian appointed by the Probate Court,” (4) “[pjlaced with a fit and willing relative,” or (5) “[pjlaced in another planned permanent living arrangement.” 22 M.R.S. § 4038-B(4)(A). In determining the appropriate permanency plan, “it is the policy in this State that permanency plans for children, who are the subject of protection proceedings, be implemented so that children will have stability and certainty.” Adoption of Michaela C., 2004 ME 153, ¶ 15, 863 A.2d 270, 274.

[¶ 9] In this case, the court expressly found that, although he has special needs, David has shown an ability to integrate into another home. The guardian ad litem suggested that David’s proposed caretaker, his aunt, would need the “protection” provided by a termination order so that she could make decisions for David without excessive family interference.

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Bluebook (online)
2010 ME 119, 8 A.3d 673, 2010 Me. LEXIS 125, 2010 WL 4723764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-david-w-me-2010.