In re Mackenzie P.

2017 ME 130, 166 A.3d 104, 2017 WL 2687419, 2017 Me. LEXIS 131

• Court: Supreme Judicial Court of Maine
• Decided: June 22, 2017
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 130 Docket: And-17-6 Submitted On Briefs: June 14, 2017 Decided: June 22, 2017

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

IN RE MACKENZIE P. et al.

PER CURIAM

[¶1] The mother of Mackenzie P. and Antonio P. appeals from a

judgment of the District Court (Lewiston, Dow, J.) terminating her parental

rights to her children pursuant to 22 M.R.S. § 4055(1)(A)(1), (B)(2)(a),

(b)(i)-(ii) (2016). She challenges the sufficiency of the evidence to support

the judgment and the court’s discretionary determination of the children’s

best interests. The mother also argues that she was deprived of due process

because the court terminated her parental rights when the guardian ad litem

(GAL) had not complied with 22 M.R.S. § 4005(1)(B) (2016). Because the

evidence supports the court’s findings and discretionary determination, and

we conclude that the mother received due process, we affirm the judgment.

[¶2] Based on competent evidence in the record, the court found, by

clear and convincing evidence, that the mother is unwilling and unable to

protect the children from jeopardy and that these circumstances are unlikely 2

to change within a time that is reasonably calculated to meet the children’s

needs, she is unwilling and unable to take responsibility for the children

within a time that is reasonably calculated to meet their needs, and

termination of her parental rights is in the children’s best interests.

See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii). The court based these

determinations on the following findings of fact.

[¶3] Although she succeeded in obtaining adequate and safe housing,

the mother “failed to visit consistently with the children” and “regularly

disappointed them by failing to appear at scheduled visits” in violation of the

reunification plan she had agreed to with the Department of Health and

Human Services.1 The mother’s behavior showed “a reckless disregard for the

emotional health of [the] children” and—considering evidence that the

mother could keep other appointments—“an unwillingness, not a mere

inability,” to comply with the reunification plan. Because the mother failed to

comply with the reunification plan, she did not show progress in her ability to

protect the children from unsafe people or supervise and care for them

appropriately. The children, now twelve and seven, have been out of the 1 The mother acknowledged that she had been inconsistent in visiting the children and in other

areas of the reunification plan for about fourteen out of the eighteen months that elapsed between the children entering Department custody and the termination hearing. The record contains heartbreaking evidence of the children waiting for their mother to arrive at scheduled visits and being sad and disappointed time after time. 3

mother’s care for over two years and need “protection and permanency.” The

elder child is “[e]xhausted” by the failed reunification process and wishes to

be adopted. The younger child needs stability. Both children have bonded

with the foster parents, who are willing to adopt them.

[¶4] Given these and other findings of fact, all of which are supported

by competent evidence in the record, the court adequately explained how the

mother is unwilling or unable to take responsibility for the children despite

receiving eighteen months of reunification services and support from the

Department. Although, as she points out, the mother recently became more

consistent in attending counseling and in making phone calls to the children,

the court did not err in considering her lengthy history of unsuccessful

reunification efforts.2 In re B.P., 2015 ME 139, ¶ 19, 126 A.3d 713 (explaining

that there is a limited time available for reunification efforts and “[i]n setting

[the statutory] clock, the Legislature has spoken in terms of days and months,

rather than in years” (quotation marks omitted)). Nor did the court err or

2 Contrary to the mother’s contention, the Department’s decision to suspend visits with the

children after the mother exhibited a pattern of nonattendance for the vast majority of these proceedings did not amount to a failure to facilitate reunification. See In re Alexander D., 1998 ME 207, ¶ 15, 716 A.2d 222 (“The mother’s engagement in court-ordered services had to be balanced against the Department’s efforts to protect the best interest of the children, and to complete the children’s transition into a permanent situation in a timely manner.”); see also In re Denise M., 670 A.2d 390, 394 n.8 (Me. 1996) (“Although we find here no lack of good faith in the reunification effort, . . . [t]here is no [statutory] indication . . . that failure by the department to meet its reunification obligation will preclude termination of parental rights . . . if the [requisite] factual findings . . . are established by clear and convincing evidence.” (citation omitted)). 4

abuse its discretion in determining that termination of the mother’s parental

rights with a permanency plan of adoption is in the children’s best interests.3

See In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297.

[¶5] The mother also contends that the court violated her right to due

process by ordering the termination of her parental rights when the GAL had

exceeded the three-month period in which she was required to have in-person

contact with the children and also filed a late report. See U.S. Const. amend.

XIV, § 1; Me. Const. art. I, § 6-A; 22 M.R.S. § 4005(1)(B). She argues that the

GAL’s failure to fulfill these statutory duties prejudiced her. The court,

however, acted at the mother’s request to prevent any prejudice by excluding

the GAL’s testimony and the untimely report at the termination hearing. Cf. In

re Kaleb C., 2002 ME 65, ¶ 4 n.2, 795 A.2d 71 (explaining that the GAL’s

deficient performance did not affect the outcome of the termination

proceedings). The mother points to no concrete prejudice resulting from the

3 The mother contends that the court abused its discretion in making its best interest determination because it improperly relied upon the opinions and fourth report of the GAL although it had excluded the GAL’s testimony and that untimely report. We find this argument unpersuasive. The findings the mother points to as stemming from the fourth report are supported elsewhere in the record, including the testimony of a caseworker and the GAL’s earlier, properly admitted reports. To the extent that the findings supporting the court’s discretionary best interest determination are contradicted by other evidence in the record, it was “the trial court’s role to weigh and credit the evidence before it” and to accept and reject the evidence presented. In re Scott S., 2001 ME 114, ¶ 35, 775 A.2d 1144. 5

court’s evidentiary rulings.4 Moreover, based on the court’s supported

findings that the mother had failed to progress in reunifying with the children

over a significant period of time and had exhibited “a reckless disregard” for

the children’s emotional well-being, the court’s termination of the mother’s

parental rights was narrowly tailored to serve the compelling government

interest in achieving permanency for the children. See 22 M.R.S. §§ 4003(4),

4055(1)(B)(2)(b) (2016); In re Thomas H., 2005 ME 123, ¶¶ 23-34, 889 A.2d

297; In re Richard G., 2001 ME 78, ¶ 7, 770 A.2d 625.

The entry is:

Judgment affirmed.

Jeffrey S. Dolley, Esq., Dolley Law Firm, Lewiston, for appellant mother

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

Lewiston District Court docket number PC-2015-23 FOR CLERK REFERENCE ONLY

4 The mother also argues—paradoxically, see supra n.3—that the absence of testimony and recent reports of the GAL prejudiced her. There is no indication that the admission of the fourth report, which contained the GAL’s most up-to-date observations and recommendations as to the children’s best interest, would have altered the outcome of these proceedings as it was consistent with testimonial and other evidence on which the court properly relied in reaching its unfitness and best interest determinations.