In re M.B.

2013 ME 46, 65 A.3d 1260, 2013 WL 1909610, 2013 Me. LEXIS 46
CourtSupreme Judicial Court of Maine
DecidedMay 9, 2013
DocketDocket And-12-330
StatusPublished
Cited by66 cases

This text of 2013 ME 46 (In re M.B.) 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 M.B., 2013 ME 46, 65 A.3d 1260, 2013 WL 1909610, 2013 Me. LEXIS 46 (Me. 2013).

Opinion

JABAR, J.

[¶ 1] The mother of M.B. and G.W. and the father of M.B. appeal from a judgment of the District Court (Lewiston, Beliveau, J.) terminating their parental rights. The mother and father argue that the court violated the Due Process Clause of the Fourteenth Amendment by (1) issuing an order terminating their parental rights before receiving their post-trial briefs and (2) admitting in evidence statements that'M.B. made to the court without counsel for the parents being present. Additionally, the parents argue that the evidence presented at trial was insufficient to prove by clear and convincing evidence that they are unfit to parent and that termination of parental rights is in the best interests of the children. We affirm the trial court’s judgment.

I. BACKGROUND

[¶ 2] M.B. was born on February 22, 2004. The mother has a second child, G.W., who was born on August 8, 2008. At the time of M.B.’s birth, the mother and father lived together in Florida, but they separated two months later. M.B. remained in Orlando with the mother, and the father moved to Miami but maintained contact and had visits with M.B.

[¶ 3] In 2008, when the mother dropped M.B. off at the father’s home for an overnight visit, the father noticed bruising on the child’s arms and legs. Concerned that the bruises were not the result of an accident or play, the father called the mother to determine the cause, but she refused to provide an explanation. Instead, hours later, at 3:00 a.m., the mother arrived at the father’s home and frantically demanded that the father hand over M.B., which he did.

[¶ 4] Despite concerns about M.B.’s safety, the father did not contact Florida authorities or attempt to obtain custody. He did maintain contact with the mother and occasionally spoke with M.B., but the father did not see his child after this early morning incident, and, for the first fifteen *1263 months of this case, he did not have any contact with the child, believing the mother’s untruthful assertions that the child was around but too busy to talk. 1 Soon after G.W. was born, the mother moved with the children to Massachusetts.

[¶ 5] On October 2, 2009, the Maine Department of Health and Human Services received information indicating that the mother had fled to Maine because the Massachusetts Department of Children and Families was attempting to take custody of M.B. and G.W. The Department was concerned because the mother had been substantiated as a sex offender in Massachusetts for allegedly inserting a toothbrush into the vagina of her boyfriend’s two-year-old daughter, had untreated substance abuse and mental health issues, and exposed her children to domestic violence. A caseworker with the Department met with M.B. at school, where he indicated that he was hungry and that he had recently come to Maine with his sister, his mother, and his mother’s boyfriend. The caseworker also met with the mother separately. She denied the allegations of sexual abuse relayed from Massachusetts and indicated that she had forgotten to feed M.B. that day. While at the meeting, the mother changed G.W.’s diaper and the caseworker noticed blood in the child’s stool. Later that same day, the children were taken into the Department’s custody and placed with a foster family. Soon thereafter, G.W. was examined by Dr. Lawrence Ricci of the Spurwink Child Abuse Program, who determined that she had suffered “anal injuries consistent with blunt penetrating trauma.”

[¶ 6] On October 15, 2009, the mother waived her right to a summary preliminary hearing; the court reaffirmed the children’s custody with the Department and recognized that service was incomplete as to the father. The mother indicated that she believed the father was in Florida but denied knowing how to contact him; she denied knowing the identity of G.W.’s father, claiming that G.W. was the product of rape.

[¶ 7] The court entered an agreed-upon jeopardy order as to the mother in February 2010, requiring her to engage in a variety of services approved by the Department including a psychological evaluation, mental health counseling, and random drug and alcohol testing. The children were ordered to remain in foster care, and the father’s whereabouts were still unknown.

[¶ 8] Judicial review conferences were held on April 29, 2010, and July 15, 2010, at which the court found that jeopardy as to the mother was unresolved because she had been living in Massachusetts 2 and the extent of her participation in Department-approved services was unknown.

[¶ 9] At the time of the third judicial review conference, held on October 26, 2010, the mother had returned to Maine and was participating in some substance abuse and mental health counseling, but she continued to test positive for marijuana use. The court found that the mother had made little progress regarding her chaotic lifestyle or the issues surrounding sexual and physical abuse to her children. By that date, more than a year after M.B. was placed in the State’s custody, the *1264 State had not yet served any of the originating documents on the father.

[¶ 10] On February 3, 2011, a Department caseworker was contacted by the father. According to the father, the mother had only recently informed him that M.B. was in the Department’s custody. On February 11, 2011, the Department filed a petition to terminate the parental rights of both the mother and the father.

[¶ 11] In June 2011, the Department dismissed the petition to terminate the father’s parental rights and the court (,Stanfill, J.) entered an agreed-upon jeopardy order as to him; a hearing on the petition to terminate the mother’s parental rights was continued. In August 2011, after a judicial review conference, the parties developed a reunification plan for M.B. and the father, which indicated that the father, who at the time still lived in Florida, would begin contacting M.B., then seven years old, via email. At the conference, the mother refused to sign a reunification plan and refused to submit to drug testing.

[¶ 12] Pursuant to the reunification plan, contact between M.B. and the father began through email. Even this limited contact, however, caused extreme anxiety in M.B. and stress to the father. In the emails, M.B. would tell his father that he hated him and that he did not want to talk to him. M.B. refused gifts that his father bought him and drew pictures depicting his father being hurt; the father suffered a medical event — his girlfriend characterized it as a heart attack — that he claimed was related to the stress of interacting with M.B. As a result of the father’s medical condition, email contact between the father and M.B. ceased from November 2011 to February 2012.

[¶ 13] In December of 2011, over M.B.’s protests, the Department arranged two phone calls between M.B. and the father. 3 Despite M.B.’s reluctance, the first phone call was conducted without incident, and the two talked for about five minutes. When the foster mother took M.B. to the Department’s office for a second phone call, however, “he was laughing insatiably [sic ], and crying,” and eventually curled up on his knees on the floor. After the second phone call, M.B.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 ME 46, 65 A.3d 1260, 2013 WL 1909610, 2013 Me. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mb-me-2013.