889 A.2d 297 (Me. 2005), Yor-05-89, In re Thomas H.

Docket Nº:No. Yor-05-89.
Citation:889 A.2d 297, 2005 ME 123
Opinion Judge:LEVY, J.
Party Name:In re THOMAS H. et al.
Attorney:G. Steven Rowe, Attorney General Matthew E. Pollack, Asst. Atty. Gen. (orally) Lise Wagner, Asst. Atty. Gen., Attorneys for appellant:, Diane Edgecomb, Esq. (orally), ME 04038 Joseph M. Wrobleski Jr., Esq. (orally), Saco Attorneys for appellees:, Glenda Lovell, Esq. (orally), Kennebunkport, Guard...
Judge Panel:CALKINS, J., with whom DANA, J., joins, dissenting.
Case Date:December 14, 2005
Court:Supreme Judicial Court of Maine
 
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889 A.2d 297 (Me. 2005)

2005 ME 123

In re THOMAS H. et al.

No. Yor-05-89.

Supreme Judicial Court of Maine.

December 14, 2005

Argued: Sept. 14, 2005.

Page 298

G. Steven Rowe, Attorney General Matthew E. Pollack, Asst. Atty. Gen. (orally) Lise Wagner, Asst. Atty. Gen., Attorneys for appellant:

Diane Edgecomb, Esq. (orally), ME 04038 Joseph M. Wrobleski Jr., Esq. (orally), Saco Attorneys for appellees:

Glenda Lovell, Esq. (orally), Kennebunkport, Guardian ad Litem.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and SILVER, JJ.

Dissenting: DANA, and CALKINS, JJ.

LEVY, J.

[¶1] The Department of Health and Human Services appeals from the judgment of the District Court (Springvale, Foster, J.) denying a petition to terminate the parental rights of Thomas H. and Holly L. to their two children pursuant to 22 M.R.S.A. § 4055 (2004). Although the court found the parents unfit, it concluded that it was not in the best interests of the children to terminate the parents' parental rights. The Department contends that the court abused its discretion by not giving sufficient weight to the statutory policy of permanency in 22 M.R.S.A. § 4050 (2004). The mother cross-appeals, challenging the sufficiency of the evidence as to the court's finding of her unfitness. We conclude that the court's parental unfitness findings were supported by clear and convincing evidence and, accordingly, we deny the mother's cross-appeal and affirm those findings of the court. Because we agree with the Department's contention that the court's best interest determination failed to give sufficient weight to the statutory policy favoring permanency, we vacate the judgment and remand for further proceedings.

I. BACKGROUND

[¶2] Thomas H. and Holly L. are the parents of a boy, Thomas, Jr., who is now seven years old, and a girl, Rose, who is five. The Department filed a petition for a child protection order five years ago. Jeopardy was found as to the father based on his history of substance abuse and domestic violence. The court found no jeopardy as to the mother, and she was awarded custody of the children. The father was given the right to have contact with the children but only under the direction of the Department.

[¶3] Some time later, the mother left the children with the father, who took them to the Department. In June 2001, the Department requested and obtained a preliminary protection order granting it custody of the children, who were placed in foster homes. Thomas resided in a foster home until the Department placed him with his maternal grandmother, where he remained for approximately one year before the Department placed him in the same foster home with Rose.

[¶4] A determination of jeopardy as to the mother was not made until April 2002, when the parties agreed that there was jeopardy based on the mother's "past child protective history as well as her ongoing mental health issues," which the court found she appeared to be addressing appropriately at that time. The court ordered reunification efforts with the mother and the father to continue. In March 2003, the court allowed the Department to

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cease reunification with the father but not the mother.

[¶5] The Department later filed a petition to terminate the parental rights of both parents, and a two-day hearing on the petition was held in June 2004. The hearing on the petition was consolidated with a judicial review and a permanency planning hearing. The court heard from numerous witnesses, including the mother and father; two Department caseworkers; two visitation supervisors; the foster mother; the mother's psychiatrist; and three licensed clinical social workers: the mother's counselor, the father's counselor, and the boy's counselor. The guardian ad litem submitted a written report and participated in the examination of witnesses, but did not testify.

[¶6] The court issued extensive written findings, utilizing a clear and convincing evidence standard of proof. It found that both parents were unable to protect the children from jeopardy. With regard to the father, the court found that he had done nothing to resolve his issues of substance abuse and domestic violence. He had refused to participate in the Violence No More program, he had stopped taking his medication for depression, and on a number of occasions he cancelled or failed to appear at his counseling sessions. As of the fall of 2003, when he was jailed for violating probation, he was possibly still abusing drugs, although he denied any substance abuse since that time. He did complete a parenting program. The father was not requesting that the children be placed with him, but only that he continue to have contact with them.

[¶7] With regard to the mother, the court detailed the mother's propensity to become involved in relationships with men who either abused her or were known substance abusers. It also discussed the mother's relationship with an older son, now an adult, who had been removed from her home when he was twelve. The mother knew that the older son had been in jail as an adult and had abused drugs, but she saw no problem with her younger children having contact with him.

[¶8] In other respects, the mother had shown substantial improvements. She had maintained a relationship with the children. They visited with her all day every Saturday and Sunday, with a supervisor checking in periodically on Saturdays. She had learned to set and enforce limits for the children and had become more adept at addressing their needs. She attempted to establish a support network and obtained a part-time job. The court found that she had engaged in virtually every service that the Department had offered her. Other than a finding that the mother's mood was more stable, the court made no findings about the mother's mental health issues that had led to the original finding of jeopardy.

[¶9] It was the mother's inability to identify individuals that presented a risk of harm to her children or to take steps to avoid involvement with them, even at a time while she had the benefit of a therapeutic setting, that led the court to conclude that she was unable to protect the children from jeopardy. The court also concluded that there were no further efforts, other than those already made, "that could reasonably be expended to address the risks which each parent presents." Based on that assessment, the court found that the parents would not be able to protect the children from jeopardy within a time reasonably calculated to meet their needs.

[¶10] Concerning the best interests of the children, the court discussed Thomas's situation in detail. His counselor, whom he had been seeing since June 2003, testified that he had recently been diagnosed

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with Attention Deficient Hyperactive Disorder and that a major transition would be very difficult for him. The court found that Thomas and Rose spend all day Saturday and Sunday with their mother, and that a substantial part of that time is also spent with the maternal grandmother. The court reported that the counselor did not support termination of the mother's parental rights. 1 The court found that Thomas thrives in the foster home, where he has been since October 2002, and that the foster parents want to adopt both children.

[¶11] The court's findings regarding Rose were more limited. There was very little evidence presented about her except that she was a normal baby when she first came into the current foster home at age eleven months and that she has not needed any special assistance.

[¶12] The court had numerous guardian ad litem reports that had been filed throughout the case, with the last one dated a day before the termination hearing. The current guardian ad litem, who replaced the first guardian, began recommending termination of parental rights with her first report in 2003. In her final report, the guardian again recommended termination of the rights of both parents, reporting that "Holly is apt to substitute her own judgment for professional judgment regarding the children and [is] not . . . able to work with the children's counselor . . . [and] continues to involve Tommy in deciding where he is to live, despite being told [of] the burden this places on him." With respect to the children's foster family, the guardian noted: "Clearly the children are bonded and a part of this family which wants to adopt them."

[¶13] The court concluded that the Department had failed to establish by clear and convincing evidence that termination of the parents' parental rights was in the children's best interest because it found the children's needs were being met by their foster home placement and continued

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contact with their mother and maternal grandmother:

[I]t is not clear that termination of [the mother's] rights is in the best interest of [the children]. Perhaps in spite of this process, those children have reached equilibrium. They are cared for in a loving home that meets their physical and emotional needs, ensures their safety, and provides them with security sufficient to deal with the world as it is currently constituted, including ongoing and extended visitation with their mother. Neither child is in need of special services or presents, at this time, with behaviors that could be attributed, rightly or wrongly, to the impermanence of foster care. They enjoy a continued connection with their family of origin, including their maternal grandmother, even as they benefit from the care and support which that family is unable to provide. I[n] what way could terminating this balance be in [the children's] best interest?

The Court is fully aware that such balance could be disrupted in short order and with a vengeance. Any one of the adult participants could opt out of this construct, or change his or her...

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