Alexander D., In re

• Decision Date: 11 August 1998
• Docket Number: Docket No. A
• Parties: In re ALEXANDER D. et al. nd-97-678.
• Court: Maine Supreme Court

Page 222

716 A.2d 222

1998 ME 207

In re ALEXANDER D. et al.

Docket No. And-97-678.

Supreme Judicial Court of Maine.

Submitted on Briefs June 10, 1998.

Decided Aug. 11, 1998.

Scott J. Lynch, Thomas P. Peters, II & Assoc., P.A., Lewiston, for appellant.

Andrew Ketterer, Attorney General, Janice S. Stuver, Aria eee, Asst. Attys. Gen., Augusta, for appellee.

Barbara Raimondi, Auburn, guardian ad Litem.

Donald S. Hornblower, Lewiston, for father.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA and SAUFLEY, JJ.

CLIFFORD, Justice.

¶1 The mother of Alexander D. and Mason D. appeals from a judgment entered in the District Court (Lewiston, Gorman, J.) terminating her parental rights to those children, and from the court's denial of her motion to alter and amend the judgment. The mother contends: (1) that the court's refusal to hear her motion for judicial review prior to and separate from the hearing on the motion for termination violated her rights to due process; (2) that the court erred in concluding that the circumstances relating to what the court found to be her inability to protect the children from jeopardy were unlikely to change within a time reasonably calculated to meet the children's needs; (3) that the court erred in finding that she is unable or unwilling to take responsibility for the children within a time reasonably calculated to meet their needs; (4) that the court penalized her for refusing to admit that she was the perpetrator of abuse on the children; and (5) that the court impermissibly ignored evidence demonstrating that she was caring for her recently born child without jeopardy to that child. Finding no error or abuse of discretion, we affirm the judgment.

¶2 Alexander was born in January of 1988 and Mason in March of 1992. ¹ The evidence reflected that the children had suffered inadequately explained injuries. In August 1994, the mother had taken Alexander to the hospital with a swollen right testicle and broken nose, injuries that were determined to be four days old. In November 1994, Alexander was taken to the hospital for another nose injury, that the mother explained was caused by being hit by a ball. Alexander, however, did not say that he was hit by a ball. In December 1994, Alexander was hospitalized for a laceration to the forehead, that the mother indicated (and Alexander reported to the treating doctor) occurred when he struck his head on a bookcase at school. According to the school guidance counselor, however, no such injury occurred at school.

¶3 In February of 1995, Mason was hospitalized for a laceration to his forehead. The treating doctor found multiple bruises to his head, neck, stomach, penis, and buttocks, determined to have been "inflicted injuries." The mother indicated that the injuries were caused by Alexander hitting Mason in his sleep, and that the injuries occurred when she left them with Alexander's father while she was on a business trip. Alexander's father, however, reported that there were no bruises when the mother picked the children up, and that he did not see them until the mother dropped Mason off at his house the next day. He reported that, at the time, the mother made no accusation that he inflicted the injuries.

¶4 The court issued a preliminary protection order on February 9, 1995, placing the children in the custody of the Department. On March 13, 1995, the court found there was evidence of severe abuse and injuries and that both parents blamed the other parent. The court could not determine with any degree of certainty who was responsible for the injuries, but concluded that both parents failed to take necessary steps to protect their children from the abuse they had suffered. One month after they were removed from their mother's care, the boys were placed in a foster home where, as of the time of the termination order, they had lived for thirty months.

¶5 In March and April of 1995, the mother, Alexander's father, and both children underwent psychological evaluations in the Child Abuse Program at the Spurwink Clinic to investigate the causes of injury to the children and to determine if either parent posed jeopardy to them. The Spurwink report concluded:

[the mother] is a woman with average estimated intellectual ability who has significant strengths in her functioning as a parent, despite her own history of dysfunctional, abusive, and neglectful family relationships as a child. There is no doubt that she cares deeply about the welfare of her children and that she wants them to have happy lives. The personality testing, however, provides a picture of a woman who on the one hand may appear quite competent in her social interactions, while on the other hand she may be an angry dependent individual who, though usually handling her anger in a depressive, passive-aggressive manner, at times may in fact lose control of her impulses and act out inappropriately. This tendency toward impulsivity when under stress is the primary finding pertinent to the question of whether she presents any risk to her children.

The psychological report strongly recommended that the mother seek individual psychotherapy. Although it came to no definitive conclusion, the evaluation team as a whole, in its summary, stated that the mother was the more likely perpetrator of the injuries to Mason.

¶6 After a hearing in September of 1995, the court entered a child protection order finding that the Department had made reasonable efforts to prevent the need to remove the children from the home, and that they were in circumstances of jeopardy. The mother was ordered to engage in substance abuse evaluation "and follow all recommendations," to engage in offenders counseling, and to engage in parent education.

¶7 The extent to which the mother followed the September 1995 order was reviewed in hearings preceding the entry of an order in December 1996 that relieved the Department of its obligation to continue rehabilitation and reunification efforts with the mother, and that put the burden on her to make any further steps toward reunification.

¶8 A substance abuse evaluation of the mother indicated no observable substance abuse problems, but did indicate a "risk of repeating Dysfunctional behavior" because of trauma she sustained as a child. The mother completed a parenting course in March of 1996, but had sporadic attendance and virtually no participation. Some of the professionals providing service to the mother concluded that she minimized her responsibility for injuries to the children, even if those injuries occurred while the children were not in her care. The guardian ad litem agreed with the Department's recommendation that reunification efforts cease, because of the length of time it was taking to create a permanent situation for the children. In relieving the Department of its obligation to continue reunification efforts, the court summarized the testimony:

In virtually all of the long-term child protective cases which come through this court, one or both of the parents have some sort of mental or cognitive disability which prevents them from benefitting from services.... [T]he parents are simply not capable of acting as competent caretakers. In [the mother's] case, although the result may be the same, there is clearly no disability which prevents her from benefitting from services.... [She is] exactly the type of client every therapist hopes for--she is intelligent, articulate, and able to apply abstract theory to concrete examples. Yet this "perfect" client has done little except waste time for the last twenty-two months. Because of this waste, the boys are still in foster care, and their mother is not yet able to protect them. ²

After the cease reunification order, in keeping with agency policy of moving toward termination of parental rights and permanence for the children, the Department decreased visits.

¶9 The mother married in November 1996, and on March 8, 1997, had a son. On March 10, 1997, the mother, alleging that she had made substantial progress by participating in various programs, filed a motion for judicial review and to increase the contact she was allowed with Alexander and Mason. Shortly thereafter, the Department filed a petition for termination of parental rights.

¶10 A hearing was held on the mother's motion to increase visitation on June 26, 1997, but was not completed. The mother filed a motion to continue the previously scheduled hearing on termination of parental rights and requested an expedited completion of the hearing on her request to increase visitation. She opposed combining a hearing on termination of her parental rights with judicial review of her request for increased visitation. The court denied the mother's motion to sever the hearings, stating:

These two boys came into [the State's] care on February 9th, 1995, when they were just seven and nearly three. Today is September 23rd, 1997. They are nine and a half and five and a half years old.... [S]ome of the delay in this case has been caused by the court's docket.... The ... issue of increased visitation is not one that could be based only on how much progress has or has not been made by [the mother].... I also have to take into consideration the children, their needs and their progress. And the two issues, ... are too identical and too pressing to allow either one of them to wait.

¶11 A hearing on both the motion for judicial review (continued from June) and the petition for termination occurred on September 23-24, 1997. The court ordered the mother's parental rights to be terminated, and this appeal followed the denial of the mother's motion to alter and amend, filed shortly after the termination order was entered.

I.

¶12 The mother argues that the court's combining of the two hearings violated her right to due process. She contends that judicial review ³ of her motion for increased visitation should have been completed before the termination hearing. A...