Annette P., In re

• Decision Date: 10 April 1991
• Citation: 589 A.2d 924
• Parties: In re ANNETTE P. and Elizabeth P.
• Court: Maine Supreme Court

Page 924

589 A.2d 924

In re ANNETTE P. and Elizabeth P.

Supreme Judicial Court of Maine.

Argued March 5, 1991.

Decided April 10, 1991.

David J. Edgar (orally), Houlton, for appellants.

Timothy Woodcock, Mitchell & Stearns, Bangor, for Intervenor Houlton Band of Maliseet Indians.

Carrie Linthicum (orally), Asst. Dist. Atty., Caribou, Margaret Semple, Asst. Atty. Gen., Augusta, for Dept. of Human Services.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, COLLINS and BRODY, JJ.

GLASSMAN, Justice.

The parents of Annette P. and Elizabeth P. and the Houlton Band of Maliseet Indians (Houlton Band) ¹ appeal from the judgment entered in the District Court (Houlton, Griffiths, J.) granting the petition of the Department of Human Services (DHS) to terminate the rights of the parents to their children. The parents do not challenge the court's determination that it is in the best interest of the children that parental rights be terminated. Rather, the parents contend that the court erred in its determination that they were unwilling or unable to protect the children from jeopardy and that these circumstances were unlikely to change within a time that was reasonably calculated to meet the needs of the children. The parents also challenge the court's finding that the DHS actively attempted to provide remedial services and a rehabilitative program designed to prevent the breakup of the Indian family, as required by the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (1978), and that the parents had failed to make a good faith effort to rehabilitate and reunify with the children. Finding no error in the court's record, we affirm the judgment.

In December 1981, when the mother was taken to a hospital in an intoxicated condition and the father ² was unconscious from abuse of alcohol, leaving Annette P. and Elizabeth P., aged 1 year and 2 years respectively, unattended, the DHS secured a preliminary protection order and removed the children from their home. In June 1982, a final protection order was secured, based on the court's finding that the mother was unable to care for her children without outside supervision and that the father, with whom the mother had resided for 21 years, had severe alcohol abuse problems and had physically abused the children's mother. ³ The mother is a member of the Canadian Maliseet Indian Tribe and has been diagnosed as mildly mentally retarded. The children and their father are members of the Houlton Band of Maliseet Indians, a federally recognized tribe under the provisions of the Maine Indian Claims Settlement Act, 25 U.S.C. § 1727 (1983). Shortly after their removal from their home, the children were placed in the non-Indian foster home where they continue to reside. In 1985, the Houlton Band intervened in the case, pursuant to 25 U.S.C. § 1911(c), and the court subsequently denied the DHS's first petition to terminate the parental rights of the father and mother, but made no explicit findings of fact on the reasons for the denial of the petition.

In 1989, after a failed attempt to reunify the family, the DHS filed a second petition for the termination of parental rights. After two hearings on the matter, the court ordered the termination of the parental rights of both the father and mother. The termination of parental rights is governed by 22 M.R.S.A. § 4055 (Pamph.1990). ⁴ The court found beyond a reasonable doubt that: the termination was in the best interests of Annette P. and Elizabeth P., see 22 M.R.S.A. § 4055(1)(B)(2)(a); the DHS had made reasonable efforts to rehabilitate and reunify the family, see 25 U.S.C. § 1912(d); ⁵ the return of custody to the parents would result in "serious emotional and physical damage" to the children, see 25 U.S.C. § 1912(f); ⁶ the parents were unwilling or unable to take responsibility for the children or to protect them from jeopardy and these circumstances are unlikely to change within a time that is reasonably calculated to meet the needs of

the children, see 22 M.R.S.A. § 4055(1)(B)(2)(b)(i)-(ii); and the parents had failed to make a good faith effort to rehabilitate and to reunify the family. See id. § 4055(1)(B)(2)(b)(iv). Both parents and the Houlton Band appeal.

The parents first contend that the court erred in its determination that they were unwilling or unable to protect the children from jeopardy and these circumstances were unlikely to change within a time that is reasonably calculated to meet the needs of the children. Although they conceded at the hearing that they had no present ability to protect the children from jeopardy, they argue that the evidence supports their contentions that they were undergoing regular treatment for their alcohol abuse problems, that construction of their new house was imminent, and that the Houlton Band was prepared to provide them with various outreach programs to assist them in learning to care for the children.

We will affirm a termination order if the court "could reasonably have been persuaded that the required factual findings [were] proved to be highly probable," In re Marcus D., 583 A.2d 701, 701 (Me.1990), and will vacate the termination only when the findings amount to clear error. See In re John Joseph V., 500 A.2d 628, 629 (Me.1985). Jeopardy is defined by statute as "serious abuse or neglect, as evidenced by ... deprivation of adequate food, clothing, shelter, supervision or care, including health care when that deprivation causes a threat of serious harm." 22 M.R.S.A. § 4002(6). If a parent has no present ability to protect a child from jeopardy, the court must determine a time reasonably calculated to meet the child's needs and "the time frame which the court is gauging must be seen from the child's perspective." In re Christopher J., 505 A.2d 795, 798 (Me.1986) (citing L.D. 2166, Statement of Fact (111th Legis.1984)). A finding adverse to a parent is especially well founded if the parent has demonstrated no ability to appreciate the child's special physical or emotional needs, see In re Jeffrey E., 557 A.2d 954, 956-57 (Me.1989), or if the child needs the stability of a long-term foster home to overcome the emotional impact of chronic medical problems. See In re Christopher J., 505 A.2d at 800.

Based on the evidence adduced at the hearings in the present case, we find clear and convincing evidence to support the court's determination that both children have special needs and that the stable environment of the foster home has greatly decreased the symptoms of nervousness and emotional distress exhibited by them on their arrival at the foster home. Annette P. still requires a regular schedule of medication, a special diet, and periodic visits to a doctor for treatment of rickets. Elizabeth P., who has been diagnosed as mentally retarded and legally blind, requires special classes and speech therapy at her current school. At the hearing, the parents displayed only a superficial understanding of their children's special needs, and indeed, the mother testified that she had often neglected her own medical conditions in the past.

Both parents testified that their past alcohol abuse problems were under control, but the record does not clearly establish the nature of their on-going treatment. While the father had apparently undergone individualized counseling with a substance abuse counselor for the Houlton Band, he had suspended these sessions several years ago, and since that time, both parents only sporadically attended meetings of an alcohol abuse support group, which merely involved showing films to the group about the dangers of alcohol abuse. The DHS produced uncontroverted evidence that the parents continued to reside in a one-room trailer, measuring approximately ten by twelve feet, without running water or electricity. Although federal HUD funds were apparently slated by the Houlton Band for the eventual construction of a new three-bedroom home for the father, unexplained delays in the federal appropriation had indefinitely postponed the construction at the time of the hearings in this matter. Meanwhile, the parents had made little or no effort to secure a more suitable apartment pending that construction. Similarly, a welfare program coordinator for the Houlton Band testified that the outreach services currently operated by the Band's Indian Health Services would not provide the type of daily outside supervision that the parents would require to care for the children. Given this evidence, the court properly determined that the parents' circumstances were unlikely to change within a time reasonably calculated to meet the special needs of the children.

In cases not involving Indian children, our disposition of the parents' first contention would, with the record in this case, support the court's decision to terminate their parental rights. However, the parents also contend that the court erred in its determination that the DHS actively attempted to provide remedial services and a rehabilitative program designed to prevent the breakup of the Indian family, as required by the Indian Child Welfare Act, and that the parents failed to comply with the requirements of 22 M.R.S.A. § 4041(1)(B) (parents not only are responsible for rectifying and resolving problems that prevent return of the child to the home, but must make a good faith effort to cooperate with the DHS in the development and pursuit of a rehabilitation and reunification plan).

Before filing a petition to terminate parental rights, the DHS must attempt to reunify the family by developing a reunification plan that offers services to assist the parents in caring for the children. See 22 M.R.S.A. § 4041(1)(A)(1). In cases involving non-Indian children, the failure of the DHS to fulfill its obligations under section 4041 does not, by itself, constitute an independent ground for denying termination of parental rights, but is only one factor to be considered in evaluating the parents' efforts to rehabilitate. See In...