Christina H., In re

• Decision Date: 30 December 1992
• Citation: 618 A.2d 228
• Parties: In Re CHRISTINA H. and Alfred H., Jr.
• Court: Maine Supreme Court

Page 228

618 A.2d 228

In Re CHRISTINA H. and Alfred H., Jr.

Supreme Judicial Court of Maine.

Argued Sept. 29, 1992.

Decided Dec. 30, 1992.

Bruce C. Mallonee (orally), Rudman & Winchell, Bangor, for Mother.

Peter M. McGee (orally), Portland, for Father.

Anita M. St. Onge (orally), Jeanette Hagen, Asst. Attys. Gen., Dept. of Human Services, Augusta, for appellee.

John H. Richards, Bangor, Guardian Ad Litem.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD and COLLINS, JJ.

GLASSMAN, Justice.

The parents of Christina H., born December 2, 1984, and Alfred H., Jr., born March 25, 1986, separately appeal from the judgment of the District Court (Bangor, Mead, J.) terminating their parental rights to their children. 22 M.R.S.A. § 4055 (1992). ¹ The father contends that because of the insufficient reunification efforts of the Department of Human Services (DHS), the court erred in determining that he was unable to protect the children from jeopardy or take responsibility for the children. Both parents contend that the court erred in its determination that the termination of their parental rights is in the best interests of the children. Specifically, the mother bases her contention on the lack of evidence that her relationship with the children is harmful to them. We find no clear error in the court's determinations, and we affirm the judgment.

The record reflects that on February 10, 1987, while the father was serving a prison term, the mother voluntarily placed Christina and Alfred in the care of the DHS where the children have remained. On November 9, 1987, by agreement of all the parties, the court, inter alia, ordered that the children be placed in the permanent custody of the DHS, made provision for the mother's visitation with the children and ordered the DHS to allow the father reasonable contact with the children, given his then incarceration in a federal facility in the state of New York. On January 25, 1989, after a hearing on a motion to review the child protective order, the court, with the consent of all the parties, ordered that the custody of the children remain with the DHS and that the DHS would have no continuing reunification obligations with respect to either parent. The court noted, however, that the cease reunification order as to the father was entered only due to his continued incarceration. On August 7, 1990, the father was released from federal prison to a halfway house located in Portland. He was released from the halfway house on October 8, 1990.

At the November 26, 1990 hearing on a motion to again review the child protective order, the parties agreed that the children were still in need of a protection order and that the DHS had made reasonable reunification efforts. Following this hearing, by its order dated December 14, 1990, the court found by a preponderance of the evidence that the DHS had made all reasonable efforts to rehabilitate and reunify the family and ordered that the custody of the children remain with the DHS. The order also provided for the psychological evaluation of the parents, a home study of both parents and continued visits by each of the parents with the children. Following the November 25, 1991 and January 22, 1992 hearings, on the DHS's petition for the termination of parental rights, the court issued its judgment terminating the parental rights to the children from which the parents appeal.

The law is well established that the District Court's decision to terminate parental rights must be supported by clear and convincing evidence. We will affirm that decision if our review of the record discloses that the court could reasonably have been persuaded that the required factual findings were proved to be highly probable, and we will vacate the decision only if the findings amount to clear error. In re Annette P., 589 A.2d 924, 926 (Me.1991).

The father contends that because the DHS did not discuss a reunification plan with him after his release from prison, the DHS failed to make reasonable efforts to rehabilitate and reunify the family. He argues that because of this failure the evidence is insufficient to support the court's findings that he is unable to protect his children from jeopardy and to take responsibility for them within a time reasonably calculated to meet their needs. The father concedes, however, as he must, that the failure of the DHS to fulfill any requirements of section 4041 ² will not preclude the termination of parental rights under section 4055, but is only one factor to be considered in evaluating the parents' efforts to rehabilitate and reunify with the child. See In re Daniel C., 480 A.2d 766, 770 (Me.1984).

Here the record reflects that the father was in prison for approximately the first three and one-half years that the children were in State care. On his release from custody, although the DHS demonstrated a willingness to facilitate his visits with the children, such visits were rare and sporadic. Within a one-year period he visited the children only three times. He last visited the children in February 1991. The DHS has never refused him visitation with the children. A home study and psychological evaluation of the father were ordered by the court within approximately two months of the father's release from custody. The home study revealed the father was unemployed. He received a free one-bedroom apartment from his landlord in exchange for labor. The psychologist who evaluated the parents and the children testified that the father had no awareness or understanding of the special needs of the children; that he had features of narcissistic, schizoid and anti-social personality disorders; that these disorders would cause him to fulfill his own needs before considering the needs of the children; and that he would be unable to protect the children or take responsibility for them without...