Christopher J., In re

• Decision Date: 26 February 1986
• Citation: 505 A.2d 795
• Parties: In re CHRISTOPHER J.
• Court: Maine Supreme Court

Page 795

505 A.2d 795

In re CHRISTOPHER J.

Supreme Judicial Court of Maine.

Argued Jan. 22, 1986.

Decided Feb. 26, 1986.

Sheila J. Fine, (orally), Ogunquit, for plaintiff.

James Eastman Smith (orally), Sr. Asst. Atty. Gen., Human Services Section, State House Station 11, Augusta, for defendant.

Michelle Robert (orally), Biddeford, Guardian Ad Litem.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, and SCOLNIK, JJ.

McKUSICK, Chief Justice.

Sybil C., mother of Christopher J., appeals a judgment of the District Court (Biddeford) terminating her parental rights pursuant to 22 M.R.S.A. § 4055 (Supp.1985-1986). Her main contention on appeal is that the record does not contain the quantum of evidence required both constitutionally and statutorily for termination of her parental rights.

Christopher was born on August 20, 1971, to Sybil, then a 15-year-old unwed high school student. Sybil and her family decided that adoption was in the best interest of the baby. Soon after his birth, however, it became apparent that Christopher had serious medical problems that would prevent his immediate adoption. Therefore, on September 23, 1971, Sybil voluntarily placed Christopher in the protective custody of the Maine Department of Health and Welfare, now renamed the Department of Human Services (Department).

The Department placed Christopher in the foster care of Mrs. M. when he was 11 weeks old. He has remained in her home continuously to the present, and she wishes to adopt him. Christopher has a liver condition called Alpha I Anti-Trypsin Deficiency, which has led to cirrhosis of the liver and has required him to undergo a series of surgeries and hospitalizations. At the time the District Court entered its order on October 11, 1985, Christopher was waiting for an urgently needed liver transplant. ¹ Mrs. M. has cared for Christopher throughout all these physical difficulties. When Christopher was one year old, she told the Department that she wished to adopt him, and repeated that request several times thereafter. Mrs. M.'s income, however, was insufficient to pay for Christopher's extraordinary medical expenses, and it was not until March of 1984 that the Department had the funds available to provide for a subsidized adoption pursuant to 19 M.R.S.A. § 541 (Supp.1985-1986). For that reason Christopher has remained in Mrs. M.'s foster care for over 14 years.

Sybil has had no contact with Christopher since he was an infant. When he was two years old he became seriously ill and was expected to die. Believing that she was acting in Sybil's best interest, Sybil's mother told her that Christopher had died. Sybil remained under the impression that Christopher was dead until the Department contacted her on May 2, 1983, regarding a new federally required judicial review of Christopher's foster care. The Department had never attempted to contact Sybil before that time. Sybil immediately told the Department that she wanted to meet Christopher. However, because of Christopher's physical and mental condition, his doctors advised against such a meeting. Sybil complied with their recommendation. On July 2, 1984, she filed a petition for change of custody in District Court.

In June 1985 the Department petitioned for termination of Sybil's parental rights pursuant to 22 M.R.S.A. § 4055 so that Christopher could be adopted by Mrs. M Section 4055, in pertinent part, requires that before termination may be ordered the District Court must find, based on clear and convincing evidence, that:

(a) Termination is in the best interest of the child; and

(b) Either:

(i) The parent is unwilling or unable to protect the child from jeopardy and these circumstances are unlikely to change within a time which is reasonably calculated to meet the child's needs; [or]

(ii) The parent has been unwilling or unable to take responsibility for the child within a time which is reasonably calculated to meet the child's needs....

22 M.R.S.A. § 4055(1)(B)(2)(a) & (b) (Supp.1985-1986). See also Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (due process requires proof by clear and convincing evidence before parental rights may be terminated).

The District Court found that Sybil is unable to protect Christopher from jeopardy and that the circumstances are unlikely to change within a time that is reasonably calculated to meet his needs and also that she is unable to take responsibility for Christopher within a time that is reasonably calculated to meet his needs. The District Court also found it to be in the best interest of Christopher that Sybil's parental rights be terminated. Sybil argues that those findings are not supported by clear and convincing evidence and that they are clearly erroneous. "Where clear and convincing evidence is required, the appropriate standard of appellate review is 'whether the factfinder could reasonably have been persuaded that the required factual finding was or was not proved to be highly probable.' " In re John Joseph V., 500 A.2d 628, 629 (Me.1985) (quoting Taylor v. Commissioner of Mental Health and Mental Retardation, 481 A.2d 139, 153 (Me.1984) (emphasis added)). The District Court's finding that the evidence before it was clear and convincing "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the court to judge the credibility of the witnesses." M.D.C.Civ.R. 52(a); see also In re Chesley B., 499 A.2d 137, 138-39 (Me.1985).

After a careful review, we hold that the record before the District Court did indeed contain the clear and convincing evidence required to support its findings of fact. The expert testimony before the court fully supports the court's conclusion that Sybil is unable to protect Christopher from jeopardy and that these circumstances are unlikely to change within a time reasonably calculated to meet his needs. ² "[T]he word 'unable' [is] synonymous with incapable, and, as employed in its relevant statutory context, mean[s] that a parent is incapable, for whatever reason, to [protect his or her child from jeopardy]." In re John Joseph V., 500 A.2d at 630 (emphasis added). The word "jeopardy" is defined by statute to mean "serious abuse or neglect, as evidenced by ... serious harm or threat of serious harm." 22 M.R.S.A. § 4002(6)(A) (Supp.1985-1986). " 'Abuse or neglect' means a threat to a child's health or welfare by physical or mental injury or impairment, ... deprivation of essential needs or lack of protection from these, by a person responsible for the child." 22 M.R.S.A. § 4002(1) (Supp.1985-1986). "Serious harm" is defined as "serious injury" or "serious mental injury or impairment, evidenced by severe anxiety, depression or withdrawal, untoward aggressive behavior or similar serious dysfunctional behavior." 22 M.R.S.A. § 4002(10)(A) & (B) (Supp.1985-1986). In determining a time reasonably calculated to meet the child's needs "the time frame which the court is gauging must be seen from the child's perspective." L.D. 2166, Statement of Fact (111th Legis.1984). Using these definitions, the District Court could reasonably have been persuaded that it was proved to be highly probable that Sybil is unable to protect Christopher from jeopardy and that these circumstances are unlikely to change within a time that is reasonably calculated to meet his needs. See In re Dean A., 491 A.2d 572 (Me.1985) (severely traumatized child would suffer serious psychological injury if he were taken from his foster mother and returned to his natural mother).

The evidence shows that Christopher has a history of dealing with stress by eating foods prohibited on his strict medical diet. These diet deviations cause serious medical problems that jeopardize his health and that have in the past put him back into the hospital. Dr. David DeMaso, assistant clinical director of the Department of Psychiatry at the Judge Baker Guidance Center in Boston and psychiatric consultant to Christopher's liver transplant team, interviewed Christopher in 1984 and again in 1985. During those interviews Christopher told him that he considered Mrs. M. his "actual mother" and that he wanted to be adopted by his foster family. Furthermore, Christopher told him that he did not wish to see his biological mother. Based on the interplay between Christopher's emotional and physical health, Dr. DeMaso testified that Christopher would be in jeopardy if Sybil's parental rights were not terminated:

I think he would be in jeopardy for a couple reasons. I think, one, this youngster, particularly based on my contacts with him, views his foster mother as his actual mother, as the mother that he's known all his life. And I think the trauma of being taken away from that mother would be quite emotionally stressful for this youngster. I think the second part that concerns me is that with this increased stress, and with the history of behaviorally having great difficulty at times complying with various medical regimens, that this could directly affect compliance, if he gets upset, around his liver illness; both pre-transplant, with his need for great compliance around diet and medication; and also, post-transplant, because it's--again, it's not a procedure that's over in one week. It's a procedure that leads to an on-going process, and so I was concerned. One of the significant concerns in doing transplantations now is the issue of compliance; such that physicians on the transplant team want that to be the primary--one of the primary psychological assessments. If they have concerns about compliance, that's one of the things they worry about when they do the liver [transplant], because so much is required of the patient and their family.

Furthermore, the District Court could reasonably find that these circumstances are unlikely to change within a time that is reasonably calculated to meet Christopher's needs. Dr. DeMaso testified that Christopher critically needs now...