Daniel C., In re

• Citation: 480 A.2d 766
• Parties: In re DANIEL C.
• Decision Date: 03 August 1984
• Court: Supreme Judicial Court of Maine (US)

Page 766

480 A.2d 766

In re DANIEL C.

Supreme Judicial Court of Maine.

Argued March 15, 1984.

Decided Aug. 3, 1984.

Catherine R. Johns (orally), Portland, for appellant.

Leigh Ingalls, Asst. Atty. Gen. (orally), Dept. of Human Services, Augusta, Stephen Russell (orally), Portland, for appellee.

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

ROBERTS, Justice.

Everett C., father of Daniel C., appeals from a decision of the Superior Court, Cumberland County, affirming an order of the District Court, Portland, terminating his parental rights pursuant to 22 M.R.S.A. § 4055 (Supp.1983). He claims that the Department of Human Services failed to meet its burden of proving by clear and convincing evidence (1) that it had engaged in a necessary attempt at reunification and (2) that Everett has willfully abandoned and refused to take responsibility for the child. Because the latter element was satisfactorily proved and the former is not a separate element of proof, we affirm the judgment.

I.

Daniel C. was born August 4, 1971. His father, Everett C., was incarcerated in the Maine State Prison at Thomaston on July 8, 1972. A petition for protective custody pursuant to 22 M.R.S.A. § 3792 (1980) was filed in November, 1972. Daniel's mother, Patricia C., waived her right to a hearing and consented to placing Daniel in State custody pending disposition of the petition. In March of 1973, an attorney was appointed guardian ad litem for Patricia who was then a patient at Augusta Mental Health Institute. Everett's attorney moved unsuccessfully to dismiss the petition based primarily on lack of notice. On May 9, 1973, the District Court found that Daniel's health and welfare were jeopardized because his parents were unable to care for him due to their respective confinements in prison and Augusta Mental Health Institute. After the court granted custody to the Department of Human Services, Daniel was placed in a foster home under the supervision of a caseworker.

At some point in 1974, Patricia indicated her desire to put Daniel up for adoption. The caseworker spoke with Everett's family but they said they could not raise Daniel and thought adoption would be a good idea. Everett rejected the suggestion. The caseworker visited Everett in prison two or three times. She offered to take gifts or correspondence to Daniel but would not give Daniel's address to Everett. She testified that Everett had threatened to kidnap Daniel when he was released. She did not tell Daniel about his father or that he was in prison. She also refused, after consulting others, to bring Daniel to the prison to visit his father and was unsuccessful in arranging a visit outside the prison. In December, 1974, Everett made a toy truck for Daniel and arranged to have the caseworker deliver the gift. Except for correspondence between the caseworker and Everett, there was no other contact between Everett and the department or Daniel.

Everett moved for restoration of custody in February, 1974, alleging that his release from prison was imminent. The department answered and moved to dismiss based on the parole officer's report that Everett would not be eligible for parole until May, 1976. Everett's motion was dismissed in July, 1978 pursuant to M.R.Civ.P. 41(b)(2) because of failure to prosecute for more than four years.

Everett was released in May, 1976, but he made no attempt to visit Daniel and had no contact with the department. He returned to custody in July 1976 and was sent to federal prison in Atlanta, Georgia. Patricia died in July, 1978. In 1980, Everett was moved to federal prison in Lewisburg, Pennsylvania, and in 1982, to Massachusetts State Prison at Walpole where he is now incarcerated with a parole eligibility date in August, 1984. In May of 1982, the department petitioned the District Court to terminate Everett's parental rights. An evidentiary hearing took place in October and the court ordered termination on October 26, 1982.

The District Court heard evidence that Daniel began to develop problems in 1979. Expert testimony indicated that Daniel experienced psychological and emotional problems due to anxiety concerning the lack of a permanent family relationship. These problems deepened over the next two years leading to a diagnosis in July of 1981 of anorexia nervosa. A psychiatrist who treated Daniel testified that this disorder had caused an abnormal drop in Daniel's weight and that the condition could be fatal. After intensive treatment as well as reassurance that his foster parents were seeking to adopt him, Daniel began to improve. At the time of the termination hearing, Daniel was 11 years old and had been in foster care since he was 15 months old, including eight and one-half years with his present foster family.

II.

In accordance with 22 M.R.S.A. § 4055 ¹ the District Court found that there was clear and convincing evidence that Everett "is unable to protect [Daniel] from jeopardy, has willfully abandoned [Daniel] and has refused to take responsibility for [Daniel]; and further, that the circumstances of Everett C ... with respect to his ability to protect Daniel C ... from jeopardy or assume responsibility for [Daniel's] care, are unlikely to change in a reasonable time; and further, that the termination of Everett's parental rights is in the best interests of Daniel ...." Everett's first argument challenges the sufficiency of the department's evidence of "jeopardy or abandonment" under section 4055(1)(B)(2).

The department argues that Everett, "due to his lengthy and continuing incarceration, is simply unavailable to provide any care for Daniel and is therefore unable to protect him from jeopardy." In addition, the department contends that Everett's "total absence from Daniel's life combined with his refusal to allow Daniel to be adopted has actually placed the child in jeopardy." Furthermore, the department suggests that Everett's "criminal activities ... constitute willful abandonment." Although the department disavows any suggestion that incarceration in and of itself constitutes abandonment of a child, its argument in this case certainly contains that implication. We take pains, therefore, to emphasize our rejection of any such application of the termination statute. We think, and the department seems to recognize, that under proper circumstances an appropriate parent-child relationship can be developed despite the parent's incarceration and consequent inability physically "to protect the child from jeopardy."

Although we reject, in part, the department's argument, we do conclude that the record contains sufficient evidence of a clear and convincing quality that Everett has "willfully abandoned the child and has refused to take responsibility for the child." 22 M.R.S.A. § 4055(1)(B)(2)(a). We focus, not upon the usual parental responsibility for physical care and support of a child, but upon the parent's responsibility to provide a nurturing parental relationship. ² We recognize that, in a sense, the state impeded development of a normal relationship by incarcerating Everett. That is why we disregard, for present purposes, Everett's inability to physically care for Daniel. The fact of separation, however, cannot be ignored and, indeed, it places upon Everett the necessity for an even greater effort to foster a nurturing relationship. The District Court had no means of testing Everett's parental conduct other than his failure to utilize the only means available to maintain any contact with Daniel. Even more damaging in this regard was Everett's failure during the one period he was out of prison to make any effort to contact either Daniel or the department.

By the time of the termination hearing, Everett was incarcerated in Massachusetts and would not become eligible for parole for almost two years. Daniel had developed a close attachment to his foster family and had no relationship with his father. ³ The District Court could have concluded that for Everett to establish a nurturing relationship would involve a very long-term process. In view of Everett's past neglect, the court was justified in believing that "the circumstances are unlikely to change in a reasonable time." Upon the record before us, we cannot say that the District Court erred.

III.

For his second argument, Everett accurately observes that the statute places upon the department the obligation of facilitating reunification of children in its custody with their natural parents. 22 M.R.S.A. § 4041 (Supp.1983) (superseding 22 M.R.S.A. § 3803 (1980)). He then asserts that "reunification attempts are a prerequisite to termination" and that "failure [of the department] to perform its duty would be grounds for denying termination," citing In Re Shannon R., 461 A.2d 707 (Me.1983) and Matter of Anita PP, 65 A.D.2d 18, 410 N.Y.S.2d 916 (App.Div.1978). We quite agree that the requirements of section 4041 are mandatory. Furthermore, we reject the department's contention that its activities prior to enactment of section 3803 in 1977 are unaffected by any reunification requirement. We believe that reunification of families has been an important public policy since long before any date relevant to this case. The record in this case does not reflect that the department fulfilled that policy or the requirements of section 4041 in regard to Daniel. See n. 3 supra p. 769.

We face a far different question, however, when we analyze the second step of Everett's argument. First, his reliance on Anita is misplaced because that case is based upon a different statutory provision in New York. There the state agency must prove initially that the child has been "permanently neglected," which involves at least two factors: (a) that for more than a year after gaining custody, the agency made "diligent efforts to encourage and strengthen the parental relationship," and (b) that the child's natural parents failed "substantially and...