In re Caleb M.
| Decision Date | 06 April 2017 |
| Docket Number | Docket: Cum–16–286 |
| Citation | 159 A.3d 345 |
| Parties | IN RE CALEB M. et al. |
| Court | Maine Supreme Court |
Virginia Lee Holt, Esq., Holt Family Law, Saco, for appellant mother
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶ 1] More than two and a half years after Caleb M. and Ayden R. were first removed from their mother's care because of her substance abuse and consequent neglect, the mother's parental rights to the children were terminated by a judgment of the District Court (Portland, Eggert, J. ). The mother appeals, arguing that the court did not independently exercise its judicial function, that the court improperly relied on the reports of a guardian ad litem (GAL), and that the evidence was insufficient to support the termination of her parental rights. We affirm the judgment.
[¶ 2] On November 7, 2013, the Department sought child protection orders on behalf of Caleb M. and Ayden R. due to allegations of neglect caused by the mother's substance abuse.1 By agreement, on March 3, 2014, the court (Goranites, J. ) made a finding of jeopardy against the mother as to each child, based on the mother's exposure of the children to drug use, criminal activity, and unsafe individuals; and her lack of appropriate housing. While these proceedings were pending, the mother gave birth to a daughter who is the subject of a separate child protection proceeding.
[¶ 3] Judicial reviews were held on March 3 and September 3, 2014; March 3 and September 9, 2015; and March 8, 2016, and orders were entered by agreement after each of these reviews. Reports of a GAL were admitted in evidence at each of the judicial reviews. The September 9, 2015, and March 8, 2016, judicial reviews were presided over by the same judge (Eggert, J. ) who ultimately presided over the termination hearing.
[¶ 4] On December 14, 2015, the Department filed a petition to terminate the mother's parental rights to Caleb, and on February 18, 2016, the Department filed a petition to terminate her parental rights to Ayden. In both petitions, the Department alleged that the mother had inconsistently participated in mental health and substance abuse services, and had continued to permit unsafe individuals, including the three fathers of her children, to be present around the children.
[¶ 5] The court conducted a hearing on the petitions on May 12 and 16, 2016, during which the court heard testimony from the mother, the mother's and the children's providers, Department caseworkers, and the GAL. At the conclusion of the hearing, the court sought proposed orders from both the mother and the Department. In a judgment entered on June 2, 2016, in which the court largely adopted the Department's proposed order, the court terminated the mother's parental rights to both children.2 In a footnote, the court noted that it had used the Department's proposed order "extensively" because "the Department's proposed findings align quite closely with the court's view of the evidence."
[¶ 6] In its judgment, the court made the following supported findings by clear and convincing evidence. See In re Hannah S. , 2016 ME 32, ¶ 3, 133 A.3d 590. The mother has had a substance abuse problem for several years. She participated in various treatment programs including outpatient, intensive outpatient, and residential programs. Her compliance with these treatment programs was inconsistent, and she was discharged from one program for her failure to make progress. Needles were found in her room at one of the treatment programs.
[¶ 7] The mother relapsed on several occasions, and recent drug tests performed by her doctor showed elevated levels of her prescribed medications and indications that she was also using nonprescribed medications. In December 2015, the mother admitted that she overused her prescribed Suboxone. Only two months before her parental rights were terminated, a Department caseworker found needles in her bedside table.
[¶ 8] The mother permitted several "unsafe men" to be present with the children. In early 2016, a Department caseworker making an unannounced visit to the mother's home discovered Ayden's father hiding in a closet despite the mother's denial that he was there. Ayden's father was then arrested on outstanding warrants. In April 2016, a caseworker visiting the mother's home noticed her infant daughter's father leaving. When the caseworker asked the mother about needles that were found in a nightstand, she blamed the daughter's father and his friend.
[¶ 9] Caleb was afraid of returning to live with his mother because he worried that he would be the one who would have had to care for Ayden and their sister. He worried about having enough food to eat, and he regularly checked the cupboards in his foster home to see that there was enough food. Caleb has been diagnosed with autism spectrum disorder, and is on the waiting list for more intensive in-home support, as well as trauma-focused cognitive behavioral therapy. Caleb's therapist believes that returning Caleb to his mother's care would "re-traumatize" him.
[¶ 10] The mother did not consistently attend visits with her children. The visit supervisor testified that Caleb seemed to "r[u]n the show" during visits with the mother. When the mother misses visits with Caleb, he becomes very upset. The Department intends to seek an adoptive placement for Caleb.
[¶ 11] Ayden has been diagnosed with ADHD. In his foster placement, Ayden thrived on structure and routine. In late 2015, the mother was given the opportunity to have Ayden with her again. He was returned to his mother's care in a trial placement but had to be removed again in early 2016.
[¶ 12] Supporting the decision to remove Ayden, the GAL testified that during the trial placement, Ayden's "level of care suffered enormously when he was with his mother." According to the GAL, he was "falling asleep in class," "behind academically," and "hungry." "His mother was not picking ... him up reliably," and "he was having hygiene issues." The Department plans to seek an adoptive placement for Ayden.
[¶ 13] The court ultimately found that, despite the mother's access to services for more than two years, the mother could not rebut the presumption of unfitness that arose because of her chronic substance abuse. See 22 M.R.S. § 4055(1–A)(C) (2016). At the time of the hearing, the mother was unable to care for the children, and she may never be able to do so. Caleb and Ayden "need permanency" after having lived in a state of "limbo" for nearly three years. Both children "deserve the permanency of adoption." The court found that adoption is in the best interest of each child. See 22 M.R.S. § 4055(1)(B)(2)(a) (2016). The mother timely appealed. See 22 M.R.S. § 4006 (2016) ; M.R. App. P. 2(b)(3).
[¶ 14] The mother contends on appeal that the court failed to exercise its independent judgment in terminating her parental rights and erred in considering GAL reports, and that the evidence was insufficient to support the court's decision to terminate her parental rights.
[¶ 15] The mother first argues that the court did not exercise its independent judgment in terminating her parental rights because the court adopted the Department's proposed order with minimal changes. We note that the mother failed to file a motion for further findings or for reconsideration before raising this issue in her appeal. As we have recently noted, "appeals challenging orders based upon an alleged lack of independent judgment by a judge should be preceded by an appropriate motion that identifies the issue and allows the trial judge an opportunity to address those concerns prior to appellate review." Yap v. Vinton , 2016 ME 58, ¶ 9 n.1, 137 A.3d 194. We now clarify the importance of such a motion in the context of a child protection proceeding. In order to avoid the delay inherent in a later challenge to the court's order that could have been expeditiously addressed by the trial court, we will no longer entertain a challenge to the trial court's independent judgment based on the court's adoption of a party's proposed order, absent a parent's motion for further or clarified findings pursuant to Maine Rule of Civil Procedure 52(b).3
[¶ 16] Because we have not previously announced this requirement, we proceed to consider the merits of the mother's argument. "In reviewing whether the trial court performed its judicial function, we must determine whether the findings adequately indicate the factual basis [for] the ultimate conclusion." In re Sabrina M. , 460 A.2d 1009, 1013 (Me. 1983). "If the proposed findings are argumentative or insufficiently objective because they are drafted by a party, a judgment adopting those findings may be defective." In re C.P. , 2016 ME 18, ¶ 19, 132 A.3d 174.
[¶ 17] Although "a verbatim adoption of findings proposed by one party ... is disfavored, as such an approach suggests that the court has not applied its independent judgment in making its findings and conclusions," draft findings proposed by either side can aid the court's fact–finding. In re Marpheen C. , 2002 ME 170, ¶ 7, 812 A.2d 972. "[W]hen draft orders are adopted without change or with little material change," and the court's findings have not changed as a result of a properly filed motion for further or clarified findings pursuant to Rule 52(b), the key question for our review "will be whether the findings and order reflect the application of judgment by the court and not simply one of the parties." See Yap , 2016 ME 58, ¶ 10, 137 A.3d 194.
[¶ 18] It is evident that the court's judgment in this matter resulted from the court's careful application of its own independent judgment. The judgment is not a verbatim adoption...
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