In re M.B.

• Decision Date: 09 May 2013
• Docket Number: Docket No. And–12–330.
• Citation: 65 A.3d 1260,2013 ME 46
• Parties: In re M.B. et al.
• Court: Maine Supreme Court

65 A.3d 1260

2013 ME 46

In re M.B. et al.

Docket No. And–12–330.

Supreme Judicial Court of Maine.

Argued: April 9, 2013.

Decided: May 9, 2013.

Jason Dionne, Esq., (orally), on the briefs, Isaacson & Raymond, P.A., Lewiston, for appellant father.

Richard Charest, Esq., (orally), on the briefs, Auburn, for appellant mother.

Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., (orally), on the briefs, Office of the Attorney General, Augusta, for appellee Department of Health and Human Services.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.

JABAR, J.

[¶ 1] The mother of M.B. and G.W. and the father of M.B. appeal from a judgment of the District Court (Lewiston, Beliveau, J.) terminating their parental rights. The mother and father argue that the court violated the Due Process Clause of the Fourteenth Amendment by (1) issuing an order terminating their parental rights before receiving their post-trial briefs and (2) admitting in evidence statements that M.B. made to the court without counsel for the parents being present. Additionally, the parents argue that the evidence presented at trial was insufficient to prove by clear and convincing evidence that they are unfit to parent and that termination of parental rights is in the best interests of the children. We affirm the trial court's judgment.

I. BACKGROUND

[¶ 2] M.B. was born on February 22, 2004. The mother has a second child, G.W., who was born on August 8, 2008. At the time of M.B.'s birth, the mother and father lived together in Florida, but they separated two months later. M.B. remained in Orlando with the mother, and the father moved to Miami but maintained contact and had visits with M.B.

[¶ 3] In 2008, when the mother dropped M.B. off at the father's home for an overnight visit, the father noticed bruising on the child's arms and legs. Concerned that the bruises were not the result of an accident or play, the father called the mother to determine the cause, but she refused to provide an explanation. Instead, hours later, at 3:00 a.m., the mother arrived at the father's home and frantically demanded that the father hand over M.B., which he did.

[¶ 4] Despite concerns about M.B.'s safety, the father did not contact Florida authorities or attempt to obtain custody. He did maintain contact with the mother and occasionally spoke with M.B., but the father did not see his child after this early morning incident, and, for the first fifteen months of this case, he did not have any contact with the child, believing the mother's untruthful assertions that the child was around but too busy to talk. ¹ Soon after G.W. was born, the mother moved with the children to Massachusetts.

[¶ 5] On October 2, 2009, the Maine Department of Health and Human Services received information indicating that the mother had fled to Maine because the Massachusetts Department of Children and Families was attempting to take custody of M.B. and G.W. The Department was concerned because the mother had been substantiated as a sex offender in Massachusetts for allegedly inserting a toothbrush into the vagina of her boyfriend's two-year-old daughter, had untreated substance abuse and mental health issues, and exposed her children to domestic violence. A caseworker with the Department met with M.B. at school, where he indicated that he was hungry and that he had recently come to Maine with his sister, his mother, and his mother's boyfriend. The caseworker also met with the mother separately. She denied the allegations of sexual abuse relayed from Massachusetts and indicated that she had forgotten to feed M.B. that day. While at the meeting, the mother changed G.W.'s diaper and the caseworker noticed blood in the child's stool. Later that same day, the children were taken into the Department's custody and placed with a foster family. Soon thereafter, G.W. was examined by Dr. Lawrence Ricci of the Spurwink Child Abuse Program, who determined that she had suffered “anal injuries consistent with blunt penetrating trauma.”

[¶ 6] On October 15, 2009, the mother waived her right to a summary preliminary hearing; the court reaffirmed the children's custody with the Department and recognized that service was incomplete as to the father. The mother indicated that she believed the father was in Florida but denied knowing how to contact him; she denied knowing the identity of G.W.'s father, claiming that G.W. was the product of rape.

[¶ 7] The court entered an agreed-upon jeopardy order as to the mother in February 2010, requiring her to engage in a variety of services approved by the Department including a psychological evaluation, mental health counseling, and random drug and alcohol testing. The children were ordered to remain in foster care, and the father's whereabouts were still unknown.

[¶ 8] Judicial review conferences were held on April 29, 2010, and July 15, 2010, at which the court found that jeopardy as to the mother was unresolved because she had been living in Massachusetts ² and the extent of her participation in Department-approved services was unknown.

[¶ 9] At the time of the third judicial review conference, held on October 26, 2010, the mother had returned to Maine and was participating in some substance abuse and mental health counseling, but she continued to test positive for marijuana use. The court found that the mother had made little progress regarding her chaotic lifestyle or the issues surrounding sexual and physical abuse to her children. By that date, more than a year after M.B. was placed in the State's custody, the State had not yet served any of the originating documents on the father.

[¶ 10] On February 3, 2011, a Department caseworker was contacted by the father. According to the father, the mother had only recently informed him that M.B. was in the Department's custody. On February 11, 2011, the Department filed a petition to terminate the parental rights of both the mother and the father.

[¶ 11] In June 2011, the Department dismissed the petition to terminate the father's parental rights and the court ( Stanfill, J.) entered an agreed-upon jeopardy order as to him; a hearing on the petition to terminate the mother's parental rights was continued. In August 2011, after a judicial review conference, the parties developed a reunification plan for M.B. and the father, which indicated that the father, who at the time still lived in Florida, would begin contacting M.B., then seven years old, via email. At the conference, the mother refused to sign a reunification plan and refused to submit to drug testing.

[¶ 12] Pursuant to the reunification plan, contact between M.B. and the father began through email. Even this limited contact, however, caused extreme anxiety in M.B. and stress to the father. In the emails, M.B. would tell his father that he hated him and that he did not want to talk to him. M.B. refused gifts that his father bought him and drew pictures depicting his father being hurt; the father suffered a medical event—his girlfriend characterized it as a heart attack—that he claimed was related to the stress of interacting with M.B. As a result of the father's medical condition, email contact between the father and M.B. ceased from November 2011 to February 2012.

[¶ 13] In December of 2011, over M.B.'s protests, the Department arranged two phone calls between M.B. and the father.³ Despite M.B.'s reluctance, the first phone call was conducted without incident, and the two talked for about five minutes. When the foster mother took M.B. to the Department's office for a second phone call, however, “he was laughing insatiably [ sic ], and crying,” and eventually curled up on his knees on the floor. After the second phone call, M.B. began screaming in the middle of the night and having hallucinations. The phone calls then ceased.

[¶ 14] Meanwhile, the Department was attempting to convince the father to move to Maine to help facilitate reunification. Instead, the father moved to New York to live with his girlfriend and the two other children he has with her. The father did begin to meet with George Repp, a reunification therapist located in Maine, but was unable to keep his once-a-month appointments, and Repp eventually discharged him. Although Repp suggested that the father attempt to receive reunification services from a therapist in New York, neither the father nor the Department ever pursued that option.

[¶ 15] On February 6, 2012, the Department filed a petition to terminate the parental rights of the mother and the father. With respect to the mother, the Department alleged that she missed meetings and scheduled visitations, failed to consistently engage in substance abuse and mental health treatment, and failed to understand why her children had been removed from her care. The Department alleged that contact with the father caused M.B. extreme anxiety and that the father refused to put M.B.'s needs for permanencyabove his own. The court held a hearing on the petition on May 29 to 31, 2012.

[¶ 16] At the termination hearing, Julia Cabral, a licensed clinical social worker who worked with M.B., testified that the increased contact between M.B. and the father caused M.B. to feel that “his safety was threatened,” and indicated that on two instances, when faced with the prospect of contacting his father, M.B. would laugh, then cry, and curl up in a ball on the floor of her office. She also indicated that M.B. has made it clear that he considers his foster family his real family, he is extremely fearful of being taken away from that family, and, in her clinical opinion, removal from the foster family's home would result in “a significant disruption of his developmental progress.” She stated that M.B. needed finality in a short period of time.

[¶ 17] Mark Rains, a licensed psychologist who conducted an evaluation of M.B., testified that M.B. demonstrated signs of posttraumatic stress disorder and that he made...