In re Mathew H.

• Decision Date: 11 July 2017
• Docket Number: Docket: Yor-17-44.
• Citation: 167 A.3d 561
• Parties: IN RE MATHEW H. et al.
• Court: Maine Supreme Court

167 A.3d 561

IN RE MATHEW H. et al.

Docket: Yor-17-44.

Supreme Judicial Court of Maine.

Submitted On Briefs: June 29, 2017

Decided: July 11, 2017

Brittany Sawyer, Esq., Holmes Legal Group, LLC, Wells, for appellant father

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.

MEAD, J.

[¶ 1] The father of Mathew H. and Kamron H. appeals from a judgment entered by the District Court (Biddeford, Janelle, J. ) terminating his parental rights to the children pursuant to 22 M.R.S. § 4055(1)(B)(2) (2016).¹ He challenges the court's finding by clear and convincing evidence that he is unfit and its finding that termination of his parental rights is in the children's best interest. Additionally, he contends that the court erred in not treating his former wife as the children's de facto parent and in determining that the permanency plan for the children would be adoption, not a permanency guardianship. Finally, he asserts that the guardian ad litem failed to perform her statutorily-required duties by not meeting with him individually. Because the evidence supports the court's factual findings and discretionary determinations, and because we conclude that the father's other contentions are not persuasive, we affirm the judgment.

A. Sufficiency of the Evidence

[¶ 2] Applying the statute, the court found by clear and convincing evidence that the father (1) is unwilling or unable to protect the children from jeopardy within a time reasonably calculated to meet their needs, (2) is unwilling or unable to take responsibility for them within that timeframe, and (3) failed to make a good faith effort to rehabilitate and reunify with the children. See 22 M.R.S. § 4055(1)(B)(2)(b). The court then found that termination of the father's parental rights is in the children's best interest. See 22 M.R.S. § 4055(1)(B)(2)(a). We review the factual findings supporting the unfitness determination for clear error, see In re Logan M. , 2017 ME 23, ¶ 3, 155 A.3d 430, and apply the same standard to the factual findings supporting the best interest determination, although we review the court's ultimate conclusion that termination is in the children's best interest "for an abuse of discretion, viewing the facts, and the weight to be given them, through the trial court's lens," and giving the court's judgment "substantial deference," In re Caleb M. , 2017 ME 66, ¶ 33, 159 A.3d 345 (quotation marks omitted).

[¶ 3] Here, the court's factual findings are supported by competent evidence in the record and are therefore not clearly erroneous. See In re M.B. , 2013 ME 46, ¶ 40, 65 A.3d 1260. In determining that the father is an unfit parent, the court found, by clear and convincing evidence, that the father's incarceration until at least July 2017 means that reunification could not conceivably begin until that time. The court concluded, based on the testimony of mental health experts at the hearing, that "[the children] are very damaged and it is going to take a long time to repair the damage. If everything goes well, they may adapt in adolescence, or it may take until adulthood until they overcome the damage." If attempted, reunification "would take a significant amount of additional work to get to the point where [the father] might possibly be able to have a relationship with the children due to their diagnoses.... The children have been suffering daily for a long time and deserve permanency today ...."

[¶ 4] The court also cited the father's significant criminal history; his history of substance abuse, including the use of an illegal drug in December 2015 while he was incarcerated, which delayed his release date and thus any opportunity to care for the children; and his inconsistent communication with the children.

[¶ 5] The court further found, again by clear and convincing evidence, that the children's best interest required termination because "[t]he Court heard over and over again through the testimony of service providers and the caregiver that [the children] need: permanency, predictability and knowledge of where they are going to live permanently." The medical experts "emphasized the need for [the children] to continue to be in a permanent, stable and consistent environment in order to continue the healing process," and a psychological evaluation noted that in the case of one of the children's most serious mental health diagnoses, "it is typically much harder to repair attachment dysfunction when attempted by a parent figure who is implicated in creating the initial damage." Although the court recognized the father's "commendable" participation in programs offered at the Maine State Prison, it concluded that "it is simply not enough for these children who need permanency now.... It is too long to ask [them] to wait."

[¶ 6] For the same reasons, the court rejected the father's proposal of a permanency guardianship—which the foster mother, the guardian ad litem, and the Department all opposed—finding that

[d]espite the name, a Permanency Guardianship in this matter would not offer real, lasting permanency for [the children].... It may be preferable to the parent, but a Permanency Guardianship is

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