In re Thomas D.
| Decision Date | 04 August 2004 |
| Citation | 2004 ME 104,854 A.2d 195 |
| Parties | In re THOMAS D. |
| Court | Maine Supreme Court |
Donna A. Bailey, Esq. (orally), Saco, Pamela S. Holmes, Esq., McGarry & Holmes, LLC, Wells, for appellants.
G. Steven Rowe, Attorney General, Matthew Pollack, Asst. Attorney General (orally), Joseph Wannamacher, Asst. Attorney General, Elizabeth Stout, Asst. Attorney General, Augusta, for appellee.
Christopher Dilworth, Esq., Falmouth, for Guardian ad Litem.
Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.
[¶ 1] In this parental rights termination action, we examine the effect that the failure to establish a rehabilitation and reunification plan for a parent has on the District Court's later consideration of a termination petition brought by the Department of Human Services. The mother and father of Thomas D. appeal from the judgment of the District Court (Biddeford, Kennedy, J.) terminating their parental rights pursuant to 22 M.R.S.A. § 4055 (2004). The parents challenge several aspects of the judgment, including the sufficiency of the evidence establishing their parental unfitness and the court's determination of Thomas's best interest. We vacate the court's judgment as to the father because we conclude that the finding of parental unfitness was not supported by clear and convincing evidence. We also vacate the court's judgment as to the mother. Although one of the court's bases for finding parental unfitness as to the mother was supported by clear and convincing evidence, that determination and the separate determination of the child's best interest must be reconsidered in view of our decision regarding the father.
[¶ 2] Angela S. and William D. are the biological parents of Thomas D., who is now four years old. Angela is also the mother of Thomas's older sister, Natalie, who is five years old.
[¶ 3] The Department first became involved with the family in October 2001, after Natalie was seen at an emergency room for scabies and head lice. In January 2002, employees of the Department went to the family's home to complete a safety assessment. There, they found unsanitary and unkempt conditions. Thomas and his clothing were observed to be filthy, and Angela was observed changing Thomas's diaper in an unsanitary area. Several safety hazards existed in the home, including unsecured heavy objects and construction materials. Many empty beer cans, some in bags, were observed in the residence.
[¶ 4] In response to these conditions, the Department sought and obtained ex parte preliminary protection orders and removed Thomas and Natalie from the home. The parents waived their right to a summary preliminary hearing, and the court entered an order in January 2002 providing that the children would remain in the Department's custody. Natalie is the subject of a separate proceeding that is not the subject of this appeal.
[¶ 5] A jeopardy hearing was held in February regarding Thomas, and the court (Foster, J.) entered an agreed-to jeopardy order that provided that Thomas would remain in the Department's custody, and contained the following findings:
Jeopardy consists of the following circumstances: the children have been living in an unsanitary and unsafe home, and have been subject to emotional abuse by exposure to domestic discord and what the Department believes is substance abuse. Thomas has had bruises that are consistent with inflicted injury. The children have not had their medical needs met: ... Thomas has mild to moderate delays in all areas of development.
[¶ 6] Thomas has many special needs because of severe developmental disabilities. He requires multiple medical appointments and treatments with service providers, which necessitate a great deal of time and effort on the part of his caregivers to ensure that he attends those appointments. He had a significant and largely untreated medical condition of crossed eyes at the time he went into the Department's custody, and some of his basic immunizations had been neglected.
[¶ 7] The Child and Family Services and Child Protection Act, 22 M.R.S.A. §§ 4001 to 4099-C (2004), requires that a rehabilitation and reunification plan must be developed by the Department when a child is considered to have entered foster care, id. § 4041(1-A)(A), (C). "A child is considered to have entered foster care on the date of the first judicial finding that the child has been subjected to child abuse or neglect or on the 60th day after the child is removed from the home, whichever occurs first." Id. § 4041(1-A).
[¶ 8] The jeopardy order in this case stated that There was, however, no plan attached to the jeopardy order or filed with the court.
[¶ 9] In the ensuing months, the Department provided Angela with rehabilitation and reunification services. William participated in some of the services offered by the Department, but he and the Department were unable to agree upon a rehabilitation and reunification plan. William disputed the Department's position that he needed to complete substance abuse counseling and a batterers intervention program as prerequisites to reunification. William did, however, complete substance abuse and psychological evaluations scheduled by the Department.
[¶ 10] The parties returned to court on July 24, 2002, for their first judicial review hearing. The court entered a case management/pretrial order that referred the case to the court's contested trailing docket for a one-day hearing on the services to be completed by William. In a separate order after judicial review, the court stated that "[t]he issue of the rehabilitation and reunification services to be completed by the father will be resolved by the court after a full hearing."
[¶ 11] In November 2002, Angela filed a motion for judicial review seeking an order requiring "further and intensive steps in reunification not planned by the Department." The court conducted a case management conference in November and referred the motion to the court's contested trailing docket for a trial.1
[¶ 12] The Department's petition to terminate the parents' parental rights was filed in January 2003. A judicial review and permanency planning hearing was conducted in February, and the court issued an order reflecting that a and that the "mother's request for in-home services is still pending." The record does not reflect that a case plan was subsequently filed with the court. The court also entered a separate case management order in February that referred the case to the contested trailing docket for a two to three-day trial on the issues of services, compliance with the reunification plan, and termination.2
[¶ 13] A trial on the termination petition was conducted over five days in June and July 2003. The question of whether a plan was ever submitted to the court was raised during the trial when the Department sought to introduce a written plan dated March 2002. After a lengthy colloquy between the court and counsel, the court concluded that "the reasonable inference is that [the plan] probably never got to anybody," and admitted the exhibit only to show what the Department's proposed plan was, and not "as evidence that there was any agreement as to a reunification plan."
[¶ 14] The foregoing history establishes that at or near the time of the jeopardy order in February 2002, there was agreement between the Department and the mother as to the services that were required and would be provided as part of her plan of rehabilitation and reunification, but a written plan was never submitted to or approved by the court. In addition, the mother's November 2002 motion seeking more intensive reunification services was not acted upon prior to the termination hearing that commenced in June 2003. As to the father, there was never agreement as to a plan for the services that were required, and although the issue was referred for a hearing, it was ultimately never acted upon by the court.
[¶ 15] By a judgment entered in September 2003, the District Court terminated the rights of Angela and William to Thomas, concluding by clear and convincing evidence pursuant to 22 M.R.S.A. § 4055(1)(B)(2) that: (a) both parents are unwilling or unable to protect the child from jeopardy and those circumstances are unlikely to change within a time reasonably calculated to meet Thomas's needs; (b) William is unwilling or unable, and Angela is unable, to take responsibility for Thomas within a time reasonably calculated to meet his needs; (c) William failed to make a good faith effort to rehabilitate and reunify with Thomas; and (d) terminating both parents' rights is in Thomas's best interest.
[¶ 16] The court concluded that William's failure to engage in reunification services demonstrated his inability to protect Thomas from jeopardy:
Since the parties[ ] have reunified, [William] has been present for most of the visits with Tommy, but the court believes that all of his efforts in this matter have been at a superficial level, and that there is no convincing evidence that he is even beginning to meet or address the preexisting issues by abstaining from drinking, engaging in substance abuse counseling, or commencing or completing a certified batterers intervention program such as Violence No More. Accordingly, the court concludes that [William] is clearly both unable to prevent Tommy from being in jeopardy ... and is unwilling to take responsibility for Tommy within a time which is reasonably calculated to meet his needs.
[¶ 17] The court found that Angela's reunification...
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