In re Child of Joshua S.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 132
Docket: And-18-165
Submitted
On Briefs: September 26, 2018
Decided: October 4, 2018

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


IN RE CHILD OF JOSHUA S.


PER CURIAM

[¶1] Joshua S. appeals from a judgment entered by the District Court

(Lewiston, Beliveau, J.) terminating his parental rights to his child pursuant to

22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2017). The father challenges the

court’s determination that termination of his parental rights is in the best

interest of his child rather than a permanency guardianship with the child’s

maternal grandmother.1 We affirm the judgment.

I. BACKGROUND

[¶2] This case began on January 23, 2017, when both of the child’s

parents were arrested after law enforcement, working with the mother’s

probation officer, entered the family residence and seized heroin, cocaine,

marijuana, and various items of drug paraphernalia. At the time of their arrest,

1 The mother consented to the termination of her parental rights on March 12, 2018, and she is

therefore not a party to his appeal. See 22 M.R.S. § 4055(1)(B)(1) (2017).
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the police observed needles, cocaine, heroin, and fentanyl out in the open. The

child—then six years old—was present during the arrest.

[¶3] As a result of the arrests, on February 2, 2017, the Department of

Health and Human Services filed a petition for a child protection order, alleging

that both parents abused drugs, the father was trafficking scheduled drugs out

of the home, and that the child was exposed to unsafe conditions, including

access to scheduled drugs and domestic violence between the mother and

father. The court (Dow, J.) granted a preliminary protection order that day,

placing the child in the custody of the Department.

[¶4] On April 24, 2017, the District Court (Oram, J.) entered a jeopardy

order by agreement, finding that the parents had untreated substance abuse

and mental health issues and exposed the child to an unsafe living environment

and unsafe individuals. By judicial review order dated September 14, 2017, the

court (Dow, J.) ordered the Department to cease reunification efforts with the

father because continuing such efforts would be “inconsistent with the

permanency plan for the child.” On January 3, 2018, the Department petitioned

the District Court to terminate the parental rights of both parents. See 22 M.R.S.

§ 4055(1)(B)(2) (2017).
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[¶5] After a one-day testimonial hearing, by judgment dated

April 11, 2018, the court (Beliveau, J.) terminated the father’s parental rights,

having found, by clear and convincing evidence, that (1) the father was “unable

to take responsibility for his child and is unable to protect [the child] from

jeopardy within a reasonable time to meet [the child’s] needs,” and the

“circumstances clearly indicate that there will be no change within a time

reasonably calculated to meet the child’s needs” and (2) termination was in the

best interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii). The court

based its decision on the following findings, which are supported by competent

record evidence.

The child [] has been in foster care since February 2, 2017.
[The child] is now 7 years of age. The father is still incarcerated
and his expected release date is March 2020. He has been
incarcerated since January of 2017. He was expected to participate
in substance abuse and mental health counseling while
incarcerated. He attended IOP [Intensive Outpatient Program]
while in jail but did not participate in follow up treatment. . . . Prior
to his incarceration he had been abusing illegal drugs since age 25
years. This continued for at least 5 years prior to his incarceration.
. . . During those years, he attended the local Grace St. IOP program
but still relapsed. He never attended any counseling or treatment
programs after completing the IOP program. . . . According to the
Father’s testimony, his longest period of sobriety was 7 months
during the 4 to 5 years prior to his incarceration. He has waited till
just recently to attend a parenting class in jail.

. . . .

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The [Department] caseworker . . . testified the Father was
given DHHS contact information but never called to ask how his
child was doing. In addition, [the Department caseworker] said
that the Father upon release would have to undergo mental health
and substance abuse counseling and prove he can be sober before
caring for his child. This [c]ourt finds that it would be a long period
of time for this to happen. His history of unsuccessful treatment
and sobriety are negatives in relation to the time it would take for
him to be successful.

. . . .

This [c]ourt found and concluded in its Jeopardy Order that
[the child] was in “circumstances of jeopardy to [the child’s] health
and welfare as evidenced by the threat of serious harm and the
threat of neglect.” [The Father] continues to have serious
untreated substance abuse, mental health issues as well as a
history of domestic violence. In addition, the parents exposed the
child to an unsafe living environment and unsafe individuals who
frequented their home.

. . . .

[T]he child is doing very well in [the] placement with [the
child’s] grandmother. The GAL has concluded that termination of
parental rights is best for [the child] and not a Permanency
Guardianship. Adoption with [the] Grandmother is best for the
child.

. . . .

The Father has no plans for housing upon his release since
his release will not be until March 2020. He agrees that after his
release he would not be in a position to take immediate custody of
his child.

[T]his [c]ourt finds based on the evidence that the Father’s
road to reunification is a long way off. The child cannot wait
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another year or two for [the] Father to reunify and be rehabilitated.
His history of mental health and above all substance abuse dictates
that the [c]hild is in need of permanency now and not two to three
years from now. The plan for permanency is termination of the
Father’s parental rights which is the most reasonable for the child
and in [the child’s] best interests.

. . . .

The child is in need of permanency. [The child] cannot wait
for [the] Father to rehabilitate so as to pursue reunification within
a reasonable time.

II. DISCUSSION

[¶6] “We review the trial court’s factual finding that . . . termination of

parental rights is in the child’s best interest for clear error and the ultimate

decision to terminate parental rights for an abuse of discretion.” In re Child of

Amber L., 2018 ME 91, ¶ 3, 188 A.3d 876 (quotation marks omitted). Based

upon the above facts, all of which have evidentiary support in the record, the

court did not err in finding that the father is unfit and that termination of his

parental rights is in the best interest of the child. See 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i)-(ii); In re Thomas D., 2004 ME 104, ¶ 21,

854 A.2d 195.

[¶7] The trial court found that the father’s incarceration, admitted

history of substance abuse, untreated mental health issues, and history of

domestic violence dictate that the child needs permanency now, not years from
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now. The child has been in foster care since January 2017, and the child’s father

will be released from prison no sooner than March 2020. The child cannot wait

for three years, at minimum, to reunify with the father. See In re B.P.,

2015 ME 139, ¶ 19, 126 A.3d 713.

[¶8] The father also argues that the court should have granted

permanency guardianship to the child’s grandmother in lieu of terminating his

parental rights. The court’s determination that adoption, rather than a

permanency guardianship, was in the child’s best interest is supported by the

guardian ad litem’s testimony to that effect. Specifically, the guardian ad litem

testified that permanency guardianships are better suited for children older

than this child and where the parents do not have extensive histories of

substance abuse. In light of this testimony, the court did not abuse its discretion

in concluding that termination of the father’s parental rights and “[a]doption

with [the] [g]randmother is best for the child.”

The entry is:

Judgment affirmed.






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Richard Charest, Esq., Lewiston, for appellant Father

Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services


Lewiston District Court docket number PC-2017-008
FOR CLERK REFERENCE ONLY