Adoption of Riahleigh M.Adoption of MyAnnah D.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 24
Docket: Cum-18-9; Cum-18-12
Argued: October 11, 2018
Decided: February 14, 2019

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


ADOPTION OF RIAHLEIGH M.

*****

ADOPTION OF MYANNAH D.


SAUFLEY, C.J.

[¶1] In the two appeals that we address in this consolidated opinion, we

consider whether a parent whose parental rights are at stake in a judicial

termination proceeding that does not involve the Department of Health and

Human Services is constitutionally entitled to the services that are ordinarily

provided in a title 22 child protection action after a court has found abuse or

neglect or has placed a child in foster care under the supervision of the

Department. In the matters before us, the fathers of half-sisters Riahleigh M.

and MyAnnah D. appeal from separate judgments of the Cumberland County

Probate Court (Mazziotti, J.) granting the petitions of the children’s maternal

grandmother to terminate the fathers’ parental rights as part of the proceeding

through which the grandmother seeks to adopt the children.
2

[¶2] During the separate proceedings in these actions, the court denied

each father’s motion for an order requiring the provision of rehabilitation and

reunification services.1 Before us, the fathers argue that they were deprived of

due process and equal protection of the law when the court denied these

motions. We conclude that the court did not violate the rights secured to the

fathers by the Maine and federal constitutions, and that the court did not err or

abuse its discretion by entering the judgments terminating the fathers’ parental

rights. Accordingly, we affirm the judgments.

I. BACKGROUND

[¶3] The following facts are drawn from the procedural record and from

the court’s findings, which are supported by the evidence. See In re Evelyn A.,

2017 ME 182, ¶ 4, 169 A.3d 914.

[¶4] Riahleigh was born in 2006, and MyAnnah was born in 2012. The

children have the same mother but different fathers. The children now reside

in the safe and healthy home of their maternal grandmother. A District Court

parental rights and responsibilities order regarding Riahleigh and a Probate

Court guardianship order regarding MyAnnah placed the children in the

1 The fathers did not identify the intended or expected source of funding for any services in their

motions. The sources of those funds, however, are not material to our conclusion that the fathers are
not entitled to the services as a constitutional matter.
3

grandmother’s care. In early 2015, the grandmother filed petitions in the

Probate Court to adopt the two children and petitions to terminate each

parent’s parental rights.2 The court appointed counsel for the mother and each

father. See 18-A M.R.S. § 9-106(a) (2017).3 It also appointed a guardian ad

litem in each matter. See 18-A M.R.S. § 9-204(c) (2017).

[¶5] The mother and both fathers unsuccessfully moved for the court to

order the provision of rehabilitation and reunification services consistent with

the services that would have been available if a court had found abuse or

neglect or the children had been placed in foster care in a child protection

matter. Cf. 22 M.R.S. §§ 4036-B, 4041 (2017). Neither of the fathers specified

in his motion what specific services he wanted to receive, apart from a generic

request by the father of MyAnnah that services include “visitation, parenting

counseling, and mental health counseling.” Neither motion requested payment

for the services from any specific party or from the State, nor did either father

2 From the record before us, it appears that at the time the grandmother filed the petitions to

adopt the children and to terminate the parents’ parental rights, the mother and both fathers objected
to the adoptions. See 18-A M.R.S. §§ 9-301, 9-302 (2017).
3 The entire title 18-A Probate Code has been repealed and replaced with a new Probate Code to

be codified in new title 18-C, a change that will take effect on July 1, 2019. See P.L. 2017, ch. 402. All
citations herein are to the Code currently in effect.
4

argue that any specific services were designed to remedy particular parenting

deficits.

[¶6] The court scheduled separate trials on the two termination

petitions, but before either trial was held, the mother consented to the

termination of her parental rights to both children to enable the grandmother

to adopt the children. The trials were therefore limited to the question of

whether the fathers’ parental rights should be terminated.

[¶7] After each trial, the court entered a judgment4 terminating that

father’s parental rights upon finding that the father was unwilling or unable to

protect his child from jeopardy and that these circumstances were unlikely to

change within a time reasonably calculated to meet her needs, that he was

unwilling or unable to take responsibility for his child within a time reasonably

calculated to meet her needs, and that termination of the father’s parental

rights was in his child’s best interest. See 22 M.R.S. § 4055(1)(A)(2), (B)(2)(a),

(b)(i)-(ii) (2017). Each father timely appealed, and we invited amicus briefs on

the constitutional issues raised by the fathers in their briefs. We now consider

both appeals.

4 The process consumed almost three years of the childrens’ lives. From a petition filed in

February 2015, judgments were entered in December 2017.
5

II. DISCUSSION

[¶8] In this opinion, we first summarize the statutory basis for the

Department’s obligation to provide rehabilitation and reunification services to

parents in title 22 child protection matters. We then address the fathers’

arguments that the Due Process and Equal Protection Clauses of the federal and

state constitutions require that parents be provided with similar services by

court order in private adoption matters in which petitions to terminate

parental rights have been filed. Finally, we review the court’s findings and

discretionary determinations in support of the termination judgments.

A. Statutory Obligation to Provide Rehabilitation and Reunification Services

[¶9] The Department’s obligation to provide rehabilitation and

reunification services is triggered in a title 22 child protection matter when a

parent is found to have subjected a child to abuse or neglect or a child has been

removed from the home for sixty days. 22 M.R.S. § 4041(1-A). In those

circumstances, the Department is ordinarily5 required to formulate a

rehabilitation and reunification plan that includes the following:

5 The court may relieve the Department of the requirement to create a rehabilitation and
reunification plan “if the court finds at least one of the following: (1) The existence of an aggravating
factor; or (2) That continuation of reunification efforts is inconsistent with the permanency plan for
the child.” 22 M.R.S. § 4041(2)(A-2) (2017).
6

(iv) Services that must be provided or made available to assist the
parent in rehabilitating and reunifying with the child, as
appropriate to the child and family, including, but not limited to,
reasonable transportation for the parent for visits and services,
child care, housing assistance, assistance with transportation to
and from required services and other services that support
reunification; [and]

(v) A schedule of and conditions for visits between the child and
the parent designed to provide the parent and child time together
in settings that provide as positive a parent-child interaction as can
practicably be achieved while ensuring the emotional and physical
well-being of the child when visits are not detrimental to the child's
best interests.

22 M.R.S. § 4041(1-A)(A)(1)(c).6

[¶10] It is the parent, however, who ultimately bears the responsibility

to rehabilitate and reunify with the child. See 22 M.R.S. § 4041(1-A)(B). The

parental responsibilities identified in that statute require the parent to

“[r]ectify and resolve problems that prevent the return of the child to the

home,” to “[s]eek and utilize appropriate services to assist in rehabilitating and

reunifying with the child,” and to “[p]ay reasonable sums toward the support of

6 We have made clear, however, that any failure by the Department to meet its statutory duty to

provide rehabilitation and reunification services is not necessarily fatal to a termination petition. See
In re Child of Heather W., 2018 ME 31, ¶ 11, 180 A.3d 661. Rather, the ultimate question presented
to the court on a title 22 termination petition is whether the Department has proved, by clear and
convincing evidence, that the parent is unfit and that termination is in the child’s best interests. See
22 M.R.S. § 4055(1)(B)(2) (2017).
7

the child within the limits of the parent’s ability to pay.” Id. § 4041(1-A)(B)(1),

(5), (6).

[¶11] Thus, the parent has the obligation to remedy the parenting

deficits that resulted in the removal or the finding of abuse or neglect, and the

Department bears a responsibility to “make reasonable efforts to rehabilitate

and reunify the family,” including by making services available to the family.

22 M.R.S. § 4036-B(4); see also id. § 4041(1-A)(A), (B).

[¶12] In the absence of a judicial finding of abuse or neglect or removal

from the home, however, the Department does not bear the same statutory

responsibilities. When a dispute exists between or among private parties in a

family matter, including in an adoption proceeding, neither the Department nor

any of the other parties has a statutorily created obligation to provide or

participate in rehabilitation and reunification services for a parent whose

rights are at stake. Adoption of Isabelle T., 2017 ME 220, ¶ 12, 175 A.3d 639. As

we have observed, the Adoption Act, 18-A M.R.S. §§ 9-101 to 9-404 (2017),

“does not require—or even authorize—the court to consider rehabilitation or

reunification efforts prior to terminating parental rights” in private adoption

proceedings. Adoption of Isabelle T., 2017 ME 220, ¶ 12, 175 A.3d 639; see also

Adoption of L.E., 2012 ME 127, ¶ 13, 56 A.3d 1234 (“During an adoption
8

proceeding, the Probate Court is not required to order attempts at reunification

before terminating parental rights.”).7 “There is no state assertion of parental

unfitness in private termination/adoption proceedings, and the Adoption Act

provides fewer protections for parents than those provided in Title 22 child

protection proceedings.” Adoption of Isabelle T., 2017 ME 220, ¶ 11, 175 A.3d

639; see 22 M.R.S. §§ 4001-4068 (2017).

[¶13] Thus, as a statutory matter, in private family matter proceedings,

a parent may have his or her parental rights restricted or terminated even in

the absence of services that would be aimed at rehabilitating that parent. See

Adoption of Isabelle T., 2017 ME 220, ¶ 14, 175 A.3d 639. Although such a

“rehabilitation and reunification plan is the centerpiece of child protective

proceedings following a jeopardy determination,” a plan is not implicated when

there has been no removal or finding of abuse or neglect. In re Thomas D., 2004

ME 104, ¶ 26, 854 A.2d 195; see 18-A M.R.S. § 9-204(b); see also 22 M.R.S.

§§ 4003(3), 4035, 4036-B(4), 4041(1-A).8

7 In particular, although the Adoption Act incorporates some provisions of the title 22 child

protection process, see 18-A M.R.S. § 9-204(b) (2017), the incorporated process does not include the
Department’s statutory responsibility to provide the opportunity for rehabilitation and reunification
as in child protection matters. See 22 M.R.S. § 4041(1-A) (2017) (requiring rehabilitation and
reunification services in a child protection matter).
8 Title 22 M.R.S. § 4003(3) was amended effective December 13, 2018, though not in any way that

affects our opinion. See P.L. 2017, ch. 470, § 1 (to be codified at 22 M.R.S. § 4003(3)).
9

[¶14] The question raised here is whether, to safeguard a parent’s

fundamental rights, the Maine and federal constitutions require courts to order

services for improving parental capacity when a termination petition has been

filed in a private adoption matter to which the Department is not a party.9

B. Constitutional Issues

1. Due Process

[¶15] There is no dispute that due process is required when termination

of parental rights is sought by a private party ancillary to an adoption

proceeding. See Adoption of Isabelle T., 2017 ME 220, ¶¶ 4, 5, 175 A.3d 639; see

also U.S. Const. amend. XIV, § 1;10 Me. Const. art. I, § 6-A;11 In re D.P., 2013 ME

40, ¶ 10 n.4, 65 A.3d 1216 (“[T]he protections afforded by due process . . . under

9 It is significant that neither of the fathers’ motions for services indicated in a meaningful way

what services he wanted the court to provide. Although the father of MyAnnah D. generically
requested “visitation, parenting counseling, and mental health counseling,” he did not explain how
any specified services would address parenting deficits, and he did not request supervised visitation
services. Therefore, when the court acted on the motions, it was given little or no information on the
record about the type of rehabilitative and reunification efforts either father was interested in
pursuing through the court’s auspices. Later in the proceedings, however—well after the court had
denied the motions—each father did articulate that he sought supervised visitation with his child.
MyAnnah’s father said so only when he testified during the termination hearing itself, and Riahleigh’s
father told us at oral argument, also suggesting that the request had been communicated in a
conference with the court.
10 The Federal Constitution provides, “[N]or shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1.
11 The Maine Constitution provides, “No person shall be deprived of life, liberty or property

without due process of the law, nor be denied the equal protection of the laws . . . .” Me. Const. art. I,
§ 6-A.
10

the United States and Maine constitutions are coextensive.”). The assurance of

due process is “‘meant to protect persons not from the deprivation, but from

the mistaken or unjustified deprivation of life, liberty, or property.’”

Guardianship of Chamberlain, 2015 ME 76, ¶ 17, 118 A.3d 229 (quoting Carey v.

Piphus, 435 U.S. 247, 259 (1978)).

[¶16] Because a parent “has a fundamental liberty interest in the care,

custody, and control of his [or her] child,” the parent is entitled to constitutional

protection of that interest—meaning that “[t]he government may interfere

with th[e] familial relationship only through procedures that satisfy the rigors

of the Due Process Clause.” Guardianship of Thayer, 2016 ME 52, ¶ 22, 136 A.3d

349. Thus, “fundamentally fair procedures [must] provide an opportunity to be

heard upon such notice and proceedings as are adequate to safeguard the right

which the particular pertinent constitutional provision purports to protect.” In

re C.P., 2016 ME 18, ¶ 17, 132 A.3d 174 (quotation marks omitted); see also

Adoption of J.S.S., 2010 ME 74, ¶ 12, 2 A.3d 281.

[¶17] To determine whether the process employed satisfied the

constitutional requirements of due process, we consider three familiar factors:

• “First, the private interest that will be affected by the official
action”;

11

• Next, “the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and

• Finally, “the Government's interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.”

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also In re Alexander D., 1998

ME 207, ¶ 13, 716 A.2d 222. We now apply those factors to the cases at bar.

a. Private Interest

[¶18] As to the first of the due process factors, the private interest at

stake is each father’s constitutionally protected interest in his parental

relationship with his child. See Mathews, 424 U.S. at 335; Guardianship of

Thayer, 2016 ME 52, ¶ 22, 136 A.3d 349. This fundamental liberty interest of

parents “to make decisions concerning the care, custody, and control of their

children” is firmly established. Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761

A.2d 291 (quotation marks omitted).

b. Risk of Erroneous Deprivation Using Existing Process

[¶19] As to the second factor, we examine the process that in fact was

provided to the fathers and the additional process that they claim is owed to

them to evaluate the risk of erroneous deprivation of parental rights through
12

the process employed. See Mathews, 424 U.S. at 335; In re Alexander D., 1998

ME 207, ¶ 13, 716 A.2d 222.

[¶20] The fathers do not contest that they received due process with

respect to their notice and opportunity to be heard, and the opportunity to

participate fully in the hearing, including the right to cross-examine witnesses

and present their own evidence. See 18-A M.R.S. § 9-204(b); 22 M.R.S. §§ 4053,

4054, 4055 (2017).12 The fathers also received the benefit of counsel,

appointed by the court and paid for, at least in part, by Cumberland County.13

In addition, the children received the benefit of the appointment of a guardian

ad litem to investigate and provide recommendations to the court. See

18-A M.R.S. § 9-204(c). Beyond those procedures, however, the fathers argue

that they were entitled to rehabilitation and reunification services that might

have been provided to them if the court had entered an applicable order in a

title 22 child protection proceeding. Cf. 22 M.R.S. § 4041.

[¶21] Applying the second Mathews factor to the facts and procedure of

the two cases before us, we conclude that there is little risk of an erroneous

12 Section 4055 has been amended, effective July 1, 2019, to update references to the new title

18-C Probate Code, which also becomes effective on July 1, 2019. See P.L. 2017, ch. 402, §§ C-69, F-1.
13 Each father applied for court-appointed counsel, and the court approved their respective

applications. See 18-A M.R.S. § 9-106(a) (2017). We need not determine here whether the
appointment of counsel is constitutionally required in private adoption proceedings.
13

deprivation of the fathers’ fundamental right to parent through the existing

procedure and little utility in the additional process urged by the fathers,

namely, the court-ordered provision of rehabilitation and reunification

services in the context of a private family proceeding. See Mathews, 424 U.S. at

335; In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222. In neither of the cases

before us did the court find that the father had failed to make a good faith effort

to rehabilitate and reunify—a form of parental unfitness that is explicitly

connected to the Department’s obligation to assist a parent pursuant to

22 M.R.S. §§ 4041. See 22 M.R.S. § 4055(1)(B)(2)(b)(iv). Instead, the court

addressed other bases for finding unfitness that are independently sufficient to

support termination. Cf. In re Children of Melissa F., 2018 ME 110, ¶ 9, 191 A.3d

348 (requiring proof of “at least one of the four statutory grounds of parental

unfitness” (quotation marks omitted)).

[¶22] This is not a case in which the Department had any responsibility

for the children. See 22 M.R.S. § 4041(1-A) (2017); see also 22 M.R.S.

§§ 4002(1), 4032(1). Rather, as is happening in so many families, the children’s

grandmother took responsibility for the children pursuant to judgments

entered in family and guardianship proceedings in which the Department was

not a party or participant.
14

[¶23] Further, in each of the prior court proceedings affecting the

children, the courts provided each father an appropriate and adequate

opportunity to have sought rights of contact before the petitions to terminate

parental rights were filed.14 As to Riahleigh, in a District Court family matter,

Riahleigh’s father did not appear at the hearing at which the grandmother

gained the right to provide the primary residence of his child. In that judgment,

the court awarded the father the right of supervised contact but conditioned

that right on a requirement that the father complete a batterer intervention

program. Riahleigh’s father admits that he failed to satisfy that requirement.15

Regarding MyAnnah, the maternal grandmother had been granted a

guardianship in a Probate Court proceeding, but, despite having received notice

of that proceeding, MyAnnah’s father failed to participate in that action to

assert any of his parental rights. In an amended guardianship order entered in

September 2014, the court conditioned the father’s contact with MyAnnah on

14 As we have noted, supervised visitation is the only type of service each father now claims to

seek, although the record does not show that they provided the court with that information before
the court acted on their motion for court-provided services. See supra n.9.
15 The judgment also conditioned supervised visitation on approval by the grandmother. The

father’s failure to fulfill the condition that he complete a batterer intervention program—a
requirement fully within his power to fulfill—makes the question of whether the grandmother would
have allowed visitation irrelevant.
15

his completion of a batterer intervention program,16 and there is no evidence

that he satisfied that requirement after the entry of the order.17 Therefore,

through their own choices, the fathers themselves foreclosed the opportunity

to participate in the type of service that they then asked the court to provide in

these private adoption matters.

[¶24] More fundamentally, each father had the opportunity to seek out

and engage in most types of appropriate services on his own initiative and then

present evidence of any resulting rehabilitation as it bears on the issue of

parental fitness. See Adoption of J.S.S., 2010 ME 74, ¶ 12, 2 A.3d 281. The trial

record showed, however, that neither father paid the ordered amount of child

support, and—most significantly—neither completed any treatment or work to

become capable of parenting without violence.18

16 The judgment also conditioned supervised visitation on the grandmother’s approval.

17 The father of MyAnnah did present evidence that, while incarcerated, he attended a 48-class

program sometime before July 2014 that addressed issues of domestic violence.
18 There is no evidence that MyAnnah’s father sought out a professional supervisor for any

proposed child visits. Each father could have, but did not, complete a batterer intervention program
to satisfy the court-ordered condition to any contact he could have with his child. Each father
remained inattentive to his child’s needs after engaging in violent acts against the mother—one
father’s violence causing the mother to seek medical care and resulting in trauma to Riahleigh, and
the other father’s violence having been inflicted during and after the mother’s pregnancy with
MyAnnah. In short, both fathers could have taken steps to be better able to challenge the
grandmother’s assertion that they are parentally unfit, but neither of them did so.
16

[¶25] Ultimately, in these private termination proceedings, all of the

procedural safeguards were in place to provide the fathers with notice of the

proceedings that would have consequences for their parental rights, an

opportunity to be heard regarding their ability to parent the children, an

opportunity to seek contact with the children, and an opportunity to present

themselves as safe resources for the children. Considering the extensive

process available to the fathers in the private proceedings, “the probable value

. . . of additional or substitute procedural safeguards” in the form of

court-ordered rehabilitation and reunification services is minimal. Mathews,

424 U.S. at 335; In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222. Each father

had the opportunity to develop the skills to provide parental care and support

free from violence and to present the resulting evidence at trial. Despite having

opportunities to rehabilitate and to present evidence and be heard, each father

failed to participate in the court processes available to him to assert his

parental rights. Therefore, the second Mathews factor does not support the

fathers’ assertions that they were deprived of due process. See Mathews, 424

U.S. at 335; In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222.
17

c. The Effect on the State of Additional Process

[¶26] With respect to the third Mathews consideration, the state “has a

well-established parens patriae interest in the safety and well-being of the

children within its jurisdiction.” In re Children of Mary J., 2019 ME 2, ¶ 16, ---

A.3d ---. In the circumstances of these cases, given the needs of the children to

have a permanent home, and given the significant fiscal and administrative

burdens that additional procedures sought by the fathers would certainly

entail, no additional process is required. See Mathews, 424 U.S. at 335; In re

Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222. The limited resources of the

State are, by statute, focused on those cases in which Departmental services are

required, and given the procedural opportunities already made available

through the judicial process in the private family and probate proceedings,

additional time-consuming services—possibly at the state’s expense—are not

required as a matter of due process.

[¶27] In summary, the court was not constitutionally required by the

Due Process Clause to order the provision of any particular services in the

private adoption proceeding. See In re Baby Boy H., 73 Cal. Rptr. 2d 793, 797
18

(Cal. Ct. App. 1998) (holding that reunification services are a benefit to which

there is no constitutional entitlement under due process principles).19

2. Equal Protection

[¶28] The next question is whether, in these title 18-A proceedings, the

fathers were deprived of equal protection of the laws by the court’s orders

denying their motions to be provided with rehabilitation and reunification

services that might be available in a title 22 proceeding. See U.S. Const. amend.

XIV, § 1; Me. Const. art. I, § 6-A. “The Fourteenth Amendment’s Equal Protection

Clause prohibits any state from denying to any person within its jurisdiction

the equal protection of the laws, and requires, generally, that persons similarly

situated be treated alike. Article [I], section 6-A of the Maine Constitution

includes similar requirements.” Doe v. Williams, 2013 ME 24, ¶ 53, 61 A.3d 718

(alteration in original) (quotation marks omitted); see Town of Frye Island v.

State, 2008 ME 27, ¶ 14, 940 A.2d 1065 (holding that the protections under the

federal and state constitutions are coextensive).

[¶29] Individuals who are similarly situated are those “who are in all

relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). If individuals

19 The California Supreme Court cited this case with approval in In re Nolan W., 203 P.3d 454, 460

(Cal. 2009).
19

are similarly situated, we “must . . . determine what level of scrutiny to apply.”

Town of Frye Island, 2008 ME 27, ¶ 14, 940 A.2d 1065. Where a suspect

classification or fundamental right is at issue, the state action must satisfy strict

scrutiny, which requires that the action be “narrowly tailored to achieve a

compelling governmental interest.” Anderson v. Town of Durham, 2006 ME 39,

¶ 29, 895 A.2d 944, cert. denied, 549 U.S. 1051 (2006). Because it is well

established “that parents have a fundamental liberty interest ‘to make decisions

concerning the care, custody, and control of their children,’” we will strictly

scrutinize the difference in treatment if the fathers here are similarly situated

to parents to whom the Department provides reunification and rehabilitative

services in title 22 child protection cases. Rideout, 2000 ME 198, ¶ 18, 761 A.2d

291 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). Accordingly, we focus

on whether, for purposes of receiving rehabilitation and reunification services,

the fathers here are similarly situated with parents whose children have been

found to have been subjected to abuse or neglect or have been removed from

their parents’ care and placed in foster care by court order.

[¶30] We have rejected equal protection challenges to the denial of

services and other processes that are prescribed in certain circumstances

affecting parental rights but not in others. We concluded, for example, that a
20

mother’s equal protection rights were not violated when she was denied the

opportunity to petition to terminate her own parental rights in a title 22 action,

in an effort to avoid the prospect of a judicial determination that she had

created circumstances of jeopardy to the child, even though a parent may cede

her parental rights as part of a title 18-A adoption proceeding. In re D.P., 2013

ME 40, ¶¶ 10, 17, 65 A.3d 1216. We concluded that the mother was not

similarly situated with “a parent who surrenders and releases all parental

rights in an adoption proceeding” because, unlike the situation of a parent

whose child is the subject of an adoption petition, the Department had filed

petitions for a preliminary protection order and child protection order alleging

that the mother “placed her child at risk of harm” pursuant to 22 M.R.S. §§ 4032

and 4034. In re D.P., 2013 ME 40, ¶ 17, 65 A.3d 1216. Consequently, we

concluded that the mother had failed to establish that she had been denied

equal protection of the law. Id.

[¶31] We also considered a parent’s assertion that, to be provided equal

protection of the laws, she should have a right to appeal a court’s order

appointing a permanency guardian in a title 22 child protection matter because

guardianship orders could be appealed in other types of proceedings. In re
21

Dustin C., 2008 ME 89, ¶¶ 1, 5, 952 A.2d 993. Addressing the equal protection

argument, we concluded that the

appointment of a permanency guardian is . . . embedded in an
overall statutory framework quite different and apart from
guardianship pursuant to 18-A M.R.S. § 5-204 or residence and
visitation pursuant to 19-A M.R.S. § 1653(2), and the mother is not
similarly situated with parents seeking to appeal an adverse ruling
pursuant to [those statutes] within the meaning of the Equal
Protection Clause.

Id. ¶ 8 (emphasis added).

[¶32] Consistent with our reasoning in those cases, we conclude that the

situation of a parent whose child has, as here, been residing with another

person based on an order in a family matter or guardianship proceeding is

substantively different from the situation of a parent in a child protection

matter. See 22 M.R.S. § 4041(1-A); cf. In re D.P., 2013 ME 40, ¶ 17, 65 A.3d 1216

(concluding that a parent who “faces allegations that [he or] she placed [his or]

her child at risk of harm in a proceeding brought by the State” is not “similarly

situated to a parent who surrenders and releases all parental rights in an

adoption proceeding”).

[¶33] Although parents in child protection and adoption matters may be

similarly situated to the extent that they are defending against petitions for the

termination of their parental rights, those parties are not similarly situated
22

with respect to the events preceding the petition to terminate parental rights.

If a title 22 rehabilitation and reunification plan is ordered by the court, the

court will have already found abuse or neglect, or ordered the child removed

from the parent’s care. See 22 M.R.S. § 4041(1-A). It is the finding of abuse or

neglect or the removal of the child from the home—not the filing of a

termination petition—that triggers the application of section 4041(1-A).

[¶34] The purpose of rehabilitation and reunification services ordered

in a title 22 matter is to restore an intact family after a specified government

actor or three private individuals have petitioned for, and proved the necessity

of, a protection order. See 22 M.R.S. §§ 4032, 4034, 4035. The goal is for the

parent to ameliorate the identified abusive or neglectful conduct. See 22 M.R.S.

§§ 4003(3), 4041(1-A).

[¶35] In contrast, when a title 18-A termination proceeding is

commenced in conjunction with an adoption petition without a preceding

finding of abuse or neglect or the removal of a child from the home, the state

has not intervened in an intact family to protect a child from abuse or neglect.

See id. § 4041(1-A). The petitions now before us provide a perfect example of

that; although a family judgment and a guardianship judgment were entered

and contained findings regarding the fathers, neither of those judgments found
23

abuse or neglect or ordered a child into foster care pursuant to title 22. The

Department has not, therefore, brought to bear the authority of the state to

protect the child from abuse or neglect. Absent such executive branch

interference with the parent-child relationship, the parents in a private

adoption matter are not similarly situated with parents whose children have

been the subject of a child protection order.

[¶36] Our reasoning is consistent with that of the Court of Appeals of

Washington, which held that a parent in an adoption matter whose fitness had

not previously been questioned was not similarly situated with a parent in a

dependency (i.e., child protection) matter for purposes of rehabilitation and

reunification services. In re Interest of Skinner, 982 P.2d 670, 676 (Wash.

Ct. App. 1999). That court reached its conclusion based largely on the differing

purposes of the statutes and the extent of the state’s interference with parental

rights in dependency cases in which rehabilitation and reunification services

may be required. See id.; see also People ex rel. T.D., 140 P.3d 205, 216-17 (Colo.

App. 2006) (holding that a parent in a neglect proceeding who was subject to

an expedited appellate process was not similarly situated with a parent in an

adoption proceeding); cf. In the Interest of Phillips, 806 A.2d 616, 619 (Del. Fam.

Ct. 2002) (stating, in analyzing a separation of powers argument, that “[t]he
24

entitlement to reunification services is a statutory one and does not evolve from

a constitutional right”).

[¶37] Because the fathers are not similarly situated with parents whose

children have been the subject of a child protection order, the court did not

violate the fathers’ equal protection rights by denying their motions to be

provided with court-ordered services. See Williams, 2013 ME 24, ¶ 53, 61 A.3d

718.

C. Sufficiency of the Evidence

[¶38] The fathers also challenge the court’s findings on the ground that

those findings might have been different if the court had ordered the provision

of rehabilitation and reunification services. Because we have concluded that

the fathers were not entitled to those services, we are not persuaded by their

arguments, and we address only whether the court erred or abused its

discretion in terminating their parental rights based on the existing record.

[¶39] The burden of proof in a contested termination proceeding arising

in the course of an adoption rests with the person seeking to adopt the child.

See 18-A M.R.S. § 9-204(b); 22 M.R.S. § 4055(1)(A)(2), (B)(2); Adoption of L.E.,

2012 ME 127, ¶ 11, 56 A.3d 1234. Where, as here, there has been little or no

relatively recent contact between the legal parent and the child, it may be
25

difficult for an adoption petitioner to obtain and provide direct evidence of the

parent’s current parental unfitness. Nonetheless, in the matter before us, we

conclude that the court had sufficient evidence available to support its

determination.

[¶40] On the existing record, the court did not err in finding that each

father is unable or unwilling to protect his child from jeopardy and that those

circumstances were unlikely to change within a time that is reasonably

calculated to meet his child’s needs, and that he is unable or unwilling to take

responsibility for his child within a time that is reasonably calculated to meet

her needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii); In re Thomas H., 2005 ME

123, ¶¶ 16-17, 889 A.2d 297; In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195.

Specifically, as to Riahleigh, the court found, with evidentiary support, that the

father was abusive toward the mother in Riahleigh’s presence, resulting in

trauma to the child; the father has an extensive history of criminal convictions

and violent acts; he failed to address and remediate his violent behavior; and

he failed to pay the court-ordered amount of child support even after obtaining

employment. As to MyAnnah, the court found, with supporting evidence, that

the father perpetrated domestic violence against the mother; disregarded the

child’s well-being, leading to a serious medical condition that went untreated
26

for months; failed to provide care and support for the child throughout her life;

and failed to take responsibility for his past actions.

[¶41] Nor did the court err in considering the fathers’ earlier conduct in

finding parental unfitness. See In re Paige L., 2017 ME 97, ¶ 31, 162 A.3d 217

(“[W]hat is past is often prologue regarding the threat of serious harm posed

by the parent . . . .” (quotation marks omitted)); In re M.E., 2016 ME 1, ¶¶ 1, 3,

11, 131 A.3d 898 (concluding that a parent’s failure to acknowledge past

behavior supported a finding that the parent was unable or unwilling to protect

the child from jeopardy); In re C.P., 2013 ME 57, ¶¶ 7, 10, 67 A.3d 558 (same).

Notwithstanding the evidence offered by each father in support of his current

capacity to parent and support his child, the determination of the weight and

credibility of the evidence in its totality was well within the province of the

court as fact-finder. See In re I.S., 2015 ME 100, ¶ 11, 121 A.3d 105.

[¶42] On this record, the court did not err or abuse its discretion in

finding parental unfitness and determining that termination was in each child’s

best interest. See In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297; In re

Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195.
27

III. CONCLUSION

[¶43] The court committed no constitutional error in its orders denying

the fathers’ motions for orders of rehabilitation and reunification services, nor

did it err or abuse its discretion in determining that each father’s parental rights

should be terminated. Accordingly, we affirm the judgments.

The entry is:

Judgments affirmed.

Michael G. Keefe, Esq. (orally), Portland, for appellant father of Riahleigh M.

John F. Zink, Esq. (orally), Freeport, for appellant father of MyAnnah D.

Timothy E. Robbins, Esq. (orally), South Portland, for appellee maternal
grandmother

Christopher Berry, Esq., Bridgton, for Amicus Curiae, The American Academy
of Adoption & Assisted Reproduction Attorneys


Cumberland County Probate Court docket numbers A-2015-23 and A-2015-24
FOR CLERK REFERENCE ONLY