Maine Supreme Judicial Court Reports
IN RE DORIS, 2006 ME 142 IN RE DORIS G. et al. Docket:
Cum-06-90. Supreme Judicial Court of Maine. Submitted on
Briefs: September 14, 2006. Decided: December 19, 2006.
Attorney for appellant: Anthony J. Sineni III, Esq., Law
Offices of Anthony J. Sineni III, Portland, ME 04102.
Attorneys for appellee: G. Steven Rowe, Attorney General,
Matthew Pollack, Asst. Atty. Gen., Michael Kearney, Asst.
Atty. Gen., Augusta, ME 04333-0006.
Guardian ad Litem: Andrew P.T. Bloom, Esq., Portland, ME
04104.
Attorney for mother: Robert A. Bennett, Esq., Falmouth, ME
04105 .
Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER,
CALKINS, LEVY, and SILVER, JJ.
CLIFFORD, J.
[¶ 1] The father of Doris G., Chelsea G., Patricia
G., Leah G., Deborah G., and Carey G. appeals from the
judgment of the District Court (Portland, Powers, J.)
terminating his parental rights as to each of the children.
The father contends that the Department of Heath and Human
Services failed to fulfill its duty, pursuant to 22 M.R.S.
§ 4041 (2005), to rehabilitate and reunify him with
the children, and argues that such failure precluded the
court from finding parental unfitness pursuant to 22 M.R.S.
§ 4055(1)(B)(2)(b) (2005). The father also contends
that there is insufficient evidence in the record to
support the court’s finding that termination is in the best
interest of the children. We affirm the judgment.
I. BACKGROUND
[¶ 2] The court found the following facts, which are
supported by ample evidence in the record.[fn1] The father
has extensive substance abuse, criminal, and personality
disorder histories. He has a history of abusing alcohol,
and sometimes becomes assaultive while drinking. He has
been a regular user of crack cocaine, and has sold or traded
drugs at times.
[¶ 3] The father has also been diagnosed with
antisocial personality disorder, as well as polysubstance
abuse and somatoform disorder, and a low to borderline
intelligence with significant cognitive limitations. His
antisocial personality disorder is characterized by criminal
and substance abuse behaviors, unstable relationships,
employment failures, and violence and aggression. The
father is self-centered, exploitive of others, and places
primary emphasis on his own needs over those of others,
including the children. Consistent with his antisocial
personality, the father also has an extensive criminal
history, including recent convictions.[fn2]
[¶ 4] The children have all been diagnosed with
various mental health problems including depression,
anxiety, low self-esteem, ADHD, significant emotional
distress, problematic coping styles, adjustment reactions,
superficial attachments, emotional immaturity, inability to
trust, PTSD, oppositional defiant disorders, attachment
disorders, enuresis, emotional avoidance, and aggression.
The court found that the children need “pro-social
caretakers who function as positive models of adult
behavior,” as well as “stable, consistent, and permanent
caregivers in light of the chaotic family past these girls
experienced.” The court also found that the children’s
“caring, stable, and healthy foster placements” are
pre-adoptive, with the exception of Leah, who has been
invited to the pre-adoptive home of her sisters, Chelsea and
Carey. All of the children would be in the same geographic
area, and all of their foster parents are willing to
facilitate their continued sibling relationship.
[¶ 5] The Department initiated child protection
proceedings on behalf of the children in May of 2003. The
court’s summary preliminary order issued later in the
proceedings reflects that “[t]he Department has presented a
. . . reunification plan,” a four-page document attached to
the order, which lists the rehabilitation services to be
provided to the parents, the Department’s role in such
services, the visitation schedule and conditions, the
Department’s anticipated timeline, and a notation of which
parties would bear various financial responsibilities. In
September of 2003, the court issued an order with the
agreement of the father, finding jeopardy as to all the
children, based on the father’s extensive criminal and
substance abuse histories; his substantial parenting
deficits; and his antisocial personality disorder, low
cognitive function, and “other problematic personality
traits.” The jeopardy order required that the Department
file a reunification plan: “The Department shall be
required to engage in reunification efforts with the
father. . . . To that end, [the father] shall meet with the
Department’s caseworker to develop a reunification plan.
Once developed, the plan shall be filed with the court
within 30 days and shall be incorporated in this order.”
The Department never filed such a plan with the court.
[¶ 6] On October 9, 2003, the Department petitioned
the court for termination of the parents’ rights as to all
the children, listing as the basis for the petition, inter
alia, the father’s failures in rehabilitation and
reunification. The court conducted five judicial review
hearings between February of 2004 and July of 2005.
Following each, the court issued a judicial review order
maintaining the status quo, each time finding “by a
preponderance of the evidence, that the Department has made
reasonable efforts to rehabilitate and reunify the family.”
In March of 2005, the Department filed a motion to cease
reunification, which the father did not oppose.
[¶ 7] The court conducted a seven-day hearing in
October of 2005 dealing with four issues: (1) the
Department’s petition to terminate parental rights, (2) the
Department’s request to cease reunification, (3) judicial
review, and (4) the permanency plan as to all the children.
The court issued an extensive, thoughtful, and carefully
worded order dated December 15, 2005, terminating both
parents’ rights to the children.[fn3] The court found that
the parents failed to rebut the presumption of their
substance abuse pursuant to 22 M.R.S. § 4055(1-A)(C)
(2005),[fn4] and that, by clear and convincing evidence,
(1) the parents are unwilling or unable to protect the
children from jeopardy, (2) the parents are unwilling or
unable to take responsibility for the children, and (3)
termination is in the best interest of the children. See 22
M.R.S. § 4055(1)(B)(2). The court denied the
father’s subsequent motion to amend its findings of fact.
The father filed this appeal.
II. DISCUSSION
[¶ 8] The court found two grounds of parental
unfitness applicable to the father, namely that he is: (1)
unable or unwilling to protect the children from jeopardy,
and these circumstances are unlikely to change within a
time reasonably calculated to meet the children’s needs;
and (2) unwilling or unable to take responsibility for the
children within a time reasonably calculated to meet the
children’s needs. See 22 M.R.S. § 4055(B)(2)(b)(i),
(ii). The father contends that the Department failed to
develop, circulate, and file a reunification plan as the
statute requires, and that the court erred in finding that
the Department fulfilled its reunification obligation. The
father further argues that, absent such a reunification
plan, the court was precluded from finding that the father
is an unfit parent on either ground.
[¶ 9] “[T]he rehabilitation and reunification plan
is the centerpiece of child protective proceedings
following a jeopardy determination”; it “provides a roadmap
by which the Department and a parent are expected to
cooperatively seek to rehabilitate the conditions that
resulted in jeopardy to the child, and to reunify the
family if reunification can be achieved within a time
period that will meet the child’s needs.” In re Thomas D.,
2004 ME 104, ¶ 26, 854 A.2d 195, 203. The
establishment of a reunification plan is governed by 22
M.R.S. § 4041. The Department must develop a
rehabilitation and reunification plan for a parent when the
child enters foster care.[fn5] 22 M.R.S. §
4041(1-A)(A)(1). Section 4041 requires the Department to
“make good faith efforts to seek the participation of the
parent” in developing the plan, 22 M.R.S. §
4041(1-A)(A)(1)(a), and to “[m]ake good faith efforts to
cooperate with the parent in the pursuit of the plan,” 22
M.R.S. § 4041(1-A)(A)(3).
[¶ 10] Section 4041 also imposes duties on the
parent to “[c]ooperate with the department in the
development of the plan,” 22 M.R.S. §
4041(1-A)(B)(2), and to “[m]ake good faith efforts to
cooperate with the department in developing and pursuing
the plan,” 22 M.R.S. § 4041(1-A)(B)(8). The plan
should be developed based on information regarding:
the problems that present a risk of harm to the child,
the services needed to address those problems, provisions
to ensure the safety of the child while the parent engages
in services, a means to measure the extent to which
progress has been made, and visitation that protects the
child’s physical and emotional well-being.
22 M.R.S. § 4041(1-A)(A)(1)(a). Once developed, the
plan must include:
(i) The reasons for the removal of the child from home;
(ii) The changes that are necessary to eliminate jeopardy
to the child while in the care of a parent;
(iii) Rehabilitation services that will be provided and
must be completed satisfactorily prior to the child’s
returning home;
(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;
(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;
(vi) Any use of kinship support, including, but not
limited to, placement, supervision of visitation, in-home
support or respite care;
(vii) A reasonable time schedule for proposed
reunification, reasonably calculated to meet the child’s
needs; and
(viii) A statement of the financial responsibilities of
the parent and the department during the reunification
process.
22 M.R.S. § 4041(1-A)(A)(1)(c)(i)-(viii). The
Department must then circulate the reunification plan to
the parties at least ten days prior to a scheduled hearing,
and must file the plan with the court during that hearing.
22 M.R.S. § 4041(1-A)(A)(1)(b).
[¶ 11] In this case, the parties agree that no joint
complete reunification plan was ever developed or filed
with the court, as section 4041 requires. The court,
however, made the following findings of fact regarding the
reunification plan, and those findings are supported by the
record. The father failed to attend a meeting in September
of 2003 regarding the reunification plan, despite having
received adequate notice of the hearing, and again failed to
attend a meeting in October. The Department then set up a
third meeting to discuss the reunification plan, but the
father twice failed to attend the psychological/parenting
capacity evaluation that was to be the focus of that
meeting. In 2005, the Department twice requested the
father’s input in the reunification plan by sending him
blank reunification plans in order for him to fill out
certain parts, with the expectation that the Department
would then add its input. The father, however, did not
return either form. The Department caseworkers devoted many
hours of time to meeting with the father and discussing his
parenting deficits, the needs of the children, and the
services that could help the family reunify. The father
also had access to numerous court orders, guardian ad litem
reports, evaluations, and test results informing him that
it was his criminal history, substance abuse, and
antisocial personality disorder that caused the Department
to become involved with his children.
[¶ 12] Further, the Department did present a
proposed plan to the court at the summary preliminary
hearing stage, which, although written only from the
perspective of the Department, did list the causes of
jeopardy to the children, the changes that would have to be
made to eliminate jeopardy, the rehabilitation services to
be provided to the parents, the services to be made
available to assist the parents in rehabilitation and
reunification, the standards by which change and progress
would be evaluated, the parents’ visitation schedule with
the children, available kinship placements, the time
schedule for proposed reunification, and the allocation of
financial responsibilities.[fn6] In addition, the court’s
jeopardy order and judicial review orders required the
father to meet with the Department to develop a
reunification plan, and to undergo a psychological
evaluation, participate in a substance abuse program, and
submit to random drug and alcohol testing. The Department’s
2005 notice regarding its request to cease reunification
further informed the father of his problems and his failures
in remedying those problems; the father did not oppose the
Department’s motion to cease reunification. Finally, the
father never raised the issue of the reunification plan
until the termination hearing.
[¶ 13] On the basis of these findings and procedural
history, the court further found and concluded:
It is inaccurate for [the father] to claim that he does
not know what he was supposed to do to remedy the
parenting deficits in light of the above and the numerous
contacts he had with DHHS, psychological examiners, and
substance abuse testers and counselors. This court is
convinced that [the father] well knew of his criminal
behaviors, his psychological anti-social personality
deficits, and his substance abuse problems, which all
contributed to the removal of his children twice, to
serious jeopardy issues, and to his need to deal
effectively with those problems to reunify. He at times
failed to cooperate with DHHS in its efforts to finalize
a written plan. In 2005 he failed to return his portions
of two proposed plans from DHHS. This case is not In re:
Thomas D. The initial plan from DHHS in June 2003, the
parents’ jeopardy orders and the court’s judicial review
orders, compiled with the above psychological and
substance abuse provider and evaluation information and
various attempts to meet or attend meetings between father
and DHHS provide the “roadmap” that would otherwise be a
written, finalized reunification plan.
Thus, the court justifiably concluded that the father failed
to fulfill his obligation, pursuant to section
4041(1-A)(B)(2), (8), to cooperate with the Department’s
attempts to formulate a reunification plan, and that,
despite the failure to develop a joint formal plan, the
Department did adequately inform the father of his
rehabilitation and reunification obligations and goals.
[¶ 14] The father contends that this conclusion of
the court contravenes our holding in In re Thomas D. In
that case, the Department and the father failed to agree on
a rehabilitation and reunification plan, and no such plan
of any kind was ever developed or submitted to the court.
Thomas D., 2004 ME 104, ¶¶ 8-13, 854 A.2d at
198-99. The trial court nevertheless found that the father
was unfit on the ground that he “failed to comply with the
required elements of a rehabilitation and reunification
plan” in that he did not undergo substance abuse counseling
or a batterers intervention program. Id. ¶¶
22, 27, 854 A.2d at 202, 203. We vacated the termination of
the father’s parental rights, concluding that it was error
for the court to premise findings of parental unfitness on
the father’s “failure to obtain and complete specific
services” when no plan had ever informed the father that
such services were necessary for rehabilitation and
reunification. Id. ¶¶ 28, 42, 854 A.2d at
204, 207-08.
[¶ 15] Although it is true here, as in Thomas D.,
that no formal jointly signed plan was ever developed or
submitted to the court, this case is nevertheless
distinguishable from Thomas D. First, in this case, the
court found, based on competent record evidence, that the
father was well aware of what services he was supposed to
complete in order to rehabilitate and reunify. In Thomas
D., the trial court never made any findings as to the
father’s awareness of his rehabilitation and reunification
responsibilities and goals. Second, the court in the
present matter found that at least some portion of the
responsibility for the lack of a formal plan was due to the
father’s failure to cooperate with the Department. Such was
not the case in Thomas D. Finally, and most significantly,
the father’s rights in this case were not terminated for
failure to engage in and complete any specific undisclosed
services, but rather because of the father’s inability to
adequately care for, protect, and nurture his children. In
Thomas D., the dispositive factor that resulted in
termination of the father’s parental rights was his failure
to engage in specific services.
[¶ 16] We have long held that although the
Department’s obligations pursuant to section 4041 are
mandatory, the Department’s failure to satisfy those
obligations does not preclude a termination of parental
rights. In re Daniel C., 480 A.2d 766, 770 (Me. 1984). We
have stated: “We simply do not detect any legislative
intent that the department’s reunification efforts be made
a discrete element of proof in termination proceedings,”
even though the court may consider the lack of
reunification efforts as one factor in evaluating the
parent’s conduct for unfitness. Id. at 770-71. Similarly,
in In re David H., we noted, despite the parents’ argument
that it was the Department’s failure to provide adequate
reunification services that caused the court to terminate
their rights, that “the issue before the court was [the
mother and father’s] ability and willingness to care for
their children, not [the Department’s] responsibility for
providing support services.” 637 A.2d 1173, 1175-76 (Me.
1994).
[¶ 17] The Department’s compliance with its
rehabilitation and reunification duties as outlined in
section 4041 does not constitute a discrete element
requiring proof in termination proceedings, nor does the
failure of the Department to comply with section 4041
preclude findings of parental unfitness. Only when the
Department failed to develop a formal reunification plan,
and the parent’s rights were nevertheless terminated for
failure to comply with specific reunification obligations
never communicated to that parent, have we vacated a
judgment terminating parental rights. That is not the case
here.[fn7]
[¶ 18] The father also contends that termination of
his parental rights is not in the best interest of the
children because their sibling contact is important to
them, and could be limited at the discretion of their
adoptive parents. Ample record evidence exists, however, to
support the court’s determination that termination of the
parents’ rights is in the best interest of the children.
The entry is: Judgment affirmed.
[fn1] Because the mother does not appeal, evidence relevant
to her case only is omitted from this discussion of the
facts.
[fn2] In 2004, he was convicted of trafficking in scheduled
drugs (Class B), see 17-A M.R.S. § 1103 (2005), for
which he was sentenced to four years of incarceration, with
all but nine months and one day suspended, and three years
of probation. In 2000, the father was convicted of four
counts of endangering the welfare of a child, see 17-A
M.R.S. § 554(1) (2005), for which he was sentenced
to 364 days of incarceration, with all but forty days
suspended, and one year of probation. When he was younger,
the father admits that he was arrested many times, often
for assaultive behaviors related to alcohol abuse, and
spent more than ten years in jail.
[fn3] The Department withdrew its termination petition as to
Samantha G., the eldest of the sisters, because of
Samantha’s age (then fifteen years old), her wish not to be
adopted, and the fact that several of her recent placements
were disrupted. The court, however, did order a “planned
permanent living arrangement” for Samantha, and also
granted the Department’s cease reunification order as to
all seven girls, including Samantha. Both the cease
reunification order and the permanency plan as to Samantha
are interlocutory orders, and are thus not appealable
pursuant to 22 M.R.S. § 4006 (2005).
[fn4] Section 4055(1-A)(C) provides:
Rebuttable Presumption. The court may presume that a
parent is unwilling or unable to protect the child from
jeopardy and these circumstances are unlikely to change
within a time which is reasonably calculated to meet the
child’s needs if:
. . . .
C. The child has been placed in the legal custody or care
of the department, the parent has a chronic substance
abuse problem, and the parent’s prognosis indicates that
the child will not be able to return to the custody of the
parent within a reasonable period of time, considering
the child’s age and the need for a permanent home. The
fact that a parent has been unable to provide safe care of
a child for a period of 9 months due to substance abuse
constitutes a chronic substance abuse problem.
22 M.R.S. § 4055(1-A)(C) (2005).
[fn5] “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.” 22 M.R.S. § 4041(1-A) (2005).
[fn6] The proposed plan required that the parents “address .
. . their substance use and abuse; demonstrate their
ability to parent and provide a clean safe home for their
children; and demonstrate an understanding of how their
children have been impacted.”
[fn7] In any event, the court also concluded that the father
failed to rebut the presumption of unfitness for having a
chronic substance abuse problem pursuant to 22 M.R.S.
§ 4055(1-A)(C). That section provides a sufficient
basis on which the court could find parental unfitness, and
the father does not challenge the finding that he failed to
rebut the presumption.