In re Dominyk T. , 173 A.3d 1065 ( 2017 )


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  • MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions
    Decision:	    
    2017 ME 222
    Docket:	      Han-17-329
    Submitted
    On	Briefs:	 November	29,	2017
    Decided:	     December	7,	2017
    Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.
    IN	RE	DOMINYK	T.
    PER	CURIAM
    [¶1]		The	parents	of	Dominyk	T.	appeal	from	a	judgment	of	the	District
    Court	 (Ellsworth,	 Roberts,	 J.)	 terminating	 their	 parental	 rights	 to	 the	 child.
    The	mother	argues,	and	the	father	joins	in	her	argument,	that	the	Department
    of	 Health	 and	 Human	 Services	 failed	 to	 satisfy	 its	 obligation	 to	 provide
    necessary	 services	 to	 the	 mother	 and	 that	 the	 record	 cannot	 support	 the
    finding	of	parental	unfitness	or	the	determination	that	the	termination	of	her
    parental	 rights	 is	 in	 Dominyk’s	 best	 interest.	 	 The	 father	 also	 contends	 that,
    although	 he	 is	 unable	 to	 care	 for	 the	 child,	 the	 mother	 and	 he	 should	 both
    retain	their	parental	rights.		We	affirm	the	judgment.
    [¶2]	 	 When	 the	 Department	 petitioned	 for	 a	 child	 protection	 order	 in
    February	 2015,	 the	 child	 had	 already	 been	 residing	 apart	 from	 both	 parents
    with	family	members	as	part	of	an	agreed	upon	safety	plan.		The	child	has	a
    genetic	 disorder	 that	 causes	 rapid	 growth	 in	 the	 first	 years	 of	 life	 and	 can
    2
    result	 in	 physical	 and	 behavioral	 challenges.	 	 The	 Department	 alleged	 in	 its
    petition	that	the	father	was	unable	to	maintain	sobriety	and	that	the	mother
    could	not	maintain	a	stable	home	and	safely	care	for	the	child.
    [¶3]		Upon	the	parties’	agreement,	the	court	found	in	March	2015	that
    the	child	was	in	jeopardy	with	the	mother	due	to	the	involuntary	termination
    of	 her	 parental	 rights	 to	 two	 other	 children	 in	 2005,	 her	 inability	 to	 keep
    Dominyk	safe	or	meet	his	medical	needs,	her	inability	to	maintain	appropriate
    housing,	and	her	repeated	choice	of	unsafe	partners.		See	22	M.R.S.	§§	4002(6),
    4035(2)	 (2016).	 	 The	 father	 conceded	 that,	 due	 to	 his	 struggles	 with	 alcohol
    abuse,	he	was	unable	to	care	for	Dominyk.
    [¶4]	 	 The	 Department	 first	 filed	 a	 petition	 to	 terminate	 the	 parents’
    parental	 rights	 in	 February	 2016.	 	 The	 court	 held	 a	 trial	 on	 that	 petition	 in
    November	 and	 December	 2016	 and	 was	 not	 persuaded	 that	 the	 Department
    had	 established	 the	 mother’s	 unfitness.	 	 On	 that	 basis,	 the	 court	 denied	 the
    petition,	 and	 the	 Department	 then	 transitioned	 the	 child	 into	 the	 mother’s
    care.
    [¶5]	 	 After	 the	 Department	 received	 new	 evidence	 of	 injuries	 to
    Dominyk,	it	filed	another	petition	to	terminate	the	parents’	parental	rights	on
    April	 11,	 2017.	 	 The	 court	 held	 a	 trial	 on	 that	 petition	 and	 on	 July	 11,	 2017,
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    entered	 a	 judgment	 granting	 the	 petition	 to	 terminate	 the	 parents’	 parental
    rights	after	finding,	by	clear	and	convincing	evidence,	the	following	facts,	all	of
    which	 are	 supported	 by	 competent	 evidence	 in	 the	 record.	 	 See	 22	M.R.S.
    §	4055(1)(A)(1)(a),	(B)(2)	(2016);	In	re	A.M.,	
    2012 ME 118
    ,	¶	29,	
    55 A.3d 463
    .
    [The	 mother]	 is	 very	 willing	 to	 take	 responsibility	 for	 Dominyk
    and	to	protect	him	from	jeopardy.		She	is	simply	unable	to	care	for
    him	 consistently.	 	 [The	 mother]	 worked	 extremely	 hard	 to
    alleviate	 the	 issues	 that	 brought	 him	 into	 care.	 	 She	 engaged	 in
    counseling	 .	 .	 .	 for	 close	 to	 2	 years.	 	 [The	 counselor]	 remains
    supportive	 of	 [the	 mother]	 indicating	 that	 she	 is	 a	 competent
    parent	 committed	 to	 her	 child	 and	 able	 to	 set	 appropriate	 limits
    for	 him.	 	 At	 hearing,	 [the	 mother]	 articulated	 the	 parenting
    knowledge	 that	 she	 has	 acquired.	 	 She	 can	 describe	 Dominyk’s
    needs	and	the	parenting	skills	that	she	would	utilize	to	deal	with
    him.		[Her]	parenting	progress	is	contradicted	by	the	observations
    of	the	in-home	care	providers.		She	cannot	consistently	apply	the
    parenting	skills	that	she	has	acquired.
    Dominyk	 was	 transitioned	 into	 [the	 mother’s]	 care	 on
    December	 30,	 2016,	 following	 the	 court’s	 denial	 of	 the
    Department’s	 first	 termination	 petition.	 	 [The	 mother]	 received
    HCT	 [home	 and	 community	 treatment]	 services	 .	 .	 .	 following
    Dominyk’s	placement	in	her	home.		[The	HCT	worker]	noted	that
    Dominyk	 exhibited	 heightened	 aggression	 following	 his	 return.
    She	 observed	 that	 [the	 mother]	 has	 a	 low	 stress	 threshold	 while
    Dominyk	is	quick	to	agitate.		This	resulted	in	clashes	between	the
    two.	 	 [The	 mother]	 would	 become	 agitated	 with	 Dominyk,	 he
    would	 respond	 with	 aggression	 and	 the	 HCT	 worker	 would
    intervene	 to	 calm	 the	 situation.	 	 Unfortunately,	 [the	 mother]
    admitted	that	she	couldn’t	maintain	the	calm	environment.		[The
    mother]’s	 partner	 confirmed	 that	 he	 and	 [the	 mother]	 were
    becoming	 irritable	 before	 March	 30th.	 	 They	 weren’t	 calm.
    Dominyk	was	hard	to	handle.		[The	mother’s	fiancé]	felt	that	they
    really	needed	time	away	from	Dominyk.
    4
    [The	 HCT	 worker]	 and	 .	 .	 .	 Dominyk’s	 school	 nurse	 noted
    that	 [physiological	 hygiene	 issues	 were]	 a	 significant	 concern
    during	 his	 placement	 with	 [the	 mother].	 .	 .	 .	 	 [The	 HCT	 worker]
    addressed	 her	 concerns	 with	 [the	 mother].	 	 [The	 mother]	 could
    acknowledge	the	issue	and	seek	guidance	from	[the	HCT	worker].
    Unfortunately,	 [the	 mother]	 was	 unable	 to	 adequately	 assist
    Dominyk.	.	.	.
    Dominyk	 needs	 physical	 activity	 in	 his	 daily	 routine.	 	 [The
    HCT	 worker]	 provided	 [the	 mother]	 with	 a	 sheet	 of	 physical
    activities	 designed	 to	 assist	 Dominyk.	 	 While	 she	 acknowledged
    the	 importance	 of	 physical	 activities	 for	 Dominyk	 [the	 mother]
    failed	 to	 prompt	 him	 to	 engage	 in	 the	 activities.	 	 [The	 mother]
    reported	 that	 Dominyk	 was	 unable	 to	 complete	 specific
    developmentally	targeted	tasks.
    The	 trial	 placement	 ended	 on	 March	 30,	 2017.	 	 The
    Department	 removed	 Dominyk	 from	 his	 mother’s	 care	 following
    reports	from	[the	HCT	worker]	and	[the	school	nurse]	of	injuries
    that	 they	 had	 observed	 on	 him.	 	 The	 most	 concerning	 injuries
    were	a	bruise	on	his	wrist	and	a	black	eye.		[The	mother]	and	her
    partner	.	.	.	have	given	inconsistent	explanations	for	these	injuries.
    Dominyk’s	 explanations	 have	 also	 been	 inconsistent.	 	 More
    troubling	to	the	court	is	[the	mother]’s	assertion	that	she	was	not
    aware	of	his	black	eye.		Dominyk’s	injury	was	clearly	visible	to	his
    school	nurse	and	is	clearly	visible	on	photographs	taken	after	her
    report.		At	a	minimum	[the	mother]	failed	to	care	for	a	concerning
    injury.
    [The	 mother]	 is	 simply	 unable	 to	 take	 responsibility	 for
    Dominyk	 within	 a	 time	 reasonably	 calculated	 to	 meet	 his	 needs.
    [The	mother]	is	unable	to	protect	him	from	jeopardy	within	a	time
    reasonably	 calculated	 to	 meet	 his	 needs.	 	 While	 she	 is	 able	 to
    understand	 appropriate	 parenting	 techniques	 she	 is	 consistently
    unable	 to	 apply	 them.	 	 [The	 foster	 mother]	 has	 provided	 foster
    care	for	Dominyk	for	over	2	years.		Dominyk	was	returned	to	her
    care	after	March	30,	2017.		She	noted	that	he	regressed	physically
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    and	 emotionally	 while	 with	 [the	 mother].	 	 He	 was	 able	 to
    complete	simple	physical	tasks	while	in	the	[foster]	home	that	he
    had	 been	 unable	 to	 accomplish	 with	 his	 mother.	 	 He	 was	 able	 to
    regain	his	toilet	training	in	her	care	as	well.
    This	court	finds	by	clear	and	convincing	evidence	that	DHHS
    offered	 [the	 mother]	 and	 [the	 father]	 appropriate	 services	 and
    referred	them	to	providers.		[The	father]	was	simply	unwilling	or
    unable	 to	 engage	 or	 make	 changes.	 	 [The	 mother]	 was	 unable	 to
    make	 necessary	 changes.	 	 This	 court	 finds	 that	 there	 is	 nothing
    more	 that	 DHHS	 could	 have	 done	 to	 assist	 [the	 mother]	 or	 [the
    father]	in	this	case.
    .	.	.	.
    [The	mother]	has	worked	exceptionally	hard	to	acquire	the
    parenting	skills	needed	for	Dominyk’s	care.		The	difficulty	for	[the
    mother]	is	one	of	timing.		Dominyk	cannot	continue	to	wait	for	his
    [mother]	 to	 do	 all	 the	 things	 necessary	 to	 set	 up	 a	 stable,
    consistent	and	safe	life.	.	.	.	He	needs	a	permanent	home	now	and
    cannot	 wait	 any	 longer	 for	 [the	 mother]	 to	 get	 her	 life	 in	 order.
    This	is	a	particularly	troubling	case	because	it	is	clear	to	this	court
    that	 [the	 mother]	 loves	 Dominyk	 dearly.	 	 Despite	 that	 love,	 [the
    mother]	 is	 unable	 to	 take	 full	 responsibility	 for	 Dominyk	 at	 this
    time.	 	 The	 court	 does	 not	 believe	 that	 she	 will	 be	 able	 to	 take
    responsibility	for	him	within	a	time	reasonably	calculated	to	meet
    his	needs.
    .	.	.	.
    This	court	finds	by	clear	and	convincing	evidence	that	even
    though	 [the	 mother]	 may	 be	 willing,	 she	 is	 unable	 to	 protect
    Dominyk	 from	 Jeopardy	 and	 these	 circumstances	 are	 unlikely	 to
    change	 within	 a	 time	 which	 is	 reasonably	 calculated	 to	 meet	 his
    needs.		This	court	also	finds	by	clear	and	convincing	evidence	that
    even	 though	 [the	 mother]	 may	 be	 willing,	 she	 is	 unable	 to	 take
    responsibility	 for	 Dominyk	 within	 a	 time	 which	 is	 reasonably
    calculated	to	meet	his	needs.
    6
    [¶6]		The	mother	contends	on	appeal	that	the	judgment	terminating	her
    parental	 rights	 must	 be	 vacated	 because	 the	 Department	 failed	 to	 satisfy	 its
    rehabilitation	 and	 reunification	 obligations,	 particularly	 by	 failing	 to
    investigate	 the	 cause	 of	 Dominyk’s	 bruises	 more	 thoroughly.	 	 See	 22	 M.R.S.
    §	4041	(2016).		The	court	found	that	the	Department	made	significant	efforts
    to	assist	the	mother	and	that	she	received	multiple	and	appropriate	services.
    The	 court	 also	 found	 that,	 during	 Dominyk’s	 three-month	 trial	 placement—
    the	 first	 time	 he	 had	 resided	 full-time	 with	 his	 mother	 in	 three	 or	 more
    years—the	 mother	 was	 unable	 to	 implement	 learned	 parenting	 skills,
    resulting	 in	 significant	 physical	 and	 behavioral	 problems	 for	 Dominyk;	 she
    could	 not	 respond	 effectively	 when	 Dominyk	 became	 agitated;	 she	 could	 not
    control	 her	 own	 emotional	 reactions	 to	 his	 behavior;	 and	 Dominyk	 suffered
    injuries	 that,	 at	 a	 minimum,	 the	 mother	 did	 not	 treat	 while	 Dominyk	 was	 in
    her	care.
    [¶7]	 	 Based	 on	 the	 facts	 that	 the	 court	 found,	 all	 of	 which	 have
    evidentiary	 support,	 the	 court	 did	 not	 err	 in	 finding	 that	 the	 mother	 was
    unable	 to	 protect	 Dominyk	 from	 jeopardy	 or	 take	 responsibility	 for	 him
    within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 his	 needs,	 see	 22	 M.R.S.
    §	4055(1)(B)(2)(b)(i),	(ii);	In	re	Thomas	D.,	
    2004 ME 104
    ,	¶	21,	
    854 A.2d 195
    ,
    7
    and	it	did	not	err	or	abuse	its	discretion	in	determining	that	the	termination	of
    her	 parental	 rights	 was	 in	 Dominyk’s	 best	 interest,	 see	 22	M.R.S.
    §	4055(1)(B)(2)(a);	In	re	A.M.,	
    2012 ME 118
    ,	¶	29,	
    55 A.3d 463
    ;	In	re	Thomas
    H.,	
    2005 ME 123
    ,	¶¶	16-17,	
    889 A.2d 297
    .		Nor	did	the	court	err	or	abuse	its
    discretion	 in	 terminating	 the	 parental	 rights	 of	 the	 father.	 	 See	 22	M.R.S.
    §	4055(1)(B)(2)(a),	(b)(i),	(ii),	(iv);	In	re	Daniel	H.,	
    2017 ME 89
    ,	¶	17,	
    160 A.3d 1182
    .
    The	entry	is:
    Judgment	affirmed.
    Dawn	 M.	 Corbett,	 Esq.,	 Law	 Office	 of	 Dawn	 M.	 Corbett,	 PA,	 Ellsworth,	 for
    appellant	mother
    Mary	Kellett	Gray,	Esq.,	Brooklin,	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
    Ellsworth	District	Court	docket	number	PC-2015-09
    FOR	CLERK	REFERENCE	ONLY
    

Document Info

Citation Numbers: 2017 ME 222, 173 A.3d 1065

Filed Date: 12/7/2017

Precedential Status: Precedential

Modified Date: 1/12/2023