In Re Breauna N. , 742 A.2d 911 ( 1999 )

RUDMAN, J.

[¶ 1] Breauna’s mother and her grandfather appeal from an order entered by the District Court (Portland, Bradley, J.) terminating the mother’s parental rights pursuant to 22 M.R.S.A. §§ 4055(B)(2)(a), 4055(B)(2)(b)®, and 4055(B)(2)(b)(ii) (1992 & Supp.1998). They argue that the court erred when it found by clear and convincing evidence: (1) that the mother was unwilling and unable to take responsibility for and protect Breauna from jeopardy in a time reasonably calculated to meet Breauna’s needs; and (2) that the termination of her parental rights was in Breau-na’s best interest. The mother further asserts that the court erred when it denied her motion to reinstate the Department of Human Services’ (DHS) obligation to reunify her with Breauna. The mother and the grandfather also contend that the court erroneously determined (1) that DHS made a good faith attempt to reunify Breauna with her mother and grandfather; and (2) that equitable estoppel did not preclude a finding that the mother made insufficient efforts to reunify with Breau-na. Finally, the grandfather argues that the court exceeded the bounds of its discretion when it excluded his letter from evidence. We disagree and affirm.

I. FACTS

[¶ 2] Based upon the unified record, the trial court could have found the following: The fifteen-year-old mother delivered Breauna on February 9, 1995. Breauna’s grandfather traveled to Maine from the U.S. Air Force Base in Aviano, Italy to help his daughter for a week. After the grandfather returned to Italy, he sent money and necessities for Breauna. As an infant, Breauna had numerous medical problems. Breauna was bom with a ventricular septal defect in her heart; she also had multiple ear and urinary tract infections. Her mother repeatedly sought medical help for the child, but the child’s illnesses persisted. Between November 1995 and February 1996, Casey Family Services, which provided intensive in-home treatment, a public health nurse, and a day care center assisted the mother in caring for Breauna.

[¶ 3] When DHS first petitioned for a Child Protection Order (CPO), it argued that the mother jeopardized Breauna’s health and welfare. At thirteen months old, Breauna only weighed fifteen pounds, four ounces. DHS did not initially seek custody of Breauna. Rather, DHS referred the mother and Breauna to the Spurwink Clinic for comprehensive psychological and medical evaluations. A Spurwink doctor diagnosed Breauna’s condition as non-organie failure to thrive due to environmental conditions.-

[¶4] After the Spurwink evaluations, DHS sought a preliminary CPO. The court awarded DHS temporary custody of Breauna because her mother needed extensive parenting training and assistance. DHS placed Breauna with a foster family and the mother moved to Aviano, Italy with her family.

[¶ 5] At the final CPO hearing, the court (Portland, Beaudoin, J.) found by a preponderance that Breauna was in jeopardy because she suffered from non-organic failure to thrive. The mother did not sufficiently feed, nurture or interact with Breauna. The court concluded that Breauna was in an immediate risk of serious harm due to caloric deprivation, a condition that could result in permanent brain damage and serious developmental delays.

A. Reunification Efforts With Breauna’s Grandfather

[¶ 6] In October 1996, the court (Portland, Goranites, J.) granted Breauna’s maternal grandfather limited intervenor status pursuant to 22 M.R.S.A. § 4005-B (1992). In March 1997, the court (Portland, Foster, J.) ordered DHS to reunify Breauna with her grandfather overseas. The first step in reunifying Breauna with her grandfather was a home study. The home study was delayed by over a year. The grandfather and his family were living on the U.S. Air Force Base in Germany. The grandfather recommended a person to complete the home study in Germany to DHS, but DHS declined his suggestion. About a year later, DHS hired the same person to complete the home study that the grandfather had identified. This delay adversely affected the grandfather’s reunification with Breauna because DHS credited Breauna’s attachment to her foster family during that year as a reason for maintaining her foster care.

[¶ 7] The court ordered the grandfather to temporarily relocate to Portland to begin an intensive reunification with Breau-na. Breauna’s placement with her grandfather and his wife was contingent upon her successful transition to them. When the court ordered reunification with the grandfather, it simultaneously relieved DHS of its obligation to reunify Breauna with her parents.

[¶8] Spurwink recommended that the reunification plan exclude the mother because it feared that the grandfather would give her physical custody of Breauna. Rosemary Merrill, Breauna’s guardian ad litem (GAL) until March 1998, was concerned that Spurwink had based its recommendation on misinformation because the grandfather and his wife were “adamant” that they — -not the mother — would be Breauna’s primary caretakers. Ms. Merrill thought the misinformation influenced Spurwink’s final recommendation.

[¶ 9] In February 1998, the intensive reunification of the grandfather and Breauna began. Spurwink Clinic designed and executed the reunification plan. Before the intensive reunification plan was established, the grandfather informed DHS and Spurwink that he could only remain in Maine for thirty days because Air Force rules prohibited him from living off base for more than thirty days.¹

[¶ 10] Spurwink’s plan allowed the grandfather to visit Breauna under supervision for two hours, twice a week. The record shows that this plan was not a traditional intensive reunification plan. The plan should have consisted of at least four visits a week building towards daily visits. Although Spurwink knew the grandfather only had thirty days in the United States, its reunification plan required sixty days. The grandfather returned to Germany less than thirty days into the reunification program.

[¶ 11] The grandfather can no longer be considered a reasonable alternative for custody. He has not returned to Maine since he left in March 1998 and he has not attended any of the termination hearings. At the termination hearing, the grandfather’s attorney offered a letter from the grandfather. The attorney offered the letter during the examination of the mother under M.R. Evid. 801(d)(2), but the court excluded the letter because it did not fall within any hearsay exception.

B. Efforts of the Mother

[¶ 12] While in Germany, the mother received her general education diploma. She took college courses and worked at a steady job. She also completed a parenting course at the military base. The mother decided, in Spring 1998, to begin the process of reunifying with Breauna. The mother arrived in Portland in August 1998. She obtained a full-time job and an apartment. At the time of the termination hearing, the mother was attending parenting classes and counselling at the YMCA.

[¶ 18] The GAL commended the mother for the progress that she had made: “She appears to be a totally different person than the person described in the reports from when Breauna first came into care.” The mother is “articulate, reasonably mature, somewhat naive and intelligent.” A doctor at Spurwink, however, described the mother as a rigid and defensive person. She does not suffer from any personality disorders.

[¶ 14] The GAL questioned the mother’s commitment to rearing Breauna because the mother had minimal contact with her. While living in Europe, the mother visited Breauna in July and October 1996, when she saw her child three times; in April and August 1997, when she visited Breauna almost daily between April 5, and April 12; and in January 1998. The court held the first day of the termination hearing in September 1998 and the next two days of the hearing in November 1998. Between the September and November termination hearings, the mother only visited Breauna twice. Although the mother left about twenty-five messages for the foster mother to set up visits with Breauna between September and November 1998, the foster mother failed to return her calls.

[¶ 15] The mother testified that she was not ready to assume custody of Breauna. She could not estimate when she would be ready. She also acknowledged that Breau-na received excellent care from her foster mother.

C. Breauna

[¶ 16] Breauna has lived with the same foster family since DHS took custody. Her foster parents provide an excellent •home life where Breauna is flourishing. Breauna calls her foster mother “Mom.” Breauna, now four and a half years old, has spent two-thirds of her life with this family that hopes to adopt her.

[¶ 17] When DHS placed Breauna with her foster family, Breauna suffered from serious medical conditions. Her health has stabilized, but her social, perceptual and motor skill developments are still delayed. She wears orthotics for support in her shoes and attends occupational therapy-

[¶ 18] Breauna is emotionally fragile. Breauna’s most significant attachment is to her foster mother. Both the Spurwink team and the GAL testified that separating Breauna from her foster family would be detrimental to her developmentally, socially and emotionally. If the mother were to reunify with Breauna, it would be a long and arduous process that would require continuous monitoring and support.

II. DISCUSSION

A. Sufficiency of the Evidence

[¶ 19] Contrary to the mother’s contentions, sufficient evidence exists on the record to support the court’s factual findings by clear and convincing evidence. When reviewing sufficiency challenges for clear and convincing evidence, we examine .whether the trial court “could have reasonably been persuaded on the basis of evidence in the record that the required factual findings were ‘highly probable.’ ” In re Denise M., 670 A.2d 390, 393 (Me.1996).² The record supports the finding that the mother was unable and unwilling to take responsibility for and protect Breauna from jeopardy within a time reasonably calculated to meet her needs.³ When determining a parent’s willingness and ability to take responsibility for and protect her child, we measure time from the child’s perspective. See In re Alexander D., 1998 ME 207, ¶ 18, 716 A.2d 222, 228. Breauna has been in DHS custody for over three years, yet her mother, by her own admission, is still -not ready to take custody of Breauna and cannot estimate when she will be ready to take custody. The mother has maintained minimal contact with Breauna. During the three years that Breauna has been in DHS custody, the mother has visited Breauna sporadically.

[¶ 20] Clear and convincing evidence also establishes that termination was in Breauna’s best interest. See In re Denise, 670 A.2d at 393. Breauna is thriving in her foster home. She has developed a strong emotional bond with her foster mother. Removing Breauna from the stable environment of her foster family would damage her social, emotional and physical development. By her own admission, Breauna’s mother is not ready to care for Breauna in the manner that Breauna requires. Breauna has spent over three years of her young life living with her foster family while seeing her biological family about twice a year. Breauna needs stability in her life and, therefore, it is.in her best interest to remain with her foster family where she has that stability. The foregoing facts support the District Court’s findings by clear and convincing evidence.

B.Good Faith Effort to Reunify

[¶ 21] The mother and the grandfather also assert that DHS failed to execute its statutory obligation of making a good faith effort to reunify Breauna with her biological family. See 22 M.R.S.A. § 4041 (1996 & Supp.1998). We disagree. The evidence in the record establishes by a preponderance that DHS acted in good faith. See In re Denise, 670 A.2d at 394 (opining that good faith action by DHS must be proved by a preponderance of the evidence). Before DHS petitioned to remove Breauna from her mother’s custody, the mother had the assistance of-Casey Family Services, a day care center, and a public health nurse. When DHS took custody of Breauna, the mother moved to Europe. The mother was not available to undergo the extensive parenting instruction that she needed to safely care for Breauna. DHS attempted to reunify Breauna with her grandfather, but the reunification effort failed.

[¶ 22] In In re Denise, we opined that DHS satisfied its statutory obligation because it spent two years trying to help the parents learn parenting skills, even though DHS failed to disclose that one of its counselor’s who recommended termination also wanted to adopt the child. See In re Denise, 670 A.2d at 393-94. Similar to the circumstances in In re Denise, DHS spent over three years trying to reunify Breauna with her family. See id. DHS did not address this matter as efficiently as it should have, but DHS did not cause the mother to move to Europe and live a great distance from her daughter. DHS did not cause the grandfather to leave the intensive reunification early. Thus, DHS’s efforts to establish and implement a reunification program support the finding that DHS engaged in a good faith reunification effort. See In re Denise, 670 A.2d at 394.

C.Equitable Estoppel

[¶ 23] The mother asserts that the doctrine of equitable estoppel bars DHS from using her failure to reunify with Breauna as evidence that termination is in Breauna’s best interests. Equitable estoppel only applies when a party relies to her detriment on another party’s misleading conduct. See Anderson v. Comm’r of Dep’t of Human Servs., 489 A.2d 1094, 1099 (Me.1985). When the Court relieved DHS of its obligation to reunify the mother with Breauna, the mother knew that the reunification of Breauna and her grandfather was contingent upon the successful completion of the intensive program. When reunification with the grandfather failed, the mother allowed four months to pass before she commenced efforts to reunify with her daughter. DHS did not engage in misleading conduct that would induce the mother to rely to her detriment and, thus, the doctrine of equitable estoppel does not apply.

D.Grandfather’s Letter

[¶ 24] The grandfather contends that the court exceeded the bounds of its discretion when it excluded his letter from evidence at the termination hearing. See Kay v. Hanover Ins. Co., 677 A.2d 556, 558 (Me.1996) (opining that the court applies clear error and abuse of discretion to the trial court’s evidentiary rulings). The grandfather’s attorney offered a letter written by the grandfather — a party who was not present at the hearing — during examination of the mother. The grandfather argues that the letter was not hearsay because he offered the letter under M.R. Evid. 801(d)(2).⁴ M.R. Evid. 801(d)(2) only applies to statements offered against a party-opponent. M.R. Evid. 801(d)(2). The grandfather’s letter was not offered by a party-opponent. He offered his own letter. The court, therefore, properly excluded the letter.

The entry is:

Judgment affirmed.

SAUFLEY, J., files concurring opinion with whom, DANA and CALKINS, JJ., join.

1 . The grandfather had retired from his position with the Air Force, but his wife was still a member of the Air Force, and as her spouse, he was required to follow the regulation. Otherwise, they would lose their cost of living allowance.

2 . We stress that our task as an appellate court is to determine whether the record supports the trial court’s findings. Thus, we do not independently examine the conduct of DHS. See In re David H., 637 A.2d 1173, 1176 (Me.1994) (affirming termination of parental rights because record supported court’s factual findings, "independent of any findings as to the conduct of DHS.”)

3 . Section 4055 only requires that the record support a finding that the mother was unwilling or unable to either take responsibility for or protect her child from jeopardy. See 22 M.R.S.A. § 4055 (1992 & Supp.1998). In this case, the trial court found — and the record supports — that the mother was both unwilling and unable to take responsibility for and protect her child from jeopardy.

4 . The grandfather also asserts that the letter was admissible under M.R. Evid. 803(3). The grandfather is precluded from raising the issue under M.R. Evid. 803(3) because it was not offered pursuant to 803(3) in the trial court. See Davis v. Picciandra, 662 A.2d 898, 899 (Me.1995) (refusing to address an argument because appellant failed to properly preserve the issue by not raising it before the trial court).