In re L.T. , 120 A.3d 650 ( 2015 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 94Docket: Yor-15-9
Submitted
On Briefs: July 1, 2015
Decided: July 28, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.
IN RE L.T.
GORMAN, J.
[¶1] The father of L.T. appeals from a judgment of the District Court
(Springvale, Foster, J.) terminating his parental rights to the child. He contends
that the evidence was not sufficient to support the court’s finding of parental
unfitness, and that the court abused its discretion in determining that termination of
his parental rights is in the child’s best interest. The father also contends that the
court abused its discretion in denying his motion for relief from judgment pursuant
to M.R. Civ. P. 60(b) and in denying him post-termination visitation with the child.
Finally, the father argues that the trial judge was biased against him, and that he
had a due process right to a jury trial. We disagree and affirm.
I. BACKGROUND
[¶2] The father and mother, who are not married, separated shortly after the
birth of their child in 2008. In 2010, the mother obtained a protection from abuse
2
order against the father that restricted his contact with the child to supervised
visits.1
[¶3] Early in 2012, after an episode of domestic violence involving the
mother and another male partner, the Department of Health and Human Services
became involved with the family on an informal basis. By agreement, the child
was placed with her paternal grandmother, and the Department offered services to
both parents. Given the father’s propensity for violence—demonstrated not only
by his history of convictions and incarcerations, but by his own reports that he had
once tracked down and beat over the course of a day and a half an individual he
believed had molested a child, and that he had been placed in solitary confinement
for over two years because he “went crazy” after learning someone had tried to kill
him in prison—the Department referred the father for therapy designed to address
his anger and violence issues. The father began seeing the primary clinician for
Violence No More, a certified batterers’ intervention program, in May of 2012 but
attended the sessions inconsistently, and stopped attending in July of 2012.
[¶4] In the fall of 2012, after a series of events that caused the Department
to believe that informal agreements with the parties would no longer provide
sufficient protection to the child, the Department filed a petition for child
1
The record provided to the trial court suggests that the parents relied exclusively on protection from
abuse orders, and amendments to those orders, to establish their respective parental rights and
responsibilities.
3
protection alleging that the father2 created jeopardy through neglect, emotional
abuse, and physical abuse. On October 24, 2012, while at court for a case
management conference, the father and the Department agreed to the entry of a
jeopardy order as to the father, and the court signed an order referencing the
parties’ agreement on November 26, 2012. That order, which was not docketed
until December 28, 2012, continued the child’s placement with her paternal
grandmother, and included a finding that the father had placed his child in jeopardy
by “exposing the child to domestic violence . . . perpetrated by him [against the
child’s] mother.” In addition, the order referenced the father’s “long criminal
history involving crimes of violence against others,” and stated that the father’s
jeopardy “issues” were due, in part, to mental health and anger issues.
[¶5] Between the time the agreement was placed on the record and when it
was actually entered in the docket, the father sent dozens of threatening and vulgar
text messages to his mother. Based on those actions, the paternal grandmother
requested and obtained a protection from abuse order against him. Nonetheless, as
a result of the parties’ agreement and the jeopardy order, the child continued to live
with and be cared for by her paternal grandmother. Also during this time period,
the father re-engaged in services intended to address his violence and his inability
2
The mother was also subject to this petition, but the order from which the father appeals terminates
only his parental rights. The mother has not participated in this appeal.
4
to control his anger. That re-engagement was short-lived, however, as he failed to
complete a certified batterers’ intervention program after the program asked him to
leave.
[¶6] In January of 2013, the father again started to attend sessions with the
clinician for Violence No More. Because the clinician was struck by the level of
the father’s impulsivity, he suggested a neuropsychological evaluation to rule out
some organic brain disease or injury. During the evaluation, the father became
angry and frustrated when he became concerned that the results of the evaluation
might negatively affect his efforts to regain custody of the child. Ultimately, the
evaluator was not able to determine the cause of the father’s behavior.
[¶7] In March of 2013, the father was incarcerated for allegedly threatening
Department caseworkers. As a result of the criminal threatening charge, the father
was incarcerated from March of 2013 to July of 2013, although the charges against
him were eventually dismissed. While held in jail for those charges, the father
began taking medications that seemed to decrease his impulsivity and increase his
control. This improvement was noted by the Violence No More clinician, who
resumed his work with the father after he was released from jail.3
3
The record also suggests that, late in 2012, the father found a new partner, who has had a positive
effect on him. Through her, he has found solace and support within a church community that believes in
the power of redemption. Despite these improvements in his life, which were in place throughout the rest
of the case, the anger and impulsivity that have bedeviled the father’s life for decades have not abated.
5
[¶8] While the father was incarcerated in April of 2013, the Department
filed a petition to terminate the father’s rights to the child based largely on the
factual allegations included in the jeopardy order. During the next year and a half,
the Department continued to offer services to the father, and the parties continued
to appear at court for judicial reviews. During at least two of those court events,
the father demonstrated that he had not yet learned to control his anger. In January
of 2014, he sent a lewd text message to the mother. On another occasion, the
father told the paternal grandmother, “[y]ou scum; you’re lower than low.”
[¶9] On June 13, 2014, eighteen months after the docketing of the jeopardy
order, after three judicial reviews, and after the petition to terminate his parental
rights had already been pending for over a year, the father filed a motion to vacate
the jeopardy order pursuant to M.R. Civ. P. 60(b).4 In that motion, which
accompanied a motion to continue the termination hearing, the father alleged that
his former counsel “misinformed him as to the language and content of the
Jeopardy Order, as well as what the language meant” and forced him to waive “his
right to a jeopardy hearing based on coercion and threat of arrest at the court.” The
court denied both the motion to continue and the motion for relief that same day.
4
Although the motion is dated May 12, 2014, it was not filed until June 13, 2014.
6
[¶10] On June 16, 2014, just as the hearing on the termination petition was
to begin, the father’s attorney filed a motion seeking to end his representation of
the father. Thereafter, the hearing on that petition was continued on multiple
occasions as the court (Douglas, Foster, and Janelle, JJ.) unsuccessfully attempted
to assign new counsel for the father. Finally, on August 27, 2014, an attorney
retained by the father entered his appearance, and the hearing was held on
September 19 and 22, 2014.
[¶11] Ultimately, at the time of the termination hearing, the father had
discontinued all services, and his only continuing effort toward reunification was
visitation with the child. During the actual termination hearing, the father talked
over his own attorney and became so agitated during closing arguments that he had
to leave the courtroom.
[¶12] In an order dated December 9, 2014, pursuant to 22 M.R.S.
§ 4055(1)(B)(2)(b)(i), (ii), (iv) (2014), the court (Foster, J.) terminated the father’s
rights to the child on the grounds of his inability or unwillingness to alleviate
jeopardy, his inability or unwillingness to take responsibility for the child in a time
reasonably calculated to meet the child’s needs, and his failure to make a good
faith effort to rehabilitate and reunify with the child.
[¶13] The court explicitly concluded that the father has a borderline
personality disorder; is affected by bipolar disorder, depression, and post-traumatic
7
stress disorder; and that he has numerous criminal convictions, many of which
involve aggression toward others. The court also concluded that the father fails to
“function appropriately and effectively in his necessary interactions with others in
the world” and, as a result, puts the child at risk of both physical and emotional
harm.
[¶14] The father timely appealed pursuant to 22 M.R.S. § 4006 (2014) and
M.R. App. P. 2.
II. DISCUSSION
A. Sufficiency of the Evidence
[¶15] The father argues that the trial court erred in terminating his parental
rights because it did not have sufficient evidence before it to find, by clear and
convincing evidence, the grounds for parental termination pursuant to
22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii), (iv).
[¶16] The record supports the court’s findings that the father has significant
mental health and anger issues. Further, the record supports the court’s findings
that the father inconsistently engaged in services to deal with these issues and that
the father had stopped all services at the time of the termination hearing. Because
these factual findings are supported by competent record evidence and clearly
constitute at least one, if not all three, of the statutory bases the court identified, we
affirm the court’s findings and conclusions as to the grounds for termination.
8
B. Other Issues
[¶17] The father also argues that the court abused its discretion in denying
his motion to vacate the jeopardy order. To the extent an order in response to a
Rule 60(b) motion might be appealable pursuant to 22 M.R.S. § 4035, the father
did not timely appeal from the jeopardy order or from the court’s denial of the
Rule 60(b) motion, and they are not before us to consider. See 22 M.R.S. § 4006
(2014); 22 M.R.S. § 4035 (2014); M.R. App. P. 2(b)(3), (4); In re Matthew W.,
2006 ME 67, ¶ 10 n.2, 903 A.2d 333; Alexander, Maine Appellate Practice § 2.4,
2.11 at 35-36, 42 (4th ed. 2013).
[¶18] The father next argues that the court abused its discretion in failing to
grant him post-termination visitation rights pursuant to 22 M.R.S. § 4038-C(3)
(2014).5 To the extent that the father is arguing that he should be granted
post-termination visitation, the father is no longer a “parent” as defined by
22 M.R.S. § 4002(7) (2014), and, therefore, he may not petition for visitation
pursuant to 22 M.R.S. § 4038-C(3). To the extent the father is arguing that the
court erred in its best interest analysis as to the child, we disagree. See In re C.P.,
2013 ME 57, ¶¶ 16-20, 67 A.3d 558; In re David W., 2010 ME 119, ¶¶ 6-10,
8 A.3d 673.
5
In the termination order, the court explained that the Department’s permanency plan for the child
was to develop a permanency guardianship with the paternal grandmother and mother pursuant to
22 M.R.S. § 4038-C (2014).
9
[¶19] The father also argues that the trial judge was biased against him.
Because the father did not make a motion for the trial judge’s recusal, we review
the judge’s decision not to recuse sua sponte for obvious error. See
In re Kaitlyn P., 2011 ME 19, ¶¶ 8-9, 12 A.3d 50. Here, the father argues that the
judge is biased against parents in child protective proceedings based on the fact
that the judge assessed various pieces of evidence in this case and determined that
they supported at least one ground of parental unfitness. See generally M. Code
Jud. Conduct III(B)(5) (discussing bias and prejudice). As the father’s counsel
should be aware, it is the court’s role as the fact-finder to make those assessments,
and the court’s factual findings were not clearly erroneous. See Dionne v. LeClerc,
2006 ME 34, ¶ 15, 896 A.2d 923. In addition, the evidence of the father’s mental
health and anger issues overwhelmingly supports the court’s conclusion that the
father had failed to make sufficient progress in those areas.
[¶20] Finally, the father argues that he had a due process right to a jury trial.
Because the father did not attempt to have this case removed to the Superior Court
pursuant to M.R. Civ. P. 76C, we review the trial court’s decision not to remove
the case to the Superior Court sua sponte for obvious error. See In re Anthony R.,
2010 ME 4, ¶¶ 8-9, 987 A.2d 532. The court’s decision not to remove the case was
not an obvious error. See 22 M.R.S. § 4031 (2014) (stating that the District Court
has jurisdiction over child protection proceedings); In re A.M., 2012 ME 118 ¶ 16,
10
55 A.3d 463 (stating that due process requires “an impartial factfinder,” not a jury
trial); In re Shane T., 544 A.2d 1295, 1296-97 (Me. 1988) (affirming the denial of
a motion for removal to Superior Court for a jury trial in a termination of parental
rights case).
The entry is:
Judgment affirmed.
On the briefs:
Stephen C. Whiting, Esq., The Whiting Law Firm, P.A.,
Portland, 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
Springvale District Court docket number PC-2012-37
FOR CLERK REFERENCE ONLY