In re Kenneth S. , 2017 ME 45 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 45Docket: And-16-410
Submitted
On Briefs: February 23, 2017
Decided: March 9, 2017
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE KENNETH S.
PER CURIAM
[¶1] The mother of Kenneth S. appeals from a judgment of the District
Court (Lewiston, Oram J.) terminating her parental rights pursuant to
22 M.R.S. § 4055(1)(B)(2) (2016). She challenges the court’s determination
that termination of her parental rights is in the child’s best interest, arguing
that there is an alternative foster or adoptive placement for her and the child
together; that her parenting deficits have not interrupted the child’s
development; and that there are safety concerns in the current foster
placement. We affirm the judgment.
[¶2] On a petition by the Department of Health and Human Services
filed in December 2014, two days after the child’s birth, the court granted a
preliminary protection order as against both parents, see 22 M.R.S. § 4034
(2016), and the child was placed in foster care. In July 2015, the mother
consented to a jeopardy order “based on [her] low cognitive ability, Autism
2
Spectrum Disorder, and behavioral [dysregulation] related either to her
cognitive limitations or a mood disorder.” See 22 M.R.S. §§ 4035-4036 (2016).
DHHS filed a petition for termination of parental rights in September 2015,
and in May, June, and July 2016, the court held a three-day contested hearing
on the petition as to the mother.1 On August 3, the court issued a judgment
terminating the mother’s parental rights, finding that despite her diligent
efforts, she is unable to protect the child from jeopardy and is unable to take
responsibility for him, and will not be able to do either within a time
reasonably calculated to meet his needs, see 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii); and that termination is in the child’s best interest,
see id. § 4055(1)(B)(2)(a). The mother timely appealed. 22 M.R.S. § 4006
(2016); M.R. App. P. 2(b)(3).
[¶3] We review the trial court’s “factual findings for clear error and its
ultimate conclusion regarding the best interest of the child for an abuse of
discretion, viewing the facts, and the weight to be given them, through the
trial court’s lens.” In re R.M., 2015 ME 38, ¶ 7, 114 A.3d 212.
[¶4] Here, the court did not abuse its discretion in determining that the
child’s best interest is served by terminating the mother’s parental rights.
1 The court terminated the father’s parental rights, with his consent, in November 2015.
3
With support in the record, the court found by clear and convincing evidence
that the mother’s mental health limitations, which the court characterized as
“intractable” and impervious to therapy or treatment, prevent her from being
able to act as an independently functioning parent to the child. As the court
also found, the mother is at high risk for expecting the child to assume a
parental role for her and is likely to be easily frustrated by any conflict with
the child. Despite her diligent participation in the reunification plan, the
mother is not yet even ready to care for the child during a visit without
supervision. The mother herself requires daily living skills assistance and has
a court-appointed limited guardian—her biological mother, the child’s
grandmother.
[¶5] Although the mother advocates that the child be moved to an
alternate adoptive placement with her former foster mother so that the
mother can maintain a relationship with the child, the former foster mother
was not a licensed foster parent at the time of the court’s decision,2 and there
2 The former foster mother’s licensure had expired, and she was in the process of applying for a
renewal of her license to operate a family foster home at the time of the termination hearing,
pursuant to 22 M.R.S. § 8102 (2016); 18 C.M.R. 10 148 016 (2011). The court found that the
licensure renewal process had “been delayed by administrative problems at DHHS.”
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is no evidence that she has spent time with the child other than during visits
she supervised between the child and the mother.3
[¶6] Additionally, we note that permanency planning for a child in
foster care, 22 M.R.S. § 4038-B(4) (2016), and the best interest determination
to be made in a termination proceeding, 22 M.R.S. § 4055(1)(B)(2)(a), are
distinct from the question of who should adopt the child, which is addressed
in an adoption proceeding governed by 18-A M.R.S. §§ 9-301 to 9-315 (2016).
Nonetheless, in conducting a best interest analysis, the court may consider
evidence that the current foster placement is furthering the child’s
permanency plan, especially where that plan is to place the child for adoption.
See In re K.M., 2015 ME 79, ¶ 11, 118 A.3d 812; In re Kayla M., 2001 ME 166,
¶¶ 13-14, 785 A.2d 330 (explaining that the child’s best interest was met by
termination where the child had spent most of her life with her foster family
and was bonded with her foster parents and sibling); In re Charles G., 2001 ME
3, ¶ 15, 763 A.2d 1163 (finding that the trial court’s best interest
determination was not error, and affirming the court’s termination of parental
3 The mother’s argument does not benefit from the statutory preference for a child to be placed
with family members when the child is removed from a parent’s custody, because such a kinship
placement does not extend to a parent’s former foster mother. See 22 M.R.S. § 4003(3-A) (2016)
(providing for placement of the child “with an adult relative when possible”); 22 M.R.S. § 4002(9-B)
(2016) (defining “relative” as “the biological or adoptive parent of the child’s biological or adoptive
parent, or the biological or adoptive sister, brother, aunt, uncle or cousin of the child”); cf. In re
N.W., 2013 ME 64, ¶ 15, 70 A.3d 1219.
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rights, where the child had a strong attachment to the foster family and the
foster family wanted to adopt the child).
[¶7] Here, with support in the record, the court found that the child is
attached to his foster parents and four foster siblings, with whom he has
continuously resided almost since birth, and that the foster parents are even
prepared to adopt the child. The court did not err by finding that removal of
the child from his current foster family—of which he is “an integral part”—
and placement with the mother’s own former foster mother “would benefit
[the mother], but would not benefit [the child].”4
[¶8] These and other findings demonstrate that the court properly
considered the statutory factors relevant to its determination of the child’s
best interest for purposes of a termination proceeding—leaving to another
day the issue of who should adopt the child pursuant to the considerations set
out in 18-A M.R.S. § 9-308 and other applicable authority—including “the
needs of the child, . . . the child’s age, [and] the child’s attachments to relevant
persons,” 22 M.R.S. § 4055(2) (2016). The court’s findings and ultimate best
4 The court also did not err by finding that the child’s foster parents have adequately addressed
safety issues with the physical structure of the foster home, which had been of some concern to the
mother and DHHS.
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interest determination are supported by the record and do not reflect an
abuse of discretion.
[¶9] Finally, although not challenged by the mother, the court did not
err by determining that DHHS had proved, by clear and convincing evidence,
at least one ground of parental unfitness. See Guardianship of Hailey M.,
2016 ME 80, ¶ 15, 140 A.3d 478.
The entry is:
Judgment affirmed.
Jeffrey S. Dolley, Esq., Dolley Law Firm, Lewiston, for appellant mother
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
Lewiston District Court docket number PC-2014-89
FOR CLERK REFERENCE ONLY