In re Danika B. , 172 A.3d 464 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 209Docket: And-17-151
Submitted
On Briefs: September 27, 2017
Decided: October 24, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE DANIKA B. et al.
PER CURIAM
[¶1] The mother of Danika B., Victor B., and Daytona C. appeals from a
judgment of the District Court (Lewiston, Dow, J.) terminating her parental
rights to the children pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2)(a),
(b)(i)-(ii) (2016). The mother argues that the court’s finding that the
Department of Health and Human Services did not make reasonable efforts to
“shape and monitor” counseling for her compels us to conclude that the
termination of her parental rights was improper. We affirm the judgment.
I. BACKGROUND
[¶2] The court based its decision to terminate the mother’s parental
rights on the following factual findings, which are supported by the record:
[T]he Department has made reasonable efforts to
rehabilitate and reunify the family, and has made reasonable
efforts to identify and pursue an alternative permanency plan.
These efforts include rehabilitation and reunification planning,
family team meetings, safety assessments, random drug screening
2
for the mother, referral to domestic violence education and
services for the mother, supervised visitation for the mother, ICPC
study for kinship placement, mental health and parental
assessment for the mother, medical and mental health care for the
children, referral to case management for the mother, [and] foster
care for the children. While the Department referred the mother
to mental health counseling, the Department failed to take
reasonable steps to shape and monitor the quality of that
counseling, and such failure makes the counseling fall short of
qualifying as a reasonable effort by DHHS.
. . . .
. . . Child protection services has been involved with [the
mother and] these children . . . over and over since 2003. Despite
repeated interventions, the chronic problems in the household are
exposure to domestic violence, squalid and unsafe living
conditions, housing instability, and inadequate supervision and
care of children.
. . . .
The relationship with [the father] has, in fact, been violent,
with both [parents] as perpetrators, and the children as
witnesses. [The mother] has not shown accountability for her
violence or changed the belief system that underpins recurrent
domestic violence. The Court adopts [the evaluator’s] finding
that, “[o]ne of the biggest obstacles for [the mother] is her lack of
insight and recognition regarding the problems in her life and the
role she plays in them.” [The mother] has chosen to have contact
with [the father] throughout the pendency of this case.
. . . .
[The mother] succeeded in attending and completing
certain services. In May of 2016, she successfully completed DBT
group. She attended a parenting class. Since June of 2016, she has
3
engaged in counseling . . . and she attended the majority of
scheduled case management sessions . . . . These are good things.
However, desirable results from these services remain
elusive. The Court notes, for example, that [the mother’s]
completion of DBT class preceded by only a few weeks her
emotional escalation to aggressiveness toward a visit supervisor
at a supervised visit on May 31, 2016. Police were called and
visits were suspended for a time. It was the kind of escalation that
DBT is intended to prevent.
As for counseling, the Court was gravely disappointed with
the testimony of [the counselor] that she was not 100 percent
sure she had seen [the evaluator’s] parental assessment of [the
mother]. She certainly has not been using that assessment as a
guide to focus the efforts in counseling. [The counselor] identified
the goals of her counseling of [the mother] to be addressing
depression, PTSD, and reunification with the children. Despite
months of weekly counseling sessions, [the counselor] was not
aware that [the mother] had been a perpetrator of domestic
violence against [the father], not aware of the extent to which [the
mother] has continued to see [the father], and not aware that [the
mother] had been convicted of three counts of endangering the
welfare of a child. The trauma that [the mother and the
counselor] seem to be processing together seems to be the
difficult experience of having the children removed by DHHS
rather than [the mother’s] reported history as a victim of abuse
and neglect by her parents and abuse by her romantic partners.
The Court finds that the counseling . . . , in terms of its effect on
alleviating jeopardy, has been a missed opportunity thus far.
. . . .
As for case management, the goals were to find a primary
care physician, arrange medication management, and obtain
suitable housing for [the mother]. While the first two goals have
been met, [the mother] has yet to obtain suitable housing. At the
time of trial, [the mother] had a room in the home of friends,
4
unsuitable for reunification with the children. She was on the
wait list for subsidized housing at different locations. She was in
the process of applying for Social Security Disability benefits
which would improve her financial stability. At certain times
during the pendency of the case, [the mother] lived in her vehicle,
in a motel with her brother, with another friend, with [the father]
(in violation of court orders) and with [the children’s paternal
grandfather].
The Court adopts [the guardian ad litem’s] assessment of
[the mother’s] fitness for parenting and her efforts to alleviate
jeopardy:
“[The mother] has tried her best to engage in the
reunification process, which has been difficult given
her challenging life with limited resources. [The
mother] wants to do well. [The evaluator] noted in
her parental assessment that numerous
interventions have been attempted over the years
with [the mother] with little result. While [the
mother] did not fully engage with the rehabilitation
and reunification process in 2015, she has regularly
attended the visits since February 2016, and has
regularly engaged with a new case manager and
therapist since June 2016. [She] has yet to develop
insight into how she contributed to the reasons [the
Department] intervened, and what she can do
differently. [ . . . ] [The mother] has shown some good
parenting skills during the visits, but the overall
impression is that she cannot safely parent and
manage [the children], whether it is one or three
children at a time, unless she has help. Since June of
2015, [she] has struggled with her relationship with
[the father] and domestic violence, safe and stable
housing, mental health treatment, medication
management, and regularly communicating with [the
Department].”
5
Based on the foregoing, the Court finds by clear and
convincing evidence that [the mother] is unfit due to her inability
to protect the children from jeopardy or take responsibility for
them in a time reasonably calculated to meet their needs.
The Court turns now to the issue of the children’s best
interest. All of the findings above also go to best interest.
The children’s lives in the care of [the mother] were chaotic.
Their negative experiences in [the mother’s] care range from
trauma (witnessing serious assaults between their parents), to
neglect ([the mother] was convicted [of] three counts of
endangering the welfare of a child). The children all have special
needs that require a good deal of attention from their custodians.
They have all been making progress in their services.
[The twins] have just turned five years old. [The eldest
daughter] is six. The children have been in foster care since
June 4, 2015. According to the GAL report, the three children
need stability, consistency, structure, and intensive supervision.
They absolutely need permanency.
The GAL believes that termination of the mother’s rights as
to [the three children] is in the children’s best interest. The
evidence compels the Court to agree strongly. . . .
(Citations omitted.)
II. DISCUSSION
[¶3] Although the mother argues that the judgment terminating her
parental rights should be vacated because the court found that the
Department failed to take reasonable steps to shape and monitor the quality
6
of her counseling, the record does not support that interpretation of the
court’s findings.
[¶4] Here, the court noted only that the counselor had chosen to
address issues that, ultimately, would not assist the mother in alleviating
jeopardy. Although the court found that the Department failed to take
reasonable steps to shape and monitor the mother’s counseling, the court
specifically found that the Department did make reasonable efforts to reunify,
including rehabilitation and reunification planning, family team meetings,
referral to domestic violence education and services, supervised visitation, an
ICPC study for kinship placement, mental health assessment and treatment,
and referral to case management services. See In re Daniel H., 2017 ME 89,
¶ 16, 160 A.3d 1182. Even if the Department had not made reasonable efforts
to reunify, which is not the case here, that failure alone does not preclude a
termination of parental rights. See In re Thomas D., 2004 ME 104, ¶ 28,
854 A.2d 195. There is competent evidence in the record to support the
court’s findings of unfitness and that termination is in the children’s best
interests.
The entry is:
Judgment affirmed.
7
Nathaniel Seth Levy, Esq., Brunswick, 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-2015-37
FOR CLERK REFERENCE ONLY