In re M.B. et al.
Docket No. And-12-330.
Supreme Judicial Court of Maine.
Decided: May 9, 2013.
2013 ME 46
JABAR, J.
Argued: April 9, 2013.
[¶ 65] Although I certainly understand the intent of the Court to provide guidance to the trial judge following remand, I remain concerned that the Court‘s suggestion in this context could be misunderstood as a mandate. Therefore, I write to stress that it would be inaccurate to read the Court‘s suggested range as setting a hard limit on the sentence that could be imposed on remand.
[¶ 66] Finally, I note that the Court‘s suggested sentencing range is presented in the absence of a complete background investigation of Theodore Stanislaw. I would not offer such a range, suggesting that the maximum sentence should not exceed thirteen and a half years, in the absence of that information. Any reading оf the Court‘s opinion that limits the maximum unsuspended prison time to thirteen and a half years. We should not usurp the authority of the trial court to engage in one of its most important responsibilities, and we should not suggest a prospective sentence when all of the critical facts are not yet available. I would remand for the court to require the completion of a thorough presentence investigation of Stanislaw before any further sentencing is undertaken.
III. CONCLUSION
[¶ 67] I concur in the Court‘s determinations that the sentence must be vacated, that a proportionality analysis should be undertaken before the final sentence is imposed, and that the structure of that final sentence must be carefully reviewed by the trial court. I would mandate a thorough and searching history of Stanislaw before any further consideration of an appropriate sentence. And I would reject
Richard Charest, Esq., (orally), on the briefs, Auburn, for appellant mother.
Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., (orally), on the briefs, Office of the Attorney General, Augusta, for appellee Department of Health and Human Services.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
JABAR, J.
[¶ 1] The mother of M.B. and G.W. and the father of M.B. appeal from a judgment of the District Court (Lewiston, Beliveau, J.) terminating their parental rights. The mother and father argue that the court violated the Due Proсess Clause of the Fourteenth Amendment by (1) issuing an order terminating their parental rights before receiving their post-trial briefs and (2) admitting in evidence statements that M.B. made to the court without counsel for the parents being present. Additionally, the parents argue that the evidence presented at trial was insufficient to prove by clear and convincing evidence that they are unfit to parent and that termination of parental rights is in the best interests of the children. We affirm the trial court‘s judgment.
I. BACKGROUND
[¶ 2] M.B. was born on February 22, 2004. The mother has a second child, G.W., who was born on August 8, 2008. At the time of M.B.‘s birth, the mother and father lived together in Florida, but they separated two months later. M.B. remained in Orlando with the mother, and the father moved to Miami but maintained contact and had visits with M.B.
[¶ 3] In 2008, when the mother dropped M.B. off at the father‘s home for an overnight visit, the father noticed bruising on the child‘s arms and legs. Concerned that the bruises were not the result of an accident or play, the father called the mother to determine the cause, but she refused to provide an explanation. Instead, hours later, at 3:00 a.m., the mother arrived at the father‘s home and frantically demanded that the father hand over M.B., which he did.
[¶ 4] Despite concerns about M.B.‘s safety, the father did not contact Florida authorities or attempt to obtain custody. He did maintain contact with the mothеr and occasionally spoke with M.B., but the father did not see his child after this early morning incident, and, for the first fifteen
[¶ 5] On October 2, 2009, the Maine Department of Health and Human Services received information indicating that the mother had fled to Maine because the Massachusetts Department of Children and Families was attempting to take custody of M.B. and G.W. The Department was concerned because the mother had been substantiated as a sex offender in Massаchusetts for allegedly inserting a toothbrush into the vagina of her boyfriend‘s two-year-old daughter, had untreated substance abuse and mental health issues, and exposed her children to domestic violence. A caseworker with the Department met with M.B. at school, where he indicated that he was hungry and that he had recently come to Maine with his sister, his mother, and his mother‘s boyfriend. The caseworker also met with the mother separately. She denied the allegations of sexual abuse relayed from Massachusetts and indicated that she had forgotten to feed M.B. that day. While at the meeting, the mother changed G.W.‘s diaper and the caseworker noticed bloоd in the child‘s stool. Later that same day, the children were taken into the Department‘s custody and placed with a foster family. Soon thereafter, G.W. was examined by Dr. Lawrence Ricci of the Spurwink Child Abuse Program, who determined that she had suffered “anal injuries consistent with blunt penetrating trauma.”
[¶ 6] On October 15, 2009, the mother waived her right to a summary preliminary hearing; the court reaffirmed the children‘s custody with the Department and recognized that service was incomplete as to the father. The mother indicated that she believed the father was in Florida but denied knowing how to contact him; she denied knowing the identity of G.W.‘s father, claiming that G.W. was the product of rape.
[¶ 7] The court entered an agreed-upon jeopardy order as to the mother in February 2010, requiring her to engage in a variety of services approved by the Department including a psychological evaluation, mental health counseling, and random drug and alcohol testing. The children were ordered to remain in foster care, and the father‘s whereabouts were still unknown.
[¶ 8] Judicial review conferences were held on April 29, 2010, and July 15, 2010, at which the court found that jeopardy as to the mother was unresolved because she had been living in Massachusetts2 and the extent of her participation in Department-approved services was unknown.
[¶ 9] At the time of the third judicial review conference, held on October 26, 2010, the mother had returned to Maine and was participating in some substance abuse and mental health counseling, but she continued to test positive for marijuana use. The court found that the mother had made little progress regarding her chaotic lifestyle or the issues surrounding sexual and physical abuse to her children. By that date, more than a year after M.B. was placed in the State‘s custody, the
[¶ 10] On February 3, 2011, a Department caseworker was contacted by the father. According to the father, the mother had only recently informеd him that M.B. was in the Department‘s custody. On February 11, 2011, the Department filed a petition to terminate the parental rights of both the mother and the father.
[¶ 11] In June 2011, the Department dismissed the petition to terminate the father‘s parental rights and the court (Stanfill, J.) entered an agreed-upon jeopardy order as to him; a hearing on the petition to terminate the mother‘s parental rights was continued. In August 2011, after a judicial review conference, the parties developed a reunification plan for M.B. and the father, which indicated that the father, who at the time still lived in Florida, would begin contacting M.B., then seven years old, via email. At the conference, the mоther refused to sign a reunification plan and refused to submit to drug testing.
[¶ 12] Pursuant to the reunification plan, contact between M.B. and the father began through email. Even this limited contact, however, caused extreme anxiety in M.B. and stress to the father. In the emails, M.B. would tell his father that he hated him and that he did not want to talk to him. M.B. refused gifts that his father bought him and drew pictures depicting his father being hurt; the father suffered a medical event—his girlfriend characterized it as a heart attack—that he claimed was related to the stress of interacting with M.B. As a result of the father‘s medical condition, email contact between the father and M.B. ceased from November 2011 to February 2012.
[¶ 13] In Dеcember of 2011, over M.B.‘s protests, the Department arranged two phone calls between M.B. and the father.3 Despite M.B.‘s reluctance, the first phone call was conducted without incident, and the two talked for about five minutes. When the foster mother took M.B. to the Department‘s office for a second phone call, however, “he was laughing insatiably [sic], and crying,” and eventually curled up on his knees on the floor. After the second phone call, M.B. began screaming in the middle of the night and having hallucinations. The phone calls then ceased.
[¶ 14] Meanwhile, the Department was attempting to convince the father to move to Maine to helр facilitate reunification. Instead, the father moved to New York to live with his girlfriend and the two other children he has with her. The father did begin to meet with George Repp, a reunification therapist located in Maine, but was unable to keep his once-a-month appointments, and Repp eventually discharged him. Although Repp suggested that the father attempt to receive reunification services from a therapist in New York, neither the father nor the Department ever pursued that option.
[¶ 15] On February 6, 2012, the Department filed a petition to terminate the parental rights of the mother and the father. With respect to the mother, the Department alleged that she missed meetings and scheduled visitations, failed to consistently engage in substance abuse and mental health treatment, and failed to understand why her children had been removed from her care. The Department alleged that contact with the father caused M.B. extreme anxiety and that the father refused to put M.B.‘s needs for permanen-
[¶ 16] At the termination hearing, Julia Cabral, a licensed clinical social worker who worked with M.B., testified that the increased contact between M.B. and the father caused M.B. to feel that “his safety was threatened,” and indicated that on two instances, when faced with the prospect of contacting his father, M.B. would laugh, then cry, and curl up in a ball on the floor of her office. She also indicated that M.B. has made it clear that he considers his foster family his real family, he is extremely fearful of being taken away from that family, and, in her clinical opinion, removal from the foster family‘s home would result in “a significant disruption of his developmental progress.” She stated that M.B. needed finality in a short period of time.
[¶ 17] Mark Rains, a licensed psychologist who conducted an evaluation of M.B., testified that M.B. demonstrated signs of posttraumatic stress disorder and that he made little progress on this front in therapy bеcause of the uncertainty associated with his future living situation. Rains also testified that it “would be probably many months to a year or two” before M.B. and the father could establish a meaningful relationship, and, in his opinion, M.B. could not wait that long to have his permanency needs met. Based on the testimony of Cabral and Rains, the court found that “it would likely take another [six] months to a year to begin reunifying [M.B.] with [f]ather. Such a timeframe is not reasonably calculated to meet the [c]hild‘s needs; [M.B.] cannot wait any longer.”
[¶ 18] Over the father‘s objection, the guardian ad litem testified that he and M.B. met privately with the court in chambers, without the attorneys for the parties present, and in thаt meeting M.B. indicated that he would like to live with the foster family. In response to the father‘s objection, the court indicated that it thought the parties agreed to the meeting and that regardless, there was other evidence in the record indicating the child‘s preference to live with the foster family, including the testimony of the child‘s therapist. According to the foster mother and M.B.‘s therapist, M.B. considers the foster family his “real family,” and sees a relationship with his mother and father as a threat to the security he has experienced with the foster family. The foster parents testified that they would like to adopt both M.B. and G.W.
[¶ 19] At the conclusion of the hearing, the court indicated that in lieu of closing arguments it would give the parties until June 8, 2012, to file post-trial briefs. On June 6, 2012, the court entered a judgment terminating the parental rights of the mother as to M.B. and G.W., and terminating the parental rights of the father as to M.B. The court concluded that there was clear and convincing evidence that both parents (1) were unwilling or unable to protect the children from jeopardy in a time reasonably calculated to meet their needs, (2) were unwilling or unable to take responsibility for the children within a time reasonably calculated to meet their needs, and (3) had failed to make good faith efforts to reunify.
[¶ 20] The court found that the Department made “diligent and reasonable efforts to rehabilitate and reunify [the] family,” but that the mother failed to comply with the reunification plan and continued to pose a threat to the children. Similarly, the court found that the “[f]ather‘s complete lack of concern for the well being of his child and his failure to take action” between the time the mother took M.B. from Florida and the time he entered the case was “unacceptable” and “exceptionally unjustifiable.” As evidence of the father‘s lack of concern, the court noted that
[¶ 21] With regard to the mother, the court‘s findings of jeopardy and failure to take responsibility stemmed from her substance abuse, unstable lifestyle, and failure to address the issues that sparked the Department‘s initial involvement; the court found that her efforts to reunify were “sporadic and minimal.”
[¶ 22] Similarly, with regard to the father, the court found that he failed “to maintain a meaningful contact with the [c]hild pursuant tо the [r]eunification [p]lan, and failed to seek and utilize appropriate services to assist in rehabilitating and reunifying with the [c]hild.” The court found that when the father moved from Florida to New York, the Department “made efforts to overcome” the physical distance between M.B. and the father, but the “[f]ather did not put in his share of the effort.” The court also found that “interaction with [f]ather still poses a threat to [M.B.‘s] safety and security.”
[¶ 23] The court found that although the father was a competent parent for his other two sons, “the ability of a parent to take responsibility for a child is not based on the ability to take care of any child, but of the child who is the subject of the proceedings.” Therefore, despite the father‘s willingness to care for M.B., “given [M.B.]‘s negative feelings toward [the f]ather and the complete lack of relationship between the two, [the] father is unable to provide [M.B.] with the care he needs.” The court concluded that “any longer of a wait is not a reasonable time to meet [M.B.‘s] needs” and “[t]he Permanency Plan as to both [c]hildren is adoption.” Both parents timely filed notices of appeal. See
II. DISCUSSION
[¶ 24] Both parents argue (A) that the court violated their rights pursuant to the Due Process Clause of the Fourteenth Amendment of the United States Constitution and article 1, section 6-A of the Maine Constitution by (1) issuing a decision prior to receiving their post-trial briefs and (2) interviewing M.B. off the record and without the parents’ attorneys being present in violation of
A. Due Process
[¶ 25] “[T]he liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children....” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (quotation marks omitted). Thus, “[w]hen the state seeks to terminate the relationship between a parent and child, it must do so by fundamentally fair procedures that meet the requisites of due process.” In re Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222. “The fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings аs are adequate to safeguard the right which the particular pertinent constitutional provision purports to protect.” Id. (quotation marks omitted).
1. Closing Argument
[¶ 26] The parents argue that the court violated due process by issuing
[¶ 27]
[¶ 28] Here, the court indicated that although it had received all of the information that it needed to render a decision, it would allow time for the parties to file post-trial briefs. Instead, the court issued its decision two days before the deadline it set for receiving those briefs. Still, the record reveals that rather than asking the court, in light of closing arguments, to alter or amend the judgment pursuant to
[¶ 29] Although the parents had avenues through which they could have sought immediate redress from the trial court, they chose to proceed directly to this Court, and they did so without alleging how the purported error affected the underlying judgment. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463; see also Greaton v. Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913. The parents failed to avail themselves of mechanisms through which the trial court could have provided relief, see
2. Child Interview
[¶ 30] The parents argue that the court violated their rights to due process by admitting evidence of statements M.B. made to the court in chambers without the attorneys for the parents present. The State argues that the court had discretion, pursuant to
[¶ 31] Although the record indicates that there was some agreement between the parties that M.B. would be interviewed by the court, the nature and extent of that agreement is unclear. The court indicated that it was under the impression that the parents consented to the interview, while the parents maintain that they were unaware that the interview was going to take place with the court and GAL alone. The court took statements from M.B. with only the GAL and the judge present; that interview is not part of the record. Over the father‘s objection, the court allowed the GAL to testify as to the child‘s preference for staying with the foster family, which the GAL indicated that he learned during the child‘s interview with the judge. In response to the father‘s objection, the court stated, “I‘ll give it whatever weight—I mean, I speak to a lot of kids, and I give what they say certain weight and not much weight sometimes.... I have enough evidence... that indicates what his preference is at this point.”
[¶ 32] We note from the outset that the best practice is to follow the strict confines of
[t]he court may interview a child witness in chambers, with only the guardian ad litem and counsel present, provided that the statements made are a matter of record. The court may admit and consider oral or written evidence of out-of-court statements made by a child, and may rely on that evidence to the extent of its probative value.
We have held that the introduction of evidence pursuant to
[¶ 33] The plain language of
[¶ 34] Nevertheless, wе need not decide whether the violation of
B. Termination of Parental Rights
[¶ 35] The parents challenge the sufficiency of the evidence supporting the court‘s findings of unfitness and best interest of the children: the father argues that the evidence was insufficient to find that he is unfit and that termination of his parental rights is in the best interest of M.B., and the mother argues that the court erred in finding that the Department made a good faith effort to reunify her with her children.
1. Father‘s Parental Rights
[¶ 36] The father challenges the court‘s findings of parental unfitness. Specifically, he argues that because he did everything required of him in the reunification plan, and because the Department failed to provide a proper reunification therapist, the court erred in finding that he failed to make a good faith effort to reunify pursuant to
[¶ 37] Where the court finds multiple bases for unfitness, we will affirm if any one of the alternative bases is sup-
[¶ 38] The court found that the father‘s “failure to take action during a 15-month period in which he did not speak to or see the [c]hild even once is unacceptable... especially in light of his suspicions that the [c]hild was being physically harmed.” According to the court, as a result of his inaction, the father is unable to protect M.B. from jeopardy and those circumstances are unlikely to change within a time reasonably calculated to meet M.B.‘s needs. Supporting these findings, the record demonstrates that after M.B. was taken from the father‘s home in 2008, the mother exposed him to a chaotic and dangerous lifestyle, and the father failed to make an effort to ensure M.B.‘s safety. Cabral, the licensed clinical social worker who worked with M.B., testified that the child once asked her, “If he was my [d]ad, why wasn‘t he around when bad things were happening to me?”
[¶ 39] Further, there is competent evidence in the record to support the court‘s finding that it would take six months to a year for the father and M.B. to begin to have a relationship. M.B. has been living with the foster family for over three years and has not seen his father since 2008. Given the extreme anxiety M.B. demonstrated when faced with interaction with his father and the threat of removal from his current home, it is highly probable that six months tо one year is not reasonably calculated to meet M.B.‘s needs. See In re Charles G., 2001 ME 3, ¶ 7, 763 A.2d 1163 (noting that the time frame is calculated from the child‘s perspective); see also In re Colby E., 669 A.2d 151, 152 (Me.1995) (“[T]he emotional difficulties that may attend foster care are included within the statutory definition of jeopardy. We have previously upheld a finding of jeopardy when a child, already vulnerable from earlier abuse and instability, faced developmental regression of serious magnitude if removed from his stable foster home.” (quotation marks omitted)).
[¶ 40] Additionally, the court‘s findings regarding the developmental progress that M.B. has demonstrated with the foster family and the foster family‘s intent to adopt the children are supported by competent evidence in the record, the findings are not clearly erroneous, and the court did not abuse its discretion in finding that termination of parental rights is in the best interest of the child. See In re Alivia B., 2010 ME 112, ¶¶ 12-13, 8 A.3d 625 (noting the substantial deference afforded the trial court regarding best interest determinations).
2. Mother‘s Parental Rights
[¶ 41] The mother does not directly challenge the court‘s findings regarding unfitness and best interest of the
[¶ 42] When evaluating parental unfitness, the court should consider any failure on the part of the Department to provide reasonable reunification services. See In re Thomas D., 2004 ME 104, ¶ 28, 854 A.2d 195. Here, however, the record fully supports the court‘s finding that the Department made diligent and reasonable efforts to rehabilitate and reunify the mother with her children, and in any event the Department‘s failure to provide such services does not preclude the court from terminating parental rights, see id.
[¶ 43] Furthermore, even assuming for the purpose of the unfitness analysis that the Department failed to provide reasonable reunification services, the court‘s findings of unfitness as to the mother are amply supported in the record: she was substantiated as a sex offender in Massachusetts; G.W. displayed signs of sexual abuse; M.B. displayed symptoms of posttraumatic stress disorder and recalled feeling unsafe in the care of his mother; and the mother continued to engage in substance abuse and maintain a chaotic lifestyle. See In re Doris G, 2006 ME 142, ¶¶ 15-17, 912 A.2d 572 (affirming the termination of a father‘s parental rights despite the Departmеnt‘s failure to develop a written reunification plan because the “father‘s rights... were not terminated for failure to engage in and complete any specific undisclosed services, but rather because of the father‘s inability to adequately care for, protect, and nurture his children“). Further, the record supports the court‘s finding that termination is in the best interest of the children. See id. ¶ 18. Therefore, the court did not err in finding that the mother is unfit or that the termination of her parental rights is in the best interest of the children.
The entry is:
Judgment affirmed.
Cheron DOSTANKO v. Anthony M. DOSTANKO.
Docket No. YOR-12-312.
Supreme Judicial Court of Maine.
Decided: May 16, 2013.
2013 ME 47
Submitted on Briefs: Jan. 31, 2013.