In re Mackenzie P.

MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    

	
Docket:	      And-17-6	
Submitted	
  On	Briefs:	 June	14,	2017	
Decided:	     June	22,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              IN	RE	MACKENZIE	P.	et	al.	
	
	
PER	CURIAM	

	      [¶1]	 	 The	 mother	 of	 Mackenzie	 P.	 and	 Antonio	 P.	 appeals	 from	 a	

judgment	 of	 the	 District	 Court	 (Lewiston,	 Dow,	 J.)	 terminating	 her	 parental	

rights	 to	 her	 children	 pursuant	 to	 22	 M.R.S.	 §	 4055(1)(A)(1),	 (B)(2)(a),	

(b)(i)-(ii)	 (2016).	 	 She	 challenges	 the	 sufficiency	 of	 the	 evidence	 to	 support	

the	 judgment	 and	 the	 court’s	 discretionary	 determination	 of	 the	 children’s	

best	interests.		The	mother	also	argues	that	she	was	deprived	of	due	process	

because	the	court	terminated	her	parental	rights	when	the	guardian	ad	litem	

(GAL)	 had	 not	 complied	 with	 22	 M.R.S.	 §	4005(1)(B)	 (2016).	 	 Because	 the	

evidence	 supports	 the	 court’s	 findings	 and	 discretionary	 determination,	 and	

we	conclude	that	the	mother	received	due	process,	we	affirm	the	judgment.	

	      [¶2]	 	 Based	 on	 competent	 evidence	 in	 the	 record,	 the	 court	 found,	 by	

clear	 and	 convincing	 evidence,	 that	 the	 mother	 is	 unwilling	 and	 unable	 to	

protect	the	children	from	jeopardy	and	that	these	circumstances	are	unlikely	
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to	 change	 within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 the	 children’s	

needs,	 she	 is	 unwilling	 and	 unable	 to	 take	 responsibility	 for	 the	 children	

within	 a	 time	 that	 is	 reasonably	 calculated	 to	 meet	 their	 needs,	 and	

termination	 of	 her	 parental	 rights	 is	 in	 the	 children’s	 best	 interests.		

See	22	M.R.S.	 §	 4055(1)(B)(2)(a),	 (b)(i)-(ii).	 	 The	 court	 based	 these	

determinations	on	the	following	findings	of	fact.		

	       [¶3]	 	 Although	 she	 succeeded	 in	 obtaining	 adequate	 and	 safe	 housing,	

the	 mother	 “failed	 to	 visit	 consistently	 with	 the	 children”	 and	 “regularly	

disappointed	them	by	failing	to	appear	at	scheduled	visits”	in	violation	of	the	

reunification	 plan	 she	 had	 agreed	 to	 with	 the	 Department	 of	 Health	 and	

Human	Services.1		The	mother’s	behavior	showed	“a	reckless	disregard	for	the	

emotional	 health	 of	 [the]	 children”	 and—considering	 evidence	 that	 the	

mother	 could	 keep	 other	 appointments—“an	 unwillingness,	 not	 a	 mere	

inability,”	to	comply	with	the	reunification	plan.		Because	the	mother	failed	to	

comply	with	the	reunification	plan,	she	did	not	show	progress	in	her	ability	to	

protect	 the	 children	 from	 unsafe	 people	 or	 supervise	 and	 care	 for	 them	

appropriately.	 	 The	 children,	 now	 twelve	 and	 seven,	 have	 been	 out	 of	 the	
   1		The	mother	acknowledged	that	she	had	been	inconsistent	in	visiting	the	children	and	in	other	

areas	of	the	reunification	plan	for	about	fourteen	out	of	the	eighteen	months	that	elapsed	between	
the	 children	 entering	 Department	 custody	 and	 the	 termination	 hearing.	 	 The	 record	 contains	
heartbreaking	 evidence	 of	 the	 children	 waiting	 for	 their	 mother	 to	 arrive	 at	 scheduled	 visits	 and	
being	sad	and	disappointed	time	after	time.			
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mother’s	care	for	over	two	years	and	need	“protection	and	permanency.”		The	

elder	 child	 is	 “[e]xhausted”	 by	 the	 failed	 reunification	 process	 and	 wishes	 to	

be	 adopted.	 	 The	 younger	 child	 needs	 stability.	 	 Both	 children	 have	 bonded	

with	the	foster	parents,	who	are	willing	to	adopt	them.			

	        [¶4]		Given	these	and	other	findings	of	fact,	all	of	which	are	supported	

by	competent	evidence	in	the	record,	the	court	adequately	explained	how	the	

mother	 is	 unwilling	 or	 unable	 to	 take	 responsibility	 for	 the	 children	 despite	

receiving	 eighteen	 months	 of	 reunification	 services	 and	 support	 from	 the	

Department.	 	 Although,	 as	 she	 points	 out,	 the	 mother	 recently	 became	 more	

consistent	in	attending	counseling	and	in	making	phone	calls	to	the	children,	

the	 court	 did	 not	 err	 in	 considering	 her	 lengthy	 history	 of	 unsuccessful	

reunification	efforts.2		In	re	B.P.,	

,	

	(explaining	

that	there	is	a	limited	time	available	for	reunification	efforts	and	“[i]n	setting	

[the	statutory]	clock,	the	Legislature	has	spoken	in	terms	of	days	and	months,	

rather	 than	 in	 years”	 (quotation	 marks	 omitted)).	 	 Nor	 did	 the	 court	 err	 or	

   2	 	 Contrary	 to	 the	 mother’s	 contention,	 the	 Department’s	 decision	 to	 suspend	 visits	 with	 the	

children	 after	 the	 mother	 exhibited	 a	 pattern	 of	 nonattendance	 for	 the	 vast	 majority	 of	 these	
proceedings	did	not	amount	to	a	failure	to	facilitate	reunification.		See	In	re	Alexander	D.,	

,	

	(“The	mother’s	engagement	in	court-ordered	services	had	to	be	balanced	
against	 the	 Department’s	 efforts	 to	 protect	 the	 best	 interest	 of	 the	 children,	 and	 to	 complete	 the	
children’s	 transition	 into	 a	 permanent	 situation	 in	 a	 timely	 manner.”);	 see	 also	 In	 re	 Denise	 M.,	

,	394	n.8	(Me.	1996)	(“Although	we	find	here	no	lack	of	good	faith	in	the	reunification	
effort,	 .	 .	 .	 [t]here	 is	 no	 [statutory]	 indication	 .	 .	 .	 that	 failure	 by	 the	 department	 to	 meet	 its	
reunification	 obligation	 will	 preclude	 termination	 of	 parental	 rights	 .	 .	 .	 if	 the	 [requisite]	 factual	
findings	.	.	.	are	established	by	clear	and	convincing	evidence.”	(citation	omitted)).		
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abuse	its	discretion	in	determining	that	termination	of	the	mother’s	parental	

rights	with	a	permanency	plan	of	adoption	is	in	the	children’s	best	interests.3		

See	In	re	Thomas	H.,	

,	

.	

	         [¶5]		The	mother	also	contends	that	the	court	violated	her	right	to	due	

process	by	ordering	the	termination	of	her	parental	rights	when	the	GAL	had	

exceeded	the	three-month	period	in	which	she	was	required	to	have	in-person	

contact	 with	 the	 children	 and	 also	 filed	 a	 late	 report.	 	 See	 U.S.	 Const.	 amend.	

XIV,	§	1;	Me.	Const.	art.	I,	§	6-A;	22	M.R.S.	§	4005(1)(B).		She	argues	that	the	

GAL’s	 failure	 to	 fulfill	 these	 statutory	 duties	 prejudiced	 her.	 	 The	 court,	

however,	acted	at	the	mother’s	request	to	prevent	any	prejudice	by	excluding	

the	GAL’s	testimony	and	the	untimely	report	at	the	termination	hearing.		Cf.	In	

re	 Kaleb	 C.,	 

,	 ¶	 4	 n.2,	 

	 (explaining	 that	 the	 GAL’s	

deficient	 performance	 did	 not	 affect	 the	 outcome	 of	 the	 termination	

proceedings).		The	mother	points	to	no	concrete	prejudice	resulting	from	the	




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     	 The	 mother	 contends	 that	 the	 court	 abused	 its	 discretion	 in	 making	 its	 best	 interest	
determination	 because	 it	 improperly	 relied	 upon	 the	 opinions	 and	 fourth	 report	 of	 the	 GAL	
although	 it	 had	 excluded	 the	 GAL’s	 testimony	 and	 that	 untimely	 report.	 	 We	 find	 this	 argument	
unpersuasive.		The	findings	the	mother	points	to	as	stemming	from	the	fourth	report	are	supported	
elsewhere	 in	 the	 record,	 including	 the	 testimony	 of	 a	 caseworker	 and	 the	 GAL’s	 earlier,	 properly	
admitted	reports.		To	the	extent	that	the	findings	supporting	the	court’s	discretionary	best	interest	
determination	 are	 contradicted	 by	 other	 evidence	 in	 the	 record,	 it	 was	 “the	 trial	 court’s	 role	 to	
weigh	 and	 credit	 the	 evidence	 before	 it”	 and	 to	 accept	 and	 reject	 the	 evidence	 presented.	 	 In	 re	
Scott	S.,	

,	

.		
                                                                                                                 5	

court’s	 evidentiary	 rulings.4	 	 Moreover,	 based	 on	 the	 court’s	 supported	

findings	that	the	mother	had	failed	to	progress	in	reunifying	with	the	children	

over	a	significant	period	of	time	and	had	exhibited	“a	reckless	disregard”	for	

the	 children’s	 emotional	 well-being,	 the	 court’s	 termination	 of	 the	 mother’s	

parental	 rights	 was	 narrowly	 tailored	 to	 serve	 the	 compelling	 government	

interest	in	achieving	permanency	for	the	children.		See	22	M.R.S.	§§	4003(4),	

4055(1)(B)(2)(b)	(2016);	In	re	Thomas	H.,	

,	

;	In	re	Richard	G.,	

,	

.	

	        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-2015-23	
FOR	CLERK	REFERENCE	ONLY	




    4	
     	 The	 mother	 also	 argues—paradoxically,	 see	 supra	 n.3—that	 the	 absence	 of	 testimony	 and	
recent	 reports	 of	 the	 GAL	 prejudiced	 her.	 	 There	 is	 no	 indication	 that	 the	 admission	 of	 the	 fourth	
report,	 which	 contained	 the	 GAL’s	 most	 up-to-date	 observations	 and	 recommendations	 as	 to	 the	
children’s	best	interest,	would	have	altered	the	outcome	of	these	proceedings	as	it	was	consistent	
with	testimonial	and	other	evidence	on	which	the	court	properly	relied	in	reaching	its	unfitness	and	
best	interest	determinations.