In re Corey B.

223 A.3d 462

IN RE CHILD OF COREY B.

Docket: Ken-19-296

Supreme Judicial Court of Maine.

Submitted On Briefs: December 17, 2019

Decided: January 7, 2020

Julian Richter, Esq., Richter Law, LLC, Gardiner, for appellant father

Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

PER CURIAM

[¶1] Corey B. appeals from a judgment of the District Court (Waterville, Montgomery, J. ) terminating his parental rights to his child. The father challenges the court's findings that he was unable to take responsibility for the child within a time reasonably calculated to meet the child's needs, see 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii) (2018), and that termination of his parental rights is in the child's best interest, see id. § 4055(1)(B)(2)(a) (2018). In addition, he alleges that the court violated his constitutional rights. We affirm the judgment.

I. BACKGROUND

[¶2] On July 6, 2017, when the child was two years old, the Department of Health and Human Services filed a petition for a child protection order. See id. § 4032 (2018). The mother agreed to a finding of jeopardy (Stanfill, J. ) on October 25, 2017, and the father agreed to a finding of jeopardy on January 30, 2018. See id. § 4035 (2018). On November 8, 2018, the Department filed a petition to terminate the mother's¹ and father's parental rights. See id. § 4052 (2018). After a two-day hearing on March 29, 2019, and May 9, 2019, see id. § 4054 (2018), the court (Montgomery, J. ) entered a judgment terminating the father's parental rights to the child.

[¶3] The court made the following findings of fact, which are supported by competent record evidence. See In re Child of Kimberly K. , 2019 ME 145, ¶ 4, 217 A.3d 63.

[The child] was born drug-affected .... At that time, [the father] was incarcerated. He was released from prison on March 8, 2017[,] with three years' probation. Shortly thereafter, [the mother] was arrested for Domestic Violence Assault, and she faced a full probation revocation. [She] placed [the child] with her mother .... At some point thereafter, [the child] began staying with [the father] at [the father's] mother's home.

....

By mid-June 2017, [the mother and father] indicated their intent to reconcile and live together in an apartment [the mother] had secured. DHHS asked the couple to participate in random drug screening, but both parents failed to go. On June 29, 2017, [the mother] overdosed on heroin. [The child] was with her at that time. In fact, [the father] was also initially present at [the mother's] residence, but he left her residence because [she] was using. Despite knowing that she was using drugs, [the father] left [the child] there with [the mother]....

... [The father] was taken by police to the hospital in early September 2017 for a possible overdose. [The father] admitted to using heroin at that time. In early November, [the father's probation officer] reported that [the father] was living with several other people in an apartment where there were mattresses lined up on the floor. The Department was unable to make any contact with [the father] throughout November and December 2017. In mid-December 2017, [the father's] requested paternity test result showed him to be [the child's] father.

[The child] entered foster care [in October 2017]. He was placed with ... his maternal grandmother. By April 3, 2018, DHHS reported that [the child] had achieved stability and had begun to show more age-appropriate behaviors. He was enrolled in child care where he received socialization, structure and exercise.

On January 30, 2018, [the child's father] agreed to Jeopardy, and he began to make efforts toward reunification with [the child]. As part of the reunification plan, he agreed to participate in services to address his mental health issues and significant substance abuse. [The father] also completed drug screens through probation, consistently testing positive for marijuana use (for which he had a card) and for Suboxone, for which he did not have a prescription. He did not, however, participate in the recommended random drug screens through DHHS.

[The father] agreed to participate in the MEPP [Maine Enhanced Parenting Project] program, but his consistent marijuana use was a potential obstacle in the MEPP abstinence program....

Despite the marijuana use and [a] transportation problem, [the father] did well in MEPP. He was reportedly forthright, open to suggestions and fully participating in groups. He was set to graduate in July 2018. He was employed full time and doing well at his job. He moved into Serenity House, so his living situation was more stable (although not appropriate for [the child] ). He was working toward obtaining permanent housing. He was attending weekly visits with [the child], for which he was appropriately prepared .... The visits were going very well....

[The father] completed the MEPP IOP [Intensive Outpatient Program] and parenting sessions in July 2018. He remained sober while in the program—with the exception of marijuana use—and worked to decrease that as well. At the same time, he was doing very well with his probation conditions. Although recommended, however, [the father] did not engage in follow-up counseling at Crossroads when he graduated from MEPP. He did begin seeing [a physician who specializes in addiction] for Suboxone treatment.

Beginning in mid-August, [the father's] visits with [the child] were increased from two hours to four hours and thirty minutes. The longer visits seemed to go very well.

During the month of September 2018, although he had visited with [the child] consistently up to that point, [the father] began missing visits....

In mid-October, [the father] was involuntarily discharged from his Suboxone treatment .... One of [the father's] drug tests was positive for alcohol and Opana (oxymorphone, an opiate). While [the father] readily admitted to using alcohol, he vehemently denied using opiates. Believing the positive test results were legitimate and not the result of lab error, [his physician] discharged [the father] from the Suboxone treatment. Likewise, as a consequence of having missed ... three visits in September, [the father's] visitation was suspended in November 2018.

[The child] continued to make positive strides in his placement. He had difficulty, however, with regulating his own emotions and behaviors. He was referred to child development and counseling services.

At the January 22, 2019[,] [Facilitated Family Team Meeting], [the father] reported that he had started counseling at Crossroads. He had lost his job but was looking for a new one. He was not back in Suboxone treatment but reported that he was doing well without it. He continued to comply with the conditions of his probation with the exception of losing his job and failure to find stable housing.

In essence, DHHS seeks to terminate [the father's] parental rights to [the child] for several reasons related to his own consistency and stability. First, the Department contends that [the father] missed enough visits with [the child] in September 2018 to result in suspension of visitation. In fact, even once visits were reinstated in January 2019, he missed two more. By the time of hearing, [the father] had not seen [the child] since February 8, 2019.

Additionally, since July 2017, [the father] had several housing arrangements—some with family, some with friends—none of which would accommodate [the child]. Moreover, he contended at hearing that his grandmother had room for both he and [the child] and that he was moving there. Although his grandmother confirmed that he could stay at her home with [the child], [the father] had not taken the steps necessary to finalize that move. In fact, the record evidence showed that [the father] knew from the time of his release from prison that stable housing was a significant factor in reunification. A year and nine months after [the child] entered foster care, however, [the father] is still without a track record of living in a stable home environment for more than a few months.

Finally, [the father's] employment situation has also been inconsistent. While [the father] has been fairly dedicated to looking for and obtaining employment, he has not consistently maintained employment for more than a few months at a time since he was released from prison.

While the court acknowledges and commends [the father] on his extended sobriety as to opiates, along with the progress he has made to be "comfortable in [his] own skin," [the father] has not yet achieved the kind of stability and consistency in his own life to nurture and care for [the child].

....

... In short, the court finds by clear and convincing evidence that the first two statutory definitions of parental unfitness are established with respect to [the father].

....

[The child] continues to reside with his maternal grandmother, her partner, and ... his 13-year-old half-brother. Although the home is small and the boys must share a room, [the child] has clearly benefitted from the routine and stability established there. He is a happy and active four-year-old boy who continues to show very good development. He speaks much more clearly and has increased his vocabulary. He responds well to redirection but still struggles some with aggressive behavior toward other children. The court does not doubt that a safe, loving, and stable home is in [the child's] best interest.

II. DISCUSSION

A. The Father's Unfitness

[¶4] The father argues that at the time of the termination hearing, he was willing and able to alleviate jeopardy and take responsibility for the child. We set aside a trial court's finding of unfitness based upon clear and convincing evidence "only if there is no competent evidence in the record to support it, if the fact-finder clearly misapprehends the meaning of the...