In re Isabelle T.

175 A.3d 639

ADOPTION OF ISABELLE T. et al.

Docket: Pen–17–237

Supreme Judicial Court of Maine.

Argued: October 11, 2017

Decided: November 30, 2017

Wayne Doane, Esq. (orally), Exeter, for appellant father

Kerry Clark Jordan, Esq. (orally), Griffin & Jordan, LLC, Orono, for appellees mother and stepfather

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

PER CURIAM

[¶ 1] The father of Isabelle and Abigail T. appeals from a judgment of the Penobscot County Probate Court (M. Bradford , J. ) terminating his parental rights in anticipation of an adoption pursuant to 18–A M.R.S. § 9–204(b) (2016) ; 22 M.R.S. § 4055(1)(A)(2), (B)(2)(a), (B)(2)(b)(i), (B)(2)(b)(iii), and (1–A)(B)(8) (2016). He challenges the sufficiency of the evidence to support the judgment, including the court's findings of parental unfitness and that termination of his parental rights is in his children's best interests. See 18–A M.R.S. § 9–204(b) ; 22 M.R.S. § 4055(1)(B)(2), (1–A) (B)(8).

[¶ 2] Because the record, in a case where fundamental constitutional rights are at issue, does not include sufficient evidence regarding parental unfitness, the best interests of the children, and the history of the prospective adopting parent, because the court improperly excluded the father's testimony regarding his future plans for reunification with his children, and because the court erred and abused its discretion in concluding that termination of the father's parental rights is in the children's best interests, we vacate the judgment.

I. LEGAL STANDARDS FOR TERMINATING PARENTAL RIGHTS INCIDENT TO ADOPTION

[¶ 3] Examination of the issues in this appeal must begin with a review of the substantive and procedural requirements for a termination of parental rights incident to an adoption proceeding. When a private individual invokes court action to terminate parental rights or otherwise significantly limit a parent's rights to parent a child, the court engages in state action that implicates the constitutionally protected liberty interest a parent has in parenting his or her child free from state interference.

A. Constitutional Requirements

[¶ 4] "The liberty interest ... of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests ...." Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We have consistently recognized that a biological parent has a fundamental liberty interest in parenting his or her child. Adoption of Tobias D. , 2012 ME 45, ¶ 9, 40 A.3d 990. The Due Process Clause of the Fourteenth Amendment protects this liberty interest from unnecessary state interference.¹ U.S. Const. amend. XIV, § 1 ; Me. Const. art. I, § 6–A ; see Troxel , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ( "[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."); Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (to interfere with a parent's fundamental right to parent, the state must provide fundamentally fair procedures).

[¶ 5] These requirements apply to actions in state courts, including the probate courts. See Guardianship of Chamberlain , 2015 ME 76, ¶ 23, 118 A.3d 229 (extensively discussing application of proper standards to protect fundamental parental rights in probate court proceedings affecting parental rights—there in a guardianship proceeding). See also In re H.C. , 2013 ME 97, ¶ 11, 82 A.3d 80 ; In re Randy Scott B. , 511 A.2d 450, 453 (Me. 1986).

[¶ 6] The fundamental right to parent one's child is not, however, immune from government interference. See Pitts v. Moore , 2014 ME 59, ¶ 12, 90 A.3d 1169 (action to establish de facto parent status); Rideout v. Riendeau , 2000 ME 198, ¶ 19, 761 A.2d 291 (action to establish grandparents' rights). A state may interfere with a parent's fundamental right to parent a child when the court makes a finding, by clear and convincing evidence, that the parent is unfit and the child's best interest will be served by state intervention to avoid harm to the child. In re Cody T. , 2009 ME 95, ¶ 25, 979 A.2d 81 ; see In re A.M. , 2012 ME 118, ¶ 16, 55 A.3d 463 ; In re Robert S. , 2009 ME 18, ¶¶ 13–15, 966 A.2d 894.

[¶ 7] "When the State does interfere with the fundamental right to parent, we must evaluate that interference with strict scrutiny—the highest level of scrutiny—which requires that the State's action be narrowly tailored to serve a compelling state interest." Pitts , 2014 ME 59, ¶ 12, 90 A.3d 1169. Pursuant to this standard, only the most exceptional circumstances or risks to a child's welfare allow the state to intrude upon a parent's fundamental right to the care and control of his or her child. See id. ; Rideout , 2000 ME 198, ¶ 24, 761 A.2d 291.

B. Adoption and Child Protection Statutes

[¶ 8] Section 9–204(b) of the Adoption Act, 18–A M.R.S. §§ 9–101 to 9–315 (2016), which governs termination of parental rights in adoption proceedings, incorporates by reference 22 M.R.S. §§ 4050 – 4059 (2016), which governs termination of parental rights in child protection proceedings. 18–A M.R.S. § 9–204(b) (2016). Thus, the same statutory protections and requirements that apply to state-initiated proceedings to terminate parental rights also apply to privately initiated proceedings to terminate parental rights. See Adoption of Lily T. , 2010 ME 58, ¶ 20, 997 A.2d 722 ; In re Jacob B. , 2008 ME 168, ¶ 13, 959 A.2d 734.

[¶ 9] The Adoption Act provides that "[a] petition for termination of parental rights may be brought in Probate Court in which an adoption petition is properly filed as part of that adoption petition ...." 18–A M.R.S. § 9–204(a).² In practice, this means that the termination of parental rights occurs prior to the adoption in order to enable the child or children to be legally available for adoption. See Adoption of Hali D. , 2009 ME 70, ¶ 1, 974 A.2d 916. This is consistent with practice in Title 22 proceedings for the termination of parental rights where the court does not begin to consider post-termination placements until after termination of parental rights has been ordered. See In re Kenneth S. , 2017 ME 45, ¶ 6, 157 A.3d 244.

[¶ 10] Thus, theoretically, before the trial court considers the background and the qualities of a prospective adopting parent, the court could terminate the parental rights of a biological parent. However, in an adoption proceeding, unlike a Title 22 proceeding to terminate parental rights, the prospective adoptive parent is identified. In fact, his or her interest in adoption is the reason the action was initiated. Because the prospective adoptive parent is identified in a Title 18–A private adoption proceeding, the background and qualities of the prospective adoptive parent are essential factors to consider in deciding whether termination of parental rights leading to adoption by that individual is in the best interests of the child or children.³

[¶ 11] There is no state assertion of parental unfitness in private termination/adoption proceedings, and the Adoption Act provides fewer protections for parents than those provided in Title 22 child protection proceedings. Individuals facing the loss of their rights in Title 22 termination of parental rights proceedings are nearly always provided opportunities for rehabilitation and reunification before a court even considers the termination of their parental rights. See In re Heather C. , 2000 ME 99, ¶ 4, 751 A.2d 448 ("In the ordinary course, as soon as the child has entered foster care as a result of a court order, the [State] is required to begin providing rehabilitation services to the parents."); In re Thomas D. , 2004 ME 104, ¶ 26, 854 A.2d 195 ("[T]he rehabilitation and reunification plan is the centerpiece of child protective proceedings following a jeopardy determination ... [and] seek[s] to rehabilitate the conditions that resulted in jeopardy to the child ....").

[¶ 12] The Adoption Act, on the other hand, does not require—or even authorize—the court to consider rehabilitation or reunification efforts prior to terminating parental rights. See Adoption of L.E. , 2012 ME 127, ¶ 13, 56 A.3d 1234 ; compare 22 M.R.S. § 4041 (2016) (stating the obligations of the Department of Health and Human Services to pursue rehabilitation and reunification efforts in child protection matters) with 18–A M.R.S. § 9–204(b) (incorporating by reference 22 M.R.S. §§ 4050 – 4059 and not referencing 22 M.R.S. § 4041 ). A termination action litigated as part of a "private adoption," where the adoption petitioner—often one parent—seeks to terminate the parental rights of a nonconsenting parent to facilitate an adoption, requires only that the petitioner prove that the grounds for termination have been met in order for the court to permanently terminate that parent's legal rights to his or her child. See Adoption of L.E. , 2012 ME 127, ¶¶ 12–13, 56 A.3d 1234.

[¶ 13] In a Title 22 child protection proceeding, the question of termination is addressed only after a court has decided that the parent's unfitness is so dire that the children must be removed from his or her care. And, even in those circumstances, the parent is nonetheless usually offered multiple opportunities to better his or her parenting abilities and reunify with the children through court-ordered and state-provided services.

[¶ 14] In the private adoption context, as is the case here, where there has been no previous determination of unfitness, a parent can have his or her parental rights terminated without any opportunities for rehabilitation or reunification. Thus, application of the Adoption Act, as written, poses a substantial risk to fundamental parental rights that the court must respect by rigorous application of quality of evidence standards and procedural protections as we have articulated in...