In re Nicole M.

187 A.3d 1

IN RE CHILDREN OF NICOLE M.

Docket: Lin–17–286

Supreme Judicial Court of Maine.

Submitted On Briefs: January 11, 2018

Decided: June 12, 2018

Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant mother

Nathaniel Seth Levy, Esq., Brunswick, for appellant father

Janet T. Mills, 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, HJELM, and HUMPHREY, JJ.

HJELM, J.

[¶ 1] The parents of three children appeal from a judgment of the District Court (Wiscasset, Raimondi, J .) terminating their parental rights to the children. Although the parents do not challenge the court's conclusion that they are unfit within the meaning of 22 M.R.S. § 4055(1)(B)(2)(b) (2017), they contend that the court erred by determining that termination is in the children's best interests, see 22 M.R.S. § 4055(1)(B)(2)(a) (2017), because the court also ordered a permanency plan that includes either adoption or a permanency guardianship. Given the court's findings regarding the circumstances and best interests of the children, the court did not err by terminating the parents' rights to them while also approving a permanency guardianship as a possible permanency plan. We therefore affirm the judgment.

I. BACKGROUND

[¶ 2] The following facts, which are supported by the evidence, are drawn from the court's judgment and the procedural record. See In re Dominyk T. , 2017 ME 222, ¶ 5, 173 A.3d 1065.

[¶ 3] The Department of Health and Human Services became involved with this family in January of 2016 when one of the children was rushed to the hospital after suffering seizures. Ultimately, that child and one of the other children were diagnosed with "failure to thrive" as a result of the parents' life-threatening failure to feed them adequately. Several weeks after the first child was hospitalized, the Department filed a child protection petition as to all three children, and in late February, the three children were placed with their paternal grandmother pursuant to a safety plan. In April of 2016, with the agreement of the parents, the court entered a jeopardy order placing the children in the Department's custody and ordering that the children continue to live with the grandmother.

[¶ 4] Both parents have learning disabilities, and the mother also has cognitive impairments and suffers from depression. Neither parent has meaningful insight into the reasons why the children are in foster care, nor has either parent adequately participated in court-ordered diagnostic and therapy services or in their children's doctor appointments. The parents initially missed so many visits that the visits were suspended for a time. When visits eventually resumed, the quality of the parents' interactions with the children was concerning until the last few weeks before the termination hearing, when the visits went better. The parents love their children and want to reunite with them, but their personal difficulties have contributed to their failure to "understand, let alone provide[,] the steps necessary to foster a home environment that eliminates the threat of jeopardy and support[s] the nurturing and well-being of their children."

[¶ 5] Since coming to live with the grandmother, the condition of the two children who had failed to thrive improved "spectacularly," and all three children are doing very well in her care. The grandmother supports the parents' continued involvement with the children and is willing to either serve as the children's permanency guardian or adopt them.

[¶ 6] A year after the children came into its custody, the Department filed a petition to terminate the parents' rights to the children, and in May of 2017, the court held a three-day consolidated hearing on the termination petition and on a permanency plan for the children. The next month, the court issued a judgment terminating both parents' parental rights. The court found by clear and convincing evidence that both parents are unfit because they are unable or unwilling to protect the children from jeopardy and would not do otherwise within a time reasonably calculated to meet the children's needs; they are unwilling or unable to take responsibility for the children within a time reasonably calculated to meet the children's needs; and they did not make a good faith effort to rehabilitate and reunify with the children. See 22 M.R.S. § 4055(1)(B)(2)(b).

[¶ 7] The court also concluded that termination is in the children's best interests because of the stability and care provided to them by the grandmother as well as her "tireless" advocacy for their interests. In making these best interest determinations, the court considered the children's greatly improved condition while in the grandmother's "excellent care"; the successful integration of the children into the grandmother's family, which includes four other children; and the grandmother's effectiveness in assisting the parents to "maintain their attachment to the children" and her continued willingness to do so. The court also credited the strong support from the children's guardian ad litem for continued placement with the grandmother.

[¶ 8] In its judgment, the court also established the permanency plan for the children. See 22 M.R.S. § 4038–B (2017). After recognizing the policy found in statutes and case law that favors permanence for children, the court stated that it had "no difficulty in finding that the plan of either permanency guardianship or adoption is clearly in the best interest of [the children] so that they may have permanency with their paternal grandmother in the stable and nurturing environment where they have been placed during the pendency of this action." The court recognized that the grandmother had applied with the Department to be licensed as a foster parent but that the application was denied because of the Department's concerns with the grandmother's domestic partner. The court stated that it was not bound by that administrative decision, however, and found explicitly "that continued placement with [the grandmother] is in the best interest of these children."

[¶ 9] Both parents appealed from the termination order. See M.R. App. P. 2(b)(3) ; 2(b)(5) (Tower 2016).¹

II. DISCUSSION

[¶ 10] On this appeal, the parents do not contest the court's determination that they are unfit as the children's parents. Rather, they challenge only the court's determination that termination is in the children's best interests, given the court's finding that their best interests would also be served if they continued to live with the grandmother as a permanency guardian.

[¶ 11] Because the predicate of the parents' challenge to the termination order is the permanency plan that would provide for either a permanency guardianship or an adoption, the scope of this appeal must be established with clarity. Although an appeal can be taken from a termination order, a permanency plan order is treated by operation of statute as an interlocutory order and is therefore not itself appealable. 22 M.R.S. § 4006 (2017). Consequently, the parents' appeal cannot be used as a vehicle to directly challenge the permanency plan ordered by the court. Rather, the cognizable question presented here is whether one of the necessary predicates to a termination order, namely, that termination is in the best interest of the child, see 22 M.R.S. § 4055(1)(B)(2)(a), is compatible with a determination that a permanency guardianship also is in the child's best interests.

[¶ 12] "We review the court's factual findings related to the child's best interest for clear error," In re Thomas H ., 2005 ME 123, ¶ 16, 889 A.2d 297, and its "ultimate conclusion [regarding the child's best interest] for an abuse of discretion, viewing the facts, and the weight to be given them, through the trial court's lens," In re Cameron B. , 2017 ME 18, ¶ 11, 154 A.3d 1199 (quotation marks omitted). "Upon review for an abuse of discretion, we ask three questions: (1) whether factual findings, if any, are supported by the record pursuant to the clear error standard; (2) whether the court understood the law applicable to its exercise of discretion; and (3) given the facts and applying the law, whether the court weighed the applicable facts and made choices within the bounds of reasonableness." Hutt v. Hanson , 2016 ME 128, ¶ 15, 147 A.3d 352 (quotation marks omitted) (alteration omitted).

[¶ 13] Pursuant to Maine's Child and Family Services and Child Protection Act, a court is required to periodically order a permanency plan during the lifetime of a child protection proceeding, subject to certain exceptions that are not presently applicable.² 22 M.R.S. § 4038–B(1). When a court creates a permanency plan for a child, the court "must determine whether and when, if applicable," one of five plans will be implemented. Id. § 4038–B(4). The following permanency plans are authorized by statute:

• returning the child to a parent;

• placing the child for adoption;

• placing the child in the care of a permanency guardian pursuant to 22 M.R.S. § 4038–C (2017) or a guardian appointed by a probate court;

• placing the child with "a fit and willing relative"; or

• in narrowly drawn circumstances, placing the child in "another planned permanent living arrangement."

Id. § 4038–B(4)(A)(1)–(5).

[¶ 14] Here, the permanency plan for the children called for either adoption or appointment of a permanency guardian. The court explicitly framed that plan in terms of "permanency with ... [the] grandmother in the stable and nurturing environment where [the children] have been placed during the pendency of this action." (Emphasis added.) This specific and essential aspect of the court's best interest analysis requires us to consider how it interrelates with the court's concurrent determination that termination is in the children's best interests.

[¶ 15] As a general matter, a ...