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Ashley S., attorneys and footnotes

Attorney for appellant:

Verne E. Paradie Jr., Esq.
Gosselin, Dubord & Rabasco, P.A.
P O Box 1081
Lewiston, ME 04243-1081

Attorneys for appellee:

Andrew Ketterer, Attorney General
Carmen L. Coulombe, Asst. Attorney General
LaTonya Hayes, Asst. Attorney General
Nancy Henry, Asst. Attorney General
Matthew Pollack, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Guardian ad Litem:

J. Lawrence Irwin, Esq.
P O Box 1203
Lewiston, ME 04243-1203

Attorney for mother:

David Veilleux, Esq.
P O Box 655
Lewiston, ME 04243-0655
FOOTNOTES******************************** {1} . Because only the father appeals the court's judgment, the facts are recited to the extent that they are relevant to his appeal. {2} . The medical examiner testified that, although Sudden Infant Death Syndrome had been ruled out, the cause of death had not yet been established. {3} . The father received over $600 per month in Social Security benefits based on his temper disorder, and less than four months before Ashley was removed from his custody, he had received an additional $11,000 in retroactive benefits. The family supplemented his income with the mother's TANF benefits and income from her job. There also was testimony that the parents had previously been offered a full range of services in an unrelated matter with the DHS and had demonstrated that they had the skills to maintain a clean and safe environment for their children. {4} . The court need only find one of these grounds for relieving the Department of its reunification responsibilities. In re Misty B., 2000 ME 67, ¶ 11, 749 A.2d 754, 757-58; 22 M.R.S.A. § 4041(2)(A-1) (Supp. 2000). {5} . Prior to the addition of the "aggravating factor" language in 1997, the Act permitted DHS to forego reunification efforts based upon several discretionary, statutorily defined grounds. 22 M.R.S.A. § 4041(2)(A) (1992), repealed by P.L. 1997, ch. 715, § B-11. Section 4041(2), entitled "Determination of need to commence or discontinue rehabilitation and reunification efforts," provided, in relevant part: A. The department may either decide to not commence or to discontinue rehabilitation and reunification efforts with either parent or the court may order that rehabilitation and reunification efforts need not commence or that the department has no further responsibilities for rehabilitation and reunification with either parent when: (1) The parent is willing to consent to termination of parental rights; (2) The parent cannot be located; (3) The parent is unwilling or unable to rehabilitate and reunify with the child within a time which is reasonably calculated to meet the child's needs; (4) The parent has abandoned the child; (5) The parent has acted toward a child in a manner which is heinous or abhorrent to society or has failed to protect a child in a manner which is heinous or abhorrent to society, without regard to the intent of the parent; or (6) The victim of any of the following crimes was a child for whom the parent was responsible or the victim was a child who was a member of a household lived in or frequented by the parent and the parent has been convicted of: (a) Murder; (b) Felony murder; (c) Manslaughter; (d) Aiding or soliciting suicide; (e) Aggravated assault; (f) Rape; (g) Gross sexual misconduct; (h) Sexual abuse of minors; (i) Incest; (j) Kidnapping; (k) Promotion of prostitution; or (l) A comparable crime in another jurisdiction. Id. (emphasis added). {6} . The Act also provides courts with the discretion to relieve the Department of its reunification efforts if the parent has been convicted of certain crimes and the victim was a child in the parent's household; the parental rights of the parent to the child's sibling have been terminated involuntarily; or the parent has abandoned the child. 22 M.R.S.A. § 4002(1-B) (Supp. 2000). These provisions closely follow the language used in title 42, section 671 of the United States Code, which provides monetary assistance to states for expenditures related to "foster care and adoption assistance": In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which-- . . . . (15) provides that-- . . . . (D) reasonable efforts [to preserve and reunify families] shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that-- (i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definitions may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse); (ii) the parent has -- (I) committed murder . . . of another child of the parent; (II) committed voluntary manslaughter . . . of another child of the parent; (III) aided or abetted . . . to commit such [murder or voluntary manslaughter]; or (IV) committed a felony assault . . . ; or (iii) the parental rights of the parent to a sibling have been terminated involuntarily[.] 42 U.S.C.A. § 671 (West 2000). {7} . The laws of most states, pursuant to the Adoption and Safe Families Act of 1997, contain the "aggravated circumstances" language. Because Congress left it to the states to define what "aggravated circumstances" means, a wide variety of approaches has been found among the states. See, e.g., Conn. Gen. Stat. Ann. § 17a-111b(a) (West 2000); Iowa Code Ann. § 232.102(12) (West 2000); Neb. Rev. Stat. Ann. § 43-282.01(4) (Michie 2000); 42 Pa. Cons. Stat. § 6302 (2000); W. Va. Code Ann. § 49-6-5 (a)(7)(A) (Michie 2000). {8} . Although the Legislature has not defined "heinous or abhorrent to society," our interpretation of that phrase is guided, in part, by the legislative history of this language. In 1985, the Legislature first added the phrase "heinous or abhorrent to society" to the Act and stated, in relevant part: It is the intent of the Legislature that the court shall determine what circumstance constitutes a heinous or abhorrent parental act or failure to act. The Legislature intends the court to use its best judgment in making this determination according to generally accepted standards and mores of performance, behavior and responsibility in this culture; particularly in regard to the performance, behavior and responsibility of parents toward their children . . . . P.L. 1985, ch. 739, § 18. {9} . The parents had moved approximately eighteen times by the time Katie was six years old. {10} . It is also instructive that the "heinous or abhorrent" language was once part of a separate paragraph, unrelated to the list of crimes, but was consolidated with an abbreviated list of crimes when the Legislature enacted subsection 4002(1-B)(A) in 1997. {11} . For the same reasons, the court did not err when it found that reunification efforts would be inconsistent with Ashley's permanency plan. 22 M.R.S.A. § 4041(2)(A-1).

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