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In re Alexander D.
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Decision:		1998 ME 207
Docket:		And-97-678
on briefs:		June 10, 1998
Decided :		August 11, 1998




	[¶1]  The mother of Alexander D. and Mason D. appeals from a
judgment entered in the District Court (Lewiston, Gorman, J.) terminating
her parental rights to those children, and from the court's denial of her
motion to alter and amend the judgment.  The mother contends: (1) that
the court's refusal to hear her motion for judicial review prior to and
separate from the hearing on the motion for termination violated her rights
to due process; (2) that the court erred in concluding that the
circumstances relating to what the court found to be her inability to protect
the children from jeopardy were unlikely to change within a time reasonably
calculated to meet the children's needs; (3) that the court erred in finding
that she is unable or unwilling to take responsibility for the children within
a time reasonably calculated to meet their needs; (4) that the court
penalized her for refusing to admit that she was the perpetrator of abuse on
the children; and (5) that the court impermissibly ignored evidence
demonstrating that she was caring for her recently born child without
jeopardy to that child.  Finding no error or abuse of discretion, we affirm the
	[¶2]  Alexander was born in January of 1988 and Mason in March of
1992.{1}  The evidence reflected that the children had suffered inadequately
explained injuries.  In August 1994, the mother had taken Alexander to the
hospital with a swollen right testicle and broken nose, injuries that were
determined to be four days old.  In November 1994, Alexander was taken to
the hospital for another nose injury, that the mother explained was caused
by being hit by a ball.  Alexander, however, did not say that he was hit by a
ball.  In December 1994, Alexander was hospitalized for a laceration to the
forehead, that the mother indicated (and Alexander reported to the treating
doctor) occurred when he struck his head on a bookcase at school. 
According to the school guidance counselor, however, no such injury
occurred at school.
	[¶3]  In February of 1995, Mason was hospitalized for a laceration to
his forehead.  The treating doctor found multiple bruises to his head, neck,
stomach, penis, and buttocks, determined to have been "inflicted injuries." 
The mother indicated that the injuries were caused by Alexander hitting
Mason in his sleep, and that the injuries occurred when she left them with
Alexander's father while she was on a business trip.  Alexander's father,
however, reported that there were no bruises when the mother picked the
children up, and that he did not see them until the mother dropped Mason
off at his house the next day.  He reported that, at the time, the mother
made no accusation that he inflicted the injuries. 
	[¶4]  The court issued a preliminary protection order on February 9,
1995, placing the children in the custody of the Department.  On March 13,
1995, the court found there was evidence of severe abuse and injuries and
that both parents blamed the other parent.  The court could not determine
with any degree of certainty who was responsible for the injuries, but
concluded that both parents failed to take necessary steps to protect their
children from the abuse they had suffered.  One month after they were
removed from their mother's care, the boys were placed in a foster home
where, as of the time of the termination order, they had lived for thirty
	[¶5]  In March and April of 1995, the mother, Alexander's father, and
both children underwent psychological evaluations in the Child Abuse
Program at the Spurwink Clinic to investigate the causes of injury to the
children and to determine if either parent posed jeopardy to them.  The
Spurwink report concluded:
[the mother] is a woman with average estimated intellectual
ability who has significant strengths in her functioning as a
parent, despite her own history of dysfunctional, abusive, and
neglectful family relationships as a child.  There is no doubt
that she cares deeply about the welfare of her children and
that she wants them to have happy lives.  The personality
testing, however, provides a picture of a woman who on the
one hand may appear quite competent in her social
interactions, while on the other hand she may be an angry
dependent individual who, though usually handling her anger
in a depressive, passive-aggressive manner, at times may in
fact lose control of her impulses and act out inappropriately. 
This tendency toward impulsivity when under stress is the
primary finding pertinent to the question of whether she
presents any risk to her children.
The psychological report strongly recommended that the mother seek
individual psychotherapy.  Although it came to no definitive conclusion, the
evaluation team as a whole, in its summary, stated that the mother was the
more likely perpetrator of the injuries to Mason.
	[¶6]  After a hearing in September of 1995, the court entered a child
protection order finding that the Department had made reasonable efforts to
prevent the need to remove the children from the home, and that they were
in circumstances of jeopardy.  The mother was ordered to engage in
substance abuse evaluation "and follow all recommendations," to engage in
offenders counseling, and to engage in parent education.
	[¶7]  The extent to which the mother followed the September 1995
order was reviewed in hearings preceding the entry of an order in
December 1996 that relieved the Department of its obligation to continue
rehabilitation and reunification efforts with the mother, and that put the
burden on her to make any further steps toward reunification.  
	[¶8]  A substance abuse evaluation of the mother indicated no
observable substance abuse problems, but did indicate a "risk of repeating
Dysfunctional behavior" because of trauma she sustained as a child.  The
mother completed a parenting course in March of 1996, but had sporadic
attendance and virtually no participation.  Some of the professionals
providing service to the mother concluded that she minimized her
responsibility for injuries to the children, even if those injuries occurred
while the children were not in her care.  The guardian ad litem agreed with
the Department's recommendation that reunification efforts cease, because
of the length of time it was taking to create a permanent situation for the
children.  In relieving the Department of its obligation to continue
reunification efforts, the court summarized the testimony:
In virtually all of the long-term child protective cases which
come through this court, one or both of the parents have some
sort of mental or cognitive disability which prevents them from
benefitting from services. . . .  [T]he parents are simply not
capable of acting as competent caretakers.  In [the mother's]
case, although the result may be the same, there is clearly no
disability which prevents her from benefitting from
services. . . .  [She is] exactly the type of client every therapist
hopes for--she is intelligent, articulate, and able to apply
abstract theory to concrete examples.  Yet this "perfect" client
has done little except waste time for the last twenty-two
months.  Because of this waste, the boys are still in foster care,
and their mother is not yet able to protect them.{2}
After the cease reunification order, in keeping with agency policy of moving
toward termination of parental rights and permanence for the children, the
Department decreased visits. 
	[¶9]  The mother married in November 1996, and on March 8, 1997,
had a son.  On March 10, 1997, the mother, alleging that she had made
substantial progress by participating in various programs, filed a motion for
judicial review and to increase the contact she was allowed with Alexander
and Mason.  Shortly thereafter, the Department filed a petition for
termination of parental rights.
	[¶10]  A hearing was held on the mother's motion to increase
visitation on June 26, 1997, but was not completed.  The mother filed a
motion to continue the previously scheduled hearing on termination of
parental rights and requested an expedited completion of the hearing on
her request to increase visitation.  She opposed combining a hearing on
termination of her parental rights with judicial review of her request for
increased visitation.  The court denied the mother's motion to sever the
hearings, stating:
These two boys came into [the State's] care on February 9th,
1995, when they were just seven and nearly three.  Today is
September 23rd, 1997.  They are nine and a half and five and a
half years old. . . .   [S]ome of the delay in this case has been
caused by the court's docket. . . .  The . . . issue of increased
visitation is not one that could be based only on how much
progress has or has not been made by [the mother].  . . . I also
have to take into consideration the children, their needs and
their progress.  And the two issues, . . . are too identical and
too pressing to allow either one of them to wait.
	[¶11]  A hearing on both the motion for judicial review (continued
from June) and the petition for termination occurred on September 23-24,
1997.  The court ordered the mother's parental rights to be terminated,
and this appeal followed the denial of the mother's motion to alter and
amend, filed shortly after the termination order was entered.
	[¶12] The mother argues that the court's combining of the two
hearings violated her right to due process.  She contends that judicial
review{3} of her motion for increased visitation should have been completed
before the termination hearing.  A hearing on the visitation issue might have
resulted in allowing her more visits, which, she argues, she could have used
as evidence at a later termination hearing to substantiate the bond between
her and the children.  She contends that the process that was due to her
was to "fairly allow the proponent of requested relief to present her
evidence in full at a time when relief is available."
	[¶13]  When the state seeks to terminate the relationship between a
parent and child, it must do so by fundamentally fair procedures that meet
the requisites of due process.  In re Randy Scott B., 511 A.2d 450, 452 (Me.
1986).  Due process "is not a static concept; rather, its requirements vary to
assure the basic fairness of each particular action according to its
circumstances." Id. (quoting In re Jo-Nell C., 493 A.2d 1053, 1055 (Me.
1985)).  The "fundamental requirement of due process is an opportunity to
be heard upon such notice and proceedings as are adequate to safeguard the
right which the particular pertinent constitutional provision purports to
protect." McNaughton v. Kelsey, 1997 ME 182, ¶ 6, 698 A.2d 1049, 1052;
see also  Sullivan v. Carignan, 733 F.2d 8, 9 (1st Cir. 1984) ("The essence of
due process is that the party about to suffer a loss be given an opportunity to
be heard 'at a meaningful time and in a meaningful manner.'").  In
determining whether state action violates the due process clause, a court
(1) the private interest that will be affected by the government's
action; (2) the risk of an erroneous deprivation of such an
interest through the existing procedure and the probable utility
of additional or substitute procedural safeguards; and (3) the
government's interest in adhering to the existing procedure,
including the fiscal and administrative burdens that additional
procedures might entail. 
 State v. Stade, 683 A.2d 164, 166 (Me. 1996).  	
	[¶14]  There is no dispute that the mother has a fundamental and
"extremely important" liberty interest in maintaining a familial relationship
with her children.  In re Randy Scott B., 511 A.2d at 452.  The court
concluded, however, that the risk of erroneous deprivation of the mother's
interset was equally balanced by the State's interest in "[p]romot[ing] the
early establishment of permanent plans for the care and custody of children
who can't be returned to their family.'" In re Randy Scott B., 511 A.2d at
453 (emphasis added) (quoting 22 M.R.S.A. § 4003(4) (1992)).  The court
noted that it could not "make decisions based on judicial economy in the
same way that [it] cannot make decisions based only upon the mother's wish.
. . . [T]he two issues, the request . . . by the Department for termination and
the request by the parent for increased visitation are too identical and too
pressing to allow either one of them to wait."
	[¶15]  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.  The court recognized that over thirty months
had passed since the children had come into the Department's care and
that the delay was the partial fault of the crowded docket.  It consciously
combined the hearings, specifically noting that the mother's progress could
not be evaluated without considering the children's needs.  Further, the
mother sought continuances in May and June of 1997, contributing to the
delay.  There was evidence to suggest that the next available block of time
for a two-day hearing was in April of 1998, which would be a further delay of
seven months, leaving the children in a state of limbo for well over three
years.  The September 1997 hearing dates allowed for a full airing of all of
the issues, including those brought forward by the mother, and with
sufficient notice to all parties.  The decision to combine the hearings was
within the court's discretion, and not violative of the mother's rights to due
	[¶16]  The mother contends that the court erred in terminating her
parental rights because the State did not meet its burden pursuant to
22 M.R.S.A. § 4055.{4}  The court concluded that the mother had been
unwilling or unable to take responsibility for Alexander and Mason within a
time which is reasonably calculated to meet their needs, that her attempts
to have the children returned to her created circumstances of jeopardy, that
termination would be in their best interest, and that those circumstances
were unlikely to change within a time reasonably calculated to meet their
needs.  22 M.R.S.A. §§ 4055(2)(a), 4055(2)(b)(i)-(ii).
	[¶17]  Specifically, the mother asserts that as to her failure to take
responsibility for the children and to protect them from jeopardy, the court
had no evidence with which to make its findings that the circumstances
were unlikely to change and that she could not take responsibility for the
children within a time which is reasonably calculated to meet the children's
needs.  Although the court noted the progress that had been made by the
mother in rehabilitating herself, it concluded:
[The mother] did participate [in Department Services], but her
efforts have been less than ideal.  In addition, the combination of
her denial of involvement, her minimization of the damage done
to her children while in her care, and her underlying
psychological problems have prevented her from working
effectively towards reunification.  Even if the court were to
assume that [she] will continue to make the kind of progress she
has recently made, she has at least another . . . year of treatment
in front of her.  These children cannot wait another year.{5}
	[¶18] Unlike many cases involving termination of parental rights, the
mother points to the substantial progress she has made in taking advantage
of the remedial services available to her.  In analyzing the parent's alleged
inability to protect or inability to take responsibility for a child, however,
"[t]ime is measured from the childs perspective" in determining whether
the responsibilities can be met or the circumstances of jeopardy are likely to
change within a time which is reasonably calculated to meet the child's
needs.  In re Leona T., 609 A.2d 1157, 1159 (Me. 1992).  Moreover, we
recently have rejected a contention from parents that, when assessing
parental fitness, the court should look only at parents' actions after issuing a
child protection order, not those over the entire course of the child
protection proceedings.  See In re Nathaniel B., 1998 ME 99, ¶ 5, 710 A.2d
921, 922:
[W]hile the inquiry concerning parental unfitness . . .
concerning the parents' inability or unwillingness to protect
the children from jeopardy and to take responsibility for the
children, is prospective, the evidence to be considered is
retrospective.  In re Leona T., 609 A.2d 1157, 1159 (Me.
1992).  As to . . . the parents' failure to rehabilitate and reunify,
its plain meaning requires the court to undertake a
retrospective analysis.  There is nothing in the statute, and
nothing in our past decisions, that limits the temporal scope of
the court's examination of evidence to any particular period.
Id. at ¶ 7. The court's decision to weigh the mother's inability to protect
her children and her poor participation in various programs along with her
recent improved participation was perfectly proper.  
	[¶19]  The court considered the substantial evidence that the
children, because of the harm suffered while in the mother's custody, and
the length of time they had been in the stable environment of foster care,
would be placed in jeopardy if removed from foster care.  Indeed, it is
appropriate for a court to make "a finding of jeopardy when a child, already
vulnerable from earlier abuse and instability, face[s] 'developmental
regression of serious magnitude' if removed from his stable foster home." In
re Colby C., 669 A.2d 151, 152 (Me. 1995) (quoting In re Dean A., 491 A.2d
572, 573 (Me.1985));  cf. In re Annette P., 589 A.2d 924, 927 (Me. 1991)
("A [jeopardy] finding adverse to a parent is especially well founded if . . . the
child needs the stability of a long-term foster home to overcome the
emotional impact of chronic medical problems.").
	[¶20]  In this case, the guardian ad litem's report furnished
persuasive support for the prospect that removal of the children from their
foster home would place them in jeopardy.{6}  Viewed properly from the
perspective of the child, see In re Leona T., 669 A.2d at 152, the court's
findings that the circumstances of the mother's inability to protect the
children from jeopardy were unlikely to change within a time reasonably
calculated to meet the needs of the children, and that the mother is unable
to take responsibility for the children within a time reasonably calculated to
meet the needs of the children, are not clearly erroneous.  In re David G.,
659 A.2d 859, 861 (Me. 1995) ("Any of the four alternatives [in § 4055] is
adequate to justify termination if supported by clear and convincing
evidence.") (citation omitted).
	[¶21]  The mother also contends that the court penalized her for not
admitting that she physically abused the children.  The contention is
without merit.  In its decision to terminate, the court's emphasis was on the
mother's overall deficiencies as a caregiver.  Although she has admitted to
not being careful enough about where her children were cared for, the
mother did not fully accept responsibility for the children's well being, a
legitimate consideration for the court in its decision to terminate.
	[¶22]  The mother also contends that the court failed to properly
consider the fact that she was adequately caring for her newborn child.{7}  A
child protection petition concerning that child has been dismissed and she
argues that "it is impossible to find that jeopardy exists with respect to
other children, while at the same time concluding that it does not exist with
respect to a child of tender years residing in the same household."
	[¶23]  The court rejected the mother's argument that "jeopardy is a
family-based issue, rather than a child specific issue," concluding:
In reaching the conclusion that [the mother] had been unwilling
or unable to take responsibility . . ., the court was not
considering the needs of any children.  It was considering the
needs of these children. . . . It is encouraging to learn that the
other protective case involving [the mother] has been dismissed,
but that case has never had a bearing on this one.
	[¶24]  Title 22 M.R.S.A. § 4055(1) requires that the court take into
consideration the needs of the child, meaning the child who is the subject
of the proceedings.  Although the record reflects that the court did
adequately consider the weight to attach to evidence about the mother's
care of her new baby, the court declined to base its findings as to the
mother's ability to protect from jeopardy, or to take responsibility for
Alexander and Mason, solely on her ability to care for her younger child.
	The entry is:
			Judgment affirmed.

Attorney for appellant: Scott J. Lynch, Esq. Thomas P. Peters, II & Assoc., P.A. 937 Main Street Lewiston, ME 04240 Attorneys for appellee: Andrew Ketterer, Attorney General Janice S. Stuver, Asst. Atty. Gen. Aria eee, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Barbara Raimondi, Esq. P O Box 470 Auburn, ME 04212 Attorney for father: Donald S. Hornblower, Esq. P O Box 116 Lewiston, ME 04243-0116
FOOTNOTES******************************** {1} Alexander's father was never married to the mother, nor did he live with her. He consented to the termination of his parental rights. The putative father of Mason apparently abandoned the child and did not participate in these proceedings. {2} The court did encourage the mother and urged her to continue to try to improve herself: While the Department will still have the obligation to provide for visits and pay for any services now in place, it will be up to [the mother] to make any further efforts toward reunification. Although this type of Order is usually a stepping stone to termination of parental rights, it is still possible for [the mother] to make the kind of progress we all expected when this case began almost two years ago. If she can do that, the court can always reinstitute reunification efforts. {3} Title 22 M.R.S.A. § 4038 (1992 & Supp. 1997) provides that the child's parent may move for judicial review, see § 4038(2), and § 4038(5) further provides: 5. Hearing. The court shall hear evidence and shall consider the original reason for the adjudication and disposition under [the sections of the statute dealing with final protection orders], the events that have occurred since then and the efforts of the parties as set forth under section 4041 and shall consider the effect of a change in custody on the child. {4} Section 4055 provides in relevant part: 1. Grounds. The court may order termination of parental rights if: . . . (2) The court finds, based on clear and convincing evidence, that: (a) Termination is in the best interest of the child; and (b) Either: (i) The parent is unwilling or unable to protect the child from jeopardy and these circumstances are unlikely to change within a time which is reasonably calculated to meet the child's needs; (ii) The parent has been unwilling or unable to take responsibility for the child within a time which is reasonably calculated to meet the child's needs; (iii) The child has been abandoned; or (iv)