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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 191
Docket:	Cum-99-55
on Briefs:	October 14, 1999
Decided:	December 20, 1999

Concurring:	DANA, SAUFLEY, and CALKINS, JJ.



	[¶1]  Breauna's mother and her grandfather appeal from an order
entered by the District Court (Portland, Bradley, J.) terminating the
mother's parental rights pursuant to 22 M.R.S.A. §§ 4055(B)(2)(a),
4055(B)(2)(b)(i), and  4055(B)(2)(b)(ii) (1992 & Supp. 1998).  They argue
that the court erred when it found by clear and convincing evidence: (1) that
the mother was unwilling and unable to take responsibility for and protect
Breauna from jeopardy in a time reasonably calculated to meet Breauna's
needs; and (2) that the termination of her parental rights was in Breauna's
best interest.  The mother further asserts that the court erred when it
denied her motion to reinstate the Department of Human Services' (DHS)
obligation to reunify her with Breauna.  The mother and the grandfather also
contend that the court erroneously determined (1) that DHS made a good
faith attempt to reunify Breauna with her mother and grandfather; and (2)
that equitable estoppel did not preclude a finding that the mother made
insufficient efforts to reunify with Breauna.  Finally, the grandfather argues
that the court exceeded the bounds of its discretion when it excluded his
letter from evidence.  We disagree and affirm.   
	[¶2]  Based upon the unified record, the trial court could have found
the following:  The fifteen-year-old mother delivered Breauna on
February 9, 1995.  Breauna's grandfather traveled to Maine from the U.S. Air
Force Base in Aviano, Italy to help his daughter for a week.  After the
grandfather returned to Italy, he sent money and necessities for Breauna.  As
an infant, Breauna had numerous medical problems.  Breauna was born with
a ventricular septal defect in her heart; she also had multiple ear and urinary
tract infections.  Her mother repeatedly sought medical help for the child,
but the child's illnesses persisted.  Between November 1995 and February
1996, Casey Family Services, which provided intensive in-home treatment, a
public health nurse, and a day care center assisted the mother in caring for
	[¶3]  When DHS first petitioned for a Child Protection Order (CPO), it
argued that the mother jeopardized Breauna's health and welfare.  At
thirteen months old, Breauna only weighed fifteen pounds, four ounces. 
DHS did not initially seek custody of Breauna.  Rather, DHS referred the
mother and Breauna to the Spurwink Clinic for comprehensive psychological
and medical evaluations.  A Spurwink doctor diagnosed Breauna's condition
as non-organic failure to thrive due to environmental conditions.
	[¶4]  After the Spurwink evaluations, DHS sought a preliminary CPO. 
The court awarded DHS temporary custody of Breauna because her mother
needed extensive parenting training and assistance.  DHS placed Breauna
with a foster family and the mother moved to Aviano, Italy with her family.
	[¶5]  At the final CPO hearing, the court (Portland, Beaudoin, J.) found
by a preponderance that Breauna was in jeopardy because she suffered from
non-organic failure to thrive.  The mother did not sufficiently feed, nurture
or interact with Breauna.  The court concluded that Breauna was in an
immediate risk of serious harm due to caloric deprivation, a condition that
could result in permanent brain damage and serious developmental delays.
A.  Reunification Efforts With Breauna's Grandfather 

	[¶6]  In October 1996, the court (Portland, Goranites, J.) granted
Breauna's maternal grandfather limited intervenor status pursuant to 22
M.R.S.A. § 4005-B (1992).  In March 1997, the court (Portland, Foster, J.)
ordered DHS to reunify Breauna with her grandfather overseas.  The first
step in reunifying Breauna with her grandfather was a home study.  The
home study was delayed by over a year.  The grandfather and his family were
living on the U.S. Air Force Base in Germany.  The grandfather
recommended a person to complete the home study in Germany to DHS, but
DHS declined his suggestion.  About a year later, DHS hired the same person
to complete the home study that the grandfather had identified.  This delay
adversely affected the grandfather's reunification with Breauna because DHS
credited Breauna's attachment to her foster family during that year as a
reason for maintaining her foster care. 
	[¶7]  The court ordered the grandfather to temporarily relocate to
Portland to begin an intensive reunification with Breauna.  Breauna's
placement with her grandfather and his wife was contingent upon her
successful transition to them.  When the court ordered reunification with
the grandfather, it simultaneously relieved DHS of its obligation to reunify
Breauna with her parents.  
	[¶8]  Spurwink recommended that the reunification plan exclude the
mother because it feared that the grandfather would give her physical
custody of Breauna.  Rosemary Merrill, Breauna's guardian ad litem (GAL)
until March 1998, was concerned that Spurwink had based its
recommendation on misinformation because the grandfather and his wife
were "adamant" that they ­p; not the mother ­p; would be Breauna's primary
caretakers.  Ms. Merrill thought the misinformation influenced Spurwink's
final recommendation.
	[¶9]  In February 1998, the intensive reunification of the grandfather
and Breauna began.  Spurwink Clinic designed and executed the
reunification plan.  Before the intensive reunification plan was established,
the grandfather informed DHS and Spurwink that he could only remain in
Maine for thirty days because Air Force rules prohibited him from living off
base for more than thirty days.{1}
	[¶10]  Spurwink's plan allowed the grandfather to visit Breauna under
supervision for two hours, twice a week.  The record shows that this plan
was not a traditional intensive reunification plan.  The plan should have
consisted of at least four visits a week building towards daily visits.  Although
Spurwink knew the grandfather only had thirty days in the United States, its
reunification plan required sixty days.  The grandfather returned to Germany
less than thirty days into the reunification program. 
	[¶11]  The grandfather can no longer be considered a reasonable
alternative for custody.  He has not returned to Maine since he left in March
1998 and he has not attended any of the termination hearings.   At the
termination hearing, the grandfather's attorney offered a letter from the
grandfather.  The attorney offered the letter during the examination of the
mother under M. R. Evid. 801(d)(2), but the court excluded the letter
because it did not fall within any hearsay exception.
B.  Efforts of the Mother

	[¶12]  While in Germany, the mother received her general education
diploma.  She took college courses and worked at a steady job.  She also
completed a parenting course at the military base.  The mother decided, in
Spring 1998, to begin the process of reunifying with Breauna.  The mother
arrived in Portland in August 1998.  She obtained a full-time job and an
apartment.  At the time of the termination hearing, the mother  was
attending parenting classes and counselling at the YMCA.
	[¶13]  The GAL commended the mother for the progress that she had
made:  "She appears to be a totally different person than the person
described in the reports from when Breauna first came into care."  The
mother is "articulate, reasonably mature, somewhat naïve and intelligent."  A
doctor at Spurwink, however, described the mother as a rigid and defensive
person.  She does not suffer from any personality disorders. 
	[¶14]  The GAL questioned the mother's commitment to rearing
Breauna because the mother had minimal contact with her.  While living in
Europe, the mother visited Breauna in July and October 1996, when she saw
her child three times; in April and August 1997, when she visited Breauna
almost daily between April 5, and April 12; and in January 1998.  The court
held the first day of the termination hearing in September 1998 and the
next two days of the hearing in November 1998.  Between the September
and November termination hearings, the mother only visited Breauna twice. 
Although the mother left about twenty-five messages for the foster mother to
set up visits with Breauna between September and November 1998, the
foster mother failed to return her calls.
	[¶15]  The mother testified that she was not ready to assume custody
of Breauna.  She could not estimate when she would be ready.  She also
acknowledged that Breauna received excellent care from her foster mother.
C.  Breauna

	[¶16]  Breauna has lived with the same foster family since DHS took
custody.  Her foster parents provide an excellent home life where Breauna is
flourishing.  Breauna calls her foster mother "Mom."  Breauna, now four and
a half years old, has spent two-thirds of her life with this family that hopes
to adopt her. 
	[¶17]  When DHS placed Breauna with her foster family, Breauna
suffered from serious medical conditions.  Her health has stabilized, but her
social, perceptual and motor skill developments are still delayed.  She wears
orthotics for support in her shoes and attends occupational therapy.
	[¶18]  Breauna is emotionally fragile.  Breauna's most significant
attachment is to her foster mother.  Both the Spurwink team and the GAL
testified that separating Breauna from her foster family would be detrimental
to her developmentally, socially and emotionally.  If the mother were to
reunify with Breauna, it would be a long and arduous process that would
require continuous monitoring and support.
A.  Sufficiency of the Evidence

	[¶19]  Contrary to the mother's contentions, sufficient evidence exists
on the record to support the court's factual findings by clear and convincing
evidence.  When reviewing sufficiency challenges for clear and convincing
evidence, we examine whether the trial court "could have reasonably been
persuaded on the basis of evidence in the record that the required factual
findings were 'highly probable.'" In re Denise M.,  670 A.2d 390, 393
(Me. 1996).{2}  The record supports the finding that the mother was unable
and unwilling to take responsibility for and protect Breauna from jeopardy
within a time reasonably calculated to meet her needs.{3}  When determining
a parent's willingness and ability to take responsibility for and protect her
child, we measure time from the child's perspective.  See In re
Alexander D., 1998 ME 207, ¶ 18, 716 A.2d 222, 228.  Breauna has been in
DHS custody for over three years, yet her mother, by her own admission, is
still not ready to take custody of Breauna and cannot estimate when she will
be ready to take custody.  The mother has maintained minimal contact with
Breauna.  During the three years that Breauna has been in DHS custody, the
mother has visited Breauna sporadically. 
 	[¶20]  Clear and convincing evidence also establishes that termination
was in Breauna's best interest.  See In re Denise,  670 A.2d at 393.  Breauna
is thriving in her foster home.  She has developed a strong emotional bond
with her foster mother.  Removing Breauna from the stable environment of
her foster family would damage her social, emotional and physical
development.  By her own admission, Breauna's mother is not ready to care
for Breauna in the manner that Breauna requires.  Breauna has spent over
three years of her young life living with her foster family while seeing her
biological family about twice a year.  Breauna needs stability in her life and,
therefore, it is in her best interest to remain with her foster family where
she has that stability.  The foregoing facts support the District Court's
findings by clear and convincing evidence.

B.  Good Faith Effort to Reunify

	[¶21]  The mother and the grandfather also assert that DHS failed to
execute its statutory obligation of making a good faith effort to reunify
Breauna with her biological family.  See 22 M.R.S.A. § 4041 (1996 & Supp.
1998).  We disagree.  The evidence in the record establishes by a
preponderance that DHS acted in good faith.  See In re Denise, 670 A.2d at
394 (opining that good faith action by DHS must be proved by a
preponderance of the evidence).  Before DHS petitioned to remove Breauna
from her mother's custody, the mother had the assistance of Casey Family
Services, a day care center, and a public health nurse.  When DHS took
custody of Breauna, the mother moved to Europe.  The mother was not
available to undergo the extensive parenting instruction that she needed to
safely care for Breauna.  DHS attempted to reunify Breauna with her
grandfather, but the reunification effort failed.
	[¶22]  In In re Denise, we opined that DHS satisfied its statutory
obligation because it spent two years trying to help the parents learn
parenting skills, even though DHS failed to disclose that one of its
counselor's who recommended termination also wanted to adopt the child. 
See In re Denise, 670 A.2d at 393-94.  Similar to the circumstances in In re
Denise, DHS spent over three years trying to reunify Breauna with her
family.  See id.  DHS did not address this matter as efficiently as it should
have, but DHS did not cause the mother to move to Europe and live a great
distance from her daughter.  DHS did not cause the grandfather to leave the
intensive reunification early.  Thus, DHS's efforts to establish and implement
a reunification program support the finding that DHS engaged in a good faith
reunification effort.  See In re Denise, 670 A.2d at 394. 
C.  Equitable Estoppel

	[¶23]  The mother asserts that the doctrine of equitable estoppel bars
DHS from using her failure to reunify with Breauna as evidence that
termination is in Breauna's best interests.  Equitable estoppel only applies
when a party relies to her detriment on another party's misleading conduct. 
See Anderson v. Comm'r of Dep't of Human Servs., 489 A.2d 1094, 1099
(Me. 1985).  When the Court relieved DHS of its obligation to reunify the
mother with Breauna, the mother knew that the reunification of Breauna and
her grandfather was contingent upon the successful completion of the
intensive program.  When reunification with the grandfather failed, the
mother allowed four months to pass before she commenced efforts to
reunify with her daughter.  DHS did not engage in misleading conduct that
would induce the mother to rely to her detriment and, thus, the doctrine of
equitable estoppel does not apply. 

D.  Grandfather's Letter

	[¶24]  The grandfather contends that the court exceeded the bounds
of its discretion when it excluded his letter from evidence at the
termination hearing.  See Kay v. Hanover Ins. Co., 677 A.2d 556, 558 (Me.
1996) (opining that the court applies clear error and abuse of discretion to
the trial court's evidentiary rulings).  The grandfather's attorney offered a
letter written by the grandfather ­p; a party who was not present at the
hearing ­p; during examination of the mother.  The grandfather argues that
the letter was not hearsay because he offered the letter under M. R. Evid.
801(d)(2).{4}  M. R. Evid. 801(d)(2) only applies to statements offered against
a party-opponent.  M.R. Evid. 801(d)(2).  The grandfather's letter was not
offered by a party-opponent.  He offered his own letter.  The court,
therefore, properly excluded the letter.
	The entry is:

		Judgment affirmed.

Click here for the concurring opinion.

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