In re Charles G.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 3
Docket:	Fra-00-347
On Briefs:	December 12, 2000
Decided:	January 5, 2001

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER and
CALKINS, JJ.

IN RE CHARLES G.

RUDMAN, J.

	[¶1]  The mother of Charles G. appeals from the judgment of the
District Court (Farmington, Mullen J.) terminating her parental rights.  On
appeal, the mother argues, inter alia, that (A) the court's reliance on prior
orders violated her constitutional rights, (B) there was insufficient evidence
to support the court's termination of her parental rights, (C) the court erred
in finding that she did not rebut the presumption found in 22 M.R.S.A.
§ 4055(1-A), and (D) it was not in the child's best interest to have his
mother's parental rights terminated.  We disagree and affirm the judgment.

A.

	[¶2]	The mother asserts that the court violated her constitutional
rights by denying her liberty without due process and by denying her equal
protection of the laws as guaranteed by Article I, Section 6-A, of the Maine
Constitution,{1} when the court "relied" on the order ceasing the State's
reunification efforts and the order issued after summary preliminary
hearing.  
	[¶3]	We have previously noted that "[c]hild protective proceedings
are ongoing . . . ."  In re Christmas C., 1998 Me 258, ¶ 12, 721 A.2d 629,
632.  In In re Leona T.,  we stated that,

testimony considered at a hearing on a preliminary child
protection order may be considered in rendering a final child
protection order pursuant to  22 M.R.S.A. §§ 4034, 4035 (1992)
(citing In re David W., 568 A.2d 513, 515 (Me. 1990)).  We
noted the unitary nature of the two proceedings, as 'part of an
overall statutory scheme designed to insure the protection of
children.'  Id.  Likewise, reunification and termination are
unitary in nature.

* * * *

	The fact that a further hearing and a higher burden of
proof must be met to terminate parental rights does not
necessitate that the testimony presented at the reunification
hearing be repeated at the termination hearing. 

In re Leona T., 642 A.2d 166, 168 (Me. 1994) (emphasis added).  
	[¶4]	The mother was represented by counsel at the summary
preliminary hearing.  The testimony at both of the prior hearings was
relevant to the determination of whether to terminate the mother's parental
rights.  See In re Leona T., 642 A.2d at 168.  The mother also had the
opportunity to call witnesses and to cross-examine the department's
witnesses.  In this unitary proceeding, it was well within the District Court's
discretion to consider testimony presented at the earlier hearings. 
Therefore, the court did not err in considering its own previous factual
findings, when terminating the mother's parental rights. Id.  (citing In the
Interest of Adkins, 298 N.W.2d 273, 277 (Iowa 1980)).

B.

	[¶5]	The mother questions the sufficiency of the evidence presented
at the hearing.  For parental rights to be terminated, the Department of
Human Services must prove by clear and convincing evidence one of four
statutory bases, in addition to proving that termination of the mother's
parental rights is in the best interest of the child. See 22 M.R.S.A.
§ 4055(1)(B)(2)(1992).{2}  "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 Breauna N., 1999 ME
191, ¶ 19, 742 A.2d 911, 915 (quoting In re Denise M., 670 A.2d 390, 393
(Me. 1996)).  If there is "rational or competent support in the record" for
the District Court's findings, we must sustain them.  In re David G., 659 A.2d
859, 861 (Me. 1995) (citation omitted).  
	[¶6]	Proof of any one of the four statutory definitions of parental
unfitness, pursuant to 22 M.R.S.A. § 4055, is independently adequate to
justify termination, if supported by clear and convincing evidence.  In re
David G., 659 A.2d 859, 861 (Me. 1995) (citations omitted).  Although it
only needed to find one, the trial court found that the Department of Human
Services proved three of the statutory grounds by clear and convincing
evidence.  In re Kafia M., 1999 ME 195, ¶ 10, 742 A.2d 919, 923.
	[¶7]	The trial court found by clear and convincing evidence that the
mother is unwilling and unable to protect Charles from jeopardy{3} and that
these circumstances are unlikely to change within a time frame which is
reasonably calculated to meet the child's needs. See 22 M.R.S.A.
§ 4055(1)(B)(2)(b)(i).  The question, then, is whether the mother can
protect her son from jeopardy, and if not, "the court must determine a time
reasonably calculated to meet the child's needs and 'the time frame which
the court is gauging must be seen from the child's perspective.'"  In re
Annette P., 589 A.2d 924, 926-927 (Me. 1991) (quoting In re Christopher
J., 505 A.2d 795, 798 (Me. 1986)).  "[W]hile the inquiry concerning parental
unfitness pursuant to sections 4055(1)(B)(2)(b)(i) and (ii), 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 Nathaniel B., 1998 ME 99, ¶ 6, 710
A.2d 921, 922 (citation omitted).
	[¶8]	The court, in its child protection order, found that the mother
was unable, at that time, to provide her six children with adequate
supervision or care, including health care, and that such inadequacies
caused a threat of serious harm.  The court also found that all of the children
had been sexually abused and that the mother was not the abuser.  The
evidence establishes that the home from which the child was removed was
chaotic and that the mother's former husband sexually and physically abused
the children. 
	[¶9]	Moreover, we have noted that "the emotional difficulties that
may attend foster care are included within the statutory definition of
jeopardy.  We have previously upheld a finding of jeopardy when a child,
already vulnerable from earlier abuse and instability, faced 'developmental
regression of serious magnitude' if removed from his stable foster home." 
In re Colby E., 669 A.2d 151, 152 (Me. 1995) (quoting In re Dean A., 491
A.2d 572 (Me. 1985)).  The record demonstrates that the child has made
significant positive changes in both his behavioral and personal development
since he was removed from his mother's home.  There is also significant
evidence that the child would face "developmental regression of serious
magnitude" if removed from the foster home.  The guardian testified that
the child feels happy and safe in the foster home.  The child himself
indicated to the court that he wishes to be adopted by the foster parents. 
The foster mother also testified that they would like to adopt the child.  
	[¶10]  Given the deep attachment that the child now has for his foster
family, his expressed desire to be adopted by them, and the lack of rebuttal
evidence, pursuant to 22 M.R.S.A. § 4055(1-A), there is sufficient evidence
in the record for the trial court to have found that the mother could not
protect the child from jeopardy, pursuant to 22 M.R.S.A.
§ 4055(1)(B)(2)(b)(i).  Moreover, given the rebuttable presumption of 22
M.R.S.A. § 4055(1-A)(E), see infra, note 4, the District Court did not err in
finding that the mother was unable or unwilling to protect the child from
jeopardy and that these circumstances are unlikely to change within a time
frame which is reasonably calculated to meet the child's needs.

C.

	[¶11]  The mother argues that "there is no evidence in either the
prior orders or presented at the TPR hearing to support" the finding that
the mother did not rebut the presumption found in 22 M.R.S.A.
§ 4055(1-A).{4}  A rebuttable presumption "requires that the party against
whom it is directed prove 'that the nonexistence of the presumed fact is
more probable than its existence.'" In re Brandi C., 1999 ME 68, ¶ 8, 728
A.2d 679, 680 (quoting  M.R. Evid. 301).  Therefore, once there is an initial
finding of jeopardy, the child has been in the legal custody of DHS for at
least 9 months, and the parents have made no significant effort to correct
the situation that led to the jeopardy finding, there is a presumption that
the parents are "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."  See 22 M.R.S.A.
§ 4055(1-A).  
	[¶12]  The court made its first jeopardy finding on February 12, 1997. 
The State took custody of the child on January 22, 1999.  The record also
establishes that the mother received numerous services from the State,
including parent education and counseling services.  The court did not err
in applying the rebuttable presumption.  See 22 M.R.S.A. § 4055(1-A)(E).

D.

	[¶13]  The mother also argues that it is not in the child's best interest
that her parental rights be terminated.  The court cannot consider the best
interest of the child, pursuant to 22 M.R.S.A. § 4055(1)(B)(2)(a), until after
the trial court finds, by clear and convincing evidence, one of the four
statutory parental unfitness prongs.  In re Ashley A., 679 A.2d 86, 89
(Me. 1996).
	[¶14]  In considering whether termination of parental rights are in
the best interest of the child, the trial court must consider the needs of the
child, including in its analysis, the child's age, the child's attachments to
relevant persons, periods of attachments and separation, the child's ability
to integrate into a substitute placement or back into the parent's home, and
the child's physical and emotional needs.  See 22 M.R.S.A. § 4055(2)
(Supp. 2000).  The court must also consider, but is not bound by, the wishes
of a child 12 years of age or older in making a termination order. 
22 M.R.S.A. § 4055(3) (Supp. 2000). 
	[¶15]  At the time of the hearing, the child had been in foster care for
almost one full year.  The child, then age 12, indicated to the judge that he
wished to be adopted by the foster family.  The foster mother testified that
they would like to adopt the child.  Because of the child's strong attachment
to the foster family and because visitation with the mother ceased nearly one
year ago, placing the child back into the family home is likely to cause him
significant emotional difficulties. See 22 M.R.S.A. § 4055(2).  Therefore,
based on the foregoing, the trial court did not err in finding that
termination is in the child's best interest.
	[¶16]  The mother's other contentions are without merit.  Therefore,
we decline to address them.
	The entry is:
	Judgment affirmed.
                                                         
Attorney for appellant:

Margot Joly, Esq.
LaVerdiere & Assoc.
P O Box 670
Wilton, ME 04294

Attorneys for appellee:

Andrew Ketterer, Attorney General
Christopher C. Leighton, Asst. Attorney General
Nora Sosnoff, Asst. Attorney General
Kevin Beal, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Attorneys for Guardian ad Litem:

Catherine R. Connors, Esq.
Deborah L. Shaw, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110

Guardian ad Litem:

Mary MacMahon, Esq.
187 Johnson Hill Road
Poland, ME 04274

Attorney for father:

Kevin Joyce, Esq.
P O Box 31
Farmington, ME 04938

FOOTNOTES******************************** {1} . Article 1, § 6-A of the Maine Constitution states that "[n]o person shall be deprived of life, liberty or property without due process of law, nor be denied equal protection of the laws, nor be denied the enjoyment of that person's civil rights or be discriminated against in the exercise thereof." {2} . 22 M.R.S.A. § 4055 states in pertinent part: 1.Grounds. The court may order termination of parental rights if: . . . . B.Either: . . . . (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)The parent has failed to make a good faith effort to rehabilitate and reunify with the child pursuant to section 4041. 22 M.R.S.A. § 4055 (1992). {3} . "Jeopardy" is defined in 22 M.R.S.A. § 4002. 6.Jeopardy to health or welfare or jeopardy. "Jeopardy to health or welfare" or "jeopardy" means serious abuse or neglect, as evidenced by: A.Serious harm or threat of serious harm; B.Deprivation of adequate food, clothing, shelter, supervision or care, including health care when that deprivation causes a threat of serious harm; C.Abandonment of the child or absence of any person responsible for the child, which creates a threat of serous harm; or D.The end of voluntary placement, when the imminent return of the child to his custodian causes a threat of serious harm. 22 M.R.S.A. § 4002(6) (1992). "Serious harm" is defined in 22 M.R.S.A. § 4002(10). 10. Serious harm. "Serious harm" means: A.Serious injury; B.Serious mental or emotional injury or impairment which now or in the future is likely to be evidenced by serious mental, behavioral or personality disorder, including severe anxiety, depression or withdrawal, untoward aggressive behavior, seriously delayed development or similar serious dysfunctional behavior; or C.Sexual abuse or exploitation. 22 M.R.S.A. § 4002(10) (1992). {4} . 22 M.R.S.A. § 4055(1-A) states, in relevant part: 1-A.Rebuttable presumption. The court may presume that 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 if: * * * * E.The child has been placed in the legal custody or care of the department for at least 9 months, and the parents have been offered or received services to correct the situation but have refused or have made no significant effort to correct the situation. 22 M.R.S.A. § 4055(1-A)(E) (Supp. 2000).