In re Kenneth H.
Download as PDF
Wordperfect 3
Back to Opinions page

MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
1997 ME 48
Docket:   WAL-96-614
Argued  March 3, 1997
Decided  March 18, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

In re KENNETH H.

PER CURIAM

	[¶1] The father of Kenneth H. appeals from the judgment entered in
the Waldo County Probate Court (Woodcock, J.) terminating his parental
rights for the purpose of Kenneth's adoption by his mother's present
husband.  He contends, inter alia, that the court did not make the necessary
findings of fact required by M.R. Prob. P. 52.{1}  We agree, and we vacate the
judgment. 
	[¶2]  The court's "Findings of Fact" consisted of the following two
paragraphs:

1.  The Court finds, based on clear and convincing evidence, that 
[the father] is unable to take responsibility for the child, Kenneth
H[.], within a time which is reasonably calculated to meet the
child's needs; and

2.  The Court finds, based on clear and convincing evidence, that
termination of the parental rights of [the father] in regard to
Kenneth H[.] is in the best interest of the child.

	[¶3]  The court also included a thirteen-page synopsis of the trial
testimony.  The court did not make any findings of fact based on the
testimony; rather, the court summarized the testimony in chronological
order and then stated as its "findings of fact" a near-verbatim recitation of
the language of 22 M.R.S.A. § 4055 (B) (1992).{2}
	[¶4]  As we stated in In re Amber B., 597 A.2d 937, 938 (Me. 1991):

We recognize the desirability that a finite determination be
reached without undue delay in all cases involving the
termination of parental rights.  See In re Amanda D., 549 A.2d
1133, 1135 (Me. 1988).  See also 22 M.R.S.A. § 4006 (Pamph.
1990) (appeal from judgment terminating parental rights  'shall
lie directly to the Supreme Judicial Court sitting as the Law
Court').   The achievement of this goal, however, is most readily
accomplished by the trial court's compliance with the mandate
of Rule 52(a) thereby providing the parties with the necessary
tools for a meaningful review and ensuring the integrity of the
reviewing process.

	[¶5]  The Probate Court in the instant matter has not provided any
findings of fact that would permit judicial review.  Our review of parental
rights termination cases is limited, and we will affirm a judgment on appeal
"if any evidence in the record can rationally be read to establish as highly
probable the [court's] factual conclusion that [the parent] is unwilling or
unable to take responsibility for [the child] within a time to meet their
needs."  In re Chesley B., 499 A.2d 137, 139 (Me. 1985).  Without an
indication as to what evidence the court relied on in its order, we are unable
to undertake appellate review "[b]ecause of the absence of specific findings
of fact that would inform the parties or this court of the basis of its
decision."  In re Amber B., 597 A.2d at 938.  Accordingly, we must vacate
the judgment of the Probate Court and remand for the findings of fact
required by Rule 52(a).
	[¶6]  The father also contends that the court erred in its application of
the statutory grounds for termination of parental rights stated in 22 M.R.S.A.
§ 4055 when it stated "the child is entitled to a stable home environment -
one that will give him love, affection, nurturing, caring along with a fair
measure of the materials things of life."  We presume that the court did not
base its decision on the comparison wealth of the father and the adopting
father.  On remand, however, the court should make clear on which
subsection of the applicable statute its decision rests.{3}
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion herein.
Attorneys for appellant:

John L. Carver, Esq.
Clark D. Kimball, Esq. (orally)
John L. Carver, P.A.
10 Church Street
Belfast, ME 04915


Attorney for appellees:

Joseph W. Baiungo, Esq. (orally)
Blake, Hazard & Baiungo
139 High Street
Belfast, ME 04915

Guardian ad litem: 

Lee Woodward, Jr., Esq.
P O Box 404
Belfast, ME 04915

FOOTNOTES******************************** {1} M.R. Prob. P. 52 provides that "Rule 52 of the Maine Rules of Civil Procedure governs procedure in all formal probate and civil proceedings in the Probate Courts, so far as applicable." M.R. Civ. P. 52(a) provides, in pertinent part, that "in every action for termination of parental rights, the court shall make findings of fact and state its conclusions of law thereon whether or not requested by a party." (Emphasis added). {2} 22 M.R.S.A. § 4055 (B) provides, in pertinent part, that the court may order termination of parental rights if a petition for adoption has been filed and (2) The court finds, based on clear and convincing evidence, that: (a) Termination is in the best interest of the child; and (b) . . . (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. {3} When a petition for termination of parental rights is filed as part of an adoption proceeding, the court may order termination of parental rights pursuant to 22 M.R.S.A. § 4055 if: (B) Either: (1)The parent consents to the termination. Consent shall be written and voluntarily and knowingly executed in court before a judge. The judge shall explain the effects of a termination order; or (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.