In re Frederick P., corrected 10-9-01
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2001 ME 138
Docket: Som-01-240
Submitted
on Briefs: September 13, 2001
Decided: September 28, 2001
Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
IN RE FREDERICK P. et al.
ALEXANDER, J.
[¶1] The mother appeals from a judgment of the District Court (Skowhegan,
Clapp, J.) terminating her parental rights with respect to her five
children. The mother asserts that: (1) the results of the termination hearing
were irreparably tainted because, during an earlier cease reunification
hearing, her rights to free exercise of religion were violated by references
to both parents' religion as Wiccans which the mother's brief characterizes
as an "unusual and historically disfavored religion referred to in
the transcript as 'witchcraft' and 'paganism'"; (2) her due process
rights were violated because the cease reunification hearing proceeded without
her being present; and (3) there was insufficient evidence to support the
court's findings that termination of parental rights was appropriate and
in the best interests of the children, particularly in light of the desires
of the three older children that her parental rights not be terminated.
We affirm.
I. CASE HISTORY
[¶2] From 1984 to 2000, the children's mother and father were married.
During the marriage, five children were born, three boys and two girls,
ranging in age from seven to fifteen at the date of the termination hearing.
From 1984 until 1997, the couple and the children lived in Massachusetts
at the home of the children's maternal grandmother. This was not a healthy
relationship because, as the court noted, the maternal grandmother was a
significant force in the home life and may have abused or permitted abuse
of the mother and her brother as children.
[¶3] In 1995, after the death of the maternal grandmother and grandfather
and two uncles, the mother began to manifest significant mental health problems,
some of which may have been rooted in her own abused childhood experiences.
The family continued to live at the grandmother's home in Billerica, Massachusetts,
until 1997. At that time, child protective agencies in Massachusetts began
investigating the living conditions in the home. The family then moved to
Gloucester, Massachusetts. They lived there only a short time before being
evicted and moving to Hampton, New Hampshire. There they lived in a seasonal
summer home through the winter of 1997-1998. In New Hampshire, the mental
health condition of both parents apparently continued to deteriorate with
the mother becoming the dominant authority in the family. The District Court
found that during this time, the mother enlisted the children in her effort
to dominate her husband by "having them physically attack, restrain
and beat their father in order to get the car keys or money desired by [the
mother]."
[¶4] After being evicted from the Hampton, New Hampshire, residence,
the parents purchased a travel trailer and, sometime in the winter of 1998-1999,
moved onto a lot in the woods in New Portland, Maine. Although all of the
children were of school age, they were not enrolled in school and had to
care for themselves and deal with their increasingly unstable parents.
[¶5] The record, supported by photographs, indicates that the living
conditions at and around the trailer were at about the worst extreme of
clutter and filth. The trailer had no running water or toilet facilities.
Sewage was dumped on the ground underneath and outside the trailer. Great
amounts of clothing, trash and junk were strewn about the grounds. A fifty-five
gallon drum filled with human waste sat in a pool of sewage. An electric
cord was tied to a post with string. The trailer itself was not level. Inside
the trailer, smoke from the wood and fuel burning stove was regularly discharged
to the interior because of a broken or separated stove pipe. Three dogs,
one a very large Newfoundland, lived inside the trailer and slept with the
family, apparently on one or two beds.
[¶6] Beyond the difficult living conditions, the children were subjected
to some physical violence, including one instance of a child being hit with
a truck. Neighbors reported these conditions to the Department of Human
Services (DHS). DHS obtained a preliminary protection order and took custody
of the children in November of 1999.
[¶7] After DHS took custody of the children, the parents moved to
a different residence in New Portland. They also travelled to Massachusetts,
stole some copper from the father's former employer, were apprehended, and
criminally convicted. The father was incarcerated for this offense until
May 2000.
[¶8] The District Court's findings, fully supported by the record,
relate a sorry history of manipulation of the father by the mother and of
the father's lack of any active pursuit of reunification. Because the father
is not a party to the appeal, the father's situation will not be discussed
further except as it relates to the mother's claims.
[¶9] Pursuant to 22 M.R.S.A. § 4041(1)(A) (Supp. 2000), DHS made
rehabilitation services available to the parents but both parents failed
to comply with the requirements of the offered rehabilitation services.
DHS also arranged for the parents to visit with the children but not at
their home. In the summer of 2000, the parents advised DHS that they would
refuse to visit their children if the visitations could not occur in the
parents' home. Visits with the children then ceased for several months.
At the termination hearing, the mother took the somewhat strange position
that she had ceased visits with her children knowing that it would prompt
the father to stop visitations so that the mother could prevent the father
from reunifying with the children. It also appears that the mother and the
father stopped communicating with their court-appointed attorneys during
the summer of 2000.
[¶10] Because of the parents' actions, a hearing was scheduled on
September 18, 2000, on the DHS request to cease reunification efforts. See
22 M.R.S.A. § 4041(2) (Supp. 2000). The parents did not appear at the
hearing. Shortly before the hearing, the mother called the court to ask
for a continuance, saying she could not be present because of another family
matter. The court refused to continue the hearing. The hearing then proceeded
with the parents' attorneys present and participating. After hearing, the
court ordered that DHS could cease its reunification efforts. The court
also permitted the attorneys then representing the parents to withdraw due
to the communication problems with the parents.
[¶11] Both parents reappeared in November or December of 2000, new
counsel were appointed for each, and the parents resumed visits with the
children. At approximately the same time, DHS moved for termination of parental
rights. A termination of parental rights (TPR) hearing was held on February
26 and 28, 2001. Both parents appeared and participated, with the assistance
of counsel, in this hearing. At the start of the TPR hearing, the transcript
of the cease reunification hearing was admitted as evidence without objection
from any party.
[¶12] The evidence at the hearing indicated that the children are
adjusting well in their foster homes. The hearing also included evidence
that the three older children preferred that parental rights not be terminated.
[¶13] The court issued its termination order on March 22, 2001. The
mother filed this timely appeal.
II. DISCUSSION
[¶14] The issues raised by the mother's appeal are addressed individually
as follows:
A. Religious Discrimination
[¶15] There was no objection to admission of the cease reunification
hearing transcript in the TPR hearing. Also, as the mother's brief recognizes,
there were no references to the parents' Wiccan religion or witchcraft in
the entire record of the termination hearing or in the court's findings
supporting its termination order. Apparently, the mother's position is that
raising the Wiccan issue in the cease reunification hearing (mostly by the
mother's attorney) so tainted the remainder of the proceedings that termination
cannot occur. Without accepting the mother's position that there was any
error in the cease reunification hearing, it was incumbent on her to bring
any concern to the attention of the trial court and seek corrective action
at the termination hearing stage. This was not done. The issue is not preserved.
B. Due Process
[¶16] The mother was notified of the time of the cease reunification
hearing. This is demonstrated by the fact that she called in advance of
the hearing and said she could not come for a family-related reason. The
trial court refused to continue the hearing. We review a ruling on a motion
to continue for abuse of discretion. State v. Reed, 479 A.2d 1291,
1295 (Me. 1984). There is nothing to indicate that the trial court's action
was beyond the range of the trial court's discretion in dealing with continuances.
Further, by permitting the record of the cease reunification hearing to
become part of the TPR hearing, any due process claim incident to the cease
reunification hearing is not preserved for review.
C. Sufficiency of the Evidence: Parental Unfitness
[¶17] In this case there was more than sufficient evidence by which
the court could find, by the clear and convincing evidence standard, 22
M.R.S.A. § 4055(1)(B)(2) (1992), that the grounds for termination of
parental rights had been proven with respect to all five children. The District
Court found that: (a) the mother had a mental condition that was continuing
to deteriorate; (b) this had caused her to relocate the children and maintain
their living in the conditions of filth and squalor that DHS had found;
(c) subsequent to DHS intervention, the mother had failed to actively participate
in rehabilitative services; (d) the mother had focused primarily on her
needs and concerns, real and imagined, and had tried to manipulate the system
to that end; and (e) there was nothing that indicated that her situation
was improving or would improve sufficiently to allow her to become a safe
and responsible parent and regain custody of the children at any time before
the children became adults. All of these findings are more than adequately
supported by the evidence. With these findings, pursuant to 22 M.R.S.A.
§ 4055(1)(B)(2)(b)(i) & (ii) (1992), parental unfitness was properly
determined.
[¶18] The mother, challenging this evidence, points to her testimony
and to the testimony of one social worker and argues that this testimony
should be given great weight to avoid the termination finding. However,
the court repeatedly emphasized that it did not find the mother's testimony
credible, pointing to several instances where the mother had testified contrary
to facts about which there could be no dispute. For example, she denied
that she had been convicted of a crime when she was serving probation for
that crime, and she claimed that she was a good housekeeper in the face
of photographs which could not rationally be said to reflect good housekeeping
practices. Likewise, the court determined that the social worker's opinions
were unreliable because they were too heavily based on false information
given to her by the mother. Such credibility and weight of the evidence
determinations are uniquely for the trial court to decide. See In
re Chesly B., 499 A.2d 137, 138-139 (Me. 1985).
D. Sufficiency of the Evidence. Best Interests of the Children
[¶19] There is also sufficient evidence to support the court's best
interest finding. See 22 M.R.S.A. § 4055(1)(B)(2)(a) (1992).
As noted, the court determined that the mother would be in no condition
to become a fit parent for the children at any time during the children's
minority. The court also found that the children were doing well in their
present foster home settings and would be served by long-term foster home
placement or adoption into a stable living environment, particularly if
they could maintain contact with each other.
[¶20] The record indicates that at least the three older children,
while recognizing that their mother could not care for them, did not want
parental rights terminated or were equivocal about whether parental rights
should be terminated or not. The court must consider the preferences of
older children in making decisions in child protective cases. Thus, 22 M.R.S.A.
§ 4055(3) (Supp. 2000) directs that the court "shall consider,
but is not bound by, the wishes of a child 12 years of age or older in making
an order under this section."
[¶21] The mother argues that the termination order demonstrates that
the court ignored the statutory mandate to consider the wishes of the children.
However, the statute requires that the children's wishes be considered by
the court, not that they control the court's determination. The trial court's
findings reflect that it considered the children's concerns seriously. After
considering the children's wishes, the trial court found that termination
would be in the children's best interest because of the adverse effect that
a continued relationship with the mother would have on the children in light
of the mother's manipulative nature and her self-centered focus on her own
needs in dealing with her psychosis. Thus, the District Court did not err
in the manner in which it addressed the children's wishes. The court's best
interest findings are supported by competent evidence and are sufficient
to meet the clear and convincing evidence standard. See In re Thomas
P., 1998 ME 236, ¶ 2, 719 A.2d 519, 530.
The entry is:
Judgment affirmed.
Attorney for appellant:
Barbara T. Chassie, Esq.
Law Offices of Charles T. Ferris
P O Box 191
Kingfield, ME 04947
Attorneys for appellee:
G. Steven Rowe, Attorney General
Matthew Pollack, Asst. Attorney General
Pat Stevens, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006
Guardian ad Litem:
Annalee Bloom, Esq.
P O Box 924
Skowhegan, ME 04976
Attorney for father:
Charles Veilleux, Esq.
P O Box 568
Skowhegan, ME 04976
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