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In re Joshua B.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 115
Docket:	And-00-583	
Submitted
on Briefs:	May 25, 2001
Decided:	July 19, 2001

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

								

IN RE JOSHUA B.

ALEXANDER, J.

	[¶1]  The mother of Joshua B. appeals the judgment of the District
Court (Lewiston, Beliveau, J.) terminating her parental rights pursuant to
22 M.R.S.A. § 4055 (1992 & Supp. 2000).  On appeal, the mother contends
that (1) the evidence is not sufficient to support the court's findings
justifying the termination order; and (2) the court erred in relying on a
guardian ad litem's report.  We affirm.

I.  CASE HISTORY

	[¶2]  On September 22, 1997, the Department of Human Services
(DHS), filed a petition for a child protection order for Joshua B.  On
April 30, 1998, the District Court (Portland, Bradley, J.) entered a jeopardy
order.  On June 10, 1998, the court entered a preliminary child protection
order (Brodrick, A.R.J.), placing Joshua in DHS custody.  The case was
judicially reviewed on five occasions in 1998-99, and each time, orders were
entered continuing DHS custody.  Ultimately, the case was transferred to
the Lewiston District Court.
	[¶3]  On May 19, 2000, DHS filed a petition for termination of the
mother's parental rights with respect to Joshua.  The termination hearing{1}
was held on June 26 and 29, and August 31, 2000. 
	[¶4]  The evidence at the termination hearing and earlier hearings
indicated that despite much counseling and support from DHS over the
course of three years, the mother: (1) continually entered into and
maintained abusive sexual relationships with men whom she knew to be
violent; (2) was unable to protect herself from domestic violence; (3) placed
Joshua at risk and was unable to care for him and attend to his special needs
when the abusive relationships were the focus of her life; and (4)
demonstrated a pattern of abusive relationships and neglect of Joshua that
was not likely to change.
	[¶5]  On November 6, 2000, the court entered an order terminating
the mother's parental rights.  The parental rights of the father had been
terminated by consent on June 26, 2000.  In its termination order, the
court found by clear and convincing evidence that: (1) termination is in
Joshua's best interest; (2) the mother is unable to rehabilitate and reunify
with Joshua within a time reasonably calculated to meet his needs; (3) the
mother is unable to protect Joshua from continued jeopardy and to take
responsibility for him; and (4) these circumstances are unlikely to change
within a time reasonably calculated to meet Joshua's needs. 
	[¶6]  In its conclusions, addressing the findings necessary to support
termination, the court stated:

The best interest factor takes precedence over the fault
factors under existing law.  That is not to say however that
the fault or parental unfitness factors are not considered. 
Obviously the court must find that in addition to the best
interests factors, there must be clear and convincing
evidence that the parent or parents are unwilling or unable
to protect the child from jeopardy within a reasonable time
that meets the child's needs; or that the parent or parents
are unwilling or unable to take responsibility for the child
within a time which is reasonably calculated to meet the
child's needs; or the parent has failed to make a good faith
effort to rehabilitate and reunify with the child pursuant to
section 4041 of T22.

The court then ordered termination of the mother's parental rights to
Joshua.  This appeal followed the court's termination order.

II.  DISCUSSION

	[¶7]  Contrary to the mother's claims, there is sufficient evidence in
the record to support the court's findings, by clear and convincing evidence,
that the mother is not able to protect the child from jeopardy and those
circumstances are unlikely to change within a time reasonably calculated to
meet the needs of the child, see 22 M.R.S.A. § 4055(1)(B)(2)(b)(i); the
mother is unable to take responsibility for the child within a time reasonably
calculated to meet the needs of the child, see 22 M.R.S.A.
§ 4055(1)(B)(2)(b)(ii); the mother has failed to make a good faith effort to
rehabilitate and reunify with the child, see 22 M.R.S.A.
§ 4055(1)(B)(2)(b)(iv); and termination is in the best interest of the child,
see 22 M.R.S.A. § 4055(1)(B)(2)(a).  In addition, the court did not err in
considering the report and recommendation of the guardian ad litem.  See
22 M.R.S.A. § 4005 (1998 & Supp. 2000).
	[¶8]  One aspect of the court's termination decision does, however,
require comment.  The court's statement that "[t]he best interest factor
takes precedence over the fault factors under existing law" does not
accurately reflect the current state of the law.  While section 4055(B) lists
the "best interest" finding first among the findings which must be made to
support termination,{2} a finding of a parent's unfitness or fault must be a
necessary prerequisite to any state intervention into a family.  The primary
importance of risk to the child and parental unfitness as the justification for
state action is emphasized in the statement of purposes of the Child and
Family Services Protection Act, 22 M.R.S.A. § 4003 (Supp. 2000), which
begins:  "Recognizing that the health and safety of children must be a
paramount concern and that the right to family integrity is limited by the
right of children to be protected from abuse and neglect . . . ."  Id.  See also
In re Melanie S., 1998 ME 132, ¶ 5, 712 A.2d 1036, 1037 (holding that a
court must find parental unfitness by clear and convincing evidence "before
it may consider the best interests of the child").  We have made similar
statements in In re Ashley A., 679 A.2d 82, 89 (Me. 1996); In re Leona
T., 609 A.2d 1157, 1158 (Me. 1992); and In re Shannon R., 461 A.2d 707,
712 (Me. 1983) (citing Smith v. Org. of Foster Families, 431 U.S. 816, 862-
63 (1997) (Stewart, J. concurring)).
	[¶9]  In this case, the court found parental unfitness in several
respects proven by clear and convincing evidence, and those findings are
strongly supported in the record.  Further, on appeal, the mother does not
challenge the court's misallocation of the order of factfinding.  Accordingly,
any review must be for obvious error.  See In re William S., 2000 ME 34,
¶ 8, 745 A.2d 991, 995.  "Obvious error requires the court to vacate the
trial court's judgment if the error deprived the party of a fair trial and
resulted in a substantial injustice."  Id.
	[¶10]  The "obvious error" standard addressing unpreserved claims
of error and the "harmless error" standard addressing preserved claims of
error are sometimes applied using similar terminology, but with differing
burdens and emphasis.  Thus, preserved error is reversible and not
harmless if a "substantial right" of the party is affected.  State v. Phillipo,
623 A.2d 1265, 1268 (Me. 1993); State v. Zinck, 457 A.2d 422, 426 (Me.
1983).  See also M.R. Civ. P. 61; M.R. Crim. P. 52(a); M.R. Evid. 103(a). 
Unpreserved error is obvious and reversible if the error affects "substantial
rights" or results in a substantial injustice.  In re William S., 2000 ME 34,
¶ 8, 745 A.2d at 995.  See also M.R. Crim. P. 52(b); M.R. Evid. 103(d).  Any
party claiming error must demonstrate prejudice from the error.  Phillips v.
E. Maine Med. Ctr, 565 A.2d 306, 308 (Me. 1989); Field & Murray, Maine
Evidence § 103.5 (2000 ed.).
	[¶11]  Although clear distinction between the two may not be
possible, the threshold for reversal based on preserved error is much lower. 
Thus, preserved error is reversible if any substantial right is compromised,
to the prejudice of the objecting party, and the supporting party cannot
convince the court that the error was harmless in the context of the other
events and evidence in the proceeding.  For obvious error to require
reversal, the error must be such as to deprive the party of a fair trial or to
result in such a serious injustice that, in good conscience, the judgment
cannot be allowed to stand.  See In re William S., 2000 ME 34, ¶ 8, 745
A.2d at 995; State v. Griffin, 438 A.2d 1283, 1285 (Me. 1981).
	[¶12]  No such deprivation of a fair trial or substantial injustice
results from the trial court's misallocation of the order of factfinding, where
the trial court acknowledged the required findings of parental unfitness and
made those findings by clear and convincing evidence.
	The entry is:
			Judgment affirmed.
Attorney for appellant: 

Henry W. Griffin, Esq.
37 Park Street, suite 204
Lewiston, ME 04240

Attorneys for appellee:

G. Steven Rowe, Attorney General
Matthew Pollack, Asst. Attorney General
David Hathaway, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Guardian ad Litem:

J. Lawrence Irwin, Esq.
P O Box 1203
Lewiston, ME 04243

Attorney for father:

James S. Hewes
80 Exhange Street
Portland, ME 04101