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In re Michelle W.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 123
Docket: 	And-00-614
Submitted 
 on  Briefs:  	May 25, 2001
Decided:	July 25, 2001

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

IN RE MICHELLE W. 

CALKINS, J.

	[¶1]  The mother of Michelle W. appeals from the judgment of the
District Court (Lewiston, Beliveau, J.) terminating her parental rights.{1}  The
mother argues that the court erroneously considered the best interest of the
child to be the controlling factor in the termination decision.  She contends
that a bifurcated termination hearing is required so that the trial court will
not reach the issue of the best interest of the child until parental unfitness
has been determined.  Because we agree that the court erred and that the
error is not harmless, we vacate the judgment.

I.  PROCEEDINGS AND FINDINGS

	[¶2]  Upon the filing of a child protection petition by the Department
of Human Services, the District Court (Mullen, J.) issued a preliminary
protection order on November 5, 1999, granting custody of Michelle to the
Department.  Before the mother was notified of the petition and order, she
left the area with Michelle.  In early December 1999, the Department
located the mother and Michelle in Florida.  The Department took Michelle
into custody and served the petition and order on the mother.  Three
months later, the mother consented to the issuance of a final jeopardy
order.  The District Court (Gorman, J.) ordered services aimed at reunifying
the mother and Michelle.  The Department filed the petition for termination
of parental rights within two months of the jeopardy order, and the
termination hearing was held in September 2000.  At the time of the
termination proceeding, Michelle was six years old.
	[¶3]  In its detailed findings of fact following the termination hearing,
the trial court found that the Department had provided counseling for the
mother and made home visits prior to filing the child protection petition. 
The reason for the Department's intervention was the mother's disclosure
in August 1999 that she struck Michelle and left a bruise on her back.  The
mother also admitted that she put her arm through a window and cut it in
Michelle's presence.  Also in August 1999, the police found Michelle
wandering in a park by herself early in the morning.  The court further
found that the mother and her boyfriend had been arrested for assault,
stemming from an incident of domestic violence, and were later arrested for
violating bail conditions.  The court noted that the basis of the consent
jeopardy order was the mother's mental condition, her involvement with
domestic violence, and her inability to care for Michelle because of
Michelle's special needs.  
	[¶4]  The court found that the mother had previously received mental
health services, but she had not participated in these services "efficiently." 
The court found that she has a history of forming relationships with violent
men.  In 1994, several years before the child protection proceedings, the
mother had participated in criminal activities with a male partner.  The
court also found that the mother had experimented with illegal drugs and
had abused alcohol when she was first pregnant with Michelle.  The mother
was abused by Michelle's father, and after Michelle was born, the mother
had relationships with two other abusive men.
	[¶5]  Michelle's mother participated in an extensive psychological
evaluation after the child protection petition was filed.  The evaluation
team's findings and recommendations, which the trial court found reliable,
were that because of her mental condition and Michelle's special needs, the
mother was not able to care for Michelle.  The team diagnosed the mother
as having a narcissistic personality and post-traumatic stress disorder.  The
evaluation team found that the mother was more concerned about her own
feelings of loss of Michelle, than she was about Michelle's feelings.  The
team further found that the mother lacks empathy and has little insight. 
The team was also concerned about substance abuse.  The court found that
the mother was arrested in March 2000 for operating under the influence of
intoxicating beverages.
	[¶6]  The same evaluation team also evaluated Michelle.  It noted that
she was developmentally delayed when first placed in the foster home, and
she was assaultive toward other children.  At the time of Michelle's
evaluation in February 2000, she had been in the foster home for three
months, and she showed significant improvement.  The team recommended
various services for Michelle and that she be placed in a permanent
therapeutic home with support services.  The trial court emphasized that it
gave great weight to the team's recommendations.  The court noted that
Michelle remained in the original foster home until August 2000, when she
was placed in a pre-adoptive home.  
	[¶7]  At the close of the termination hearing the court said:  "This is
not an easy case.  It's not going to be an easy case to decide, particularly
with the clear and convincing standard."
	[¶8]  In its written decision, the court stated:  "The best interest
factor takes precedence over the fault factors under existing law."{2}  The
court found that Michelle was now in a stable environment and has bonded
with her foster parents who intend to adopt her.  It stated that although
Michelle knows her mother, "because of the mother's condition it is
detrimental to Michelle if she continues to have contact with her mother." 
	[¶9]  The court went on to find that the mother is willing but unable to
protect Michelle from jeopardy because of her mental condition, and that
she is unable to take responsibility for Michelle within a time reasonably
calculated to meet Michelle's needs.  It also found that the mother failed to
make a good faith effort to rehabilitate in that she had been tardy in her
therapy appointments and had not sufficiently progressed in therapy.  The
court concluded by stating:  

Considering and weighing the mother's existing mental
condition against the special needs of this child, the weight of
the evidence as to best interest tilts substantially towards and in
favor of Michelle and her best interests to be cared for in a
stable and nurturing environment which the mother cannot
provide now or in the near future.

II.  BEST INTEREST FACTOR

	[¶10]  The mother argues that the court erred in placing a priority on
the best interest factor over and above the parental fitness factors.  The
Department argues that the court did not err because the court articulated
its finding of parental unfitness in addition to its finding that termination is
in Michelle's best interest.  	
	[¶11]  We recently reiterated the constitutional requirement that an
involuntary termination of parental rights may only be ordered when there is
a showing by the Department that the parent is unfit or has harmed the
child.  In re Scott S., 2001 ME 114, ¶¶ 19-21, --- A.2d ---.  To ensure that
an involuntary termination will not occur without the finding of unfitness,
we have repeatedly instructed the trial courts not to reach the best interest
prong until the State has made a showing of unfitness.  In re Melanie S.,
1998 ME 132, ¶ 5, 712 A.2d 1036, 1037; In re Ashley A., 679 A.2d 86, 89
(Me. 1996); In re Leona T., 609 A.2d 1157, 1158 (1992); In re Shannon R.,
461 A.2d 707, 712 (Me. 1983).  In this case the court not only reached the
best interest prong before considering the parental fitness factors, but it
held that the best interest factor takes precedence over the fitness factors. 
In so doing, the trial court committed error. 

III.  HARMLESS ERROR

	[¶12]  Because the court erred in giving precedence to the best
interest prong, we must determine whether that error is harmless.  The
harmless error standard in termination of parental rights cases is as follows:

[T]he State has the burden of persuading us that it is highly
probable that the error did not prejudice the parents or
contribute to the result in the case.  The State's burden of
persuasion is high.  Any doubt will be resolved in favor of the
parent.  

Thus, when an error has occurred in a termination of parental
rights proceeding, and the party alleging the error has
preserved his or her objection to the error, we review the entire
record to determine whether the error prejudiced the parents
in the presentation of their case or had the potential to affect
the outcome of the case.  In the absence of substantial certainty,
that is, a determination that it is highly probable, that the error
had no prejudicial effect and did not affect the outcome, we will
vacate the judgment.

In re Scott S., 2001 ME 114, ¶¶ 29-30, --- A.2d at ---.
	[¶13]  The Department argues that the court's error, which it
describes as "technical," was harmless because the court's extensive
findings regarding the mother demonstrate that her substantial rights were
not affected.  The court's error did not prejudice the presentation of the
mother's case.  It is not highly probable, however, that the error did not
affect the outcome of the case.  As we said in the above-quoted language, the
Department's burden of persuasion that the error is harmless is a high one. 
If we cannot conclude that it is highly probable that the error was not
prejudicial and did not affect the outcome, we must resolve the case in favor
of the parent.  This is not a case in which the evidence of unfitness is
overwhelming.  The trial court itself noted that the case was not an easy case
to decide, given that the standard of proof is clear and convincing evidence. 
Because of the trial court's view that it is a close case, we do not have a
substantial certainty that the mistaken priority given by the trial court to the
best interest factor did not affect the outcome of this case.  The error was
not harmless.
	[¶14]  We do not agree with the mother, however, that a bifurcated
hearing is required to correct the error of the trial court.  We recognize that
bifurcated hearings in parental termination cases would result in duplication
of evidence.  For example, evidence concerning a child's special needs can
be relevant to both the inability of a parent to care for the child as well as
the best interest of a child.  We have said that a court may consider evidence
of parental unfitness as relevant to the best interest of the child.  In re
Ashley, 679 A.2d at 89.  Some witnesses will have admissible information
about both unfitness and best interests.  Given this duplication and the
scarce resources of the courts, the Department, and defense counsel, a
requirement of bifurcation is not necessary.
	[¶15]  Furthermore, an examination of the statutory scheme for
termination of parental rights upon petition by the Department indicates
that as a matter of policy the Legislature intended that a single hearing
would suffice to determine both parental unfitness and the best interest of
the child.  See 22 M.R.S.A. §§ 4050-4056 (1992 & Supp. 2000).  The
pertinent statute reads:  "The court shall hold a hearing prior to making a
termination order."  Id. § 4054 (1992).  The use of the singular "hearing" in
this statute signifies that only one hearing is intended. 
	The entry is:

Judgment vacated.  Case remanded to the District
Court for further proceedings consistent with this
opinion.

ALEXANDER, J., with whom CLIFFORD, J., joins, dissenting.

	[¶16]  I concur with the Court that the trial court erred in
interpreting 22 M.R.S.A. § 4055 to require that:  "The best interest factor
takes precedence over the fault factors . . . ."  We recently addressed this
exact issue in two cases:  In re Joshua B., 2001 ME 115, ¶ 8, --- A.2d ---,
and In re Scott S., 2001 ME 114, ¶¶ 17-22, --- A.2d ---.  However, I do not
agree that the trial court's misallocation of the order of factfinding requires
that the termination decision be vacated.  Therefore, I respectfully dissent.
	[¶17]  We are not required to vacate a judgment every time we find an
error in the trial court's rhetoric or order of factfinding.  See In re Joshua
B., 2001 ME 115, ¶ 12, --- A.2d ---.  A preserved error is reversible and not
harmless only if a "substantial right" of the objecting party is affected.  Id. 
¶ 10, --- A.2d ---; 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).  "Any party claiming error must demonstrate
prejudice from the error."  In re Joshua B., 2001 ME 115, ¶ 10, --- A.2d ---;
Phillips v. E. Maine Med. Ctr., 565 A.2d 306, 308 (Me. 1989); Field &
Murray, Maine Evidence § 103.5 (2000 ed.).  
	[¶18]  In this case, the mother's brief presents a generalized
discourse on the law regarding the proper order of factfinding.  However,
that brief makes absolutely no reference to the specific facts of this case and
no effort to demonstrate how any "substantial right" of the mother was
prejudiced, in any way, by the trial court's misallocation of the order of
factfinding.  The mother's rhetorical attack on the court's order of
factfinding, and her avoidance of discussion of the facts of this case is fully
understandable.  Those facts are very bad from her perspective.  Let there be
no mistake; the trial court in this case had plenty of evidence of parental
unfitness, and easily found parental unfitness established by the requisite
clear and convincing evidence standard of proof.  Most of the trial court
findings address parental unfitness, not best interest.
	[¶19]  The record indicates that the mother has a long and continuing
history of subjecting herself to sexually and physically abusive relationships. 
In its findings, the court referred to this history several times in support of
its determinations that the mother is unable to parent or protect Michelle. 
Beyond this history of abusive male relationships, the court found that the
mother herself had significant mental health deficits and a narcissistic
focus, with her needs being given priority over those of her child. 
Separately, the court determined that the mother had continually failed to
attend and fully participate in counseling and rehabilitation activities,
despite counseling and rehabilitation services having been offered to her
over a number of years.  In addition, the court determined that Michelle is a
special needs child who needs protection, support, and services that her
mother cannot give her and that the mother will not be able to provide
within a time reasonably calculated to meet the daughter's needs.
	[¶20]  With this history of abuse, neglect, and deprivation, it is hardly
surprising that the mother's counsel did not even try to review the facts of
the case to suggest how the court's misordering of factfinding resulted in a
substantial injustice or in any way prejudiced the mother.  No such claim is
supportable on this record.  Without the mother demonstrating that a
substantial right of hers had been affected or that she has been prejudiced in
some way by the error which she asserts, any error in the court's
misordering of factfinding is harmless.
	[¶21]  The Court's opinion points to the trial court's comments, at the
close of the termination hearing-comments not repeated in its
factfindings-that "[t]his is not an easy case."  That may be so.  Most
termination of parental rights cases are very difficult for the parties and the
court.  But that observation, at the close of the hearing, cannot be used to
suggest that factually this case is close.  Certainly, the mother, in her brief,
does not try to make such a claim.  Even if the trial court's comments at the
close of hearing suggested that, at that moment, the trial court thought
there were close issues in the case, further reflection and the court's
findings demonstrate that the trial court did not view this as a close case.  
	[¶22]  Notably, in its findings, the trial court focused heavily on State's
exhibit #2, an extensive psychological report, painting a very negative
picture of the mother.  The trial court noted "the evaluation carries great
weight in support of this court's final conclusion."  Among other things, that
report addressed "[the mother's] long history of engaging in extremely
abusive relationships with men and exposing her children to this abuse,
despite receipt of significant professional intervention to help her cope with
the problem."  
	[¶23]  This case is very unlike Scott S., where a majority of this Court
ruled that a similar error in the trial court's misordering of factfinding was
not harmless, because in that case, there was an available competent parent
to perhaps provide some care and support for the child.  Here, the findings
that the mother is an unfit and incompetent parent, based on clear and
convincing evidence, are not contested in the mother's brief on this appeal. 
In such a circumstance, any error in the trial court's misallocation of the
order of factfinding is certainly harmless.  Accordingly, I would affirm the
trial court's judgment.
Attorney for appellant:

E. Chris L'Hommedieu, Esq.
Robert L. Abbott Jr., Esq.
L'Hommedieu Law Office
65 East Avenue
Lewiston, ME 04240 

Attorneys for appellee:

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

Guardian ad Litem:

Lillian Kennedy, Esq.
230 Cook Street
Auburn, ME 04210