(Cite
as: 589 A.2d 924)
Supreme
Judicial Court of Maine.
In
re ANNETTE P. and Elizabeth P.
Argued
March 5, 1991.
Decided
April 10, 1991.
*925
David J. Edgar (orally), Houlton, for appellants.
Timothy
Woodcock , Mitchell & Stearns, Bangor, for Intervenor Houlton Band
of Maliseet Indians.
Carrie
Linthicum (orally), Asst. Dist. Atty., Caribou, Margaret Semple, Asst. Atty.
Gen., Augusta, for Dept. of Human Services.
Before
McKUSICK , C.J., and ROBERTS , WATHEN , GLASSMAN ,
COLLINS and BRODY, JJ.
GLASSMAN,
Justice.
The
parents of Annette P. and Elizabeth P. and the Houlton
Band of Maliseet Indians (Houlton Band)
FN1
appeal from the judgment entered in the District Court (Houlton,
Griffiths,
J.)
granting the petition of the Department of Human Services (DHS)
to terminate the rights of the parents to their children.
The
parents do not challenge the court's determination that it is
in the best interest of the children that parental rights
be terminated. Rather,
the parents contend that the court erred in its determination
that they were unwilling or unable to protect the children
from jeopardy and that these circumstances were unlikely to change
within a time that was reasonably calculated to meet the
needs of the children. The
parents also challenge the court's finding that the DHS actively
attempted to provide remedial services and a rehabilitative program designed
to prevent the breakup of the Indian family, as required
by the Indian Child Welfare Act, 25 U.S.C. §§ 1901
-1963 (1978), and that the parents had failed to make
a good faith effort to rehabilitate and reunify with the
children. Finding
no error in the court's record, we affirm the judgment.
FN1.
Although
the Houlton Band of Maliseet Indians filed a timely notice
of appeal, it did not file separate briefs or participate
in oral argument.
In
December 1981, when the mother was taken to a hospital
in an intoxicated condition and the father
FN2
was unconscious from abuse of alcohol, leaving Annette P. and
Elizabeth P., aged 1 year and 2 years respectively, unattended,
the DHS secured a preliminary protection order and removed the
children from their home. In
June 1982, a final protection order was secured, based on
the court's finding that the mother was unable to care
for her children without outside supervision and that the father,
with whom the mother had resided for 21 years, had
severe alcohol abuse problems and had physically abused the children's
mother. FN3
The
mother is a member of the Canadian Maliseet Indian Tribe
and has been diagnosed as mildly mentally retarded. The
children and their father are members of the Houlton Band
of Maliseet Indians, a federally recognized tribe under the provisions
of the Maine Indian Claims Settlement Act, 25 U.S.C. § 1727
(1983). Shortly
after their removal from their home, the children were placed
in the non-Indian foster home where they continue to reside.
In
1985, the Houlton Band intervened*926
in the case, pursuant to 25 U.S.C. § 1911(c),
and the court subsequently denied the DHS's first petition to
terminate the parental rights of the father and mother, but
made no explicit findings of fact on the reasons for
the denial of the petition.
FN2.
The
father first acknowledged paternity of the children in 1985.
FN3.
The
father was convicted of an assault on the mother in
1983, but at the time of the hearing in this
matter continued to deny any past physical abuse.
In
1989, after a failed attempt to reunify the family, the
DHS filed a second petition for the termination of parental
rights. After
two hearings on the matter, the court ordered the termination
of the parental rights of both the father and mother.
The
termination of parental rights is governed by 22 M.R.S.A. § 4055
(Pamph.1990). FN4
The
court found beyond
a reasonable doubt
that: the
termination was in the best interests of Annette P. and
Elizabeth P., see
22 M.R.S.A. § 4055(1)(B)(2)(a);
the
DHS had made reasonable efforts to rehabilitate and reunify the
family, see
25 U.S.C. § 1912(d);
FN5
the
return of custody to the parents would result in “serious
emotional and physical damage”
to the children, see
25 U.S.C. § 1912(f);
FN6
the
parents were unwilling or unable to take responsibility for the
children or to protect them from jeopardy and these circumstances
are unlikely to change within a time that is reasonably
calculated to meet the needs of the children, see
22 M.R.S.A. § 4055(1)(B)(2)(b)(i)-(ii);
and
the parents had failed to make a good faith effort
to rehabilitate and to reunify the family. See
id.
§ 4055(1)(B)(2)(b)(iv).
Both
parents and the Houlton Band appeal.
FN4.
Section
4055 provides in pertinent part:
1.
Grounds.
The
court may order termination of parental rights if:
....
B.
(2)
The
court finds, based on clear and convincing evidence, that:
(a)
Termination
is in the best interest of the child; and
(b)(i)
The
parent is unwilling or unable to protect the child from
jeopardy and these circumstances are unlikely to change within a
time reasonably calculated to meet the child's needs; [or]
....
(iv)
The
parent has failed to make a good faith effort to
rehabilitate and reunify with the child pursuant to section 4041.
FN5.
Section
1912(d) provides:
(d)
Remedial
services and rehabilitative programs; preventive
measures
Any
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.
FN6.
Section
1912(f) provides:
(f)
Parental
rights termination orders; evidence;
determination
of damage to child
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child.
The parents first contend that
the court erred in its determination that they were unwilling or unable
to protect the children from jeopardy and these circumstances were unlikely
to change within a time that is reasonably calculated to meet the needs
of the children. Although they conceded at the hearing that
they had no present ability to protect the children from jeopardy, they
argue that the evidence supports their contentions that they were undergoing
regular treatment for their alcohol abuse problems, that construction
of their new house was imminent, and that the Houlton Band was prepared
to provide them with various outreach programs to assist them in learning
to care for the children.
We will affirm a termination order
if the court “could reasonably have been persuaded that the required factual
findings [were] proved to be highly
probable,” In re
Marcus D., 583 A.2d
701, 701 (Me.1990), and will vacate the termination only when the findings
amount to clear error. See
In re John Joseph
V., 500 A.2d 628, 629
(Me.1985). Jeopardy is defined by statute as “serious abuse
or neglect, as evidenced by ... deprivation of adequate food, clothing,
shelter, supervision or care, including health care when that deprivation
causes a threat of serious harm.” 22 M.R.S.A. § 4002(6).
If a parent has no present ability to protect a child from
jeopardy, the court must determine a time reasonably *927
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 Christopher J.,
505 A.2d 795, 798 (Me.1986) (citing L.D. 2166, Statement of Fact (111th
Legis.1984)). A finding adverse to a parent is especially
well founded if the parent has demonstrated no ability to appreciate the
child's special physical or emotional needs, see
In re Jeffrey E.,
557 A.2d 954, 956-57 (Me.1989), or if the child needs the stability of
a long-term foster home to overcome the emotional impact of chronic medical
problems. See
In re Christopher
J., 505 A.2d at 800.
Based
on the evidence adduced at the hearings in the present
case, we find clear and convincing evidence to support the
court's determination that both children have special needs and that
the stable environment of the foster home has greatly decreased
the symptoms of nervousness and emotional distress exhibited by them
on their arrival at the foster home. Annette
P. still requires a regular schedule of medication, a special
diet, and periodic visits to a doctor for treatment of
rickets. Elizabeth
P., who has been diagnosed as mentally retarded and legally
blind, requires special classes and speech therapy at her current
school. At
the hearing, the parents displayed only a superficial understanding of
their children's special needs, and indeed, the mother testified that
she had often neglected her own
medical conditions in the past.
Both
parents testified that their past alcohol abuse problems were under
control, but the record does not clearly establish the nature
of their on-going treatment. While
the father had apparently undergone individualized counseling with a substance
abuse counselor for the Houlton Band, he had suspended these
sessions several years ago, and since that time, both parents
only sporadically attended meetings
of an alcohol abuse support group, which merely involved showing
films to the group about the dangers of alcohol abuse.
The
DHS produced uncontroverted evidence that the parents continued to reside
in a one-room trailer, measuring approximately ten by twelve feet,
without running water or electricity. Although
federal HUD funds were apparently slated by the Houlton Band
for the eventual construction of a new three-bedroom home for
the father, unexplained delays in the federal appropriation had indefinitely
postponed the construction at the time of the hearings in
this matter. Meanwhile,
the parents had made little or no effort to secure
a more suitable apartment pending that construction. Similarly,
a welfare program coordinator for the Houlton Band testified that
the outreach services currently operated by the Band's Indian Health
Services would not provide the type of daily outside supervision
that the parents would require to care for the children.
Given
this evidence, the court properly determined that the parents' circumstances
were unlikely to change within a time reasonably calculated to
meet the special needs of the children.
In cases not involving Indian
children, our disposition of the parents' first contention would, with
the record in this case, support the court's decision to terminate their
parental rights. However, the parents also contend that the
court erred in its determination that the DHS actively attempted to provide
remedial services and a rehabilitative program designed to prevent the
breakup of the Indian family, as required by the Indian Child Welfare
Act, and that the parents failed to comply with the requirements of 22
M.R.S.A. § 4041(1)(B) (parents not only are responsible for
rectifying and resolving problems that prevent return of the child to
the home, but must make a good faith effort to cooperate with the DHS
in the development and pursuit of a rehabilitation and reunification plan).
Before filing a petition to terminate
parental rights, the DHS must attempt to reunify the family by developing
a reunification plan that offers services to assist the parents in caring
for the children. See
22 M.R.S.A. § 4041(1)(A)(1). In cases involving
non-Indian children, the failure of the DHS to fulfill its obligations
under section 4041 does not, by itself, constitute an independent ground
for denying *928
termination of parental rights, but is only one factor to be considered
in evaluating the parents' efforts to rehabilitate. See
In re Daniel C.,
480 A.2d 766, 770 (Me.1984). Because this case involves Indian
children and implicates the federal guidelines set out in the Indian Child
Welfare Act, the DHS can only prevail on its petition to terminate parental
rights if it “satisf[ied] the court that active efforts have been made
to provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved unsuccessful.”
25 U.S.C. § 1912(d). FN7
Like the determination of the other elements under 22 M.R.S.A. § 4055(1),
we will affirm the court's findings if supported by clear and convincing
evidence in the record. FN8
Although a case of first impression in Maine, courts in other jurisdictions
have interpreted this federal standard to require that the State affirmatively
prove that all “reasonable” efforts to provide parents with rehabilitative
services have been exhausted. See,
e.g., In the Matter
of S.D., K.C.H., and L.W.,
402 N.W.2d 346, 351 (S.D.1987).
FN7.
This
mandatory showing comports with the Act's stated purpose to “promote
the stability and security of Indian tribes and families by
the establishment of minimum federal standards for the removal of
Indian children from their families and the placement of such
children in foster or adoptive homes which will reflect the
unique values of Indian culture, and [to provide] for assistance
to Indian tribes in the operation of child and family
service programs.”
25
U.S.C. § 1902,
and follows from the legislative finding of fact that “most
State laws require public and private agencies involved in child
placements to resort to remedial measures prior to initiating placement
or termination proceedings, but that these services are rarely provided.”
H.R.Rep.
No. 95-1386 , 95th Cong., 2d Sess. 22 (1978).
FN8.
Although
the court found that this federal requirement was established beyond
a reasonable doubt, see, e.g., People
in Interest of S.R.,
323 N.W.2d 885, 887 (S.D.1982), the federal statute does not
explicitly specify the measure of proof necessary for this distinct
element. Subsection
(f) of section 1912 does require proof beyond a reasonable
doubt that return of custody to the parents is likely
to result in “serious
emotional or physical damage”
to the children, but no such corresponding requirement is included
in subsection (d) dealing with reunification efforts. Because
the federal guidelines should be interpreted to change state law
to the least extent possible, we determine, under the reasoning
of Santosky
v. Kramer,
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982),
that the DHS must affirmatively establish this element by
clear and convincing evidence
in order to prevail on its petition for a termination
of parental rights.
The
record in the present case discloses that, prior to the
court's denial of the first petition to terminate parental rights
in 1985, DHS caseworkers visited the mother at her trailer
on a weekly basis in an attempt to improve her
parenting skills, to provide homemaking services, and to counsel both
parents about their alcohol abuse problems. The
mother consistently denied that any problems existed and refused to
consider the changes recommended by the DHS. No
efforts were expended by the DHS for two years following
the court's denial of the first petition to terminate parental
rights. In
January 1987, the caseworker contacted both parents and requested that
they come into the DHS office for a consultation. After
a renewal of the request by a follow-up visit to
the parents' trailer, only the mother attended the proposed meeting.
The
caseworker testified that the mother informed him that both she
and the father were still abusing alcohol, that the father
still physically abused her, and that she was concerned for
the children's safety if they regained custody. Aware
that the mother was mildly mentally retarded, the caseworker decided
that he should attempt a very gradual rehabilitation and that
the mother should first arrange to undergo an alcohol abuse
assessment. The
mother signed an agreement to that effect, but she subsequently
steadfastly refused to make an appointment for the assessment, despite
the caseworker's follow-up visits to the parents' trailer. Although
the caseworker repeatedly warned the father that he must become
personally involved, the father refused to discuss his participation in
any plan for reunification. In
July 1987, the DHS ceased any further attempts to rehabilitate
or to reunify the family.
While recognizing the laudable
policy of the Indian Child Welfare Act to preserve*929
the integrity of American Indian families, we cannot say that the
federal guidelines contained in the Indian Children Welfare Act required
the DHS to engage in futile, nonproductive efforts to reunify this Indian
family. Although the DHS could have initially developed a
more comprehensive plan, outlining the factors enumerated in 22 M.R.S.A.
§ 4041, it was not unreasonable for the DHS to believe, given
the mother's limited mental capacity and past refusal or reluctance to
cooperate with the DHS, that she would be more likely to respond to a
gradual step-by-step program of rehabilitation. See
People in Interest
of P.B., 371 N.W.2d
366, 372 (S.D.1985) (although mere fact that parent has limited mental
capacity will not justify termination, “Department [is not] charged with
the duty of persisting in efforts that can only be destined for failure.”)
Further, the father's complete refusal to even discuss prospects
for reunification suggests that any additional active measures to impose
outside assistance also would have been rejected. While a
mother's regular visitation with her children is a factor, among others,
in the court's consideration of whether she has made a good faith effort
to reunify the family, see
In re Howard P.,
562 A.2d 1224, 1226 (Me.1989), here, the mother's sole
effort at reunification was the visits with her children. The
court heard evidence that the children no longer maintain or wish to reestablish
any bond with their mother, that they have a genuine fear of their father,
and that they have developed a loving and close relationship with their
foster parents. The court properly determined that it was
highly probable that the DHS had taken all reasonable active efforts to
develop a plan that would reunify this Indian family and properly found
that the parents had no real interest in taking any
meaningful steps to regain the custody of their children.
The
entry is:
Judgment
affirmed.
All
concurring.
Me.,1991.
In
re Annette P.
589
A.2d 924
|