Adoption of Isabelle T.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2017 ME 220

Docket: Pen-17-237

Argued: October 11, 2017

Decided: November 30, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

ADOPTION OF ISABELLE T. et al.

PER CURIAM

[¶1] The father of Isabelle and Abigail T. appeals from a judgment of the

Penobscot County Probate Court (M. Bradford, J.) terminating his parental

rights in anticipation of an adoption pursuant to 18-A M.R.S. §9-204(b)

(2016); 22 M.R.S. §4055(1)(A)(2), (B)(2)(a), (B)(2)(b)(i), (B)(2)(b)(iii), and

(1-A)(B)(8) (2016). He challenges the sufficiency of the evidence to support

the judgment, including the court’s findings of parental unfitness and that

termination of his parental rights is in his children’s best interests. See

18-A M.R.S. § 9-204(b); 22 M.R.S. § 4055(1)(B)(2), (1-A)(B)(8).

[¶2] Because the record, in a case where fundamental constitutional

rights are at issue, does not include sufficient evidence regarding parental

unfitness, the best interests of the children, and the history of the prospective

adopting parent, because the court improperly excluded the father’s

testimony regarding his future plans for reunification with his children, and

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because the court erred and abused its discretion in concluding that

termination of the father’s parental rights is in the children’s best interests,

we vacate the judgment.

I. LEGAL STANDARDS FOR TERMINATING PARENTAL

RIGHTS INCIDENT TO ADOPTION

[¶3] Examination of the issues in this appeal must begin with a review

of the substantive and procedural requirements for a termination of parental

rights incident to an adoption proceeding. When a private individual invokes

court action to terminate parental rights or otherwise significantly limit a

parent’s rights to parent a child, the court engages in state action that

implicates the constitutionally protected liberty interest a parent has in

parenting his or her child free from state interference.

A. Constitutional Requirements

[¶4] “The liberty interest . . . of parents in the care, custody, and control

of their children--is perhaps the oldest of the fundamental liberty interests

. . . .” Troxel v. Granville, 530 U.S. 57, 65 (2000). We have consistently

recognized that a biological parent has a fundamental liberty interest in

parenting his or her child. Adoption of Tobias D., 2012 ME 45, ¶ 9,

40 A.3d 990. The Due Process Clause of the Fourteenth Amendment protects

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this liberty interest from unnecessary state interference.1 U.S. Const. amend.

XIV, § 1; Me. Const. art. I, § 6-A; see Troxel, 530 U.S. 57, 66 (2000) (“[I]t cannot

now be doubted that the Due Process Clause of the Fourteenth Amendment

protects the fundamental right of parents to make decisions concerning the

care, custody, and control of their children.”); Santosky v. Kramer,

455 U.S. 745, 753 (1982) (to interfere with a parent’s fundamental right to

parent, the state must provide fundamentally fair procedures).

[¶5] These requirements apply to actions in state courts, including the

probate courts. See Guardianship of Chamberlain, 2015 ME 76, ¶ 23,

118 A.3d 229 (extensively discussing application of proper standards to

protect fundamental parental rights in probate court proceedings affecting

parental rights—there in a guardianship proceeding). See also In re H.C.,

2013 ME 97, ¶ 11, 82 A.3d 80; In re Randy Scott B., 511 A.2d 450, 453

(Me. 1986).

[¶6] The fundamental right to parent one’s child is not, however,

immune from government interference. See Pitts v. Moore, 2014 ME 59, ¶ 12,

90 A.3d 1169 (action to establish de facto parent status); Rideout v. Riendeau,

1 The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

Article 1, § 6-A of the Maine Constitution similarly provides that “No person shall be deprived of life

liberty or property without due process of law . . . .”

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2000 ME 198, ¶ 19, 761 A.2d 291 (action to establish grandparents’ rights). A

state may interfere with a parent’s fundamental right to parent a child when

the court makes a finding, by clear and convincing evidence, that the parent is

unfit and the child’s best interest will be served by state intervention to avoid

harm to the child. In re Cody T., 2009 ME 95, ¶ 25, 979 A.2d 81; see In re A.M.,

2012 ME 118, ¶ 16, 55 A.3d 463; In re Robert S., 2009 ME 18, ¶¶ 13-15,

966 A.2d 894.

[¶7] “When the State does interfere with the fundamental right to

parent, we must evaluate that interference with strict scrutiny—the highest

level of scrutiny—which requires that the State’s action be narrowly tailored

to serve a compelling state interest.” Pitts, 2014 ME 59, ¶ 12, 90 A.3d 1169.

Pursuant to this standard, only the most exceptional circumstances or risks to

a child’s welfare allow the state to intrude upon a parent’s fundamental right

to the care and control of his or her child. See id.; Rideout, 2000 ME 198, ¶ 24,

761 A.2d 291.

B. Adoption and Child Protection Statutes

[¶8] Section 9-204(b) of the Adoption Act, 18-A M.R.S. §§ 9-101 to

9-315 (2016), which governs termination of parental rights in adoption

proceedings, incorporates by reference 22 M.R.S. §§ 4050–4059 (2016), which

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governs termination of parental rights in child protection proceedings.

18-A M.R.S. § 9-204(b) (2016). Thus, the same statutory protections and

requirements that apply to state-initiated proceedings to terminate parental

rights also apply to privately initiated proceedings to terminate parental

rights. See Adoption of Lily T., 2010 ME 58, ¶ 20, 997 A.2d 722; In re Jacob B.,

2008 ME 168, ¶ 13, 959 A.2d 734.

[¶9] The Adoption Act provides that “[a] petition for termination of

parental rights may be brought in Probate Court in which an adoption petition

is properly filed as part of that adoption petition . . . .” 18-A M.R.S. § 9-204(a).2

In practice, this means that the termination of parental rights occurs prior to

the adoption in order to enable the child or children to be legally available for

adoption. See Adoption of Hali D., 2009 ME 70, ¶ 1, 974 A.2d 916. This is

consistent with practice in Title 22 proceedings for the termination of

parental rights where the court does not begin to consider post-termination

placements until after termination of parental rights has been ordered. See

In re Kenneth S., 2017 ME 45, ¶ 6, 157 A.3d 244.

[¶10] Thus, theoretically, before the trial court considers the

background and the qualities of a prospective adopting parent, the court could

2 Since July 29, 2016, Maine’s District Courts have exclusive jurisdiction over adoption actions

when there is a case pending in the District Court involving the child or children who are the

subject of the adoption. 4 M.R.S. § 152(5-A) (2016); 18-A M.R.S. § 9-103 (2016).

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terminate the parental rights of a biological parent. However, in an adoption

proceeding, unlike a Title 22 proceeding to terminate parental rights, the

prospective adoptive parent is identified. In fact, his or her interest in

adoption is the reason the action was initiated. Because the prospective

adoptive parent is identified in a Title 18-A private adoption proceeding, the

background and qualities of the prospective adoptive parent are essential

factors to consider in deciding whether termination of parental rights leading

to adoption by that individual is in the best interests of the child or children.3

[¶11] There is no state assertion of parental unfitness in private

termination/adoption proceedings, and the Adoption Act provides fewer

protections for parents than those provided in Title 22 child protection

proceedings. Individuals facing the loss of their rights in Title 22 termination

of parental rights proceedings are nearly always provided opportunities for

rehabilitation and reunification before a court even considers the termination

of their parental rights. See In re Heather C., 2000 ME 99, ¶ 4, 751 A.2d 448

(“In the ordinary course, as soon as the child has entered foster care as a

result of a court order, the [State] is required to begin providing rehabilitation

services to the parents.”); In re Thomas D., 2004 ME 104, ¶ 26, 854 A.2d 195

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We anticipate that this will also be necessary in so-called single parent adoptions. See

18-A M.R.S. § 9-301 (2016); see also Adoption of Liam O., 2016 ME 66, ¶ 11, 138 A.3d 485.

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(“[T]he rehabilitation and reunification plan is the centerpiece of child

protective proceedings following a jeopardy determination . . . [and] seek[s] to

rehabilitate the conditions that resulted in jeopardy to the child . . . .”).

[¶12] The Adoption Act, on the other hand, does not require—or even

authorize—the court to consider rehabilitation or reunification efforts prior

to terminating parental rights. See Adoption of L.E., 2012 ME 127, ¶ 13,

56 A.3d 1234; compare 22 M.R.S. § 4041 (2016) (stating the obligations of the

Department of Health and Human Services to pursue rehabilitation and

reunification efforts in child protection matters) with 18-A M.R.S. § 9-204(b)

(incorporating by reference 22 M.R.S. §§ 4050-4059 and not referencing

22 M.R.S. § 4041). A termination action litigated as part of a “private

adoption,” where the adoption petitioner—often one parent—seeks to

terminate the parental rights of a nonconsenting parent to facilitate an

adoption, requires only that the petitioner prove that the grounds for

termination have been met in order for the court to permanently terminate

that parent’s legal rights to his or her child. See Adoption of L.E., 2012 ME 127,

¶¶ 12-13, 56 A.3d 1234.

[¶13] In a Title 22 child protection proceeding, the question of

termination is addressed only after a court has decided that the parent’s

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unfitness is so dire that the children must be removed from his or her care.

And, even in those circumstances, the parent is nonetheless usually offered

multiple opportunities to better his or her parenting abilities and reunify with

the children through court-ordered and state-provided services.

[¶14] In the private adoption context, as is the case here, where there

has been no previous determination of unfitness, a parent can have his or her

parental rights terminated without any opportunities for rehabilitation or

reunification. Thus, application of the Adoption Act, as written, poses a

substantial risk to fundamental parental rights that the court must respect by

rigorous application of quality of evidence standards and procedural

protections as we have articulated in opinions such as Guardianship of

Chamberlain, 2015 ME 76, 118 A.3d 229.4

[¶15] In the matter before us, we must consider whether the

circumstances leading to this private adoption and termination proceeding

4 The Adoption Act has been criticized for lacking procedural processes that fully protect a

parent’s fundamental parental rights. See Deirdre M. Smith, From Orphans to Families in Crisis:

Parental Rights Matters in Maine Probate Courts, 68 Me. L. Rev. 45, 73-75 (2016) (opining that

adoption and termination proceedings brought pursuant to the Adoption Act should require

reunification efforts as a prerequisite for terminating parental rights, as it “would impose an

affirmative duty on the courts overseeing such [termination proceedings] to ensure that they

provide parents a fair opportunity to address their fitness and relationship with their children

before a court may permanently dissolve those legal bonds.”).

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are exceptional enough to justify the termination of parental rights—the most

severe interference with the fundamental right to parent.

II. CASE HISTORY

[¶16] This appeal involves a private adoption proceeding and petition

to terminate the father’s parental rights brought by the mother and stepfather

of Isabelle and Abigail T. They seek to terminate the parental rights of the

children’s biological father so that the children can be adopted by their

stepfather.

[¶17] On May 4, 2016, the mother and stepfather filed a petition to

adopt Isabelle and Abigail T. in the Penobscot County Probate Court. As part

of these adoption proceedings, on August, 25, 2016, the mother and stepfather

filed a petition to terminate the parental rights of the children’s father.

[¶18] A one-day hearing was held on February 28, 2017. During the

hearing, the father testified that he began his relationship with the mother in

2006. They married in 2009, and the mother was soon pregnant with their

first child, Isabelle. Throughout the relationship there was tension as a result

of the father’s dishonesty about jobs, finances, and education, and concerns

about unfaithfulness. Their second child, Abigail, was born in 2012. At that

point, their marriage was “on the rocks.”

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[¶19] The mother and the father testified that in January 2014, while

they were in the process of moving, the family stayed in the home of a family

friend. During the family’s stay, the father sexually abused the fifteen-year-old

daughter of their family friend. He was convicted of felony sexual abuse of a

minor and incarcerated. Thereafter, the mother obtained a protection from

abuse order against the father on behalf of herself and the children. As a

result, the father has not seen his daughters in person since his incarceration.

The mother divorced the father in February 2015.

[¶20] The father was released from incarceration in March 2015. Both

the mother and the father testified that, after he was released, the father had

weekly phone contact with Isabelle and Abigail for a period of time. In

July 2015, the father was re-incarcerated after violating his probation. He is

now expected to be released in April 2018.

[¶21] The father testified that he has, to the extent he has been able,

attempted to get help to address his problems and has expressed his

commitment to maintain a relationship with Isabelle and Abigail. His efforts

to maintain a relationship with his daughters have been complicated by the

protection from abuse order and by conditions of probation that limit contact

with his children. When the father inquired about having contact with his

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children, he was told by the director of victim services at the prison where he

is currently incarcerated that he “cannot have indirect or direct contact with

[his] children.”

[¶22] Both the father and the mother testified that throughout the

father’s incarceration the children have had regular contact with the father’s

parents. The mother acknowledged that, because her parents are deceased,

the father’s parents are the only grandparents the children will ever have.5

The grandparents see the girls as often as they are able, given travel distances

and the children’s school schedules. The grandfather testified that he and his

wife are concerned that their “rights as grandparents [would] be diminished”

if the father’s parental rights were terminated.

[¶23] The stepfather testified that he has three children from prior

relationships: boys ages ten, ten, and eight as of the hearing date. The

stepfather testified that his parental rights to two of his children, one

ten-year-old and the eight-year-old, have previously been terminated. The

stepfather further testified that one of the reasons that his parental rights

were terminated was his significant alcohol and drug abuse problem.

5 The stepfather, who is the prospective adoptive parent, testified that his parents are living,

but that the girls “will never meet my parents.” His father is in prison in Kentucky, and his mother

was recently released from prison. The record is silent regarding the reasons his parents went to

prison.

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[¶24] In 2009, near the time when his eight-year-old son would have

been born, the stepfather was charged with criminal mischief. After that

charge, the stepfather testified, he turned his life around, became sober, and is

now regularly employed. At some time in this period, the stepfather moved

from Kentucky to Maine. He met Isabelle and Abigail’s mother in 2014 and

moved in with her and the children in 2015. The mother testified that she met

the stepfather in May 2014, and that they were married in January 2016.

Isabelle and Abigail call him “Daddy,” and he is a large part of their everyday

lives.

[¶25] During the mother’s and stepfather’s direct examinations, they

both testified regarding their future plans for Isabelle and Abigail. When the

father was asked about his plans to reestablish a relationship with his

children upon his release from prison, the mother objected on the ground that

the question called for speculation. The court sustained the objection and

excluded the question.

[¶26] On April 4, 2017, the court issued an order terminating the

father’s parental rights. In the order, the court found:

[The father’s] failure to make any attempt to establish a

family relationship with the child, or contribute in any way

toward the children’s financial support, constitutes clear and

convincing evidence that the [father] has been unwilling or unable

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to take responsibility for the children within a time reasonably

calculated to meet the children’s needs.

The court also concluded that termination of the father’s parental rights,

“thereby freeing the children for adoption by the petitioners, is in the

children’s best interests.”

[¶27] In response to a motion by the father, the court subsequently

issued findings of fact and conclusions of law supporting its termination

decision, as required by M.R. Civ. P. 52(a). See also 22 M.R.S. § 4055(1)(B)(2).

The court supported its termination order with the following findings of fact:

[The father] sexually assaulted the 15-year-old daughter of

the close friend he was staying with and has been convicted of

felony sexual abuse of a minor.

The minor victim was a child who was a member of a house

frequented by [the father].

[The father] is an incarcerated parent who, due to his

parole[6] violation, will not be released until April 2018 at the

earliest.

Based upon [the father’s] conviction and subsequent parole

violation, as well as [his] failure to provide any support for or

contact with his children, he is unwilling or unable to take

responsibility for his children.

[The father] has failed to communicate meaningfully with

the child for a period of at least six months (namely almost four

years).

6 The record reflects that the father was on probation, not parole.

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[¶28] The court’s findings also referenced 22 M.R.S. § 4055 and noted

that statute’s requirement for findings by clear and convincing evidence

addressing parental unfitness and the best interest of the child, but the court

did not state specific findings on those issues.

[¶29] The father timely appealed the court’s order terminating his

parental rights.

III. LEGAL ANALYSIS

[¶30] We review factual findings that termination of parental rights

was in the children’s best interests for clear error and the ultimate decision to

terminate parental rights for an abuse of discretion. In re M.B., 2013 ME 46,

¶ 37, 65 A.3d 1260; In re Alivia B., 2010 ME 112, ¶ 12, 8 A.3d 625. We review

factual findings that a parent is unfit or otherwise incapable of parenting for

clear error and will determine that a finding is unsupported only if there is no

competent evidence in the record to support it; if the fact-finder clearly

misapprehended the meaning of the evidence; or if the finding is so contrary

to the credible evidence that it does not represent the truth of the case.

Guardianship of Hailey, 2016 ME 80, ¶15, 140 A.3d 478. In addition, when

fundamental rights are at stake, findings may be determined to be insufficient

or the court may be found to have erred in the exercise of its discretion if

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important issues that arise during trial are not addressed in the record or in

the court’s findings. See Sargent v. Braun, 2006 ME 96, ¶¶ 9-11, 902 A.2d 839

(vacating the trial court’s judgment denying a motion to modify parental

rights, where the court failed to fully evaluate or provide findings relative to

substantial issues affecting the child’s best interest, including the mother’s

relocation and her abusive relationship).

[¶31] In this case, where the prospective adopting parent had a

substantial history of substance abuse and had his parental rights terminated

as to two of his three biological children, it is concerning that neither of the

parties provided details of that history to the court. When a termination is

being sought in order to facilitate an adoption, factual information about the

prospective adoptive parent—the good and the bad—is vital to the

determination of whether termination of a biological parent’s parental rights

is in the children’s best interests.

[¶32] Before the state, acting through the courts, can interfere with the

fundamental right to parent by terminating parental rights, due process

requires that findings of unfitness be made by clear and convincing evidence.

See Pitts, 2014 ME 59, ¶ 12, 90 A.3d 1169. Pursuant to the Adoption Act,

which incorporates by reference 22 M.R.S. § 4055, the court may order

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termination of parental rights, absent parental consent, only if the court finds,

by clear and convincing evidence, that (1) the parent (i) is unable to protect

the child from jeopardy, (ii) is unwilling or unable to take responsibility for

the child within a time which is reasonably calculated to meet the child’s

needs, or (iii) has abandoned the child; and (2) with unfitness proved,

termination of parental rights is in the best interest of the child. See

18-A M.R.S. § 9-204(b); 22 M.R.S. § 4055(1)(A), (1)(B); see also In re Scott S.,

2001 ME 114, ¶¶ 17-21, 775 A.2d 1144 (holding that only if parental unfitness

is proved “does the court consider the children’s best interests”). “[A]lthough

the best interest factor alone may prevent the termination of parental rights, it

will never, standing alone, be a basis for a termination.” Id. ¶ 21.

[¶33] We review the sufficiency of the evidence to determine “whether

the court could have reasonably been persuaded on the basis of the evidence

in the record that the required factual findings were highly probable.”

In re Thomas H., 2005 ME 123, ¶ 18, 889 A.2d 297. The father argues that

there was insufficient evidence supporting the court’s findings of parental

unfitness and its ultimate decision to terminate the father’s parental rights as

being in the best interests of his children.

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A. Issues Related to the Father’s Fitness to Parent

1. Father’s Imprisonment

[¶34] A court may not terminate parental rights based solely on a

parent’s incarceration. See In re Alijah K., 2016 ME 137, ¶¶ 13-16,

147 A.3d 1159. “We agree that a parent’s incarceration is but one factor to be

considered by a court faced with a termination petition, [although] it is a

factor—a factor that may, in some cases, lead a court to terminate that

parent’s rights.” Id. Respecting the strong policies in favor of permanency, a

court must consider whether the length of a parent’s incarceration will

prevent the parent from protecting the child from jeopardy or taking

responsibility for the child within a time reasonably calculated to meet the

child’s needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii); In re Alijah K.,

2016 ME 137, ¶ 14, 147 A.3d 1159.

[¶35] Here, the father is currently in prison. He is expected to be

released in April 2018, approximately one year after the termination hearing

was held. He has had no opportunity to receive rehabilitative services, and, as

noted earlier, he has been prohibited from having contact with his children.

Given all of the circumstances of this case, we cannot affirm the conclusion

that, as the court framed the issue, the fact of his incarceration and lack of

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contact with the children will make the father incapable of engaging in

parenting of the children after his release.

[¶36] In the private adoption setting, the permanency concerns that are

typically present in state-initiated termination proceedings are not at issue.

Here, the children are in a permanent living situation with their mother and

stepfather, which, as all the parties testified, is not going to change regardless

of the outcome of the termination and adoption processes.

2. Protection from Abuse Order

[¶37] “[A] parent’s prohibition from contact with a child pursuant to a

protection from abuse order or other court order, should not, standing alone,

constitute abandonment.” Adoption of Lily T., 2010 ME 58, ¶ 21, 997 A.2d 722.

Parents subject to protection from abuse orders are obligated to make even

greater efforts to foster relationships with their children using the means

available to them. See id.; see also Adoption of T.D., 2014 ME 36, ¶ 13,

87 A.3d 726.

[¶38] Here, the father has been subject to a protection from abuse

order, and also, apparently, conditions of incarceration or probation, limiting

his contact with his children. Despite the order in place, the father has made

efforts to maintain contact with his children. During his first prison sentence,

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he sent letters to his children. After being released, he had weekly phone

contact with the children before returning to prison after violating his

probation. Upon his re-incarceration, he testified that he sought to include his

children in a Christmas gift exchange program and reached out to prison

officials to see about contacting his children, only to be told he was not

allowed to have direct or indirect contact with them.

[¶39] These actions and the father’s own testimony demonstrate his

desire and effort to maintain a relationship with his children. Despite all of

the barriers in place preventing his contact with the children—the

reasonableness of which we do not question here—the record reflects his

efforts to maintain a parental relationship with his children. On this record,

there is not sufficient evidence supporting the findings of parental unfitness,

to the standard of clear and convincing evidence, to justify termination of the

father’s parental rights.

B. Issues Related to the Ultimate Determination that Termination of the

Father’s Parental Rights is in the Best Interests of the Children

1. The Court’s Exclusion of Testimony Regarding the Father’s Plans

for Re-establishing Contact with His Children

[¶40] The father argues that the court erred and abused its discretion

by sustaining the objection to questioning him regarding his plans to

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re-establish a relationship with his children once he is out of prison. The trial

court reasoned that the father’s testimony concerning his plans would require

him to speculate and that it was therefore inadmissible.

[¶41] We review the trial court’s determination that the necessary

factual foundation to admit evidence has or has not been established for clear

error, and its ultimate determination to admit or exclude the evidence for an

abuse of discretion. Levesque v. Cent. Me. Med. Ctr., 2012 ME 109, ¶ 16,

52 A.3d 933. Evidence is relevant if it has any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. M.R. Evid.

401; see also In re M.S., 2014 ME 54, ¶ 10, 90 A.3d 443 (“This standard for

relevance is a low one.”).

[¶42] Measured against this low relevancy standard, the exclusion of

the father’s testimony regarding his plans to re-establish a relationship with

his children was error. The court was required to decide whether the father

was “unwilling or unable to protect the child from jeopardy and those

circumstances are unlikely to change within a time which is reasonably

calculated to meet the child’s needs” or was “unwilling or unable to take

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responsibility for the child within a time which is reasonably calculated to

meet the child’s needs.” 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii).

[¶43] The father’s testimony regarding his plans for re-establishing a

relationship with his children was essential to the court’s evaluation of

whether termination of the father’s parental rights would be in the best

interests of the children. It is difficult to understand how the court could have

decided whether termination of parental rights was in the best interests of the

children, a decision that necessarily looks to the future, without hearing the

father’s testimony regarding his plans for a relationship with his children.

The father’s testimony regarding his plans for a relationship with his children

also was relevant to the court’s determination of parental unfitness,

specifically whether, looking to the future, the father would be unable or

unwilling to protect his children from jeopardy or take responsibility for his

children within a time reasonably calculated to meet their needs.

[¶44] The court’s error in excluding the father’s testimony regarding

his plans to reestablish a relationship with his children was not harmless. See

M.R. Civ. P. 61. An error is reversible and not harmless if a “substantial right”

of the party is affected. See id.; In re Joshua B., 2001 ME 115, ¶ 10,

776 A.2d 1240. Because the exclusion of this testimony prejudiced the

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father’s ability to defend his parental fitness and had a direct effect on the

father’s fundamental right to parent and the children’s best interests, the

court’s error in excluding this testimony, by itself, would require that the

judgment be vacated.

2. Lack of Evidence Concerning the Stepfather’s Prior Terminations

of Parental Rights

[¶45] The evidence falls materially short of including the records,

testimony, or other evidence regarding the prospective adopting parent’s past

history that should have been considered prior to terminating the father’s

parental rights. It is unclear why these records were not disclosed, but they

were necessary for the court to have prior to determining the children’s best

interests. See In re Brandon D., 2004 ME 98, ¶¶ 13, 15, 854 A.2d 228 (vacating

the court’s judgment terminating the father’s parental rights where the court’s

lack of findings concerning the children’s best interests was in direct

proportion to the lack of evidence presented by the prospective adoptive

parents).7

7 We have said that “the deprivation of parental rights is in many ways similar to the

deprivation of liberty interests at stake in criminal cases.” In re M.P., 2015 ME 138, ¶ 26,

126 A.3d 718. In a criminal case, the criminal defendant must be afforded a proper opportunity to

attack evidence presented against him bearing on his guilt in order to provide the defendant with a

fair trial. See State v. Ledger, 444 A.2d 404, 412 (Me. 1982); State v. Lovely, 451 A.2d 900, 902

(Me. 1982) (vacating the court’s judgment where the court denied the defendant’s request for voir

dire aimed at a type of bias that was directly intertwined with the charges alleged against him and

failed to develop factual circumstances about the request prior to making a judgment).

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[¶46] The stepfather briefly testified about his three children from

prior relationships and the prior termination of his parental rights as to two of

the children. There was also limited testimony regarding the stepfather’s

struggles with substance abuse. Evidence in the record, however, does not

disclose, for example: (i) why the stepfather’s rights to two of his three

children were terminated; (ii) what was or is the nature of the stepfather’s

relationship with the mothers of each of his three children; (iii) where the two

children, as to whom the stepfather’s parental rights were terminated, are

now; (iv) whether those two children were placed with individuals with

whom the stepfather may have contact; (v) whether issues other than

substance abuse, such as domestic violence, contributed to the terminations;

and (vi) why parental rights to a younger child were terminated while the

father was permitted to maintain limited contact with one of the ten-year-old

In criminal cases, where self-defense is an issue essential to the defendant’s case, the court’s

failure to instruct on self-defense deprives the defendant of a fair trial. State v. Davis,

528 A.2d 1267, 1270 (Me. 1987). Further, in a post-conviction hearing where the court is asked to

evaluate “claims of ineffective [assistance of counsel] arising from trial counsel’s failure to present

evidence to impeach witnesses who provide incriminating testimony, the court may consider

factors such as the strength of the State’s case, the effectiveness of the actual defense presentation,

and the significance of the impeachment value of evidence that trial counsel failed to develop.”

Theriault v. State, 2015 ME 137, ¶ 30 n.9, 125 A.3d 1163.

Although the present case is not a criminal case, before terminating a parent’s fundamental

right to parent his or her children in order to permit those children to be adopted by a specific

individual, the court cannot determine that adoption is in the children’s best interest, to the

standard of clear and convincing evidence, without having all of the necessary information about

the prospective adoptive parent.

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boys. In response to questions at oral argument, we were advised that the

two ten-year-old boys had different mothers, but this information was not

before the trial court.

[¶47] This case appears to be a matter of first impression in requesting

the court to terminate the parental rights of a father so that his children may

be adopted by a stepfather who, when he was at about the same age as the

father is now, had his parental rights terminated to two of his three children.

Were the stepfather facing a state-initiated child protective proceeding, there

could be a rebuttable presumption that he is unwilling or unable to protect

the children from jeopardy because a “court has previously terminated

parental rights to another child who is a member of the same family.” See

22 M.R.S. § 4055(1-A)(D). Considering the unique nature of this case, it is

concerning that neither the parties nor the guardian ad litem presented

essential details of the stepfather’s prior history or relationships with children

to the court.

[¶48] Without sufficient background information and documentation

regarding the stepfather’s prior terminations of parental rights, we cannot

affirm the court’s final judgment terminating the father’s parental rights. The

court could not, without this information, find that termination of the father’s

25

parental rights was in the best interests of his children in order to free the

children for adoption by the stepfather. Terminating the father’s parental

rights without this information was error.

3. Best Interests of the Children

[¶49] In considering the children’s best interests, the court is required

to consider “the needs of the child[ren], including the child[ren]’s age, the

child[ren]’s attachments to relevant persons, periods of attachments and

separation, the child[ren]’s ability to integrate into a substitute placement or

back into [their] parent’s home and the child[ren]’s physical and emotional

needs.” 22 M.R.S. § 4055(2). Also relevant to the best interests determination

is the harm the children may suffer if the parent’s rights are not terminated, as

well as the children’s need for permanence and stability. In re Jacob B.,

2008 ME 168, ¶ 14, 959 A.2d 734; see also Adoption of Lily T., 2010 ME 58,

¶ 37, 997 A.2d 722.

[¶50] Isabelle and Abigail were seven and four years of age,

respectively, at the time of the termination hearing. Both girls live in a stable,

permanent family home with their mother and stepfather. The girls call their

stepfather “Daddy” and he is a big part of their lives, acting as a father-figure

for them in many ways. However, the lack of evidence regarding the

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stepfather’s prior termination of his parental rights to two of his three

children did not allow the court to make an appropriate determination that

the adoption of Isabelle and Abigail by this individual was in the children’s

best interests.

[¶51] Significantly, the record contains no evidence that the father ever

harmed his children. The mother and the father both testified that, up until

his arrest, the father was a good parent to his children and that there were no

concerns about his parenting abilities. The reasons for the father’s limited

contact with his children since his arrest and incarcerations were

insufficiently explored on this record. On this record, the evidence does not

demonstrate, to the standard of clear and convincing evidence, that

termination of the father’s parental rights was in the children’s best interests.

IV. CONCLUSION

[¶52] In these circumstances, neither the court’s findings, nor the

record upon which those findings are based, can support a determination, by

clear and convincing evidence, that the father is an unfit parent or that the

father cannot provide a nurturing parental relationship with his children once

the relationship can be re-established. Further, the lack of sufficient evidence

concerning the stepfather and the court’s error in excluding the father’s plans

27

regarding reunification with his children undermine the court’s unfitness and

best interests findings.

[¶53] Accordingly, we conclude that the court’s finding of parental

unfitness and its determination of the children’s best interests are not

supported by clear and convincing evidence in the record. Therefore, the

judgment terminating the father’s parental rights must be vacated.

The entry is:

Judgment vacated. Remanded for entry of

judgment denying the petition for termination

of the father’s parental rights.

Wayne Doane, Esq. (orally), Exeter, for appellant father

Kerry Clark Jordan, Esq. (orally), Griffin & Jordan, LLC, Orono, for appellees

mother and stepfather

Penobscot County Probate Court docket numbers A-2016-48-1 and A-2016-49-1

FOR CLERK REFERENCE ONLY