stating, in discussing the importance of permanency for children, that “[i]n the lives of pre-adolescent children ... more than two years[ ] is an eternity”
How later courts described this case
- stating, in discussing the importance of permanency for children, that “[i]n the lives of pre-adolescent children ... more than two years[ ] is an eternity”
- affirming the court’s unfitness finding as to the mother when she remained unable to identify individuals who presented a risk of harm to her children despite her participation in counseling and other reunification services
- vacating the denial of a petition to terminate parental rights when, considering the child’s need for permanency, the denial prevented the child from being adopted
- affirming a court’s finding of unfitness as to a parent who was unable to identify the risk of harm posed to her children by certain individuals
Written by the judges who cited it.
The opinion
CALKINS, J.,
with whom DANA, J., joins, dissenting.
[¶ 37] I respectfully dissent. I write separately because I would affirm the judgment. In my view, the trial court followed the statute as enacted by the Legislature, its decision is supported by the evidence, and it did not abuse the discretion granted to it.
[¶ 38] Although I agree with that portion of the Court’s opinion regarding the standard of review, I disagree with the new requirement that the Court has engrafted onto the parental rights termination statute, effectively amending the statute. The new requirement provides that a court, when “considering the alternative of long-term foster care, [ ] must address whether a compelling reason supports its conclusion that long-term foster care will serve the child’s best interest over both the short and long-term.” While I understand the reasons for the Court’s creation of the new requirement, I believe it is up to the Legislature to determine whether the new requirement is warranted.
[¶ 39] Furthermore, even assuming that the new requirement is encompassed by the existing statutory language, I believe that the trial court addressed the issue and concluded that a compelling reason supported its decision to place the children in long-term foster care.
[¶ 40] The Court discusses the history of the policy of permanency and the statutory requirement of permanency planning, and I agree that there is no question that the federal and state statutes place an emphasis on permanency. The trial court acknowledged that permanency is a goal, but it also recognized that it is not the only goal of the child protection statutes. Although there is a policy favoring permanency, and although a child’s need for permanency and stability is a factor to be taken into consideration in determining the child’s best interest, neither the statutes nor our precedent make it the only factor. In fact, section 4055(2) lists the “[p]rimary considerations” that a court must consider: “the best interest of the child, the needs of the child, including the child’s age, the child’s attachments to relevant persons, periods of attachments and separation, the child’s ability to integrate into a substitute placement or back into the parent’s home *311 and the child’s physical and emotional needs.” 22 M.R.S.A. § 4055(2) (2004). Permanency is not listed among the “primary considerations,” but the Court would have permanency trump these other factors.
[¶ 41] There is no statutory presumption that termination is in the child’s best interest when reunification with the family of origin is no longer possible or appropriate and an adoptive parent has been identified. The Legislature did not create such a presumption. Instead, it listed factors for a court to consider and weigh in making a determination regarding termination. If it had intended permanency to be the only factor for a court to consider, it would not have listed the factors in section 4055(2).
[¶ 42] By requiring a court to articulate the compelling reason or reasons that long-term foster care is in the child’s best interest, the Court is creating a presumption that termination of parental rights is in a child’s best interest when reunification with the family of origin is no longer possible or appropriate and a potential adoptive parent has been identified. Under the Court’s decision today, it is not clear how or when the court would apply the factors listed in section 4055(2). The new requirement, and the presumption it creates, has the effect of putting the cart before the horse- — that is, determining whether adoption is appropriate before determining whether parental rights should be terminated. This is in contrast to the statutory scheme, which makes termination of parental rights a totally separate proceeding from the adoption process. 15
[¶ 43] In this case the trial court took the factors listed in section 4055(2) into consideration. With regard to the ehil-dren’s needs, it noted that Thomas’s counselor had testified that a major transition for Thomas would be difficult at this point. Neither child needed special treatment caused by the impermanence of foster care and neither exhibited behaviors that could be attributed to such. The court noted the ages of the children but did not make any particular findings as to how their ages may have figured into the equation.
[¶44] Concerning the factor in section 4055(2) of “the child’s attachments to relevant persons,” the court discussed the children’s, and in particular’ Thomas’s, relationship with their mother. It noted that Thomas’s counselor said he appeared happier after the visits with his mother became longer. The counselor recommended against termination and felt that Thomas’s ties with his mother should be maintained. The court also found that Thomas had a comfortable, loving, relationship with his foster family and considered himself to be a part of that family.
[¶ 45] With regard to the factor of “the child’s ability to integrate into a substitute placement or back into the parent’s home,” the court properly did not consider placement with the mother as the court had found that she could not protect the children from jeopardy. There was no suggestion of any other placement for the children other than the current foster family-
[¶ 46] It is apparent throughout its finding that the trial court was concerned with, and took into consideration, the children’s “physical and emotional needs.” In particular, the court was concerned about Thomas’s ties to the mother, and the emotional *312 disruption that could be caused by severing those ties.
[¶ 47] The court did not neglect permanency and was troubled by the impermanence that the current situation allows. Nonetheless, it weighed that impermanence with the benefits of the current situation. Maine does not have an “open adoption” option, see In re Melanie S., 1998 ME 132 , 712 A.2d 1036 , 16 and thus the court did not have the ability to terminate parental rights and at the same time require the adoptive parents to allow the children to retain their visits and communication with their mother. The court recognized that adoption is more permanent than foster care, but in weighing the permanency that could come with termination of parental rights and adoption by the foster family with the benefits of maintaining the children’s relationship with the mother, it found that the latter was more beneficial to the children. The court also realistically acknowledged that a permanency plan for adoption may be an illusion in some cases.
[¶ 48] Although the evidence in this case would allow a court to come to the opposite result and conclude that termination is in the children’s best interest, the evidence also allows for the result reached by the trial court. I cannot say that either result, given the record in this case, lay outside the court’s discretion. We should not substitute our views of the record for the court’s decision. Decisions as to the best interest of a child are among the most difficult that any court is called upon to make, whether in the context of private custody disputes or child protection actions. Our standard of review and the deference we give to such decisions is an acknowledgement of the difficult task, and the range of discretion reflects the difficulty. In this case the court properly took into consideration the goal of permanency, and it did not go outside of the bounds of its discretion in reaching its conclusion that termination of the parents’ rights was not in the best interest of the children. For these reasons, I would affirm the judgment.
. It is the Probate Court that has jurisdiction over adoptions. Before an adoption can be finalized, the Probate Court is required to find that the adoption is in the best interests of the adoptee. 18-A M.R.S.A. § 9-308(a)(5) (1998). The factors to be considered in making that determination are listed in 18-A M.R.S.A. § 9-308(b) (1998 & Supp.2004).
. Some jurisdictions have statutes addressing contact or communication by adoptive parents or the child with the birth parents. See Birth Mother v. Adoptive Parents, 118 Nev. 972 , 59 P.3d 1233 , 1235 n. 3 (2002) (citing several state statutes).