In re Child of Scott A.
In re Child of Scott A.
Opinion
[¶1] Scott A. appeals from a judgment of the District Court (Biddeford, Sutton, J. ) terminating his parental rights to his child pursuant to 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii), (iv) (2018). 1 The father asserts that the judgment violates his right to due process because the court predicated factual findings that he was involved in illegal drug activity in part on his invocation at trial of his Fifth Amendment privilege against self-incrimination. We affirm the judgment.
I. BACKGROUND
[¶2] The following facts are drawn from the court's findings, which are supported by competent record evidence, and from the procedural record.
See
In re Child of Shayla S.
,
[¶3] The Department of Health and Human Services first became involved with this family in 2004 due to various reports of abuse and neglect. In March of 2017, the older sibling of the child at issue here reported that the parents were both abusing drugs and selling drugs from the home. 2 The sibling also stated that the child was not attending school and that his needs were not being met.
[¶4] During a departmental caseworker's interview of the child, he reported being very fearful of both of his parents and of activities in the basement of the home. He told the caseworker that he woke up "bawling" each morning, that many people went in and out of the home, that his mother drank a lot, and that his mother had told him that she wished that she and the child were dead.
[¶5] Three days after the Department received that information, police were dispatched to the home in response to the mother's report of a domestic violence incident. When the police arrived, the mother recanted her initial complaint but had visible bruising on her face, reported feeling *119 suicidal, and stated that she had been drinking. Shortly after, with the father's consent, a safety plan was implemented, and the child began to live with his grandparents. The child was still living in his grandparents' household when the termination order was issued nearly two years later. 3
[¶6] Near the end of March of 2017, the Department filed a child protection petition. See 22 M.R.S. § 4032 (2018). In the petition, the Department alleged that the child was in jeopardy due to neglect, emotional abuse, and the threat of physical abuse due to the parents' ongoing substance abuse, untreated mental health issues, and exposure to domestic violence.
[¶7] In July of 2017, the parents agreed to a jeopardy order and judicial review and permanency planning orders ( Cantara, J. ), which placed the child in departmental custody. 4 The order required, among other things, that the father engage in substance-abuse and domestic-violence treatment and in other therapy to address his "emotional dysregulation." The order explicitly provided that the therapeutic provider was to be someone approved by the Department. Despite that requirement and his long-standing addiction to a narcotic prescription medication, he subsequently refused to engage in substance abuse treatment except with a person who had not been approved by the Department. After the jeopardy order was issued, the father twice tested positive for cocaine.
[¶8] The Department filed a petition for termination of parental rights in February of 2018.
See
22 M.R.S. § 4052 (2018). Two months later, while driving his vehicle, the father was stopped by local police officers and Maine Drug Enforcement agents. During the stop, one of the officers observed a container with what appeared to be packets of heroin in the vehicle. The father was arrested and ultimately indicted in federal court for one count of possession of fentanyl and one count of possession of fentanyl with the intent to distribute and conspiracy to distribute fentanyl,
[¶9] The court (
Sutton, J.
) held a two-day termination hearing in February of 2019.
See
22 M.R.S. § 4054 (2018). One of the witnesses was the father.
6
During his testimony, he asserted his privilege
*120
against self-incrimination in response to any question regarding the circumstances that led to the pending drug charges and some other drug-related activity. In its judgment, the court drew an inference adverse to the father regarding the issues raised in those questions,
see
M.R. Evid. 513(b) ;
In re Ryan M.
,
[¶10] In a judgment issued later in February of 2019, the court terminated the father's parental rights to the child. The court found, based on clear and convincing evidence, that the father was unwilling or unable to protect the child from jeopardy or to take responsibility for the child and that those circumstances were unlikely to change within a time reasonably calculated to meet the child's needs, and that the father had failed to make a good faith effort to rehabilitate and reunify with the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv). The court also determined that termination of the father's parental rights is in the best interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a). The father filed a timely appeal from the judgment. See 22 M.R.S. § 4006 (2018) ; M.R. App. 2B(c)(1).
II. DISCUSSION
[¶11] The father contends that he "was denied a fair hearing" because he "was powerless to exercise his right to 'respond to claims and evidence' ... without giving up his constitutional right to incriminate himself [
sic
]," and that the court's factual findings regarding his criminal involvement with drugs, based on his assertion of his privilege against self-incrimination, violated his right to due process. As the father recognizes, the claim of error was not preserved, so we review the judgment for obvious error.
See
In re Child of James R.
,
[¶12] "As applied to a termination hearing, balancing the interests, where significant rights are at stake, due process requires[ ] notice of the issues, an opportunity to be heard, the right to introduce evidence and present witnesses, the right to respond to claims and evidence, and an impartial factfinder."
In re Adden B.
,
[¶13] It is well-settled that in civil actions-including child protection proceedings-"the fact finder may draw an appropriate inference from a party's claim of the privilege against [self-incrimination]." M.R. Evid. 513(b) ;
see also
In re Ryan M.
,
[¶14] The court also committed no error by considering evidence of the father's long history of substance use and his drug-related criminal conduct, established in part by the adverse inferences discussed above, as factors that contributed to the determination of parental unfitness.
7
See
In re Logan M.
,
[¶15] On this record, the court was entitled to conclude-as it did-that the father was parentally unfit within the meaning of at least one statutory definition of that legal standard.
See
22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv) ;
In re Arturo G.
,
The entry is:
Judgment affirmed.
In the same judgment, the court also terminated the mother's parental rights. Because she has not appealed, we discuss those aspects of the evidence and the procedural record that bear only on the father.
The sibling was seventeen years old when she reported that information. The sibling was also a subject of the child protection petition in this case but attained majority shortly after the termination petition was filed as to the child at issue here, and the Department did not seek to terminate the parents' parental rights as to her. See 22 M.R.S. § 4052(1) (2018) (stating that a termination petition may be filed as to a "child"); see also 22 M.R.S. § 4002(2) (2018) (defining a "child" as a person younger than 18 years old). After the sibling became an adult, an extended care order was issued for her. See 22 M.R.S. § 4037-A (2018).
The child has lived with his maternal grandparents since at least July of 2017, but the record is not entirely clear whether he initially came to live with them or with his paternal grandparents as part of the March 2017 safety plan.
Although the child began residing with his grandparents in March of 2017, the Department had not sought a preliminary protection order when it filed the child protection petition that month, see 22 M.R.S. § 4034(1) (2018), and the record indicates that the child was not placed in departmental custody until the July permanency planning order was issued.
The court was presented with evidence that the arrest resulted from drug-related violations of the conditions of his pretrial release.
For the first day of the hearing, even though the court had issued a transport order for him to attend in person, he was not brought to the courthouse, and the court made arrangements that allowed him to appear telephonically. On the second day of the hearing, the father was present in court.
The father does not challenge the court's determination that termination is in the child's best interest. In any event, on this record, such a challenge would have been unavailing.
See
In re Children of Christopher S.
,
Appropriately, the court made clear that its determination of parental unfitness was not predicated solely on the father's incarceration and the prospect of years-long incarceration. Rather, the court considered that circumstance as a factor, combined with others, that led to a more comprehensively-based conclusion that the father is parentally unfit within the meaning of section 4055(1)(B)(2)(b).
See
In re Cody T.
,
Reference
- Full Case Name
- In Re Child of Scott A.
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