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In re Annie A.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 105
Docket:	Was-00-603
Argued:	May 17, 2001	
Decided:	July 13, 2001

Panel:	WATHEN, C.J., and RUDMAN, CLIFFORD, DANA,{1} SAUFLEY, ALEXANDER,
	and CALKINS, JJ.

					     		
									
IN RE ANNIE A.


ALEXANDER, J.

	[¶1]  The mother of Annie A. appeals from a judgment of the District
Court (Machias, Romei, J.) terminating her parental rights in her daughter. 
The mother contends that the court erred when it (1) found by clear and
convincing evidence that she was unable to take responsibility for Annie
within a time which was reasonably calculated to meet Annie's needs, and
(2) failed to accord Annie's maternal grandparents priority consideration for
Annie's placement.  We affirm the judgment.
I. CASE HISTORY
	[¶2]  The factual history of the case must be examined with
acknowledgement of a statutory mandate that gives grandparents priority for
consideration for placement if that placement is in the best interests of the
child.  The relevant statute provides:
In any proceeding when standing and intervenor status have
been granted, the grandparent may request the court to order
that the child be placed with the grandparent.  In making a
decision on the request, the court shall give the grandparents
priority for consideration for placement if that placement is in
the best interests of the child and consistent with the purposes
listed in section 4003.  
22 M.R.S.A. § 4005-B(4) (Supp. 2000).  The record supports the following
facts:
	[¶3]  Annie was born on September 1, 1999, and was immediately
removed from her mother's care.  On September 3, pursuant to a
preliminary child protection order obtained by the Maine Department of
Human Services (DHS), Annie was placed in a foster home.  Shortly
thereafter, the court conducted a summary preliminary hearing on the
protection order.  See 22 M.R.S.A. § 4034(4) (Supp. 2000).  At the hearing,
a DHS caseworker testified that Annie would be in jeopardy if she was
returned to her mother because Annie's father had an extensive history of
substance abuse and domestic violence.  After the hearing, the court ordered
that Annie remain in DHS custody because of her father's behavior and her
mother's minimization of that behavior and the threat it posed to Annie. 
The court also stated that the mother lacked "sufficient intellectual capacity
to be the primary caretaker of an infant."{1}
	[¶4]  Beginning in November 1999, the mother was allowed to visit
Annie at her foster home under the foster mother's supervision.  The visits
lasted three to four hours per day and occurred five days per week.  In
addition, Annie's mother attended weekly counseling sessions with a
licensed clinical social worker, and participated in a parenting capacity
evaluation conducted by a clinical psychologist.
	[¶5]  In early January 2000, the court received a report from Annie's
guardian ad litem.  The guardian's report noted that Annie's mother had
suggested that the mother's father and stepmother, who reside in Belleville,
Michigan, would be an appropriate placement for Annie.  The grandparents
later testified that they each had contacted a person at DHS in the fall of
1999 and attempted to arrange visits with Annie around Christmas or on
weekends, but were refused because at the time they had no legal standing.
	[¶6]  The court conducted a jeopardy hearing on January 10, 2000. 
See 22 M.R.S.A. § 4035(1) (Supp. 2000).  On January 18, authorities found
Annie's father's body in a snowbank.  He had died from exposure while
stranded during a snowstorm.  Apparently no party advised the court of this
significant change of circumstances between the January 10 jeopardy
hearing and the later jeopardy order.
	[¶7]  In its jeopardy order, the court determined that Annie should
remain in DHS custody at her foster home.  The court found that
circumstances of jeopardy existed due to "a serious threat of emotional
abuse, physical abuse and neglect" because of the father's violent personality
and substance abuse problem, and the mother's failure to recognize the
threats Annie's father's behavior posed to herself and Annie.  In addition,
the court ordered DHS to initiate a home study of Annie's Michigan
grandparents for potential placement and custody of Annie with a relative in
the event that reunification with the mother failed.  See 22 M.R.S.A. § 4191
(1992).
	[¶8]  Between the January 10 jeopardy hearing and the July 10
contested judicial review, reunification efforts continued as the mother
maintained her supervised visits with Annie{2} and attended her weekly
therapy sessions.  Near the end of January, a DHS caseworker contacted the
grandparents, and the grandparents expressed their interest in gaining
placement of Annie.  Shortly thereafter, the grandparents filed a motion for,
and were granted, intervenor status.  See 22 M.R.S.A. § 4005-B(2) & (3)
(Supp. 2000).
	  [¶9]  At the beginning of the July 10 contested judicial review, both
the mother's counsel and the court expressed disappointment because the
grandparents' home study had not yet been received.  Counsel requested a
continuance until its receipt.  DHS opposed the continuance, and the court
denied the request.   The home study had been completed on June 17 and
mailed from Michigan on or after July 1.  It is not clear when DHS received
it.  A cover page indicates that DHS had the study in its possession on or
before July 13.  Thus, DHS may have received the home study between
July 10 and July 13.  
	[¶10]  During the July 10 hearing, the mother's therapist testified that
the grandfather has had little involvement in his daughter's life and that the
grandfather was reluctant to address or identify her intellectual limitations. 
Following the hearing, the court issued an order allowing DHS to cease its
reunification efforts.  In its order, the court discussed the importance of
bonding and the great extent to which Annie had already bonded with her
foster parents.  The court also noted that despite her diligent efforts,
Annie's mother never will have the capacity to protect Annie or appreciate
her special needs.  Finally, the court stated that the grandfather has never
been a significant part of his own daughter's life, and that it would "not
lightly transfer custody to someone who has not been a part of-a significant
part of Annie's life, if any part at all, but has been really a rather insignificant
part of [the mother's] life . . . ."{3}
	[¶11]  The Michigan home study indicated that Annie's grandparents
currently have two young children of their own.  The home study
characterized the grandparents' marital relationship as "stable, respectable,
and loving," and noted that they "were very supportive of each other and
anxious to adopt Annie."  The study concluded "that the [grandparents']
home is an extremely loving home capable of nurturing and raising another
child," and that although Annie's grandfather "feels badly that Annie cannot
be raised by her mother, he has accepted [the mother's] limited abilities and
is prepared to raise his granddaughter."  The home study ultimately
approved Annie's placement with the grandparents.
	[¶12]  DHS filed a petition to terminate the mother's parental rights
on August 2, and the court conducted a termination hearing on
September 25.  At the hearing, a DHS caseworker testified that Annie had
significantly bonded with her foster mother and that she did not believe
Annie's placement in the grandparents' home was in Annie's best interests. 
The caseworker also stated her concern that placement in the
grandparents' home was really a situation designed to allow the mother to
raise Annie.  On cross-examination, the caseworker admitted that Annie's
mother had done everything she could to comply with reunification and had
been diligent in her efforts, but had made only minimal improvements in
several areas.  The caseworker also testified that her plan from the
beginning was to support Annie's placement with the foster parents in the
event that reunification with her mother failed.{4}
	[¶13]  The grandmother testified that she first had contact with DHS
in December 1999.  She stated that she talked to a DHS worker on the
telephone for about thirty minutes, and that she told the worker that she
and her husband would never permit Annie's mother to move to Michigan to
raise Annie.  
	[¶14]  Once they were granted intervenor status, the grandmother
testified she and Annie's grandfather were told they would be allowed one
visit per month with Annie.  The visits were to last only one hour, and had to
be scheduled between Monday and Friday.  Cf. 22 M.R.S.A. § 4005-B(6)
(Supp. 2000).  Annie's grandmother explained that if there had been some
flexibility allowing a longer weekend visit, it probably would have made a
difference in terms of their coming from Michigan to Maine for a visit.  The
grandmother testified that it was difficult to come to Maine during the week
for a one hour visit because it was a twenty hour drive, she worked full-time,
it was expensive, and they had two young children.  The grandmother also
stated that DHS told her that "it was in Annie's best interest if [she and her
husband] stayed out of Annie's life and basically just let the State take care of
it."
	[¶15]  Annie's grandfather testified that he told Annie's mother she
would not be permitted to come to Michigan to raise Annie, and that Annie's
mother understood that the grandparents would be Annie's parents.  The
grandfather further stated that he recognized that Annie's mother has
limited intellectual ability, but that he did not want "people-outsiders-
telling me my child has a-is limited."  On cross-examination, the
grandfather admitted that he knew Annie had been in foster care since
September 1999, but that he did not come to Maine to see her until one
supervised visit in August 2000.  He explained that he was raising his two
children and that he was "getting the run-around" from DHS. 
	[¶16]  Following the termination hearing, the court entered a
judgment terminating the mother's parental rights in Annie finding, by clear
and convincing evidence, that (1) termination was in Annie's best interests;
(2) her mother was unable to protect Annie from jeopardy and the
circumstances were unlikely to change within a time which was reasonably
calculated to meet Annie's needs; and (3) the mother was unable to take
responsibility for Annie within a time which was reasonably calculated to
meet Annie's needs.
	[¶17]  The court noted that "[Annie's mother] has been regular in her
visits and she loves Annie [but] regrettably, however, given her intellectual
limitations, she will never be able to keep Annie safe or be able to meet her
emotional or developmental needs."  The court further noted that "Annie,
by all reports, is a happy and healthy child with some developmental delays. 
She has been in her present foster home since birth and she's closely
bonded to her foster parents.  Her foster parents are sensitive to her delays
and have shown the ability to put services in place for her."{5}  Finally, the
court concluded that the grandparents are "good people," but their lack of
insight into Annie's developmental needs, the grandfather's inability to
acknowledge Annie's mother's developmental delays, and the significant
bonding that had occurred between Annie and her foster family, established
that it was in Annie's best interests to remain at her foster home.  The court
then adopted DHS's permanency plan and ordered that Annie remain with
her foster parents.  Annie's mother brought this appeal.  The grandparents
did not appeal.
II. DISCUSSION
A.  	Termination of Parental Rights

	[¶18]  A court may terminate parental rights if the parent is unable to
protect the child from jeopardy or to take responsibility for the child within
a time which is reasonably calculated to meet the child's needs, and if 
termination is in the best interests of the child.  22 M.R.S.A.
§ 4055(1)(B)(2)(a) and (b)(i-ii) (1992 & Supp. 2000).  The court can
terminate parental rights only if it finds, by clear and convincing evidence,
that these elements have been satisfied.  22 M.R.S.A. § 4055(1)(B)(2).
	[¶19]  "When reviewing sufficiency challenges for clear and convincing
evidence, we examine whether the trial court could have reasonably been
persuaded on the basis of evidence in the record that the required factual
findings were highly probable."  In re Charles G., 2001 ME 3, ¶ 5, 763 A.2d
1163, 1165-66 (citation omitted).  Therefore, if "'rational or competent
support in the record'" exists for the District Court's findings, we must
sustain them.  Id. ¶ 5, 763 A.2d at 1166 (quoting In re David G., 659 A.2d
859, 861 (Me. 1995)).
	[¶20]  Proof of any one of the four statutory definitions of parental
unfitness, pursuant to 22 M.R.S.A. § 4055, is independently adequate to
justify termination if supported by clear and convincing evidence and a
separate finding that termination is in the child's best interests.  Id. ¶ 6,
763 A.2d at 1166.  In this case, although it needed to find only one, the trial
court determined that DHS proved two of the parental unfitness grounds by
clear and convincing evidence.  See id.  See also In re Kafia M., 1999 ME
195, ¶ 10, 742 A.2d 919, 923.  Specifically, the trial court found that (1)
Annie's mother was unable to protect Annie from jeopardy and the
circumstances were unlikely to change within a time which was reasonably
calculated to meet Annie's needs, see 22 M.R.S.A. § 4055(1)(B)(2)(b)(i); and
(2) Annie's mother was unable to take responsibility for Annie within a time
which was reasonably calculated to meet Annie's needs.  22 M.R.S.A.
§ 4055(1)(B)(2)(b)(ii).
	[¶21]  The evidence is sufficient to support the court's findings of
parental unfitness and best interests.  The evidence demonstrates that DHS
made significant efforts to promote reunification with the mother by
providing counseling, frequent visitation, and parenting skills education. 
See 22 M.R.S.A. § 4041 (1992 & Supp. 2000).  Although there is no dispute
that Annie's mother loves her daughter very much, has made every effort
through counseling and visitation to learn effective parenting skills, and has
been cooperative and diligent in her attempt to gain the skills necessary to
be a competent parent for Annie, the court could conclude that the
mother's limited cognitive skills have placed a barrier on her ability to
retain and generalize information.  The evidence supports the conclusion
that the mother lacks the cognitive ability to learn, retain, and apply basic
parenting skills such as washing baby bottles, holding a baby safely, and
protecting a baby or toddler from everyday household dangers.  Accordingly,
because the evidence establishes that it is highly probable that the mother
will always remain unable to independently take responsibility for Annie, the
evidence is sufficient to support the trial court's findings supporting 
termination.

B.	Grandparent Placement

	[¶22]  The grandparents did not appeal the court's placement
decision.  Annie's mother, however, raises the issue because Annie's
placement with the foster parents assuredly deprives the mother of any
contact with her daughter.  Conversely, placement with the grandparents
may provide a situation within which the mother could maintain some level
of meaningful contact with Annie.  Accordingly, although the grandparents
are not parties to the appeal, we consider the issue properly before us on
the basis of the mother's appeal and her direct and substantial interest in
maintaining contact with her daughter within her family structure.
	[¶23]  As noted in the case history, section 4005-B(4) requires that
intervening grandparents be accorded priority status for placement
consideration if such placement is in the grandchild's best interests.  There
is no dispute, nor could there be on this record, that the grandparents were
not accorded priority status pursuant to the statute.  The record establishes
that DHS, from the beginning, intended the foster parents to serve as the
adoptive family of Annie in the event that reunification with her mother
failed.  DHS, the guardian ad litem, and the foster parents were consistently
opposed to the possibility of Annie's placement with the grandparents.  The
court was persuaded by such opposition.  
	[¶24]  In its order terminating parental rights and awarding
placement to the foster parents, the court found that the grandparents were
"good people" but addressed neither the information in the home study nor
the grandparents' testimony at the hearing.  Thus, the grandparents
received no priority consideration.
	[¶25]  However, the Legislature has directed that a favorable "best
interest" determination is a prerequisite to giving grandparents priority
consideration for placement.  Thus, section 4005-B(4) directs that
grandparents shall receive priority consideration for placement only "if that
placement is in the best interests of the child and consistent with the
purposes listed in section 4003."
	[¶26]  In this case, Annie's placement with the grandparents would be
consistent with the purposes of the Act.{6}  In addition, placement with the
grandparents promotes the goal of family reunification.  See 22 M.R.S.A.
§ 4003(3).{7}  In allowing the grandparents to intervene, the court must have
found that (1) the grandparents had made sufficient effort to establish a
relationship with Annie; (2) granting intervenor status was in Annie's best
interests; and (3) the grant of intervenor status was consistent with the
purposes of the Act.  See 22 M.R.S.A. § 4005-B(3).{8}  Those findings standing
alone, however, do not compel a finding that placement with the
intervening grandparents is in the child's best interests.
	[¶27]  In the context of a termination hearing, the trial court
determines the best interests of the child by relying on such factors as "the
needs of the child, including in its analysis, the child's age, the child's
attachment 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, and the child's physical and emotional needs."  In re Charles
G., 2001 ME 3, ¶ 14, 763 A.2d at 1168.  See 22 M.R.S.A. § 4055(2) (Supp.
2000).{9}
	[¶28]  Annie is a twenty-two month-old child who has experienced
some developmental delays.  She has lived with her foster family since she
was two days old, and has never known a different home.  In contrast, she
has visited with her grandparents, perhaps by no fault of the grandparents,
for only one hour.  She has significantly bonded with her foster mother and
has never experienced any substantial period of separation from her. 
Although she may be able to integrate into a substitute placement with her
grandparents, it is not evident that the grandparents have a plan for services
to address Annie's special needs.  In addition, the record contains some
evidence suggesting that Annie's grandfather failed to recognize, at some
level, the special needs and developmental delays of his own daughter.  The
foster family can provide Annie with love, affection, and guidance, and their
home provides the stability that she needs now and may need in the future if
her special needs further develop.  This evidence is sufficient to support the
court's finding that it is in Annie's best interests to maintain her present
placement, rather than to remove her from the foster home and give
priority consideration to placement with the grandparents.  
	[¶29]  The trial court acted appropriately in granting the
grandparents' intervenor status, promptly ordering a home study, weighing
the grandfather's prior demonstrated deficits against Annie's current
placement, and concluding that Annie's best interests will be served by
placement with her foster parents where her developmental delays are
more likely to be recognized and addressed.
	[30]  To resolve the priority status issue in the mother's favor, we
must determine that the evidence compels a finding that placement with
the grandparents is in Annie's best interests.  See Estate of Sylvester v.
Benjamin, 2001 ME 48, ¶ 9, 767 A.2d 297, 300 (party with burden of proof,
challenging an adverse factfinding, must demonstrate that a finding in that
party's favor is compelled by the evidence) (citation omitted).  On this
record we find no error because the evidence supports the court's finding
that placement with the foster parents was in Annie's best interests.  Thus,
the grandparents were not entitled to the priority consideration provided in
22 M.R.S.A. § 4005-B(4).
	The entry is:
			Judgment affirmed.

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