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In re Kayla M.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 166
Docket:	Yor-01-259
Submitted
  on Briefs:	September 10, 2001
Decided:	December 10, 2001

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




IN RE KAYLA M.



DANA, J.

	[¶1]  The father of Kayla M. appeals from the judgment of the District
Court (Springvale, Wheeler, J.) terminating his parental rights contending
the evidence was insufficient.  We affirm the judgment.
I. BACKGROUND
	[¶2]  In December of 1990, the Department of Human Services (DHS)
filed a petition for a child protection order alleging that seven-month-old
Kayla was in circumstances of jeopardy to her health or welfare because of
her mother's history of mental illness and her father's "history of substance
abuse and recent DWI conviction."   Shortly thereafter Kayla entered State
custody and was placed with the foster family with whom she now resides.
	[¶3]  In January of 1992, DHS questioned whether Kayla had been
sexually abused by the father; the father denied the charge and the
allegations were later found to be unsubstantiated.  Nevertheless, visitation
with the father was suspended because of these allegations and Kayla's
"energetic[] refus[al] to see her father by becoming extremely emotionally
upset."  Kayla remained with her foster family with the understanding that
her therapist would address issues of visitation and reunification between
the father and child.  The court (Springvale, Janelle, J.) in 1995, required
the parties to arrange a psychological evaluation of the family system
involving Kayla; "the evaluation shall specifically address what the long-term
placement plans for this child should be, and the child's reluctance to visit
with her parents."{1}  The order reiterated that the parties should encourage
Kayla to visit her father, so long as the interaction was not detrimental to
her best interests.
	[¶4]  In April of 1997, the court (Portland, Wheeler, J.) indicated that
long-term foster care was the permanent plan for Kayla.  The order also
provided for continued visitation with Kayla's father, amounting to one visit
per week.   DHS filed the first petition for termination of parental rights in
1998, claiming the father had failed to make a good faith effort to
rehabilitate and reunify with Kayla.   The court (Biddeford, Foster, J.) denied
the petition, and decided that while DHS had no reunification obligations it
"remained obligated to make contact available" between the father and Kayla
(as long as the contact was not detrimental to Kayla's best interests).
	[¶5]  The status quo was maintained{2} until December of 2000 when
DHS filed a second petition to terminate parental rights, with the biological
mother consenting to the termination.  The petition was granted by the
court (Springvale, Wheeler, J.) in March of 2001.  Contending that his
relationship with Kayla was prevented by "false allegation[s] not one proven,
not one piece of factual evidence," the father, on appeal, challenges the
sufficiency of the evidence.
II. DISCUSSION
	[¶6]  When we review sufficiency challenges, we examine 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
Breauna N., 1999 ME 191, ¶ 19, 742 A.2d 911, 915.   "Deference is paid to
that court's superior perspective for evaluating the weight and credibility of
the evidence."  In re Leona T., 609 A.2d 1157, 1158 (Me. 1992).
	[¶7]   A court must first find the State "has met its burden of proving
parental unfitness under one of the four prongs of 22 M.R.S.A.
§ 4055(1)(B)(2)(b)," and only then may the court consider the best interest
of the child.  In re Scott S., 2001 ME 114, ¶ 19, 775 A.2d 1144, 1150.
 
	A.	Parental Unfitness

	[¶8]  We have recognized that removal from a foster home can
constitute "jeopardy" within the meaning of 22 M.S.R.A. § 4055.  See In re
Colby E., 669 A.2d 151 (Me. 1995); In re Dean A., 491 A.2d 572 (Me.
1985).{3}  The impermanency of foster care is to be avoided; permanency and
stability are mandated goals.  In re Kafia M., 1999 ME 195, ¶ 15, 742 A.2d
919, 925 (citing 22 M.R.S.A. § 4050 (1992): one of the underlying purposes
of the Act is to "promote the adoption of children into stable families rather
than allowing children to remain in the impermanency of foster care"). 
When assessing the propriety of terminating parental rights the inquiry is
"child specific," meaning though the parent is adequately caring for other
children, this does not control the court's decision.  In re Alexander D.,
1998 ME 207, ¶ 23, 716 A.2d 222, 229.  A parent is "unable," within the
meaning of section 4055, to protect a child from jeopardy when "that
parent is incapable for whatever reason."  In re Colby E., 669 A.2d at 152 
(quoting In re John Joseph V., 500 A.2d 628, 630 (Me. 1985)).  
	[¶9]  Examining the record, we conclude that sufficient evidence was
presented to persuade the trial court that it is highly probable that the
father is incapable of protecting Kayla from jeopardy and that these
circumstances are unlikely to change in a time reasonably calculated to meet
Kayla's needs.  The evidence includes the testimony of Debra Fredette, a
clinical social worker, who facilitated a March 2000 meeting between the
father and Kayla.
	[¶10]  During the meeting the interactions became negative when
Kayla said, "I want to live with [my foster parents], with my mother and
father."  The father and Kayla disagreed about an event that happened
several years ago, and the meeting deteriorated; Fredette testified that the
father began disagreeing with everything Kayla said, interrupting repeatedly. 
The father became "dissociative . . . [bringing] in pieces of different times
and different events . . . different workers . . . that they had lied."  Kayla
cried and asked to leave; Fredette testified the father was unable to focus on
the present, or the emotional state of his daughter.   Though Fredette tried
to redirect the father's attention, he remained "transfixed" on the past. 
Fredette ended the meeting because Kayla was "really crying and wanted to
leave."  Fredette also emphasized that the father thought the meeting had
gone "really well," which supported her sense of the father's disconnection
with the reality of what actually happened.  Fredette recommended there
should be no further contact between Kayla and the father because she "felt
like [the father] was emotionally abusive . . . and I didn't feel he had the
capacity to understand that."  Fredette described Kayla as having
"narcissistic tendencies [which develop] if attachments are not really secure
for kids, then they can begin to be self-focused [lacking] empathy for
others."  Fredette concluded Kayla needs "solid grounding . . . and then she
would begin to believe that [she] can rely on other people . . . .  There is a
connection between relying on others and a capacity for empathy."  Fredette
testified that Kayla has been saying since she was four and a half years old
that she did not want to see her father and that Kayla does not have the
capacity to form an attachment with her father.
	[¶11]  Donna Bailey, the guardian ad litem, testified after the joint
meeting with the father and Fredette, Kayla was "extremely upset . . . it
merely cemented in her mind what she already believed . . . that her father
was not there for her . . . didn't care about her . . . was mean . . . didn't care
that she was crying, didn't have sympathy and that she wanted to have
nothing to do with him."  Bailey did not think the father was capable of
meeting Kayla's emotional needs in the future.
	[¶12]  The evidence fully supports the court's conclusion that the
father is unable to respond to Kayla's emotional needs, as evidenced by his
complete disconnection to Kayla's distraught emotional state at their last
meeting.  As the psychological evalution concluded: "[The father is] focused
almost exclusively on his insistence that the child should be with her
biological family and is unable to balance Kayla's needs with his own
desires."

	B.	Best Interests

	[¶13]  The best interest of the child standard pursuant to section
4055(B)(2)(a) is met when there has been significant bonding with the
foster mother, the child has not experienced any "substantial period of
separation" from the foster mother, and the foster family can give the child
"love, affection, and guidance, and their home provides the stability that the
child] needs now and may need in the future. . . ."  In re Annie A., 2001 ME
105, ¶ 28, 774 A.2d 378, 386; see, e.g., In re Charles G., 2001 ME 3, ¶ 9,
763 A.2d 1163, 1167 (termination of parental rights is in child's best
interest when child, then age twelve, indicated he wished to be adopted by
the foster family, foster mother wanted to adopt child, and there was a
strong attachment between child and foster family); In re Serena C., 650
A.2d 1343, 1345 (Me. 1994) (termination of parental rights in best interest
of child who had difficulty making attachments, who refused to visit
biological mother and when did became angry and hyperactive; the child
needed the permanence of the foster family).{4}
	[¶14]  Kayla has spent the majority of her life with her foster family. 
As the guardian ad litem testified, Kayla views her foster parents as her
"psychological parents in every sense of that word."  She "looks to [the
foster parents] for guidance, direction.  She clearly looks to Missy, the other
girl [the family] adopted, as her sister."  Thus, there is sufficient evidence in
the record to support the District Court's finding that termination of the
father's parental rights is in Kayla's best interest. 
	The entry is:
			Judgment affirmed.

For appellant: John J. Sr. 736 Ross Corner Road Shapleigh, ME 04076 Attorneys for appellee: G. Steven Rowe, Attorney General Christopher C. Leighton, Asst. Attorney General Deanna L. White, Asst. Attorney General Lise Wagner, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Donna Bailey, Esq. 88 North Street Saco, ME 04072-1925 Attorney for mother: Kathryn Bedell, Esq. Ballou & Bedell 647 U.S. Route 1 York, ME 03909 Intervenors: Marc & Denise H. P O Box 345 Lebanon, ME 04027
FOOTNOTES******************************** {*} . Wathen, C.J., sat at oral argument and participated in the initial conference, but resigned before this opinion was adopted. {1} . The evaluation resolved the unsettled question of sexual abuse; the evaluators concluded "no credible evidence exists" to support an allegation of sexual abuse by the father. At the time of the evaluation Kayla was six years of age. The report noted because of the disruption in the relationship with her father, "he is practically a stranger to her now." Kayla was described as "highly anxious" and at risk for emotional and behavioral difficulties. The evaluation tried to explain why Kayla "vehemently resisted visitation with her parents . . . with extreme emotional behavior." The evaluators concluded that the resistance was a "function of normal levels of anxiety" due to transitions at times of visitation, supported and amplified by the beliefs of the adults surrounding Kayla who thought the father had sexually abused Kayla. The report stated the father's parenting competence appeared to be "adequate" at the time, but problems were identified, "based primarily in his rather self-involved personality style and could lead to some difficulties in the areas of attachment and empathic responsiveness." The evaluation cautioned: One clear risk for negative emotional outcomes that is likely to ensue upon an effort to reunify [is] the disruptive impact of such a move upon Kayla's strong emotional attachment to her foster parents, especially her foster mother. Whatever the historical circumstances, it is [the foster mother] not [the father] who is now in the role of primary psychological parent to Kayla. It will thus be important to weigh any efforts toward reunification against the dangers of disrupting the child's primary attachment relationship. {2} . Kayla remained in the same foster home, and the contact with her father was at the discretion of DHS with input from a therapist. {3} . The Court affirmed the District Court's order terminating the mother's parental rights, based on the finding that the mother was unable to protect her son from jeopardy "because the bonding which has developed between Dean and his foster parents makes his removal from the home a threat to his health and welfare by mental injury or impairment." In re Dean A., 491 A.2d at 574. {4} . See also In re Justin S., 595 A.2d 1058, 1060 (Me. 1991) (recognizing consideration of the best interest standard included child's insecurity about the future which caused behavioral problems; permanency with the foster family in child's best interest); In re Hope M., 1998 ME 170, ¶ 6, 714 A.2d 152, 154 (holding when child asked if she could be adopted by foster family and evidence that failing to provide the child with permanency through adoption would cause her long-term injury, termination of the father's rights justified regarding the best interest standard); In re Kafia M., 1999 ME 195, ¶ 16, 742 A.2d 919, 925 (recognizing because foster parents wanted to adopt, child had not bonded with biological parents, did not like visiting parents, needed "sustained support" after such visits, and child was "thriving" in foster family household, terminating parental rights was in the best interest of the child).