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In re Alana S.
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MAINE SUPREME JUDICIAL COURT					                    Reporter of Decisions
Decision:	2002 ME 126
Docket:	   Was-01-669
Argued: 	   June 11, 2002
Decided:	August 2, 2002

Panel:    SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS,
              and LEVY, JJ.

							

                                                   IN RE ALANA S.


ALEXANDER, J.

	[¶1] The parents of Alana S. appeal from a judgment of the District Court
(Machias, Romei, J.) terminating their parental rights pursuant to 22 M.R.S.A.
§ 4055(1)(B)(2) (1992).  The parents assert that the evidence of their parental
unfitness is insufficient to support termination of parental rights by the requisite
clear and convincing evidence standard.  They also assert that the court erred in
admitting the testimony of a social worker addressing bonding and separation
issues regarding their child.  Because the District Court's findings were consistent
with legislative policies promoting termination of parental rights and adoption in
the circumstances of this case, we affirm.

                                                 I.  CASE HISTORY

	[¶2] Alana S. was born on July 7, 1999.  She resided with her parents until
January 20, 2000, when the Department of Human Services took Alana into its
custody based on a temporary order of protection.  The temporary order was
obtained based on information regarding domestic disputes in the home, although
the exact nature of the disputes and the extent to which they did, or did not,
involve physical violence remains unclear. 

	[¶3] Alana was returned to her parents on January 26, 2000.  Domestic
disputes and immature parenting decisions continued to afflict the family, leading
to a jeopardy hearing, 22 M.R.S.A. § 4035(1) (Supp. 2001), on March 29, 2000. 
After this hearing, the court found circumstances of jeopardy to the child's health
and welfare, 22 M.R.S.A. § 4002(6) (1992).  The court again placed Alana in the
custody of the Department, although Alana remained with her mother and,
pursuant to the court's order, both entered a placement at St. Andre's Home in
Bangor.  Separately, the court ordered the mother and father to attend individual
counseling and the father to attend domestic violence counseling.  Mother and
daughter remained at St. Andre's until late June 2000 when the mother left,
abandoning Alana.  The mother returned to St. Andre's in early July, remaining
in the program approximately three weeks before again abandoning Alana to be
with the father.  On July 28, 2000, Alana was placed with her current foster
parents who have become pre-adoptive parents.  

	[¶4]  For her first three months in the foster home, Alana, who was barely a
year old at the time of the placement, demonstrated significant attachment
problems, having to be held and comforted regularly by her foster mother.  The
record indicates that Alana has made significant improvements in her ability to
relate to both her natural parents and her foster parents since that time.  The
natural parents' contact, however, has been limited to brief weekly visits.

	[¶5] The record reflects that after the mother left St. Andre's Home, the
mother and father resumed living together.  They actively and with some success
engaged in the counseling offered by the Department to improve their parenting
skills, their ability to relate to each other, and their prospects for reunification
with Alana.  The couple now has another child.  In its termination order, the
District Court found "no evidence" suggesting jeopardy to this child in the current
parenting arrangement.  Virtually all the evidence indicated that both mother and
father have made progress, using the counseling and support programs offered by
the Department to improve their relationship and their parenting skills.  However,
the evidence also indicated that, at the time of the hearing, the parents were not
yet in a position to reunite with Alana and would need much more counseling and
rehabilitation support before reunification could be a serious possibility.

	[¶6] The Department filed a petition for termination of parental rights in
March 2001.  A hearing was held on the petition in July 2001.  At the hearing, the
witnesses generally recognized the progress that the parents had made in their
parenting skills and in their relationship, as a result of the counseling and support
services offered by the Department.  However, several witnesses indicated that the
parents still had issues that, perhaps, would prevent full reunification with Alana. 
Even the mother's counselor indicated that the mother's capacity to parent two
children was uncertain.  Over the parents' objection, one witness testified that,
because Alana had significantly bonded with her foster parents during the year she
had lived with them, she would likely be subject to significant emotional trauma if
she was returned to a living arrangement with her parents, rather than remaining
with, and being adopted by, her foster parents.  	

	[¶7]  The State and guardian ad litem argued in support of termination
primarily because (1) full reunification was not possible in the near future; (2)
Alana may be emotionally disrupted by continuing efforts to reunify her with her
natural parents; and (3) she has benefitted from bonding with her foster parents. 
These positions were taken despite the State's and the guardian's recognition of
the significant progress that the natural parents had made.  Thus, the State argued
to the court as follows:


Alana is in a secure attachment with her foster parents. She's been
there for close to a year. To remove this child and place her in the
home of parents who have completed a counseling program, who
have demonstrated wholehearted cooperation with a reunification
plan over time, who have realistic expectations of what they're
accounting for—what they're in—should be expecting, that might
make some sense. As [a clinical social worker] said, it might be
possible, were this child several years older. But we have Alana, at
the critical stage of two years. . . . We have this expert saying, in her
testimony to you, in a sense, she couldn't even fabricate a—or
construct a program to return Alana to the care of her birth parents
. . . I gather she couldn't even envision a way to do that, that would
not be emotionally disastrous for the child. So that's essentially the
jeopardy and the best interests.


	[¶8] The guardian ad litem's report, after recognizing that the parents'
therapists supported continuing efforts towards rehabilitation, despite a contrary
position taken by an independent evaluator, stated:


If I viewed the progress of the parents as the primary issue in this
matter, I would not hesitate to do the same because I believe [the
parents] are trying to make changes and are making progress.
However, since I view this case as being mostly about Alana's
attachment issues, I find [the independent evaluator's] suggestion that
[the parents] have attachment issues of their own very troubling.


Later the guardian stated: "From my perspective, the major issue in the case is the
extent to which Alana will suffer attachment difficulties if removed from the
foster family at this time."  

	[¶9] The guardian ad litem concluded as follows:


Even though [the parents] have made great strides in their therapy, I
do not believe they could meet Alana's needs at this time. If she
were returned to their care in the near future, she would be both
extremely needy and extremely demanding. The stress of dealing
with her demands as well as those of the new baby could cause [the
natural parents] to fall back into their old dysfunctional patterns of
behavior. Finally, I am mindful of [the independent evaluator's]
finding that both [natural parents] have unresolved attachment issues
of their own. Such issues would make it more difficult for [the
natural parents] to help Alana address her attachment problems.

In my best judgment, Alana needs to remain in the foster home at this
time. It is only there that she can feel safe enough to develop a
healthy attachment to her caregivers and to continue to grow and
develop normally. For those reasons, I recommend that the petition
for termination be granted so that Alana can be adopted by her foster
family.


	[¶10] In its order terminating parental rights, the District Court stated that
the guardian ad litem's report "is consistent with this order." Applying the clear
and convincing evidence standard, the court then made brief conclusory findings
regarding the elements necessary to support termination of parental rights pursuant
to 22 M.R.S.A. § 4055(1)(B)(2).  As applied in this case, § 4055(1)(B)(2)
provides that termination of parental rights may be ordered when the court finds
by clear and convincing evidence that:


(a) Termination is in the best interest of the child; and

(b) Either:

(i) The parent is unwilling or unable to protect the child from
jeopardy and these circumstances are unlikely to change within
a time which is reasonably calculated to meet the child's needs;

(ii) The parent has been unwilling or unable to take
responsibility for the child within a time which is reasonably
calculated to meet the child's needs; [or]

. . . .

(iv) The parent has failed to make a good faith effort to
rehabilitate and reunify with the child pursuant to section 4041.


The court's findings closely followed this language.  The court then made specific
findings detailing the history of the case and stating its disappointment with the
natural parents' failure to take advantage of the opportunities provided to them to
remain with Alana prior to July 2000.  

	[¶11]  The court addressed Alana's present living situation, noting that she
had "become bonded to her foster parents" and that "if Alana was removed from
her foster home, she would be at tremendous risk of psychological harm."  The
court noted, however, that the testimony from the parents' therapists indicated that
"these parents are making present progress in their relationship, and there is no
evidence to suggest jeopardy to [the other child] in the current state of affairs." 
The court stated that the mother had expressed some concerns about her ability to
parent two children but that the father was more optimistic in that regard.  The
court also found that the natural parents "need further counseling to maintain
stability in their relationship."  The court concluded its special findings by again
referencing Alana's "bond" with her foster parents and her "continuing emotional
need for the stable home environment they provide" and noting again the natural
parents' failures in early 2000 that led to the foster placement.  Accordingly, the
court concluded that: "The foster parents are seeking to adopt Alana.  Alana
should remain in the custody of the Department until adoption occurs."

	[¶12] Based on this analysis, which the court stated was similar to the
guardian ad litem's position, the court terminated parental rights.  The natural
parents then brought this appeal.

                                                       II.  DISCUSSION

	[¶13] From a review of the record, it is evident that the court agreed with
the State and the guardian ad litem, concluding that, despite the natural parents'
significant progress, jeopardy and parental unfitness were established based (1) in
part, on the fact that the natural parents were not yet ready to resume parenting
and their future prospects of resuming parental capacity were uncertain, and (2) 
in part, on the perceived bonding of Alana with her foster parents and the
anticipated emotional disruption that would be inherent in returning Alana to her
natural parents, no matter how competent their parenting skills.  

	[¶14]  The "bonding" factor and the fully predictable emotional disruption
that any child is likely to encounter when any long-term parenting arrangement
changes are appropriate for consideration in the court's "best interest" analysis. 
22 M.R.S.A. § 4055(1)(B)(2)(a).  However, the fact that a very young child may
have bonded with the child's foster parents, because the child has lived with those
parents for a significant portion of the child's life, cannot control an evaluation of
the parenting capacity or parental fitness of the natural parents pursuant to 22
M.R.S.A. § 4055(1)(B)(2)(b).

	[¶15]  In In re Scott S., 2001 ME 114, ¶¶ 19-21, 775 A.2d 1144, 1150-51,
we emphasized the significant body of precedent regarding termination matters
that provides that a court must first determine that the State has proven parental
unfitness by clear and convincing evidence.  We held that "'notwithstanding the
sequence in the statute, the trial court must find, by clear and convincing
evidence, one of the four bases of parental fitness . . . before it may consider the
best interests of the child.'"  Id. ¶ 19, 775 A.2d at 1150-51 (quoting In re Melanie
S., 1998 ME 132, ¶ 5, 712 A.2d 1036, 1037).  Therefore, we stated that,
"although 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, 775
A.2d at 1151.

	[¶16] In Scott S., we vacated because, while the court made all of the
necessary parental unfitness findings, the court indicated that its best interest
determination took precedence over parental unfitness.  Id. ¶ 1, 775 A.2d at 1146. 
Our reasoning in Scott S. was grounded in the constitutional rights of parents that
are inherent in the parent-child relationship, as articulated by the United States
Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000).  Id. ¶ 20 n.12, 775
A.2d at 1151.  In Troxel, the Court stated that "[t]he liberty interest . . . of parents
in the care, custody, and control of their children [ ] is perhaps the oldest of the
fundamental liberty interests recognized by this Court."  Troxel, 530 U.S. at 65.
  
	[¶17] In Rideout v. Riendeau, 2000 ME 198, ¶ 12, 761 A.2d 291, 297, we
stated that, through the application of these fundamental rights, "the best interests
of the child standard, standing alone, is an insufficient standard for determining
when the State may intervene in the decision making of competent parents."  The
reason for the constitutionally required separation of parental fitness issues from
best interest issues, which includes bonding, is apparent on even cursory
examination.  If bonding analysis is the sole determiner in a parental fitness
analysis, then any time a child, particularly a very young child, is placed into
foster care for a period of time, bonding may occur.  Given improper weight,
bonding may be used to justify permanent alienation of a child from the child's
natural parents, no matter how competent the natural parents may be.  

        [¶18] The purposes stated for the Child and Family Services and Child
Protection Act include direction to the Department and the courts to "[g]ive
family rehabilitation and reunification priority as a means for protecting the
welfare of children, but prevent needless delay for permanent plans for children
when rehabilitation and reunification is not possible."  22 M.R.S.A. § 4003(3)
(Supp. 2001).  Accordingly, the law in effect at the time directed the Department
to support parents through counseling and other services to improve their
parenting skills.  22 M.R.S.A. § 4041(1)(A) (Supp. 2001);{1} see also In re Annie
A., 2001 ME 105, ¶ 21, 774 A.2d 378, 384.  

	[¶19]  The family rehabilitation purposes of the law would provide false
hope for natural parents who successfully commit themselves, with Department
guidance, to acquiring new parenting skills, only to be told that their efforts and
successes are for nothing, because their child, once bonded with a foster family,
will not be returned to them.  The Legislature cannot have intended such a result.  

	[¶20]  While the trial court may have been mistaken in emphasizing the
bonding factor in making its findings regarding parental unfitness, it is evident
that other factors, independent of bonding, supported the parental unfitness
determinations.  The court found three of the four parental unfitness criteria stated
in 22 M.R.S.A. § 4055(1)(B)(2)(b) proven by clear and convincing evidence.  If
the record supports any one of the three alternatives found by the court, then the
court's findings are sufficient to support termination.

	[¶21] The purpose statement of the termination of parental rights law, 22
M.R.S.A. § 4050 (1992), includes the Legislature's statement of intent to
"[e]liminate the need for children to wait unreasonable periods of time for their
parents to correct the conditions which prevent their return to the family," id.
§ 4050(2), and to "[p]romote the adoption of children into stable families rather
than allowing children to remain in the impermanency of foster care," id.
§ 4050(3).

	[¶22] Here, the record before the District Court established, without
significant dispute, that (1) as of the date of the hearing, Alana had been in the
Department's custody for approximately 18 months; (2) she had been living with
her pre-adoptive parents for approximately one year; (3) the child had a need for
stability and permanency in relationships; and (4) the natural parents were not in a
position to soon secure full-time parenting and their future prospects to do so were
uncertain.

	[¶23] Thus, the court's finding that the parents were "unwilling or unable to
take responsibility for [Alana] within a time which is reasonably calculated to
meet the child's needs," id. § 4055(1)(B)(2)(b)(ii), is established, really without
much doubt, particularly when the legislative policies governing termination are
considered.

	[¶24] Because this alternative finding of parental unfitness is supported by
evidence that is at least clear and convincing, the court's termination judgment
must be affirmed.

	[¶25] As a separate issue on appeal, the natural parents challenge the court's
admission of the testimony of a social worker regarding the impact of bonding
and the potential emotional disruption that the child might face if she was returned
to her natural parents.  If there was any error in the admission of this testimony it
was harmless because the court's judgment is supported by findings unrelated to
the bonding issue.  

	The entry is:

			Judgment affirmed. 
_____________________________________

Attorneys for the appellants:

Betsy Crane, Esq.   (orally)
P.O. Box 39 
Milbridge, Maine 04658

Norman Toffolon, Esq.
P.O. Box 58
Machias, Maine 04654


Attorneys for the appellee:

G. Steven Rowe, AG
Matthew Pollack, AAG
Michael C. Kearney, AAG   (orally)
State House Station 6
Augusta, Maine 04330

Guardian Ad Litem:

James Crotteau, Esq.
950 Douglas Highway
Lamoine, Maine 04605

FOOTNOTES******************************** {1} . 22 M.R.S.A. § 4041(1) has been repealed and replaced by P.L. 2001, ch. 559, §§ CC-4, CC-5 (enacting 22 M.R.S.A. § 4041(1-A) (effective March 25, 2002) clarifying rehabilitation and reunification responsibilities and services)).