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In re Kafia M., corrected 1-3-00
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 195 
Docket: 	Cum-99-227
Argued:	December 6, 1999
Decided:	December 23, 1999

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
IN RE KAFIA M.


CALKINS, J.

	[¶1]  The parents of Kafia M. appeal the judgment of the District Court
(Portland, Eggert, J.) terminating their parental rights.  The father,
Mohamed I., argues that the evidence was insufficient to support a
termination of parental rights.  The mother, Shamso H., argues that her due
process and equal protection rights were violated because she was not
provided an interpreter when the child protection proceeding was initiated. 
Both parents argue that their due process rights were violated because they
were not appointed separate counsel for the jeopardy phase of the case.  We
affirm the judgment.
I. PROCEDURAL HISTORY
	[¶2]  The District Court (Beaudoin, J.) issued a temporary child
protection order on March 11, 1996 awarding temporary custody of Kafia,
then two months old, to the Department of Human Services (DHS).  By
order dated March 18, 1996, Kafia's parents were found indigent, and the
court appointed an attorney to represent them in the proceedings. A
hearing on the child protection petition was held on March 26, 1996, and,
by agreement of the parties, the court (MacNichol, J.) granted the petition
and awarded custody of Kafia to DHS.  In its order after review, effective
May 7, 1996, and by the agreement of the parties, the court (Bradley, J.)
ordered that Kafia remain in DHS custody but set out a detailed visitation
schedule for the parents.  The order also included the statement that the
parties expected that Kafia would be placed with her parents as soon as it
was safe to do so.  Kafia was placed with her parents on May 20, 1996, but
on June 27, 1996, she was removed by DHS and returned to the same foster
family with whom she had resided previously.  After the next review in
October 1996, the court (Cote, J.) found that Kafia should stay in DHS
custody and that reunification efforts should continue. 
	[¶3]  Additional review hearings were held in January and April 1997,
and it was ordered that Kafia remain in DHS custody and that reunification
efforts continue.  By order dated September 18, 1997, the parents were
appointed separate counsel to represent them.  DHS petitioned for
termination of parental rights on February 6, 1998.  After two continuances,
the termination hearing took place over seven days in December 1998 and
January 1999.  The District Court issued detailed findings of fact and
terminated the parental rights of both parents.  The court also denied the
parents' motions to dismiss.{1}  After the parents filed timely appeals, the
court granted intervenor status to Kafia's foster parents.
II. FACTS
	[¶4]  The parents of Kafia were born in Somalia.  At the time of the
termination hearing Shamso was 33 years old and Mohamed was 40 years
old.  When war broke out in Somalia in 1991, they left the country.  They
met in a refugee camp in Kenya.  Mohamed had been married twice before. 
His first wife died leaving him with two children, and his second wife
abandoned him and their six children during the journey from Somalia into
Kenya.  Mohamed and Shamso married in 1995, and one child was born to
them in Kenya.  They immigrated to Maine through the assistance of a
refugee agency.  The twins, Kafia and Libon, were born in Portland in
January 1996.  Kafia was very small and had to remain in the hospital for
three weeks, but Libon was big enough to go home with his parents.
	[¶5]  When a home health nurse visited the home of Mohamed and
Shamso on March 6, 1996, she observed Kafia whimpering in her crib.  The
nurse noticed that one of Kafia's legs appeared to be broken.  She instructed
the parents to take Kafia to the hospital.  The radiologist found that Kafia
had three fractures of her leg bones.  Mohamed could not explain the
injuries except to say that Shamso had been massaging Kafia's legs to ensure
that her legs were straight.  According to Mohamed, his native culture values
straight legs.  Additionally, Kafia had fingernail scratches, bruising, a
frenulum tear and lip injuries.  The medical personnel concluded that the
injuries were nonaccidental and that Kafia was a victim of child abuse.    
	[¶6]  Upon obtaining the child protection order, DHS placed Kafia
with the intervenors who remained her foster parents throughout the time
she was in the custody of DHS.  Mohamed and Shamso received extensive
services from DHS in an attempt to allow Kafia's return to their home. 
Nurses visited with the family to deal with health issues and provided
parenting guidance.  Other agencies provided assistance on resettlement
and cultural issues as well as parenting support.  DHS returned Kafia to
Mohamed and Shamso on May 20, 1996, for a trial placement.  During this
time numerous care providers visited the home to assist the family and
ensure the safety of Kafia.  Although providers noticed minor injuries on
Kafia in June, they thought that the injuries could have been self-inflicted.
	[¶7]  On June 27, 1996, a DHS caseworker and a refugee settlement
worker were called to Kafia's home by Mohamed following an altercation
between the parents that began when Shamso threw a glass of milk at
Mohamed.  DHS decided to remove Kafia from the home at least
temporarily.  Kafia was returned to the foster parents who became
concerned about her physical condition and took her to a doctor.  X-rays and
bone scans of Kafia revealed multiple fractures in the clavicle, left femur,
and five ribs, all of which had occurred during the five weeks that Kafia was
at the home of Mohamed and Shamso.  Neither parent had any explanation
for these new injuries.  Kafia also showed significant regression from her
previous development.  She was no longer able to push up with her hands
when she was lying on her stomach and no longer able to hold a bottle or sit
without support.  Within a short time of being placed back into the foster
parents' home, Kafia progressed rapidly, gaining weight and reaching
appropriate developmental milestones. 
	[¶8]  After Kafia's removal from Shamso and Mohamed, they visited
weekly with her, together at first and later separately.  After Kafia started
talking, she began to protest going to the visits.  Shamso and Mohamed
moved into separate living quarters in 1997 because there was not enough
room for them and all of the children in one apartment and because Shamso
was having some difficulties getting along with her stepchildren. 
Mohamed's children from his previous marriages reside with him, while
three children born to Shamso and Mohamed live with Shamso, including a
baby born in December 1996.  The apartments of Mohamed and Shamso are
in the same housing complex and only a few feet apart.
III. SUFFICIENCY OF THE EVIDENCE
	[¶9]  In order for parental rights to be terminated DHS must prove, by
clear and convincing evidence, one of four possible statutory bases, in
addition to proving that termination is in the best interest of the child.  See
22 M.R.S.A. § 4055(1)(B)(2) (1992).  The trial court found that DHS proved
three statutory bases:  (1) Mohamed and Shamso are unwilling or unable to
protect Kafia from jeopardy and these circumstances are unlikely to change
within a time reasonably calculated to meet her needs; (2) they are unwilling
or unable to take responsibility for her within a time reasonably calculated to
meet her needs; and (3) they failed to make a good faith effort to rehabilitate
and reunify with Kafia.  See § 4055(1)(B)(2)(b)(i), (ii), (iv).  The court also
found that termination was in Kafia's best interest.  See § 4055(1)(B)(2)(a). 
Mohamed argues that the evidence was insufficient for the court to make
these findings by clear and convincing evidence.  For this challenge, we
examine whether the trial court "reasonably could have been persuaded on
the basis of evidence on the record that the required factual findings were
'highly probable.'"  In re Denise M., 670 A.2d 390, 393 (Me. 1996) (quoting
In re David H., 637 A.2d 1173, 1175 (Me. 1994)).  
	[¶10]  Although the trial court found three bases for the termination,
only one basis is necessary.  Because we conclude that there is sufficient
evidence that Mohamed is unable to protect Kafia from jeopardy and that
this situation is unlikely to change within a time reasonably calculated to
meet her needs, we do not address the sufficiency of the evidence on the
other two bases.{2}  
	[¶11]  Dr. Lawrence Ricci, Director of the Spurwink Child Abuse
Program, and Dr. Kerry Drach, a psychologist with Spurwink, testified at the
parental rights termination hearing.   Dr. Ricci examined Kafia on March 6,
1996, while she was in the hospital.  He also reviewed the x-rays taken after
she was returned to the foster parents in June.  He met the parents to
explain Kafia's injuries to them.  The trial court made the following findings:
	The evidence is overwhelming and uncontroverted that
Kafia sustained multiple and serious fractures in the care of her
parents, Mohamed [] and Shamso [].  Dr. Lawrence Ricci testified
that Kafia suffered from Battered Child Syndrome, which is
defined as multiple nonaccidental injuries to multiple systems. 
Furthermore, Kafia's injuries were not due to metabolic bone
disease or osteogenesis imperfecta.  Dr. Ricci opined that the
force required to cause any of Kafia's ten fractures would be so
excessive as to alert any reasonable person that Kafia was being
physically harmed.  More distressing, if Kafia continued to be
exposed to the level of force which caused her multiple
fractures, the result could be lethal.  Dr. Ricci testified that
placing Kafia with her parents with no explanation for the
injuries would subject Kafia to extreme risk.  Also, even though
the other children in the home appear to be healthy, Dr. Ricci
testified that physical abuse is often directed at only one child.
	The Court finds Dr. Ricci's testimony uncontroverted and
convincing.  Kafia, for whatever reason, is not safe with Shamso
[] or Mohamed [].  When Kafia lived with her parents, she was
seriously injured.  Since she has been in foster care, she has
thrived.  Kafia's injuries while in the care of her parents were
either caused by one or both of her parents, or at the very
minimum, by her parents' gross failure to protect Kafia from
physical abuse perpetrated by a third party.  The fact that Kafia
was so seriously injured on several occasions during an
extremely supported and monitored trial placement vividly
demonstrates that Kafia can not live with Mohamed [] or Shamso
[] under any circumstances.
	[¶12]  The compelling and uncontroverted evidence from Dr. Ricci
justifies the trial court's finding that Mohamed was unable in the past to
protect Kafia from jeopardy.  As Mohamed argues, the issue is not only
whether Mohamed was able to protect Kafia previously, but also whether he
is currently able to protect Kafia and, if not, whether that circumstance is
likely to change within the time reasonably calculated to meet her needs. 
See In re Howard P., 562 A.2d 1224, 1227 (Me. 1989).  While our inquiry as
to ability to protect from jeopardy is prospective, the evidence we consider
is retrospective.  See In re Nathaniel B., 1998 ME 99, ¶ 6, 710 A.2d 921,
922.
	[¶13]  In addition to the evidence of the serious injuries, the court had
before it sufficient evidence to support its conclusion that it is highly likely
the situation would not change within the time reasonably calculated to
meet Kafia's needs.  Dr. Drach led a team that performed psychological
evaluations of both Mohamed and Shamso in the summer of 1997.  The
evaluations were designed to take account of the cultural differences
between the United States and Somalia.  Dr. Drach also watched both
parents and the foster parents interact with Kafia.  In its findings, the trial
court quoted extensively from Dr. Drach's report which was also signed by
Dr. Ricci.  With regard to Mohamed, the report stated that he has "an
extremely rigid, inflexible personality pattern."  The examiners found that
Mohamed is "a difficult, litigious, demanding man with whom community
professionals have experienced significant difficulty establishing working
relationships."  The report classified Mohamed as suffering from a
personality disorder.  The court further quoted the following conclusion
from the report:  "[Mohamed's] style of interacting deviates significantly
from the norm, cannot be explained simply as culturally conditioned, and is
a significant factor that is preventing satisfactory solution of the current
child protective problem situation."  The court concurred in the report's
conclusion that "[l]ack of minimal observable change would indicate poor
prognosis for positive improvement."  The court noted that during the
evaluation process Mohamed did not take responsibility for Kafia's injuries
and on another occasion he blamed the DHS caseworker and Maine Medical
Center for causing Kafia's injuries.  
	[¶14]  The fact that Mohamed was unable to protect Kafia from serious
injury when she was two months old and again unable to protect her from
serious injury when she was five months old allows a factfinder to conclude
that it is highly unlikely that he will be able to protect her from serious
injury when she is two years old.  There is still no explanation for how the
injuries came about, whether they were inflicted by Mohamed, Shamso, one
of the children living in the household, or some other person.  The lack of
explanation does not bode well for ensuring that Mohamed can take steps to
prevent similar injuries in the future.  His personality disorder, lack of
cooperation with the service providers, denial for a long period of time of
any responsibility for Kafia's injuries, combined with the seriousness of the
injuries and the extraordinary efforts by DHS to reunite the family, all
provide support for the court's conclusion that Mohamed is unable to
protect Kafia from jeopardy and this circumstance is not likely to change in
a time reasonably calculated to meet Kafia's needs.
	[¶15]  On the issue of the length of time within which a parent should
be expected to obtain the ability to protect the child, we measure time from
the child's perspective, see In re Christopher J., 505 A.2d 795, 797-98 (Me.
1986).  For all children, permanency and stability are legislatively mandated
goals, and the impermanency of foster care is to be avoided.  See 22 M.R.S.A.
§ 4050 (1992).  From the evidence presented at the hearing the court could
have concluded that Mohamed's inability to protect Kafia was a circumstance
not likely to change for an indefinite period of time and the child should not
be made to wait indefinitely in the impermanence of foster care.
	[¶16]  The evidence also demonstrates a high probability that
termination is in Kafia's best interest.  The trial court expressly considered
the statutory factors, that is, Kafia's age; her attachment to the foster
parents and lack of attachment to Mohamed and Shamso; her integration in
the foster parent household; and her physical and mental needs.  See
22 M.R.S.A. § 4055(2) (Supp. 1999).  She is bonded with the foster parents
who want to adopt her, but not bonded to either her mother or father,
although she showed more attachment to Mohamed than to Shamso.  When
she was placed with the foster family in late June 1996, she was sad, woke
up screaming in the night, and was developmentally delayed.  She improved
rapidly, met the developmental milestones, and regained a sense of humor. 
She does not like visiting either Shamso or Mohamed and needs sustained
support from the foster parents before and after the visits.  The trial court
found that she is thriving in the foster family household.
	[¶17]  The court recognized that Kafia was born to a Muslim family and
that the foster family is not Muslim.  In the best of all possible worlds there
would have been a Muslim foster family to care for Kafia during the entire
time she has been in foster care.  See 22 M.R.S.A. § 4063 (1992).{3}  During
the proceedings, however, no Muslim family came forward to be Kafia's
foster family and no Muslim family was suggested by the parents.  The lack
of a Muslim foster family does not change the best interest analysis. 
Although the trial court appropriately considered Kafia's heritage, on these
facts the court was not compelled to find the lack of a Muslim foster family
to be a determinative factor.

Click here for Part 2 of this opinion.