MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	26	
Docket:	      Fra-16-388	
Submitted	 	
  On	Briefs:	 January	19,	2017		
Decided:	     February	7,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                    IN	RE	FOREST	G.	
	
	
PER	CURIAM	

       [¶1]	 	 The	 father	 of	 Forest	 G.	 appeals	 from	 a	 judgment	 of	 the	 District	

Court	(Farmington,	Oram,	J.)	terminating	his	parental	rights	to	his	child.		See	

22	 M.R.S.	 §	 4055(1)(B)(2),	 (1-A)(A)	 (2016).	 	 The	 father	 argues,	 for	 the	 first	

time	on	appeal,	that	the	court	violated	his	right	to	due	process	by	applying	a	

rebuttable	 presumption	 of	 parental	 unfitness	 and	 improperly	 placing	 the	

burden	of	proof	on	him.		See	id.	§	4055(1-A)(A).		We	affirm	the	judgment.	

       [¶2]	 	 In	 its	 termination	 order,	 the	 court	 explicitly	 stated	 that	 it	 found	

two	grounds	of	parental	unfitness	based	on	clear	and	convincing	evidence—

namely,	 that	 the	 father	 “is	 unwilling	 or	 unable	 to	 protect	 [the	 child]	 from	

jeopardy	within	a	time	which	is	reasonably	calculated	to	meet	his	needs,	and	

that	 he	 is	 unwilling	 or	 unable	 to	 take	 responsibility	 for	 [the	 child]	 within	 a	

time	 which	 is	 reasonably	 calculated	 to	 meet	 his	 needs.”	 	 See	 id.	

§	4055(1)(B)(2)(b)(i),	(ii).		After	making	those	separate	findings	of	unfitness,	
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the	 court	 also	 noted	 that	 a	 statutory	 rebuttable	 presumption	 of	 unfitness	

arose	based	on	an	“aggravating	factor”	consisting	of	conduct	that	the	court,	in	

a	 jeopardy	 order	 to	 which	 the	 father	 agreed,	 found	 was	 “heinous	 and	

abhorrent	to	society.”		See	id.	§	4055(1-A)(A).			

       [¶3]	 	 For	 two	 reasons,	 we	 need	 not	 and	 do	 not	 reach	 the	 father’s	

argument	 that,	 as	 applied	 in	 this	 case,	 the	 court’s	 application	 of	 a	 rebuttable	

presumption	of	parental	unfitness	violated	his	right	to	due	process.		Cf.	In	re	

Sarah	T.,	629	A.2d	53,	55	(Me.	1993)	(concluding	that	a	court’s	application	of	a	

rebuttable	 presumption	 of	 parental	 unfitness	 in	 a	 termination	 case	 did	 not	

violate	 a	 parent’s	 right	 to	 due	 process	 or	 equal	 protection).	 	 First,	 when	

certain	predicate	facts	are	proved,	the	express	terms	of	section	4055(1-A)(A)	

authorize	a	court	to	presume	only	one	of	the	two	forms	of	parental	unfitness	

that	 the	 court	 found	 here,	 namely,	 the	 parent’s	 inability	 or	 unwillingness	 to	

protect	the	child	from	jeopardy.		Because	the	court	also	found	an	alternative	

form	of	parental	unfitness,	its	reference	to	the	statutory	presumption	does	not	

draw	into	question	its	ultimate	determination	that	the	father’s	parental	rights	

should	be	terminated.		See	In	re	K.M.,	2015	ME	79,	¶	9,	118	A.3d	812	(“Where	

the	 court	 finds	 multiple	 bases	 for	 unfitness,	 we	 will	 affirm	 if	 any	 one	 of	 the	

alternative	 bases	 is	 supported	 by	 clear	 and	 convincing	 evidence.”	 (quotation	
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marks	 omitted));	 Malenko	 v.	 Handrahan,	 2009	 ME	 96,	 ¶	25,	 979	 A.2d	 1269	

(“As	an	appellate	court,	we	seek	to	avoid	answering	important	statutory	and	

constitutional	questions	unless	the	answer	is	truly	necessary	to	the	resolution	

of	the	parties’	dispute.”).	

         [¶4]	 	 Second,	 the	 court’s	 affirmative	 findings	 supporting	 its	 parental	

unfitness	 determination,	 which	 it	 set	 out	 in	 the	 judgment	 even	 before	

referring	to	the	statutory	presumption,	are	well	supported	by	the	evidence,	to	

the	clear	and	convincing	standard	of	proof,	as	illustrated	by	the	following:		

    • In	2009,	the	father	pleaded	guilty	to	one	count	of	endangering	the	
      welfare	 of	 a	 different	 child	 (Class	 D),	 17-A	 M.R.S.	 §	 554(1)(C)	
      (2009),1	and	agreed	to	a	jeopardy	order	in	this	case	in	which	the	
      court	 found	 that	 the	 serious	 injuries	 that	 were	 the	 basis	 of	 the	
      2009	 conviction—including	 injuries	 to	 that	 child’s	 head	 “with	
      intra-cranial	hemorrhage”—were	deliberately	inflicted.		
    	
    • During	the	pendency	of	these	proceedings,	the	father	denied	that	
      he	 had	 deliberately	 injured	 the	 child	 in	 the	 2009	 case	 despite	 a	
      contrary	 medical	 opinion,	 instead	 explaining	 to	 a	 Department	 of	
      Health	and	Human	Services	caseworker	that	he	had	been	“young	
      and	 irresponsible”	 and	 that	 the	 child	 had	 been	 injured	 when	 the	
      father	fell	down	the	stairs	after	taking	unprescribed	Percocet.		
	
    • Although	the	father’s	initial	visits	with	the	child	in	this	case	went	
      well,	 the	 visits	 were	 ultimately	 terminated	 after	 the	 father	

   1	 	 The	 statute	 provides	 that	 “[a]	 person	 is	 guilty	 of	 endangering	 the	 welfare	 of	 a	 child	 if	 that	

person	 .	 .	 .	 recklessly	 endangers	 the	 health,	 safety	 or	 welfare	 of	 a	 child	 under	 16	 years	 of	 age	 by	
violating	a	duty	of	care	or	protection.”		17-A	M.R.S.	§	554(1)(C)	(2009);	see	P.L.	2015,	ch.	358,	§	3	
(effective	Oct.	15,	2015)	(codified	at	17-A	M.R.S.	§	554	(2016))	(amending	the	statute	though	not	in	
any	way	that	affects	this	appeal).			
4	

       threatened	 to	 leave	 with	 the	 child,	 prompting	 supervisors	 to	
       contact	law	enforcement.		
       	
     • The	father	initially	prevented	the	Department	from	performing	a	
       scheduled	 hair	 follicle	 drug	 test	 by	 shaving	 his	 entire	 body,	 and	
       when	 he	 eventually	 submitted	 to	 a	 number	 of	 subsequent	 tests	
       they	 were	 positive	 for	 marijuana,	 and	 two	 tests	 in	 late	 fall	 2015	
       were	positive	for	opiates	and	morphine.		
       	
     • The	 father	 was	 convicted	 of	 operating	 under	 the	 influence	 only	
       one	month	before	the	termination	hearing.		
	
     • Although	 the	 father	 did	 “preliminary	 work”	 with	 two	 mental	
       health	 treatment	 providers,	 he	 did	 not	 provide	 them	 with	
       “complete	 and	 accurate	 information”	 and	 failed	 to	 complete	 a	
       psychological	evaluation	as	required	by	his	reunification	plan.		
       	
     • The	 father	 failed	 to	 consistently	 participate	 in	 mental	 health	
       services	 provided	 by	 the	 Department	 and	 engaged	 in	 “bizarre,	
       ineffective,	 irrational	 and	 nearly	 delusional	 actions”—as	
       exemplified	by	his	ongoing	belief	that	the	child	was	being	abused	
       in	 foster	 care	 despite	 the	 complete	 lack	 of	 evidence	 to	 support	
       that	 allegation,	 and	 two	 incidents	 a	 few	 months	 before	 the	
       termination	 hearing	 when	 his	 family	 members	 sought	 police	
       assistance	 because	 they	 were	 concerned	 for	 the	 father’s	 physical	
       and	psychological	welfare.			
	
These	 findings	 support	 the	 court’s	 determination	 that	 the	 Department	 had	

established	 the	 father’s	 parental	 unfitness	 and	 demonstrate,	 contrary	 to	 the	

father’s	 contention	 on	 appeal,	 that	 the	 court	 did	 not	 impermissibly	 shift	 the	

burden	of	proof	to	him.	

        [¶5]		Additionally,	although	not	challenged	by	the	father	on	appeal,	the	

court’s	finding	that	termination	is	in	the	child’s	best	interest	does	not	reflect	
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any	 error	 or	 abuse	 of	 discretion.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(a)	 (2016);	

In	re	Cameron	Z.,	2016	ME	162,	¶	16,	---	A.3d	---.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	      	     	    	
	
Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Berwick,	for	appellant	father	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
	
Farmington	District	Court	docket	number	PC-2014-08	
FOR	CLERK	REFERENCE	ONLY