MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 91
Docket: Ken-25-28
Submitted
On Briefs: December 30, 2025
Decided: August 18, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, LIPEZ, JJ, and
HORTON, A.R.J.
Majority: STANFILL, C.J., and MEAD, CONNORS, DOUGLAS, and LIPEZ, JJ,
Concurrence: HORTON, A.R.J., and LAWRENCE, J.
IN RE CHILD OF KAREN J.
MEAD, J.
[¶1] Karen J. appeals from an order of the District Court (Augusta,
Montgomery, J.) terminating her parental rights to her child. She contends that
the court erroneously relied upon her failure to relocate to Maine as a
significant factor in its conclusion that she was unfit to care for her child when
she had, in the court’s words, “gone above and beyond” the Department’s
requirements for reunification. Because we conclude that the court’s
substantial reliance on the mother’s inability to return to Maine to reunify with
the child in reaching its determination of unfitness, and the failure of the court
to identify any other indicia of unfitness, was erroneous, we vacate the
judgment and remand the matter to the trial court.
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I. BACKGROUND
A. Procedural History
[¶2] On August 8, 2021, the Department of Health and Human Services
filed a petition for a child protection order after the mother was found
intoxicated with her child, having called 9-1-1 to ask for a ride back to her home
state of New Mexico. She had traveled to Maine with her child to meet an
individual, who had prior domestic violence assault convictions, after
corresponding with him online. A preliminary protection order was issued the
same day, and on August 16, 2021, the mother waived her right to a summary
preliminary hearing. On August 26, 2021, the court (Nale, J.) ordered the
Department to reach out to its New Mexico counterpart to begin the process of
placing the child in New Mexico pursuant to the Interstate Compact on the
Placement of Children (ICPC). See 22 M.R.S. §§ 4191-4247 (2026). On
November 2, 2021, the court (Gilbert, J.) issued a jeopardy order based on the
mother’s substance misuse and her exposure of the child to unsafe partners.
[¶3] The child was returned to New Mexico on November 29, 2021, with
notice to, and approval of, the New Mexico Child Youth and Family Department
(NMCYFD). On March 16, 2022, a Department case worker called the mother
and, concerned that she was intoxicated, subsequently called the New Mexico
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State Police to do a welfare check. The NMCYFD then took the child into custody
but refused to continue the placement and gave the Department until March 22,
2022, to retrieve the child and return him to Maine. The Department returned
the child to Maine and placed him with his previous resource parent.
[¶4] The Department filed a reunification plan on September 28, 2022,
requiring the mother to engage in random drug and alcohol screenings,
participate in a neuropsychological evaluation, maintain safe and stable
housing, engage with case management for mental health and housing needs,
be involved in all support services and education for her child, and engage in
parenting classes. The court issued two orders on judicial review and
permanency planning, on September 29, 2022 (Nale, J.), and March 2, 2023
(Montgomery, J.), noting that the mother was inconsistent in attending her
intensive outpatient program and was not engaging with her child’s providers,
and ordering the Department to facilitate this engagement.
[¶5] In April, the Department informed the mother that it required
supervised in-person visits between the mother and her child and requested
that the mother come to Maine. On October 15, 2023, the Department filed
another reunification plan, containing the same requirements as the prior plan,
indicating that “it is recommended that [the mother] return to the State of 4
Maine in order to have in person visitation with her [child] . . . to enable the
Department to observe her ability to parent.” The plan noted that the mother
had made progress on the reunification requirements.
[¶6] On October 17, 2023, the Department filed a petition for termination
of parental rights. On March 28, 2024, the court (Daniel Mitchell, J.) held
another hearing on judicial review and permanency planning, finding that the
child was flourishing in his placement with his resource parent and that the
mother was progressing as required by the reunification plan. The mother
came to Maine on April 11 and 12, 2024, with the Department paying for her
airfare and lodging, so that she could look for housing. She was unsuccessful in
locating satisfactory, affordable housing for herself and her child.
[¶7] The court (Montgomery, J.) held a two-day hearing on the
termination petition on July 9 and September 17, 2024. In between the hearing
dates, on July 31, 2024, the Department filed another reunification plan, which
now required the mother to “work with her case manager to obtain housing in
Maine.” On October 7, 2024, the court entered a judgment terminating the
mother’s parental rights. In the judgment, after finding that the mother had
“gone above and beyond” in satisfying the requirements of the reunification
plans, the court found by clear and convincing evidence that the mother was
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unwilling or unable to protect the child from jeopardy and was unwilling or
unable to take responsibility for the child, and that these circumstances were
unlikely to change within a time that is reasonably calculated to meet the child’s
needs; and that she had failed to make a good faith effort to rehabilitate and
reunify with the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii), (iv) (2026). The
court further found that termination of the mother’s parental rights was in the
child’s best interest. See id. § 4055(1)(B)(2)(a).
[¶8] On October 17, 2024, the mother filed a motion for amended or
additional findings and to alter or amend the judgment. See M.R. Civ. P. 52(b),
59(e). On October 26, 2024, the Department moved to amend the order
terminating the mother’s parental rights. On December 29, 2024, the court
granted the Department’s motion and denied the mother’s motion. The mother
timely appealed. See 22 M.R.S. § 4006 (2026); M.R. App. P. 2B(c)(2).
B. Trial Court Findings of Fact
[¶9] “The court made the following factual findings, all of which are
supported by competent record evidence.”1 In re Children of Christopher S.,
2019 ME 31, ¶ 6, 203 A.3d 808. The child is nine years old and has autism, “with
1 Because the mother filed a motion for amended or additional findings of fact that was denied,
our review is limited to the express findings of the court, and “we cannot assume that the court implicitly found facts sufficient to support its ultimate determination.” Atkinson v. Capoldo, 2021 ME 27, ¶ 10, 250 A.3d 1099.
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exceptionally high needs,” having issues with speech, eating, toileting, volatility
and aggression, elopement, and mobility. “He must be watched constantly and
be within an arm’s length of his caretakers.” The child has seventeen providers
to treat his conditions. The resource parent has provided him with exceptional
care so that all his needs are met. The child has bonded with his resource
parent.
[¶10] The mother has resided in New Mexico throughout this case,
having been a resident for her entire life. As to the requirements of the
reunification plan, the court expressly noted that she went “above and beyond
what she has been asked to do by [the Department] to address her own
individual issues.” She has completed intensive outpatient programs for both
substance abuse and mental health treatment, in addition to receiving a
neuropsychological evaluation. She continues to participate in mental health
counseling and regularly attends parenting classes. Further, the mother joined
and actively engaged with a domestic violence support group. All her random
substance screenings have been negative.
[¶11] The mother “remotely attends many of [the child’s] medical and
service provider appointments” and has become involved in multiple
organizations, in New Mexico and online, focused on autism. She has a safe,
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well-maintained apartment in New Mexico, that is covered by a housing
voucher. If she were to transfer her voucher to Maine, she would lose her home
in New Mexico and would not be able to get it back. The sole requirement of
the reunification plan that the mother did not complete was relocation to Maine
for an indefinite amount of time so that the Department could supervise her
interactions with her child.
II. DISCUSSION
A. Legal Standard
[¶12] “We must review this case within the constitutional framework
imposing a heightened burden to prove parental unfitness by clear and
convincing evidence,” In re Child of Barni A., 2024 ME 16, ¶ 39, 314 A.3d 148,
because “the parental interest in maintaining the parent-child relationship is
one of the most fundamental liberty interests protected by our constitution.”
In re Jazmine L., 2004 ME 125, ¶ 12, 861 A.2d 1277. The process of terminating
parental rights involves two distinct and sequential steps: (i) “a trial court must
first find one of the four statutory bases of parental unfitness in 22 M.R.S.
§ 4055(1)(B)(2)(b),” and only if the court finds by clear and convincing
evidence that at least one basis exists, (ii) “it must [then] consider the best
interest of the child.” In re Child of Barni A., 2024 ME 16, ¶ 13, 314 A.3d 148. 8
A court cannot consider terminating parental rights, even if it may be in the
child’s best interest, unless it finds by clear and convincing evidence that the
parent is unfit. See id.
[¶13] “We will set aside a finding of parental unfitness only if there is no
competent evidence in the record to support it, if the fact-finder clearly
misapprehends the meaning of the evidence, or if the finding is so contrary to
the credible evidence that it does not represent the truth and right of the case.”
In re Children of Quincy A., 2023 ME 49, ¶ 12, 300 A.3d 832 (quotation marks
omitted). We review the court’s final decision regarding the child’s best
interest for an abuse of discretion. In re Children of Christopher S., 2019 ME 31,
¶ 7, 203 A.3d 808.
B. Parental Unfitness
[¶14] The Department’s “rehabilitation and reunification plan is the
centerpiece of child protective proceedings . . . . The plan provides a roadmap
by which the Department and a parent are expected to cooperatively seek to
rehabilitate the conditions that resulted in jeopardy to the child, and to reunify
the family. . . .” In re Thomas D., 2004 ME 104, ¶ 26, 854 A.2d 195. “If the
Department files a petition for termination of parental rights, the plan
establishes benchmarks by which to assess whether a parent has successfully
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ameliorated the problems that led to the initial finding of jeopardy.” Id. We
have previously held that “[a]lthough the rehabilitation and reunification plan
is the centerpiece of the child protection proceeding, compliance with the plan
is not the final word on the ability to parent; . . . a parent may comply with
everything asked of her by the Department yet remain unable to safely parent
her child.” In re Child of Rebecca J., 2019 ME 119, ¶ 11, 213 A.3d 108 (citation
and quotation marks omitted).
[¶15] Despite this, we have vacated judgments terminating parental
rights when the Department did not meet its burden of proving by clear and
convincing evidence that failure to comply with the reunification plan
requirements demonstrated that the parent was unfit. See, e.g., In re Child of
Barni A., 2024 ME 16, ¶¶ 38-42, 314 A.3d 148 (vacating termination of parental
rights because the Department’s failure to provide legally required medical
services to the child impeded the mother’s ability to demonstrate her fitness).
For instance, in In re Shannon R., we vacated the court’s decision to terminate
the mother’s parental rights because the Department did not demonstrate, by
clear and convincing evidence, that the mother had abandoned her children.
461 A.2d 707, 715-16 (Me. 1983).
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[¶16] In Shannon R., the mother, who had no contact with her children
for two years after the Department took custody, had moved to Pennsylvania
but continued to complete the reunification plan requirements and contacted
the Pennsylvania Children and Youth Services Agency to maintain contact with
the Department on her status. Id. at 709-10. The District Court found that she
had abandoned her children and that she had refused to take responsibility for
the children and was unlikely to do so, thus justifying termination of her
parental rights. Id. at 711. We vacated the decision, noting that the court’s
findings must be “examined in light of the facts” that the mother had returned
to her home state of Pennsylvania, that she had made attempts to have the
children placed with foster homes in the state, and that the Department has not
made sufficient efforts in working towards reunification. Id. at 713. We also
noted that the Department could consider the difficulties the mother was facing
as a “mitigating circumstance,” id. at 712, and that the record could support the
inference that the mother had returned to her home state to “improve her
situation and to work toward the reunification goals,” id. at 714. We held that
the Department had not met its burden to prove parental unfitness because
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“[t]he very nature of ‘clear and convincing’ evidence argues against two such
plausible conclusions from one record.”2 Id.
[¶17] Despite the termination petition in Shannon R. being predicated
upon abandonment, rather than the grounds of unfitness alleged here, the
circumstances and the logic employed in that decision support the notion that
the Department has not met its burden here. The mother, a New Mexico
resident for her entire life, did make a trip to Maine to look for housing options,
but found nothing that she could afford with her meager Section 8 housing
voucher.3 She was left with a Hobson’s choice of forfeiting her Section 8
housing voucher for her home in her home state, where she had lined up an
array of support services and providers for the child, and relocating to Maine
for an indeterminate amount of time, with no guaranteed housing and no
connections or support outside of the Department.
2 We note that the standard of review employed in Shannon R. was subsequently overruled in Taylor v. Comm’r of Mental Health & Mental Retardation, 481 A.2d 139, 154 n.28 (Me. 1984). However, we are not relying on the outdated formulation of the clear-and-convincing evidentiary standard employed there to reach our decision here. See supra ¶¶ 12,13. We are simply acknowledging that the factual similarities and the logic employed there have relevance here in reviewing whether the Department has met its burden under the current standard.
3 The mother’s case manager testified that the mother did not qualify for substance use homes or
housing shelters and would not be able to pay rent in New Mexico and Maine simultaneously. The mother also testified that the apartments in Maine that she had looked at would cost about $1,500 per month, while her housing voucher covers only $800 per month.
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[¶18] The District Court framed the mother’s inability to relocate as a
“refusal to engage in a trial placement,” but as with Shannon R., we find that the
record supports the mother’s assertion that she wished to stay in New Mexico,
her home state, to “improve her situation and to work toward the reunification
goals.” Id. Additionally, the mother pursued a second placement of the child in
New Mexico pursuant to the ICPC, undercutting the notion that she expressly
refused to engage in a trial placement. The Department’s desire to observe and
supervise the mother’s interaction with the child is certainly appropriate, but
requiring a residential relocation from New Mexico to Maine presented a near
impossible and potentially ruinous task for the mother, because she was
effectively indigent and dependent on Section 8 housing. Her failure to relocate
was not a willful refusal to accede to a condition imposed by the Department; it
simply reflected the practical impossibility of compliance.
[¶19] If the mother moved to Maine, she would give up her Section 8
housing benefits that allowed her to secure safe and sufficient housing. She
would leave behind the resources that had provided the support to go above
and beyond what was required of her, including professional resources to assist
with this child’s special needs. And notably, with a critical lack of low-income
housing in Maine, she could find herself essentially homeless. See Maine Section
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8 HCV Centralized Waiting List, Affordable Housing, https://www.affordableh
ousing.com/mainecwl (last visited Aug. 13, 2026) (“Due to the high demand for
housing assistance, waiting lists are generally very long and [it] could take
years for an application to come to the top of the list. Each PHA may give an
estimated wait time and/or actual placement on the list at their own discretion,
and will vary depending on any waiting list preferences that a housing agency
may have.”).4
[¶20] Given the District Court’s finding that the mother had gone “above
and beyond” what was asked of her in the reunification plan to alleviate
jeopardy, the court’s determination that three bases of unfitness existed, based
almost solely on her failure to relocate, was erroneous.
[¶21] We do not conclude that the Department cannot request that the
mother return to Maine. The Department can certainly do so, and the failure of
a parent to relocate to Maine must be examined in context to determine
whether that failure is evidence of parental unfitness. The circumstances
surrounding the mother’s failure to relocate to Maine that we have described
here do not, in any fashion, constitute evidence of parental unfitness.
4 We note that this website is the official portal for Section 8 housing applications, waitlists, and grants in the State of Maine.
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Problematic here is the fact that the failure of the mother to relocate to Maine
loomed large in the trial court’s finding of unfitness.
[¶22] The evidence is undisputed that the mother was unable to find
housing in Maine within her financial capabilities and that she would face a long
waiting list without any guarantee of housing even if she applied her housing
voucher to Maine. Thus, without this guarantee, she would trade one
reunification plan requirement (stable housing) for another (presence in
Maine) while ultimately remaining unable, through no fault of her own, to
remain in compliance with the reunification plan. See Catch-22, American
Heritage Dictionary of the English Language (5th ed. 2016) (defining “Catch-22”
as “[a] situation in which a desired outcome or solution is impossible to attain
because of a set of inherently contradictory . . . conditions”).
[¶23] An inability to find housing in a state halfway across the country
while living on a fixed income has little bearing on whether a parent is unfit to
parent their child, especially where the parent not only complied with every
other requirement of the plan, but went “above and beyond” what was
required. As a result, given the significant weight that the court placed upon a
factor outside the mother’s reasonable control, we cannot conclude that the
Department has satisfied its burden to demonstrate parental unfitness
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pursuant to 22 M.R.S. § 4055(1)(B)(2)(b). For that reason, we do not reach the
second step of the analysis, the best interest of the child.
[¶24] We are not mandating a relocation of the child to New Mexico. Our
decision focuses narrowly and specifically upon the trial court’s finding of
unfitness based significantly upon the mother’s failure to return to Maine, along
with the court’s separate finding that she had gone “above and beyond” what
was required with every other requirement of the plan. Upon remand, as noted
below, the trial court will have discretion to manage the case within the full
scope of its discretionary prerogatives. See, e.g., Concurring Opinion ¶ 28.
III. CONCLUSION
[¶25] The foster parents are to be commended for their successful efforts
to provide a safe and supportive environment for this child, but the fact remains
that we cannot reach the issue of the best interest of the child before addressing
the threshold issue of parental unfitness. We are cognizant that “[w]e must
review this case within the constitutional framework imposing a heightened
burden to prove parental unfitness by clear and convincing evidence.” In re
Child of Barni A., 2024 ME 16, ¶ 39, 314 A.3d 148. Given the record before us,
we cannot conclude that the circumstances surrounding the mother’s practical
inability to relocate to Maine was a factor to be considered, let alone given 16
dispositive weight, in determining whether the Department had proved by
clear and convincing evidence that at the time of the termination hearing she
was unfit to parent her child. To be clear, our decision today does not mandate
that the child be transported to New Mexico; we merely remand for further
proceedings in which the court will further consider the existing and any new
evidence (with the exception of the failure of the mother to relocate to Maine),
make express findings, and revisit the issue of parental unfitness as appropriate
and then, upon such a future finding, would address the secondary but equally
important issue of the best interest of the child, an issue upon which we do not
consider or opine upon today.
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
HORTON, A.R.J., with whom LAWRENCE, J., joins, concurring.
[¶26] I concur in the judgment. The trial court found that the
requirement that the mother move, even temporarily, to Maine for a trial home
placement would have compelled her to give up her housing in New Mexico.
She would have had to look for stable housing all over again after completing
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the placement in Maine. Viewed in that light, her refusal to return to Maine
could have been intended to preserve her ability to provide the child safe,
stable, and long-term housing.
[¶27] I write separately because given the particularly challenging
circumstances presented in this case, I believe that we should offer guidance
for the parties and the court beyond a simple remand for further proceedings.
See, e.g., In re Child of Mindy P., 2026 ME 55, ¶¶ 52-56, 358 A.3d 1151. The
denial of a petition to terminate a parent’s rights, whether by the trial court
after hearing or, as here, pursuant to a mandate after appeal, leaves the
proceeding in somewhat of a state of limbo. The legislative dictate to achieve a
speedy resolution remains in full force, so the court must promptly take steps
to move the case forward. See 22 M.R.S. § 4003(4) (2026); In re Randy Scott B.,
511 A.2d 450, 453-54 (Me. 1986).
[¶28] Vacating the judgment terminating the mother’s rights does not
terminate the Department’s custody of the child, nor does it necessarily
preclude a future termination of the mother’s parental rights on a new and
different record. Vacating the judgment does revive the Department’s
reunification and rehabilitation obligations, see 22 M.R.S. § 4041(1-A) (2026),
because the trial court never issued an order relieving the Department of those 18
obligations. See id. § 4041(2)(A-2). The mother’s successful effort to achieve
sobriety and prepare herself to care for the child bodes well for reunification.
If the Department continues to believe that a trial home placement is necessary,
our ruling does not preclude a further effort of that nature, except that it cannot
consign the mother to a forfeiture of her housing in New Mexico.
Katelyn Saner, Esq., Saner & Brown PLLC, Portland, for appellant Mother
Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office of the Attorney General, Bangor, for appellee Department of Health and Human Services
Augusta District Court docket number PC-2021-40
FOR CLERK REFERENCE ONLY