MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 76
Docket: Ken-23-179
Submitted
On Briefs: October 18, 2023
Decided: December 19, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
IN RE CHILDREN OF SHANNEVIA Y.
STANFILL, C.J.
[¶1] The mother of two children appeals from a judgment of the
District Court (Waterville, Dow, J.) terminating her parental rights to the
children, arguing that she was deprived of effective assistance of counsel during
the termination proceedings. We affirm the judgment.
I. BACKGROUND
[¶2] In May and June 2021, the Department of Health and
Human Services petitioned for child protection and preliminary protection
orders on behalf of the children.1 The court (Benson, J.) issued preliminary
protection orders temporarily placing the children in the Department’s
custody.
1 The children have different fathers, resulting in separate cases which were consolidated for the
termination hearing and this appeal. Both fathers’ parental rights have been terminated, and neither
has appealed.
2
[¶3] In September 2021, the court (Dow, J.) entered a jeopardy order by
agreement, and the children remained in the Department’s custody. The court
found that the children would be in jeopardy in the mother’s care based on the
mother’s “ongoing alcohol abuse and unsafe behavior,” including her three
recent arrests for alcohol-related issues; positive alcohol tests during the
pendency of the case; and decision to permit her boyfriend, a convicted sex
offender, to care for the children without supervision. Between January 2022
and September 2022, the court issued three judicial review orders in which it
ordered continued custody with the Department. The court found, inter alia,
that although the mother had engaged in treatment for substance use disorder,
she had “continue[d] to struggle with decision-making and having unsafe
people around” the children and had been charged with multiple additional
crimes.
[¶4] After the Department filed petitions for termination of the mother’s
parental rights, the court held a termination hearing in March 2023. At the
outset of the hearing, the mother’s attorney successfully advocated for the
mother’s mother (the grandmother) and the mother’s aunt (the great-aunt) to
each be granted interested-person status. The mother’s attorney presented the
testimony of the mother, the grandmother, and the great-aunt, and argued that
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the court should consider appointing the grandmother or the great-aunt as a
permanency guardian or keep the record open for a short period of time so that
background checks could be completed. See 22 M.R.S. § 4038-C(1)(E) (2023).
[¶5] After the hearing, the court issued a judgment terminating the
mother’s parental rights. The court found the following facts, which are
supported by competent evidence in the record. See In re Children of Jason C.,
2020 ME 86, ¶ 7, 236 A.3d 438. The mother “struggles with a chronic drinking
problem.” Although she has made some progress through treatment and has
had appropriate visits with the children, she has been unable to make sufficient
progress to justify requiring the children to wait any longer for a permanent
resolution. While the case was pending, she repeatedly tested positive for
alcohol, maintained contact with dangerous people, formed new relationships
with dangerous people, and committed various crimes, including OUI, violation
of condition of release, operating after suspension for OUI, and operating after
revocation. At the time of the termination hearing, she was in prison, serving a
sentence of nine months and one day. She expected to be released from prison
about three months after the hearing. When the court issued its judgment, one
child was five years old and the other was almost four years old, and both had
been in the Department’s custody for a significant portion of their lives. The
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children have been in the same pre-adoptive resource placement since
August 2021, and they are thriving.
[¶6] The court found that the mother is unable to take responsibility for
the children or protect the children from jeopardy within a time reasonably
calculated to meet their needs, and that termination of her parental rights is in
the children’s best interests. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii)
(2023).
[¶7] Addressing the permanency plan, the court discussed the mother’s
proposals that the grandmother or the great-aunt be appointed as a
permanency guardian under 22 M.R.S. § 4038-C. Relying on evidence in the
record, the court found that although the grandmother was local, stable, and
involved, she was “more loyal to [the mother] than to the children” and lacked
the ability “to be objective about [the mother’s] alcohol abuse and her reckless
choices.” As to the great-aunt, the court found that she “lacks the close
connection with the children that [the grandmother] has,” lives far away, and
has exhibited “fealty” to the mother by deferring to the mother about whether
to offer to care for the children. The court also expressed concern that the
great-aunt’s husband had “an open [child protection] case in Massachusetts
involving the two children he has” with another person. The court determined
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that the record could not support the findings required to order a permanency
guardianship, see 22 M.R.S. § 4038-C(1)(A)-(E), that neither proposed
permanency guardianship would serve the children’s best interests, and that a
plan of adoption is in the children’s best interests.
[¶8] The mother timely appeals.
II. DISCUSSION
[¶9] The mother argues only that she was denied effective assistance of
counsel during the termination proceedings.2 We are not persuaded, and we
reiterate that we review only the existing trial record when a parent raises such
an argument for the first time in an appeal directly from a judgment terminating
parental rights. See, e.g., In re Aliyah M., 2016 ME 106, ¶¶ 7, 12, 144 A.3d 50.
[¶10] In In re M.P., we determined that a parent may raise a claim of
ineffective assistance of counsel in a termination of parental rights proceeding
either by motion pursuant to Maine Rule of Civil Procedure 60(b) or on direct
appeal from the judgment terminating parental rights.3 2015 ME 138,
2 The mother does not challenge the court’s determinations that she is unfit to parent the children,
that termination of her parental rights is in the children’s best interests, or that the record before the
court did not support ordering a permanency guardianship rather than adoption. Those
determinations are supported by the evidence, and there was no abuse of discretion. See 22 M.R.S.
§§ 4038-C, 4055(1)(B)(2)(a), (b)(i)-(ii) (2023); In re Children of Jason C., 2020 ME 86, ¶ 7, 236 A.3d
438; In re Child of Domenick B., 2018 ME 158, ¶¶ 8-10, 197 A.3d 1076.
3 A motion under Rule 60(b) is necessary where the existing record is insufficient to permit
resolution of the claim of ineffective assistance—where “the record does not illuminate the basis for
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¶¶ 19-21, 126 A.3d 718. A parent may raise a claim of ineffective assistance in
a direct appeal without first having sought relief from the judgment in the trial
court “if there are no new facts that the parent seeks to offer in support of the
claim.” Id. ¶ 19. In other words, the direct-appeal route may be pursued when
the existing trial record “is sufficiently well developed to permit a fair evaluation
of [the] parent’s claim.” Id. We take this opportunity to reiterate that although
we have required a parent asserting such a claim on direct appeal to “submit a
signed and sworn affidavit,” id. ¶ 21, “the affidavit must not contain information
that is extrinsic to the existing record,” In re Aliyah M., 2016 ME 106, ¶ 7,
144 A.3d 50 (emphasis added); accord In re Children of Kacee S., 2021 ME 36,
¶ 13, 253 A.3d 1063 (same); In re Tyrel L., 2017 ME 212, ¶ 8, 172 A.3d 916
(same); In re M.P., 2015 ME 138, ¶ 21 n.5, 126 A.3d 718 (same).
the challenged acts or omissions of the parent’s counsel.” In re M.P., 2015 ME 138, ¶ 20, 126 A.3d
718. In those circumstances,
the parent must promptly move for relief from a judgment terminating his or her
parental rights pursuant to M.R. Civ. P. 60(b)(6) to raise a claim of ineffective
assistance of counsel. The motion for relief from judgment should be filed no later
than twenty-one days after the expiration of the period for appealing the underlying
judgment.
Id. The mother did not file a Rule 60(b) motion. Although she argues persuasively that compliance
with the twenty-one-day time limit would have been nearly impossible given the time it takes to
appoint new counsel, obtain the file and record, and review the case, we note that trial courts may
accept later-filed Rule 60(b) motions raising ineffective assistance. Id. ¶ 20 n.4; see In re Children of
Kacee S., 2021 ME 36, ¶¶ 15, 17 & n.5, 253 A.3d 1063 (concluding that “extraordinary circumstances”
existed to permit review of the denial of a late-filed Rule 60(b) motion alleging ineffective assistance,
where the parent had “moved expeditiously” to “pursue her ineffectiveness claim with diligence and
alacrity”).
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[¶11] As we have explained, we “review the existing record to determine
whether the evidence in that record creates a prima facie showing of
ineffectiveness.” In re Aliyah M., 2016 ME 106, ¶ 12, 144 A.3d 50 (emphasis
added). “This consists of a prima facie case that (1) counsel’s performance was
deficient, i.e., that there has been serious incompetency, inefficiency, or
inattention of counsel amounting to performance below what might be
expected from an ordinary fallible attorney; and (2) the deficient performance
prejudiced the parent’s interests at stake in the termination proceeding to the
extent that the trial cannot be relied on as having produced a just result.”4 Id.
(quotation marks omitted).
[¶12] Here, in connection with her direct appeal, the mother filed her
own affidavit together with affidavits of the grandmother and the great-aunt.
Cf. id. ¶ 8 (requiring a parent to submit affidavits of other persons with
information that the parent wants the court to consider when pursuing an
ineffectiveness claim by means of a Rule 60(b) motion). All of the affidavits
contain information extrinsic to the existing trial court record, which we will
not consider. See In re Tyrel L., 2017 ME 212, ¶¶ 6-11, 172 A.3d 916 (reiterating
“the strict procedural requirements applicable to a direct appeal” raising
4 We decline the mother’s invitation to abandon entirely the prejudice prong of the
ineffective-assistance analysis. See In re M.P., 2015 ME 138, ¶¶ 22-27, 126 A.3d 718.
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ineffective assistance and explaining that including in an affidavit information
extrinsic to the existing record was an independent “ground for denying the
[parent] a remedy” (quotation marks omitted)).
[¶13] The existing trial court record does not generate a prima facie
showing of ineffectiveness. The mother concedes that “[t]he evidence of [her]
unfitness was strong.” She points out that her attorney did not cross-examine
the Department’s witnesses’ testimony about undisputed historical events, but
that did not render the attorney’s performance deficient. Instead of dwelling
on the mother’s acknowledged relapses and the consequences of those
relapses, the attorney focused the mother’s testimony on her substantial efforts
to seek and engage in treatment, the insight she had gained, and her bond with
and love for her children. This was not an unreasonable trial strategy.
[¶14] With respect to the mother’s goal of a permanency guardianship
with a family member if she could not reunite with the children, the record
demonstrates that the mother’s attorney secured the grandmother’s and
great-aunt’s attendance at the trial, advocated successfully for their status as
interested persons, elicited testimony relevant to their suitability as guardians,
and argued strenuously that appointing them would be in the children’s best
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interests and would promote the legislative policy of maintaining family
integrity.
[¶15] The relevant testimony—both from the grandmother and
great-aunt and from the caseworkers who had interacted with them during the
pendency of the case—supports the court’s findings that the grandmother and
the great-aunt would not be suitable permanency guardians. Nothing in the
record suggests that the mother’s attorney failed to present other,
contradictory evidence. The record therefore does not generate a prima facie
showing that the mother’s attorney’s performance was deficient or undermines
confidence in the result. See id.
The entry is:
Judgment affirmed.
Seth Berner, Esq., 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
Waterville District Court docket numbers PC-2021-23 and PC-2021-24
FOR CLERK REFERENCE ONLY