MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 1 Docket: Yor-19-251 Submitted On Briefs: November 21, 2019 Decided: January 2, 2020 Revised: April 14, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HUMPHREY, JJ.*
IN RE CHILDREN OF BRITTANY B.
SAUFLEY, C.J.
[¶1] Brittany B. appeals from orders entered in the District Court
(Springvale, Mulhern, J.) finding, by a preponderance of the evidence, that two
of her children1 were in jeopardy to their health or welfare in the mother’s care.
She argues, on appeal, that her due process rights were violated because of
ineffective assistance of counsel. She also argues that the court abused its
discretion in denying her motion in limine and admitting in evidence certain
statements made by the children to Department of Health and Human Services
caseworkers. Concluding that the mother has not presented a prima facie case
* Although Justice Hjelm participated in the appeal, he retired before this opinion was certified. 1 Although the mother has several children, only two children are the subject of this appeal. 2
of attorney ineffectiveness and that the record supports the court’s evidentiary
ruling, we affirm the judgment.
I. BACKGROUND
[¶2] The following facts are drawn from the court’s findings, which are
supported by competent record evidence, and from the procedural record. See
In re Child of Radience K., 2019 ME 73, ¶ 2, 208 A.3d 380.
[¶3] In late 2018, after the two children had expressed to a caseworker
that they had been physically abused by their father,2 the Department filed a
petition for a child protection order for the two children. At the time, however,
the Department did not request that the court remove the children from the
mother’s custody. In early 2019, the Department dismissed the petition after
the mother began participating in treatment services.
[¶4] On March 8, 2019, the mother left the children in her home with two
men. The two men had a history of substance abuse.3 That night, while the
mother was absent, an officer responded to a report of an assault occurring at
her home. Individuals had allegedly come to the home and assaulted one of the
2 The court found jeopardy as to the father on June 24, 2019. He does not appeal the order. 3Additionally, an officer testified that police had observed drug paraphernalia inside the home. Similarly, the older child indicated seeing a large pipe. 3
men watching the children. After the incident, Department caseworkers
interviewed the older child, who explained that the children heard noises and
were afraid throughout the incident. The next evening, the mother again left
her children in the care of one of the two men. Two days later, the mother
visited a hospital—accompanied by the youngest child—seeking treatment for
a skin infection. After the mother became verbally assaultive when asked if she
had been using drugs, a physician made a referral to the Department.
[¶5] The Department again initiated child protection proceedings as to
the two children on March 12, 2019, and petitioned for a preliminary protection
order. The court (Moskowitz, J.) entered a preliminary protection order that
day, placing the children in temporary Department custody. After the order
had been entered, the mother fled with the children to Massachusetts. On
March 18, 2019, the children were located, and Department caseworkers
traveled to a hospital in Massachusetts where the children were waiting with a
Massachusetts state trooper. The children were taken to a foster home in Maine
that same day.
[¶6] At a summary preliminary hearing on March 25, 2019, the mother
exercised her right to contest the temporary order. Following the hearing, the 4
court (Duddy, J.) found that the children were in immediate risk of serious harm
in the custody of their parents and continued the preliminary protection order.
[¶7] On June 3 and June 4, 2019, the court (Mulhern, J.) held a contested
jeopardy hearing. On the first day of the hearing, the mother filed a motion in
limine, seeking to exclude from evidence any statements by her children to
Department caseworkers regarding the incident on March 8, 2019. The court
denied the motion. On June 6, 2019, the court found jeopardy to the children
based on the risk of physical and emotional harm, and exposure to multiple
unsafe people with a history of violence. The court based its determination on
the following findings of fact:
Jeopardy as to the mother consists of a risk of physical and emotional harm due to exposing the children to unsafe individuals and situations. [The mother] has left the children with caregivers who she knows to be drug users, drug dealers and have histories of domestic violence. In mid-March, after the children were placed in the Department’s temporary custody, [the mother] fled with the children in an attempt to keep them from the Department. She returned to Maine only upon her arrest on a warrant. [The mother] has been getting services for substance abuse and trauma issues for over one year . . . but she continues to make unsafe decisions for herself and her children. These jeopardy issues are due to a constellation of issues, including [the mother’s] trauma history, history of substance abuse and fragile recovery, health issues and the effects of her domestic violence history.
[¶8] The mother appeals.
II. DISCUSSION 5
[¶9] The pleadings before us present two issues. The mother argues that
(A) her trial counsel’s assistance was ineffective and (B) the court abused its
discretion in admitting statements by the children regarding the incident on
March 8, 2019. We address each in turn.
A. Ineffective Assistance of Counsel
[¶10] First, the mother raises a claim that her counsel at the jeopardy
proceeding was ineffective. It is well-established that “a parent’s right to
counsel during the jeopardy stage of child protection proceeding includes the
right to the effective assistance of counsel.” Id. ¶ 56.
[¶11] Because the “need for a swift resolution of ineffectiveness claims
at the termination stage of child protection proceedings applies just as
forcefully at the jeopardy stage because of the nature of the parents’ interests
that are affected by a jeopardy order and the ongoing importance of achieving
ultimate permanency for the child,” we have held that the procedural
requirements governing claims of ineffective assistance of counsel stemming
from a termination hearing also govern claims of ineffective assistance of
counsel following a jeopardy proceeding. Id. ¶ 59 (citation omitted) (quotation
marks omitted). 6
[¶12] There are two procedural mechanisms through which a parent
may raise a claim of ineffective assistance of counsel. In re Children of
Matthew G., 2019 ME 106, ¶ 6, 211 A.3d 226. “First, if there are no new facts
that the parent seeks to offer in support of the claim, the parent may make an
ineffectiveness claim in a direct appeal” from the jeopardy order. Id. “Second,
if the basis for the parent’s ineffectiveness challenge is not clear from the
existing record and would require a court to consider extrinsic evidence, the
parent must promptly move for relief” from the judgment pursuant to M.R.
Civ. P. 60(b)(6). See id. “Regardless of how the parent presents the claim, the
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 1 Docket: Yor-19-251 Submitted On Briefs: November 21, 2019 Decided: January 2, 2020 Revised: April 14, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HUMPHREY, JJ.*
IN RE CHILDREN OF BRITTANY B.
SAUFLEY, C.J.
[¶1] Brittany B. appeals from orders entered in the District Court
(Springvale, Mulhern, J.) finding, by a preponderance of the evidence, that two
of her children1 were in jeopardy to their health or welfare in the mother’s care.
She argues, on appeal, that her due process rights were violated because of
ineffective assistance of counsel. She also argues that the court abused its
discretion in denying her motion in limine and admitting in evidence certain
statements made by the children to Department of Health and Human Services
caseworkers. Concluding that the mother has not presented a prima facie case
* Although Justice Hjelm participated in the appeal, he retired before this opinion was certified. 1 Although the mother has several children, only two children are the subject of this appeal. 2
of attorney ineffectiveness and that the record supports the court’s evidentiary
ruling, we affirm the judgment.
I. BACKGROUND
[¶2] The following facts are drawn from the court’s findings, which are
supported by competent record evidence, and from the procedural record. See
In re Child of Radience K., 2019 ME 73, ¶ 2, 208 A.3d 380.
[¶3] In late 2018, after the two children had expressed to a caseworker
that they had been physically abused by their father,2 the Department filed a
petition for a child protection order for the two children. At the time, however,
the Department did not request that the court remove the children from the
mother’s custody. In early 2019, the Department dismissed the petition after
the mother began participating in treatment services.
[¶4] On March 8, 2019, the mother left the children in her home with two
men. The two men had a history of substance abuse.3 That night, while the
mother was absent, an officer responded to a report of an assault occurring at
her home. Individuals had allegedly come to the home and assaulted one of the
2 The court found jeopardy as to the father on June 24, 2019. He does not appeal the order. 3Additionally, an officer testified that police had observed drug paraphernalia inside the home. Similarly, the older child indicated seeing a large pipe. 3
men watching the children. After the incident, Department caseworkers
interviewed the older child, who explained that the children heard noises and
were afraid throughout the incident. The next evening, the mother again left
her children in the care of one of the two men. Two days later, the mother
visited a hospital—accompanied by the youngest child—seeking treatment for
a skin infection. After the mother became verbally assaultive when asked if she
had been using drugs, a physician made a referral to the Department.
[¶5] The Department again initiated child protection proceedings as to
the two children on March 12, 2019, and petitioned for a preliminary protection
order. The court (Moskowitz, J.) entered a preliminary protection order that
day, placing the children in temporary Department custody. After the order
had been entered, the mother fled with the children to Massachusetts. On
March 18, 2019, the children were located, and Department caseworkers
traveled to a hospital in Massachusetts where the children were waiting with a
Massachusetts state trooper. The children were taken to a foster home in Maine
that same day.
[¶6] At a summary preliminary hearing on March 25, 2019, the mother
exercised her right to contest the temporary order. Following the hearing, the 4
court (Duddy, J.) found that the children were in immediate risk of serious harm
in the custody of their parents and continued the preliminary protection order.
[¶7] On June 3 and June 4, 2019, the court (Mulhern, J.) held a contested
jeopardy hearing. On the first day of the hearing, the mother filed a motion in
limine, seeking to exclude from evidence any statements by her children to
Department caseworkers regarding the incident on March 8, 2019. The court
denied the motion. On June 6, 2019, the court found jeopardy to the children
based on the risk of physical and emotional harm, and exposure to multiple
unsafe people with a history of violence. The court based its determination on
the following findings of fact:
Jeopardy as to the mother consists of a risk of physical and emotional harm due to exposing the children to unsafe individuals and situations. [The mother] has left the children with caregivers who she knows to be drug users, drug dealers and have histories of domestic violence. In mid-March, after the children were placed in the Department’s temporary custody, [the mother] fled with the children in an attempt to keep them from the Department. She returned to Maine only upon her arrest on a warrant. [The mother] has been getting services for substance abuse and trauma issues for over one year . . . but she continues to make unsafe decisions for herself and her children. These jeopardy issues are due to a constellation of issues, including [the mother’s] trauma history, history of substance abuse and fragile recovery, health issues and the effects of her domestic violence history.
[¶8] The mother appeals.
II. DISCUSSION 5
[¶9] The pleadings before us present two issues. The mother argues that
(A) her trial counsel’s assistance was ineffective and (B) the court abused its
discretion in admitting statements by the children regarding the incident on
March 8, 2019. We address each in turn.
A. Ineffective Assistance of Counsel
[¶10] First, the mother raises a claim that her counsel at the jeopardy
proceeding was ineffective. It is well-established that “a parent’s right to
counsel during the jeopardy stage of child protection proceeding includes the
right to the effective assistance of counsel.” Id. ¶ 56.
[¶11] Because the “need for a swift resolution of ineffectiveness claims
at the termination stage of child protection proceedings applies just as
forcefully at the jeopardy stage because of the nature of the parents’ interests
that are affected by a jeopardy order and the ongoing importance of achieving
ultimate permanency for the child,” we have held that the procedural
requirements governing claims of ineffective assistance of counsel stemming
from a termination hearing also govern claims of ineffective assistance of
counsel following a jeopardy proceeding. Id. ¶ 59 (citation omitted) (quotation
marks omitted). 6
[¶12] There are two procedural mechanisms through which a parent
may raise a claim of ineffective assistance of counsel. In re Children of
Matthew G., 2019 ME 106, ¶ 6, 211 A.3d 226. “First, if there are no new facts
that the parent seeks to offer in support of the claim, the parent may make an
ineffectiveness claim in a direct appeal” from the jeopardy order. Id. “Second,
if the basis for the parent’s ineffectiveness challenge is not clear from the
existing record and would require a court to consider extrinsic evidence, the
parent must promptly move for relief” from the judgment pursuant to M.R.
Civ. P. 60(b)(6). See id. “Regardless of how the parent presents the claim, the
parent must execute and file an affidavit stating, with specificity, the basis for
the claim.” Id.
[¶13] Here, the mother asserts her ineffectiveness claim on direct appeal.
Although she has submitted a signed and sworn affidavit, her affidavit does not
provide any information about the basis for her ineffectiveness claim. See In re
Aliyah M., 2016 ME 106, ¶ 10, 144 A.3d 50. The mother’s affidavit states only,
“I believe [trial counsel’s] representation of me during the trial was inefficient
and that this effected the outcome of the trial.” Because the affidavit provides
no specificity whatsoever, the foundation for a claim of ineffective assistance of
counsel is absent, and we must deny her claim. Id. ¶ 9. 7
[¶14] Even if the mother had presented her ineffectiveness claim in an
effective affidavit,4 however, her argument—as far as we can discern it—would
be unsuccessful. Id. ¶ 11. In her brief, the mother asserts that her counsel failed
to make a general request for discovery or file a motion to compel when
discovery had not been promptly provided. As shown in the record, however,
trial counsel was provided discovery on May 30, 2019, prior to the hearing.
Thus, that claim is unpersuasive. Moreover, after receiving discovery, the
mother’s counsel prepared a motion in limine seeking to exclude the children’s
statements regarding the incident on March 8, 2019, in great part based on the
missing recordings of interviews conducted of the children. When the court
denied the motion, the mother’s counsel addressed evidentiary concerns
through a series of objections, before renewing efforts regarding her motion in
limine. Ultimately, the record demonstrates assertive and effective assistance
of counsel.
4 When a parent makes a claim of ineffective counsel, the parent bears the burden to show 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 demonstrate that “(2) the parent was prejudiced by the attorney’s deficient performance in that counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” In re Child of Kimberlee C., 2018 ME 134, ¶ 6, 194 A.3d 925 (quotation marks omitted). 8
B. Children’s Out-of-Court Statements
[¶15] The mother next argues that, because her counsel did not have
access to audio recordings of the children’s interviews with Department
caseworkers, her counsel could not properly prepare to cross-examine
witnesses.5 She asserts that, if the court had granted the motion in limine and
excluded the children’s statements regarding the March 8, 2019, incident, there
would not have been competent evidence in the record to support a finding of
jeopardy. “We review a trial court’s evidentiary rulings for clear error and an
abuse of discretion.” In re Kayla S., 2001 ME 79, ¶ 9, 772 A.2d 858.
[¶16] Generally, hearsay is inadmissible under Maine Rule of
Evidence 802. A court, however, “may admit and consider oral or written
evidence of out-of-court statements made by a child, and may rely on that
evidence to the extent of its probative value.” 22 M.R.S. § 4007(2) (2018).
Contrary to the mother’s contentions, although we recognize her “fundamental
liberty interest to direct the care, custody, and control of their children, [w]e
have held that the introduction of evidence pursuant to 22 M.R.S. § 4007(2) . . .
Significantly, no counsel participating in the hearing had obtained the audio recordings of the 5
children’s statements before the hearing. At hearing, the counsel for the Department and the guardian ad litem stated that neither had heard, nor received, any recordings of the children’s statements. The record is not clear as to why the recordings were not provided, but it is clear that counsel took steps to attempt to limit the detriment that her client might experience as a result of the missing recordings. 9
does not violate due process.” In re Children of Danielle H., 2019 ME 134, ¶ 6,
215 A.3d 217 (alterations in original) (citation omitted).
[¶17] The mother’s primary objection to the admission of evidence of the
children’s statements through others was based on her lack of timely access to
the recordings and the assertion that the mother would be at a disadvantage if
the statements were admitted without counsel having had access to the
recordings. The trial court was unpersuaded by the mother’s objection and
reasonably “balanced the interest of the State in protecting the [children] with
the interest of the parents in maintaining custody” when it allowed the
children’s statements into evidence. In re Destiny T., 2009 ME 26, ¶ 12, 965 A.2d
872; see 22 M.R.S. § 4007(2). Thus, the court recognized the statutory
abrogation of the hearsay rule concerning statements made by children.
Indeed, when it addressed the issue of hearsay as it relates to the children’s
statements, the court recognized the general statutory policy that children’s
statements be allowed and directed the mother’s counsel to make appropriate
objections during examinations, objections which counsel presented. A court
has “broad discretion in determining the weight to accord [a child’s]
statement.” In re Serena C., 650 A.2d 1343, 1345 (Me. 1994); In re Children of 10
Danielle H., 2019 ME 134, ¶ 7, 215 A.3d 217 (explaining that “whether to admit
a child’s out-of-court statement lies within the trial court’s discretion”).
[¶18] We discern no abuse of that discretion on this record, where the
mother had opportunity to examine witnesses concerning the children’s
statements and corroborating evidence, in addition to testifying herself
concerning the events at issue. This is all the more true given that the evidence
of the actual treatment of the children and the chaos surrounding their lives
was more critical to the court’s analysis than the children’s statements about
those events.
[¶19] Based on competent evidence in the record, the court found by a
preponderance of the evidence that the children would be in circumstances of
jeopardy in the mother’s care. See 22 M.R.S. §§ 4035, 4036 (2018); In re
Children of Christine A., 2019 ME 57, ¶ 9, 207 A.3d 186; In re Destiny T., 2009
ME 26, ¶ 14, 965 A.2d 872.
The entry is:
Judgment affirmed.
Brittany M.R. Sawyer, Esq., Holmes Legal Group, LLC, Wells, for appellant mother 11
Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Springvale District Court docket number PC-2019-18 FOR CLERK REFERENCE ONLY