In Re Children of Destiny H.

2024 ME 66

• Court: Supreme Judicial Court of Maine
• Decided: August 20, 2024
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2024 ME 66 Docket: Oxf-23-60 Argued January 10, 2024 Decided: August 20, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

IN RE CHILDREN OF DESTINY H.

STANFILL, C.J.

[¶1] The mother of two children appeals from (1) a judgment of the

District Court (South Paris, Ham‐Thompson, J.) terminating her parental rights

to the children and (2) the court’s denial of her motion for relief from the

judgment, in which she alleged ineffective assistance of counsel. She argues

that the court violated her due process rights in various ways throughout the

proceedings and erred when it concluded that her trial attorneys’ performance

did not violate her right to the effective assistance of counsel. We affirm.

I. BACKGROUND

[¶2] On September 2, 2021, the Department of Health and Human

Services petitioned for child protection and preliminary protection orders on

behalf of the children. The Department had received a report from a hospital’s

 Although Justice Jabar participated in this appeal, he retired before this opinion was certified. 2

pediatric intensive care unit regarding multiple severe, inflicted injuries to the

younger child, who was then two months old. The report indicated that when

the child was seen in the emergency department, some of the injuries were

acute and others were healing. The Department alleged that the child had been

in the care of the mother and her boyfriend when the injuries occurred, and that

the mother, when questioned, had been unable or unwilling to explain what had

caused the injuries. The District Court (Dow, J.) issued a preliminary protection

order, placing both children in Department custody. The mother waived her

right to a summary preliminary hearing, maintaining the preliminary

protection order in effect.

[¶3] In a report submitted in November 2021, the guardian ad litem

(GAL) noted that the older child had reported seeing, on the night the younger

child was hospitalized, the mother’s boyfriend hand the younger child to the

mother and apologize for hurting him. On December 3, 2021, the court

(Ham‐Thompson, J.) granted a motion to withdraw filed by the mother’s first

attorney and appointed the mother a second attorney. The Department

thereafter moved to amend its petition for a child protection order to allege an

aggravating factor—that the mother subjected the children to treatment that is

heinous and abhorrent to society—and to request an order permitting it to 3

cease efforts to reunify the mother and the children. See 22 M.R.S.

§§ 4002(1-B)(A)(1), 4041(2)(A-2)(1) (2024). The motion was granted on

December 27. Meanwhile, the court scheduled a contested jeopardy hearing

for January 7, 2022.

[¶4] On the day before the scheduled jeopardy hearing, the mother, her

second attorney, and the other parties appeared before the court to place an

agreement on the record. The Department indicated that the parties agreed to

a jeopardy order that would include the aggravating factor finding and would

permit the Department to cease reunification efforts but would also include a

rehabilitation and reunification plan and order the Department to continue

paying for some services. The mother’s second attorney indicated that the

mother was agreeing to the order even though it contained terms she did not

like. The mother never affirmatively expressed her agreement to or

understanding of the order. The court expressed its belief that under the

agreement “reunification [was] the primary goal” and that the mother’s

compliance with the terms of the jeopardy order would determine the course

of the case moving forward. 4

[¶5] The court issued a jeopardy order in accordance with the

agreement,1 stating that jeopardy was based on “the unexplained, serious,

inflicted injuries sustained by” the younger child; the mother’s “refusal to

participate in services”; the mother’s “refusal . . . to explain what occurred to

cause” the injuries; and the mother’s “continued relationship with [her

boyfriend], a person who ha[d] acknowledged roughly handling [the child] and

possibly causing injury.” The order prohibited all contact with the younger

child and permitted contact with the older child only during the child’s

counseling sessions and only if deemed “therapeutically necessary” by the

child’s counselor. The order also required the mother to take the following

actions to relieve jeopardy:

 comply with the terms of the rehabilitation and reunification plan, including, among others,

o “demonstrat[ing] an understanding of the impact of domestic abuse/violence on [the mother] and her children,”

o “demonstrat[ing] insight into the long-term impact of [the younger child’s] injuries on his development and an understanding of his present and future medical needs as a result of his injuries,” and

o “acknowledg[ing] how [the younger child] was injured and the maltreatment of” the older child;

1 The jeopardy order contained concurrent permanency plans for the children: reunification with

the mother and adoption. See 22 M.R.S. § 4038-B (2024). 5

 “meet with the Department, the Department’s counsel, and the GAL to provide an explanation as to the injuries sustained by [the younger child] and discuss the allegations made by” the older child, “be open and honest with this information,” and provide an explanation deemed “probable” by the Department’s child abuse expert; and

 “participate actively and consistently in services,” complete mental health and substance abuse evaluations, engage in regular individual mental health counseling, and “sign all releases necessary for the free exchange of information” among the Department, the GAL, and treatment providers.

The mother did not appeal from the jeopardy order. See 22 M.R.S. § 4006

(2024).

[¶6] In May 2022, the children’s maternal grandmother moved to

intervene in the case, and in July 2022, the Department filed a petition for

termination of the mother’s parental rights. At a case management conference

on August 19, 2022, the mother’s second attorney withdrew, and the mother

indicated that she wanted to retain a new attorney. The court appointed a third

attorney to represent the mother in the event she did not retain an attorney.2

[¶7] On September 6, 2022, the mother’s third attorney moved to

withdraw and the grandmother’s attorney entered an appearance on the

2 In its order, the court stated, “Should [the mother] decide to retain her own counsel, this shall

not delay the proceedings.” Noting that the hearing on the Department’s petition to terminate parental rights was scheduled “as a backup case” in November 2022, the court stated, “Should [the] mother retain counsel, counsel needs to be available on [the dates indicated] as a motion to continue will be denied.” 6

mother’s behalf. The court entered an order denying the third attorney’s

motion to withdraw because the grandmother’s attorney had not moved to

withdraw from representing the grandmother, whose motion to intervene was

still pending. The grandmother’s attorney then filed a letter “as [his] motion to

withdraw as [the grandmother’s] counsel,” and the grandmother filed a

notarized letter waiving any conflict of interest related to her attorney’s

potential representation of the mother. The grandmother’s attorney also filed

a second entry of appearance for the mother. The court entered an order

stating that the grandmother’s attorney’s motion to withdraw was “denied as it

is not in proper format” and that the entry of appearance was “not granted as a

knowing voluntary waiver [by the mother] of conflict of interest has not been

filed.” The mother then filed a notarized letter waiving any conflict of interest,

and the grandmother’s attorney filed a third entry of appearance for the mother

on October 20. The next day, the court continued the case from the November

trial list “due to lack of days” and the mother’s “attorney issues.” On

November 15, the court granted the mother’s third attorney’s motion to

withdraw from representing the mother and the grandmother’s attorney’s

motion to withdraw from representing the grandmother. Based on the 7

appearance previously entered, the grandmother’s former attorney became the

mother’s fourth attorney.

[¶8] The court rescheduled the hearing on the Department’s termination

petition for December 8 and 9, 2022. The mother did not file a witness or

exhibit list prior to the hearing, as was required by a scheduling order that the

court had issued. During the termination hearing, after the Department

indicated that it did not object to the mother calling one of her witnesses

despite the mother’s failure to file a witness list, the court stated, “The court

issued a scheduling order. Witness and exhibit lists were [not] provided on [the

mother’s] behalf. The court excluded [the mother] from calling any witnesses

outside of herself. The parties agreed to do something different[].”3 The

mother presented the testimony of three witnesses: an emergency room

physician who treated the younger child in September 2021, a clinical social

worker who had provided mental health treatment to the mother, and the

3 The mother’s fourth attorney would later assert in an affidavit that he had emailed the court on

December 5, 2022, indicating that he would be filing a motion to continue. He asserted that the court arranged a conference that day and informed him that (1) it would not permit a continuance and (2) it would exclude any witnesses called by the mother at the termination hearing unless the Department agreed otherwise, because no witness list had been filed on behalf of the mother. The record does not contain a transcript of the December 5, 2022, conference or any pretrial order excluding the mother’s witnesses. See In re Child of Brooke B., 2020 ME 20, ¶ 3 n.2, 224 A.3d 1236. 8

children’s maternal grandmother.4 The clinical social worker was permitted to

testify only regarding the beginning portion of his treatment of the mother and

was not permitted to testify about his treatment thereafter because the mother

had not provided the other parties with his records regarding the later

treatment.

[¶9] After the hearing, the court issued an order terminating the

mother’s parental rights, finding that the mother is unable to take responsibility

for the children or protect them from jeopardy within a time reasonably

calculated to meet their needs and that termination of the mother’s parental

rights and a plan of adoption are in the children’s best interests. See 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i)-(ii) (2024). The court found the following specific

facts, which are supported by competent evidence in the record. See In re

Children of Jason C., 2020 ME 86, ¶¶ 7-9, 236 A.3d 438. The younger child

suffered serious inflicted injuries on September 1, 2022, which resulted in

emergency hospitalization and an extended stay in a pediatric intensive care

4The mother’s fourth attorney indicated that he planned to call two additional witnesses—the Department’s child abuse expert and the mother’s second attorney—but was unsure whether they were available. The court gave him five minutes to try to reach those potential witnesses. The mother ultimately rested without calling them. 9

unit.5 The mother appeared unconcerned with the severity or cause of the

injuries. The mother has protected her boyfriend, who was the only adult

physically present with the child during the moments that the acute injuries

occurred, and she remained in a relationship with him for months after telling

the Department that she had ended the relationship. She has not acknowledged

any responsibility for placing the children in a dangerous situation.

[¶10] The mother has also refused to cooperate with the Department

since the inception of the case, and she has not made any meaningful progress

toward reunification. She declined to sign releases for the records of her mental

health counselor and psychiatrist, so the frequency of her attendance and

progress towards treatment goals are unknown. She refused to allow

Department caseworkers to view her home. She did not meet with the

Department and GAL to discuss the younger child’s injuries. She recently

became allied with the grandmother in vilifying the GAL and the Department,

and she showed a lack of insight by suggesting that the grandmother, who has

no significant history with the children, would be a suitable placement.

5 When the child arrived at the emergency department, he was having a seizure and had multiple

bruises to three different parts of his body, bleeding of the tongue, a brain bleed, a broken clavicle, and an injury to his face that could not be ruled out as a burn injury. A doctor described the child as “near death.” 10

[¶11] The older child has significant behavioral and emotional needs.

Permanency is very important for him; he is “a concrete thinker and struggles

with the uncertainty of his future and understanding his place in the world.” He

“needs to feel physically and emotionally safe in order to process his emotions

and the grief of losing his father.”6 The younger child is living with two aunts

and their children. He has high emotional and medical needs, due in part to his

inflicted injuries, and is bonded with the resource caregivers and their family

members.

[¶12] The court issued the termination judgment in late January 2023.

As is the usual practice, the court appointed a new attorney for the mother on

February 10, and the mother appealed from the judgment five days later. This

was the mother’s fifth attorney. On March 6, the mother moved in the trial court

for relief from the judgment, alleging ineffective assistance of counsel at both

the jeopardy and termination stages of the proceedings. See M.R. Civ. P. 60(b);

In re M.P., 2015 ME 138, ¶¶ 19-21, 126 A.3d 718. She attached affidavits

executed by herself and her third and fourth attorneys. We granted the

mother’s motion to permit the trial court to act on the Rule 60(b) motion and

stayed her appeal.

6 The children’s father died of COVID-19 in April 2021, five months before this case began. 11

[¶13] At a case management conference on April 10, 2023, the trial court

indicated that it was pressed to schedule a hearing on the Rule 60(b) motion

quickly because the Assistant Attorney General representing the State would

be leaving his position soon. The court expressed disapproval at the mother’s

stated plan to call between ten and twelve witnesses. The mother’s fifth

attorney explained that to demonstrate that the mother was prejudiced by trial

counsel’s failure to present certain witness testimony during the termination

hearing, she would need to establish what that testimony would have been. The

court stated: “This hearing is not going to take any longer than two days. The

Department will get to call its witnesses. The [GAL] will obviously be able to

testi[fy] and call the one [witness she had indicated she wanted to call]. And

[mother’s attorney], you get your witnesses, whatever remains in there.”7 In a

procedural order governing the Rule 60(b) hearing issued after the conference,

the court ruled that because the mother had not filed with her Rule 60(b)

motion affidavits from several proposed witnesses who she claimed should

have been produced for the termination hearing, she would not be able to call

those witnesses. In so doing, the court relied on our previously-expressed rule

7 The court also stated, “[Y]ou want to put on several witnesses. And I understand that, in part, is

your right. Not completely 100 percent your right to drag in as many witnesses as you want.” 12

that a parent claiming ineffective assistance of counsel must submit, with her

Rule 60(b) motion, “affidavits from any individuals the parent asserts should

have been called as witnesses during the termination hearing.” In re M.P., 2015

ME 138, ¶ 21, 126 A.3d 718; see also In re Children of Meagan C., 2019 ME 129,

¶ 22, 214 A.3d 9 (“If the parent asserts that counsel’s deficiency was due to his

or her failure to call any individuals as witnesses during the termination

hearing, the parent’s motion must be accompanied by signed and sworn

affidavits from those individuals.”); In re Aliyah M., 2016 ME 106, ¶ 8, 144 A.3d

50.

[¶14] On April 25, 2023, the court notified counsel by email that the

hearing on the mother’s Rule 60(b) motion was scheduled for May 5. Despite

the earlier discussion that the hearing would take two days, only one day was

allotted. The mother immediately moved to continue the hearing, arguing that

the scheduling did not allow sufficient time to prepare for the hearing to satisfy

her due process rights. The court denied the motion without comment. On the

day of the hearing, the mother filed a motion to amend her Rule 60(b) motion

to supplement the motion with affidavits of the mother’s mental health care

provider and of a psychologist who performed a parental diagnostic evaluation

of the mother. Because the mother filed the motion to amend on the day of the 13

hearing and the Department had not had an opportunity to respond, the court

indicated during the hearing that it was “not before the Court” and that it would

consider the motion after the hearing and on the pleadings only. The mother

presented the testimony of herself; her second, third and fourth attorneys; and

an expert attorney witness.8 Her fifth attorney indicated that her only other

witnesses were “related to that motion to amend [the Rule 60(b) motion],

which I think the Court must make a decision on.” The court reiterated its

decision not to rule on the motion to amend until after the hearing and thus did

not hear from the psychologist or mental health care provider.

[¶15] On June 7, 2023, the trial court issued an order denying the

mother’s Rule 60(b) motion. The court first denied as untimely the mother’s

motion to amend the Rule 60(b) motion. See In re Evelyn A., 2017 ME 182,

¶¶ 15-22, 169 A.3d 914. The court also rejected the mother’s claim of

ineffective assistance during the jeopardy phase as untimely and, in the

alternative, determined that the mother had not demonstrated that her second

attorney’s performance in negotiating and presenting the agreed-upon

jeopardy order was deficient. As to the termination stage, the court determined

8 The mother had not submitted an affidavit of the expert witness with her Rule 60(b) motion, and the parties and the court discussed at length the admissibility of the expert’s testimony. The court reserved ruling on the issue until after the hearing and ultimately admitted the testimony. 14

that the mother had not demonstrated that any deficient performance by her

fourth attorney had prejudiced her. The mother filed a notice of appeal from

the order denying her Rule 60(b) motion. We then lifted the stay on the direct

appeal and consolidated the two appeals.

II. DISCUSSION

A. Sufficiency of the Evidence Regarding Termination

[¶16] We begin by recognizing that the findings supporting the

termination of parental rights—that the mother is unfit to parent the children

and that termination is in the children’s best interests—are supported by the

record before the trial court.9 See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii). “We

review the court’s findings of fact for clear error and the court’s ultimate

determination that termination of the parental rights is in the child’s best

interest for an abuse of discretion.” In re Children of Jason C., 2020 ME 86, ¶ 7,

236 A.3d 438 (quotation marks omitted). “The court must examine from the

child’s perspective—not the parent’s—the time within which the parent can

9 The mother does not appear to contend that the evidence presented to the trial court during the

termination hearing is insufficient to support the court’s findings of unfitness. Instead, in accordance with her due process argument, she argues that “[t]he trial court’s ‘rulings’ that limited [her] ability to call witnesses and present evidence leaves the record in her termination of parental rights hearing wholly incomplete.” 15

take responsibility for a child and protect that child from jeopardy.” Id.

(alteration and quotation marks omitted).

[¶17] As the State argues, the mother’s inability “to acknowledge that her

[child’s] injuries were not accidental,” In re B.C., 2014 ME 99, ¶ 6, 97 A.3d 1086,

is “at the heart of her unfitness.” During the termination hearing, the mother

continued to assert that she did not know what happened to her child and that

she could not agree that the injuries were inflicted. The court was presented

with evidence that the child’s injuries were inflicted, however, and that the

mother’s boyfriend told the mother the day after the child went to the

emergency department that he “thought [he] could get [the child] to stop crying

by doing it [his] way and it backfired.” Given the evidence of the mother’s

inability to acknowledge any responsibility for the injuries, her continued lack

of insight into the children’s needs, and her failure to comply with many of the

requirements outlined in the jeopardy order, the court’s findings of unfitness

and its best interests determination did not—on the record before the court—

constitute clear error or an abuse of discretion. See id. ¶¶ 3-11, 16; In re

Kafia M., 1999 ME 195, ¶¶ 12, 14-16, 742 A.2d 919. 16

B. Due Process

[¶18] The mother argues that she was denied due process in various

ways throughout the proceedings. Generally, we examine alleged due process

violations de novo. In re Robert S., 2009 ME 18, ¶ 12, 966 A.2d 894.

Unpreserved constitutional challenges, however, are reviewed for obvious

error. In re Child of Corey B., 2020 ME 3, ¶ 12, 223 A.3d 462. “Obvious error is

error that is seriously prejudicial error tending to produce a manifest injustice.”

In re Child of Lacy H., 2019 ME 110, ¶ 9, 212 A.3d 320 (quotation marks

omitted).

[¶19] “The state must use procedures that align with due process

requirements when terminating parental rights.” In re Child of Kenneth S., 2022

ME 14, ¶ 16, 269 A.3d 242. “In termination cases, where fundamental interests

are at stake, due process requires: notice of the issues, an opportunity to be

heard, the right to introduce evidence and present witnesses, the right to

respond to claims and evidence, and an impartial fact-finder.” In re Child of

James R., 2018 ME 50, ¶ 17, 182 A.3d 1252 (quotation marks omitted).

1. Termination Proceeding

[¶20] We now turn to the mother’s specific contentions. The mother

argues first that the termination court erred when it ruled that she would not 17

be permitted to present witnesses other than herself during the hearing,

because no witness list had been filed on her behalf. Although we generally

review evidentiary rulings for an abuse of discretion or clear error, In re

Arturo G., 2017 ME 228, ¶ 19, 175 A.3d 91, because the mother did not object

to this ruling, our review of its due process implications is for obvious error, see

In re Child of Corey B., 2020 ME 3, ¶ 12, 223 A.3d 462.

[¶21] “[T]o assert a procedural due process error on appeal, a party must

articulate an identifiable prejudice.” In re Child of Kenneth S., 2022 ME 14, ¶ 22,

269 A.3d 242. At the time of the termination hearing, the mother did not

identify how the ruling prejudiced her. See id. ¶¶ 22-27. She did not make an

offer of proof on the record as to what evidence the excluded witnesses would

have presented, and she did, by agreement of the parties, have the opportunity

to call five witnesses during the termination hearing, although some of the

testimony was limited.10 On the record before us, we cannot conclude that the

result would have been different but for the court’s ruling, and we therefore

cannot conclude that the ruling constitutes obvious error.11 See State v. Gagne,

10 As discussed above, three of these witnesses testified during the trial; the mother was unable to reach the other two. 11 We do not mean to suggest that it is a best practice, in a termination hearing at which the protection of a parent’s due process rights is critical, see In re Child of Ryan F., 2020 ME 21, ¶¶ 21-22, 224 A.3d 1051, to impose a blanket exclusion of all witnesses not identified on a formal witness list— 18

2017 ME 63, ¶¶ 36-38, 159 A.3d 316 (concluding that a court did not abuse its

discretion by excluding defense witnesses not identified on a witness list even

though the defendant’s right to call witnesses on behalf of the defendant “has

long been recognized as essential to due process” (alteration and quotation

marks omitted)).

[¶22] Next, the mother argues that the court violated her due process

rights when it thwarted her fourth attorney’s attempts to enter an appearance

on her behalf until just before the termination hearing, while simultaneously

making clear that no continuances would be granted.12 The court was

concerned about the potential for a conflict of interest based on the fourth

attorney’s representation of the grandmother, who had moved to intervene.

See M.R. Prof. C. 1.7(a)(2), (b); M.R. Prof. C. 1.9(a).13 In contrast to a motion to

days before trial and without inquiring as to what role the proposed witnesses would play or the extent of the surprise, if any, to the opposing party. Courts must balance the need for a fair, orderly proceeding with the right of the parent to present evidence, which serves to protect the parent’s fundamental right to care for the parent’s child. See Capelety v. Estes, 2023 ME 50, ¶¶ 20-25, 300 A.3d 817; In re A.M., 2012 ME 118, ¶ 16, 55 A.3d 463. 12 The Department has provided no response to this argument.

13 These rules provide:

[A] lawyer shall not represent a client if . . . there is a significant risk that the representation of one or more clients would be materially limited by the lawyer’s responsibilities to another client [or] a former client[, unless] the lawyer reasonably believes that the lawyer would be able to provide competent and diligent 19

withdraw or a motion to continue, however, an entry of appearance is not a

motion upon which a court acts; it is simply a notification to the court that a

person will be appearing before the court as legal counsel. See Entry, Black’s

Law Dictionary (12th ed. 2024) (“The placement of something before the court

or on the record.”); Appearance, Black’s Law Dictionary (12th ed. 2024)

(“A coming into court . . . as a lawyer on behalf of a party or interested person

. . . .”); Barham v. State, 641 N.E.2d 79, 80-85 (Ind. App. 1994) (distinguishing

the analysis applicable to a motion to continue from the analysis applicable

when an attorney has entered an appearance shortly before or during trial, and

concluding that a court erred by “denying” a late entry of appearance by private

counsel).

[¶23] In any event, no party objected and we cannot say that the court’s

handling of this issue prejudiced the mother. Although the court effectively

delayed the fourth attorney’s effort to represent the mother, the mother was

representation to each affected client [and] each affected client gives informed consent, confirmed in writing.

M.R. Prof. C. 1.7(a)(2), (b). In addition,

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

M.R. Prof. C. 1.9(a). 20

still being represented by her third attorney. The mother challenges the

adequacy of that representation, as we discuss below. Nonetheless, the mother

does not identify how the delay itself adversely affected her opportunity to be

heard, nor does the record compel the conclusion that it did.

2. Rule 60(b) Proceeding

[¶24] The mother argues that the process in adjudicating her Rule 60(b)

motion was unfairly rushed.14 The hearing took place two months after the

mother filed her motion, upon approximately ten days’ notice. “When due

process is implicated, we review . . . procedural rulings [such as the denial of a

motion to continue] to determine whether the process struck a balance

between competing concerns that was fundamentally fair.” Adoption by

Jessica M., 2020 ME 118, ¶ 8, 239 A.3d 633 (quotation marks omitted).

[¶25] Although its management of the Rule 60(b) claim could be

characterized as somewhat exacting, the court appropriately balanced the

mother’s right to an opportunity to fairly present her ineffective-assistance

claim at a hearing and the “State’s important interest in expeditiously

The court’s statements during a pretrial conference on the Rule 60(b) motion—that the 14

Department and the GAL would be granted time to present their witnesses but that the mother “would get your witnesses, whatever remains in there”—can be taken to imply that the mother’s evidence was less important than that of the Department and the GAL. 21

establishing permanent plans for children.” In re M.P., 2015 ME 138, ¶ 36, 126

A.3d 718; see 22 M.R.S. § 4003(3) (2024) (providing that a purpose of Maine’s

child protection statutes is to “prevent needless delay for permanent plans for

children when rehabilitation and reunification is not possible”); Adoption by

Jessica M., 2020 ME 118, ¶ 12, 239 A.3d 633 (balancing a parent’s “significant

interest in a fair proceeding” against “the need to provide a timely

determination for all of the parties involved”); In re William S., 2000 ME 34,

¶ 13, 745 A.2d 991 (“Any delay [in a child protection matter] potentially harms

a child who has already endured significant trauma and is in dire need of

permanency.”); In re Child of Radience K., 2019 ME 73, ¶ 58, 208 A.3d 380

(“[T]he importance of protecting parents’ fundamental right to effective

assistance of counsel must be balanced against the simultaneous interest of the

State in promoting the early establishment of permanent plans for the

children.” (quotation marks omitted)); In re Evelyn A., 2017 ME 182, ¶¶ 18-22,

169 A.3d 914 (describing “the intensely time-sensitive nature of child

protection proceedings,” concluding that “allowing amendments to motions for

relief months after the established deadline should not be permitted except in

the most extraordinary of circumstances,” and holding that a trial court abused

its discretion when it allowed a parent to amend a motion for relief to challenge 22

the effectiveness of counsel at the jeopardy stage and determined that counsel

should have advised the parents to agree to a jeopardy order rather than

proceed to trial). Because the court fairly balanced competing concerns when

scheduling the Rule 60(b) proceeding, it did not violate the mother’s due

process rights.15

C. The Mother’s Claim of Ineffective Assistance of Counsel

[¶26] The mother next argues that the assistance she received from

counsel throughout the proceedings was ineffective, and that the trial court

therefore erred when it determined that (1) her lawyer’s assistance during the

jeopardy phase was not deficient and (2) she had not demonstrated that she

was prejudiced by any deficient performance by her attorneys between the

entry of the jeopardy order and the entry of the judgment terminating her

parental rights. “When a parent raises a claim of ineffective assistance of

counsel in a child protection case, it is the parent’s 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

We find no support in the record for the mother’s additional argument that the court’s case 15

management decisions demonstrate that the trial judge was not an impartial factfinder. See In re Children of Melissa F., 2018 ME 110, ¶ 15, 191 A.3d 348; In re M.E., 2016 ME 1, ¶ 14 & n.3, 131 A.3d 898. 23

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.” In re Alexandria C., 2016 ME 182, ¶ 18,

152 A.3d 617 (quotation marks omitted). The parent “must overcome ‘a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” In re Children of Kacee S., 2021 ME 36, ¶ 19, 253 A.3d

1063 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). “Counsel’s

performance is not deficient if the record reflects a flawed but ultimately

understandable trial strategy. Rather, the performance must be manifestly

unreasonable.” Id. ¶ 20 (citations and quotation marks omitted).

[¶27] We review the findings supporting a decision on an ineffectiveness

claim for clear error. In re Alexandria C., 2016 ME 182, ¶ 19, 152 A.3d 617.

“Because the parent alleging counsel’s ineffectiveness had the burden of proof,

on appeal the parent must demonstrate that a contrary finding is compelled by

the evidence.” Id. We review the ultimate decision denying a Rule 60(b) motion

alleging ineffective assistance of counsel for an abuse of discretion. Id. 24

1. Jeopardy Phase

[¶28] The mother argues that her second attorney’s performance was

constitutionally ineffective because he was inadequately prepared for a

contested jeopardy hearing and rushed the mother into agreeing to the

proposed jeopardy order without adequately explaining its terms to her. She

also argues that after the entry of the jeopardy order, the second attorney failed

to adequately explain to the mother that her options included pursuing an

ineffective-assistance claim, either by appealing from the jeopardy order or

moving for relief under Rule 60(b). The Department argues that the evidence

does not compel a determination that the second attorney’s performance was

deficient. In addition, citing our decision in In re Child of Radience K., 2019 ME

73, 208 A.3d 380, the Department argues that review of counsel’s performance

connected with the jeopardy phase is, at this stage, unavailable to the mother.

See id. ¶ 59 (“If . . . a parent were allowed to wait until after the entry of a

termination judgment before reaching back and challenging the process

affecting a much earlier phase in the case, there would be the prospect that

much of the case could be unwound, resulting in unnecessary and damaging

delays in the case’s resolution.”). The mother counters that review should be

available in these circumstances to protect a parent’s due process rights, given 25

that an attorney’s failure to raise an ineffectiveness claim promptly after the

issuance of a jeopardy order might itself be grounds for an ineffective

assistance claim. See In re Children of Kacee S., 2021 ME 36, ¶ 16, 253 A.3d 1063.

Moreover, as the mother argues, any deficits in representation during the

jeopardy stage are highly likely to affect the course of the rest of the case.

[¶29] We have held that (1) parents have a right to “competent and

effective” representation at the jeopardy stage of a child protection proceeding

and (2) “the procedural requirements governing a motion for relief from

judgment based on a claim of ineffective assistance of counsel in a jeopardy

proceeding—including the deadlines for filing such a motion relative to the

date a jeopardy order is entered—are the same as those we prescribed for a

claim of ineffectiveness at a termination hearing.” In re Child of Radience K.,

2019 ME 73, ¶¶ 56-59, 208 A.3d 380 (citing In re M.P., 2015 ME 138, ¶¶ 18-21,

126 A.3d 718); see also In re Evelyn A., 2017 ME 182, ¶¶ 15-22, 169 A.3d 914;

In re Children of Meagan C., 2019 ME 129, ¶¶ 8-9, 26, 214 A.3d 9.

[¶30] In In re M.P., the case in which we set forth the procedural

requirements we referenced in In re Child of Radience K., we left “to future

development the potential that, after balancing the children’s interests with the

parent’s interests,” a trial court may accept a late-filed Rule 60(b) motion 26

alleging ineffective assistance of counsel in “exceptional and unusual

circumstances.” In re M.P., 2015 ME 138, ¶ 20 n.4, 126 A.3d 718. We did not

revisit this potential exception until 2021, in In re Children of Kacee S., 2021 ME

36, 253 A.3d 1063. There, we construed as timely a late-filed amended motion

for relief from a termination judgment where the parent had initially filed a

timely, but procedurally flawed, motion. Id. ¶¶ 12-17. Because the parent

“moved expeditiously” at every stage and “pursue[d] her ineffectiveness claim

with diligence and alacrity,” we expressly applied the exception for

“exceptional and unusual circumstances,” explaining that “[i]t would be a

strange system of justice that allowed a parent’s claim of ineffective assistance

of counsel regarding one attorney to be stymied because another attorney

rendered ineffective assistance in asserting the claim.” Id. ¶¶ 15-17 & n.5, 35.

[¶31] Here, we need not address whether the mother’s challenge to her

second attorney’s effectiveness should be construed as timely. Although the

motion court concluded that the challenge was untimely under Child of

Radience K., the court went on to address the merits of the mother’s challenge,

determining that the second attorney’s performance did not fall below what

might be expected from an ordinary fallible attorney. See, e.g., In re

Alexandria C., 2016 ME 182, ¶ 18, 152 A.3d 617. The record does not compel a 27

contrary finding. See id. ¶ 19. The court was entitled to rely on the second

attorney’s testimony during the Rule 60(b) hearing that the mother “was

adamant she did not want a hearing,” “was concerned about . . . possibly having

to plead the fifth,” and “wanted [him] to negotiate a jeopardy order” that

included an opportunity to reunify. The second attorney testified that he was

“negotiating constantly” with the State leading up to the scheduled jeopardy

hearing, “knowing that [the mother] did not want a hearing,” and “finally came

to an agreement that had a cease [reunification order], but with an exception

carved out for her to get services after an eval and recommendations were had.

And the Department was agreeing to pay for all that.” The second attorney

testified that he had discussed the aggravating factor with the mother and that

she “was going to agree to the order that [the State was] proposing, and I was

just trying to make it better.” Similarly, the mother’s expert testified, “[I]f it’s

true that all along there was an expectation between [the mother and her

second attorney] that there wasn't going to be a hearing, it wouldn’t surprise

me that his focus was on—on an agreement rather than, you know, seeking an

expert.”

[¶32] Negotiating and obtaining a jeopardy agreement is often a

reasonable trial strategy, and the terms of the agreement were not manifestly 28

unreasonable. See In re Children of Kacee S., 2021 ME 36, ¶¶ 19-20, 253 A.3d

1063. Given the motion court’s findings, therefore, it also was not ineffective

assistance for the second attorney or the subsequent attorneys to fail to advise

the mother to attempt to appeal from the agreed-upon jeopardy order or move

for relief from the order on ineffective-assistance grounds. See id. ¶ 19.

2. Termination Phase

[¶33] The mother argues that there were various deficiencies in her

attorneys’ performance between the entry of the jeopardy order and the entry

of the judgment terminating her parental rights to the children. She claims that

her second attorney failed to turn his case file over to her third attorney and

that neither her third nor her fourth attorney obtained a complete record of the

case or proceedings before the termination hearing. She claims that her third

attorney did not interview any potential witnesses or file a witness list and did

not request co-counsel even though co-counsel would have been required for

the third attorney to represent the mother in a contested termination hearing.16

She argues that her fourth attorney’s performance was ineffective because he

16 The mother’s third attorney testified that co-counsel would have been required because she

had not acted as the lead attorney representing a parent in a final termination hearing before. She testified that she had discussed with another attorney the possibility of serving in the co-counsel role, and that she was “on the edge of” making that formal request with the court when the court “accepted” the fourth attorney’s entry of appearance. 29

did not press his motion to continue the termination hearing; did not file a

witness list, resulting in limitations on the evidence that the mother could

present during the hearing; and did not adequately prepare for the hearing or

advocate for the mother during the hearing. The Department responds that the

trial court acted within the bounds of its discretion when it denied the mother’s

motion for relief from the judgment because the mother did not demonstrate

how the result would have been different but for these alleged deficiencies.

[¶34] Although the trial court addressed only the prejudice prong of the

ineffective-assistance analysis, see, e.g., In re Child of Kenneth S., 2022 ME 14,

¶ 31, 269 A.3d 242, we take the opportunity to point out that the record reveals

troubling points in the mother’s representation leading up to the termination

hearing. It should go without saying, for example, that an attorney charged with

defending a parent’s fundamental right of parenthood should not attempt to do

so without obtaining the complete case file, investigating potential witnesses,

obtaining necessary records, or filing a witness and exhibit list in preparation

for a contested termination hearing. These omissions put a parent’s rights at

risk and generally cannot be characterized as constituting even a “flawed but 30

ultimately understandable trial strategy.” In re Children of Kacee S., 2021 ME

36, ¶ 20, 253 A.3d 1063.17

[¶35] The motion court determined that the mother had not

demonstrated that her attorneys’ performance “prejudiced [her] interests at

stake in the termination proceeding to the extent that the trial cannot be relied

on as having produced a just result.” In re Alexandria C., 2016 ME 182, ¶ 18,

152 A.3d 617 (quotation marks omitted). On this record, we cannot conclude

that the record compels contrary findings or that the court abused its

discretion. Despite the attorney’s failure to file a witness list before the

termination hearing, the mother was able to testify on her own behalf and

present three additional witnesses. In determining that there was no

reasonable probability that the testimony of other witnesses the mother

claimed her attorney should have presented during the termination hearing

would have changed the result, the court noted that the mother would have

been unable to overcome the evidence supporting the findings of unfitness and

that termination is in the children’s best interests. As the court noted, many of

We recognize there may be cases where a parent has little or no helpful evidence to present at 17

a termination hearing and so the failure to file a witness and exhibit list may therefore be intentional or of no consequence. That was not true here, however, as the mother tried and, to some extent succeeded, to present witnesses at the termination proceeding. 31

the missing witnesses identified by the mother at the Rule 60(b) hearing had

little or no involvement with the family after the removal of the children.18 The

GAL testified at the motion hearing that she did not believe that testimony from

any of the different witnesses that the mother claimed she was unable to

present would have changed her opinion or the outcome and that it was the

mother’s own actions that led to the termination of her parental rights.

[¶36] In addition, the evidence does not compel a determination that a

reasonable probability exists that the result of the proceeding would have been

different if counsel had obtained a more complete record of the prior

proceedings before the termination hearing. This case is unlike In re Children

of Kacee S., in which the parent’s attorney “appeared well after the hearing

began,” claiming to believe that the matter had been continued; decided not to

join another parent’s motion to continue the hearing; and “presented no

evidence, called no witnesses, and offered no closing argument,” leaving “the

Department’s narrative entirely unchallenged.” 2021 ME 36, ¶¶ 26-27, 253

A.3d 1063. Here, the mother’s fourth attorney advocated for the mother during

18Some were clearly of limited relevance, like the mother’s prenatal medical providers, a doctor who had been the pediatrician before the Department was involved, or the mother’s foster mother when she was a teenager. Others may have been a closer call, like a parenting educator with whom the mother took courses. 32

the termination hearing, cross-examining all the Department’s witnesses and

presenting three witnesses in addition to the mother herself. See In re Children

of Kimberlee C., 2018 ME 134, ¶ 6, 194 A.3d 925 (holding that a parent failed to

show ineffective assistance of counsel in a termination proceeding when the

parent’s “attorney made several objections, including at least one objection

sustained by the court,” elicited favorable testimony, “rigorously

cross-examined each witness, some multiple times,” and facilitated the parent’s

testimony).

[¶37] In summary, although there were flaws in the mother’s

representation, we cannot say that these flaws compelled a finding of

ineffective assistance of counsel.

D. Revision of the Process for Rule 60(b) Ineffective Assistance Claims

[¶38] Despite our conclusion that the motion court did not abuse its

discretion in determining that the mother ultimately was not prejudiced by any

deficient performance, we are concerned about the fairness of the process that

we have established for claims of ineffective assistance of counsel in child

protection proceedings. We agree with the mother that some of the processes

and timelines that we set in place to govern Rule 60(b) motions in child

protective cases, see In re M.P., 2015 ME 138, ¶¶ 20-21, 126 A.3d 718, have 33

proven unrealistic in practice. When we established the required procedure,

we noted the absence of legislative guidance and anticipated that experience

might necessitate revisitation, at least in some respects. See id. ¶¶ 17-19, 20

n.4. Based on what we have observed in practice as the process we have

required since 2015 has been applied, we are persuaded that two changes are

needed to better ensure that Rule 60(b) claims of ineffective assistance

continue to “avoid delays in the final adjudication of a parent’s parental rights,

allowing the children some hope of permanence and finality, while at the same

time allowing a parent to be heard if there has truly been a lapse in the service

of the attorney.” In re Children of Meagan C., 2019 ME 129, ¶ 25, 214 A.3d 9.

[¶39] First, the current deadline to file a Rule 60(b) motion alleging

ineffective assistance of counsel—twenty-one days after the expiration of the

time to file a direct appeal from a jeopardy order or termination judgment, see

In re M.P., 2015 ME 138, ¶ 20, 126 A.3d 718—has proven to be unrealistically

short. We accounted for the possibility that this deadline could be extended in

“exceptional and unusual” circumstances, see id. ¶ 20 n.4, but in reality, it is

typically very difficult to comply with this timeline.19 See In re Children of

19 The case before us is emblematic of the sometimes insurmountable procedural hurdle that this

timeline presents for a parent—and appellate counsel—seeking adjudication of a claim that their constitutional right to the effective assistance of counsel has been violated. Here, the termination 34

Shannevia Y., 2023 ME 76, ¶ 10 n.3, 306 A.3d 625 (describing a persuasive but

ultimately unsuccessful argument that it would have been impossible to comply

with this requirement). We therefore now adjust the timeline to require that a

parent claiming ineffective assistance of counsel in a Rule 60(b) motion file that

motion within forty-two days, instead of twenty-one days, after the expiration

of the deadline to file a notice of appeal from the judgment.

[¶40] Second, the requirement that a parent claiming in a Rule 60(b)

motion that she received ineffective assistance of counsel must attach affidavits

“from any individuals the parent asserts should have been called as witnesses

during the termination hearing” and “any individuals who have evidence that

would bolster the parent’s claim that the performance of his or her attorney

was deficient and that the deficiency affected the fairness of the proceeding,”

In re M.P., 2015 ME 138, ¶ 21, 126 A.3d 718,20 has also proven to be unworkable,

as the mother has argued. In particular, a parent may not be able to compel the

signing of an affidavit by every potentially relevant witness, either within the

judgment was entered on the docket on January 24, 2023, meaning that the deadline for a notice of appeal was February 14. See M.R. App. P. 2B(c)(1). Appellate counsel was appointed on February 10, seventeen days after the entry of the judgment and four days before the deadline for the notice of appeal. Under the existing timeframe, appellate counsel then had just twenty-five days to obtain and review the file, interview potential witnesses, obtain affidavits, and prepare and file a Rule 60(b) motion.

See also, e.g., In re Children of Meagan C., 2019 ME 129, ¶ 22, 214 A.3d 9; In re Aliyah M., 2016 20

ME 106, ¶ 8, 144 A.3d 50. 35

given time frame or, indeed, at all.21 It is difficult to protect a parent’s due

process rights while denying an ineffective-assistance claim solely on the

ground that the parent failed to secure affidavits from witnesses. See In re

Aliyah M., 2016 ME 106, ¶ 9, 144 A.3d 50 (“[T]hese processes are designed to

balance the parent’s due process interests against the State’s interests in

providing stability and permanency for the child.”).

[¶41] We are persuaded, therefore, to relax the requirement that the

Rule 60(b) motion be accompanied by affidavits from every witness the parent

intends to present. When a parent files a Rule 60(b) motion making an

ineffective-assistance claim, the parent must still file the parent’s own affidavit

containing an offer of proof that details the evidence the parent intends to

present in support of the claim. See In re M.P., 2015 ME 138, ¶ 21, 126 A.3d

718.22 We emphasize that it remains in the parent’s interest to be specific and

to include affidavits from potential witnesses where possible, because the trial

court has discretion to determine what process “‘is necessary to meaningfully

assess a parent’s claim,’” including whether to hold an evidentiary hearing at

21A party can compel a witness to appear in court by subpoena, see M.R. Civ. P. 45(a)(1)(C), but cannot compel anyone to execute an affidavit. 22 See also, e.g., In re Tyrel L., 2017 ME 212, ¶ 10, 172 A.3d 916; In re Children of Matthew G., 2019

ME 106, ¶¶ 6-7, 211 A.3d 226. 36

all. In re Child of Shaina T., 2019 ME 107, ¶ 17, 211 A.3d 229 (quoting In re M.P.,

2015 ME 138, ¶ 36, 126 A.3d 718).

[¶42] We need not determine whether the revised process we now

announce for Rule 60(b) ineffective-assistance claims ought to apply to this

case because we are satisfied it would not have affected the trial court’s

conclusion that the mother could not demonstrate that her attorneys’

performance prejudiced her. The witnesses the mother identified that she was

prohibited from calling at the Rule 60(b) hearing were a psychologist who

performed a parental diagnostic evaluation of the mother and the mother’s

mental-health-care provider. Neither of those witnesses’ testimony would

have been directed at the central problem in this case—the mother’s failure to

acknowledge any responsibility for or insight into the life-threatening,

intentional harm her younger child experienced, her continuing inability to

understand the children’s needs, and her continued failure to comply with

many of the reunification requirements imposed by the jeopardy order.

Because we conclude that there was no actual prejudice from excluding these

witnesses, the application of the revised process we announce today could not

have altered our analysis. 37

III. CONCLUSION

[¶43] We have taken some care to detail the troubling course of the

proceedings in this case. We recognize the complexities facing the court and

counsel and are deeply mindful of the competing interests at stake. See, e.g.,

In re Child of Radience K., 2019 ME 73, ¶ 58, 208 A.3d 380 (recognizing the

State’s interest “in promoting the early establishment of permanent plans for

the children” (quotation marks omitted)). Delay for a child in dire need of

permanency may well cause additional harm and trauma. In re William S., 2000

ME 34, ¶ 13, 745 A.2d 991. On this record, we cannot conclude that the court

erred or abused its discretion in determining that the mother is unfit and

termination of the mother’s parental rights is in the children’s best interest. We

also cannot conclude that the court violated the mother’s due process rights.

Moreover, it is the mother’s “burden to show that (1) [her] counsel’s

performance was deficient . . . and (2) the deficient performance prejudiced

[her] interests at stake in the termination proceeding to the extent that the trial

cannot be relied on as having produced a just result.” In re Child of Shaina T.,

2019 ME 107, ¶ 18, 211 A.3d 229 (quotation and citation omitted). We thus 38

cannot conclude that the court erred or abused its discretion in denying the

Rule 60(b) motion alleging ineffective assistance of counsel.

The entry is:

Judgment affirmed.

Taylor Kilgore, Esq. (orally), Kilgore Law, PLLC, Turner, and Julian Richter, Esq., Family Advocacy of Maine, Bath, for appellant Destiny H.

Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen. (orally), Office of the Attorney General, Bangor, for appellee Department of Health and Human Services

South Paris District Court docket number PC-2021-26 FOR CLERK REFERENCE ONLY