MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2015 ME 138 Docket: Cum-14-131 Submitted On Briefs: June 2, 2015 Decided: October 29, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.
IN RE M.P.
SAUFLEY, C.J.
[¶1] This appeal requires us to identify a process by which a parent may
challenge a judgment terminating parental rights based on ineffective assistance of
counsel. The mother of M.P. appeals from a judgment entered in the District Court
(Portland, Powers, J.) terminating her parental rights pursuant to 22 M.R.S.
§ 4055(1) (2014) and denying her motion for relief from judgment pursuant to
M.R. Civ. P. 60(b)(6) based on her claim of ineffective assistance of counsel. In
addition to challenging the judgment terminating her parental rights, the mother
argues that she was denied due process because she was not provided with the
effective assistance of counsel and was not allowed to present witnesses’ testimony
at the hearing on the Rule 60(b)(6) motion. We now address the process to be
employed for raising ineffective assistance claims in termination of parental rights
matters, adopt a standard modeled after Strickland v. Washington, 466 U.S. 668
(1984), and affirm the judgment. 2
I. BACKGROUND
A. Factual Findings
[¶2] Following a hearing on a petition filed by the Department of Health
and Human Services to terminate the mother’s parental rights to her daughter, the
court found the following facts by clear and convincing evidence, and the findings
are supported by competent evidence in the record.1 See In re Thomas D., 2004
ME 104, ¶ 21, 854 A.2d 195. When M.P. was born in December 2011, personnel
at Maine Medical Center contacted the Department regarding the mother’s
inability to meet the child’s basic needs and to remember instructions that were
given to her. In January 2012, the Department filed a petition for a child protection
order, and M.P. was placed with her mother’s aunt.
[¶3] The mother has cognitive limitations and has suffered from anxiety and
depression. From March 2012 to October 2012, the mother had visits with M.P.
twice a week. During the visits, the mother needed a lot of reminding about how
to care for M.P., and she was not consistent in her care.
[¶4] In October 2012, the mother and M.P. entered the Mary’s Place
residential parenting program. While at Mary’s Place from October 2012 to June
1 In April 2012, the mother agreed to an order finding jeopardy based on the “significant domestic violence in her relationship with the father, [her] inability to protect the child, . . . need of parenting education, and concerns about cognitive limitations that compromise the ability to safely care for the very young and vulnerable child.” The jeopardy order required the mother to participate in the Child Abuse and Neglect Evaluation Program, individual therapy, parenting education, and a domestic violence group. 3
2013, the mother struggled to understand M.P.’s developmental needs and to apply
the advice that she was given to different situations. The mother had difficultly
multi-tasking and there continued to be safety concerns; sometimes the mother
would confine M.P. too long in her crib or highchair as a way of accomplishing
other tasks without having to worry about her.
[¶5] When the mother left Mary’s Place with M.P. after seven months of
residential on-site parenting training and treatment, she still needed regular
repetition and continued in-home support. Once back in her home, the mother was
involved in the Spurwink Family Reunification Program for four to ten hours
weekly, and she received ten to twenty hours per week of independent living skills
services through Merrymeeting Behavioral Health.
[¶6] During the several months that the mother was involved in the
Program, staff had to repeatedly address safety issues with the mother; she needed
regular prompting and had trouble supervising M.P., who was by then an active
toddler. After a team meeting in August 2013, the Program’s staff decided to end
its services for the mother and M.P. The team agreed that the mother needed
support in a residential care program, which was no longer available. The mother
was unable to progress to the parent education part of the Program because of
ongoing safety concerns. 4
[¶7] After the Program ended, M.P. returned to living with her mother’s
aunt, and biweekly visits resumed with the mother. The mother was still not
consistent in her care during visits.
B. Termination Hearing
[¶8] After a year of intensive services, including the residential parenting
program at Mary’s Place, the Department filed a petition for termination of the
mother’s parental rights on October 30, 2013.2 The termination petition asserted
that, although the mother had consistently participated in all reunification services,
“[h]er intellectual limitations are preventing [her] from having the ability to
comprehend, understand and consistently implement the parenting skills, to be
pro-active in anticipating safety issues and to manage the ongoing changes related
to her child’s overall development.” The termination hearing was held in February
2014. The Department presented testimony from six witnesses: a psychologist
who conducted an evaluation for the Child Abuse and Neglect Evaluation
Program,3 a social worker from Mary’s Place, a case management worker from
Mary’s Place, a visit supervisor, a case management supervisor with Spurwink’s
Family Reunification Program, and M.P.’s caseworker from the Department. The 2 The Department also petitioned for termination of M.P.’s father’s parental rights. The father did not attend the termination hearing, and the court terminated the father’s parental rights on March 13, 2014. See 22 M.R.S. § 4055(1)(A)(1)(a), (B)(2) (2014). The father did not appeal from that judgment. 3 At the time of the hearing, the Child Abuse and Neglect Evaluation Program had been dissolved and was replaced by the Court Ordered Diagnostic Evaluation (CODE) program. 5
mother testified, but her attorney presented no other witnesses on her behalf. The
guardian ad litem (GAL) also testified, and the court took judicial notice of all
GAL reports.
[¶9] The mother was twenty-five years old at the time of the termination
hearing and had recently obtained her high school diploma. She was residing in
Portland in an apartment and regularly engaging in services. She was seeing a
therapist weekly and taking anxiety medication; she was having panic attacks at
times. The mother admitted that it takes her longer than normal to “get it,” but she
feels that she can care for M.P. with support from daycare and friends.
[¶10] At the hearing, the GAL opined that, although the mother had made a
good faith effort to reunify, she still lacked the ability to meet the safety and
developmental needs of M.P., she could not seem to apply the skills she had been
taught to different circumstances, and she needed regular repetition of model
parenting skills. The court found the GAL’s opinion credible.
[¶11] The District Court terminated the mother’s parental rights in a
judgment entered on March 13, 2014. The court found that, though not unwilling,
the mother is unable to protect the child from jeopardy or take responsibility for
the child in a time reasonably calculated to meet the child’s needs. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i), (ii). The court also found that termination is in M.P.’s best 6
interest. See 22 M.R.S. § 4055(1)(B)(2)(a). The mother timely appealed from the
termination judgment.
C. Motion for Relief from Judgment Pursuant to M.R. Civ. P. 60(b)(6)
[¶12] While the appeal was pending, on June 17, 2014, the mother filed a
motion for remand claiming that she had been denied her right to due process at the
termination hearing based on ineffective assistance of counsel. By order dated
June 18, we granted the mother’s motion, stayed her pending appeal, and remanded
the matter to the District Court to permit the mother to file, and the District Court
to act on, a motion for relief from judgment. On June 25, 2014, the mother moved
for relief from judgment pursuant to M.R. Civ. P. 60(b)(6). In her motion, the
mother asserted, among other things, that her attorney had failed to call or
subpoena witnesses who would have offered favorable testimony regarding the
mother’s strengths and ability to parent M.P., and had neglected to prepare her to
testify on her own behalf. Attached to the motion were affidavits from the mother,
the mother’s counselor, the mother’s teacher at Portland Adult Education, and a
close friend. The mother requested an evidentiary hearing to call witnesses on her
behalf and present her own prepared testimony.
[¶13] At a trial management conference, the court made it clear that the
hearing on the motion would not be an opportunity to relitigate the termination
case. Instead, the court indicated that it would allow the mother and the mother’s 7
former attorney to testify and would also consider the affidavits submitted with the
motion.
[¶14] The hearing on the motion for relief from judgment was held on
August 13, 2014. Because the process employed and the evidence presented to the
court at the hearing are relevant to our due process analysis on appeal, we describe
the proceedings in further detail: The mother testified at the hearing and described
her relationship with her former attorney. She also testified that her counselor, her
teacher, and her friend would have testified that she was a hard-working student,
loved her daughter very much, and was dedicated to bettering herself. The
mother’s former attorney testified that she had represented parents in child
protection matters for five years, but she had never prevailed on behalf of a parent
in a termination proceeding. She testified that she had attended monthly team
meetings, met separately with the mother multiple times in person, and made
phone calls to the mother and to service providers before the termination hearing.
She described her trial strategy as “pok[ing] holes in the State’s case.” Further, she
testified that she had spoken to some of the witnesses the mother was now
claiming should have been called at the termination hearing and decided that their
testimony could not address the Department’s continuing safety concerns. The
attorney testified that she was not told about the mother’s teacher and that she had 8
only met the mother’s friend a week before the trial and did not want to risk
putting someone she had just met on the stand.
[¶15] After hearing from the mother and the mother’s former attorney, and
considering affidavits from other potential witnesses, the court denied the mother’s
motion for relief from judgment on August 20, 2014. Guided by the method by
which ineffective assistance of counsel claims are dealt with in the criminal
context, the court found that the mother had failed to prove that her former
attorney’s performance was “outside the normal or typical range of trial work in
termination cases.” The court also found that, “despite the mother’s desires and
affection for [her daughter],” there was “considerable and persuasive” evidence
supporting termination and that the other witnesses would not have made any
appreciable difference in the evidence: “It is highly unlikely that additional
testimony about [the mother’s] educational achievement, love for her child, or
condition of her home would affect the court’s conclusions that supported
termination.” The court further found that, although the mother’s attorney could
have approached preparing for the termination hearing differently, she was not
required to do so and did not fail in her obligations to competently represent the
mother before or during trial. Ultimately, the court found that the attorney’s
“performance did not cause actual prejudice to [the mother].” The mother
appealed. See 22 M.R.S. § 4006 (2014); M.R. App. P. 2. 9
II. DISCUSSION
[¶16] We now review both the mother’s original appeal from the judgment
terminating her parental rights and the court’s ruling on the Rule 60(b) motion.
Regarding the initial judgment, there is competent evidence in the record to
support the court’s finding, by clear and convincing evidence, of at least one
ground of parental unfitness. See In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d
195. Moreover, the court did not commit clear error or abuse its discretion in
determining that termination of the mother’s parental rights was in the child’s best
interest. See In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297.
[¶17] Regarding the court’s judgment denying her motion for relief based
on ineffective assistance of counsel pursuant to M.R. Civ. P. 60(b)(6), the mother
argues that the court denied her due process by not allowing her to call witnesses to
testify at the hearing. There exists no statute or rule explicitly addressing the
process by which a parent may raise a claim of ineffective assistance of counsel in
a termination of parental rights proceeding or the standard that a court should apply
when making such a determination. Accordingly, we address the applicable
standard and the mother’s due process argument.
A. Process to Raise a Claim of Ineffective Assistance of Counsel
[¶18] We have not yet had the opportunity to opine on the best procedural
vehicle for raising a claim of ineffective assistance of counsel in a termination of 10
parental rights proceeding. To ensure the prompt and final determination of
petitions to terminate parental rights, many jurisdictions require that these claims
be raised on direct appeal. See Susan Calkins, Ineffective Assistance of Counsel in
Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J. App.
Prac. & Process 179, 200 (2004) (“The most common vehicle for raising an
ineffectiveness claim in a parental-termination case is the direct appeal of the
termination order.”); see also State ex rel. Juvenile Dep’t of Multnomah Cty. v.
Geist, 796 P.2d 1193, 1201 (Or. 1990) (“Because of the importance of expeditious
resolution of termination proceedings, and absent statutes providing otherwise, we
hold that any challenges to the adequacy of appointed trial counsel in such
proceedings must be reviewed on direct appeal.”); In re RGB, 229 P.3d 1066,
1085-86 (Haw. 2010) (collecting cases). Other state courts allow parents to raise
ineffective assistance of counsel in a petition for a writ of habeas corpus, see In re
Paul W., 60 Cal. Rptr. 3d 329, 333 (Ct. App. 2007), or by a motion made under
rules similar to M.R. Civ. P. 60(b), see Ex parte E.D., 777 So. 2d 113, 116 (Ala.
2000).
[¶19] To promote the swift resolution of ineffectiveness claims, and in the
absence of a statutorily created process, we now hold that a parent may raise an
ineffective assistance of counsel claim in a direct appeal from an order terminating
his or her parental rights if there are no new facts that the parent seeks to offer in 11
support of the claim. That is, a direct appeal from an order terminating a parent’s
parental rights may include a claim that the parent’s attorney provided ineffective
assistance when the record is sufficiently well developed to permit a fair evaluation
of a parent’s claim.
[¶20] We anticipate, however, that there may be circumstances in which the
record does not illuminate the basis for the challenged acts or omissions of the
parent’s counsel. In that event, 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.4 After a hearing before the trial
court, if the parent’s Rule 60(b)(6) motion is denied, the trial court’s findings will
amplify the record and provide the necessary context should the parent decide to
pursue an appeal of that decision along with the appeal of the underlying judgment
terminating parental rights—as has occurred here.
4 In order to ensure that this time frame works, the District Court must ensure that parents appealing from a termination order who need new counsel on appeal are assigned new counsel immediately. With that process, this time frame should, in most circumstances, allow for new counsel to meet with the parent and obtain the information necessary to raise the claim in the rare instances where it is appropriate. We need not now determine whether, in exceptional and unusual circumstances, a parent may move for relief pursuant to M.R. Civ. P. 60(b)(6) outside of this period. In the absence of statutory guidance, we leave to future development the potential that, after balancing the children’s interests with the parent’s interests, a trial court may act on such a motion. 12
[¶21] To bring a claim of ineffective assistance of counsel, either on direct
appeal or by way of a Rule 60(b)(6) motion, the parent making the claim must
submit a signed and sworn affidavit stating, with specificity, the basis for the
claim.5 In addition, the parent’s affidavit accompanying a Rule 60(b)(6) motion
must also be accompanied by affidavits from any individuals the parent asserts
should have been called as witnesses during the termination hearing, and from 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. Because of the counter-balancing interests of the
State in ensuring stability and prompt finality for the child, if the parent fails to
comply with this procedure, the parent’s motion asserting the ineffective assistance
of counsel must be denied.
B. The Applicable Standard on an Ineffective Assistance of Counsel Claim
[¶22] As the trial court correctly noted, we have not yet addressed the
standard that will apply in assessing a parent’s claim of ineffective assistance of
counsel in termination of parental rights proceedings. See In re S.P., 2013 ME 81,
¶ 10 n.4, 76 A.3d 390. Courts in other jurisdictions that recognize a parent’s right
5 When the claim of ineffective assistance of counsel is made on direct appeal, the affidavit of the parent will not assert facts outside the trial record but will affirmatively state the parent’s intention to claim that trial counsel was ineffective as demonstrated by that record. 13
to the effective assistance of counsel in termination proceedings have generally
applied one of two very similar standards.
[¶23] The first is the same standard used in criminal cases, which was first
announced in Strickland v. Washington, 466 U.S. 668. The Strickland standard is a
two-part test for determining ineffectiveness in the criminal context:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. “[T]he performance inquiry must be whether counsel’s assistance was
reasonable considering all the circumstances.” Id. at 688. “Because of the
difficulties inherent in making [such an] evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance . . . .” Id. at 689.
[¶24] The other standard used to address ineffectiveness claims is the
“fundamental fairness” standard announced in Geist, 796 P.2d at 1203. The
fundamental fairness standard is similar to the Strickland standard; it requires, for a
parent’s challenge to succeed, that a parent demonstrate that appointed counsel
failed to “exercise professional skill and judgment” and that the attorney’s 14
“inadequacy prejudiced [the parent’s] cause to the extent that [the parent] was
denied a fair trial.” Id. at 1203-04.
[¶25] Both the Strickland standard and the fundamental fairness standard
require that a parent demonstrate an attorney’s inadequate performance and some
form of prejudice. The majority of state courts confronting this issue have adopted
the Strickland standard. See, e.g., Jones v. Ark. Dep’t of Human Servs., 205
S.W.3d 778, 794 (Ark. 2005); People ex rel. C.H., 166 P.3d 288, 290-91 (Colo.
App. 2007); In re R.E.S., 978 A.2d 182, 191 (D.C. 2009); In re S.N.H., 685 S.E.2d
290, 298 (Ga. Ct. App. 2009); In re M.S., 115 S.W.3d 534, 545 (Tex. 2003); In re
J.R.G.F., 250 P.3d 1016, 1018 (Utah Ct. App. 2011); see also Calkins at 214-15 &
nn.180-188 (collecting cases). But see In re RGB, 229 P.3d at 1090; Baker v.
Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1039-41 (Ind. 2004).
[¶26] We now adopt the Strickland standard to govern ineffective assistance
of counsel claims in termination of parental rights proceedings. Although we
recognize that this standard—developed through criminal law proceedings—may
have to be tailored to termination of parental rights proceedings in some respects,
the deprivation of parental rights is in many ways similar to the deprivation of
liberty interests at stake in criminal cases.6 The Strickland standard is known to
6 Although Strickland was a death penalty case, the standard announced therein has been applied in cases that involve only incarceration. See Strickland, 466 U.S. at 687; see, e.g., Manley v. State, 2015 ME 117, ¶¶ 3, 11-18, --- A.3d ---. 15
the bar and the bench, and Strickland carries with it a developing body of case law,
which will aid courts in the efficient and timely resolution of such claims.7
Moreover, the importance of finality in termination proceedings supports the use of
the Strickland standard. A more “intrusive post-trial inquiry” could “encourage the
proliferation of ineffectiveness challenges,” Strickland, 466 U.S. at 690, and
possibly delay the permanency that is necessary to stabilize a child’s placement in
a safe environment.
[¶27] Thus, a parent claiming ineffective assistance of counsel in a
termination proceeding may directly appeal from the judgment terminating her
parental rights if the record does not need to be supplemented to support her claim.
Otherwise, the parent must move promptly—ordinarily, within twenty-one days
after the expiration of the appeal period—for relief from judgment pursuant to
M.R. Civ. P. 60(b)(6). Regardless of which procedural route a parent takes to raise
an ineffective assistance of counsel claim, it is the parent’s burden to demonstrate
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,”
7 For clarification of the components of the Strickland standard, see Theriault v. State, 2015 ME 137, --- A.3d ---, certified on this date. Here, the court found both that the mother had failed to demonstrate inadequate performance by counsel and that she had failed to prove prejudice. Thus, no remand for the court to clarify its analysis of the prejudice prong is required. See id. ¶ 30. 16
Aldus v. State, 2000 ME 47, ¶ 12, 748 A.2d 463 (quotation marks omitted), and
(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,”
Strickland, 466 U.S. at 686.
C. The Due Process Analysis
[¶28] In the matter before us, although the mother did not move for relief
from judgment pursuant to Rule 60(b)(6) within twenty-one days after the
expiration of the appeal period, we nonetheless allowed a hearing on the motion
because we had not previously opined on this issue.
[¶29] The trial court held the Rule 60(b)(6) hearing, the mother received
court-appointed counsel, and the mother had the opportunity to present evidence.
The mother now argues that the court denied her due process in that proceeding
when it declined to allow her to call additional witnesses at the hearing and instead
accepted testimony from the mother regarding what she believed the witnesses
would have testified to and considered the witnesses’ sworn affidavits.
[¶30] “When due process is implicated, we review such procedural rulings
to determine whether the process struck a balance between competing concerns
that was fundamentally fair.” In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463
(quotation marks omitted). “‘The fundamental requirement of due process is the 17
opportunity to be heard at a meaningful time and in a meaningful manner.’” Id.
¶ 15 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation marks
omitted)). “It is a flexible concept that calls for such procedural protections as the
particular situation demands.” Id. (quotation marks omitted).
[¶31] When analyzing whether a party was afforded the process that is due,
we balance the three factors articulated by the Supreme Court of the United States
in Mathews v. Eldridge, 424 U.S. 319:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335.
[¶32] The first and third Mathews factors—the parent’s interest and the
government’s interest—are well established and need little explication. The
parent’s interest is significant because a parent has a statutory right to legal counsel
in child protection proceedings given the important liberty interests at stake, see
22 M.R.S. § 4005(2) (2014), and, at a termination hearing, the ineffective
assistance of counsel could significantly interfere with a parent’s “fundamental
right to parent [a] child and to maintain a parental relationship free from state
interference,” In re Cody T., 2009 ME 95, ¶ 25, 979 A.2d 81. As to the third 18
factor, the State has a significant interest in obtaining stability and permanency for
children within a reasonable time. See 22 M.R.S. §§ 4003(4), 4050(2) (2014).
[¶33] We focus on the second Mathews factor, which requires us to consider
whether the procedures used by the court—and the court-imposed limitation on the
mother’s ability to call witnesses at the Rule 60(b)(6) hearing—posed a significant
risk that the mother would not be able to demonstrate her trial counsel’s deficiency
and resulting prejudice, which, pursuant to Strickland, is the necessary test for
proving that she was denied her right to effective counsel.
[¶34] The process employed by the court at the Rule 60(b)(6) hearing was
thoughtful and well balanced. Through the evidence presented by the live
testimony of the mother and her former attorney, and the affidavits of other
potential witnesses, the court was able to assess the quality of the evidence that the
mother claimed should have been offered at the termination hearing. In this
regard, the court was able to determine both whether the mother’s former
attorney’s decision not to call these witnesses was outside what might be expected
“of an ordinary fallible attorney,” Aldus, 2000 ME 47, ¶ 16, 748 A.2d 463, and
whether the witnesses’ averments, together with the mother’s testimony about what
she believed those witnesses would have testified to, demonstrated that “counsel’s
errors were so serious as to deprive” the mother of “a fair trial, a trial whose result
is reliable,” Strickland, 466 U.S. at 687. Thus, the process employed by the court 19
created a low risk of an erroneous deprivation of the right to effective assistance of
counsel to protect the mother’s private liberty interest.
[¶35] We do not suggest that a court should never allow sworn testimony in
addition to the affidavits. In some cases, it may be necessary to assess the
credibility of the witnesses from whom the court receives affidavits to resolve
disputes of fact that would establish whether counsel was ineffective. In this case,
however, the affidavits were sufficient to demonstrate the quality of the mother’s
additional evidence so that the court could assess both the attorney’s judgment in
not calling the witnesses and whether the absence of that evidence prejudiced the
mother. See Strickland, 466 U.S. at 687; Aldus, 2000 ME 47, ¶¶ 16, 20, 748 A.2d
463.
[¶36] Thus, when a parent promptly moves for relief from judgment
pursuant to M.R. Civ. P. 60(b)(6) based on ineffective assistance of counsel, it is
for the trial court to determine what process is necessary to meaningfully assess a
parent’s claim while balancing the State’s important interest in expeditiously
establishing permanent plans for children. See Mathews, 424 U.S. at 333-35. Such
a determination will necessarily call upon a trial court to tailor the process to the
facts and circumstances of each case.
[¶37] After reviewing the Mathews v. Eldridge considerations, we conclude
that the procedures followed by the District Court on the mother’s motion for relief 20
from judgment were adequate to protect her liberty interest, while at the same time
protecting the State’s interest in promoting the child’s stability and permanency
without undue delay. No due process violation has been demonstrated on this
record.
III. CONCLUSION
[¶38] Due process requires “the opportunity to be heard at a meaningful
time and in a meaningful manner.” Id. at 333 (quotation marks omitted). To
successfully and efficiently process a parent’s ineffective assistance of counsel
claim without undermining the Legislature’s stated purpose of “[p]romot[ing] the
early establishment of permanent plans for the care and custody of children who
cannot be returned to their family,” 22 M.R.S. § 4003(4), a parent may, when
appropriate, directly appeal from the judgment terminating her or his parental
rights asserting ineffective assistance of counsel. If it is necessary to supplement
the record before appealing from the judgment, a parent must move for relief from
judgment pursuant to M.R. Civ. P. 60(b)(6) within twenty-one days after the time
frame authorized for taking an appeal. Whether by commencing an appeal or by
filing a motion, the parent must support his or her claim of ineffective assistance
with one or more affidavits. When addressing a parent’s claim, courts will apply
the Strickland standard—modified as necessary to account for the differences
between criminal law and termination of parental rights proceedings—to determine 21
whether a parent’s counsel’s performance at the termination proceeding was
deficient and whether such deficiency prejudiced the parent.
[¶39] On the adequate record before us, the court did not violate due
process by declining to allow the mother to call other witnesses at the
Rule 60(b)(6) hearing, see Mathews, 424 U.S. at 333-35, or abuse its discretion in
denying the mother’s motion for relief from judgment, see In re David H., 2009
ME 131, ¶ 41, 985 A.2d 490.
The entry is:
Judgment affirmed.
On the briefs:
Henry I. Shanoski, Esq., Portland, for appellant mother
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Portland District Court docket number PC-2012-03 FOR CLERK REFERENCE ONLY