MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 76
Docket:   Ken-18-384
Argued:   April 9, 2019
Decided:  May 21, 2019

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                IN RE CHILD OF REBECCA J.


PER CURIAM

         [¶1]      Rebecca J. appeals from a judgment of the District Court

(Waterville, Stanfill, J.) terminating her parental rights to her child pursuant to

22 M.R.S. § 4055(1)(A)(1)(a), (1)(B)(1) (2018).

         [¶2] In 2015, we prescribed a process by which a parent whose parental

rights to a child were terminated following an evidentiary hearing could assert

a claim of ineffective assistance of counsel, either on direct appeal or by filing a

motion for relief from the termination judgment in the trial court pursuant to

M.R. Civ. P. 60(b)(6). In re M.P., 2015 ME 138, ¶¶ 8, 11, 38, 126 A.3d 718. Here,

we are called upon to decide whether a parent has a right to the effective

assistance of counsel in a proceeding where the parent consents to the

termination of her parental rights, and, if so, whether the court abused its

discretion in denying the mother’s two motions for relief asserting ineffective

assistance in this case. See In re Children of Jeremy A., 2018 ME 82, ¶ 21,
2

187 A.3d 602 (stating that “the trial court’s ultimate denial of a Rule 60(b)

motion” is reviewed for an abuse of discretion (quotation marks omitted)).

      [¶3] We hold that the mother had a right to the effective assistance of

counsel at the proceeding where she consented to the termination of her

parental rights and we conclude that the trial court did not abuse its discretion

in finding that the mother received effective assistance when she voluntarily

gave her consent in this case. Accordingly, we affirm the judgment.

                               I. BACKGROUND

      [¶4]   The relevant facts are procedural.      On March 30, 2016, the

Department of Health and Human Services filed a petition for a child protection

order and a request for a preliminary protection order concerning the child; a

preliminary order was entered the same day (Dow, J.) granting custody of the

child to the Department. See 22 M.R.S. §§ 4032, 4034 (2018). Counsel was

appointed to represent the mother.          Following a contested summary

preliminary hearing, see 22 M.R.S. § 4034(4), the court (Stanfill, J.) ordered

continued custody with the Department. In July 2016, the court (Mathews, J.)

entered an order finding jeopardy as to the mother by agreement. See 22 M.R.S.

§ 4035 (2018).
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        [¶5] In December 2017, the Department petitioned to terminate the

mother’s parental rights.1 See 22 M.R.S. § 4052 (2018). At a hearing held on

August 20, 2018 (consent hearing), the mother, represented by the same

counsel appointed more than two years earlier, advised the court (Stanfill, J.)

that she had decided to consent to a termination of her parental rights. The

court asked the mother a series of questions to ensure that she was acting

voluntarily and that she understood the rights that she was foregoing and the

consequences of her decision; the court also inquired of the mother’s counsel

whether in counsel’s opinion the mother was prepared to give an informed and

voluntary consent. See 22 M.R.S. § 4055(1)(B)(1). Satisfied that the mother’s

decision was knowing and voluntary, and having witnessed the mother sign a

written consent form, see id.; the court made a finding to that effect and ordered

that the mother’s parental rights be terminated.

        [¶6] Fifteen days later, acting pro se, the mother filed a letter in the trial

court claiming that she was “pressured” by her attorney to consent to the

termination. She requested a new trial with new counsel. The court appointed

new counsel and set the matter for a hearing; counsel then filed a notice of

appeal from the termination judgment, asserting that the mother’s consent was



  1   The father consented to a termination of his parental rights; he is not a party to this appeal.
4

involuntary and that she had received ineffective assistance of counsel in giving

consent. On September 26, treating the mother’s letter as a motion for a new

trial pursuant to M.R. Civ. P. 59, the court held an evidentiary hearing (new trial

hearing) at which the mother and her former attorney testified.

      [¶7]   The court subsequently entered a written order denying the

mother’s request to set aside her consent, finding that “at the time of the

[consent hearing] this court found [the mother’s] consent to be voluntary and

knowing. Nothing in [the mother’s] subsequent testimony—or that of [her

former attorney]—undermines the court’s confidence in that decision.” The

court further found that “[the mother] failed to prove that she received

ineffective assistance of counsel when she voluntarily consented to the

termination of her parental rights.”

      [¶8] In the interim between the new trial hearing and the court’s

decision, the mother moved us to allow the trial court to act on a

M.R. Civ. P. 60(b)(6) motion for relief from the termination judgment, which

she anticipated filing in accordance with our decision in In re M.P.,

2015 ME 138, ¶ 20, 126 A.3d 718 (stating that “[in] circumstances in which the

record does not illuminate the basis for [an ineffective assistance claim] . . . the

parent must promptly move for relief . . . pursuant to M.R. Civ. P. 60(b)(6)”).
                                                                                                      5

We granted leave for the trial court to act, and the mother filed a timely

Rule 60(b)(6) motion soon after her Rule 59 motion was denied. That motion,

accompanied by affidavits from the mother and her new counsel, asserted,

inter alia, that her former counsel had failed to contact and have available at the

consent hearing two witnesses who could have “at least cast doubt on” some of

the Department’s allegations. The mother asked the court to hold a new

evidentiary hearing on her motion and to grant her relief from the termination

judgment.

       [¶9] In a written order entered December 13, 2018, the court declined to

hold an additional evidentiary hearing and denied the motion on the existing

record and the affidavits, noting that it had already found that “[former

counsel’s] performance was not deficient,” and that the “current [m]otion . . .

and incorporated affidavits do not add any facts that lead this court to a

different legal conclusion pursuant to the Strickland doctrine.”2 The court

found that

       [i]ndeed, [the mother] already testified at the [new trial] hearing
       that the lack of witnesses being present at the [consent hearing] did
       not impact her decision in consenting to the termination of her
       parental rights. Therefore, even assuming everything in the
       affidavits is true, it does not impact the finding already made that

   2 We assess claims of ineffective assistance of counsel in termination of parental rights cases using
the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). In re M.P., 2015 ME 138, ¶ 26, 126 A.3d 718.
6

         [the mother’s] consent [at the consent hearing] was done
         knowingly and voluntarily. Under these circumstances, there is no
         need to hold a second evidentiary hearing.

         [¶10] The mother appealed from the denial of her Rule 60(b)(6) motion,

and we ordered that the appeal be consolidated with her earlier appeal from

the termination judgment. At oral argument, the mother stated that she is

pressing only her assertion that the court erred by denying her request for a

hearing on her Rule 60(b)(6) motion.                       Nonetheless, in the interest of

completeness, we address the other contentions she raises in her brief, namely

that the court erred by denying her Rule 59 motion for a new trial and by

denying her Rule 60(b)(6) motion.

                                         II. DISCUSSION

A.       The Rule 59 Motion

         1.    Voluntariness of Consent

         [¶11] The mother contends that the court erred in denying her request

to withdraw her consent and hold a new termination hearing, which the court

treated as a motion for a new trial pursuant to M.R. Civ. P. 59,3 because her



     Because the mother filed a notice of appeal after filing her pro se request, the trial court had no
     3

power to act on the request except in a circumstance enumerated in the applicable rule.
M.R. App. P. 3(b), (c)(2). The State noted at the outset of the hearing on the mother’s request that a
motion for a new trial filed pursuant to M.R. Civ. P. 59 is such a circumstance; the court then
proceeded to take evidence and issue a decision. M.R. App. P. 2B(c)(2)(C), 3(c)(2).
                                                                                                       7

consent was involuntary. “We review the factual findings underlying a motion

for new trial for clear error, and the court’s ultimate disposition on the motion

for an abuse of discretion.” Ma v. Bryan, 2010 ME 55, ¶ 4, 997 A.2d 755.

        [¶12] We discern no error or abuse of discretion on this record. Before

it may terminate a parent’s rights pursuant to 22 M.R.S. § 4055(1)(B)(1),4 the

District Court must find by clear and convincing evidence that the parent

consented to the termination voluntarily and knowingly. In re H.C., 2013 ME 97,

¶¶ 11-13, 82 A.3d 80. In order to make the required finding, “a court must, at

minimum, (1) explain to the parent his or her parental rights and the effects of

his or her decision thereon, (2) inquire into the parent’s understanding of the

effects of the decision, and (3) determine that the parent’s decision is freely

given.” Id. ¶ 13.

        [¶13] “[B]ecause a child’s interest in the finality of [the termination]

proceeding[] outweighs a parent’s desire to revoke the consent in

circumstances where the consent was knowingly and voluntarily executed,”

after a parent enters a valid consent to the termination of his or her parental

rights, that consent “may be set aside only on the basis of fraud, duress, mistake,


   4 The statute provides that one alternative allowing a court to terminate parental rights is satisfied

when “[t]he parent consents to the termination. Consent shall be written and voluntarily and
knowingly executed in court before a judge. The judge shall explain the effects of a termination
order[.]” 22 M.R.S. § 4055(1)(B)(1) (2018).
8

or incapacity.”    Id. (quotation marks omitted); see also In re Amanda N.,

1998 ME 115, ¶ 1, 710 A.2d 264 (“We conclude that the mother’s knowing and

voluntary consent to the termination is irrevocable absent a showing of fraud,

duress, mistake, or incapacity . . . .”).

      [¶14] All of the requirements for a valid consent were satisfied here.

Before allowing the mother to execute a written consent form in open court, the

presiding judge was advised by the mother that she wished to consent to

termination. The court then inquired of the mother personally as to whether

she had been given enough time to consider her decision and whether she was

consenting voluntarily “because you think it’s the best thing to do.” The court

next ensured that the mother understood her right to have a hearing on the

Department’s petition; that at the hearing the court would make the decision as

to whether the Department had proved by clear and convincing evidence that

her parental rights should be terminated; that the mother’s decision was not

the result of any promises concerning her future contact with the child; and that

the result of her consent would be the loss of all legal rights concerning the child

except for the child’s right to inherit, see 22 M.R.S. § 4056(1) (2018), including

the right to know anything about the child following termination. The mother
                                                                               9

answered all of those questions in a way that demonstrated her knowing and

voluntary consent to termination.

      [¶15] At the conclusion of its colloquy with the mother, the court asked

once again whether she had had enough time to make her decision and asked

whether she had “any other questions . . . or concerns”; the mother said that

she did not have any questions or concerns and reiterated that she was acting

voluntarily. The court then asked the mother’s attorney whether in her opinion

the mother was acting voluntarily; counsel agreed that she was and stated that

the mother had been “fully informed” of the consequences of her decision.

Only then did the court allow the mother to sign a written consent form and

order that her parental rights be terminated. The court’s careful actions fully

complied with the requirements for accepting a knowing and voluntary consent

that we articulated in In re H.C., 2013 ME 97, ¶ 13, 82 A.3d 80.

      [¶16] Of the reasons that may justify setting aside a valid consent to

termination, the mother advances two, asserting that she was “pressured” by

her attorney and thus acted under duress and that counsel failed to “assess and

investigate” her mental health and intellectual capacity. See id. (stating that a

voluntary and knowing consent may be set aside for “fraud, duress, mistake, or

incapacity”). Neither argument is persuasive.
10

      [¶17] Nothing about the cordial, respectful, and unrushed consent

hearing suggests that the mother was coerced or otherwise compelled to act by

anything other than the circumstances in which she found herself—

circumstances that were the result of her own actions and behavior. Cf. City of

Portland v. Gemini Concerts, Inc., 481 A.2d 180, 183 (Me. 1984) (discussing

“wrongful acts or threats which subvert the will” as forms of duress); see

generally Duress, Black’s Law Dictionary (10th ed. 2014). At the new trial

hearing, the attorney who had represented the mother at the consent hearing

testified that there were ongoing child protection proceedings concerning both

of the mother’s other children; that she had advised the mother she would likely

lose a contested termination hearing that day given the anticipated evidence of

her poor reunification efforts; and that an involuntary termination judgment

following a contested hearing would be harmful to her cause in subsequent

child protection proceedings concerning the other children.          The court

ultimately found that “[the mother] was clearly in a difficult position between

the Scylla and Charybdis, a situation in which the choices were all repugnant to

her. She made a voluntary choice, and although she may regret it, there is no

basis to set it aside.”
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       [¶18] Nor was there any suggestion from any party or the court, after its

extended colloquy with the mother at the consent hearing, that the mother

lacked the capacity to understand or appreciate what was occurring. To the

contrary, when the court asked the mother at the new trial hearing, “Just to be

clear, on the day of the consents . . . you knew what you were signing, that there

were consents to terminate your parental rights?” the mother answered,

“Yes . . . yeah.”5 On this record, the court’s finding that “[the mother] fully

understood what she was doing” is not clearly erroneous. See Ma, 2010 ME 55,

¶ 4, 997 A.2d 755.

       2.      Ineffective Assistance

       (a) The Mother’s Right to Effective Counsel

       [¶19] Before reaching the merits of the mother’s contention that she

received ineffective assistance of counsel at the consent hearing, we first

address a preliminary question—whether the mother had a right to effective

assistance in a proceeding where there was no trial because she consented to a

termination of her parental rights. The mother asserts that she did and the

Department agrees.



   5The mother signed two consents to termination at the consent hearing, the one at issue in this
appeal and a conditional consent concerning another child; that consent was later vacated when the
condition precedent was not fulfilled.
12

      [¶20]    We also agree that the mother had a right to the effective

assistance of counsel in making the decision to voluntarily consent to

termination, as would unquestionably have been the case had she elected to

proceed to a contested hearing. See In re Child of Nicholas G., 2019 ME 13, ¶ 16,

200 A.3d 783 (“An indigent parent has a due process right . . . to appointed

counsel in a child protection proceeding.”); In re M.P., 2015 ME 138, ¶ 38,

126 A.3d 718 (setting out the process by which a parent may assert a claim of

ineffective assistance of counsel in an appeal from a judgment terminating

parental rights). The same “fundamental liberty interest”—the mother’s right

“to make decisions concerning the care, custody, and control of her child[],”

In re Children of Bethmarie R., 2018 ME 96, ¶ 23, 189 A.3d 252 (alteration and

quotation marks omitted)—was at stake at the time she was required to decide,

with the advice of counsel, what course of action to take. Effective counsel was

no less necessary simply because the mother decided to consent rather than

put the Department to its proof.

      [¶21] Furthermore, the Legislature has provided that “[p]arents . . . are

entitled to legal counsel in child protection proceedings,” 22 M.R.S. § 4005(2)

(2018), and we held in another context involving the potential deprivation of

liberty that “where a state statute affords an individual . . . the right to counsel,
                                                                              13

the legislature could not have intended that counsel could be prejudicially

ineffective.” In re Henry B., 2017 ME 72, ¶ 6, 159 A.3d 824 (quotation marks

omitted). The same rationale applies in this case.

      (b) Effectiveness of Counsel at the Consent Hearing

      [¶22] We now turn to the mother’s contention that she must be allowed

to withdraw her consent because her counsel was constitutionally ineffective

at the consent hearing. The court emphatically found to the contrary following

the evidentiary new trial hearing: “Here, not only was [counsel’s] performance

not deficient, the advice she provided to her client and the time she took to

explain the different courses of action and their consequences was very

appropriate, exceeding that which might be seen with the ordinary fallible

attorney.”

      [¶23] We recently restated the mother’s burden on appeal:

             A parent alleging ineffective assistance of counsel in a child
      protection case has 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 (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. When considering the issue of prejudice, the court must
      determine if there is a reasonable probability that the
      ineffectiveness resulted in a different outcome—meaning, whether
      ineffective assistance of counsel rose to the level of compromising
14

      the reliability of the judgment and undermining confidence in it.
      Because the [mother] had the burden of proof at the motion
      hearing to prove ineffectiveness, [she] must demonstrate here that
      the evidence compelled a contrary outcome.

In re Children of Jeremy A., 2018 ME 82, ¶ 21, 187 A.3d 602 (alterations,

citations, and quotation marks omitted); see In re Alexandria C., 2016 ME 182,

¶¶ 18-19, 152 A.3d 617.

      [¶24] The trial court did not err by concluding that the mother failed to

meet her burden to show that her counsel at the consent hearing was deficient;

therefore, we need not reach the prejudice prong of the ineffective assistance

analysis. The mother’s former counsel testified at the new trial hearing that she

began her “[a]miable . . . very friendly” representation of the mother in 2016.

The mother gave counsel no reason to be concerned about her competency and

gave every indication that she understood the issues involved and her

attorney’s advice. She stayed in contact with counsel and provided all of the

information that counsel requested. Counsel never saw the mother impaired

and said that the mother spoke using a normal vocabulary.

      [¶25] In “multiple conversations” over several months, the mother

consistently said that she wanted to contest termination at a hearing. On the

day of the hearing, the mother instead decided to consent after receiving

counsel’s detailed advice concerning the state of the evidence, the likelihood of
                                                                                15

success, and the potential effect of an involuntary termination judgment on

pending child protection cases involving her other children. See supra ¶ 20.

      [¶26]   The mother testified that preceding her consent she had a

discussion with her attorney that lasted about forty-five minutes, during which

counsel explained her options to her. She said that she wrote to the court a few

days later asking to withdraw her consent after talking to a friend who

recommended that she do so. She told the court that she felt that she had a

choice at the consent hearing, albeit one that she felt “pressured” to make.

      [¶27] Relevant to the mother’s contention in the trial court, and on

appeal, that she was prejudiced by her former attorney’s failure to have

available two witnesses whom she had identified, when her attorney asked her

at the new trial hearing, “Did that have any impact on your decision?” the

mother answered, “No.” Therefore, even if we were to reach the issue of

prejudice, the evidence did not compel the court to conclude that the mother

established this element of an ineffective assistance claim.

      [¶28] It is well established that “the court, as fact-finder and sole arbiter

of witness credibility, was free to selectively accept or reject” the testimony

offered by the mother and her former attorney. Amero v. Amero, 2016 ME 150,

¶ 13, 149 A.3d 535 (quotation marks omitted). On this record, the court did not
16

clearly err in finding that the mother voluntarily consented to a termination of

her parental rights after her attorney provided advice “exceeding that which

might be seen with the ordinary fallible attorney.” See In re Alexandria C.,

2016 ME 182, ¶ 19, 152 A.3d 617 (“We review the factual findings underlying

ineffectiveness claims for clear error.”).

B.    The Rule 60(b) Motion

      [¶29] The mother’s motion for relief from the termination judgment,

filed pursuant to M.R. Civ. P. 60(b)(6) in accordance with our guidance in

In re M.P., 2015 ME 138, ¶ 20, 126 A.3d 718, similarly asserted ineffective

assistance of counsel based on (1) her former attorney’s failure to produce two

specified witnesses at the consent hearing, and (2) her involuntary consent. As

required by In re M.P., the motion was supported by affidavits, one executed by

the mother and the other by her new counsel. 2015 ME 138, ¶ 21, 126 A.3d 718.

Counsel’s affidavit stated that he had contacted the two witnesses by phone,

that the witnesses gave at best vague information, and that neither witness

would voluntarily participate in any court proceeding or sign an affidavit.

      [¶30] The court declined to hold a new evidentiary hearing and denied

the motion by written order, noting that it had already found in its decision on

the Rule 59 motion that former counsel’s performance was not deficient, and
                                                                                17

finding that “[the mother’s] current Motion for Relief from Judgment and

incorporated affidavits do not add any facts that lead this court to a different

legal conclusion pursuant to the Strickland doctrine.” The court took special

note of the mother’s testimony at the new trial hearing “that the lack of

witnesses being present at the [consent hearing] did not impact her decision in

consenting to the termination of her parental rights.”

      [¶31] We discern no abuse of discretion in the court’s determination that

“[u]nder these circumstances, there is no need to hold a second evidentiary

hearing,” or in its decision to deny the Rule 60(b)(6) motion for relief. See

In re Children of Jeremy A., 2018 ME 82, ¶ 21, 187 A.3d 602 (“[W]e review for an

abuse of discretion the trial court’s ultimate denial of a Rule 60(b) motion.”

(quotation marks omitted)). We have said that

      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. Such a determination will necessarily call upon a trial
      court to tailor the process to the facts and circumstances of each
      case.

In re M.P., 2015 ME 138, ¶ 36, 126 A.3d 718 (citation omitted). In making that

assessment, “a court is not required to hold an evidentiary hearing, even when
18

a party asserts that such a hearing is necessary, to receive evidence in support

of a Rule 60(b) motion.” In re David H., 2009 ME 131, ¶ 34, 985 A.2d 490.

      [¶32] Here, the court had already heard the testimony of the mother and

her former attorney at the prior evidentiary hearing concerning the mother’s

claim that her consent was involuntary, and had heard the mother testify that

the absence of the two witnesses she identified in her Rule 60(b)(6) motion had

no effect on her decision to consent to termination. Nothing in the affidavits

filed with the Rule 60(b)(6) motion had any material effect on the evidence the

court had previously received. See In re Alexandria C., 2016 ME 182, ¶ 16,

152 A.3d 617 (“When a parent pursues a claim of ineffective assistance by

means of a Rule 60(b)(6) motion, the parent’s affidavit and any accompanying

affidavits must . . . demonstrate that there was admissible, material, and

noncumulative evidence that counsel was aware of and did not offer to the trial

court, or that the parent’s counsel was deficient for some other very substantial

reason.”). For that reason, “[t]he court did not err in considering and deciding

the [mother’s] Rule 60(b) motion[] . . . based on affidavits presenting [her] best

case.” In re David H., 2009 ME 131, ¶ 34, 985 A.2d 490.

      The entry is:

                  Judgment affirmed.
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Julian Richter, Esq. (orally), Richter Law, LLC, Gardiner, for appellant mother

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


Waterville District Court docket number PC-2016-20
FOR CLERK REFERENCE ONLY
