MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision:   2013 ME 81
Docket:     Ken-12-557
Submitted
 On Briefs: July 17, 2013
Decided:    September 24, 2013

Panel:          SAUFLEY, C.J., and LEVY, SILVER, MEAD, and GORMAN, JJ.



                                         IN RE S.P.

SAUFLEY, C.J.

         [¶1] The mother of S.P. appeals from a judgment of the District Court

(Waterville, Dow, J.) terminating her parental rights to her then two-year-old

daughter, pursuant to 22 M.R.S. § 4055(1)(A)(1)(a) and (B)(2) (2012). She asserts

that she was denied due process because her attorney was ineffective. She also

asserts that there was insufficient evidence to support the judgment of termination.

We affirm the judgment.

                                    I. BACKGROUND

         [¶2]     The mother has a substantial history of involvement with child

protective agencies in Florida and in Maine. Her six older children all went into

state care and eventually came to reside with other caregivers. Her parental rights

to two of those children were terminated involuntarily in Maine. Over the course

of at least ten years, she has been offered multiple services, structure, and

assistance, and has demonstrated a persistent inability to recognize people who
2

pose a risk to her children’s safety. She has a history of allowing violent or

sexually assaultive people to care for her children, along with a refusal to

recognize the risks to them.

      [¶3] When S.P. was born in May 2010, the mother no longer had any of her

older children in her care. Despite the previous unsuccessful agency efforts with

the mother, the court ordered extensive continued efforts to rehabilitate the mother

and to assist her in safely parenting her youngest daughter. Many services were

provided during S.P.’s first year of life when she lived with her mother in Maine.

On July 29, 2011, the court ordered S.P.’s removal from her mother’s home when

her mother’s plan to flee to another state became apparent.

      [¶4] When S.P. came into foster care at the age of fourteen months, she

demonstrated odd sexualized behaviors and extreme difficulty with food. She

would eat until she vomited, and if not watched carefully would store food in her

cheeks. The mother was provided with nonoffender group therapy, a Child Abuse

and Neglect Evaluators Program (CANEP) evaluation, and further resources to

improve her capacity to parent. The guardian ad litem noted in a report prior to the

petition to terminate that the mother had made little progress in the nonoffenders

group. The CANEP evaluation demonstrated that the mother suffers from diffuse

cognitive deficits and borderline personality disability, and was historically unable

to change and improve her capacity to provide a safe environment and assure that
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dangerous individuals were not allowed to provide child care or have access to S.P.

The mother made no progress toward reunification through the CANEP evaluation

and other services provided. After S.P. was placed in foster care, the mother

moved several times, farther from her child; would not consistently attend

individual counseling; and did not successfully complete nonoffender treatment.

        [¶5] The Department of Health and Human Services sought termination of

the mother’s parental rights to S.P.1 The mother was notified of the date of the

termination proceeding but did not appear.2 The mother’s counsel, who did appear

on her behalf, initially sought to withdraw, noting that the mother was

oppositional, had threatened the attorney, and no longer wished to work with the

attorney. The court denied the motion to withdraw. The attorney then sought a

continuance on her client’s behalf, which the court also denied.

        [¶6] The hearing then occurred in an abbreviated fashion with testimony

from four witnesses, including the guardian ad litem, and stipulated documentary

exhibits admitted without testimony from the authors of the documents. The




   1
      S.P.’s father consented to an order of termination of his parental rights and does not contest that
termination.
   2
      The docket entries regarding the notice of the termination hearing indicate that the hearing was
scheduled to occur on June 13, 2012, and June 14, 2012. The hearing thus began on June 13, 2012.
Although the mother believed the date had been changed from “the 29th” to June 13, the mother did not
assert at the hearing, nor does she argue to us, that she did not receive notice of the specific date of the
hearing.
4

mother’s counsel did not present any witnesses or cross-examine any of the

Department’s witnesses.

      [¶7] The court found by clear and convincing evidence that the mother has

abandoned the child; that she is unwilling or unable to protect the child from

jeopardy and that these circumstances are unlikely to change within a time that is

reasonably calculated to meet the child’s needs; that the mother is unwilling or

unable to take responsibility for the child within a time that is reasonably

calculated to meet the child’s needs; and that the mother has failed to make a good

faith effort to rehabilitate and to reunify with the child pursuant to 22 M.R.S.

§ 4041 (2012). See id. § 4055(1)(B)(2)(b). The court ultimately determined that

the child is well bonded to the foster mother and is thriving in the foster home,

which is a pre-adoptive placement.       See id. § 4055(1)(B)(2)(a).     The court

terminated the mother’s parental rights, and she appealed to us. See 22 M.R.S.

§ 4006 (2012).

                                II. DISCUSSION

      [¶8] Although the mother challenges the sufficiency of the evidence to

terminate her parental rights, the court’s judgment has adequate support on the

record. Despite her history of failing six other children, the court gave the mother

the opportunity to obtain and make use of services to allow her to be a safe parent

to her daughter. The mother was simply unable or unwilling to take advantage of
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the services offered. Her failure to complete treatment, her unwillingness to work

with service providers, and her inability to understand the dangerous circumstances

she had put her children in by placing them with predatory and dangerous

caretakers are more than sufficient to support the court’s multiple findings of

unfitness. Regarding the best interests of S.P., her initial sexualized behavior (at

only fourteen months old) and her regurgitation and storing of food eventually

ceased, and she has become a happy and thriving little girl. The court did not err in

concluding that termination is in S.P.’s best interest.

      [¶9] The mother also argues that her due process rights were violated when,

among other things, her attorney failed to cross-examine witnesses at the hearing

for which the mother failed to appear. Counsel on appeal, who was not counsel at

trial, urges us to conclude that trial counsel’s motion to withdraw and motion to

continue were insufficient efforts and that trial counsel should have

cross-examined and challenged the Department’s evidence even in the mother’s

absence. The mother does not, however, provide any explanation of her absence

from the most important hearing in her daughter’s life other than her initial

indication in her notice of appeal that she had to work that day, nor does she offer

information that would persuade us that cross-examining the Department’s

witnesses would have changed the outcome in this matter. See In re Scott S., 2001

ME 114, ¶ 30, 775 A.2d 1144 (holding that we will affirm a judgment if it is
6

“highly probable” that any error “had no prejudicial effect and did not affect the

outcome”); cf. In re Randy Scott B., 511 A.2d 450, 452-54 (Me. 1986) (affirming

the court’s consideration of the involuntarily absent, incarcerated father’s

testimony in deposition form). There is no evidence that the mother’s absence was

anything other than a voluntary decision on her part.3 In her absence, counsel’s

efforts to withdraw and seek a continuance were appropriate, and the court’s

decision to deny both in order to assure a timely hearing on S.P.’s need for

permanency demonstrated no abuse of discretion. See In re Trever I., 2009 ME 59,

¶ 28, 973 A.2d 752. Finally, although the mother faults trial counsel for failing to

offer substantive evidence or cross-examine witnesses, she offers no suggestions as

to what evidence should have been offered or how rigorous cross-examination

would have changed the outcome had all of the Department’s witnesses testified,

including the authors of documents admitted by stipulation.

        [¶10] When a parent’s attorney appears at a termination hearing in the

absence of the parent, the attorney should certainly act to protect the parent’s rights


    3
      The mother did not move to set aside the judgment based on an unavoidable inability to appear. Her
request for transcript contained this statement: “The state changed the court date from the 29th to June
13th and 14th without giving my defence [sic] time to prepare,” and her notice of appeal indicated that
she was “not able to get time off from [her] job” on June 13 and 14. Nothing in the court file indicates
that the hearing had been scheduled for May or June 29. After the hearing, but before the entry of
judgment, a licensed clinical professional counselor who had very recently seen the mother filed a letter
with the trial court questioning why the termination hearing had been rescheduled and why the mother
was not given more time to try to demonstrate a capacity to parent. Because the letter was filed after the
close of evidence and was not accompanied by a motion of any kind, it could not be considered as
substantive evidence.
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wherever possible. When the parent has not succeeded in making the changes

required for reunification and has failed to take advantage of the services offered,

however, there is little that counsel can do.4                    Here, the court directed the

Department to undertake a renewed effort to assist the mother with S.P.

notwithstanding her inability to show progress with six other children. She had

court-appointed counsel throughout this proceeding, had notice and an opportunity

to be heard, and had the opportunity to assist counsel in opposing the termination

hearing, though she chose not to do so. We will not further address a claim of

incompetence of counsel on these facts.

        [¶11] The court did not err in terminating the mother’s rights to S.P., and

the mother was not deprived of due process.




   4
       We have not previously announced the standards by which to judge a claim of ineffective
representation in a child protection proceeding, and we need not do so to decide this appeal. The mother
does not contend that her trial counsel’s active participation at trial would have resulted in a different
outcome. Without an argument that the mother suffered actual prejudice, there is no claim of ineffective
representation for us to adjudicate. See In re A.M., 2012 ME 118, ¶ 25, 55 A.3d 463. In addition, a claim
of ineffective assistance of counsel should generally be raised with the trial court before an appeal is
taken so that an adequate record can be made. See M.R. Civ. P. 59, 60(b); see also Susan Calkins,
Ineffective Assistance of Counsel in Parental-rights Termination Cases: The Challenge for Appellate
Courts, 6 J. App. Prac. & Process 179, 203-05 (2004).
8

        The entry is:

                           Judgment affirmed.

__________________________________

On the briefs:

        Pamela S. Holmes, Esq., Holmes Legal Group, LLC, Wells, for
        appellant mother.

        Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty.
        Gen., Augusta, for appellee Department of Health and Human
        Services



Waterville District Court docket number PC-11-10
FOR CLERK REFERENCE ONLY
