MAINE	SUPREME	JUDICIAL	COURT	                                            Reporter	of	Decisions	
Decision:	    2017	ME	212	
Docket:	      Yor-17-211	
Submitted	
  On	Briefs:	 October	24,	2017	
Decided:	     October	31,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                          IN	RE	TYREL	L.	
	
	
PER	CURIAM	

	       [¶1]		The	father	of	Tyrel	L.	appeals	from	a	judgment	of	the	District	Court	

(Biddeford,	 Janelle,	 J.)	 terminating	 his	 parental	 rights	 pursuant	 to	 22	 M.R.S.	

§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(i)-(ii),	(iv)	(2016).		He	raises	directly	on	

appeal	 an	 ineffective	 assistance	 of	 counsel	 claim	 and	 challenges	 the	 court’s	

discretionary	 determination	 of	 the	 child’s	 best	 interest.	 	 Concluding	 that	 the	

father	failed	to	present	a	prima	facie	case	of	attorney	ineffectiveness	and	that	

the	 record	 evidence	 supports	 the	 court’s	 findings	 and	 best	 interest	

determination,	we	affirm	the	judgment.	

                                         I.		BACKGROUND	

        [¶2]	 	 The	 Department	 of	 Health	 and	 Human	 Services	 initiated	 child	

protection	 proceedings	 as	 to	 the	 child	 on	 May	 21,	 2014.1	 	 The	 court	


    1		The	court	(Foster,	J.)	terminated	the	mother’s	parental	rights	on	April	27,	2016.		The	mother	

does	not	appeal,	and	any	facts	relating	to	her	will	not	be	discussed	in	this	decision.		
2	

(Douglas,	J.)	entered	a	preliminary	protection	order	that	day	placing	the	child	

in	 Department	 custody.	 	 After	 a	 contested	 hearing,	 by	 order	 dated	

December	19,	 2014,	 the	 court	 found	 jeopardy	 to	 the	 child	 based	 on	 neglect,	

the	 child’s	 failure	 to	 thrive,	 the	 child’s	 significant	 developmental	 delays,	 and	

the	 father’s	 failure	 to	 engage	 in	 services	 recommended	 by	 the	 Department.		

The	 Department	 filed	 a	 petition	 to	 terminate	 the	 father’s	 parental	 rights	 on	

December	14,	2015.		

      [¶3]	 	 The	 court	 (Janelle,	 J.)	 held	 a	 one-day	 contested	 hearing	 on	 the	

Department’s	 petition	 to	 terminate	 the	 father’s	 parental	 rights	 on	 March	 2,	

2017.		On	that	same	date,	the	father’s	counsel	asserted	that	the	father	stated	

that	 he	 wished	 to	 end	 the	 representation	 and	 filed	 a	 motion	 to	 withdraw,	

which	the	court	denied.		The	court	terminated	the	father’s	parental	rights	in	a	

judgment	 dated	 March	 28,	 2017.	 	 The	 court	 based	 its	 unfitness	 and	 best	

interest	determinations	on	the	following	findings	of	fact:	

            The	 Department	 .	 .	 .	 filed	 this	 protective	 case	 [based	 on	 a]	
      risk	of	immediate	harm	.	.	.	premised	on	the	parents’	high	severity	
      neglect	(substance	abuse,	mental	health	and	cognitive	impairment	
      issues)	and	[the	child]	being	a	“failure	to	thrive”	child.	.	.	.		
            	
            .	.	.	.		
            	
            [The	 father]	 acknowledges	 that	 he	 suffers	 from	 a	 chronic	
      case	 of	 polysubstance	 abuse	 (alcohol,	 marijuana,	 cocaine	 and	
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      other	 drugs)	 and	 that	 he	 also	 struggles	 with	 episodes	 of	 major	
      depression	and	anxiety.	.	.	.	
             	
             Following	 the	 Department’s	 intervention	 in	 this	 case	 and	
      [the	child’s]	placement	in	its	custody	the	Department	developed	a	
      reunification	plan	and	made	reasonable	and	appropriate	services	
      available	 to	 the	 family.	 	 [The	 father]	 alternatively	 chose	 not	 to	
      access	 most	 services	 and	 opportunities	 or,	 at	 other	 times,	 chose	
      not	to	invest	himself	in	them.	.	.	.		
             	
             .	.	.	.		
             	
             [The	 father]	 acknowledges	 that	 he	 is	 not	 in	 a	 position,	 at	
      this	time,	to	provide	what	[the	child]	needs.		[The	child]	has	been	
      in	 Departmental	 custody	 for	 the	 majority	 of	 his	 young	 life.	 	 His	
      mother’s	rights	have	been	terminated.		[The	father]	admits	that	he	
      is	not	yet	ready	to	take	responsibility	for	[the	child].			
             	
             [The	 father]	 admits	 that	 he	 needs	 substance	 abuse	
      treatment.	 	 [He]	 acknowledges	 that	 what	 he	 really	 needs	 is	 not	
      outpatient	 treatment	 but	 inpatient	 treatment.	 	 [He]	 also	 believes	
      that	 he	 needs	 counseling	 .	 .	 .	 following	 substance	 abuse	
      rehabilitation	to	begin	to	get	a	handle	on	his	“anger	management”	
      issues.		To	date	[the	father]	has	not	made	arrangement[s]	to	enroll	
      in	such	counseling.	.	.	.		
             	
             .	.	.	.	
             	
             .	 .	 .	 Most	 recently,	 [the	 child]	 has	 been	 in	 foster	 care	 since	
      2014	and	now	it	is	2017.	 	[The	child]	is	placed	in	a	pre-adoptive	
      foster	home.		He	has	a	bond	with	his	foster	parent	.	.	.	.		
	
	     [¶4]	 	 The	 court	 further	 found	 that	 the	 child	 “has	 been	 diagnosed	 with	

autism,	ADHD	and	mild	cognitive	impairment”	and	that	“in	order	to	succeed,	

[he]	needs	a	great	deal	of	attention,	supervision,	structure	and	patient,	loving	
4	

care.”	 	 The	 court	 found	 that	 the	 child’s	 foster	 parent	 “is	 familiar	 with	 [the	

child’s]	 diagnoses	 and	 the	 care	 he	 requires	 and	 has	 been	 able	 to	 meet	 [his]	

needs.”	 	 Considering	 the	 child’s	 “special	 needs”	 and	 because	 the	 child	 “has	

spent	 more	 than	 half	 of	 his	 life	 in	 State	 custody	 and	 still	 there	 is	 no	 parent	

who	 is	 really	 ready	 to	 take	 him,”	 the	 court	 found	 that	 the	 child	 “requires	

permanency”	through	adoption.			

       [¶5]		Based	on	these	findings,	the	court	found,	by	clear	and	convincing	

evidence,	 that	 the	 father	 is	 unwilling	 or	 unable	 to	 protect	 the	 child	 from	

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

which	is	reasonably	calculated	to	meet	his	needs;	he	is	unwilling	or	unable	to	

take	 responsibility	 for	 the	 child	 within	 a	 time	 reasonably	 calculated	 to	 meet	

his	 needs;	 and	 he	 has	 failed	 to	 make	 a	 good	 faith	 effort	 to	 rehabilitate	 and	

reunify	 with	 the	 child.2	 	 See	 22	M.R.S.	 §	4055(1)(B)(2)(b)(i)-(ii),	 (iv);	 In	 re	

Cameron	 B.,	 2017	 ME	 18,	 ¶	 10,	 154	 A.3d	 1199.	 	 The	 court	 also	 found	 that	

termination	 of	 the	 father’s	 parental	 rights	 is	 in	 the	 child’s	 best	 interest.		

See	22	M.R.S.	§	4055	(1)(B)(2)(a);	In	re	Robert	S.,	2009	ME	18,	¶	15,	966	A.2d	

894.		The	father	appeals.			


   2		The	court	initially	made	findings	and	determined	the	child’s	best	interest	from	the	bench	at	the	

end	 of	 the	 termination	 hearing.	 	 The	 court	 then	 asked	 the	 Department	 to	 submit	 a	 draft	
incorporating	the	findings	made	and	then	signed	an	order	terminating	the	father’s	parental	rights	
on	March	28,	2017,	which	was	entered	on	April	3,	2017.			
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                                             II.		DISCUSSION	

        [¶6]		In	his	appeal,	the	father	directly	raises	a	claim	that	his	counsel	for	

the	termination	proceeding	was	ineffective.3		Because	we	have	not	“frequently	

addressed	issues	of	ineffective	assistance	of	counsel	in	cases	of	termination	of	

parental	rights,”	In	re	Evelyn	A.,	2017	ME	182,	¶	38,	---	A.3d	---	(Alexander,	J.,	

dissenting),	we	first	write	to	address	the	father’s	ineffective	assistance	claim	

and	 reiterate	 “the	 strict	 procedural	 requirements	 applicable	 to	 a	 direct	

appeal.”		In	re	Aliyah	M.,	2016	ME	106,	¶	10,	144	A.3d	50.		

        [¶7]		“We	have	held	that	there	are	two	ways	a	parent	can	raise	a	claim	of	

ineffective	representation	in	a	termination	case.”		Id.	¶	6;	In	re	M.P.,	2015	ME	

138,	¶	27,	126	A.3d	718.		“First,	if	there	are	no	new	facts	that	the	parent	seeks	

to	offer	in	support	of	the	claim,	the	parent	may	make	an	ineffectiveness	claim	

in	 a	 direct	 appeal	 from	 a	 termination	 order.”	 	 In	 re	 Aliyah	 M.,	 2016	 ME	 106,	

¶	6,	 144	 A.3d	 50	 (quotation	 marks	 omitted).	 	 Second,	 if	 the	 existing	 record	

does	not	clearly	provide	the	“basis	for	the	parent’s	ineffectiveness	challenge”	

and	 the	 claim	 “would	 require	 a	 court	 to	 consider	 extrinsic	 evidence,	 the	

parent	must	promptly	move	for	relief	from	a	judgment	terminating	his	or	her	



   3	 	 The	 court	 (Janelle,	 J.)	 granted	 the	 father’s	 counsel’s	 motion	 to	 withdraw	 on	 March	 16,	 2017.		

The	court	(Foster,	J.)	then	entered	an	order	substituting	counsel	on	March	24,	2017.		
6	

parental	 rights	 pursuant	 to	 M.R.	 Civ.	 P.	 60(b)(6).”	 	 Id.	 (quotation	 marks	

omitted).			

      [¶8]	 	 Regardless	 of	 how	 the	 parent	 seeks	 to	 present	 the	 claim,	 the	

parent	“must	execute	and	file	an	affidavit	stating,	with	specificity,	the	basis	for	

the	claim.”		Id.	¶	7	(quotation	marks	omitted).		“[I]f	a	parent	fails	to	submit	a	

signed	and	sworn	affidavit,	the	ineffectiveness	claim	.	.	.	must	be	denied.”		Id.	

¶	9	 (quotation	 marks	 omitted).	 	 An	 affidavit	 filed	 on	 direct	 appeal	 “must	 not	

contain	information	that	is	extrinsic	to	the	existing	record.”		Id.	¶	7.		When	a	

parent	 properly	 submits	 the	 required	 signed	 and	 sworn	 affidavit	 on	 direct	

appeal:	

       we	 will	 review	 the	 existing	 record	 to	 determine	 whether	 the	
       evidence	 in	 that	 record	 creates	 a	 prima	 facie	 showing	 of	
       ineffectiveness.	 	 This	 consists	 of	 a	 prima	 facie	 case	 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.	 	 If	 a	 parent	 makes	 a	 prima	 facie	
       showing	of	both	elements	of	an	ineffectiveness	claim	based	on	the	
       record	on	appeal,	we	will	remand	the	case	to	the	trial	court	so	that	
       the	 court	 can	 adjudicate	 the	 full	 merits	 of	 [the	 ineffectiveness]	
       claim.		
              	
Id.	¶	12	(quotation	marks	omitted).			
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       [¶9]		Here,	the	father	pursues	the	first	of	these	procedural	mechanisms;	

he	filed	a	signed	document	with	his	appeal	stating	why	he	believed	his	counsel	

at	the	termination	hearing	was	deficient.		See	id.	¶	6.		The	father	claims	that	his	

counsel	was	deficient	because	his	counsel	(1)	did	not	help	him	prepare	for	the	

hearing,	(2)	did	not	call	any	witnesses	or	introduce	any	exhibits,	(3)	“did	not	

try	very	hard”	or	cross-examine	any	witnesses	effectively,	and	that,	because	of	

these	 failures,	 the	 father	 did	 not	 understand	 what	 was	 happening	 and	 could	

not	show	the	court	how	he	could	be	responsible	for	parenting	the	child.		

       [¶10]	 	 The	 father’s	 ineffectiveness	 claim	 is	 deficient	 in	 three	 respects.		

First,	the	statement	he	submitted,	although	signed,	is	not	an	affidavit	because	

it	bears	no	jurat.		The	father’s	purported	affidavit	is	signed,	but	not	sworn,	in	

violation	 of	 an	 express	 requirement	 that	 a	 parent	 raising	 an	 ineffective	

assistance	 of	 counsel	 claim	 directly	 on	 appeal	 “must	 submit	 a	 signed	 and	

sworn	 affidavit	 stating,	 with	 specificity,	 the	 basis	 for	 the	 claim.”	 	 In	 re	 M.P.,	

2015	 ME	 138,	 ¶	 21,	 126	 A.3d	 718	 (emphasis	 added).	 	 The	 strict	 procedural	

requirements	for	ineffective	assistance	claims	we	first	articulated	in	In	re	M.P.	

“are	designed	to	balance	the	parent’s	due	process	interests	against	the	State’s	

interests	in	providing	stability	and	permanency	for	the	child”	and	therefore	it	

is	 imperative	 that	 parents—and	 their	 counsel—ensure	 full	 compliance	 with	
8	

these	 requirements.	 	 In	 re	 Aliyah	M.,	 2016	 ME	 106,	 ¶	 9,	 144	 A.3d	 50.	 	 Thus,	

because	 the	 father’s	 statement	 does	 not	 comply	 with	 this	 procedural	

requirement,	 that	 alone	 is	 a	 sufficient	 basis	 for	 us	 to	 decline	 to	 remand	 the	

ineffectiveness	claim	to	the	trial	court.		See	id.		

       [¶11]	 	 Second,	 the	 father	 “draws	 on	 information	 that	 goes	 beyond	 the	

record”	 in	 presenting	 his	 claim,	 which	 constitutes	 a	 second	 ground	 for	

denying	 the	 father	 a	 remedy	 on	 this	 argument.	 	 Id.	 ¶	 10.	 	 For	 instance,	 the	

father	 claims	 that	 his	 attorney	 “did	 not	 contact	 me	 to	 help	 prepare	 for	 the	

hearing,”	 that	 the	 attorney	 “only	 sent	 me	 notice	 of	 the	 hearing	 three	 weeks	

before,	 even	 though	 his	 letter	 was	 dated	 much	 earlier,”	 and	 that	 “I	 was	 not	

prepared	because	I	had	not	had	a	chance	to	meet	with	my	lawyer	to	talk	about	

the	 case.”	 	 The	 father	 also	 states	 that	 he	 “wanted	 [the	 attorney]	 to	 call	

witnesses	 to	 testify	 about	 many	 things”	 and	 that	 his	 attorney	 should	 have	

introduced	“exhibits	on	my	behalf	to	show	what	the	doctor(s)	had	found	or	to	

show	the	services	that	I	had	engaged	in.”		This	information	is	extrinsic	to	the	

existing	 record	 from	 the	 trial	 court	 and	 we,	 therefore,	 do	 not	 consider	 it	

further.		See	id.	¶	13.			

       [¶12]	 	 Third,	 even	 if	 we	 considered	 the	 father’s	 “affidavit”	 and	 other	

extrinsic	information,	along	with	the	other	assertions	by	the	father,	the	father	
                                                                                         9	

has	 failed	 to	 present	 a	 prima	 facie	 showing	 of	 “serious	 incompetency,	

inefficiency,	 or	 inattention	 [by	 the	 father’s]	 counsel	 amounting	 to	

performance	 below	 what	 might	 be	 expected	 from	 an	 ordinary	 fallible	

attorney.”		In	re	M.P.,	2015	ME	138,	¶	27,	126	A.3d	718	(alterations	omitted)	

(quotation	 marks	 omitted).	 	 During	 the	 hearing,	 counsel	 objected	 to	 each	 of	

the	Department’s	exhibits,	cross-examined	four	out	of	the	five	witnesses,	and	

requested	a	 recess	 to	 discuss	 with	 the	 father	 whether	 he	 wanted	 to	 take	 the	

stand.	 	 In	 short,	 counsel’s	 performance	 did	 not	 reflect	 serious	 incompetence,	

inefficiency,	 or	 inattention.	 	 In	 addition,	 we	 need	 not	 reach	 the	 “question	 of	

whether	     [the	   father’s]	   contentions	     arguably	     constitute	    deficient	

representation,	[because]	they	do	not	rise	to	the	level	of	a	prima	facie	showing	

of	prejudice.”		In	re	Aliyah	M.,	2016	ME	106,	¶	15,	144	A.3d	50.	

      [¶13]	 	 Viewed	 in	 its	 entirety,	 “the	 record	 does	 not	 support	 a	 genuine	

claim	that	the	[father]	was	prejudiced	by	counsel’s	alleged	failure[s].”		Id.	¶	17.		

The	father	claims	that	his	counsel	“did	not	try	very	hard	to	present	[his]	side	

of	the	case”	and	that	his	counsel’s	deficient	performance	prevented	the	court	

from	 seeing	 “how	 [he]	 could	 be	 responsible	 for	 parenting	 [the	 child].”		

Contrary	 to	 the	 father’s	 contentions,	 he	 had	 ample	 opportunities	 during	 the	

hearing	to	tell	the	court	his	“side	of	the	case.”		The	guardian	ad	litem	asked	the	
10	

father	 about	 the	 personal	 services	 he	 had	 completed	 and	 was	 currently	

seeking,	and	the	father’s	counsel	asked	him	how	his	progress	with	substance	

abuse	 treatment	 was	 going.	 	 Furthermore,	 during	 a	 lengthy	 discussion	 with	

the	court,	the	court	asked	the	father,	“[W]hat	do	you	think	should	happen	[to	

the	child]	and	explain	to	me	what	your	plan	would	be	to	make	that	happen?”	

The	court	also	asked	the	father,	“[I]s	there	anything	else	you	wanted	to	tell	me	

before	 you	 step	 down?”	 	 The	 father,	 therefore,	 had	 ample	 opportunity	 to	

present	 his	 version	 of	 events	 and	 attempt	 to	 persuade	 the	 court	 of	 his	

parenting	ability.			

      [¶14]	 	 The	 father	 also	 claims	 that	 his	 counsel’s	 ineffectiveness	

prevented	 the	 court	 from	 having	 “sufficient	 evidence	 before	 it	 to	 adequately	

assess	the	best	interest	of	[the	child]	and	the	efforts	of	[the	father]	to	reunify.”		

To	 the	 contrary,	 the	 court	 heard	 testimony	 regarding	 the	 child’s	 current	

placement,	special	needs,	and	the	father’s	ability	to	meet	those	needs	from	the	

child’s	 foster	 care	 supervisor,	 family	 visitation	 supervisor,	 Department	

caseworker,	guardian	ad	litem,	and	the	father	himself.		In	light	of	the	father’s	

admissions	 and	 the	 other	 competent	 record	 evidence	 of	 the	 child’s	 best	

interest,	 the	 additional	 information	 provided	 by	 the	 father	 in	 his	 brief	 and	

signed	document	is	insufficient	“to	raise	a	tenable	claim	that	the	trial	failed	to	
                                                                                                        11	

produce	 a	 just	 result.”	 	 Id.	 ¶	 21.	 	 We	 therefore	 conclude	 that	 the	 father’s	

ineffective	assistance	of	counsel	claim	fails	as	a	matter	of	law	because	he	has	

failed	 to	 present	 “a	 prima	 facie	 case	 that	 [he]	 was	 prejudiced	 by	 any	

deficiencies	in	trial	counsel’s	representation.”		Id.	¶	22.		

        [¶15]	 	 The	 father	 also	 challenges	 the	 court’s	 determination	 that	

termination	is	in	the	best	interest	of	the	child.		During	the	hearing,	the	father	

admitted	that	he	is	incapable	of	taking	responsibility	for	the	child	at	this	time;	

that	he	needs	inpatient	treatment	for	his	ongoing	substance	abuse	issues;	and	

that	after	treatment,	he	still	needs	counseling	“to	begin	to	get	a	handle	on	his	

anger	management	issues.”4		The	child	has	spent	more	than	half	of	his	young	

life—most	recently,	three	consecutive	years—in	Department	custody	and	has	

a	 bond	 with	 his	 current	 foster	 mother,	 who	 plans	 to	 become	 a	 permanent	

placement	 for	 him.	 	 Contrary	 to	 the	 father’s	 contentions,	 the	 court’s	 findings	

are	supported	by	competent	evidence	in	the	record	and	the	court	did	not	err	

or	abuse	its	discretion	in	determining	that	termination	of	the	father’s	parental	

rights,	 with	 a	 permanency	 plan	 of	 adoption,	 is	 in	 the	 child’s	 best	 interest.		

See	In	re	Thomas	H.,	2005	ME	123,	¶¶	16-17,	889	A.2d	297.		


   4		The	father	also	concedes	that	the	record	evidence	is	sufficient	to	support	the	court’s	finding	of	

at	 least	 one	 ground	 of	 parental	 unfitness	 and	 does	 not	 challenge	 the	 court’s	 determination	 of	
unfitness	on	appeal.			
12	

	        The	entry	is:	

                            Judgment	affirmed.	

	     	      	      	     	     	
	
Valerie	A.	Randall,	Esq.,	Rioux,	Donahue,	Chmelecki	&	Peltier	LLC,	Portland,	for	
appellant	father	
	
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	
	
	
Biddeford	District	Court	docket	number	PC-2014-22	
FOR	CLERK	REFERENCE	ONLY	
