MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision: 2013 ME 49
Docket:   Ken-12-478
Argued:   April 9, 2013
Decided:  May 23, 2013

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



                                        IN RE T.B.


ALEXANDER, J.

         [¶1]    The father appeals from a judgment entered in the District Court

(Waterville, Dow, J.) terminating his parental rights to three-year-old T.B. See

22 M.R.S. § 4055(1)(B)(2) (2012). The father’s sole argument on appeal is that,

prior to trial, he was denied due process when the court did not, on its own

initiative, inform him that he could proceed without counsel after denying the

father’s motion to dismiss his current counsel and his implicit motion to appoint

new counsel to represent him at trial. We affirm the judgment.

                                   I. CASE HISTORY

         [¶2] The father, now forty-four years old, has a long history of substance

abuse, mental health issues, criminal activity, and incarceration. In addition to

numerous convictions for various other offenses, the father was convicted of

assault in 2009. During his probationary period for the 2009 conviction, the father

tested positive for drug use in violation of a condition of probation and, upon

signing an extensive bail contract, was admitted to the co-occurring disorders court
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(CODC) in October 2009. The father’s obligations with respect to participation in

CODC included random drug testing.

      [¶3]    T.B. was born in May 2010.        Two days after T.B.’s birth, the

Department of Health and Human Services filed a request for and was granted a

preliminary protection order as to T.B.’s mother. The mother thereafter consented

to the termination of her parental rights.

      [¶4] The father was confirmed to be T.B.’s biological father in February

2011. He requested and was given appointed counsel that month. His counsel

moved to withdraw one month later, citing deterioration of the attorney-client

relationship. The court granted the motion and appointed new counsel to represent

the father.

      [¶5] The father met T.B., who was then ten months old, for the first time in

March 2011. In May 2011, the father stipulated to the entry of a jeopardy order

and entered into a reunification plan in which he agreed to random drug testing and

continuing attendance in CODC. Reunification services were interrupted in June

2011 when the father was incarcerated for a probation violation after he tested

positive for marijuana and benzodiazepines.

      [¶6] After the father’s release from jail, reunification services resumed, and

the Department placed T.B. with the father in October 2011. That placement was

initially successful. However, in December 2011 and in January 2012, the father
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tested positive three times for marijuana use in violation of conditions of probation.

He was incarcerated for two weeks. The Department removed T.B., then almost

twenty-one months old, from the father’s care in January 2012.

      [¶7]    After the father was released from jail in February 2012, the

Department developed a new reunification plan for the father, but the father again

tested positive for marijuana use that same month. He was incarcerated for a third

time during the reunification period with T.B., this time for a period of four

months. The Department then filed a petition to terminate the father’s parental

rights. A hearing on that petition was scheduled for June 21, 2012.

      [¶8] Approximately one week before the hearing was scheduled to begin,

the father personally moved for substitution of court-appointed counsel,

specifically identifying two other attorneys that he wanted to represent him. On

June 19, 2012, the court held a hearing on the father’s motion for substitution of

counsel and on his attorney’s oral motion to withdraw at the father’s request. The

court denied the motions on the grounds that trial was to start in two days and that

the father’s attorney had adequately prepared for trial. At the time, the child had

been in State custody for over two years.

      [¶9] Because the court needed to address certain pretrial motions, the trial

on the petition to terminate parental rights was continued to July 12, 2012. The
4


father did not renew his motion for substitution of counsel during this three-week

continuance.

      [¶10]    Before opening statements on the morning of trial, the father’s

attorney again moved to withdraw, stating that the father wished to proceed in a

manner that she believed was not legally proper. The court denied the motion,

noting that it was the morning of a difficult-to-schedule trial, that the attorney was

the father’s second court-appointed attorney, and that the court had “no concerns

about the way [the attorney has] represented [the father’s] interests.” The father

then spoke, stating that he wanted his present counsel to be allowed to withdraw

because there had been an ongoing lack of communication, his attorney had told

him that if he testified the way he intended he would perjure himself, and his

attorney had failed to locate all of the witnesses that he wanted to testify. The

court provided the father multiple opportunities to articulate fully his reasons in

support of his motion.

      [¶11] In a lengthy colloquy, the father made clear that his primary concern

was that, having just been released from jail, he wanted more time to prepare for

trial and that several witnesses he wanted to testify had not been contacted and, in

any event, his “number one witness” would not be available to testify that day.

Thus, the father indicated that what he sought was both the withdrawal of counsel

and a continuance of the proceedings. The court again denied the father’s motion,
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and the father preserved his continuing objection to the denial. Despite having

ample opportunity, the father never indicated any interest in representing himself at

the hearing.

        [¶12] At the close of the two-day trial, the court stated on the record that it

found the father to be unfit and that termination of his parental rights was in the

child’s best interests, after which the court issued a full written decision. After the

hearing, the father explicitly requested appointment of new counsel for purposes of

appeal, again identifying two alternative attorneys by name. The court granted the

father’s request, and the father brings this appeal through his third court-appointed

counsel.

                                      II. LEGAL ANALYSIS

        [¶13] At oral argument, the father’s attorney clarified that the only issue on

appeal is whether the father’s due process rights under the United States and Maine

Constitutions were violated because, “under the circumstances of this case, the trial

court needed to complete the process of figuring out who was going to speak for

the father,” asserting that the court failed to allow the father an opportunity to

articulate fully what he wanted to have happen when he moved for dismissal of his

appointed counsel.1 It is from this point that we begin our analysis.


   1
      Specifically, when asked whether his argument is that “fundamental fairness requires that the judge
say to a party affirmatively, ‘and you have the right to represent yourself,’” the father’s attorney replied
that he was “trying to be a little more cautious than that. I’m saying that fundamental fairness suggests
that the trial court should be comfortable that the person presenting the case is someone that the father
6


       [¶14]     A parent determined to be indigent has a due process right to

appointed counsel at State expense in a child protection proceeding initiated by the

State, unless the right is knowingly waived. Hatch v. Anderson, 2010 ME 94, ¶ 7,

4 A.3d 904; Danforth v. State Dep’t of Health & Welfare, 303 A.2d 794, 795,

800-01 (Me. 1973); cf. Lassiter v. Dep’t of Social Servs. of Durham Cty., N.C.,

452 U.S. 18, 24-27, 30-34 (1981) (declining to recognize a per se due process right

under the Fourteenth Amendment to court-appointed representation for indigent

persons in state-initiated termination of parental rights proceedings). This right to

counsel is codified by state statute specifying that indigent parents involved in

child protection proceedings initiated by the State are entitled in most types of such

proceedings to court-appointed legal counsel, paid for by the State, and that

counsel must be appointed to them upon their request. 22 M.R.S. § 4005(2)

(2012); see In re Christopher C., 499 A.2d 163, 164 (Me. 1985).

       [¶15]     The father here repeatedly invoked his right to court-appointed

counsel, and for good reason.                 There is significant benefit derived from

representation by counsel and disadvantages that arise from a party’s proceeding

without counsel in child protective matters. See In re Christopher C., 499 A.2d at

164-65; Danforth, 303 A.2d at 799.




wants to present his case” and the father never had an opportunity to say to the court how he wanted to
proceed at trial because the court “simply cut the whole inquiry off.”
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      [¶16] We have emphasized, however, that child protective proceedings are

somewhat unique in that the rights of the parent litigants are not the only interests

at stake. “The core purpose of that process is to protect children.” In re D.P.,

2013 ME 40, ¶ 13, --- A.3d --- (citing 22 M.R.S. § 4003 (2012) (“[T]he health and

safety of children must be of paramount concern and . . . the right to family

integrity is limited by the right of children to be protected from abuse and

neglect”)); see In re Richard G., 2001 ME 78, ¶¶ 11-12, 770 A.2d 625 (recognizing

the State’s interest in the well-being of children). A child protective proceeding

may even implicate the interests of other children not addressed in the particular

proceeding. See In re D.P., 2013 ME 40, ¶ 14, --- A.3d ---.

      [¶17] A court must determine the best interest of the child, which interest

may be best served by proper representation of a parent to ensure that all issues and

interests in a child protective proceeding are fully and fairly litigated. See Lassiter,

452 U.S. at 27-28 (stating that the State has an “urgent interest” in the child’s

welfare in a child protective proceeding and shares “the parent’s interest in an

accurate and just decision,” and that those interests may be best served when both

the State and the parent are represented by counsel).

      [¶18] Here, the father repeatedly invoked his right to appointed counsel. He

requested counsel at the initial stages of these proceedings when it was determined

that he was the biological father of T.B. When his first appointed counsel moved
8


to withdraw on grounds that the father lacked faith in his counsel and the

attorney-client relationship had deteriorated, the father was again given and

accepted court-appointed counsel. This second attorney represented the father

continuously for more than fifteen months without any indication that the father

was dissatisfied by that representation. The father did not move to dismiss his

second appointed counsel until one week before the trial on the petition for

termination of his parental rights was scheduled to begin.

      [¶19] At that time, the father unambiguously sought new court-appointed

counsel, as evidenced by his naming possible replacement attorneys. After the

court denied that motion, the father remained silent for three weeks, until moving

again for dismissal or substitution of counsel at the start of trial. At that time,

contrary to the father’s claim on appeal, the court provided the father with an

extensive opportunity to present his arguments in support of his motion. In his

argument, the father did not suggest in any way that he wanted to proceed

unrepresented. To the contrary, the record before us indicates only that the father

consistently sought to be represented by counsel from the initiation of the

proceedings through to the appeal now before us.

      [¶20] Given the facts of the case, we do not reach the father’s contention

that the court violated his due process rights by neglecting to determine, sua

sponte, whether the father wanted to proceed unrepresented.            See In re
                                                                                                              9


Christopher H., 2011 ME 13, ¶ 18, 12 A.3d 64 (“Before we reach directly any

constitutional issue, prudent appellate review requires that we first determine

whether the issue may be resolved on a basis that does not implicate the

constitution.”).2 The father made apparent to the trial court at every step of the

proceeding that he wanted appointed counsel and had no intention to waive that

right.

         [¶21] We thus confine our review to the determination of whether the court

abused its discretion in denying the father’s motion to dismiss or substitute his

counsel on the day of trial and his implicit motion to continue. See In re Trever I.,

2009 ME 59, ¶ 28, 973 A.2d 752; Bradshaw v. Bradshaw, 2005 ME 14, ¶ 10,

866 A.2d 839; see also State v. Dunbar, 2008 ME 182, ¶ 5, 960 A.2d 1173.

         [¶22] On the record before us, the court did not abuse its discretion in

denying the father’s motion to substitute or dismiss counsel or his implicit motion

for a continuance.           See In re Trever I., 2009 ME 59, ¶ 28, 973 A.2d 752;


   2
     In In re Christopher H., the appellant argued that the court violated his due process rights when the
court failed to determine on the record at his hearing for involuntary commitment whether the appellant
was able to meaningfully participate in his hearing after having been involuntarily administered
medication the previous day, or whether the hearing should be postponed. 2011 ME 13, ¶¶ 1, 17, 12 A.3d
64. We held that it was unnecessary to reach that constitutional issue because, despite the fact that the
court was informed that the appellant had been medicated prior to the hearing, the court failed to engage
the party in a colloquy to determine his ability to participate in the hearing, which resulted in an
inadequate record for appellate review. Id. ¶¶ 18-19.

   The father in this case argues in part that the court in the termination of parental rights hearing failed to
engage the father in a colloquy to ascertain “who was going to speak for the father,” but unlike the court
in In re Christopher H., the trial court in this case had no reason to engage in such a colloquy when the
father had made clear throughout the child protective proceedings that he wanted court-appointed counsel.
10


Bradshaw, 2005 ME 14, ¶ 10, 866 A.2d 839;3 see also State v. Brown, 2000 ME

25, ¶¶ 17-20 & n.9, 757 A.2d 768 (stating in the context of a criminal matter that

“[a] court need not tolerate unwarranted delays, and, if in the sound discretion of

the court the attempted exercise of choice is deemed dilatory or otherwise

subversive of the orderly . . . process, the court may compel a defendant to go to

trial even if he is not entirely satisfied with his designated attorney”).

         The entry is:

                         Judgment affirmed.



On the briefs:

         Jack Hunt, Esq., Kennebunk, for appellant father

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


At oral argument:

         Jack Hunt, Esq., for appellant father

         Nora Sosnoff, Asst. Atty. Gen., for appellee Department of Health and
         Human Services




     3
      The father has not argued that the court’s decision to not continue the trial violated his due process
rights, and we do not address that issue. See Holland v. Sebunya, 2000 ME 160, ¶ 9 n.6, 759 A.2d 205;
see also In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463.
