MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision:    2019 ME 107
Docket:      Ken-18-470
Submitted
  On Briefs: June 26, 2019
Decided:     July 9, 2019

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



                             IN RE CHILD OF SHAINA T.


PER CURIAM

         [¶1] Shaina T. appeals from a judgment of the District Court (Waterville,

Montgomery, J.) terminating her parental rights to her child and the court’s

denial of her motion for relief from that judgment pursuant to M.R. Civ. P.

60(b)(6).     She challenges the court’s parental unfitness and best interest

determinations and contends that the court erred in denying her motion for

relief based on her claim of ineffective assistance of counsel. We affirm the

judgment.

                                   I. CASE HISTORY

         [¶2] The following facts are drawn from the court’s findings, which are

supported by the evidence, and from the procedural record. See In re Children

of Corey W., 2019 ME 4, ¶ 2, 199 A.3d 683.

         [¶3] In January 2016, the Department of Health and Human Services was

notified by a Waterville police detective that the child at issue in this case—who
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was two years old at the time—was residing with her mother in an apartment

in Waterville where police found drugs, drug paraphernalia, and several

intoxicated adults while investigating a burglary.          The Department also

discovered that the mother was advertising herself on a website often used to

facilitate prostitution. Although the mother initially refused to cooperate with

the Department, she ultimately agreed to participate in the safety assessment

process and signed a safety plan. When the mother violated that safety plan in

February 2016, the Department filed a petition for a child protection and

preliminary protection order. The court (Stanfill, J.) issued a preliminary

protection order at that time, granting custody of the child to the Department,

which placed her with her maternal grandparents.

      [¶4]    In May 2016, when the mother’s drug screen results were

satisfactory and the Department determined that she had safe and stable

housing, the court (Matthews, J.) entered a jeopardy order returning the child

to her custody with conditions. The child remained in the mother’s care until

the mother was arrested for selling drugs in September 2016. The child was

again placed with her maternal grandparents; in October 2016, the court

(Stanfill, J.) entered a judicial review order granting custody of the child directly

to the grandparents.
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      [¶5] The mother eventually pleaded guilty to three counts of unlawful

trafficking of scheduled drugs and two counts of violation of a condition of

release. She was sentenced to five years of incarceration, with all but eighteen

months suspended, and three years of probation.          The mother remained

incarcerated until January 2018.

      [¶6] Visits between the mother and the child began again in February

2018. Around that time, the child began to cry more often, withdraw from her

friends at school, and cling to adults.

      [¶7] In March 2018, the Department filed a petition to terminate the

mother’s parental rights; a one-day hearing was held on the petition in

September 2018. Following the hearing, the court (Montgomery, J.) entered a

judgment terminating the mother’s parental rights.         Based on clear and

convincing evidence in the record, the court determined that the mother was

unable or unwilling to protect the child from jeopardy or take responsibility for

the child, and that those circumstances were unlikely to change within a time

reasonably calculated to meet the child’s needs.                See 22 M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii) (2018). The court also concluded that termination of

the mother’s parental rights was in the child’s best interest. See 22 M.R.S.

§ 4055(1)(B)(2)(a) (2018).
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      [¶8] In support of those determinations, the court made the following

findings of fact, all of which are supported by competent record evidence.

              Upon her release from jail, [the mother] engaged in therapy
      . . . . Therapy was initially scheduled on a weekly basis, but it
      appears [the mother] failed to attend sessions between
      February 28, 2018 and April 11, 2018. Thereafter, the sessions
      were scheduled for every other week. Her major focus in therapy
      has been on dealing with the stress caused by DHHS’[s] custody of
      [the child]. When questioned about whether she thought her
      hanging around drug dealers, drug users, and prostitutes while [the
      child] was in her custody was problematic, she seemed unable to
      recognize the risks, again showing no sense of insight or
      accountability.

            Since her release from prison, all of [the mother’s] drug test
      results have been negative. She has also secured stable housing
      and attended all but two visits with [the child]. Maintaining that
      she has done everything requested by DHHS, [the mother]
      contends that she is ready for [the child] to be returned to her.

            [The mother] is obviously very bright, intelligent, and
      articulate. Her history of engagement in criminal activity and her
      familiarity with others who have been regularly engaged in
      criminal activity, however, is sufficiently extensive to have given
      her a thorough knowledge about drug dealing, prostitution, and
      other criminal activity. Nevertheless, she currently claims to have
      had no knowledge of any of the following events/activities prior to
      her incarceration:

         • her former boyfriend’s drug dealing or drug using;

         • the content of the white powder she bagged at her former
           boyfriend’s request;

         • the presence of drugs in her car (which led to her arrest in
           September 2016);
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   • heroin dealing by her friend . . . (who she knew to be a drug
     dealer), on Mt. [Desert] Island when [the mother] gave her a
     ride there; and

   • the reasons her current boyfriend was arrested for
     disorderly conduct.

The court found these denials to be sufficiently unbelievable to
negatively impact the credibility of her testimony overall.

       Additionally, [the mother] demonstrated a surprisingly
cavalier attitude about the risk posed to [the child] when exposing
her to people regularly engaged in criminal activity. . . .
Consequently, the court finds [the mother’s] assurances that she
has learned from her experiences and will no longer expose [the
child] to unsafe individuals to be unreliable.

      ....

       [The child] is in severe need of permanency. She has lived
with her grandmother now for just over two years, and this
placement is her second one. She has done very well in her
placement and is strongly bonded with [the grandmother]. [The
grandmother] provides her with a regular routine on which she can
rely and from which she can continue to gain a sense of security
and safety. She is also shielded there from the risks of violence,
arrest, and recklessness that are often a regular feature of the lives
of individuals engaged in criminal activities.

       [The child’s] need for permanency . . . is immediate. This little
girl has waited now for over two years to be in a safe, stable, secure
environment where she is loved and cared for and that she knows
will be permanent.

      The court recognizes that since her release from prison, [the
mother] has for the most part complied with the reunification
requirements. But as previously noted, despite her involvement in
services, [the mother’s] lack of the sense of self-accountability and
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      insight remain as obstacles to a successful amelioration of jeopardy
      to her daughter. The clear and convincing evidence in this case
      shows that while [the mother] has attempted to engage in
      necessary services and has shown a willingness to continue, her
      progress is simply too little, too late when the time reasonably
      calculated to meet the child’s needs is measured from the child’s
      perspective. In short, the court finds by clear and convincing
      evidence that the first two statutory definitions of parental
      unfitness are established with respect to [the mother].

            ....

              . . . [T]he court finds that establishing a permanent home as
      quickly as possible is undoubtedly in [the child’s] best interest. As
      [the mother] cannot immediately provide the necessary
      permanency, the court finds that termination of her parental rights
      is in [the child’s] best interest. Continuing on a permanent basis to
      live with [the grandmother], to whom she is strongly bonded, is
      similarly in [the child’s] best interest.

      [¶9] The mother timely appealed from the judgment terminating her

parental rights. See 22 M.R.S. § 4006 (2018); M.R. App. 2B(c)(1).

      [¶10] In December 2018, the mother—represented by new counsel—

filed a motion for relief from that judgment pursuant to M.R. Civ. P. 60(b)(6)

and an accompanying affidavit claiming that she had received ineffective

assistance of counsel at the termination hearing. We granted leave for the trial

court to act, and it held an evidentiary hearing on the mother’s motion on

February 6, 2019. At the outset of the hearing, the mother argued that she

should be allowed to present testimony from three individuals whom she
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asserted her former attorney should have called as witnesses at her

termination hearing; the mother, however, had not submitted affidavits from

those individuals in support of her Rule 60(b)(6) motion.                           After hearing

argument from the mother and the State, the court limited the testimony at the

hearing to that of the mother and her former attorney. At the conclusion of the

hearing, the court denied the mother’s Rule 60(b)(6) motion; on

February 14, 2019, the court entered a written order memorializing that

decision.

       [¶11] The mother timely appealed from the court’s denial of her motion.1

We ordered that the appeal be consolidated with her earlier appeal from the

termination judgment.

                                      II. LEGAL ANALYSIS

A.     Unfitness and Best Interest Determinations

       [¶12] The mother argues that the record fails to support the court’s

finding that she is parentally unfit and that termination of her parental rights is

in the child’s best interest. “We review the court’s factual findings supporting



   1 The parental rights of the child’s father were terminated in a separate order and he does not

participate in this appeal. The child’s maternal grandparents are parties to the appeal because they
currently have custody of the child; the grandparents have filed a letter adopting the State’s brief by
reference. See M.R. App. P. 7A(h). The maternal grandmother has legal guardianship of the mother’s
two other children, but they are not the subject of this child protection action.
8

its determination of parental unfitness and best interests of the child[] for clear

error, and review its ultimate conclusion that termination is in the best interest

of the child[] for an abuse of discretion . . . .” In re Children of Jessica D.,

2019 ME 70, ¶ 4, --- A.3d ---.

      [¶13] Contrary to the mother’s arguments, there is competent evidence

in the record to support the court’s finding, by clear and convincing evidence,

that she is unable or unwilling 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); In re Thomas D., 2004 ME 104,

¶ 21, 854 A.2d 195. The mother is incorrect in her contention that the court

erred by basing its unfitness determination, in part, on her lack of

accountability and insight regarding her past actions and the risks of exposing

the child to unsafe individuals because her reunification plan did not include

any requirement that she address those issues. Rather, the record contains a

reunification and rehabilitation plan signed by the mother that identifies one of

her goals as “keep[ing] unsafe individuals away from [the child]” and lists her

counseling goals as “judgment - safe people[,] stability (housing)[,]

understanding personal safety/security[, and the] impact of others.” The court

based its findings regarding the mother’s lack of insight and accountability on
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competent evidence showing that despite the mother’s engagement in services,

she remained unable to demonstrate a sufficient understanding of these issues

and how they affect the child.

      [¶14] Furthermore, 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 22 M.R.S. § 4055(1)(B)(2)(a); In re Thomas H.,

2005 ME 123, ¶¶ 16-17, 889 A.2d 297. At the time of the termination hearing,

the child had been out of the mother’s custody for approximately two years and

had been removed from her care twice. Although the mother indicated that she

was willing to continue to work toward reunification, the court’s determination

correctly recognized that permanency is a central tenet of Maine’s Child and

Family Services and Child Protection Act, 22 M.R.S. §§ 4001 to 4099-H (2018),

see In re Thomas H., 2005 ME 123, ¶ 23, 889 A.2d 297, and that one of the

purposes of the act is to “[e]liminate the need for children to wait unreasonable

periods of time for their parents to correct the conditions which prevent their

return to the family,” 22 M.R.S. § 4050(2) (2018).

B.    Ineffective Assistance of Counsel

      [¶15] The mother argues that the court abused its discretion by denying

her motion for relief from judgment based on her claim of ineffective assistance
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of counsel. See M.R. Civ. P. 60(b)(6). She also contends that the court erred

when it restricted the testimony at the evidentiary hearing on her motion to

that of herself and her former attorney. The mother asserts that the court

denied her due process by not allowing her to present testimony from three

individuals whom she maintains her former attorney should have called to

testify at her termination hearing because she failed to include affidavits from

those individuals in support of her Rule 60(b)(6) motion.

      [¶16] When a parent files a Rule 60(b)(6) motion alleging ineffective

assistance of counsel, she must submit therewith her own affidavit “stating,

with specificity, the basis for the claim” along with “affidavits from any

individuals the parent asserts should have been called as witnesses during the

termination hearing.” In re M.P., 2015 ME 138, ¶ 21, 126 A.3d 718; see also In re

Aliyah M., 2016 ME 106, ¶ 8, 144 A.3d 50 (“[T]he parent must . . . submit

affidavits executed by any other person with information that the parent wants

the court to consider.”). In her Rule 60(b)(6) motion and accompanying

affidavit, the only basis the mother stated with specificity in support of her

claim of ineffective assistance of counsel was that her former attorney should

have, but did not, call three individuals to testify at her termination hearing.

Because the mother failed to include affidavits from those three individuals, the
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court could have denied that aspect of her motion without a hearing. See

In re M.P., 2015 ME 138, ¶ 21, 126 A.3d 718; see also In re Alexandria C.,

2016 ME 182, ¶ 17, 152 A.3d 617.

      [¶17] Even if the mother had complied with the affidavit requirement,

the court would not have been obligated to hold a hearing on her Rule 60(b)(6)

motion. See In re David H., 2009 ME 131, ¶ 34, 985 A.2d 490 (“[A] court is not

required to hold an evidentiary hearing, even when a party asserts that such a

hearing is necessary, to receive evidence in support of a Rule 60(b) motion.”).

The trial court has broad discretion in determining “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 the circumstances of this case, where the

mother did not comply with the procedure we outlined in In re M.P. but the

court nevertheless granted her request for an evidentiary hearing on her

motion, we discern no due process violation in the court’s decision to limit the

scope of that hearing to the testimony of the mother and her former attorney.
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        [¶18] Turning to the court’s denial of the mother’s motion, “we review

the factual findings underlying ineffectiveness claims for clear error” and the

“court’s ultimate denial of a Rule 60(b) motion . . . for an abuse of discretion.”

In re Alexandria C., 2016 ME 182, ¶ 19, 152 A.3d 617. The mother had “the

burden to show that (1) [her] counsel’s performance was deficient . . . and

(2) the deficient performance prejudiced [her] interests at stake in the

termination proceeding to the extent that the trial cannot be relied on as having

produced a just result.” In re Child of Rebecca J., 2019 ME 76, ¶ 23, --- A.3d ---.

The evidence developed at the hearing on the mother’s motion supports the

court’s determination that she did not meet this burden, and therefore the court

did not abuse its discretion by denying the mother’s Rule 60(b)(6) motion.

        The entry is:

                           Judgment affirmed.



Kristina Dougherty, Esq., Chester & Vestal, P.A., Portland, for appellant mother

Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services

Mary Kellett Gray, Esq., Brooklin, for appellees maternal grandparents


Waterville District Court docket number PC-2016-12
FOR CLERK REFERENCE ONLY
