MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	134		
Docket:	      Yor-18-71	
Submitted	
  On	Briefs:	 September	26,	2018	
Decided:	     October	4,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                 IN	RE	CHILD	OF	KIMBERLEE	C.		
	
	
PER	CURIAM	

        [¶1]	 	 Kimberlee	 C.	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Springvale,	Foster,	J.)	terminating	her	 parental	rights	to	her	youngest	child.1		

She	argues	that	there	is	insufficient	evidence	to	support	the	court’s	finding	of	

parental	unfitness	and	that	she	received	ineffective	assistance	of	counsel	during	

the	hearing	on	the	termination	of	her	parental	rights.		We	affirm	the	judgment.			

                                           I.		BACKGROUND	

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

protection	petition	with	respect	to	six	of	the	mother’s	children,	including	the	



    1		The	mother’s	parental	rights	to	six	of	her	seven	children	were	terminated	together;	however,	

she	only	appeals	the	termination	of	her	rights	as	to	her	youngest	child.		The	child’s	father	consented	
to	the	termination	of	his	parental	rights	and	is	not	a	party	to	the	appeal.		The	mother’s	oldest	child,	
age	 thirteen,	 was	 placed	 with	 his	 father	 in	 Connecticut	 at	 the	 time	 the	 petition	 was	 filed	 and,	
therefore,	was	not	a	subject	of	the	ongoing	case.		The	older	children	are	discussed	only	insofar	as	they	
affect	the	child	at	issue	in	this	appeal.			

    	
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youngest	child,	in	February	2016,	when	the	youngest	child	was	three	years	old.		

22	M.R.S.	§	4032	(2017).		The	Department	alleged	that	the	mother,	who	had	a	

history	of	mental	health	and	substance	abuse	issues,	was	unable	to	provide	safe	

and	sanitary	housing	for	herself	and	the	children	and	was	unable	to	manage	the	

behavioral	health	needs	of	her	children.		On	May	11,	2016,	the	court	(Foster,	J.)	

entered	a	jeopardy	order,	with	the	parties’	agreement,	that	placed	the	children,	

including	the	youngest,	in	the	custody	of	the	Department.			

      [¶3]		The	Department	petitioned	for	termination	of	the	mother’s	parental	

rights	on	January	19,	2017.		After	a	two-day	testimonial	hearing,	by	judgment	

dated	February	1,	2018,	the	court	terminated	the	mother’s	parental	rights.		See	

22	 M.R.S.	 §	 4055(1)(B)(2)	 (2017).	 	 The	 court	 made	 the	 following	 findings	 of	

fact,	 which	 are	 supported	 by	 competent	 record	 evidence.	 	 See	 id.;	 In	 re	 A.M.,	

2012	ME	118,	¶	29,	55	A.3d	463.		

             After	2013	or	so,	[the	mother]	was	the	single	parent	of	seven	
      children,	ranging	in	age	from	eleven	years	to	less	than	one	year	old.			
             	
             [The	mother]	was	not	particularly	well-suited	to	the	task	at	
      hand.	 	 She	 has	 long-standing	 mental	 health	 issues	 that	 she	 has	
      attempted	to	address	through	counseling.	.	.	.		She	also	developed	a	
      substance	abuse	problem	around	the	time	[the	five-year-old	twins]	
      were	born,	using	opiates	and	pain	medications.		After	[her	youngest	
      child]	 was	 born,	 she	 added	 intravenous	 heroin	 use	 to	 her	 list	 of	
      behaviors.				
      	
             .	.	.	.		
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       .	.	.	The	disclosures	[that	the	children	made	about	life	in	the	
mother’s	 household]	 are	 overwhelming[ly]	 consistent	 over	 time	
and	 among	 the	 children;	 they	 have	 been	 made	 to	 caseworkers,	
foster	 parents,	 therapists	 and	 Child	 Advocacy	 Center	
interviewers.	.	.	.		Although	all	of	these	children	have	shared	many	
of	the	same	experiences,	they	have	experienced	them	in	different	
ways	and	responded	in	their	own	fashion.	.	.	.		[The	youngest	child]	
may	have	seen	even	less	but	was	the	subject	of	direct	abuse	by	[a	
sibling].		The	effect	of	that	abuse,	if	any,	is	not	yet	known.	
       	
       .	.	.	.		
	
	      It	 is	 clear	 that	 [the	 mother]	 has	 made	 sincere	 efforts	 to	
reunify	with	her	children.		She	has	participated	in	reunification	and	
rehabilitation	 services	 recommended	 by	 the	 Department.	 	 She	
attended	 individual	 mental	 health	 counseling	 with	 [a	 counselor]	
for	 approximately	 one	 year	 but	 was	 unable	 to	 work	 on	 her	 own	
trauma	 history	 or	 make	 much	 headway	 on	 the	 issue	 of	 domestic	
violence.	.	.	.		The	topic	of	[the	mother’s]	complicity	in	the	extensive	
abuse	her	children	suffered	has	not	yet	been	raised	in	therapy.			
	      	
       [The	 mother]	 also	 periodically	 participated	 in	 substance	
abuse	treatment.		It	was	not	a	smooth	process.			
	
       	.	.	.	.	
	
	      Ultimately,	 however,	 the	 [c]ourt	 returns	 to	 [the	
neuropsychologist’s]	 recommendation	 that	 any	 decision	 about	
reunification	 begin	 with	 an	 assessment	 of	 [the	 mother’s]	
capabilities	and	the	likelihood	of	success.	.	.	.		[The	mother]	does	not	
have	 a	 history	 of	 healthy	 attachments	 to	 her	 parents	 or	 her	
partners.		She	has	virtually	no	support	network	of	family	or	friends.		
She	has	not	been	employed	on	 a	steady	basis.		She	has	struggled	
with	substance	abuse	and	mental	health	issues	for	many	years,	and	
been	in	and	out	of	treatment	programs.		She	has	yet	to	address	her	
own	 mental	 health	 issues.	 	 [The	 mother]	 has	 none	 of	 the	 indicia	
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      listed	 by	 [the	 neuropsychologist]	 as	 predictive	 of	 success	 in	
      resuming	healthy	parenting	of	her	children.			
      	      	
             These	children	are	stuck.		They	cannot	go	home;	their	mother	
      is	totally	unprepared	to	manage	their	behaviors,	respond	to	their	
      accusations	and	reassure	them	of	their	safety.				
	
      [¶4]		 Based	on	these	findings,	the	court	found	that	the	mother,	 despite	

her	efforts,	remains	unable	to	protect	the	youngest	child	from	jeopardy	or	take	

responsibility	for	the	child	within	a	time	that	is	reasonably	calculated	to	meet	

the	 child’s	 needs.	 	 See	 22	 M.R.S.	 §	 4055(1)(B)(2)(b)(i),	 (ii)	 (2017);	 In	 re	

Thomas	D.,	 2004	ME	 104,	 ¶	 21,	 854	 A.2d	 195.	 	 The	 mother	 appeals.	 	 See	 22	

M.R.S.	§	4006.	

                                   II.		DISCUSSION		

      [¶5]		The	mother	makes	two	arguments	on	appeal.		First,	she	challenges	

the	sufficiency	of	the	evidence	supporting	the	termination	of	her	parental	rights	

to	 the	 child.	 	 She	 argues	 that	 the	 court	 relied	 on	 speculative,	 unchallenged	

testimony	from	the	Department’s	expert	witness,	a	neuropsychologist,	to	find	

that	the	child	was	the	subject	of	abuse	at	the	hands	of	his	siblings	and	that	his	

mother	failed	to	prevent	this	abuse.		We	review	the	District	Court’s	findings	of	

fact	for	clear	error.		In	re	Logan	M.	2017	ME	23,	¶	3,	155	A.3d	430.		“Deference	

is	paid	to	[the	District	Court’s]	superior	perspective	for	evaluating	the	weight	

and	credibility	of	evidence.”		In	re	Scott	S.	2001	ME	114,	¶	10,	775	A.2d	1144	
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(quoting	 In	 re	 Leona	T.,	 609	 A.2d	 1157,	 1158	 (Me.	 1992));	 see	 also	 Dyer	 v.	

Superintendent	 of	 Ins.,	 2013	 ME	 61,	 ¶	 12,	 69	 A.3d	 416.	 	 There	 is	 sufficient	

evidence	 to	 support	 each	 of	 these	 findings	 with	 regard	 to	 the	 specific	 abuse	

suffered	by	the	child.		The	court,	therefore,	did	not	err	in	its	conclusion	that	the	

mother	was	unable	to	protect	the	child	from	jeopardy	or	take	responsibility	for	

him	within	a	time	that	is	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.				

       [¶6]	 	 Second,	 the	 mother	 raises	 a	 claim	 that	 her	 counsel	 at	 the	

termination	 proceeding	 was	 ineffective.2	 	 A	 parent	 claiming	 ineffective	

assistance	 of	 counsel	 in	 a	 termination	 proceeding	 must	 demonstrate	 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	 parent	 was	 “prejudiced	 by	 the	 attorney's	 deficient	

performance	in	that	counsel’s	conduct	so	undermined	the	proper	functioning	

of	the	adversarial	process	that	the	trial	cannot	be	relied	on	as	having	produced	


  2		A	parent	may	properly	claim	ineffective	assistance	of	counsel	in	a	termination	proceeding	on	

direct	appeal	from	the	termination	judgment	where	“the	record	does	not	need	to	be	supplemented	
to	support	her	claim.”		In	re	M.P.,	2015	ME	138,	¶	27,	126	A.3d	718.	
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a	just	result.”		In	re	M.P.,	2015	ME	138,	¶	27,	126	A.3d	718	(quotation	marks	and	

citations	 omitted).	 	 Although	 the	 mother	 argues	 that	 her	 attorney	 failed	 to	

provide	 adequate	 assistance	 directly	 before	 and	 during	 the	 termination	 of	

parental	rights	hearing,	the	mother	has	failed	to	make	a	prima	facie	showing	of	

ineffective	assistance	of	counsel	as	is	required.		See	id.		Contrary	to	the	mother’s	

arguments,	 her	 attorney	 made	 several	 objections,	 including	 at	 least	 one	

objection	sustained	by	the	court,	and	elicited	testimony	regarding	the	mother’s	

participation	 in	 substance	 abuse	 treatment	 and	 mental	 health	 counseling.		

Moreover,	her	attorney	rigorously	cross-examined	each	witness,	some	multiple	

times,	and	the	mother	had	the	opportunity	to	testify	on	her	own	behalf	and	did	

so.		Nothing	in	the	record	suggests	that	her	attorney’s	performance	fell	“below	

what	 might	 be	 expected	 from	 an	 ordinary	 fallible	 attorney”	 or	 that	 she	 was	

prejudiced	by	her	attorney’s	performance	such	that	the	trial	“cannot	be	relied	

on	as	having	produced	a	just	result.”		In	re	Child	of	Stephen	E.,	2018	ME	71,	¶	13,	

186	A.3d	134.		

      The	entry	is:	

                   Judgment	affirmed.	
	
	     	      	     	      	      	
	
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Roger	M.	Champagne,	Esq.,	Law	Office	of	Roger	M.	Champagne,	LLC,	Biddeford,	
for	appellant	Mother	
	
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	
	
	
Springvale	District	Court	docket	number	PC-2016-10	
FOR	CLERK	REFERENCE	ONLY	




	
