MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:   2019 ME 93
Docket:     Cum-18-477
Submitted
 On briefs: May 30, 2019
Decided:    June 11, 2019

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



                              IN RE CHILD OF DAWN B.


PER CURIAM

         [¶1] Dawn B. and Michael L. both appeal from a judgment of the District

Court (Portland, Eggert, J.) terminating their parental rights to their child. The

mother challenges only the court’s denial of her motion for relief from the

termination judgment in which she alleged that she received ineffective

assistance of counsel during the proceedings. The father argues that there was

insufficient evidence to support the termination of his parental rights. We

affirm the judgment.

                                   I. BACKGROUND

         [¶2] On March 23, 2017, the Department of Health and Human Services

instituted child protection proceedings on behalf of this child as to both

parents, alleging that the child had been in the care of the maternal

grandparents since birth and that the maternal grandparents were unable to
2

adequately care for the child.1 See 22 M.R.S. § 4032 (2018). The parents later

agreed to the entry of a jeopardy order in which the court found that the parents

have never been primary caretakers for the child; that their apartment was

unsuitable for reunification; and that the father lacked basic parenting skills,

has anger management issues, has been verbally abusive to the mother while

he was holding the child, has a history of domestic violence, abuses alcohol,

suffers from anxiety and depression, and has health issues that impair his

ability to care for the child. See 22 M.R.S. §§ 4002(6), 4035, 4036 (2018). With

the agreement of the parties, the court entered judicial review and permanency

planning orders dated January 25, 2018, and July 27, 2018, maintaining custody

of the child with the Department.

       [¶3] On September 6, 2018, the Department petitioned to terminate the

mother’s and father’s parental rights, alleging that neither parent had engaged

in any of the rehabilitation and reunification services necessary to alleviate

jeopardy. See 22 M.R.S. § 4052 (2018). After a testimonial hearing, the court


   1 Because the child was then placed in the care of other relatives as part of a safety plan, the

Department did not seek a preliminary protection order at that time. Six weeks later, the Department
requested—and the court granted—a preliminary protection order placing the child in the
Department’s custody after the relatives were unable to continue caring for the child. See 22 M.R.S.
§ 4034 (2018). The mother and father waived their right to a summary preliminary hearing. See 22
M.R.S. § 4034(4).

     The maternal grandparents were later granted interested party status; they are not parties to
this appeal. See 22 M.R.S. § 4005-D (2018).
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entered a judgment terminating both parents’ rights to the child. See 22 M.R.S.

§ 4054 (2018). The court made the following findings of fact, which are

supported by competent record evidence.

      [The mother] reports that she was unaware that she was pregnant
      until she arrived at the emergency room . . . . When their child was
      ready to leave the hospital, the parents realized that they were not
      prepared to bring home and raise a baby. They agreed to place
      their child with [the mother’s] parents. Very little about the
      parents[’] ability to raise a child has changed since that time.

           Unfortunately, the placement of the child with the mother’s
      parents turned out to be not appropriate [and] . . . the child was
      removed from the grandparents and a new placement was
      arranged . . . .

            . . . . The parents have not had much success in completing the
      [rehabilitation and reunification] plan.

            ....

             The mother has completed a parenting course, and has had
      regular visitation with her child since January 2018. That visitation
      continues to be fully supervised and [the mother] requires many
      prompts from the supervisor to appropriately tend to her child and
      keep her safe. This contact with her child is well short of
      demonstrating her ability to take on a primary care role for the
      child. [The mother] did attend some counseling but began to miss
      appointments and that counseling stopped without [the mother]
      having made any progress toward the goals of the counseling. [The
      mother] has been unable at this time and throughout the pendency
      of the case to obtain housing suitable for reunification with her
      child. . . . The summary of [the mother’s diagnostic evaluation] is
      that [the mother] has a poor prognosis for being able to
      successfully address the jeopardy which continues to exist in this
      case. [The mother] has not been responsible for primary care of
4

      her child since the child’s birth almost two years ago. She is also no
      closer to being able to take on that primary care role now than she
      was when she turned over that care to her parents.

             The father made an appointment for a mental health
      evaluation . . . , but did not succeed in having a clinician assigned to
      treat with him because of memory problems related to strokes he
      has suffered. He did complete a [diagnostic evaluation] and one
      result of that was a referral to a clinician who works with adults
      with memory impairment. After one visit for evaluation he stopped
      attending. [The father’s diagnostic evaluation] was not very
      successful due to his being less than forthcoming, and . . . he ha[s] a
      poor prognosis for making the changes necessary to alleviate
      jeopardy. He has not attended and completed a parenting
      education program nor attended the Strong Father’s program. He
      is still living in the apartment that was determined to be
      inadequate after his child was born and he has not been able to find
      appropriate housing for purposes of reunification. He has not had
      any contact with his child since May 25, 2018, and his contact
      before that was sporadic. . . . He has never had any primary care
      responsibility for his child and he is now no closer to being able to
      take on that responsibility than he was when his child left the
      hospital after her birth.

            [The child] has been in the consistent care of [her] resource
      parents . . . since May 3, 2017. She is up to date with all her medical
      appointments and is meeting developmental milestones. She is an
      active toddler who attends day care. She is walking regularly and
      beginning to say some words. The resource parents report that she
      eats and sleeps well and is generally a happy child. The resource
      parents are willing to adopt [the child] at this time. . . .

      [¶4] Based on these findings, the court determined that the parents are

unable to protect the child from jeopardy and unable to take responsibility for

the child within a time that is reasonably calculated to meet the child’s needs,
                                                                                                  5

the parents failed to make a good faith effort to rehabilitate and reunify with

the child, and termination is in the best interest of the child.2 See 22 M.R.S.

§ 4055(1)(B)(2)(a), (b)(i), (ii), (iv) (2018); see also 22 M.R.S. § 4041(1-A)(B)

(2018). Both parents timely appealed. See 22 M.R.S. § 4006 (2018); M.R. App. P.

2B(c)(1).

       [¶5] The mother then filed a motion for relief from the termination

judgment pursuant to M.R. Civ. P. 60(b)(6), with an accompanying affidavit,

alleging that her trial attorney provided ineffective assistance of counsel. The

court denied the motion.3

                                        II. DISCUSSION

A.     Ineffective Assistance of Counsel

       [¶6] The mother challenges only the court’s order denying her motion

for relief from judgment on the ground of ineffective assistance of counsel.

When a parent challenges the termination of his or her parental rights on the

basis of ineffective assistance of counsel, it is that parent’s burden to establish


   2 The court’s initial termination judgment, entered on November 15, 2018, made findings only as

to parental unfitness. See 22 M.R.S. § 4055(1)(B)(2)(b) (2018). The next day, the court, sua sponte,
entered an amended termination judgment containing findings as to parental unfitness and the best
interest of the child. See 22 M.R.S. § 4055(1)(B)(2)(a)-(b) (2018).

   3 We granted the mother’s request to allow the District Court to consider the motion for relief

from judgment notwithstanding the pending appeal. The mother filed a second notice of appeal from
the denial of her motion for relief from judgment, which was consolidated with the parents’ appeals
from the termination judgment.
6

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 a just result.” In re

Child of Stephen E., 2018 ME 71, ¶ 13, 186 A.3d 134 (alteration omitted)

(quotation marks omitted).

        [¶7] Of the two procedural mechanisms we have identified by which a

parent may assert such a claim in a proceeding to terminate parental rights, the

mother chose to file a motion for relief from judgment pursuant to M.R. Civ. P.

60(b)(6).4 See In re Child of Stephen E., 2018 ME 71, ¶ 12, 186 A.3d 134. This

procedure required the mother to submit with her motion an affidavit “stating,

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

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

termination hearing, and from any individuals who have evidence that would

bolster the parent’s claim that the performance of his or her attorney was



    4In the alternative, a parent may assert ineffective assistance of counsel in a direct appeal based
on the existing record. In re Child of Stephen E., 2018 ME 71, ¶ 12, 186 A.3d 134.
                                                                                                     7

deficient and that the deficiency affected the fairness of the proceeding.” In re

M.P., 2015 ME 138, ¶ 21, 126 A.3d 718.

       [¶8] In her affidavit accompanying her motion for relief from judgment,

the mother stated that her trial counsel was ineffective in that she “failed to

seek hearing on kinship placement” with the maternal grandparents and “failed

to advise [her] that [she] could seek judicial review at various stages of this case

and have the court hear additional evidence and review the jeopardy findings

and progress toward reunification.”5                  See 22 M.R.S. § 4005-G(1) (2018)

(discussing the legislative preference for kinship placement); 22 M.R.S.

§ 4038(2), (5) (2018) (allowing a parent to seek judicial review, at which the

court will consider evidence regarding the child’s placement). Had she known

that was an option, the mother asserted, she would have sought the

appointment of the child’s maternal grandparents as permanency guardians

and her parental rights likely would not have been terminated.6


  5  Thus, the mother does not challenge the termination proceedings themselves but instead asserts
that she was denied effective assistance of counsel during the judicial review stages preceding the
termination hearing. Because judicial review orders are not appealable decisions, see 22 M.R.S.
§ 4006 (2018); In re B.C., 2012 ME 140, ¶ 12, 58 A.3d 1118, we will not address the effectiveness of
counsel at that stage of the proceedings. Here, however, the court based its denial of the mother’s
motion for relief from judgment on the absence of prejudice affecting the termination proceeding
itself, and we therefore review that analysis.

   6 With her affidavit, the mother purported to submit additional evidence consisting of letters from

the maternal grandmother and two of the maternal grandmother’s doctors. One of the doctor’s
letters was signed and sworn before a notary; the maternal grandmother’s letter contains the
apparent signature of a notary but no jurat, and the second doctor’s letter contains no jurat or notary
8

       [¶9] The court did not address whether the performance of the mother’s

counsel was deficient at any stage of the proceedings but rested its denial of the

motion on its determination that the mother failed to establish the second

element of ineffective assistance of counsel—that she suffered any prejudice by

her attorney’s performance. In particular, the court found that the maternal

grandparents were not licensed foster parents; that the maternal grandparents

likely would not have been appointed permanency guardians in this matter;

that the maternal grandparents’ inability to provide adequate care for the

child—because their home was filthy and cluttered, their heater was broken,

and they lacked the financial resources to adequately feed the child—caused

the Department to institute child protection proceedings in the first place; and

that the maternal grandparents were not an appropriate adoptive placement.

On this basis, the court determined, “it was not highly probable that requesting

a hearing on placement would have changed the outcome in this case.” Because

the mother had the burden of proof before the trial court and failed to meet that

burden, we will disturb the court’s findings of fact only if we determine that the

trial court was compelled to find in the mother’s favor. See In re Alexandria C.,

2016 ME 182, ¶ 19, 152 A.3d 617. We review the court’s ultimate decision to


signature. See In re Tyrel L., 2017 ME 212, ¶ 10, 172 A.3d 916 (stating that a signed document “is not
an affidavit [when] it bears no jurat”).
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grant or deny the motion for relief from judgment for an abuse of discretion.

See id.

       [¶10] We conclude that the court’s findings are adequately supported by

the existing record as supplemented by those affidavits that were properly

executed and submitted with the mother’s motion. At the termination hearing,

the court admitted evidence from the GAL, the Department’s permanency

caseworker, the father, and the maternal grandmother herself that supported

the court’s findings that the maternal grandparents’ home was not suitable for

raising this child and that the maternal grandparents’ inability to provide

adequate care for the child is what led to the Department’s initial involvement

in the matter.7 Although the mother suggests that the court assigned too much

weight to the evidence presented by the Department and not enough weight to

the evidence she presented regarding the maternal grandparents’ ability and

willingness to care for the child, the assessment of the weight and credibility of

the evidence was for the trial court alone. See In re Children of Tiyonie R.,

2019 ME 34, ¶ 6, 203 A.3d 824.



  7     This evidence also supports the findings in the termination judgment that “the placement of the
child with the mother’s parents turned out to be not appropriate” and “the maternal grandparents
. . . turned out not to be a safe placement.” The mother has expressly waived any challenge to these
findings by stating in her brief, “For purposes of providing this Court with factual background and
because the [mother] is solely raising the issue of ineffective assistance of counsel, the [mother]
adopts the findings as stated by the trial court in its Order Terminating Parental Rights.”
10

       [¶11] The court’s findings that a permanency guardianship was an

unlikely result in this matter and that the maternal grandparents would not

have been an appropriate adoptive placement are supported by this same

evidence. Title 22 M.R.S. § 4038-C(1) (2018) sets out the requirements for

ordering a permanency guardianship, including that the guardian “[h]as the

ability to provide a safe home for the child.” 22 M.R.S. § 4038-C(1)(A). We have

noted that a permanency guardianship may be ordered “to establish safe,

long-term care for a child,” but it is not appropriate when the child “need[s] the

certainty and stability of adoption” and the parties otherwise need clarity in

their respective roles. In re Cameron B., 2017 ME 18, ¶¶ 12-13, 154 A.3d 1199.

Similarly, adoption is appropriate in accordance with the child’s best interest

when, among other requirements, the adoptive parent can provide the adoptee

with her basic needs and a safe and stable living environment. See 18-A M.R.S.

§§ 9-304, 9-308(b) (2018); 19-A M.R.S. § 1653(3) (2018); see also 22 M.R.S.

§ 4038-E (2018). Thus, a court’s supported finding that a person cannot

provide adequate care for a child precludes his or her appointment as either a

permanency guardian or an adoptive parent.8


   8 We note that the mother personally attended both of the judicial review hearings and agreed to

the disposition for each, including provisions that “[t]here are no relatives with whom the child may
be placed.” We also observe that the maternal grandparents, although interested parties, never
sought placement of the child with them. See 22 M.R.S. § 4005-H(2) (2018).
                                                                                               11

       [¶12] As to the requirement of a foster license, 22 M.R.S. § 4005-G(6)

(2018) states that “[t]he [D]epartment is not required to consider residential

placement of a child with a relative who does not exercise due diligence to

obtain a license as a family foster home, including by applying for a license,

attending all required trainings, cooperating with a home study and promptly

addressing any problems identified by the [D]epartment that prevent the

[D]epartment from granting the license.” The GAL testified at the termination

hearing that she informed the maternal grandmother on more than one

occasion that she needed to obtain a foster parent license if she wished to seek

placement of the child with her, but the maternal grandparents had not taken

any steps toward obtaining a license. The maternal grandmother also testified

at the termination hearing that two people informed her that she needed a

license to become a foster parent and that she did not obtain such a license.

       [¶13] We conclude that the trial court was not compelled to find in the

mother’s favor on the underlying facts and that the court did not abuse its

discretion by denying her motion for relief from the termination of her parental

rights.9 See In re Alexandria C., 2016 ME 182, ¶ 19, 152 A.3d 617.


   9 We are not persuaded by the mother’s contention that the court was required to conduct a

testimonial hearing on her motion for relief from judgment. We have left it to the trial court to
determine “what process is necessary to meaningfully assess a parent’s claim [of ineffective
assistance of counsel through a motion pursuant to M.R. Civ. P. 60(b)] while balancing the State’s
12

B.      Sufficiency of the Evidence

        [¶14] The father argues that there is insufficient evidence in the record

to support the court’s termination of his parental rights. He does not argue that

he is currently able to parent his child but instead contends that he could parent

the child if given more time for rehabilitation and reunification and that

remaining in the Department’s custody for an additional period of time would

not have harmed the child. We review the court’s findings of fact supporting its

determinations of parental unfitness and best interest for clear error, and we

will uphold those findings if there is any competent evidence in the record to

support them. In re Children of Tiyonie R., 2019 ME 34, ¶ 6, 203 A.3d 824. We

review the court’s ultimate determination of best interest for an abuse of

discretion. Id. ¶ 6 n.2.




important interest in expeditiously establishing permanent plans for children.” In re M.P., 2015 ME
138, ¶¶ 35-36, 126 A.3d 718 (“In some cases, it may be necessary to assess the credibility of the
witnesses from whom the court receives affidavits to resolve disputes of fact that would establish
whether counsel was ineffective. In this case, however, the affidavits were sufficient to demonstrate
the quality of the mother’s additional evidence so that the court could assess both the attorney’s
judgment . . . and whether [the attorney’s actions] prejudiced the mother.”).

      This is unlike when a party asserts ineffective assistance of counsel in a direct appeal based only
on the record from the termination proceedings. See In re Aliyah M., 2016 ME 106, ¶¶ 6-7, 144 A.3d
50. In those matters, we review the existing record to determine if the parent has established
ineffective assistance of counsel on a prima facie basis. Id. ¶ 12. If so, we remand the matter to the
trial court for a factual adjudication on the merits of the claim because the issue of ineffective
assistance of counsel has not yet been presented to the trial court. See id.
                                                                                13

      [¶15] Contrary to the father’s contention, the court did not err or abuse

its discretion in terminating his parental rights. The court’s findings of parental

unfitness—that the parents do not have suitable housing to care for the child,

are unable to provide primary care for the child without assistance, and have

made little or no progress in addressing any of the issues that led to the entry

of the jeopardy order—are supported by evidence from the GAL, the visit

supervisors, the Department’s permanency caseworker, the parents’ diagnostic

evaluator, and the mother’s counselor. That evidence, in addition to the

testimony regarding the love and appropriate care the child receives from her

pre-adoptive foster parents, also supports the court’s finding that termination

of the parents’ rights is in the child’s best interest, and the court did not abuse

its discretion in making that best interest determination. See id.

      [¶16] As we have often stated, “the court must examine from the child’s

perspective—not the parent’s—the time within which the parent can take

responsibility for a child and protect that child from jeopardy.” In re Children

of Tiyonie R., 2019 ME 34, ¶ 6, 203 A.3d 824 (affirming a termination of parental

rights when, as here, the children had been in the Department’s custody for

almost two years, the parent had made little progress in rehabilitation and

reunification services, and the parent had not seen the children in several
14

months); see 22 M.R.S. § 4050(2) (2018) (setting out the Legislature’s goal of

“[e]liminat[ing] the need for children to wait unreasonable periods of time for

their parents to correct the conditions which prevent their return to the

family”). In this matter, as in In re Child of Mercedes D., 2018 ME 149, ¶ 22 n.5,

196 A.3d 888, “the father will remain parentally unfit for too long as measured

from the child’s perspective, and . . . the child’s best interest will be served with

the permanence that comes with adoption generally.”

        The entry is:

                           Judgment affirmed.



Seth Berner, Esq., Portland, for appellant father

Valerie A. Randall, Esq., Hanly Law, 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


Portland District Court docket number PC-2017-31
FOR CLERK REFERENCE ONLY
