MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	182	
Docket:	   Som-16-219	
Argued:	   October	27,	2016	
Decided:	  December	22,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       IN	RE	ALEXANDRIA	C.	
	
	
SAUFLEY,	C.J.	

        [¶1]		The	mother’s	parental	rights	to	Alexandria	C.	were	terminated	by	a	

judgment	of	the	District	Court	(Skowhegan,	Benson,	J.)	on	June	8,	2015,	after	

police	discovered	that	the	mother	had	taken	a	series	of	shocking,	graphic,	and	

abusive	photographs	of	her	daughter,	and	the	mother	declined	to	participate	

in	any	way	in	reunifying	with	the	child.1		We	affirmed	the	judgment.		In	re	A.C.,	

Mem-15-106	(Dec.	22,	2015).		The	mother	then	filed	a	motion	for	relief	from	

judgment,	alleging	the	ineffective	assistance	of	counsel.		She	now	appeals	the	

court’s	denial	of	that	motion.		Because	the	mother	failed	to	meet	her	burden	to	

prove	that	her	trial	counsel	was	ineffective,	we	affirm	the	judgment.	We	take	




    1		On	June	18,	2014,	police	executing	a	search	warrant	discovered	numerous	graphic	pictures	of	

then-six-year-old	Alexandria	on	the	mother’s	computer.		The	mother	admitted	to	having	taken	the	
photographs,	 claiming	 it	 was	 for	 Alexandria’s	 “protection.”	 	 It	 was	 necessary	 to	 take	 these	
photographs,	she	rationalized,	to	document	Alexandria’s	physical	condition	before	she	went	to	visit	
her	 father	 in	 case	 Alexandria	 suffered	 sexual	 abuse	 during	 the	 visit.	 	 The	 mother	 subjected	 her	
daughter	to	between	two	and	four	photographic	sessions.	
2	

this	opportunity	to	clarify	the	emerging	process	for	post-judgment	review	of	

judgments	terminating	parental	rights.			

                                    I.		BACKGROUND	

       [¶2]	 	 The	 petition	 for	 termination	 in	 this	 case	 was	 unusual	 in	 that	

Alexandria’s	 father	 is	 well	 able	 to	 care	 for	 her,	 and	 she	 is	 safely	 placed	 with	

her	father	where	she	has	made	“progress	.	.	.	emotionally,	mentally,	physically,	

and	 academically	 in	 his	 care.”	 	 Ordinarily,	 there	 would	 be	 no	 need	 to	

permanently	 terminate	 the	 mother’s	 rights	 to	 her	 child.	 	 Unfortunately,	 the	

mother’s	 obsession,	 since	 at	 least	 May	 of	 2008,	 “with	 the	 belief	 that	 the	

father	.	.	.	is	a	mortal	danger	to	[Alexandria]”	has	resulted	in	her	unwillingness	

or	 inability	 to	 allow	 Alexandria	 to	 be	 raised	 in	 peace	 by	 her	 father.	 	 The	

termination	court	summarized	an	extensive	history	of	litigation	by	the	mother	

in	 which	 she	 alleged	 abuse	 by	 the	 father	 in	 three	 protection	 from	 abuse	

matters,	the	parents’	divorce,	and	in	post-divorce	motions.		The	court	further	

noted	that	there	was	never	a	finding	of	abuse	in	any	of	these	matters.	

       [¶3]	 	 We	 affirmed	 the	 termination	 of	 the	 mother’s	 parental	 rights	

because,	as	the	guardian	ad	litem	recognized,	the	mother’s	litigiousness	would	

in	 all	 likelihood	 lead	 her	 immediately	 “back	 to	 court	 attempting	 to	 amend	

[any]	parental	rights	and	responsibilities	order.”		Her	litigious	approach	to	the	
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ancillary	family	matter	proceedings,	along	with	her	obstinate	unwillingness	to	

participate	in	any	services	designed	to	allow	her	to	normalize	her	relationship	

with	 her	 daughter,	 necessitated	 the	 unusual	 action	 by	 the	 Department	 of	

Health	and	Human	Services	seeking	to	have	her	parental	rights	permanently	

terminated.		

      [¶4]	 	 The	 child	 protective	 proceeding	 originated	 when	 the	 police	

discovered	 the	 mother’s	 graphic	 photographs	 of	 Alexandria.	 	 The	 court	

granted	 a	 preliminary	 child	 protection	 order	 on	 the	 same	 day.	 	 When	 the	

mother	contested	the	preliminary	order	two	weeks	later,	the	court	(Fowle,	J.)	

found	 that	 Alexandria	 was	 at	 immediate	 risk	 of	 serious	 harm	 and	 granted	

custody	of	Alexandria	to	her	father.		After	a	hearing	in	which	the	court	made	a	

finding	 of	 jeopardy	 as	 to	 the	 mother,	 including	 an	 aggravating	 factor,	 the	

Department	filed	a	petition	to	terminate	the	mother’s	parental	rights.		

      [¶5]	 	 The	 court	 (Benson,	 J.)	 then	 held	 a	 hearing	 on	 the	 termination	

petition	 and	 considered	 the	 testimony	 of	 the	 mother	 and	 the	 Department	

caseworker,	 reports	 of	 a	 GAL,	 and	 orders	 that	 were	 entered	 in	 prior	 family	

and	protection	from	abuse	matters.		The	court	found	that	the	mother	“has	not	

gained	 any	 appreciation	 for	 the	 gravity	 and	 the	 harm”	 caused	 by	 her	

“outrageous	 and	 disgusting	 conduct,”	 and	 that	 she	 remained	 a	 “considerable	
4	

and	significant	threat”	to	Alexandria.		Further	finding	that	termination	was	in	

Alexandria’s	 best	 interest,	 the	 court	 entered	 a	 judgment	 terminating	 the	

mother’s	parental	rights.			

       [¶6]		The	mother	appealed,	arguing	that	there	was	insufficient	evidence	

to	 support	 the	 court’s	 findings.	 	 See	 In	 re	 A.C.,	 Mem	 15-106	 (Dec.	 22,	 2015).		

We	affirmed	the	court’s	judgment	terminating	the	mother’s	parental	rights	on	

December	 22,	 2015.	 	 Id.	 	 While	 the	 mother’s	 appeal	 was	 pending,	 on	

October	29,	 2015,	 we	 published	 an	 opinion	 in	 a	 different	 child	 protection	

proceeding	 in	 which	 we	 announced	 the	 procedural	 requirements	 and	

standards	that	apply	to	claims	of	ineffective	assistance	of	counsel	in	cases	for	

termination	of	parental	rights.		In	re	M.P.,	2015	ME	138,	126	A.3d	718.	

       [¶7]		Relying	on	the	process	announced	in	that	case,	on	January	8,	2016,	

seventeen	 days	 after	 we	 affirmed	 the	 judgment	 terminating	 her	 parental	

rights,	 the	 mother	 filed	 a	 motion	 for	 relief	 from	 judgment.	 	 See	 M.R.	

Civ.	P.	60(b).	 	 She	 argued	 that	 her	 trial	 counsel	 had	 rendered	 ineffective	

assistance.		She	did	not	file	the	required	sworn	affidavit	identifying	the	basis	

for	her	claim.		See	In	re	M.P.,	2015	ME	138,	¶	21,	126	A.3d	718.	

       [¶8]	 	 Despite	 the	 missing	 affidavit	 and	 the	 questions	 regarding	 timing,	

the	 court	 acted	 cautiously	 and	 allowed	 the	 mother	 to	 proceed	 promptly	 to	
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hearing	to	challenge	her	counsel’s	representation.		The	mother	and	her	former	

attorney	 testified	 at	 the	 hearing.	 	 At	 the	 conclusion	 of	 the	 hearing,	 the	 court	

recited	the	following	factual	findings	from	the	bench,	which	are	supported	by	

record	 evidence.	 	 During	 the	 termination	 proceeding,	 the	 mother	 was	 rigid	

and	 unwilling	 to	 consider	 any	 resolution	 that	 would	 allow	 contact	 between	

Alexandria	 and	 the	 father.	 	 The	 mother	 threw	 “roadblocks”	 in	 the	 way	 of	

meeting	 with	 her	 attorney,	 would	 not	 provide	 releases	 for	 her	 attorney	 to	

meet	 with	 her	 medical	 providers,	 and	 declined	 to	 provide	 witnesses.	 	 The	

mother’s	trial	counsel	thoroughly	discussed	with	her	the	option	of	a	potential	

agreement	 that	 would	 have	 avoided	 termination	 of	 her	 parental	 rights,	 and	

fully	advised	her	of	the	risk	and	consequences	of	having	her	rights	terminated.	

       [¶9]		In	accordance	with	its	findings,	the	court	ultimately	concluded	that	

the	 mother	 had	 not	 met	 her	 burden	 to	 prove	 that	 her	 trial	 counsel	 provided	

ineffective	 assistance,	 and	 it	 denied	 her	 motion	 for	 relief	 from	 judgment	 on	

April	29,	2016.		This	appeal	followed.			

                                     II.		DISCUSSION	

A.	    Procedure	

       [¶10]	 	 We	 begin	 by	 emphasizing	 the	 critical	 importance	 of	 swift	

resolution	 in	 child	 protection	 proceedings	 to	 promote	 stability	 and	
6	

permanence	for	children	who	are	the	subjects	of	these	proceedings.		When	the	

Department	alleges	that	a	child	cannot	safely	be	returned	to	her	parents,	the	

law	 requires	 prompt	 action	 to	 “[p]romote	 the	 early	 establishment	 of	

permanent	plans	for	the	care	and	custody	of	children	who	cannot	be	returned	

to	their	family.”		22	M.R.S.	§	4003(4)	(2015);	see	also	In	re	M.P.,	2015	ME	138,	

¶¶	18-19,	 126	 A.3d	 718.	 	 To	 this	 end,	 we	 have	 imposed	 strict	 procedural	

requirements	 on	 a	 parent	 claiming	 the	 ineffective	 assistance	 of	 counsel	 in	

termination	 proceedings	 following	 the	 opportunity	 for	 a	 full	 trial	 on	 the	

merits	 of	 the	 Department’s	 petition	 for	 termination	 of	 parental	 rights.	 	 In	 re	

M.P.,	2015	ME	138,	¶¶	19-21,	126	A.3d	718.			

       [¶11]	 	 Thus,	 we	 have	 said	 that	 ineffectiveness	 claims	 in	 termination	

proceedings	should	generally	be	raised	on	direct	appeal.		See	id.	¶¶	19-20.		We	

allow	an	exception,	however,	where	“the	record	does	not	illuminate	the	basis	

for	 the	 challenged	 acts	 or	 omissions”	 of	 a	 parent’s	 attorney.	 	 Id.	 ¶	20.	 	 This	

exception	 permits	 no	 delay.	 	 In	 such	 cases,	 “the	 parent	 must	 promptly	 move	

for	relief	.	.	.	pursuant	to	M.R.	Civ.	P.	60(b)(6)	.	.	.	no	later	than	twenty-one	days	

after	the	expiration	of	the	period	for	appealing	the	underlying	judgment.”		Id.		

This	 timeframe	 is	 necessary	 so	 that	 any	 appeal	 from	 the	 Rule	 60(b)(6)	

ineffective	assistance	claim	can	be	heard	together	with	the	direct	appeal	and	
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not	 unreasonably	 delay	 the	 achievement	 of	 a	 permanent	 out	 of	 home	

placement	 for	 the	 child,	 or	 the	 swift	 return	 to	 a	 meaningful	 reunification	

effort.		See	id.	¶	20	&	n.4.			

       [¶12]	 	 Accordingly,	 when	 a	 parent	 presents	 a	 claim	 of	 ineffective	

assistance	of	counsel	following	a	termination	proceeding	that	is	not	included	

in	the	appeal	itself,	the	claim	must	be	made	within	the	time	frames	established	

in	 In	 re	 M.P.	 	 To	 be	 specific,	 any	 Rule	 60(b)(6)	 motion	 alleging	 ineffective	

assistance	of	counsel	must	be	made	within	twenty-one	days	after	the	time	for	

taking	 an	 appeal	 has	 expired.	 	 Id.	 ¶	 20.	 	 The	 trial	 court	 will	 dismiss	 and	

therefore	not	act	on	the	merits	of	an	untimely	Rule	60(b)(6)	motion	alleging	

ineffective	assistance	of	counsel,	and	no	appeal	from	the	trial	court’s	dismissal	

of	an	untimely	motion	will	lie.		See	22	M.R.S.	§	4006	(2015).	

       [¶13]		We	stress	these	time	requirements	because	we	are	acutely	aware	

of	 the	 challenges	 presented	 in	 rapidly	 assessing	 the	 situation	 regarding	

representation,	 which	 must	 be	 weighed	 against	 the	 competing	 need	 for	

finality	for	the	children	involved.		It	will	be	critically	important	for	counsel	to	

be	attentive	to	these	deadlines	at	the	conclusion	of	termination	proceedings.			

       [¶14]		In	the	matter	before	us,	because	In	re	M.P.	was	certified	months	

after	 the	 order	 terminating	 the	 mother’s	 parental	 rights	 was	 docketed,	 and	
8	

because	 the	 motion	 was	 filed	 within	 seventeen	 days	 after	 the	 decision	

affirming	the	order	of	termination	against	the	mother,	we	accept	the	mother’s	

Rule	60(b)(6)	motion	as	timely	filed.		See	In	re	M.P.,	2015	ME	138,	¶	28,	126	

A.3d	718.		

       [¶15]	 	 In	 addition	 to	 the	 strict	 temporal	 limitations	 on	 Rule	 60(b)(6)	

motions,	 “the	 parent	 making	 the	 claim	 must	 submit	 a	 signed	 and	 sworn	

affidavit	stating,	with	specificity,	the	basis	for	the	claim.”		Id.	¶	21.		“Because	of	

the	 counter-balancing	 interests	 of	 the	 State	 in	 ensuring	 stability	 and	 prompt	

finality	 for	 the	 child,	 if	 the	 parent	 fails	 to	 comply	 with	 this	 procedure,	 the	

parent’s	motion	.	.	.	must	be	denied.”		Id.;	see	also	In	re	Aliyah	M.,	2016	ME	106,	

¶	9,	144	A.3d	50.	

	      [¶16]		When	a	parent	pursues	a	claim	of	ineffective	assistance	by	means	

of	 a	 Rule	 60(b)(6)	 motion,	 the	 parent’s	 affidavit	 and	 any	 accompanying	

affidavits	must	explicitly	address	the	two	parts	of	the	standard	for	ineffective	

assistance	of	counsel.		See	In	re	M.P.,	2015	ME	138,	¶¶	21,	27,	126	A.3d	718.		

The	 affidavit	 must	 demonstrate	 that	 there	 was	 admissible,	 material,	 and	

noncumulative	 evidence	 that	 counsel	 was	 aware	 of	 and	 did	 not	 offer	 to	 the	

trial	 court,	 or	 that	 the	 parent’s	 counsel	 was	 deficient	 for	 some	 other	 very	

substantial	 reason.	 	 See	 id.	 	 The	 affidavit	 must	 also	 demonstrate	 that	 the	
                                                                                          9	

alleged	deficiency	resulted	in	prejudice—meaning	that	there	was	a	reasonable	

probability	 that	 it	 could	 have	 made	 a	 difference	 to	 the	 outcome	 of	 the	

proceeding.	 	 See	 id.;	 Theriault	 v.	 State,	 2015	 ME	 137,	 ¶	 19,	 125	 A.3d	 1163.		

Although	affidavits	of	other	witnesses	will	be	helpful	in	this	context,	we	again	

stress	that	an	affidavit	from	the	parent,	setting	forth,	among	other	things,	the	

parent’s	efforts	to	advise	trial	counsel	of	the	availability	of	such	witnesses	or	

evidence,	must	be	filed	with	the	motion.			

       [¶17]		Because	here	the	mother	filed	no	signed	and	sworn	affidavit	with	

her	 Rule	 60(b)(6)	 motion,	 the	 court	 could	 simply	 have	 denied	 the	 mother’s	

motion	 for	 failure	 to	 adhere	 to	 the	 required	 procedure.	 	 See	 In	 re	 M.P.,	 2015	

ME	138,	¶	21,	126	A.3d	718.		In	future	cases,	this	requirement	must	be	strictly	

enforced.	 	 However,	 again,	 because	 of	 the	 unique	 procedural	 posture	 of	 this	

case,	 in	 an	 exercise	 of	 caution,	 the	 court	 held	 an	 evidentiary	 hearing	 on	 the	

mother’s	 motion,	 and	 we	 turn	 to	 the	 merits	 of	 the	 mother’s	 appeal	 on	 her	

claim	of	ineffective	assistance	of	counsel.	

B.	    Ineffective	Assistance	of	Counsel	

       [¶18]		When	a	parent	raises	a	claim	of	ineffective	assistance	of	counsel	

in	a	child	protection	case,	it	is	the	parent’s	burden	to	show	that	“(1)	counsel’s	

performance	 was	 deficient,	 i.e.,	 that	 there	 has	 been	 serious	 incompetency,	
10	

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.”	 	 Id.	 ¶	 27	 (quotation	 marks	 omitted)	 (citation	

omitted).	

      [¶19]		We	review	the	factual	findings	underlying	ineffectiveness	claims	

for	 clear	 error.	 	 See	 Roberts	 v.	 State,	 2014	 ME	 125,	 ¶	23,	 103	 A.3d	 1031.		

Because	the	parent	alleging	counsel’s	ineffectiveness	had	the	burden	of	proof,	

on	 appeal	 the	 parent	 must	 demonstrate	 that	 a	 contrary	 finding	 is	 compelled	

by	the	evidence.		See	Dickens	v.	Boddy,	2015	ME	81,	¶	12,	119	A.3d	722;	Heon	

v.	State,	2007	ME	131,	¶	8,	931	A.2d	1068.		The	trial	court’s	ultimate	denial	of	

a	Rule	60(b)	motion	is	reviewed	for	an	abuse	of	discretion.		Town	of	Wiscasset	

v.	Mason	Station,	LLC,	2015	ME	59,	¶	6,	116	A.3d	458.			

      [¶20]		In	the	matter	before	us,	there	was	ample	evidence	to	support	the	

court’s	 finding	 that	 the	 mother’s	 attorney	 performed	 at	 and	 above	 the	 level	

that	would	be	expected	from	an	ordinary,	fallible	attorney.		The	court	found,	

with	 evidentiary	 support,	 that	 the	 attorney	 informed	 the	 mother	 of	 her	

options	 and	 the	 associated	 risks,	 and	 assisted	 her	 with	 tactical	 decisions.		
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Indeed,	before	us,	the	mother	does	not	suggest	that	she	proposed	to	counsel	

other	 evidence	 that	 counsel	 should	 have	 presented	 to	 the	 court.	 	 At	 the	

hearing	 on	 the	 Rule	 60(b)(6)	 motion,	 when	 asked	 what	 other	 evidence	

existed,	the	mother	responded,	“There	was	no	additional	evidence.”		Thus,	the	

court	was	not	compelled	to	find	that	the	performance	of	the	mother’s	counsel	

was	deficient.	

      [¶21]		Even	if	counsel’s	performance	had	been	deficient,	the	court	was	

not	compelled	to	find	that	the	mother’s	case	was	prejudiced	by	her	attorney’s	

performance.	 	 The	 mother	 provided	 no	 additional	 evidence	 that	 would	 have	

created	 a	 reasonable	 probability	 of	 the	 termination	 hearing	 resulting	 in	 a	

different	 outcome,	 and	 she	 specifically	 testified	 that	 there	 was	 no	 such	

evidence.		The	mother’s	paranoid	obsession	that	the	father	is	a	danger	both	to	

Alexandria	 and	 to	 herself	 caused	 the	 mother	 to	 do	 great	 harm	 to	 her	

daughter—harm	 that	 she	 still	 refuses	 to	 acknowledge.	 	 The	 same	 paranoia	

caused	 the	 mother	 to	 refuse	 to	 consider	 any	 resolution	 that	 would	 have	

allowed	 contact	 between	 Alexandria	 and	 her	 father,	 even	 if	 it	 would	 have	

avoided	the	termination	of	her	own	parental	rights.	

      [¶22]	 	 The	 mother’s	 intransigence	 would	 have	 eviscerated	 most	

attorneys’	 abilities	 to	 provide	 successful	 representation.	 	 Sadly,	 she	
12	

completely	 failed	 to	 assist	 her	 own	 attorney	 by	 providing	 witnesses	 and	

evidence.		In	addition,	the	Department	caseworker	testified	at	the	termination	

hearing	 that	 after	 the	 caseworker	 recommended	 reunification	 services,	 she	

was	 unable	 to	 contact	 the	 mother	 again	 except	 to	 arrange	 service	 of	 the	

termination	 petition.	 	 The	 GAL’s	 report	 similarly	 indicated	 that	 the	 mother	

never	 responded	 to	 the	 GAL’s	 offers	 to	 meet	 with	 her.	 	 Even	 in	 court	 at	 the	

termination	hearing,	the	mother	refused	to	answer	questions	about	where	she	

lived	 or	 to	 provide	 the	 names	 of	 her	 alleged	 service	 providers.	 	 We	 are	

accordingly	 unpersuaded	 by	 the	 mother’s	 argument	 that	 the	 court	 was	

compelled	 to	 find	 that	 her	 lawyer	 provided	 ineffective	 assistance,	 and	 we	

discern	no	injustice	in	the	court’s	order	denying	her	Rule	60(b)(6)	motion	and	

establishing	 permanency	 for	 Alexandria.	 	 The	 court	 did	 not	 abuse	 its	

discretion	in	denying	the	mother’s	Rule	60(b)(6)	motion.				

                                   III.		CONCLUSION	

      [¶23]	 	 In	 order	 to	 assure	 that	 a	 parent	 may	 be	 heard	 on	 a	 claim	 of	

ineffective	assistance	of	counsel	in	a	termination	proceeding,	and	to	promote	

swift	action	to	provide	permanency	and	stable	families	for	children	who	have	

been	tangled	in	the	child	protection	system,	we	have	announced	a	procedure	
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intended	to	balance	the	important	interests	at	stake.		A	post-termination	claim	

of	ineffective	assistance	of	counsel	must	be	

         (1)      included	in	any	appeal	from	the	order	of	termination;	or	
         (2)      addressed	through	a	Rule	60(b)(6)	motion	that	must	be	
                  a. filed	no	later	than	21	days	after	the	running	of	the	time	for	an	
                     appeal,	and	
                  b. accompanied	by	the	parent’s	signed	and	sworn	affidavit	setting	
                     forth	the	facts	upon	which	an	ineffective	assistance	of	counsel	
                     determination	could	be	made.			
	
         [¶24]	 	 In	 the	 matter	 before	 us,	 the	 court	 held	 a	 hearing,	 provided	 the	

mother	 with	 an	 opportunity	 to	 be	 heard	 on	 her	 Rule	 60(b)(6)	 motion,	 and	

concluded	that	the	mother	had	failed	to	meet	her	burden.		The	court	did	not	

err	in	reaching	that	conclusion.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	       	      	     	      	
	
Verne	 E.	 Paradie,	 Jr.,	 Esq.	 (orally),	 Paradie,	 Sherman,	 Walker	 &	
Worden,	Lewiston,	for	appellant	mother	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Meghan	 Szylvian,	 Asst.	 Atty.	
Gen.	(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	
Department	of	Health	and	Human	Services	
	
	
Skowhegan	District	Court	docket	number	PC-2014-40	
FOR	CLERK	REFERENCE	ONLY	
