MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2019	ME	9	
Docket:	      Som-18-302	     	   	     	
Submitted	
  On	Briefs:	 January	17,	2019	
Decided:	     January	24,	2019	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  IN	RE	CHILDREN	OF	CRYSTAL	G.	
	
	
PER	CURIAM	

         [¶1]	 	 Crystal	 G.	 appeals	 from	 a	 judgment	 entered	 by	 the	 District	 Court	

(Skowhegan,	Benson,	J.)	terminating	her	parental	rights	to	four	of	her	children	

pursuant	to	22	M.R.S.	§	4055(1)(A)(1)(a)	and	(B)(2)(a),	(b)(i)-(ii),	(iv)	(2017).1		

She	contends	that	her	counsel	at	the	termination	hearing	was	constitutionally	

ineffective	in	(1)	failing	to	move	for	the	trial	judge	to	recuse	on	the	ground	that	

he	also	oversaw	the	domestic	violence	docket	in	which	the	mother	participated	

and	 (2)	 failing	 to	 move	 for	 further	 findings	 of	 fact	 after	 the	 court	 adopted	

verbatim	 most	 of	 the	 Department	 of	 Health	 and	 Human	 Services’s	 proposed	

findings	in	its	judgment	terminating	her	parental	rights.		The	mother	further	

contends	that	some	of	the	court’s	findings	are	not	supported	by	the	record	and	




    1		The	fathers	of	the	children	had	their	parental	rights	terminated	by	separate	judgments.		The	

fathers	 of	 three	 of	 the	 children	 did	 not	 appeal,	 and	 the	 appeal	 of	 the	 father	 of	 the	 fourth	 child	 is	
proceeding	separately.	
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that	the	court	erred	in	making	a	credibility	determination	concerning	one	of	the	

mother’s	witnesses.		We	affirm	the	judgment.	

A.	      Recusal	

	        [¶2]	 	 Contrary	 to	 the	 mother’s	 contention	 that	 her	 counsel	 was	 per	 se	

ineffective	in	failing	to	move	for	the	trial	judge’s	recusal	in	the	termination	case	

because	 he	 also	 oversaw	 the	 domestic	 violence	 docket2	 in	 which	 she	 was	 a	

participant,	recusal	in	that	circumstance	is	not	automatically	required	in	order	

to	avoid	the	appearance	of	bias.3		See	M.	Code	Jud.	Conduct	R.	2.11(A)	(“[a]	judge	

shall	.	.	.	recuse	.	.	.	in	any	proceeding	in	which	the	judge’s	impartiality	might	

reasonably	be	questioned”);	State	v.	Atwood,	2010	ME	12,	¶	21,	988	A.2d	981.	

	        [¶3]		As	an	initial	matter,	before	the	mother	testified	at	the	hearing	her	

counsel	did	move	for	the	judge	to	recuse	on	the	ground	that	evidence	the	court	

heard	in	the	termination	proceeding	might	prejudice	her	in	her	criminal	case.		

The	court	declined	to	recuse	based	on	evidence	it	had	not	yet	heard,	ruling	that	




     2		A	2015	report	prepared	for	the	Judicial	Branch	explained	that	“[i]n	Maine,	domestic	violence	

dockets	are	scheduled	separately	from	traditional	judicial	hearings.		The	model	includes	a	consistent	
judge	focusing	on	the	perpetrators’	compliance	with	conditions	of	probation,	including	participation	
in	a	Batterer	Intervention	Program,	fulfilling	child	support	responsibilities,	and	engaging	in	ancillary	
services	such	as	substance	abuse	treatment.”		Hornby	Zeller	Assocs.,	Inc.,	Domestic	Violence	Docket,	
Process	and	Recidivism	Report	at	i	(Sept.	22,	2015),	Me.	Judicial	Branch	website/Reports	(last	visited	
Jan.	23,	2019).	
    	
    3		The	mother	does	not	assert	that	the	trial	judge	harbored	an	actual	prejudice	against	her,	only	

that	these	circumstances	unavoidably	gave	the	appearance	that	the	judge	might	not	be	impartial.	
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if	recusal	were	required	at	all	it	would	be	required	in	the	criminal	matter,	not	

the	 child	 protective	 matter.	 	 See	 Atwood,	 2010	 ME	 12,	 ¶	20,	 988	A.2d	981	

(stating	that	“recusal	is	a	matter	within	the	broad	discretion	of	the	trial	court”	

(quotation	marks	omitted)).	

	     [¶4]		In	any	event,	we	have	recognized	that	“rulings	against	a	litigant	or	

knowledge	gained	by	a	judge	in	a	prior	or	related	court	proceeding,	including	

impressions	 of	 a	 litigant’s	 personal	 history	 or	 credibility,	 are	 not	 sufficient	

grounds	to	recuse	a	judge	in	a	subsequent	matter.”		In	re	Nadeau,	2018	ME	18,	

¶	15,	178	A.3d	495.		Absent	a	showing	that	the	trial	judge	in	this	case	could	not	

be	 impartial,	 or	 reasonably	 be	 seen	 to	 be	 impartial,	 because	 of	 particular	

information	he	had	learned	in	the	criminal	matter,	the	 mother’s	“mere	belief	

that	 [the]	 judge	 might	 not	 be	 completely	 impartial	 is	 insufficient	 to	 warrant	

recusal.”		Atwood,	2010	ME	12,	¶	21,	988	A.2d	981	(quotation	marks	omitted).		

Because	 the	 mother’s	 argument	 rests	 on	 an	 incorrect	 assertion	 that	 the	 trial	

judge	in	this	case	was	required	to	recuse	solely	because	he	also	oversaw	her	

case	in	the	domestic	violence	docket,	she	has	not	demonstrated	that	her	counsel	

was	deficient	in	failing	to	seek	recusal	on	that	ground	and	therefore	has	“failed	

to	 make	 a	 prima	 facie	 showing	 of	 ineffective	 assistance	 of	 counsel	 as	 is	
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required.”4	 	 In	 re	 Child	 of	 Kimberlee	 C.,	 2018	ME	 134,	 ¶	 6,	 194	 A.3d	 925;	

see	In	re	Tyrel	L.,	2017	ME	212,	¶	8,	172	A.3d	916.	

B.	      Factual	Findings	

	        [¶5]		The	mother	next	asserts	that	her	counsel	was	ineffective	in	failing	

to	move	for	further	findings	because	(1)	the	court’s	findings,	largely	adopting	

those	 proposed	 by	 the	 Department,	 demonstrate	 that	 it	 did	 not	 exercise	

independent	 judgment	 in	 making	 its	 findings;	 and	 (2)	certain	 of	 the	 court’s	

findings	were	not	supported	by	the	record.	

	        [¶6]		We	have	said	that	“[a]lthough	a	verbatim	adoption	of	the	language	

of	 a	 proposed	 order	 or	 an	 adoption	 absent	 material	 change	 is	 disfavored	

because	 it	 would	 suggest	 that	 the	 court	 has	 not	 applied	 its	 independent	

judgment	in	making	its	findings	and	conclusions,	courts	may	properly	request	

and	consider	proposed	orders	from	parties	in	crafting	an	order.”		In	re	Zoey	H.,	

2017	ME	 159,	 ¶	 6,	 167	 A.3d	 1260	 (alteration	 and	 quotation	 marks	 omitted);	

see	In	re	Marpheen	C.,	2002	 ME	170,	¶	7,	812	A.2d	972	(“[W]e	recognize	that	

fact-finding	can	be	aided	by	parties	submitting	and	trial	courts	considering	and	

utilizing,	where	appropriate,	draft	findings	of	fact	offered	by	either	side.		The	



     4		The	mother	has	filed	the	affidavit	required	before	we	will	review	the	existing	record	to	see	if	it	

supports	a	prima	facie	claim	of	ineffective	assistance	of	counsel.		See	In	re	Tyrel	L.,	2017	ME	212,	¶	8,	
172	A.3d	916.	
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key	question	is	whether	the	court	findings	reflect	the	application	of	judgment	

by	the	court,	and	not	simply	one	of	the	parties.”).	

	     [¶7]		Here,	the	court	requested	and	received	proposed	findings	from	both	

parties.	 	 Although	 the	 court	 adopted	 most	 of	 the	 Department’s	 proposed	

findings	 verbatim,	 we	 are	 satisfied	 that	 the	 alterations	 in	 the	 court’s	

termination	 order—most	 significantly	 the	 credibility	 determinations	 it	 made	

concerning	 particular	 witnesses	 and	 the	 mother	 herself—demonstrate	 “that	

the	judgment	is	the	result	of	the	application	of	independent	judicial	thought	to	

the	 process	 of	 making	 fact-findings	 and	 conclusions.”	 	 In	 re	 Zoey	 H.,	

2017	ME	159,	¶	6,	167	A.3d	1260	(alteration	and	quotation	marks	omitted).	

	     [¶8]		The	mother	also	contends	that	her	hearing	counsel	was	ineffective	

in	failing	to	challenge	certain	findings	the	court	made	that	were	unsupported	

by	the	record.		She	does	not	argue	that	the	evidence	as	a	whole	was	otherwise	

insufficient	to	support	the	court’s	judgment—stating	that	“[s]ufficiency	of	the	

evidence	isn’t	the	point”—but	rather	highlights	the	unsupported	findings	as	an	

indication	that	her	counsel	was	ineffective	in	failing	to	contest	them	and	that	

the	court	failed	to	exercise	independent	scrutiny	when	it	accepted	them.		If	the	

court	adopted	some	findings	without	record	support,	the	mother	reasons,	then	

all	of	its	findings	are	called	into	question.	
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	          [¶9]	 	 Here,	 contrary	 to	 the	 mother’s	 contention,	 the	 findings	 that	 she	

identifies	have	some	record	support;	beyond	that,	the	weight	to	be	 accorded	

them	was	within	the	province	of	the	trial	court	as	fact-finder.5		See	In	re	Child	of	

Kimberlee	C.,	2018	ME	134,	¶	5,	194	A.3d	925	(“We	review	the	District	Court’s	

findings	of	fact	for	clear	error.		Deference	is	paid	to	the	District	Court’s	superior	

perspective	for	evaluating	the	weight	and	credibility	of	evidence.”		(alteration,	

citation,	 and	 quotation	 marks	 omitted)).	 	 We	 therefore	 conclude	 that	 the	

absence	of	a	motion	for	further	findings	does	not	make	out	a	prima	facie	case	

of	ineffective	assistance	on	the	part	of	the	mother’s	hearing	counsel.	

C.	        Credibility	Determination	

	          [¶10]	 	 Finally,	 the	 mother	 argues	 that	 the	 trial	 court	 made	 an	 adverse	

credibility	 determination	 concerning	 one	 of	 her	 witnesses	 after	 taking	


      5	 	 The	 mother	 faults	 two	 substantive,	 detailed	 findings	 that	 were	 apparently	 drawn	 from	 the	

Department’s	 termination	 petitions.	 	 Although	 she	 is	 correct	 in	 asserting	 that	 neither	 has	 record	
support	for	all	of	its	details,	their	essence	is	supported.		Concerning	the	court’s	finding	regarding	the	
mother’s	 medication	 management	 compliance,	 the	 caseworker	 testified	 that	 a	 note	 in	 the	
Department’s	file	indicated	that	the	provider	had	requested	that	the	mother	report	to	him	within	six	
weeks	due	to	a	positive	screen,	and	the	caseworker	did	not	believe	that	she	had	done	so.		Concerning	
a	finding	that	in	November	2017	the	mother	was	arrested	“following	a	domestic	violence	incident	
where	 she	 was	 found	 to	 have	 been	 the	 perpetrator”—which	 could	 be	 read	 to	 mean	 that	 the	 law	
enforcement	officer	reached	that	conclusion,	leading	to	the	mother’s	arrest—the	guardian	ad	litem’s	
report	referenced	the	incident	and	the	mother	admitted	that	it	occurred,	although	she	denied	that	
she	was	the	aggressor.		See	In	re	Child	of	Troy	C.,	2018	ME	150,	¶	9,	196	A.3d	452	(“Determinations	
regarding	 the	 weight	 and	 credibility	 to	 be	 assigned	 to	 evidence	 are	 squarely	 within	 the	 court’s	
province	 as	 fact-finder.”).	 	 We	 conclude	 that	 given	 the	 court’s	 termination	 judgment	 viewed	 as	 a	
whole,	 the	 factual	 errors	 are	 harmless.	 	 See	 In	 re	 Child	 of	 Ronald	 W.,	 2018	 ME	 107,	 ¶	 7	 n.2,	
190	A.3d	1029	(“A	factual	error	in	a	child	protection	order	is	harmless	if	it	is	highly	probable	that	the	
error	 did	 not	 prejudice	 the	 parents	 or	 contribute	 to	 the	 result	 in	 the	 case.”	 (quotation	 marks	
omitted)).	
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improper	 judicial	 notice	 of	 two	 other	 child	 protective	 cases	 in	 which	 the	

witness	 had	 been	 involved.	 	 When	 the	 Department	 requested	 that	 the	 court	

judicially	notice	the	unrelated	matters	at	the	hearing—a	request	to	which	the	

mother	 did	 not	 object—the	 court	 gave	 no	 indication	 that	 it	 would	 do	 so;	 its	

termination	judgment	did	not	list	the	matters	among	those	that	it	was	noticing,	

and	 we	 therefore	 conclude	 that	 the	 court	 did	 not	 rely	 on	 that	 evidence	 in	

support	 of	 its	 termination	 determination,	 see	 M.R.	 Civ.	 P.	 52(a);	 and	 the	

judgment	 did	 not	 discuss	 the	 witness,	 either	 favorably	 or	 unfavorably.		

Consequently,	 there	 is	 no	 error	 on	 this	 record.	 	 See	 In	re	Child	of	 Kaysean	M.,	

2018	ME	156,	¶	8,	---	A.3d	---	(stating	that	when	a	party	“objects	to	.	.	.	evidence	

for	 the	 first	 time	 on	 appeal,	 we	 apply	 the	 obvious	 error	 standard	 of	 review”	

(alteration	and	quotation	marks	omitted)).	

         The	entry	is:	

                            Judgment	affirmed.	
	
	      	     	      	     	    	
	
Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Berwick,	for	appellant	mother	
	
Janet	T.	Mills,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	
of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	
Services	
	
Skowhegan	District	Court	docket	numbers	PC-2017-20,	-49,	-50,	and	-52	
FOR	CLERK	REFERENCE	ONLY	
