MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision:    2015 ME 138
Docket:      Cum-14-131
Submitted
  On Briefs: June 2, 2015
Decided:     October 29, 2015

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



                                     IN RE M.P.

SAUFLEY, C.J.

         [¶1] This appeal requires us to identify a process by which a parent may

challenge a judgment terminating parental rights based on ineffective assistance of

counsel. The mother of M.P. appeals from a judgment entered in the District Court

(Portland, Powers, J.) terminating her parental rights pursuant to 22 M.R.S.

§ 4055(1) (2014) and denying her motion for relief from judgment pursuant to

M.R. Civ. P. 60(b)(6) based on her claim of ineffective assistance of counsel. In

addition to challenging the judgment terminating her parental rights, the mother

argues that she was denied due process because she was not provided with the

effective assistance of counsel and was not allowed to present witnesses’ testimony

at the hearing on the Rule 60(b)(6) motion. We now address the process to be

employed for raising ineffective assistance claims in termination of parental rights

matters, adopt a standard modeled after Strickland v. Washington, 466 U.S. 668

(1984), and affirm the judgment.
2

                                        I. BACKGROUND

A.       Factual Findings

         [¶2] Following a hearing on a petition filed by the Department of Health

and Human Services to terminate the mother’s parental rights to her daughter, the

court found the following facts by clear and convincing evidence, and the findings

are supported by competent evidence in the record.1 See In re Thomas D., 2004

ME 104, ¶ 21, 854 A.2d 195. When M.P. was born in December 2011, personnel

at Maine Medical Center contacted the Department regarding the mother’s

inability to meet the child’s basic needs and to remember instructions that were

given to her. In January 2012, the Department filed a petition for a child protection

order, and M.P. was placed with her mother’s aunt.

         [¶3] The mother has cognitive limitations and has suffered from anxiety and

depression. From March 2012 to October 2012, the mother had visits with M.P.

twice a week. During the visits, the mother needed a lot of reminding about how

to care for M.P., and she was not consistent in her care.

         [¶4]   In October 2012, the mother and M.P. entered the Mary’s Place

residential parenting program. While at Mary’s Place from October 2012 to June

     1
      In April 2012, the mother agreed to an order finding jeopardy based on the “significant domestic
violence in her relationship with the father, [her] inability to protect the child, . . . need of parenting
education, and concerns about cognitive limitations that compromise the ability to safely care for the very
young and vulnerable child.” The jeopardy order required the mother to participate in the Child Abuse
and Neglect Evaluation Program, individual therapy, parenting education, and a domestic violence group.
                                                                                3

2013, the mother struggled to understand M.P.’s developmental needs and to apply

the advice that she was given to different situations. The mother had difficultly

multi-tasking and there continued to be safety concerns; sometimes the mother

would confine M.P. too long in her crib or highchair as a way of accomplishing

other tasks without having to worry about her.

      [¶5] When the mother left Mary’s Place with M.P. after seven months of

residential on-site parenting training and treatment, she still needed regular

repetition and continued in-home support. Once back in her home, the mother was

involved in the Spurwink Family Reunification Program for four to ten hours

weekly, and she received ten to twenty hours per week of independent living skills

services through Merrymeeting Behavioral Health.

      [¶6]   During the several months that the mother was involved in the

Program, staff had to repeatedly address safety issues with the mother; she needed

regular prompting and had trouble supervising M.P., who was by then an active

toddler. After a team meeting in August 2013, the Program’s staff decided to end

its services for the mother and M.P. The team agreed that the mother needed

support in a residential care program, which was no longer available. The mother

was unable to progress to the parent education part of the Program because of

ongoing safety concerns.
4

         [¶7] After the Program ended, M.P. returned to living with her mother’s

aunt, and biweekly visits resumed with the mother. The mother was still not

consistent in her care during visits.

B.       Termination Hearing

         [¶8] After a year of intensive services, including the residential parenting

program at Mary’s Place, the Department filed a petition for termination of the

mother’s parental rights on October 30, 2013.2 The termination petition asserted

that, although the mother had consistently participated in all reunification services,

“[h]er intellectual limitations are preventing [her] from having the ability to

comprehend, understand and consistently implement the parenting skills, to be

pro-active in anticipating safety issues and to manage the ongoing changes related

to her child’s overall development.” The termination hearing was held in February

2014. The Department presented testimony from six witnesses: a psychologist

who conducted an evaluation for the Child Abuse and Neglect Evaluation

Program,3 a social worker from Mary’s Place, a case management worker from

Mary’s Place, a visit supervisor, a case management supervisor with Spurwink’s

Family Reunification Program, and M.P.’s caseworker from the Department. The
     2
     The Department also petitioned for termination of M.P.’s father’s parental rights. The father did not
attend the termination hearing, and the court terminated the father’s parental rights on March 13, 2014.
See 22 M.R.S. § 4055(1)(A)(1)(a), (B)(2) (2014). The father did not appeal from that judgment.
     3
     At the time of the hearing, the Child Abuse and Neglect Evaluation Program had been dissolved and
was replaced by the Court Ordered Diagnostic Evaluation (CODE) program.
                                                                                  5

mother testified, but her attorney presented no other witnesses on her behalf. The

guardian ad litem (GAL) also testified, and the court took judicial notice of all

GAL reports.

      [¶9] The mother was twenty-five years old at the time of the termination

hearing and had recently obtained her high school diploma. She was residing in

Portland in an apartment and regularly engaging in services. She was seeing a

therapist weekly and taking anxiety medication; she was having panic attacks at

times. The mother admitted that it takes her longer than normal to “get it,” but she

feels that she can care for M.P. with support from daycare and friends.

      [¶10] At the hearing, the GAL opined that, although the mother had made a

good faith effort to reunify, she still lacked the ability to meet the safety and

developmental needs of M.P., she could not seem to apply the skills she had been

taught to different circumstances, and she needed regular repetition of model

parenting skills. The court found the GAL’s opinion credible.

       [¶11]   The District Court terminated the mother’s parental rights in a

judgment entered on March 13, 2014. The court found that, though not unwilling,

the mother is unable 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). The court also found that termination is in M.P.’s best
6

interest. See 22 M.R.S. § 4055(1)(B)(2)(a). The mother timely appealed from the

termination judgment.

C.    Motion for Relief from Judgment Pursuant to M.R. Civ. P. 60(b)(6)

      [¶12] While the appeal was pending, on June 17, 2014, the mother filed a

motion for remand claiming that she had been denied her right to due process at the

termination hearing based on ineffective assistance of counsel. By order dated

June 18, we granted the mother’s motion, stayed her pending appeal, and remanded

the matter to the District Court to permit the mother to file, and the District Court

to act on, a motion for relief from judgment. On June 25, 2014, the mother moved

for relief from judgment pursuant to M.R. Civ. P. 60(b)(6). In her motion, the

mother asserted, among other things, that her attorney had failed to call or

subpoena witnesses who would have offered favorable testimony regarding the

mother’s strengths and ability to parent M.P., and had neglected to prepare her to

testify on her own behalf. Attached to the motion were affidavits from the mother,

the mother’s counselor, the mother’s teacher at Portland Adult Education, and a

close friend. The mother requested an evidentiary hearing to call witnesses on her

behalf and present her own prepared testimony.

      [¶13] At a trial management conference, the court made it clear that the

hearing on the motion would not be an opportunity to relitigate the termination

case. Instead, the court indicated that it would allow the mother and the mother’s
                                                                                    7

former attorney to testify and would also consider the affidavits submitted with the

motion.

      [¶14] The hearing on the motion for relief from judgment was held on

August 13, 2014. Because the process employed and the evidence presented to the

court at the hearing are relevant to our due process analysis on appeal, we describe

the proceedings in further detail: The mother testified at the hearing and described

her relationship with her former attorney. She also testified that her counselor, her

teacher, and her friend would have testified that she was a hard-working student,

loved her daughter very much, and was dedicated to bettering herself.             The

mother’s former attorney testified that she had represented parents in child

protection matters for five years, but she had never prevailed on behalf of a parent

in a termination proceeding. She testified that she had attended monthly team

meetings, met separately with the mother multiple times in person, and made

phone calls to the mother and to service providers before the termination hearing.

She described her trial strategy as “pok[ing] holes in the State’s case.” Further, she

testified that she had spoken to some of the witnesses the mother was now

claiming should have been called at the termination hearing and decided that their

testimony could not address the Department’s continuing safety concerns. The

attorney testified that she was not told about the mother’s teacher and that she had
8

only met the mother’s friend a week before the trial and did not want to risk

putting someone she had just met on the stand.

      [¶15] After hearing from the mother and the mother’s former attorney, and

considering affidavits from other potential witnesses, the court denied the mother’s

motion for relief from judgment on August 20, 2014. Guided by the method by

which ineffective assistance of counsel claims are dealt with in the criminal

context, the court found that the mother had failed to prove that her former

attorney’s performance was “outside the normal or typical range of trial work in

termination cases.” The court also found that, “despite the mother’s desires and

affection for [her daughter],” there was “considerable and persuasive” evidence

supporting termination and that the other witnesses would not have made any

appreciable difference in the evidence:     “It is highly unlikely that additional

testimony about [the mother’s] educational achievement, love for her child, or

condition of her home would affect the court’s conclusions that supported

termination.” The court further found that, although the mother’s attorney could

have approached preparing for the termination hearing differently, she was not

required to do so and did not fail in her obligations to competently represent the

mother before or during trial. Ultimately, the court found that the attorney’s

“performance did not cause actual prejudice to [the mother].”          The mother

appealed. See 22 M.R.S. § 4006 (2014); M.R. App. P. 2.
                                                                                   9

                                 II. DISCUSSION

      [¶16] We now review both the mother’s original appeal from the judgment

terminating her parental rights and the court’s ruling on the Rule 60(b) motion.

Regarding the initial judgment, there is competent evidence in the record to

support the court’s finding, by clear and convincing evidence, of at least one

ground of parental unfitness. See In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d

195. Moreover, 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 In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297.

      [¶17] Regarding the court’s judgment denying her motion for relief based

on ineffective assistance of counsel pursuant to M.R. Civ. P. 60(b)(6), the mother

argues that the court denied her due process by not allowing her to call witnesses to

testify at the hearing. There exists no statute or rule explicitly addressing the

process by which a parent may raise a claim of ineffective assistance of counsel in

a termination of parental rights proceeding or the standard that a court should apply

when making such a determination.        Accordingly, we address the applicable

standard and the mother’s due process argument.

A.    Process to Raise a Claim of Ineffective Assistance of Counsel

      [¶18] We have not yet had the opportunity to opine on the best procedural

vehicle for raising a claim of ineffective assistance of counsel in a termination of
10

parental rights proceeding.    To ensure the prompt and final determination of

petitions to terminate parental rights, many jurisdictions require that these claims

be raised on direct appeal. See Susan Calkins, Ineffective Assistance of Counsel in

Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J. App.

Prac. & Process 179, 200 (2004) (“The most common vehicle for raising an

ineffectiveness claim in a parental-termination case is the direct appeal of the

termination order.”); see also State ex rel. Juvenile Dep’t of Multnomah Cty. v.

Geist, 796 P.2d 1193, 1201 (Or. 1990) (“Because of the importance of expeditious

resolution of termination proceedings, and absent statutes providing otherwise, we

hold that any challenges to the adequacy of appointed trial counsel in such

proceedings must be reviewed on direct appeal.”); In re RGB, 229 P.3d 1066,

1085-86 (Haw. 2010) (collecting cases). Other state courts allow parents to raise

ineffective assistance of counsel in a petition for a writ of habeas corpus, see In re

Paul W., 60 Cal. Rptr. 3d 329, 333 (Ct. App. 2007), or by a motion made under

rules similar to M.R. Civ. P. 60(b), see Ex parte E.D., 777 So. 2d 113, 116 (Ala.

2000).

      [¶19] To promote the swift resolution of ineffectiveness claims, and in the

absence of a statutorily created process, we now hold that a parent may raise an

ineffective assistance of counsel claim in a direct appeal from an order terminating

his or her parental rights if there are no new facts that the parent seeks to offer in
                                                                                                           11

support of the claim. That is, a direct appeal from an order terminating a parent’s

parental rights may include a claim that the parent’s attorney provided ineffective

assistance when the record is sufficiently well developed to permit a fair evaluation

of a parent’s claim.

        [¶20] We anticipate, however, that there may be circumstances in which the

record does not illuminate the basis for the challenged acts or omissions of the

parent’s counsel. In that event, the parent must promptly move for relief from a

judgment terminating his or her parental rights pursuant to M.R. Civ. P. 60(b)(6) to

raise a claim of ineffective assistance of counsel. The motion for relief from

judgment should be filed no later than twenty-one days after the expiration of the

period for appealing the underlying judgment.4 After a hearing before the trial

court, if the parent’s Rule 60(b)(6) motion is denied, the trial court’s findings will

amplify the record and provide the necessary context should the parent decide to

pursue an appeal of that decision along with the appeal of the underlying judgment

terminating parental rights—as has occurred here.



   4
       In order to ensure that this time frame works, the District Court must ensure that parents appealing
from a termination order who need new counsel on appeal are assigned new counsel immediately. With
that process, this time frame should, in most circumstances, allow for new counsel to meet with the parent
and obtain the information necessary to raise the claim in the rare instances where it is appropriate. We
need not now determine whether, in exceptional and unusual circumstances, a parent may move for relief
pursuant to M.R. Civ. P. 60(b)(6) outside of this period. In the absence of statutory guidance, we leave to
future development the potential that, after balancing the children’s interests with the parent’s interests, a
trial court may act on such a motion.
12

         [¶21] To bring a claim of ineffective assistance of counsel, either on direct

appeal or by way of a Rule 60(b)(6) motion, the parent making the claim must

submit a signed and sworn affidavit stating, with specificity, the basis for the

claim.5 In addition, the parent’s affidavit accompanying a Rule 60(b)(6) motion

must also be accompanied by 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 deficient and that the deficiency affected

the fairness of the proceeding. 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 asserting the ineffective assistance

of counsel must be denied.

B.       The Applicable Standard on an Ineffective Assistance of Counsel Claim

         [¶22] As the trial court correctly noted, we have not yet addressed the

standard that will apply in assessing a parent’s claim of ineffective assistance of

counsel in termination of parental rights proceedings. See In re S.P., 2013 ME 81,

¶ 10 n.4, 76 A.3d 390. Courts in other jurisdictions that recognize a parent’s right



     5
      When the claim of ineffective assistance of counsel is made on direct appeal, the affidavit of the
parent will not assert facts outside the trial record but will affirmatively state the parent’s intention to
claim that trial counsel was ineffective as demonstrated by that record.
                                                                                    13

to the effective assistance of counsel in termination proceedings have generally

applied one of two very similar standards.

       [¶23] The first is the same standard used in criminal cases, which was first

announced in Strickland v. Washington, 466 U.S. 668. The Strickland standard is a

two-part test for determining ineffectiveness in the criminal context:

       First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious
       that counsel was not functioning as the “counsel” guaranteed the
       defendant by the Sixth Amendment. Second, the defendant must
       show that the deficient performance prejudiced the defense. This
       requires showing that counsel’s errors were so serious as to deprive
       the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. “[T]he performance inquiry must be whether counsel’s assistance was

reasonable considering all the circumstances.”        Id. at 688.   “Because of the

difficulties inherent in making [such an] evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance . . . .” Id. at 689.

       [¶24]   The other standard used to address ineffectiveness claims is the

“fundamental fairness” standard announced in Geist, 796 P.2d at 1203.             The

fundamental fairness standard is similar to the Strickland standard; it requires, for a

parent’s challenge to succeed, that a parent demonstrate that appointed counsel

failed to “exercise professional skill and judgment” and that the attorney’s
14

“inadequacy prejudiced [the parent’s] cause to the extent that [the parent] was

denied a fair trial.” Id. at 1203-04.

         [¶25] Both the Strickland standard and the fundamental fairness standard

require that a parent demonstrate an attorney’s inadequate performance and some

form of prejudice. The majority of state courts confronting this issue have adopted

the Strickland standard. See, e.g., Jones v. Ark. Dep’t of Human Servs., 205

S.W.3d 778, 794 (Ark. 2005); People ex rel. C.H., 166 P.3d 288, 290-91 (Colo.

App. 2007); In re R.E.S., 978 A.2d 182, 191 (D.C. 2009); In re S.N.H., 685 S.E.2d

290, 298 (Ga. Ct. App. 2009); In re M.S., 115 S.W.3d 534, 545 (Tex. 2003); In re

J.R.G.F., 250 P.3d 1016, 1018 (Utah Ct. App. 2011); see also Calkins at 214-15 &

nn.180-188 (collecting cases). But see In re RGB, 229 P.3d at 1090; Baker v.

Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1039-41 (Ind. 2004).

         [¶26] We now adopt the Strickland standard to govern ineffective assistance

of counsel claims in termination of parental rights proceedings. Although we

recognize that this standard—developed through criminal law proceedings—may

have to be tailored to termination of parental rights proceedings in some respects,

the deprivation of parental rights is in many ways similar to the deprivation of

liberty interests at stake in criminal cases.6 The Strickland standard is known to

     6
      Although Strickland was a death penalty case, the standard announced therein has been applied in
cases that involve only incarceration. See Strickland, 466 U.S. at 687; see, e.g., Manley v. State, 2015 ME
117, ¶¶ 3, 11-18, --- A.3d ---.
                                                                                                       15

the bar and the bench, and Strickland carries with it a developing body of case law,

which will aid courts in the efficient and timely resolution of such claims.7

Moreover, the importance of finality in termination proceedings supports the use of

the Strickland standard. A more “intrusive post-trial inquiry” could “encourage the

proliferation of ineffectiveness challenges,” Strickland, 466 U.S. at 690, and

possibly delay the permanency that is necessary to stabilize a child’s placement in

a safe environment.

        [¶27]     Thus, a parent claiming ineffective assistance of counsel in a

termination proceeding may directly appeal from the judgment terminating her

parental rights if the record does not need to be supplemented to support her claim.

Otherwise, the parent must move promptly—ordinarily, within twenty-one days

after the expiration of the appeal period—for relief from judgment pursuant to

M.R. Civ. P. 60(b)(6). Regardless of which procedural route a parent takes to raise

an ineffective assistance of counsel claim, it is the parent’s burden to 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,”


   7
      For clarification of the components of the Strickland standard, see Theriault v. State, 2015 ME 137,
--- A.3d ---, certified on this date. Here, the court found both that the mother had failed to demonstrate
inadequate performance by counsel and that she had failed to prove prejudice. Thus, no remand for the
court to clarify its analysis of the prejudice prong is required. See id. ¶ 30.
16

Aldus v. State, 2000 ME 47, ¶ 12, 748 A.2d 463 (quotation marks omitted), 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,”

Strickland, 466 U.S. at 686.

C.    The Due Process Analysis

      [¶28] In the matter before us, although the mother did not move for relief

from judgment pursuant to Rule 60(b)(6) within twenty-one days after the

expiration of the appeal period, we nonetheless allowed a hearing on the motion

because we had not previously opined on this issue.

      [¶29] The trial court held the Rule 60(b)(6) hearing, the mother received

court-appointed counsel, and the mother had the opportunity to present evidence.

The mother now argues that the court denied her due process in that proceeding

when it declined to allow her to call additional witnesses at the hearing and instead

accepted testimony from the mother regarding what she believed the witnesses

would have testified to and considered the witnesses’ sworn affidavits.

      [¶30] “When due process is implicated, we review such procedural rulings

to determine whether the process struck a balance between competing concerns

that was fundamentally fair.” In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463

(quotation marks omitted). “‘The fundamental requirement of due process is the
                                                                                     17

opportunity to be heard at a meaningful time and in a meaningful manner.’” Id.

¶ 15 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation marks

omitted)). “It is a flexible concept that calls for such procedural protections as the

particular situation demands.” Id. (quotation marks omitted).

      [¶31] When analyzing whether a party was afforded the process that is due,

we balance the three factors articulated by the Supreme Court of the United States

in Mathews v. Eldridge, 424 U.S. 319:

      First, the private interest that will be affected by the official action;
      second, the risk of an erroneous deprivation of such interest through
      the procedures used, and the probable value, if any, of additional or
      substitute procedural safeguards; and finally, the Government’s
      interest, including the function involved and the fiscal and
      administrative burdens that the additional or substitute procedural
      requirement would entail.

Id. at 335.

      [¶32] The first and third Mathews factors—the parent’s interest and the

government’s interest—are well established and need little explication.            The

parent’s interest is significant because a parent has a statutory right to legal counsel

in child protection proceedings given the important liberty interests at stake, see

22 M.R.S. § 4005(2) (2014), and, at a termination hearing, the ineffective

assistance of counsel could significantly interfere with a parent’s “fundamental

right to parent [a] child and to maintain a parental relationship free from state

interference,” In re Cody T., 2009 ME 95, ¶ 25, 979 A.2d 81. As to the third
18

factor, the State has a significant interest in obtaining stability and permanency for

children within a reasonable time. See 22 M.R.S. §§ 4003(4), 4050(2) (2014).

      [¶33] We focus on the second Mathews factor, which requires us to consider

whether the procedures used by the court—and the court-imposed limitation on the

mother’s ability to call witnesses at the Rule 60(b)(6) hearing—posed a significant

risk that the mother would not be able to demonstrate her trial counsel’s deficiency

and resulting prejudice, which, pursuant to Strickland, is the necessary test for

proving that she was denied her right to effective counsel.

      [¶34] The process employed by the court at the Rule 60(b)(6) hearing was

thoughtful and well balanced.       Through the evidence presented by the live

testimony of the mother and her former attorney, and the affidavits of other

potential witnesses, the court was able to assess the quality of the evidence that the

mother claimed should have been offered at the termination hearing.            In this

regard, the court was able to determine both whether the mother’s former

attorney’s decision not to call these witnesses was outside what might be expected

“of an ordinary fallible attorney,” Aldus, 2000 ME 47, ¶ 16, 748 A.2d 463, and

whether the witnesses’ averments, together with the mother’s testimony about what

she believed those witnesses would have testified to, demonstrated that “counsel’s

errors were so serious as to deprive” the mother of “a fair trial, a trial whose result

is reliable,” Strickland, 466 U.S. at 687. Thus, the process employed by the court
                                                                                   19

created a low risk of an erroneous deprivation of the right to effective assistance of

counsel to protect the mother’s private liberty interest.

       [¶35] We do not suggest that a court should never allow sworn testimony in

addition to the affidavits.    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 in

not calling the witnesses and whether the absence of that evidence prejudiced the

mother. See Strickland, 466 U.S. at 687; Aldus, 2000 ME 47, ¶¶ 16, 20, 748 A.2d

463.

       [¶36]   Thus, when a parent promptly moves for relief from judgment

pursuant to M.R. Civ. P. 60(b)(6) based on ineffective assistance of counsel, it is

for the trial court to determine 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. See Mathews, 424 U.S. at 333-35. Such

a determination will necessarily call upon a trial court to tailor the process to the

facts and circumstances of each case.

       [¶37] After reviewing the Mathews v. Eldridge considerations, we conclude

that the procedures followed by the District Court on the mother’s motion for relief
20

from judgment were adequate to protect her liberty interest, while at the same time

protecting the State’s interest in promoting the child’s stability and permanency

without undue delay. No due process violation has been demonstrated on this

record.

                               III. CONCLUSION

      [¶38] Due process requires “the opportunity to be heard at a meaningful

time and in a meaningful manner.” Id. at 333 (quotation marks omitted). To

successfully and efficiently process a parent’s ineffective assistance of counsel

claim without undermining the Legislature’s stated purpose of “[p]romot[ing] 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), a parent may, when

appropriate, directly appeal from the judgment terminating her or his parental

rights asserting ineffective assistance of counsel. If it is necessary to supplement

the record before appealing from the judgment, a parent must move for relief from

judgment pursuant to M.R. Civ. P. 60(b)(6) within twenty-one days after the time

frame authorized for taking an appeal. Whether by commencing an appeal or by

filing a motion, the parent must support his or her claim of ineffective assistance

with one or more affidavits. When addressing a parent’s claim, courts will apply

the Strickland standard—modified as necessary to account for the differences

between criminal law and termination of parental rights proceedings—to determine
                                                                               21

whether a parent’s counsel’s performance at the termination proceeding was

deficient and whether such deficiency prejudiced the parent.

        [¶39]    On the adequate record before us, the court did not violate due

process by declining to allow the mother to call other witnesses at the

Rule 60(b)(6) hearing, see Mathews, 424 U.S. at 333-35, or abuse its discretion in

denying the mother’s motion for relief from judgment, see In re David H., 2009

ME 131, ¶ 41, 985 A.2d 490.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Henry I. Shanoski, Esq., Portland, 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



Portland District Court docket number PC-2012-03
FOR CLERK REFERENCE ONLY
