MAINE	SUPREME	JUDICIAL	COURT	                                                Reporter	of	Decisions	
Decision:	      2017	ME	182	
Docket:	        And-16-146	
Submitted	
    On	Briefs:	 July	19,	2017	
Decided:	       August	22,	2017	
	
Panel:	         SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	and	HJELM,	JJ.	
Majority:	      SAUFLEY,	C.J.,	and	MEAD	and	HJELM,	JJ.	
Concurrence/	
				Dissent:	 ALEXANDER	and	JABAR,	JJ.	
	
	
                                   IN	RE	EVELYN	A.	et	al.	
	
	
SAUFLEY,	C.J.	

       [¶1]	 	 Evelyn	 and	 Elijah	 A.	 are	 twins	 born	 in	 2013.	 	 Because	 the	 twins’	

parents	had	been	convicted,	in	2005,	of	the	assault	and	manslaughter	of	their	

twenty-one-month-old	 son,	 Nathaniel,	 the	 twins	 went	 from	 the	 hospital	 into	

foster	 care.	 	 They	 have	 remained	 with	 the	 same	 foster	 parents	 since	 their	

birth,	and	although	Evelyn	has	cerebral	palsy	that	affects	her	ability	to	walk,	

both	 children	 are	 otherwise	 healthy.	 	 The	 parents	 have	 never	 accepted	 the	

jury’s	 verdict	 finding	 the	 mother	 guilty	 of	 manslaughter	 or	 the	 separate	

verdict	 finding	 the	 father	 guilty	 of	 assault.	 	 They	 have	 testified	 that	 they	

believe	 that	 the	 scientific	 and	 medical	 communities	 have	 been	 wrong	 about	

the	cause	of	Nathaniel’s	death	and	the	system	of	justice	has	failed	them.			
2	

       [¶2]	 	 The	 matter	 comes	 before	 us	 in	 an	 unusual	 procedural	 posture.		

After	 a	 trial	 on	 a	 petition	 to	 terminate	 parental	 rights	 brought	 by	 the	

Department	 of	 Health	 and	 Human	 Services,	 the	 District	 Court	 (Lewiston,	

Dow,	J.)	 terminated	 both	 parents’	 parental	 rights	 to	 the	 twins.	 	 The	 parents	

filed	notices	of	appeal	and	moved	for	relief	from	the	judgment	of	termination	

and	months	later	moved	for	relief	from	the	court’s	initial	finding	of	jeopardy	

(Field,	 J.),	 all	 based	 on	 claims	 of	 ineffective	 assistance	 of	 counsel.	 	 After	 a	

hearing,	 the	 court	 concluded	 that	 trial	 counsel	 had	 been	 ineffective	 at	 the	

jeopardy	 stage	 and	 declined	 to	 make	 findings	 regarding	 counsel’s	

effectiveness	 in	 the	 termination	 proceeding.	 	 Based	 on	 the	 finding	 regarding	

the	 jeopardy	 proceeding,	 the	 court	 vacated	 the	 termination	 order	 and	

required	the	Department	to	negotiate	a	plan	to	provide	reunification	services	

to	 the	 parents.	 	 The	 Department	 appeals	 from	 the	 court’s	 judgment	 vacating	

the	termination	order.		

       [¶3]	 	 We	 conclude	 that	 the	 court	 erred	 in	 addressing	 the	 parents’	

untimely	 raised	 allegations	 that	 they	 had	 received	 ineffective	 assistance	 of	

counsel	at	the	jeopardy	stage,	in	ordering	further	reunification	efforts,	and	in	

declining	to	adjudicate	the	claim	of	ineffective	assistance	of	counsel	regarding	

the	 termination	 proceeding.	 	 Accordingly,	 we	 vacate	 the	 court’s	 judgment	
                                                                                                                     3	

granting	 the	 parents’	 motion	 for	 relief	 as	 it	 affects	 the	 original	 jeopardy	

determination.		We	also	clarify	the	process	for	applying	what	the	Legislature	

has	 called	 a	 “rebuttable	 presumption,”	 22	 M.R.S.	 §	 4055(1-A)	 (2016),1	 and	

remand	 to	 allow	 the	 court	 to	 determine	 whether	 to	 terminate	 the	 parents’	

parental	 rights	 by	 applying	 section	 4055(1-A)	 in	 a	 manner	 that	 is	 consistent	

with	due	process.		On	remand,	the	court	must	also,	as	necessary,	issue	findings	

and	 determinations	 regarding	 the	 parents’	 claim	 of	 ineffective	 assistance	 of	

counsel	at	the	termination	hearing.	

                                              I.		BACKGROUND	

         [¶4]	 	 The	 following	 facts	 are	 drawn	 from	 the	 court’s	 findings,	 all	 of	

which	 are	 supported	 by	 competent	 evidence	 in	 the	 record,	 and	 from	 the	

lengthy	procedural	record.		See	In	re	Gabriel	W.,	2017	ME	133,	¶	3,	---	A.3d	---.		

Evelyn	and	Elijah	are	twins	born	prematurely	in	October	2013.		Six	days	after	

they	were	born,	the	Department	petitioned	for	a	preliminary	protection	order	

on	 the	 ground	 that	 the	 twins’	 parents	 had	 been	 convicted	 of	 crimes	

perpetrated	against	their	first	child,	Nathaniel,	who	died	due	to	the	mother’s	

abuse	within	the	first	year	after	they	had	adopted	him.		Specifically,	in	2005,	


   1		The	Legislature’s	recent	amendment	to	22	M.R.S.	§	4055(1-A)	does	not	affect	the	analysis	of	

the	 law	 in	 this	 case.	 	 See	 P.L.	 2015,	 ch.	 360,	 §	 4	 (effective	 Oct.	 15,	 2015)	 (codified	 at	 22	 M.R.S.	
§	4055(1-A)(B)(11)	(2016)).	
4	

the	 mother	 had	 been	 convicted	 of	 manslaughter	 (Class	 A),	 17-A	 M.R.S.	

§	203(1)(A)	 (2016),	 see	 State	 v.	 Allen,	 2006	 ME	 20,	 ¶	 1,	 892	 A.2d	 447	

(affirming	 conviction),	 and	 the	 father	 had	 been	 convicted	 of	 assault	 of	 a	

person	under	the	age	of	six	(Class	C),	17-A	M.R.S.	§	207(1)(B)	(2016),	see	State	

v.	Allen,	2006	ME	21,	¶	1,	892	A.2d	456	(affirming	conviction).2		

          [¶5]		The	court	(Oram,	J.)	signed	an	order	of	preliminary	protection	on	

October	 9,	 2013,	 placing	 the	 twins	 in	 the	 custody	 of	 the	 Department.	 	 When	

the	 children	 were	 discharged	 from	 the	 neonatal	 intensive	 care	 unit	 in	

mid-November,	 they	 were	 placed	 in	 a	 foster	 home,	 where	 they	 have	 resided	

ever	since.			

          [¶6]	 	 The	 parents	 waived	 the	 right	 to	 a	 summary	 preliminary	 hearing.		

The	 court	 (Beliveau,	 J.)	 held	 a	 five-day	 contested	 jeopardy	 hearing	 on	

February	 25	 and	 26,	 March	 14,	 April	 30,	 and	 May	 9,	 2014.3	 	 See	 22	M.R.S.	

§	4035(1)	(2016).		The	parents	were	represented	by	counsel	throughout	the	

proceeding.	 	 At	 that	 hearing,	 the	 court	 heard	 specific	 evidence	 regarding	 the	

convictions	related	to	Nathaniel’s	death.		Notwithstanding	the	convictions,	the	


     2	 	 Because	 the	 statutes	 pursuant	 to	 which	 the	 parents	 were	 convicted	 have	 not	 been	 amended	

since	their	convictions,	we	cite	the	current	codification	of	those	statutes.	

     3		The	court	was	apparently	unable	to	hear	the	matter	in	a	single	week	and	had	to	schedule	this	

detailed	 hearing	 over	 four	 months	 because	 of	 the	 absence	 of	 block	 scheduling.	 	 That	 should	 not	
arise	as	a	problem	in	similar	cases	in	the	future.	
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court	 allowed	 the	 parents	 to	 offer	 evidence	 to	 challenge	 the	 cause	 of	

Nathaniel’s	death.		The	Department	presented	evidence	of	the	head	and	neck	

injuries	suffered	by	Nathaniel	while	he	was	in	his	mother’s	care;	the	resulting	

inter-cranial	 bleeding	 that	 was	 the	 immediate	 cause	 of	 death;	 the	 medical	

opinion	of	the	cause	of	death	that	had	been	presented	to	the	jury—violent	and	

repeated	 shaking	 of	 the	 child;	 and	 the	 parents’	 frustration	 with	 Nathaniel’s	

behavior	that	preceded	his	injuries.		The	parents	both	testified.		They	did	not	

accept	 responsibility	 for	 Nathaniel’s	 death,	 and	 they	 expressed	 their	 belief	

that	 his	 death	 was	 caused	 by	 some	 other	 undiagnosed	 medical	 problem,	

possibly	due	to	his	immunizations	or	a	seizure	or	metabolic	disorder.			

      [¶7]		The	court	entered	an	order	on	June	2,	2014,	finding	the	children	to	

be	in	jeopardy.		See	22	M.R.S.	§	4035(2)	(2016).		Although	the	Department	had	

not	 sought	 a	 finding	 of	 an	 aggravating	 factor,	 the	 court	 determined	 that	 an	

aggravating	factor	existed	as	to	each	parent	because	of	the	mother’s	criminal	

conviction	 of	 manslaughter,	 see	 22	 M.R.S.	 §	 4002(1-B)(B)(3)	 (2016);	 the	

father’s	felony	conviction	of	assault	on	a	child	under	the	age	of	six	resulting	in	

serious	bodily	injury,	see	22	M.R.S.	§	4002(1-B)(B)(5)	(2016);	and	the	father’s	

subjection	of	Nathaniel	to	“treatment	that	is	heinous	or	abhorrent	to	society,”	
6	

22	M.R.S.	§	4002(1-B)(A)	(2016),4	by	beating	the	child	with	a	wooden	spoon.		

The	 court	 specifically	 found	 that	 the	 mother	 is	 “unable	 to	 show	 remorse	 for	

her	actions”	and	“unable	to	take	responsibility	for	her	actions.”			

         [¶8]		The	court	found	that,	since	her	conviction,	the	mother		

         has	 not	 once	 admitted	 to	 any	 wrongdoing.	 	 She,	 along	 with	 [the	
         father],	 maintains	 that	 Nathaniel’s	 death	 was	 caused	 by	 an	
         untreated	medical	condition.		She	does	admit	that	her	actions	on	
         that	 night	 could	 have	 made	 Nathaniel’s	 medical	 condition	 worse,	
         thereby	leading	to	his	death,	but	she	still	feels	she	has	committed	
         no	 wrong.	 	 In	 counseling	 she	 .	 .	 .	 focused	 more	 on	 her	 anger	
         towards	 the	 legal	 system	 than	 her	 grief	 for	 the	 loss	 of	 Nathaniel.		
         [The	mother]	was	Nathaniel’s	caregiver	on	the	night	he	died,	and	
         she	 has	 yet	 to	 provide	 a	 consistent	 and	 plausible	 story	 for	
         Nathaniel’s	death.			
         	
         [¶9]	 	 The	 court	 ordered	 the	 Department	 to	 cease	 reunification	 efforts	

with	 the	 parents	 based	 on	 these	 aggravating	 factors.	 	 See	 22	 M.R.S.	

§§	4036(1)(G-2),	 4041(2)(A-2)(1)	 (2016).	 	 The	 parents	 appealed	 from	 the	

jeopardy	order.		See	In	re	E.A.,	2015	ME	37,	¶	6,	114	A.3d	207.		We	affirmed	the	

court’s	order	as	to	both	parents.		See	id.	¶	1.	

         [¶10]	 	 The	 parents	 did	 not	 request	 any	 services	 to	 alleviate	 parenting	

deficits,	 and	 they	 continued	 to	 maintain	 that	 they	 presented	 no	 risk	 to	 the	



     4		Although	22	M.R.S.	§	4002(1-B)(A)	was	recently	amended	to	include	additional	specific	crimes	

giving	rise	to	an	aggravating	factor,	the	language	that	applies	here	has	not	changed,	and	we	cite	the	
current	 statute.	 	 See	 P.L.	 2015,	 ch.	 360,	 §	 3	 (effective	 Oct.	 15,	 2015)	 (codified	 at	 22	 M.R.S.	
§	4002(1-B)(A)(1)	(2016)).	
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twins.	 	 On	 July	 1,	 2014,	 the	 Department	 petitioned	 for	 termination	 of	 the	

parents’	 parental	 rights.	 	 More	 than	 a	 year	 later,	 the	 court	 (Dow,	 J.)	 held	 a	

hearing	on	October	29	and	30,	2015,	and	entered	a	judgment	terminating	both	

parents’	 parental	 rights	 to	 the	 children	 on	 February	 23,	 2016.	 	 The	 court	

considered	 the	 evidence	 that	 the	 parents	 offered	 to	 rebut	 the	 statutory	

presumption	that	they	are	“unwilling	or	unable	to	protect	the	child[ren]	from	

jeopardy	and	these	circumstances	are	unlikely	to	change	within	a	time	which	

is	 reasonably	 calculated	 to	 meet	 the	 child[ren]’s	 needs”—a	 presumption	 the	

court	 found	 arose	 from	 the	 mother’s	 conviction	 and	 the	 father’s	 conduct	

toward	their	first	child	that	was	“heinous	or	abhorrent	to	society.”		22	M.R.S.	

§	4055(1-A)(A),	(B)(3).5		The	court	found	that	the	parents	“ha[d]	the	burden	

to	rebut	the	presumption	of	parental	unfitness”	and	that	they	“fail[ed]	to	meet	

that	 burden.”	 	 The	 court	 found,	 by	 clear	 and	 convincing	 evidence,	 that	 the	

parents	 were	 unwilling	 or	 unable	 to	 protect	 the	 children	 from	 jeopardy	 and	

that	 those	 circumstances	 were	 unlikely	 to	 change	 within	 a	 time	 reasonably	

calculated	to	meet	the	children’s	needs,	and	it	determined	that	the	children’s	




   5		Unlike	the	jeopardy	statute,	the	termination	statute	does	not	include	felony	assault	resulting	in	

serious	 bodily	 injury	 as	 a	 fact	 that	 gives	 rise	 to	 the	 “presumption.”	 	 Compare	 22	 M.R.S.	
§§	4002(1-B)(B)(5),	4036(1)(G-2)	(2016),	with	22	M.R.S.	§	4055(1-A)(B)	(2016).	
8	

best	interests	would	be	served	by	termination	of	the	parents’	parental	rights.		

See	22	M.R.S.	§	4055(1)(B)(2)(a),	(b)(i)	(2016).			

      [¶11]		The	parents	timely	appealed	from	the	judgment,	and	each	moved	

for	an	enlargement	of	time	to	file	a	motion	for	relief	from	judgment.		See	M.R.	

Civ.	P.	60(b).		The	court	granted	the	parents’	motions	for	enlargement	of	time,	

ultimately	 allowing	 the	 parents	 until	 June	16,	 2016,	 almost	 four	 months	

following	 the	 entry	 of	 the	 termination	 order,	 to	 file	 any	 Rule	 60(b)	 motions	

specifically	 related	 to	 allegations	 of	 ineffective	 assistance	 of	 counsel.	 	 With	

respect	to	the	parents’	pending	appeal,	we	directed	the	Clerk	of	the	Law	Court	

“to	withdraw	the	briefing	schedule	if,	and	only	if,	either	parent	files	a	motion	

in	the	District	Court	pursuant	to	M.R.	Civ.	P.	60(b)	on	or	before	June	16,	2016.”			

	     [¶12]		On	June	15,	2016,	the	parents	filed	a	joint	motion	for	relief	from	

the	 judgment	 terminating	 their	 parental	 rights.	 	 They	 alleged	 that	 they	

received	ineffective	assistance	of	counsel	at	the	termination	hearing,	and	they	

attached	affidavits	in	support	of	their	motion.		For	reasons	that	are	not	clear	

on	 the	 record,	 no	 immediate	 hearing	 was	 held	 on	 the	 motion	 for	 relief	 from	

judgment.	 	 Five	 months	 later,	 on	 November	 10,	 2016,	 the	 parents	 moved	 to	

amend	their	motion	to	add	allegations	of	ineffective	assistance	at	the	jeopardy	

stage.	 	 About	 one	 month	 later,	 the	 court	 held	 a	 hearing	 on	 the	 Rule	 60(b)	
                                                                                     9	

motions.	 	 On	 February	 17,	 2017,	 the	 court	 entered	 a	 judgment	 granting	 the	

motion	to	amend	the	motion	for	relief	from	judgment	and	finding	ineffective	

assistance	 at	 the	 jeopardy	 stage	 by	 both	 parents’	 counsel	 primarily	 due	 to	

what	 it	 concluded	 was	 insufficient	 advice	 regarding	 the	 parents’	 decision	

whether	 to	 consent	 to	 a	 finding	 of	 jeopardy	 to	 reduce	 their	 exposure	 to	 a	

potential	finding	of	an	aggravating	factor	and	a	cease	reunification	order.		See	

22	M.R.S.	 §§	4002(1-B)(A),	 (B)(3),	 (5),	 4036(1)(G-2),	 4041(2)(A-2)(1).	 	 The	

court	found	that	counsel’s	inaccurate	advice	affected	the	parents’	decisions	to	

reject	an	agreement	offered	by	the	Department	that,	if	accepted	by	the	court,	

would	not	have	included	an	aggravating	factor.		Although	the	parents	had	not	

sought	any	specific	services	other	than	increased	visitation,	the	court	ordered	

the	 Department	 to	 offer	 the	 same	 agreement	 to	 the	 parties	 and	 to	 negotiate	

with	 the	 parents	 and	 the	 guardian	 ad	 litem,	 in	 good	 faith,	 to	 create	 “a	

reunification	plan	likely	to	serve	the	children’s	best	interest.”			

	     [¶13]		The	Department	filed	a	notice	of	appeal	from	the	court’s	decision	

and	moved	for	reconsideration	and	for	findings	of	fact.		The	court	granted	the	

motion	for	findings	of	fact	in	part,	clarifying	that	the	jeopardy	order	was	not	

vacated:	“Jeopardy	has	not	been	alleviated.		The	jeopardy	order	was	properly	

entered	 on	 the	 trial	 evidence,	 appealed	 to	 and	 affirmed	 by	 the	 Law	 Court.”		
10	

Nonetheless,	the	court	also	found	that	“[t]he	result	of	the	remedy	ordered	by	

the	Court	in	the	February	17	judgment	would	likely	be	an	amended	jeopardy	

order.”	 	 The	 jeopardy	 order	 was	 therefore	 to	 remain	 in	 effect	 until	 replaced,	

but	the	termination	judgment	was	vacated	to	allow	for	additional	proceedings.		

We	now	consider	the	appeals	brought	by	the	parents	and	the	Department.	

                                   II.		DISCUSSION	

A.	   Final	Judgment	Rule	

	     [¶14]	 	 Preliminarily,	 we	 note	 that	 the	 matter	 before	 us	 does	 not,	 as	 it	

stands,	finally	dispose	of	the	case.		Although	we	would	ordinarily	dismiss	an	

appeal	from	an	interlocutory	decision,	we	apply	the	death	knell	exception	to	

the	final	judgment	rule	in	this	matter.		See	In	re	Bailey	M.,	2002	ME	12,	¶	7,	788	

A.2d	 590.	 	 “That	 exception	 allows	 a	 party	 to	 appeal	 an	 interlocutory	 order	

immediately	if	substantial	rights	of	that	party	will	be	irreparably	lost	if	review	

is	 delayed	 until	 final	 judgment.”	 	 Id.	 (alteration	 omitted)	 (quotation	 marks	

omitted).	 	 Here,	 because	 of	 the	 statutorily	 mandated	 priority	 given	 to	

establishing	permanency	in	child	protection	proceedings,	22	M.R.S.	§	4003(4)	

(2016),	the	previous	delay	in	reaching	the	claim	of	ineffectiveness	of	counsel,	

and	 the	 number	 of	 years	 that	 these	 children	 have	 been	 in	 foster	 care—fully	

three	and	a	half	years	now—the	resolution	of	the	issues	in	this	appeal	must	be	
                                                                                        11	

given	 priority	 to	 prevent	 extensive	 further	 proceedings	 that	 would	 have	 an	

“imminent,	concrete,	and	irreparable”	effect	on	the	lives	of	the	children.		In	re	

Bailey	M.,	2002	ME	12,	¶	7,	788	A.2d	590	(quotation	marks	omitted).	

B.	    Timeliness	of	Motion	to	Amend	Motion	for	Relief	from	Judgment	

	      [¶15]		The	Department	first	argues	that	the	court	abused	its	discretion	

in	 granting	 the	 parents’	 motion	 to	 amend	 their	 motion	 for	 relief	 from	 the	

judgment	terminating	their	parental	rights	because	the	motion	to	amend	was	

filed	 five	 months	 after	 the	 deadline	 established	 by	 the	 trial	 court	 and	 by	 us,	

and	the	parents	did	not	seek	leave	from	us	to	amend	their	motion.		See	M.R.	

App.	P.	3(b).		We	have	been	very	clear	in	describing	the	limited	timeframe	for	

raising	 an	 ineffective	 assistance	 claim	 after	 the	 entry	 of	 a	 judgment	

terminating	 a	 parent’s	 parental	 rights:	 “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.”		In	re	M.P.,	2015	ME	138,	¶	20,	

126	 A.3d	 718.	 	 The	 termination	 judgment,	 dated	 February	 22,	 2016,	 was	

entered	 on	 the	 docket	 the	 following	 day,	 February	 23,	 2016.	 	 Thus,	 the	

deadline	for	filing	a	motion	was	April	5,	2016—twenty-one	days	following	the	

expiration	of	the	twenty-one-day	appeal	period.		See	M.R.	App.	P.	2(b)(3).	
12	

       [¶16]	 	 Despite	 the	 urgency	 of	 the	 timeframes,	 the	 court	 granted	 a	

motion	to	enlarge	the	time	for	filing	a	motion	for	relief	and	enlarged	the	time	

to	 file	 motions	 to	 June	 16,	 2016—almost	 four	 months	 after	 the	 entry	 of	 the	

termination	 judgment.	 	 By	 order	 dated	 June	 3,	 2016,	 we	 directed	 that	 the	

briefing	schedule	for	the	parents’	pending	appeal	would	be	withdrawn	“if,	and	

only	 if,	 either	 parent	 file[d]	 a	 motion	 in	 the	 District	 Court	 pursuant	 to	 M.R.	

Civ.	P.	60(b)	 on	 or	 before	 June	16,	 2016.”	 	 The	 parents	 filed	 their	 motion	

alleging	 ineffective	 assistance	 of	 counsel	 at	 the	 termination	 hearing	 on	

June	15,	2016.			

	      [¶17]	 	 Again,	 for	 reasons	 that	 do	 not	 appear	 in	 the	 record,	 no	 hearing	

was	 immediately	 held	 on	 the	 parents’	 initial	 Rule	 60(b)	 motion.	 	 When	 no	

hearing	 had	 been	 held	 five	 months	 later,	 the	 parents	 moved	 to	 amend	 their	

motion	on	November	10,	2016,	to	include	additional	allegations	of	ineffective	

assistance	during	the	jeopardy	stage	of	the	proceeding	in	the	spring	of	2014.		

Although	 these	 additional	 grounds	 were	 presented	 far	 beyond	 the	

already-extended	 deadline,	 the	 court	 granted	 the	 motion	 to	 amend	 and	

entered	 its	 judgment	 on	 February	17,	 2017,	 based	 on	 the	 grounds	 raised	 in	

that	amended	motion.		
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	     [¶18]	 	 In	 a	 child	 protection	 proceeding,	 allowing	 amendments	 to	

motions	 for	 relief	 months	 after	 the	 established	 deadline	 should	 not	 be	

permitted	 except	 in	 the	 most	 extraordinary	 of	 circumstances.	 	 The	 State’s	

interest	 in	 finding	 permanency	 for	 the	 child	 within	 a	 reasonable	 time,	 see	

22	M.R.S.	 §	4003(4),	 makes	 child	 protection	 proceedings	 unique.	 	 See,	 e.g.,	

22	M.R.S.	§	4052(2-A)	(2016)	(providing	deadlines	for	the	Department	to	file	

termination	 petitions).	 	 Here,	 allowing	 an	 amendment	 of	 the	 motion	 five	

months	 after	 an	 already-extended	 deadline	 for	 filing	 a	 Rule	 60(b)	 motion	

undermined	 the	 statutory	 goal	 of	 permanency.	 	 See	 22	 M.R.S.	 §	4003(4).	 	 It	

also	 negatively	 affected	 the	 particular	 needs	 of	 the	 children	 in	 this	 matter,	

who	had,	by	the	time	the	parents	filed	the	motion	to	amend,	spent	three	years	

in	 foster	 care—nearly	 nine	 months	 of	 which	 were	 after	 the	 entry	 of	 the	

judgment	terminating	the	parents’	parental	rights.			

	     [¶19]	 	 Although	 we	 recognize	 the	 trial	 court’s	 goal	 of	 protecting	 the	

parents’	fundamental	right	to	effective	assistance	of	counsel,	see	generally	In	

re	M.P.,	2015	ME	138,	126	A.3d	718,		the	court	must	be	careful,	in	protecting	

that	 right,	 not	 to	 ignore	 the	 simultaneous	 interest	 of	 the	 State	 in	 promoting	

“the	 early	 establishment	 of	 permanent	 plans”	 for	 the	 children,	 22	 M.R.S.	

§	4003(4).	 	 Thus,	 assuming,	 without	 deciding,	 that	 a	 challenge	 to	 the	
14	

effectiveness	 of	 counsel	 at	 a	 jeopardy	 proceeding	 may	 be	 considered	 by	 the	

trial	court,	here	that	challenge	came	far	too	late.		To	be	clear,	we	have	never	

allowed,	 nor	 prohibited,	 a	 parent’s	 filing	 of	 a	 motion	 immediately	 after	 the	

entry	 of	 a	 jeopardy	 order	 to	 challenge	 the	 effectiveness	 of	 counsel	 at	 the	

jeopardy	 proceeding.	 	 Here,	 we	 address	 only	 the	 propriety	 of	 the	 parents’	

challenge	to	the	jeopardy	order	through	a	motion	that	they	filed	long	after	the	

jeopardy	 order	 was	 entered	 and	 months	 after	 the	 entry	 of	 a	 termination	

order.	 	 Because	 we	 conclude	 that	 the	 court	 abused	 its	 discretion	 in	 allowing	

the	late	motion	to	amend	the	Rule	60(b)	motion,	we	need	not,	in	this	area	of	

evolving	jurisprudence,	determine	whether	or	how	a	parent	may	challenge	a	

jeopardy	order	based	on	a	claim	of	ineffective	assistance	of	counsel.	

      [¶20]		In	addition,	because	the	court	will,	on	remand,	consider	a	claim	of	

ineffectiveness	of	counsel	at	the	termination	stage,	we	also	address	the	court’s	

reasoning	 regarding	 the	 substance	 of	 the	 alleged	 ineffectiveness	 at	 the	

jeopardy	 stage.	 	 In	 essence,	 the	 court	 determined	 that	 counsel	 should	 have	

provided	better	information	to	the	parents	about	the	option	of	agreeing	to	a	

jeopardy	finding	without	a	trial	and	without	a	finding	of	an	aggravating	factor,	

thereby	 obtaining	 a	 tactical	 advantage	 as	 the	 case	 progressed	 if	 the	 court	

accepted	 the	 agreement	 and	 entered	 an	 order	 without	 the	 finding	 of	 an	
                                                                                                        15	

aggravating	factor.6		The	futility	of	any	such	advice	from	counsel	in	this	case	

must	now	be	clear.		These	parents	have	never	agreed	that	they	presented	any	

jeopardy	 to	 their	 twins,	 nor	 have	 they	 argued	 that	 they	 needed	 more	 time,	

more	services,	more	counseling,	or	additional	parenting	training.			

        [¶21]	 	 Indeed,	 the	 parents	 have	 not	 argued	 that	 that	 any	 reunification	

services,	other	than	increased	visitation,	were	needed	or	would	have	made	a	

difference.		Their	position	is	quite	clear	from	the	trial	testimony	they	offered.		

They	believe	that	the	mother’s	actions	did	not	cause	Nathaniel’s	death.		They	

testified	 to	 their	 belief	 that	 they	 are	 emotionally,	 financially,	 and	

psychologically	 ready	 to	 be	 loving	 parents	 to	 their	 twins.7	 	 Their	 families	

believe	 the	 same	 and	 stand	 ready	 to	 assist	 them	 in	 parenting.	 	 In	 the	 face	 of	

this	belief,	the	court’s	determination	that	the	parents	should	now	be	provided	

with	 reunification	services,	 or	 that	the	 aggravating	 factors	 of	 the	 convictions	

and	conduct	“heinous	or	abhorrent	to	society”	should	be	ignored,	appears	to	

provide	 a	 hollow	 remedy.	 	 22	 M.R.S.	 §§	4002(1-B)(A),	 (B)(3),	 (5),	

4036(1)(G-2),	 4041(2)(A-2)(1),	 4055(1-A)(A),	 (B)(3).	 	 The	 fact	 of	 their	


   6		There	is	no	assertion	that	the	parents’	right	to	effective	assistance	of	counsel	was	in	any	way	

limited	during	the	five-day,	intensely	contested	jeopardy	trial.	

   7		They	also	believed	that	they	were	prepared	to	be	loving	parents	to	Nathaniel,	having	agreed	

that	 corporal	 punishment	 would	 not	 be	 employed.	 	 Despite	 that	 agreement,	 they	 admit	 that	 they	
treated	Nathaniel	roughly	when	his	behavior	(at	just	short	of	two	years	old)	frustrated	them.			
16	

convictions	remains	a	matter	of	record.		See	Allen,	2006	ME	21,	892	A.2d	456	

(father);	 Allen,	 2006	 ME	 20,	 892	 A.2d	 447	 (mother).	 	 No	 court,	 at	 the	

termination	stage	regarding	the	twins,	would	have	overlooked	the	convictions	

or	 the	 conduct	 of	 the	 parents	 toward	 Nathaniel.	 	 See	 22	 M.R.S.	

§	4055(1)(B)(2)(b),	(1-A)(A),	(B)(3).		Because	the	parents	do	not	suggest	that	

they	 would	 have	 benefited	 from	 any	 reunification	 services	 other	 than	

increased	 visits,	 and	 they	 do	 not	 dispute	 that	 the	 convictions	 stand,	 they	

would	 have	 been	 in	 essentially	 the	 same	 position	 at	 the	 termination	 hearing	

had	 there	 been	 no	 cease	 reunification	 order	 or	 aggravating	 factor	

determination.			

	     [¶22]	 	 In	 sum,	 given	 the	 intensely	 time-sensitive	 nature	 of	 child	

protection	 proceedings,	 we	 conclude	 that	 the	 court	 abused	 its	 discretion	 in	

granting	 the	 motion	 to	 amend	 the	 motion	 for	 relief	 to	 include	 allegations	 of	

ineffective	 assistance	 at	 the	 jeopardy	 stage.	 	 Moreover,	 given	 the	 absence	 of	

any	 meaningful	 remedy	 for	 the	 parents,	 who	 at	 most	 were	 deprived	 of	 a	

possible	 tactical	 advantage,	 there	 is	 no	 injustice	 in	 this	 determination.		

Accordingly,	 we	 vacate	 the	 court’s	 order	 granting	 the	 motion	 to	 amend	 and	

ruling	on	the	merits	of	the	jeopardy-related	ineffective	assistance	claims.			
                                                                                                              17	

	          [¶23]	 	 We	 now	 address	 the	 parents’	 contentions	 with	 respect	 to	 the	

termination	 order	 and	 the	 allegations	 of	 ineffective	 assistance	 of	 counsel	 at	

the	termination	proceeding.	

C.	        Termination	of	Parental	Rights	

	          [¶24]		In	appealing	from	the	termination	judgment,	the	parents	do	not	

directly	challenge	the	sufficiency	of	the	evidence	to	support	the	findings	of	the	

court	or	the	court’s	exercise	of	discretion	in	determining	that	termination	is	in	

the	 children’s	 best	 interests.	 	 Rather,	 they	 contend	 that	 the	 statutory	

presumption	 applicable	 at	 the	 termination	 stage	 when	 an	 aggravating	 factor	

has	 been	 found	 unconstitutionally	 shifts	 the	 burden	 of	 proof	 in	 violation	 of	

due	 process	 because	 the	 Department	 need	 no	 longer	 establish	 unfitness	 by	

clear	 and	 convincing	 evidence—the	 constitutionally	 required	 standard	 of	

proof.8			

	          [¶25]	 	 We	 review	 de	 novo	 whether	 a	 statute	 is	 unconstitutional	 as	

applied.		Ford	Motor	Co.	v.	Darling’s,	2014	ME	7,	¶	33,	86	A.3d	35.		Statutes	are	

presumptively	 valid,	 with	 reasonable	 doubts	 resolved	 in	 favor	 of	


      8	 	 Although	 neither	 parent	 challenged	 the	 court’s	 interpretation	 or	 application	 of	 the	 statute	

through	 a	 post-judgment	 motion,	 we	 consider	 the	 issue	 to	 have	 been	 preserved	 because	 the	
mother’s	counsel,	in	closing	argument,	contended	that	the	statute,	which	contains	only	permissive	
language,	does	not	shift	the	burden	of	proof.		See	Homeward	Residential,	Inc.	v.	Gregor,	2017	ME	128,	
¶	9,	---	A.3d	---	(“To	preserve	an	issue	for	appeal,	the	party	seeking	review	must	first	present	the	
issue	to	the	trial	court	in	a	timely	fashion.”).		
18	

constitutionality.		Id.		If	a	statute	is	ambiguous,	meaning	that	it	is	susceptible	

to	more	than	one	interpretation,	we	will	adopt	an	interpretation	that	renders	

the	statute	constitutional,	provided	that	such	an	interpretation	exists.		Id.	

	      [¶26]	 	 The	 constitutional	 issue	 before	 us	 concerns	 the	 statutorily	

created	 effect	 of	 the	 court’s	 finding	 of	 an	 “aggravating	 factor.”	 	 See	 22	 M.R.S.	

§	4002(1-B)	(2016).		That	term	is	defined	to	include	circumstances	in	which	a	

parent	was	convicted	of	manslaughter	or	a	“[f]elony	assault	that	result[ed]	in	

serious	bodily	injury”	and	“the	victim	of	the	crime	was	a	child	for	whom	the	

parent	was	responsible,”	id.	§	4002(1-B)(B)(3),	(5),	and	also	the	circumstance	

in	 which	 “[t]he	 parent	 has	 subjected	 any	 child	 for	 whom	 the	 parent	 was	

responsible	 to	 aggravated	 circumstances,	 including	 .	 .	 .	 treatment	 that	 is	

heinous	or	abhorrent	to	society,”	id.	§	4002(1-B)(A).			

	      [¶27]		By	statute,	a	finding	of	an	aggravating	factor	can	have	two	effects.		

First,	 “[i]f	 the	 court’s	 jeopardy	 order	 includes	 a	 finding	 of	 an	 aggravating	

factor,	 the	 court	 may	 order	 the	 department	 to	 cease	 reunification,	 in	 which	

case	 a	 permanency	 planning	 hearing	 must	 commence	 within	 30	 days	 of	 the	

order	to	cease	reunification.”		Id.	§	4036(1)(G-2).	

	      [¶28]		Second,	at	the	termination	stage,	“[t]he	court	may	presume	that	

the	parent	is	unwilling	or	unable	to	protect	the	child	from	jeopardy	and	these	
                                                                                        19	

circumstances	 are	 unlikely	 to	 change	 within	 a	 time	 which	 is	 reasonably	

calculated	to	meet	the	child’s	needs	if	.	.	.	the	parent	has	been	convicted	of	.	.	.	

[m]anslaughter”	 and	 “[t]he	 victim	 .	 .	 .	 was	 a	 child	 for	 whom	 the	 parent	 was	

responsible.”	 	 Id.	 §	4055(1-A)(B)(3).	 	 The	 presumption	 also	 arises	 if	 “[t]he	

parent	 has	 acted	 toward	 a	 child	 in	 a	 manner	 that	 is	 heinous	 or	 abhorrent	 to	

society	or	has	failed	to	protect	a	child	in	a	manner	that	is	heinous	or	abhorrent	

to	society,	without	regard	to	the	intent	of	the	parent.”		Id.	§	4055(1-A)(A).	

	      [¶29]		Although	the	parents	contend	that	the	presumption	contained	in	

section	 4055	 impermissibly	 shifts	 the	 burden	 of	 proof,	 read	 in	 statutory	

context,	this	presumption	differs	from	an	ordinary	presumption	in	a	civil	case.		

“In	 a	 civil	 case,	 unless	 a	 statute	 or	 these	 rules	 provide	 otherwise,	 the	 party	

against	 whom	 a	 presumption	 is	 directed	 has	 the	 burden	 of	 proving	 that	 the	

nonexistence	of	the	presumed	fact	is	more	probable	than	its	existence.”		M.R.	

Evid.	301(a).			

       [¶30]		Here,	however,	we	do	not	interpret	the	statute	to	shift	the	burden	

of	proof.		See	In	re	A.M.,	2012	ME	118,	¶	16,	55	A.3d	463;	cf.	Guardianship	of	

Chamberlain,	2015	ME	76,	¶¶	17-34,	118	A.3d	229	(requiring	that,	to	balance	

the	 fundamental	 rights	 at	 stake,	 a	 petitioner	 in	 a	 guardianship	 proceeding	

bears	the	burden	of	proving	unfitness	by	clear	and	convincing	evidence).	
20	

	      [¶31]		Instead,	22	M.R.S.	§	4055(1-A)	is	more	akin	to	a	“presumption”	in	

a	criminal	case.		See	M.R.	Evid.	303(b)	(“The	court	may	permit	a	jury	to	infer	

guilt	 or	 a	 fact	 relevant	 to	 guilt	 based	 on	 a	 statutory	 or	 common	 law	

presumption	or	prima	facie	evidence,	if	the	evidence	as	a	whole	supports	guilt	

beyond	a	reasonable	doubt.”).		Interpreting	the	statute	in	this	way,	the	finding	

of	an	aggravating	factor	allows	a	court	to	infer	that	the	parent	is	unwilling	or	

unable	 to	 protect	 the	 child	 from	 jeopardy	 and	 that	 the	 circumstances	 are	

unlikely	 to	 change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 the	 child’s	

needs.		22	M.R.S.	§	4055(1)(B)(2)(b)(i),	(1-A)(A),	(B).		However,	a	court	may	

reach	 an	 ultimate	 finding	 of	 unfitness	 only	 if	 the	 evidence	 in	 its	 entirety	

supports	 that	 finding	 by	 clear	 and	 convincing	 evidence.	 	 See	 22	M.R.S.	

§	4055(1)(B)(2)(b),	 (1-A)(A),	 (B)	 (2016);	 M.R.	 Evid.	 303.	 	 In	 essence,	 the	

statute	 delineates	 the	 specific	 facts	 and	 circumstances	 upon	 which	 a	 court	

may—but	 need	 not—reach	 an	 ultimate	 finding	 of	 parental	 unfitness.	 	 See	 id.		

As	 the	 mother’s	 counsel	 argued	 at	 the	 termination	 hearing,	 “Because	 it’s	 a	

may,	not	a	shall,	not	a	will,	there’s	no	burden	shift	.	.	.	.”			

	      [¶32]		Reviewing	the	court’s	application	of	the	statute,	it	is	clear	that	the	

court	 fully	 considered	 the	 evidence	 presented	 by	 the	 Department	 and	 the	

parents.		The	court	ultimately	reasoned,	however,	that	the	parents	had	failed	
                                                                                      21	

to	 meet	 “the	 burden	 to	 rebut	 the	 presumption	 of	 parental	 unfitness.”	 	 As	 we	

clarify	 in	 our	 holding	 today,	 there	 is	 no	 burden	 on	 the	 parent	 to	 rebut	 the	

“presumption”;	 the	 burden	 remains	 always	 on	 the	 Department,	 and	 the	

parents	 have	 neither	 a	 burden	 of	 production	 nor	 a	 burden	 of	 persuasion	 or	

proof	 regarding	 the	 “presumption”	 addressed	 in	 section	 4055(1-A).	 	 The	

termination	order	must	therefore	remain	vacated,	and	we	remand	the	matter	

for	the	trial	court	to	apply	the	statute	as	we	have	construed	it	and	determine	

whether	the	Department	met	its	burden	of	proof	on	its	petition	to	terminate	

the	parents’	rights	to	the	twins.	

	     [¶33]	 	 Thus,	 to	 be	 clear,	 we	 affirm	 the	 court’s	 decision	 vacating	 its	

termination	order,	although	we	do	so	on	other	grounds.		On	remand,	the	court	

must	 decide	 whether	 to	 infer	 from	 the	 parents’	 convictions	 and	 all	 other	

evidence	presented	at	the	termination	hearing	that	the	parents	are	unwilling	

or	 unable	 to	 protect	 the	 children	 from	 jeopardy	 and	 that	 the	 circumstances	

are	 unlikely	 to	 change	 within	 a	 time	 reasonably	 calculated	 to	 meet	 the	

children’s	 needs.	 	 See	 22	M.R.S.	 §	4055(1)(B)(2)(b)(i),	 (1-A)(A),	 (B)(3).		

Whether	or	not	the	court	makes	an	inference,	it	must	determine	whether	the	

evidence	in	its	entirety	supports	a	finding	of	unfitness	by	clear	and	convincing	

evidence.		See	22	M.R.S.	§	4055(1)(B)(2)(b);	see	also	M.R.	Evid.	303.		
22	

D.	   Ineffective	 Assistance	 of	 Counsel	 at	 the	 Termination	 of	 Parental	 Rights	
      Hearing	
	
      [¶34]	 	 The	 only	 question	 remaining	 is	 whether	 the	 parents’	 legal	

representation	at	the	termination	hearing	was	constitutionally	insufficient.		At	

the	 termination	 hearing,	 the	 parents’	 position,	 as	 noted	 previously,	 was	 that	

the	 court	 should	 look	 again	 at	 the	 facts	 surrounding	 Nathaniel’s	 injuries	 and	

conclude	 that	 a	 medical	 cause	 other	 than	 those	 attributable	 to	 the	 mother	

resulted	in	their	toddler’s	death.		Whether,	in	the	face	of	undisturbed	criminal	

convictions	for	the	assault	and	manslaughter	of	Nathaniel,	counsel	could	have	

effectively	presented	a	challenge	to	the	Department’s	position	both	legally	and	

factually	must	be	determined	by	the	trial	court.		See	In	re	M.P.,	2015	ME	138,	

¶¶	26-27,	126	A.3d	718.		The	District	Court	did	not	reach	or	make	findings	on	

this	issue,	and	depending	on	the	court’s	decision	on	termination,	it	must	do	so	

expeditiously	on	remand	based	on	the	record	that	has	already	been	created.	

      The	entry	is:	

                    The	 order	 granting	 the	 motion	 to	 amend	
                    relating	 to	 the	 jeopardy	 proceeding	 and	
                    granting	 in	 part	 the	 motion	 for	 relief	 from	
                    judgment	 is	 vacated.	 	 The	 order	 vacating	 the	
                    termination	 of	 each	 parent’s	 parental	 rights	 is	
                    affirmed	 on	 other	 grounds.	 	 The	 matter	 is	
                    remanded	 for	 the	 court’s	 prompt	 decision	 on	
                    the	Department’s	petition	for	termination	of	the	
                    parents’	parental	rights.		If	the	court	terminates	
                                                                                      23	

                    parental	 rights,	 it	 must	 also	 rule	 on	 the	 Rule	
                    60(b)	 motion	 pertaining	 to	 the	 effectiveness	 of	
                    counsel	at	the	termination	stage.	
	
                              	      	      	      	      	
	
ALEXANDER,	J.,	with	whom,	JABAR,	J.,	joins,	concurring	in	part	and	dissenting	
in	part.	
	
      [¶35]		I	concur	in	the	Court’s	opinion	addressing	the	jeopardy	order;	its	

analysis	 of	 the	 law	 regarding	 the	 statutory	 “presumption”	 arising	 from	 an	

aggravating	factor,	22	M.R.S.	§	4055(1-A)(A),	(B)(3)	(2016);	and	its	analysis	of	

the	evidence	in	this	case,	where	the	facts	regarding	the	parents’	prior	history	

of	dangerousness	to	children	and	their	current	concerning	views	about	their	

capacity	to	parent	children	are	not	particularly	close.	

      [¶36]	 	 I	 respectfully	 dissent	 only	 from	 the	 Court’s	 remand	 to	 the	 trial	

court	for	further	findings	regarding	application	of	the	statutory	presumption	

and	effectiveness	of	trial	counsel.		As	the	Court	observes,	addressing	parents’	

due	process	rights,	“the	[trial]	court	must	be	careful,	in	protecting	that	right,	

not	 to	 ignore	 the	 simultaneous	 interest	 of	 the	 State	 in	 promoting	 ‘the	 early	

establishment	 of	 permanent	 plans’	 for	 the	 children.”	 	 Court’s	 Opinion	 ¶	 19	

(quoting	 22	 M.R.S.	 §	 4003(4)	 (2016)).	 	 Delaying	 finality	 and	 permanency	 for	

these	children	pending	further	findings	on	remand	is	neither	necessary	nor	in	

the	best	interests	of	the	children.	
24	

       [¶37]	 	 Without	 requiring	 further	 findings,	 I	 would	 simply	 vacate	 and	

remand	 with	 direction	 to	 reinstate	 the	 termination	 of	 parental	 rights	

judgment	 and	 move	 on	 to	 the	 question	 of	 permanent	 placement,	 without	

further	delay.	

       [¶38]	 	 We	 have	 not	 developed	 a	 significant	 body	 of	 precedent	

addressing	application	of	the	statutory	presumption	in	cases	where	a	parent,	

opposing	termination	of	parental	rights,	has	previously	been	convicted,	after	

trial,	 of	 causing	 a	 child’s	 death	 or	 serious	 bodily	 injury.	 	 Nor	 have	 we	

frequently	 addressed	 issues	 of	 ineffective	 assistance	 of	 counsel	 in	 cases	 of	

termination	of	parental	rights.	

A.     Statutory	Presumption	or	Constitutionally	Required	Inference	

	      [¶39]		A	trial	court	ruling,	even	if	in	error,	will	not	result	in	vacating	the	

judgment	 if	 the	 error	 was	 “harmless”—that	 is,	 if	 the	 error	 did	 not	 result	 in	

substantial	 injustice	 or	 affect	 substantial	 rights.	 	 See	 M.R.	 Civ.	 P.	 61;	 M.R.U.	

Crim.	P.	52(a);	see	also	M.R.	Evid.	103(a).	

	      [¶40]	 	 A	 properly	 preserved	 error	 that	 is	 not	 of	 constitutional	

dimension	is	harmless	“if	it	is	highly	probable	that	the	error	did	not	affect	the	

judgment.”	 	 State	 v.	 Guyette,	 2012	 ME	 9,	 ¶	 19,	 36	 A.3d	 916;	 see	 also	

In	re	Scott	S.,	2001	ME	114,	¶¶	24-25,	775	A.2d	1144;	Williams	v.	United	States,	
                                                                                       25	

503	 U.S.	 193,	 203	 (1992).	 	 In	 criminal	 cases,	 with	 constitutional	 protections	

equal	to	or	greater	than	those	applicable	to	the	termination	of	parental	rights	

case	 at	 issue	 here,	 the	 State	 has	 the	 burden	 of	 persuasion	 on	 appeal	 to	

demonstrate	that	an	error	was	harmless.		State	v.	Dolloff,	2012	ME	130,	¶	34,	

58	A.3d	1032;	see	also	United	States	v.	Olano,	507	U.S.	725,	734	(1993).		The	

essential	question	is	whether	it	is	highly	probable	that	any	error	did	not	affect	

the	trial	court	or	jury	decision.		State	v.	Mangos,	2008	ME	150,	¶	15,	957	A.2d	

89.	

	      [¶41]	 	 The	 Court	 correctly	 notes	 that	 the	 presumptive	 error	 at	 issue	

here	 affected	 the	 parents’	 constitutional	 rights.	 	 An	 error	 in	 a	 criminal	 case	

that	 affects	 constitutional	 rights	 can	 be	 subject	 to	 harmless	 error	 analysis.		

Washington	v.	Recuenco,	548	U.S.	212,	218	(2006).		In	Recuenco,	the	Supreme	

Court	 held	 that	 if	 a	 defendant	 had	 counsel	 and	 was	 tried	 by	 an	 impartial	

adjudicator,	 “there	 is	 a	 strong	 presumption	 that	 any	 other	 [constitutional]	

errors	 that	 may	 have	 occurred	 are	 subject	 to	 harmless-error	 analysis.”	 	 Id.;	

see	also	Neder	v.	United	States,	527	U.S.	1,	8	(1999)	(applying	harmless	error	

analysis	 when	 a	 jury	 was	 not	 instructed	 on	 one	 essential	 but	 undisputed	

element	of	a	crime).	
26	

	      [¶42]	 	 The	 appropriate	 harmless	 error	 inquiry	 on	 an	 issue	 of	

constitutional	rights	in	a	termination	of	parental	rights	case	is	whether,	upon	

review	of	the	whole	record,	we	are	satisfied	that	“it	is	highly	probably	that	the	

error	did	not	prejudice	the	parents	or	contribute	to	the	result	in	the	case.		The	

State’s	burden	of	persuasion	is	high.		Any	doubt	will	be	resolved	in	favor	of	the	

parent.”		In	re	Scott	S.,	2001	ME	114,	¶	29,	775	A.2d	1144.		Here,	it	is	apparent,	

without	 any	 doubt,	 that	 the	 trial	 court’s	 erroneous	 application	 of	 a	 burden-

shifting	 presumption	 analysis,	 rather	 than	 the	 constitutionally	 required	

inference	 analysis,	 to	 find	 aggravating	 factors	 based	 on	 the	 parents’	 prior	

convictions	 for	 causing	 death	 or	 serious	 bodily	 injury	 to	 a	 child	 did	 not	

contribute	to	the	final	decision	terminating	parental	rights.		The	parents’	prior	

convictions	and	their	continued	claims	of	lack	of	responsibility	for	the	death	of	

their	 first	 child	 compelled	 the	 result	 reached	 by	 the	 trial	 court,	 even	 if	 the	

inference	 analysis,	 leaving	 the	 burden	 of	 persuasion	 on	 the	 State,	 had	 been	

properly	applied.	

B.     Effective	Assistance	of	Counsel	

	     [¶43]	 	 The	 standard	 for	 post-conviction	 review	 of	 claims	 of	 ineffective	

assistance	of	trial	counsel—the	most	common	post-conviction	review	issue—

has	been	stated	in	Strickland	v.	Washington,	466	U.S.	668,	687-90	(1984).	
                                                                                       27	

	     [¶44]	 	 In	 Theriault	 v.	 State,	 2015	 ME	 137,	 ¶	 13,	 125	 A.3d	 1163,	 we	

recognized	that	“Strickland	is	the	‘seminal	case’	that	establishes	the	standards	

controlling	 the	 disposition	 of	 claims	 of	 ineffective	 assistance	 of	 counsel.”	

(quoting	 Manley	 v.	 State,	 2015	 ME	 117,	 ¶	 12,	 123	 A.3d	 219).	 	 Referencing	

Manley,	 we	 noted	 that	 “we	 reaffirmed	 that	 [Strickland]	 dispositively	

establishes	 the	 criteria	 in	 ineffectiveness	 claims,	 including	 the	 nature	 of	

prejudice	that	the	petitioner	must	establish,	despite	language	in	some	of	our	

opinions	 that	 is	 not	 fully	 consistent	 with	 that	 federal	 authority.”	 	 Theriault,	

2015	ME	137,	¶	13	n.3,	125	A.3d	1163.	

	     [¶45]	 	 Thus,	 in	 Theriault,	 we	 adopted	 the	 Strickland	 standard	 that	 to	

demonstrate	 ineffective	 assistance	 of	 counsel	 sufficient	 to	 overturn	 a	

judgment	 on	 post-conviction	 review	 “the	 petitioner	 must	 demonstrate	 two	

points:	first,	‘that	counsel’s	representation	fell	below	an	objective	standard	of	

reasonableness,’	and	second,	that	‘errors	of	counsel	.	.	.	actually	had	an	adverse	

effect	on	the	defense.’”		Id.	¶	14	(quoting	Strickland,	466	U.S.	at	688,	693).	

	     [¶46]	 	Here,	 the	 Court	 accurately	 points	 out	 that	 the	 parents	 had	 been	

convicted	 of	 crimes—manslaughter	 for	 the	 mother,	 felony	 assault	 on	 a	 child	

under	 six	 years	 of	 age	 for	 the	 father—that	 resulted	 in	 the	 violent	 death	 of	

their	 first	 child,	 a	 child	 whom	 they	 had	 adopted.	 	 Despite	 those	 prior	
28	

convictions,	counsel	for	the	parents	succeeded	in	convincing	the	trial	court	in	

the	 jeopardy	 proceeding	 to	 allow	 the	 parents	 to	 relitigate	 the	 cause	 of	 the	

death	 of	 their	 first	 child.	 	 In	 the	 jeopardy	 proceeding,	 the	 parents,	 testifying	

under	 oath,	 refused	 to	 accept	 any	 responsibility	 for	 the	 death	 of	 their	 first	

child,	focusing	instead	on	their	anger	toward	the	legal	system.	

	      [¶47]		The	parents’	ineffective	assistance	claim	appears	to	place	blame	

on	counsel	for	the	tactical	choice	in	the	jeopardy	proceeding	to	contest,	rather	

than	 concede,	 jeopardy	 when,	 with	 the	 concession,	 the	 parents	 could	 have	

received	 parenting	 assistance	 services	 and	 perhaps	 visitation	 with	 the	 twins	

after	receiving	services.		However,	from	the	available	record	it	is	evident	that	

it	 was	 the	 parents,	 not	 counsel,	 who	 refused	 to	 accept	 their	 already	 decided	

responsibility	for	the	death	of	their	first	child.		See	State	v.	Allen,	2006	ME	21,	

892	A.2d	456;	State	v.	Allen,	2006	ME	20,	892	A.2d	447.	

	      [¶48]		No	ineffective	assistance	of	counsel	is	demonstrated	by	counsel’s	

tactical	choice,	evidently	based	on	their	clients’	wishes,	to	litigate	the	jeopardy	

issue.	 	 The	 record	 does	 reflect	 that	 the	 parents	 were	 advised	 of	 the	 State’s	

proposal	to	avoid	the	jeopardy	proceeding	and	rejected	it,	choosing	to	litigate	

instead.		Second-guessing	counsel’s	tactical	choices	after	an	unfavorable	result	
                                                                                      29	

is	 a	 frequent	 but	 rarely	 successful	 ploy	 in	 post-conviction	 proceedings.		

Recognizing	this,	the	Strickland	court	observed:	

      It	 is	 all	 too	 tempting	 for	 a	 defendant	 to	 second	 guess	 counsel’s	
      assistance	 after	 conviction	 or	 adverse	 sentence,	 and	 it	 is	 all	 too	
      easy	 for	 a	 court,	 examining	 counsel’s	 defense	 after	 it	 has	 proved	
      unsuccessful,	 to	 conclude	 that	 a	 particular	 act	 or	 omission	 of	
      counsel	was	unreasonable.	
	
466	U.S.	at	689.	
	
	      [¶49]		To	counter	this	tendency,	Strickland	holds:		
	
       Because	 of	 the	 difficulties	 inherent	 in	 making	 the	 evaluation,	 a	
       court	 must	 indulge	 a	 strong	 presumption	 that	 counsel’s	 conduct	
       falls	within	the	wide	range	of	reasonable	professional	assistance;	
       that	is,	the	defendant	must	overcome	the	presumption	that,	under	
       the	 circumstances,	 the	 challenged	 action	 “might	 be	 considered	
       sound	trial	strategy.”	
	
Id.	(quoting	Michel	v.	Louisiana,	350	U.S.	91,	101	(1955)).	

	     [¶50]	 	 Theriault,	 reflecting	 Strickland,	 holds	 that	 to	 overcome	 this	

presumption	 and	 succeed	 in	 vacating	 a	 judgment	 in	 a	 post-judgment	

proceeding	asserting	ineffective	assistance	of	counsel,	a	challenger	must	meet	

the	 burden	 of	 demonstrating	 (1)	 that	 counsel’s	 representation	 fell	 below	 an	

objective	 standard	 of	 reasonableness;	 and	 (2)	 that	 errors	 of	 counsel	 actually	

had	an	adverse	effect	on	the	defense.		2015	ME	137,	¶	14,	125	A.3d	1163.	

	     [¶51]		Here,	no	ineffectiveness	of	counsel	is	demonstrated	in	the	tactical	

choices	 about	 which	 the	 parents	 complain,	 and	 even	 if	 ineffectiveness	 were	
30	

demonstrated,	 the	 parents,	 causing	 the	 tragic	 death	 of	 their	 first	 child	 and	

refusing	 to	 acknowledge	 any	 responsibility	 for	 their	 child’s	 death,	 make	 the	

end	 result,	 termination	 of	 their	 parental	 rights,	 inevitable—so	 any	

incompetence	of	counsel	could	not	have	any	adverse	effect	on	their	defense	in	

these	proceedings.	

	        [¶52]		The	parents	cannot	meet	their	burden	to	demonstrate	that	errors	

of	counsel,	if	any,	had	any	adverse	effect	on	their	defense	of	the	proceedings	

or	 could	 have	 affected	 the	 ultimate	 result.	 	 There	 are	 no	 facts	 left	 for	 the	

District	Court	to	adjudicate.		The	matter	should	be	remanded	only	to	reinstate	

the	 termination	 of	 parental	 rights	 judgment	 and	 let	 the	 children	 get	 on	 with	

their	lives.	

	        	        	         	   	   	

Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellant	Department	of	Health	and	Human	
Services	
	
Rory	A.	McNamara,	Esq.,	Drake	Law,	LLC,	Berwick,	for	appellee	father	
	
Heidi	M.	Pushard,	Esq.,	Law	Office	of	Heidi	M.	Pushard,	Lewiston,	for	appellee	
mother	
	
	
Lewiston	District	Court	docket	number	PC-2013-73	
FOR	CLERK	REFERENCE	ONLY	
