MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision:    2019 ME 106
Docket:      Oxf-19-79
Submitted
  On Briefs: June 26, 2019
Decided:     July 9, 2019

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



                             IN RE CHILDREN OF MATTHEW G.


PER CURIAM

          [¶1] Matthew G. appeals from a judgment of the District Court (Rumford,

Carlson, J.) terminating his parental rights to his two children pursuant to

22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2018). He argues that the court erred

by relying solely on his incarcerated status to support its findings of parental

unfitness and claims that he received ineffective assistance of counsel at the

termination hearing.1 We affirm the judgment.

          [¶2] The Department of Health and Human Services initiated child

protection proceedings as to the father’s two children in March 2018 while the

father was incarcerated, roughly one month after the children’s mother died

from an apparent drug overdose. See 22 M.R.S. § 4032 (2018). The court



      1 Following the court’s judgment, the father filed a motion for additional findings of fact and
conclusions of law pursuant to M.R. Civ. P. 52(b). The court (Carlson, J.) summarily denied the father’s
motion. The father does not challenge the court’s denial of his Rule 52(b) motion.
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(Nale, J.) issued preliminary protection orders the same day, granting custody

of the children to the Department. See 22 M.R.S. § 4034 (2018). A jeopardy

hearing was held on June 18, 2018; the father did not appear at the hearing, and

the court (Carlson, J.) later issued a jeopardy order. See 22 M.R.S. § 4035 (2018).

      [¶3] On November 7, 2018, the Department filed a petition to terminate

the father’s parental rights, and the court held a two-day hearing on the petition

the following month. By judgment dated January 3, 2019, the court terminated

the father’s parental rights. Based on clear and convincing evidence in the

record, the court determined that the father (1) is unwilling or unable to protect

his children from jeopardy and these circumstances are unlikely to change

within a time which is reasonably calculated to meet their needs and (2) is

unwilling or unable to take responsibility for the children within a time which

is   reasonably    calculated    to   meet    their   needs.     See   22   M.R.S.

§ 4055(1)(B)(2)(b)(i)-(ii).     Finally, the court concluded that termination

of the father’s parental rights is in the children’s best interests.        See id.

§ 4055(1)(B)(2)(a).

      [¶4] In support of those determinations, the court made the following

findings of fact, which are supported by competent record evidence. See In re

Child of Erica H., 2019 ME 66, ¶ 3, --- A.3d ---.
                                                                          3

The children came into the custody of the Department of Health
& Human Services on March 5, 2018 after the children’s mother . . .
died on February 4, 2018 as a result of an apparent drug overdose
in her home. At that time, the children were living with [the
mother]. When the Department brought the child protection
petition, [the father] was incarcerated. He continues to be
incarcerated at this time, with a tentative release date of December
2019.

. . . Following their mother’s death, [the children] were placed with
[their maternal grandmother], where they remained until early
May 2018, when they were placed in foster care . . . with their
half-sibling . . . . They have remained in that placement since that
time.

. . . The children are ages eight and nine. [The father] lived with the
children and their mother until the summer of 2015, when he
ended the relationship with [the mother] due to her drug and
alcohol use. . . . [The mother] and [father’s] relationship was
marked by frequent arguments which occurred in the presence of
the children.

....

. . . In the spring of 2017, [the mother] . . . filed a Protection from
Abuse Complaint individually and on behalf of the children, against
[the father]. He did not appear for the final hearing and she was
granted a two[-]year Order which expires on May 12, 2019. This
Order prohibits [the father] from having contact with the children.

....

At this point in time, [the daughter] needs a predictable, structured
routine in her life, with consistent supervision and attention, clear
rules and appropriate role modeling. She needs a caregiver that is
physically and emotionally available to her, and one who has the
ability to understand her needs and to put them first.
4

      . . . Both children attend mental health counseling . . . .

      ....

      Since the children have come to live with the [foster parents], their
      behavioral health has greatly improved, which is due in large part
      to the feeling of personal safety they now have.

      ....

      [The father] has failed to provide any measure of stability or
      consistency in the children’s lives for over three years. He has
      made poor choices that have resulted in continuous periods of
      incarceration and even during the brief periods of time when he
      was not incarcerated, he had little meaningful involvement in the
      children’s lives. . . . These children simply cannot wait any longer
      for him to take responsibility for them.

      . . . [I]t is in [the children’s] best interests to terminate the parental
      rights of [their father] based on these children’s need for
      permanency in a stable home environment. At this point in time,
      the [c]ourt has no confidence that [the father] will gain the ability
      to recognize the needs of the children, prioritize these needs ahead
      of his own and spend any amount of meaningful contact with them
      in the near future.

      The Guardian ad litem supports termination of [the father’s] rights.

A.    Parental Unfitness

      [¶5] Given these findings, all of which are supported by competent

record evidence, the court did not impermissibly consider the father’s

incarceration in reaching its parental unfitness determination, and therefore it

did not err in finding that the father is unfit. See In re Children of Anthony L.,
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2019 ME 62, ¶ 9 n.3, 207 A.3d 624; In re Asanah S., 2018 ME 12, ¶ 5,

177 A.3d 1273; In re Alijah K., 2016 ME 137, ¶ 14, 147 A.3d 1159 (“Whether

because of mental illness, substance abuse, violence, incarceration, or some

other reason, a parent who is unable to meet his child’s needs—now and for the

foreseeable future—is an unfit parent whose parental rights are subject to

termination.”).

B.    Ineffective Assistance of Counsel

      [¶6] The father also directly raises a claim that his counsel at the

termination hearing was ineffective. We have recognized two ways in which a

parent can raise a claim of ineffective assistance of counsel in a termination

case. See In re Tyrel L., 2017 ME 212, ¶ 7, 172 A.3d 916; In re M.P., 2015 ME 138,

¶ 27, 126 A.3d 718. “First, if there are no new facts that the parent seeks to

offer in support of the claim, the parent may make an ineffectiveness claim in a

direct appeal from a termination order.” In re Aliyah M., 2016 ME 106, ¶ 6,

144 A.3d 50. “Second, if the basis for the parent’s ineffectiveness challenge is

not clear from the existing record and would require a court to consider

extrinsic evidence, 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).” Id.

“Regardless of how the parent presents the claim, the parent must execute and
6

file an affidavit stating, with specificity, the basis for the claim.” In re Child of

Stephen E., 2018 ME 71, ¶ 12, 186 A.3d 134. “[I]f a parent fails to submit a

signed and sworn affidavit, the ineffectiveness claim . . . must be denied.” In re

Aliyah M., 2016 ME 106, ¶ 9, 144 A.3d 50 (emphasis added).

          [¶7] Here, the father asserts his ineffective representation claim on

direct appeal.2 He failed, however, to submit an affidavit, and thus we must

deny his claim. “The strict procedural requirements for ineffective assistance

claims . . . are designed to balance the parent’s due process interests against the

State’s interests in providing stability and permanency for the child and

therefore it is imperative that parents—and their counsel—ensure full

compliance with these requirements.” In re Tyrel L., 2017 ME 212, ¶ 10,

172 A.3d 916 (stating that a parent’s failure to submit a signed and sworn

affidavit “alone is a sufficient basis for us to decline to remand the



      2 While this appeal was pending, the father filed a motion with the trial court for enlargement
of time to file a motion for relief from judgment pursuant to M.R. Civ. P. 60(b)(6) alleging ineffective
assistance of counsel, and he filed with us a motion to stay the appeal and permit the trial court to act
on his motion. The Department filed oppositions to the father’s motions. On April 26, 2019, the court
(Carlson, J.) purported to deny his motion for failure to comport with Rule 7(b) of the Maine Rules of
Civil Procedure. Although the court did not have the authority to act on the motion, see M.R. App. P.
3(b), we retroactively suspended the provisions of Rule 3(b) to give effect to the trial court’s order,
and denied the father’s motion.

      On May 3, 2019, before we issued the above order, the father also filed in the trial court a motion
to reconsider and an amended motion for enlargement of time to file a motion for relief from
judgment. The court informed the father that these motions would have to be filed with the Law
Court if he wished to proceed. It appears from the record that the father did not take further action.
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ineffectiveness claim to the trial court”); In re Alexandria C., 2016 ME 182, ¶ 15,

152 A.3d 617; In re M.P., 2015 ME 138, ¶ 21, 126 A.3d 718.

        The entry is:

                           Judgment affirmed.



Heidi M. Drew, Esq., Lewiston, for appellant father

Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services


Rumford District Court docket number PC-2018-1
FOR CLERK REFERENCE ONLY
