In re Child Dawn B., Docket: Cum-18-477

210 A.3d 169

IN RE CHILD OF DAWN B.

Docket: Cum-18-477

Supreme Judicial Court of Maine.

Submitted On briefs: May 30, 2019

Decided: June 11, 2019

Seth Berner, Esq., Portland, for appellant father

Valerie A. Randall, Esq., Hanly Law, Portland, for appellant mother

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

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

PER CURIAM

[¶1] Dawn B. and Michael L. both appeal from a judgment of the District Court (Portland, Eggert, J. ) terminating their parental rights to their child. The mother challenges only the court's denial of her motion for relief from the termination judgment in which she alleged that she received ineffective assistance of counsel during the proceedings. The father argues that there was insufficient evidence to support the termination of his parental rights. We affirm the judgment.

I. BACKGROUND

[¶2] On March 23, 2017, the Department of Health and Human Services instituted child protection proceedings on behalf of this child as to both parents, alleging that the child had been in the care of the maternal grandparents since birth and that the maternal grandparents were unable to adequately care for the child.¹ See 22 M.R.S. § 4032 (2018). The parents later agreed to the entry of a jeopardy order in which the court found that the parents have never been primary caretakers for the child; that their apartment was unsuitable for reunification; and that the father lacked basic parenting skills, has anger management issues, has been verbally abusive to the mother while he was holding the child, has a history of domestic violence, abuses alcohol, suffers from anxiety and depression, and has health issues that impair his ability to care for the child. See 22 M.R.S. §§ 4002(6), 4035, 4036 (2018). With the agreement of the parties, the court entered judicial review and permanency planning orders dated January 25, 2018, and July 27, 2018, maintaining custody of the child with the Department.

[¶3] On September 6, 2018, the Department petitioned to terminate the mother's and father's parental rights, alleging that neither parent had engaged in any of the rehabilitation and reunification services necessary to alleviate jeopardy. See 22 M.R.S. § 4052 (2018). After a testimonial hearing, the court entered a judgment terminating both parents' rights to the child. See 22 M.R.S. § 4054 (2018). The court made the following findings of fact, which are supported by competent record evidence.

[The mother] reports that she was unaware that she was pregnant until she arrived at the emergency room .... When their child was ready to leave the hospital, the parents realized that they were not prepared to bring home and raise a baby. They agreed to place their child with [the mother's] parents. Very little about the parents['] ability to raise a child has changed since that time.

Unfortunately, the placement of the child with the mother's parents turned out to be not appropriate [and] ... the child was removed from the grandparents and a new placement was arranged ....

.... The parents have not had much success in completing the [rehabilitation and reunification] plan.

....

The mother has completed a parenting course, and has had regular visitation with her child since January 2018. That visitation continues to be fully supervised and [the mother] requires many prompts from the supervisor to appropriately tend to her child and keep her safe. This contact with her child is well short of demonstrating her ability to take on a primary care role for the child. [The mother] did attend some counseling but began to miss appointments and that counseling stopped without [the mother] having made any progress toward the goals of the counseling. [The mother] has been unable at this time and throughout the pendency of the case to obtain housing suitable for reunification with her child.... The summary of [the mother's diagnostic evaluation] is that [the mother] has a poor prognosis for being able to successfully address the jeopardy which continues to exist in this case. [The mother] has not been responsible for primary care of her child since the child's birth almost two years ago. She is also no closer to being able to take on that primary care role now than she was when she turned over that care to her parents.

The father made an appointment for a mental health evaluation ..., but did not succeed in having a clinician assigned to treat with him because of memory problems related to strokes he has suffered. He did complete a [diagnostic evaluation] and one result of that was a referral to a clinician who works with adults with memory impairment. After one visit for evaluation he stopped attending. [The father's diagnostic evaluation] was not very successful due to his being less than forthcoming, and ... he ha[s] a poor prognosis for making the changes necessary to alleviate jeopardy. He has not attended and completed a parenting education program nor attended the Strong Father's program. He is still living in the apartment that was determined to be inadequate after his child was born and he has not been able to find appropriate housing for purposes of reunification. He has not had any contact with his child since May 25, 2018, and his contact before that was sporadic.... He has never had any primary care responsibility for his child and he is now no closer to being able to take on that responsibility than he was when his child left the hospital after her birth.

[The child] has been in the consistent care of [her] resource parents ... since May 3, 2017. She is up to date with all her medical appointments and is meeting developmental milestones. She is an active toddler who attends day care. She is walking regularly and beginning to say some words. The resource parents report that she eats and sleeps well and is generally a happy child. The resource parents are willing to adopt [the child] at this time....

[¶4] Based on these findings, the court determined that the parents are unable to protect the child from jeopardy and unable to take responsibility for the child within a time that is reasonably calculated to meet the child's needs, the parents failed to make a good faith effort to rehabilitate and reunify with the child, and termination is in the best interest of the child.² See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i), (ii), (iv) (2018) ; see also 22 M.R.S. § 4041(1-A)(B) (2018). Both parents timely appealed. See 22 M.R.S. § 4006 (2018) ; M.R. App. P. 2B(c)(1).

[¶5] The mother then filed a motion for relief from the termination judgment pursuant to M.R. Civ. P. 60(b)(6), with an accompanying affidavit, alleging that her trial attorney provided ineffective assistance of counsel. The court denied the motion.³

II. DISCUSSION

A. Ineffective Assistance of Counsel

[¶6] The mother challenges only the court's order denying her motion for relief from judgment on the ground of ineffective assistance of counsel. When a parent challenges the termination of his or her parental rights on the basis of ineffective assistance of counsel, it is that parent's burden to establish 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, 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." In re Child of Stephen E. , 2018 ME 71, ¶ 13, 186 A.3d 134 (alteration omitted) (quotation marks omitted).

[¶7] Of the two procedural mechanisms we have identified by which a parent may assert such a claim in a proceeding to terminate parental rights, the mother chose to file a motion for relief from judgment pursuant to M.R. Civ. P. 60(b)(6).⁴

See In re Child of Stephen E. , 2018 ME 71, ¶ 12, 186 A.3d 134. This procedure required the mother to submit with her motion an affidavit "stating, with specificity, the basis for the claim" as well as "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." In re M.P. , 2015 ME 138, ¶ 21, 126 A.3d 718.

[¶8] In her affidavit accompanying her motion for relief from judgment, the mother stated that her trial counsel was ineffective in that she "failed to seek hearing on kinship placement" with the maternal grandparents and "failed to advise [her] that [she] could seek judicial review at various stages of this case and have the court hear additional evidence and review the jeopardy findings and progress toward reunification."⁵ See 22 M.R.S. § 4005-G(1) (2018) (discussing the legislative preference for kinship placement); 22 M.R.S. § 4038(2), (5) (2018) (allowing a parent to seek judicial review, at which the court will consider evidence regarding the child's placement). Had she known that was an option, the mother asserted, she would have sought the appointment of the child's maternal grandparents as permanency guardians and her parental rights likely would not have been terminated.⁶

[¶9] The court did not address whether the performance of the mother's counsel was deficient at any stage of the proceedings but rested its denial of the motion on its determination that the mother failed to establish the second element of ineffective assistance of counsel—that she suffered any prejudice by her attorney's performance. In particular, the court found that the maternal grandparents were not licensed foster parents; that the maternal grandparents likely would not...