In re Kacee S.

253 A.3d 1063

IN RE CHILDREN OF KACEE S.

Docket: Ken-20-279

Supreme Judicial Court of Maine.

Submitted On Briefs: May 19, 2021

Decided: July 8, 2021

Ashley T. Perry, Esq., Sanders, Hanstein & Carey, P.A., Farmington, 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: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

HORTON, J.

[¶1] Kacee S. appeals from a judgment of the District Court (Waterville, Dow, J. ) terminating her parental rights to her four children and from an order of the court denying her motion for relief from the judgment, see M.R. Civ. P. 60(b). She contends that she received ineffective assistance of counsel at both the trial phase and the post-judgment phase of the case and that the trial court abused its discretion when it (1) denied the father's motion to continue the termination of parental rights hearing despite the mother's unexplained absence and (2) determined that termination of the mother's parental rights was in the children's best interests. We conclude that the mother has made a prima facie showing that she received ineffective assistance of counsel at the trial phase and post-judgment phase of the case, vacate the court's denial of her second motion for relief from the judgment, and remand for further proceedings on the motion consistent with this order.¹

I. BACKGROUND

[¶2] The following facts and procedural history are drawn from the procedural record and the court's findings after the contested termination hearing, all of which are supported by competent record evidence. See In re Child of Radience K. , 2019 ME 73, ¶ 2, 208 A.3d 380.

[¶3] The Department of Health and Human Services initiated this case in September 2019, when it filed its petition for a child protection order and preliminary protection order against the mother and father as to their four children.² The court (Montgomery, J. ) entered an order of preliminary protection that day, placing the children in the Department's custody. The court next held a summary preliminary hearing. The mother appeared, waived her right to the hearing, and consented to the entry of the preliminary order. The court (Stanfill, J. ) held a jeopardy hearing at which the mother again appeared and agreed to the entry of a jeopardy order against her as to all four children. In June 2020, the Department filed a petition for termination of the mother's and father's parental rights. The mother was served in hand with notice pursuant to 22 M.R.S. § 4053 (2021) that the Department had filed the petition, but the notice did not contain the date of the termination hearing. The date and time of the hearing was set later by the court and was provided to the mother's trial counsel.

[¶4] On September 16, 2020, the court (Dow, J. ) held a hearing on the Department's termination petition. Although the mother had appeared at court for the two previous hearings in the case, she did not appear for the termination hearing. Trial counsel was also absent when the hearing began. The father—who, at the time, was incarcerated and scheduled to be released in three and a half months—and his counsel appeared on time. Initially, the father indicated that he was contesting the petition. However, after a colloquy with the court about his choice to contest or consent to termination, the father, through his counsel, requested a continuance so that he could "prove himself" after his release from imprisonment. The Department and the guardian ad litem both objected to a continuance.

[¶5] It was only then that the mother's trial counsel came into the courtroom. He said that he was late because he thought the hearing had been continued. Although his client was absent and he plainly was not ready to proceed, he did not join in the father's motion to continue nor did he make his own motion to continue or otherwise object to the hearing proceeding without his client. He told the court that he had notified his client of the hearing date but failed to point out that his client had appeared at both previous hearings.

[¶6] The court denied the father's motion to continue and declared a recess to enable the father to meet with his attorney and to decide whether to contest or consent to termination. After the recess, the father consented to the termination of his parental rights.

[¶7] The court then commenced an evidentiary hearing on the Department's petition as to the mother. The Department's only witnesses were the Department's permanency caseworker assigned to the case and the guardian ad litem. Trial counsel's cross-examination consisted of six questions to the caseworker and none to the guardian ad litem. After the Department rested, trial counsel presented no evidence on the mother's behalf. However, he did tell the court that he had sent a text to the mother that the hearing had begun and that the mother had not responded. At no time did trial counsel request that the record remain open for a limited time so that he could speak with his client and determine whether she had any evidence to present.

[¶8] The court did not invite closing argument, and trial counsel did not request an opportunity to present it. Instead, the court stated on the record its findings by clear and convincing evidence that the Department had proved all four statutory criteria for parental unfitness. See 22 M.R.S. § 4055(1)(B)(2)(b) (2021). It next determined that termination of the mother's parental rights was in the children's best interests. See 22 M.R.S. § 4055(1)(B)(2)(a) (2021). The court entered a judgment terminating her parental rights as to the four children. Because the termination of the mother's parental rights was involuntary, a byproduct of the court's judgment is that she will be subject to an "aggravating factor" in any future child protection proceeding involving her child. See 22 M.R.S. § 4002(1-B)(C) (2021) ; see also 22 M.R.S. §§ 4034(4), 4036-B(3), 4041(2)(A-2)(1), 4052(2-A)(B) (2021). The mother timely appealed from the judgment. See 22 M.R.S. § 4006 (2021) ; M.R. App. P. 2B(c)(1).

[¶9] After filing the notice of appeal, trial counsel moved to withdraw from the case, and interim counsel was appointed to represent the mother. Interim counsel filed a combined motion for relief from judgment, pursuant to M.R. Civ. P. 60(b), and to set aside default, pursuant to M.R. Civ. P 55(c).³ Although the Rule 60(b) motion did not expressly assert a claim of ineffective assistance of counsel at the trial phase, it recited the same list of alleged shortcomings in trial counsel's performance that the mother relies on in her ineffective assistance claim before us. However, the motion contained no supporting affidavit, meaning that even if it had expressly asserted an ineffective assistance claim, it was still facially deficient. See In re Tyrel L. , 2017 ME 212, ¶ 10, 172 A.3d 916. The court denied the motion.

[¶10] Interim counsel then moved for further findings of fact and conclusions of law on the court's denial of the motion. See M.R. Civ. P. 52(b).⁴ Before the court could rule on her Rule 52(b) motion, the mother filed a notice of appeal of the judgment denying her Rule 60(b) motion. See 22 M.R.S. § 4006. The court granted the Rule 52(b) motion, stating only that "the mother's [ Rule 60(b) ] motion was denied for the reasons stated in the Department's ... Response."

[¶11] Next, interim counsel moved to withdraw. We granted interim counsel's motion, appointed appellate counsel, and consolidated the appeal of the original termination judgment with the appeal of the denial of the Rule 60(b) motion. Appellate counsel filed in the trial court a second Rule 60(b) motion for relief from judgment. This motion expressly alleged ineffective assistance of trial counsel and added an ineffective assistance claim as to the mother's interim counsel. It also included the required affidavit. See In re M.P. , 2015 ME 138, ¶¶ 19, 21, 126 A.3d 718. Appellate counsel also asked that we enlarge the briefing period for the consolidated appeal. See M.R. App. P. 10(a). We permitted the trial court to act on the mother's pending motion and directed that the appeal proceed thereafter. The trial court has subsequently denied the second motion as untimely in light of the deadline that we established in In re M.P. , 2015 ME 138, ¶ 20, 126 A.3d 718.

II. DISCUSSION

A. Availability of Review

[¶12] The mother argues that she received ineffective assistance of counsel at both the trial and post-judgment phases of her case. Before we can address the mother's claim with regard to either stage, we must determine whether it is properly before us. We have articulated a specific procedure by which a parent can bring a claim of ineffective assistance of counsel in a termination case. Id. ¶¶ 19-21 & n.5. If a parent wishes to make a claim of ineffective assistance without relying on evidence extrinsic to the trial court record, the parent may do so via an appeal directly from the termination judgment. In re Aliyah M. , 2016 ME 106, ¶ 6, 144 A.3d 50. But "if the basis for the parent's ineffectiveness challenge is not clear from the existing record ..., the parent must promptly move for relief from a judgment terminating his or her parental rights ...." Id. (quotation marks omitted). In both circumstances, the parent "must execute and file an affidavit stating, with specificity, the basis for the claim." Id. ¶ 7 (quotation marks omitted).

[¶13] An affidavit filed on direct appeal "must not contain information that is extrinsic to the existing record." Id. If a parent claims ineffective assistance through a Rule 60(b) motion for relief from judgment, the parent "must file an affidavit setting out the extrinsic information underlying the claim." Id. ¶ 8. Such a motion allows the trial court to "make a prompt preliminary determination of whether to allow the parties to present additional testimony if...