In re Child of Radience K. , 208 A.3d 380 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 73Docket: Was-18-180
Argued: December 12, 2018
Decided: May 21, 2019
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE CHILD OF RADIENCE K.
HJELM, J.
[¶1] A mother and father appeal from a judgment of the District Court
(Calais, D. Mitchell, J.) terminating their parental rights to their child pursuant
to Maine’s Child and Family Services and Child Protection Act (MCPA), 22 M.R.S.
§§ 4001 to 4099-H (2018) and the Indian Child Welfare Act of 1978 (ICWA),
25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No. 116-8). Both parents
challenge the court’s determination that “active efforts [had] been made to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family,” as required by ICWA. 25 U.S.C.S. § 1912(d).
Additionally, the mother challenges the sufficiency of the evidence supporting
the court’s determination that she is parentally unfit within the meaning of
state law, see 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), and the father challenges the
court’s denial of his two motions to transfer the case to the Penobscot Nation
Tribal Court, see 25 U.S.C.S. § 1911(b), and the denial of his post-judgment
2
motion alleging ineffective assistance of counsel, see M.R. Civ. P. 60(b)(6). We
affirm the judgment.
I. BACKGROUND
[¶2] The following facts are drawn from the court’s findings, which are
supported by competent record evidence, and from the extensive procedural
record. In re Evelyn A., 2017 ME 182, ¶ 4, 169 A.3d 914.
[¶3] The child at issue in this case is an Indian child within the meaning
of ICWA. See 25 U.S.C.S. § 1903(4).1 The Department first became involved with
the family in 2012 when the father was charged with crimes arising from his
possession of child pornography on the family computer. The following year,
he was convicted of multiple counts of possession of sexually explicit material
(Class C), 17-A M.R.S. § 284(1)(C) (2018). After the father served the
unsuspended portion of the resulting prison sentence, the Department closed
the family’s case because any contact between the father and the child was to
be supervised by the mother.2
1 ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” 25 U.S.C.S. § 1903(4) (LEXIS through
Pub. L. No. 116-8). The child is a member of the Penobscot Nation and is therefore an “Indian child”
within the meaning of ICWA.
2The court was presented with evidence showing that, as part of the father’s sentence, he was
subject to conditions of probation that prohibited him from having contact with children under the
age of sixteen, except for supervised contact with his child and the children of friends or family.
3
[¶4] The Department became involved with the family again in February
of 2016, when it petitioned the court for child protection and preliminary
protection orders on behalf of the child, see 22 M.R.S. §§ 4032-4034, who was
then six years old. The Department filed the petition after receiving new
information that the father had sexually abused a child to whom he is related.
The Department knew of the family’s affiliation with the Penobscot Nation and,
before filing the petition, notified the Nation of its intent to do so.3 See
25 U.S.C.S. § 1912(a) (requiring that notice be provided to the Indian child’s
tribe); see also id. § 1903(5) (defining “Indian child’s tribe”). The court granted
the petition for a preliminary protection order and placed the child in
departmental custody. The court also appointed counsel for each parent, see id.
§ 1912(b); 22 M.R.S. § 4005(2), and granted the Penobscot Nation’s motion to
intervene, see 25 U.S.C.S. § 1911(c); 22 M.R.S. § 4005-D(5).
[¶5] After holding a summary preliminary hearing in March of 2016, the
court found that the child was in immediate risk of serious harm and ordered
that the child remain in the Department’s custody. See 22 M.R.S. § 4034(4). The
court also addressed the pertinent provisions of ICWA, finding that active,
3 Because the child was not living on the reservation when she was placed in the Department’s
custody, the District Court had concurrent jurisdiction with the Penobscot Nation Tribal Court. See
25 U.S.C.S. § 1911(b) (LEXIS through Pub. L. No. 116-8); see also Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 60-61 (1989).
4
albeit unsuccessful, efforts had been made to prevent the breakup of the Indian
family and that continued custody of the child by the parents would result in
serious emotional or physical damage to the child.4 See 25 U.S.C.S.
§ 1912(d)-(e). Soon after the court held the summary preliminary hearing, the
father was arrested on charges resulting from the child abuse allegations that
had been reported to the Department, and he remained incarcerated
throughout the pendency of this child protection action.
[¶6] In June of 2016, the mother—who was now represented by her
second attorney—and the father agreed to a jeopardy order, see 22 M.R.S.
§ 4035, in which the court found, among other things, that the child had made
detailed disclosures of inappropriate conduct by the father, that the father
posed a threat of sexual abuse or exploitation to the child,5 and that the mother
4Evidence in the record indicates that a few days after the summary preliminary hearing, the
child was placed with her current foster parents, one of whom is a member of the Passamaquoddy
Tribe and, at the time of the child’s placement, was thought to be a distant relative of the child.
Though it was later discovered that the foster parent is biologically unrelated to the child, both the
Penobscot Nation’s caseworker and its designated expert witness testified that the placement of the
child with these foster parents is considered by the Penobscot Nation to be a placement with
“extended family.” See Penobscot Nation Laws and Ordinances, ch. 15, subch. 1, § 2(16) (2016)
(defining “extended family” to include “individuals [who] are unrelated by either birth or marriage,
who have an emotionally significant relationship with the [child] that would take on the
characteristics of a family relationship”).
5During the jeopardy hearing, when asked about the pending sexual abuse charges, the father
asserted his Fifth Amendment privilege against self-incrimination, and from this the court drew an
adverse inference against him. See M.R. Evid. 513(b); In re Ryan M., 513 A.2d 837, 841-42 (Me. 1986).
5
had failed to protect the child from the risk of sexual abuse or exploitation
posed by the father.
[¶7] In the months after the court entered the jeopardy order, counsel
for each parent filed a motion to withdraw. The court granted the motions and
appointed new counsel for each parent.
[¶8] A contested judicial review hearing began in February of 2017. See
id. § 4038. Shortly thereafter, the father’s second attorney filed a motion to
withdraw. The court granted the motion and appointed the father his third
attorney. In late March of 2017, before the second day of the judicial review
hearing was held, the Department filed a petition to terminate the parental
rights of each parent. See id. § 4052. On the Department’s motion, the court
consolidated the termination hearing with the ongoing judicial review hearing.
See M.R. Civ. P. 42(a).
[¶9] In early June of 2017, each of the parents’ third attorneys filed a
motion to withdraw. The court granted both motions and assigned the father
new counsel; the mother initially stated that she wanted to represent herself
but eventually petitioned the court to appoint a new attorney. During the
transition of counsel, the parents filed a number of joint motions pro se, which
the court addressed at a hearing held on a date in July when the consolidated
6
hearing had been scheduled but was continued by the court because of the
recent change in the parents’ representation.
[¶10] Because of circumstances unrelated to this appeal, the
now-consolidated hearing on the termination petition and the judicial review
was not rescheduled to begin until December 4, 2017. Just prior to that date,
on November 28, the father filed a motion for the case to be transferred from
the District Court to the Penobscot Nation Tribal Court pursuant to ICWA. See
25 U.S.C.S. § 1911(b); 25 C.F.R. § 23.115 (2018). The Nation and the child’s
guardian ad litem each filed a written objection to the transfer.6 The court held
a hearing on the motion on the first morning of the consolidated hearing and,
after receiving evidence, denied it, stating:
The Court finds that this proceeding is at an advanced stage and
that the father did not act promptly to request the transfer after he
received notice of the action. . . . He’s had a desire to request a
transfer for a long time[,] according to his testimony.
. . . [E]ven assuming that his prior attorneys were indeed not
responsive, he’s demonstrated an ability on his own to file his own
motions.
6 As the court noted at the motion hearing and as we were advised during oral argument, the
Penobscot Nation’s objection to the father’s motion to transfer does not necessarily mean that the
Tribal Court would have declined to accept transfer of the case. Neither the mother nor the
Department took a position on the father’s motion to transfer.
7
[¶11] The court then proceeded with the hearing on the termination
petition and judicial review, which took place over six days from December of
2017 through February of 2018. The court heard testimony from a number of
witnesses, including the mother and the father; caseworkers from the
Department and the Penobscot Nation Department of Social Services;
therapists for the mother and the child; one of the child’s foster parents; and a
qualified expert witness, as ICWA requires, designated by the Penobscot
Nation, see 25 U.S.C.S. § 1912(f); 25 C.F.R. § 23.122 (2018).
[¶12] On April 19, 2018, the court entered a judgment granting the
Department’s termination petition. Addressing the standards set out in the
MCPA, the court found by clear and convincing evidence that each parent was
unwilling or unable to protect the child from jeopardy or take responsibility for
the child and that those circumstances were unlikely to change within 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 by clear and convincing
evidence that termination of each parent’s parental rights is in the best interest
of the child. See id. § 4055(1)(B)(2)(a). Then, applying the provisions of ICWA,
the court found that the Department had proved by clear and convincing
evidence that active remedial efforts had been made to prevent the breakup of
8
the Indian family and that those efforts had proved unsuccessful, see 25 U.S.C.S.
§ 1912(d), and also that the Department had proved beyond a reasonable doubt
that continued custody of the child by the parents was likely to result in serious
emotional or physical damage to the child, see id. § 1912(f)—a conclusion
supported by the testimony of the Nation’s ICWA-mandated expert witness.
[¶13] In its judgment, the court made the following findings of fact, all of
which are supported by competent record evidence.
Mother has failed to demonstrate through her conduct that she
understands the risk posed by the Father and that she is able to
protect the child.
. . . Mother permitted [Father to have] unsupervised contact
[with the child,] which, based on the child’s disclosures, enabled
Father to watch naked pictures or movies with the child while
naked. Despite engaging in counseling and the Non Offenders
Group, something she did on an inconsistent basis, Mother
continued to maintain contact with the Father, calling him daily and
visiting him on weekends during his incarceration to discuss this
case. . . . Mother’s actions speak much more loudly than do her
words and the court does not find her testimony credible.
The Department through its various case workers offered
rehabilitative services and attempted on numerous occasions to
maintain contact with the mother, who at times was simply not
around and who rarely maintained contact with the Department
herself. . . . The Department made referrals to counselors, held
family team meetings, and took efforts to ensure that Mother
understood what was expected of her. . . . [Mother] is in no better
position now to safely parent the child, protect the child from
jeopardy and take responsibility for the child than she was when
the case began. These circumstances are not likely to change
9
within a time reasonably calculated to meet the child’s needs,
particularly when the child has been in care since February 2016.
. . . [The jeopardy order] found that Father “poses a threat of
serious harm to the child . . . in particular a threat of sexual abuse
or exploitation” . . . based on his criminal convictions and the
current criminal allegations involving a young relative. [The
psychologist] who conducted the CODE [court-ordered diagnostic
evaluation] and whose testimony the court finds credible, found
. . . that Father “either lacks an ability to understand or
acknowledge the jeopardy he poses to a child sexually and to the
pathological power and control as well as potential exploitation he
has over a vulnerable child.” . . . Significantly, the evidence also
supports a finding that Father carries a diagnosis of pedophilia, a
condition that is exceedingly difficult to treat if at all, particular[ly]
from a jail, where Father has been since essentially the outset of
this case.
....
In this case, reasonable or active efforts[7] to provide
services designed to prevent the breakup of the family would
7 In In re Annette P., 589 A.2d 924 (Me. 1991), we affirmed a judgment terminating parental rights
to Indian children, stating that “all reasonable active efforts” had been made to prevent the breakup
of the Indian family. Id. at 929 (emphasis added). After we issued that opinion, the federal Bureau
of Indian Affairs issued a rule, 25 C.F.R. § 23.2 (2018) (the Final Rule), and non-binding guidance,
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,790-91, 38,825 (June 14, 2016) (to be
codified at 25 C.F.R. pt. 23), that addressed the standard for assessing “active efforts.” The BIA’s
non-binding guidance notes that the “active efforts” standard is different than a “reasonable efforts”
standard, which is contained in many state child protection laws. See Indian Child Welfare Act
Proceedings, 81 Fed. Reg. at 38,791; see also, e.g., 22 M.R.S. § 4036-B (2018) (requiring the
Department to “make reasonable efforts to prevent removal of the child from home”); In re Child of
James R., 2018 ME 50, ¶ 21, 182 A.3d 1252 (stating that “the Department is required to make
reasonable efforts to rehabilitate and reunify the family of a child removed from the home”
(quotation marks omitted)). Although at oral argument the mother raised this distinction between
the two standards, she did not raise the issue in her brief—and in fact in her brief she cited the
reasonableness standard set forth in Annette P. as the correct standard—and therefore did not
preserve the issue for our review. See Bayside Enters., Inc. v. Me. Agric. Bargaining Bd., 513 A.2d 1355,
1361 (Me. 1986) (holding that an issue raised for the first time at oral argument is not preserved for
review). Even if the issue had been preserved, her argument would be unavailing because the court’s
findings in this case regarding active efforts satisfy the standard set out in the BIA’s Final Rule and
non-binding guidance.
10
include, at a minimum, offering services to the mother designed to
improve her ability to recognize the threat posed by Father and be
able to demonstrate her ability to protect the child from that threat.
The court finds that the Department has done that. Although it
offered services with more local therapists, the Mother wanted to
see counselors in Bangor. The Department at times provided
transportation for that to occur. Moreover, the Department
provided Family Team Meetings in order to gauge the direction of
the case and address issues. Despite the services offered, the
Department’s efforts were not successful. . . .
With respect to Father, the Department did assist in having a
counselor at the jail see the Father and also took efforts with the
county jail to enable Father to participate in team meetings. It also
arranged for a CODE early on, which the Father did not initially
attend. . . . Admittedly, Father’s incarceration made it difficult for
services to be offered and for him to participate. However,
. . . pedophilia lacks an effective treatment, and according to the
Qualified Expert Witness, the Department is not obligated to
engage in efforts, reasonable[,] active[,] or otherwise, that may
prove fruitless. Based on the evidence and based on the [Nation’s]
Qualified Expert Witness’s opinion, the court finds, by clear and
convincing evidence, that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved
unsuccessful.
In addition to engaging in “active efforts[,”] the Department
has established and the court finds by proof beyond a reasonable
doubt that . . . continued custody of the child by either parent is
likely to result in serious emotional or physical damage to the child.
. . . Absent a demonstrated understanding of the significant risk
Father poses both by his prior conduct and by that which the child
has recently disclosed, the child remains at significant risk and is
likely to suffer serious emotional or physical damage, victimization
and injury, all of which is supported by the opinion of the Qualified
Expert Witness.
11
(Footnotes omitted.)
[¶14] The mother and father filed timely notices of appeal. See 22 M.R.S.
§ 4006; M.R. App. P. 2B(c)(1). The mother then filed a motion in the District
Court for relief from judgment on the ground of ineffective assistance of
counsel. See M.R. Civ. P. 60(b)(6); In re M.P., 2015 ME 138, ¶¶ 20-21, 126 A.3d
718. At the same time, the Department and the mother filed a joint motion to
stay the appeal and permit the trial court to act on the mother’s Rule 60(b)
motion. See M.R. App. P. 3(d).
[¶15] The father then filed his own motion for relief from judgment in
the District Court on the ground of ineffective assistance of counsel,
accompanied by his supporting affidavit, see M.R. Civ. P. 60(b)(6); In re M.P.,
2015 ME 138, ¶¶ 20-21, 126 A.3d 718, and a motion to enlarge the time to file
additional affidavits in support of that motion. The father also filed a motion
with us to stay the appeal and permit the trial court to act on his Rule 60(b)
motion. See M.R. App. P. 3(d). We granted each parent’s motion to stay the
appeal and permitted the trial court to act on the parents’ Rule 60(b) motions.
Following the issuance of our order, the father filed his second motion in the
District Court to transfer the case to the Penobscot Nation Tribal Court. See
25 U.S.C.S. § 1911(b); 25 C.F.R. § 23.115.
12
[¶16] Based on the existing record and the court’s extensive familiarity
with this case, and without taking additional evidence, see In re David H., 2009
ME 131, ¶ 34, 985 A.2d 490, the court issued two orders. In one order, the court
addressed the father’s motion to transfer the case to Tribal Court and
concluded that it was without authority to act on the motion because the father
had failed to seek leave from us to take such action. See M.R. App. P. 3(d). The
court’s second order denied the parents’ Rule 60(b) motions after determining
that the father’s claim of ineffectiveness at the jeopardy hearing was untimely
and rejecting on the merits each parent’s claim of ineffectiveness. See In re M.P.,
2015 ME 138, ¶¶ 26-27, 126 A.3d 718.
[¶17] After the court entered judgment on all of the matters properly
before it, the appeal moved forward, taking us to the issuance of this opinion.
II. DISCUSSION
[¶18] This appeal presents a broad range of issues for our consideration:
the substantive state and federal standards governing the termination of
parental rights to an Indian child; temporal considerations for motions to
transfer a child protection action from state court to a tribal court; temporal
and substantive standards for claims of ineffective assistance of counsel at the
13
jeopardy and termination stages of a child protection case; and appellate
practice.
A. Judgment Terminating the Parents’ Parental Rights
[¶19] State court child protection proceedings involving Indian children,
such as the child at issue here, see supra n.1, require the court to apply both
state child protection law prescribed by Maine’s Child and Family Services and
Child Protection Act, and federal law prescribed by the Indian Child Welfare Act
of 1978. Because of the differences in state and federal law, we briefly review
the pertinent parts of each before addressing the merits of the parents’
contentions.
1. Applicable Provisions of the MCPA and ICWA
[¶20] “Recognizing that . . . the right to family integrity is limited by the
right of children to be protected from abuse and neglect,” 22 M.R.S. § 4003, the
Legislature enacted the MCPA to provide legal processes that
[remove children] from the custody of their parents only where
failure to do so would jeopardize their health or welfare; . . . [g]ive
family rehabilitation and reunification priority as a means for
protecting the welfare of children, but prevent needless delay for
permanent plans for children when rehabilitation and
reunification is not possible; . . . [and p]romote the early
establishment of permanent plans for the care and custody of
children who cannot be returned to their family,
14
id. § 4003(2)-(4).8 Because the relationship between a parent and a child is
constitutionally protected, see Troxel v. Granville, 530 U.S. 57, 65-66 (2000),
when the Department files a petition to terminate parental rights, the Due
Process Clause of the United States Constitution and Maine law require that the
Department prove each of the two elements of a termination case—parental
unfitness as statutorily defined,9 and the child’s best interest—by clear and
convincing evidence, see 22 M.R.S. § 4055(1)(B)(2); Santosky v. Kramer, 455 U.S.
745, 769-70 (1982).
[¶21] When a child protection action involves an Indian child, the
Department is also obligated to meet the federal requirements found in ICWA.
Through ICWA, Congress recognized “that there is no resource that is more vital
to the continued existence and integrity of Indian tribes than their children,”
Title 22 M.R.S. § 4003(3) (2018) has since been amended. P.L. 2017, ch. 470, § 1 (effective
8
December 13, 2018) (codified at 22 M.R.S. § 4003(3)).
9As provided in 22 M.R.S. § 4055(1)(B)(2)(b) (2018), the four statutory forms of parental
unfitness are as follows:
(i) The parent is unwilling or unable to protect the child from jeopardy and these
circumstances are unlikely to change within a time which is reasonably calculated to meet
the child’s needs;
(ii) The parent has been unwilling or unable to take responsibility for the child within a
time which is reasonably calculated to meet the child’s needs;
(iii) The child has been abandoned; or
(iv) The parent has failed to make a good faith effort to rehabilitate and reunify
with the child pursuant to section 4041.
15
25 U.S.C.S. § 1901(3), and established “minimum Federal standards for the
removal of Indian children from their families and the placement of such
children in foster or adoptive homes [that] will reflect the unique values of
Indian culture,” id. § 1902; see also In re Trevor I., 2009 ME 59, ¶ 15, 973 A.2d
752.
[¶22] ICWA imposes two elements of proof in a state court termination
proceeding beyond those required by state law. First, ICWA requires “[a]ny
party seeking to effect a . . . termination of parental rights to . . . an Indian child
under State law [to] satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved unsuccessful.”
25 U.S.C.S. § 1912(d). Although ICWA does not identify the standard of proof
applicable to this element, we have held that those active efforts must be
established by clear and convincing evidence. See In re Annette P., 589 A.2d 924,
928 (Me. 1991). Second, ICWA requires that the petitioning party show
“beyond a reasonable doubt . . . that the continued custody of the child by the
parent . . . is likely to result in serious emotional or physical damage to the
child.” 25 U.S.C.S. § 1912(f).
16
[¶23] Therefore, pursuant to the combined effect of the state and federal
statutes, when the child to be protected is an Indian child, the Department must
prove three elements by clear and convincing evidence: (1) the parent of the
child is parentally unfit; (2) termination of parental rights is in the child’s best
interest; and (3) active efforts have been made to prevent the breakup of the
child’s Indian family and those efforts have been unsuccessful. Additionally, the
Department must prove beyond a reasonable doubt that the child is likely to
suffer serious emotional or physical damage if the child were to remain in the
parent’s custody.
2. The Parents’ Contentions
[¶24] With that background, we first address the parents’ common
assertion that the court erred by finding that active efforts had been made to
prevent the breakup of the Indian family, as required by ICWA. See 25 U.S.C.S.
§ 1912(d). We then address the mother’s assertion that the court erred by
finding that she was parentally unfit within the meaning of state law. See
22 M.R.S. § 4055(1)(B)(2)(b).
a. The Parents’ Shared Contention: Active Efforts
[¶25] The parents do not challenge the court’s conclusions that
termination of their parental rights is in the best interest of the child and that
17
the child would likely suffer serious emotional or physical damage if she were
to remain in their custody, and the father does not challenge the court’s
conclusion that he is parentally unfit. Instead, each parent contends that the
court erred by finding that active efforts had been made to prevent the breakup
of the Indian family and that those efforts had proved unsuccessful. “Like the
determination of the other elements under [22 M.R.S. § 4055(1)], we will affirm
the court’s findings [of active efforts] if supported by clear and convincing
evidence in the record.” In re Annette P., 589 A.2d at 928.
[¶26] Although the nature of “active efforts” is not defined in ICWA itself,
it is defined in a rule promulgated in 2016 (the Final Rule) by the federal Bureau
of Indian Affairs.10 See 25 C.F.R. § 23.2 (2018). The Final Rule specifies that
“active efforts” comprise “affirmative, active, thorough, and timely efforts
intended primarily to maintain or reunite an Indian child with his or her
family.” Id. Where an agency—such as the Department—is involved, “active
efforts must involve assisting the parent or parents . . . through the steps of a
case plan and with accessing or developing the resources necessary to satisfy
the case plan.” Id. Moreover, “[t]o the maximum extent possible,” active efforts
should be made consistent with “the prevailing social and culture conditions
10 The Final Rule applies in this case because it was promulgated in December of 2016, three
months before the termination petition was filed. See 25 C.F.R. § 23.143 (2018).
18
and way of life of the Indian child’s Tribe and should be conducted in
partnership” with the child, the parents, the extended family members, and the
tribe. Id. “Active efforts are to be tailored to the facts and circumstances of the
case,” and may include the following:
(1) Conducting a comprehensive assessment of the circumstances
of the Indian child’s family, with a focus on safe reunification as the
most desirable goal;
(2) Identifying appropriate services and helping the parents to
overcome barriers, including actively assisting the parents in
obtaining such services;
(3) Identifying, notifying, and inviting representatives of the Indian
child’s Tribe to participate in providing support and services to the
Indian child’s family and in family team meetings, permanency
planning, and resolution of placement issues;
(4) Conducting or causing to be conducted a diligent search for the
Indian child’s extended family members, and contacting and
consulting with extended family members to provide family
structure and support for the Indian child and the Indian child’s
parents;
(5) Offering and employing all available and culturally appropriate
family preservation strategies and facilitating the use of remedial
and rehabilitative services provided by the child’s Tribe;
....
(7) Supporting regular visits with parents . . . in the most natural
setting possible as well as trial home visits of the Indian child
during any period of removal, consistent with the need to ensure
the health, safety, and welfare of the child;
19
(8) Identifying community resources including housing, financial,
transportation, mental health, substance abuse, and peer support
services and actively assisting the Indian child’s parents or, when
appropriate, the child’s family, in utilizing and accessing those
resources;
(9) Monitoring progress and participation in services.
Id.[¶27] In this case, competent record evidence supports the court’s
findings that active efforts were made to prevent the breakup of this Indian
family and that those efforts were unsuccessful. See 25 U.S.C.S. § 1912(d);
25 C.F.R. § 23.2. As the court found, the Department had provided significant
case management services to the family, including scheduling family team
meetings to address parenting issues and gauge any progress toward
reunification; referring the mother to services intended to “improve her ability
to recognize the threat posed by [the] Father and . . . protect the child from that
threat,” including the non-offenders group and multiple counselors; helping to
provide the mother with transportation to attend the services provided to her;
assisting the father in securing a counselor willing to provide services at the jail
facility; and arranging for each parent to participate in a CODE.11
11 Though not included as a finding in the termination judgment, the court was presented with
evidence that, after being placed in the Department’s custody, the child was also provided with
counseling and participated in a CODE evaluation.
20
[¶28] As the court found, the active efforts directed toward the mother
were not successful—an outcome that was largely attributable to her
unwillingness to participate in the services that were offered. The Department
presented the court with evidence that its caseworkers had difficulty contacting
the mother and that multiple counselors had discharged the mother as a client
because of her inconsistent attendance. Moreover, in spite of the efforts made
to improve the mother’s understanding of the danger the father poses to their
child, the mother chose to maintain a relationship with the father by regularly
contacting him—including in person—while he was incarcerated.
[¶29] With regard to the father, the court made the supported finding
that because he was incarcerated throughout the pendency of this case on
charges of sexually assaulting a child, it was difficult for the Department to
provide him with services. The court also found that the father is a diagnosed
pedophile, a pathology that lacks effective treatment, particularly for
incarcerated persons. Given the high risk of harm the father poses to the child,
the court did not err by concluding that the Department’s actions—including
facilitating his attendance at family team meetings, assisting him with access to
a counselor, and making two CODE referrals—rose to the level of active efforts
21
“tailored to the facts and circumstances of the case,” 25 C.F.R. § 23.2, and that
those efforts were unsuccessful, see 25 U.S.C.S. § 1912(d).
[¶30] Competent record evidence also supports the court’s finding that
“the Department included the Penobscot Nation in the process of managing this
case.” The Department gave the Nation advance notice of its plan to file the
child protection petition, and, through its caseworker, the Nation was an active
participant—including as a decision-maker—throughout the pendency of the
proceedings. The Nation’s caseworker attended family team meetings,
communicated directly with the child’s foster parents, and made a home visit.
Moreover, the Nation’s caseworker helped to fashion a cultural contract
between the Penobscot Nation and the child’s foster parents—whom the
Nation considers to be the child’s extended family members, see supra n.4—to
ensure that the child’s life will continue to be enriched by tribal culture, thereby
manifesting a demonstrable active effort to maintain and nurture the
connection between the Nation and the child.12
12 Additionally, in accordance with the provisions of the Interstate Compact for the Placement of
Children, 22 M.R.S. §§ 4251-4269 (2018), the Department arranged for ICPC studies of the homes of
the child’s maternal grandmother and grandfather, see id. § 4255, who live separately in California,
as possible kinship placements for the child. At the time of the hearings on the termination petition,
neither home was approved as a placement for the child.
22
[¶31] Importantly, the court properly relied on the opinion of the
Nation’s designated qualified expert witness, cf. 25 U.S.C.S. § 1912(e); 25 C.F.R.
§ 23.122, who testified that, in her opinion, the Department had engaged in
active efforts as ICWA requires, and, although the Department bears the burden
of proving active efforts, that the parents are responsible for engaging in those
efforts. The court’s supported findings establish that the parents failed to fulfill
that responsibility.
[¶32] For these reasons, the court was fully warranted in concluding that
the Department had satisfied its burden to show clearly and convincingly that
active efforts had been made to prevent the fracture of this Indian family but
that the efforts were unsuccessful.
b. The Mother’s Additional Contention: Parental Unfitness
[¶33] Beyond this, the mother contends that the court also erred by
determining that she is parentally unfit because she was unable or unwilling to
protect the child from jeopardy or take responsibility for the child within a time
period reasonably calculated to meet the child’s needs. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(ii). She asserts that evidence in the record shows that
she now understands the risks that the father poses to the child, that she has
learned how to identify signs of sexual abuse and sexual abusers, and that she
23
has “improved since starting therapy.” We review the court’s findings of fact
for clear error. See In re Child of Kimberlee C., 2018 ME 134, ¶ 5, 194 A.3d 925.
[¶34] The mother’s assertion is undermined by the court’s supported
assessment that her words were belied by her actions throughout this child
protection proceeding. The court found in its earlier jeopardy order—and the
mother agreed—that she had failed to protect the child from the threat of
sexual abuse or exploitation posed by the father. At the termination hearing,
the court was presented with evidence of the mother’s close and ongoing
relationship with the father despite his incarceration and the risks she knows
he presents to the child, including evidence that she even invited him to
participate in her own therapeutic counseling sessions. The court rejected the
credibility of the mother’s testimony—as it was entitled to do—that sought to
minimize her contact with the father and demonstrate a shift in her
appreciation of the danger he poses to the child. Moreover, the mother’s failure
to engage meaningfully with the Department or the services provided to her is
further proof of her inability to protect or take responsibility for the child
within a time reasonably calculated to meet the child’s needs. See In re Child of
Ronald W., 2018 ME 107, ¶ 11, 190 A.3d 1029; In re Charles G., 2001 ME 3, ¶ 7,
763 A.2d 1163.
24
[¶35] The court did not err by finding the mother to be parentally unfit
on those two statutory grounds.
B. The Father’s Motions to Transfer to Tribal Court
[¶36] The father asserts that the court erred by denying both of his
motions to transfer this proceeding to the Penobscot Nation Tribal Court. See
25 U.S.C.S. § 1911(b). He filed the first of these motions shortly before the
termination hearing was scheduled to begin, and he filed the second after we
stayed this appeal to allow the court to adjudicate the parents’ Rule 60(b)
motions alleging ineffective assistance of counsel. Because of the differing
procedural contexts in which the father filed the motions to transfer, we
address them separately.
1. Pre-Judgment Motion to Transfer to Tribal Court
[¶37] The father challenges the court’s denial of his first motion to
transfer the case to the Tribal Court, see 25 U.S.C.S. § 1911(b), which he filed
within a week before the termination hearing was scheduled to begin. In
denying the motion, the court concluded that there was good cause to allow the
matter to continue in state court because the motion was filed at an advanced
stage of the case. See id. The father asserts that the court erred because ICWA
precludes a court from treating an advanced-stage filing of such a motion as a
25
proper basis to deny it. We construe the provisions of section 1911(b) de novo.
See In re Children of Shirley T., 2019 ME 1, ¶ 16, 199 A.3d 221.
[¶38] Section 1911(b) specifies that
[i]n any State court proceeding for the . . . termination of parental
rights to . . . an Indian child not domiciled or residing within the
reservation of the Indian child’s tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding to the
jurisdiction of the tribe, absent objection by either parent, upon the
petition of either parent . . . or the Indian child’s tribe: Provided, that
such transfer shall be subject to declination by the tribal court of
such tribe.
25 U.S.C.S. § 1911(b) (first emphasis added). Thus, when a petition to transfer
a case to a tribal court is filed by either a parent or the child’s tribe, “[t]he tribal
court’s jurisdiction is ‘presumptive[]’ unless a parent objects, the tribe declines
jurisdiction, or good cause to maintain the matter in the state court is
established.”13 In re Children of Shirley T., 2019 ME 1, ¶ 14, 199 A.3d 22113 Pursuant to both the Final Rule, 25 C.F.R. § 23.116 (2018), and general notions of case
management, the best practice is for the state court, at the earliest practicable time, to contact the
tribal court and inquire whether the tribal court would be inclined to accept or decline the transfer,
to the extent that the tribal court is in a position to assess the situation in that preliminary setting.
Here, this provision of the Final Rule was not brought to the attention of the trial court by any party
in this case, and given the temporal circumstances discussed in the text, any procedural shortcoming
is not material to our treatment of this issue on appeal.
The Final Rule also provides that a party objecting to a transfer motion must present the objection
and its basis on the record, either orally or in writing, and the court must then provide all parties
with an opportunity to be heard on the matter. 25 C.F.R. § 23.118(a)-(b) (2018). These requirements
were satisfied here.
26
(quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989))
(second alteration in original); see also 25 C.F.R. § 23.117 (2018).
[¶39] As with the meaning of “active efforts” discussed supra ¶¶ 21-32,
“good cause” is neither defined nor further explicated in ICWA itself but is
addressed in the Final Rule. See 25 C.F.R. § 23.118 (2018). The Final Rule,
however, does not go so far as to define or provide examples of what is good
cause. Rather, the Final Rule identifies certain factors that a court may not
consider in its calculus of whether there is good cause to deny a transfer of the
case to a tribal court. The prohibited consideration relevant here is “[w]hether
the . . . termination-of-parental-rights proceeding is at an advanced stage if the
Indian child’s parent . . . or Tribe did not receive notice of the child-custody
proceeding until an advanced stage.”14 Id. § 23.118(c)(1). BIA guidelines
published in 2016 further clarify the relevant provisions in ICWA and the Final
Rule by stating that “Congress intended for the transfer requirement and its
14 The other factors, none of which is germane here, are
(2) Whether there have been prior proceedings involving the child for which no
petition to transfer was filed;
(3) Whether transfer could affect the placement of the child;
(4) The Indian child’s cultural connections with the Tribe or its reservation; or
(5) Socioeconomic conditions or any negative perception of Tribal or BIA social
services or judicial systems.
25 C.F.R. § 23.118(c)(2)-(5) (2018).
27
exceptions to permit State courts to exercise case-by-case discretion regarding
the ‘good cause’ finding,” similar to “a modified (i.e. limited, narrow) version of
the forum non conveniens analysis.” Indian Child Welfare Act Proceedings,
81 Fed. Reg. 38,778, 38,821, 38,825 (June 14, 2016) (to be codified at 25 C.F.R.
pt. 23); see also In re Children of Shirley T., 2019 ME 1, ¶ 24, 199 A.3d 221.
[¶40] Although “[t]here is no dispute that the burden to prove good
cause falls on the party opposing tribal jurisdiction,” Thompson v. Fairfax Cty.
Dep’t of Family Servs., 747 S.E.2d 838, 848 (Va. Ct. App. 2013); see also People ex
rel. T.I., 707 N.W.2d 826, 834 (S.D. 2005), neither ICWA nor the Final Rule
identifies the evidentiary standard applicable to the good-cause analysis.
Several courts have determined that the applicable standard of proof is clear
and convincing evidence. See, e.g., State v. Reich-Crabtree (In re M.H.C.),
381 P.3d 710, 715 (Okla. 2016); People ex rel. J.L.P., 870 P.2d 1252, 1257 (Colo.
App. 1994); In re M.E.M., 635 P.2d 1313, 1317 (Mont. 1981); see also Indian
Child Welfare Act Proceedings, 81 Fed. Reg. at 38,827. This is the standard of
proof that the court applied here. Because this high standard operates to the
father’s benefit, we assume, without the need to decide, that this is the proper
quantum of evidence that must be met to defeat a motion to transfer.
28
[¶41] The father contends that the court erred by finding that his motion
was “untimely and made at [an] advanced stage and [that the] father didn’t act
promptly” because, the father asserts, the provision of the Final Rule quoted
above prohibits the court from considering the advanced stage of the
proceedings in its good-cause analysis. This prohibition, however, does not
apply here because, pursuant to the plain language of the Final Rule, the court
is foreclosed from considering an advanced stage of the proceeding when
making a good-cause determination only “if the Indian child’s parent . . . or Tribe
did not receive notice of the child-custody proceeding until an advanced stage.”
25 C.F.R. § 23.118(c)(1) (emphasis added). In this way, the prohibition is meant
to “ensure[] that parents . . . and Tribes who were disadvantaged by
noncompliance with ICWA’s notice provisions may still have a meaningful
opportunity to seek transfer.” Indian Child Welfare Act Proceedings, 81 Fed.
Reg. at 38,825.
[¶42] Here, there was no deficiency in the notice of this action—and the
applicability of ICWA to it—provided both to the father and to the Penobscot
Nation. In fact, the father testified during the hearing on his motion to transfer
that “[v]ery early on” he had asked his first attorney “to give [him] information
on ICWA and tribal aspects of this case” and that his request to transfer the case
29
to the Tribal Court was “something [he had] been thinking about since this case
first started.” The Nation received notice of the impending child protection case
even before the Department filed the child protection petition in February of
2016 and was granted intervenor status the following month—and in that
capacity explicitly opposed the father’s motion to transfer the case to its Tribal
Court. Because there was no failure or deficiency in notice of this child
protection action, the court did not err as a matter of law when it considered
the advanced stage of the proceedings in its good-cause inquiry.
[¶43] The father further contends that even if the court was permitted
to consider the advanced stage of the proceedings, the term “advanced stage”
refers to each stage of a child protection case, not the case as a whole, and that
because his motion was filed before the termination hearing began, the motion
was not filed at an advanced stage of that proceeding.
[¶44] For purposes of the advanced-stage analysis, the sequential
procedural phases of a child protection case are considered separately. See
Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38,825 (“Each individual
proceeding will culminate in an order, so ‘advanced stage’ is a measurement of
the stage within each proceeding.”). Therefore, we must look only to the
30
termination phase of this case to assess whether the court erred by concluding
that the father filed the motion unduly late.
[¶45] Although the termination hearing had not begun when the father
filed the motion, the termination proceeding in this case began in March of
2017—almost eight months before the father filed the motion—when the
Department filed the termination petition. The hearing on that petition was
then continued multiple times for legitimate reasons—including once at the
father’s own request so that his fourth, most recently appointed attorney would
have adequate time to prepare.
[¶46] Given those temporal circumstances, including the last-minute
filing of the motion to transfer, and the father’s demonstrated proficiency at
filing motions without the assistance of counsel, the court did not err by
concluding that there was good cause to deny the father’s pre-judgment motion
to transfer.
2. Post-Judgment Motion to Transfer to Tribal Court
[¶47] The father next asserts that the court erred by declining to
consider his post-judgment motion to transfer this case—meaning the
proceeding to address his Rule 60(b) motion alleging ineffectiveness of
counsel—to the Penobscot Nation Tribal Court for adjudication there. The
31
father filed that motion in the District Court after we had stayed the appeal to
allow the District Court to act on his pending Rule 60(b) motion. The court
denied the motion to transfer after concluding that it did not have authority to
act that motion because of the effect of Maine Rule of Appellate Procedure 3(c).
The court was correct.
[¶48] After an appeal is filed, “[t]he trial court shall take no further action
pending disposition of the appeal,” Doggett v. Town of Gouldsboro, 2002 ME
175, ¶ 5, 812 A.2d 256 (quotation marks omitted), unless either the trial court’s
action is explicitly permitted by Maine Rule of Appellate Procedure 3(c), or, on
a motion that states the reason for the request, we authorize the trial court to
act, see M.R. App. P. 3(d).
[¶49] Rule 3(c) did not authorize the trial court to adjudicate the father’s
post-judgment motion to transfer because the motion is not among the small
number of enumerated matters on which the trial court may take action while
an appeal is pending without our leave. Beyond that, with respect to Rule 3(d),
the father’s motion for us to stay the appeal so as to allow the trial court to act
on post-trial matters did not encompass the motion to transfer. Rather, his
motion sought to allow the District Court to act only on “his May 31, 2018,
motions,” which comprised only his Rule 60(b) motion alleging ineffective
32
assistance of counsel and a related motion for an enlargement of time to file
affidavits in support of that motion. Because the court was not authorized to
act on the father’s post-judgment motion to transfer, the trial court correctly
declined to consider it.
C. The Father’s Rule 60(b) Motion for Relief from Judgment Alleging
Ineffective Assistance of Counsel
[¶50] The father finally argues that the court erred by denying his motion
for relief from judgment based on an allegation of ineffective assistance of
counsel.15 He claims that he was not represented effectively by his first
attorney at the jeopardy hearing, and he also claims that his next three lawyers,
who represented him sequentially through the time the court issued the
termination judgment, were ineffective because none of them filed a timely
motion to transfer the case to the Tribal Court. The father filed his notice of
appeal, however, before the court denied his Rule 60(b) motion and did not file
a separate notice of appeal from that order. This raises the question of whether
the father’s challenge to this post-judgment order is properly before us. We
address this issue first.
15Although the court also denied the mother’s Rule 60(b) motion alleging ineffective
representation, she does not challenge that determination on appeal.
33
1. Appealing a Decision on a Rule 60(b) Motion for Relief from
Judgment
[¶51] As the governing rule applies here, to appeal a civil judgment, the
party must file a notice of appeal within “21 days after entry into the docket of
the judgment or order appealed from.” M.R. App. P. 2B(c)(1)-(2), (d). The
notice of appeal “shall specify the party taking the appeal [and] designate the
judgment or part thereof appealed from.” M.R. App. P. 2A(b)(1).
[¶52] Maine Rule of Appellate Procedure 2B(c)(2) provides that a timely
notice of appeal is deemed to encompass challenges to certain enumerated
post-judgment orders issued after the notice of appeal is filed, without the need
for the party to file a separate notice of appeal from that order. The list of
motions that qualify for this treatment is explicitly exhaustive, as the Rule
states that it “does not apply to any post-judgment motion that is not listed”
therein. Id.[¶53] The effect of this is to place all parties on notice of what the
appellant must do to be able to challenge a particular judicial action on appeal,
and to ensure that the appellee receives the opportunity to adequately
represent its interests on that appeal, such as verifying that the appendix
contains the documents that bear on the appellate issues, see M.R. App. P. 8(i).
See Estate of MacComb, 2015 ME 126, ¶ 10, 124 A.3d 1119 (“A failure to comply
34
with the Maine Rules of Appellate Procedure . . . compromises both the
appellee’s ability to defend against the appeal and our ability to decide it.”).
[¶54] A motion for relief from judgment pursuant to M.R. Civ. P. 60(b)—
such as the motion at issue here—is not among the motions enumerated in
Rule 2B(c)(2). Consequently, the father’s notice of appeal from the underlying
termination judgment was not sufficient to preserve a challenge to the
subsequent denial of his Rule 60(b)(6) motion. Rather, to present that
challenge for appellate review, he was required to file a separate notice of
appeal of that post-judgment order. Having not done so, the father’s assertion
that the court erred by denying his Rule 60(b) motion is not cognizable on this
appeal. See Rice v. Amerling, 433 A.2d 388, 391 (Me. 1981) (stating that “[a]ll
statutory requirements for perfecting an appeal are jurisdictional and require
strict compliance”); cf. In re Melissa T., 2002 ME 31, ¶ 5, 791 A.2d 98 (stating
that because the mother filed a brief but did not file any notice of appeal as
required by the Maine Rules of Appellate Procedure “we lack jurisdiction to
review her claim”).
[¶55] Even if the father had preserved for appellate review his challenge
to the court’s denial of his motion, his contention would be unavailing. The
father’s claim of ineffectiveness extended to all four of the attorneys who
35
represented him in the trial court and encompassed the jeopardy and
termination phases of this case. In its order, the court concluded that the
motion as it related to the jeopardy hearing was untimely, and that, on the
merits, the father had not established ineffective assistance of counsel
subsequent to the jeopardy hearing, including during the termination
proceedings. The court committed no error by denying both aspects of the
motion. As to the claim of ineffectiveness by the three attorneys who
represented him seriatim after the jeopardy hearing, we are satisfied the
evidence did not compel the court to make the findings necessary for it to grant
his motion. See In re Alexandria C., 2016 ME 182, ¶¶ 18-20, 152 A.3d 617(stating the elements of a claim of ineffectiveness and the standard of review
for an appellate challenge of the denial of a motion asserting such a claim). As
to the father’s claim that the court erred by denying his motion as untimely to
the extent the motion related to the jeopardy stage of this case, we take this
opportunity to clarify the applicable law.
2. Raising a Claim of Ineffective Representation Provided at the
Jeopardy Stage of a Child Protection Action
[¶56] As a threshold matter, we must conclude that a parent’s right to
counsel during the jeopardy stage of child protection proceeding includes the
right to the effective assistance of counsel. Maine law provides that, subject to
36
two limited exceptions not relevant to this appeal, parents are entitled to be
represented by legal counsel in all child protection proceedings, which includes
the jeopardy phase of the case. 22 M.R.S. § 4005(2). Implicit in this right to
legal counsel is the right to representation that is competent and effective. See
Petgrave v. State, 2019 ME 72, ¶ 6, ---A.3d--- (concluding that the statutory right
to counsel at a probation revocation hearing encompasses the right to effective
representation); In re Henry B., 2017 ME 72, ¶ 6, 159 A.3d 824 (same with
respect to the statutory right to counsel during an involuntary commitment
proceeding). This is particularly true in a child protection action, which
implicates a parent’s constitutional right to parent his or her child. See Troxel,
530 U.S. at 65-66; see also Pitts v. Moore, 2014 ME 59, ¶ 11, 90 A.3d 1169.
[¶57] The issue generated here is of a narrower, temporal nature: for
how long after the entry of a jeopardy order may a parent bring a timely claim
of ineffective assistance of counsel in a motion for relief from judgment
pursuant to Rule 60(b)(6)?
[¶58] In In re M.P., 2015 ME 138, ¶¶ 18-21, 126 A.3d 718, we established
procedures for parents to bring claims of ineffective assistance of counsel in a
termination proceeding. Among other things, we stated that a claim of
ineffective assistance of counsel may be raised in a direct appeal if the record
37
already contains the basis for the claim, but otherwise the claim must be
presented in a Rule 60(b)(6) motion for relief from a judgment that is filed
within 21 days after the expiration of the time to appeal the underlying
judgment. Id. ¶¶ 19-20. We have made clear that the importance of protecting
“parents’ fundamental right to effective assistance of counsel” must be balanced
against the “simultaneous interest of the State in promoting ‘the early
establishment of permanent plans’ for the children.” In re Evelyn A., 2017 ME
182, ¶ 19, 169 A.3d 914 (quoting 22 M.R.S. § 4003(4)); see also In re M.P., 2015
ME 138, ¶ 21, 126 A.3d 718 (“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.”).
[¶59] The need for a “swift resolution of ineffectiveness claims” at the
termination stage of child protection proceedings, In re M.P., 2015 ME 138, ¶ 19,
126 A.3d 718, applies just as forcefully at the jeopardy stage because of the
nature of the parents’ interests that are affected by a jeopardy order and the
ongoing importance of achieving ultimate permanency for the child. If, for
example, a parent were allowed to wait until after the entry of a termination
judgment before reaching back and challenging the process affecting a much
38
earlier phase in the case, there would be the prospect that much of the case
could be unwound, resulting in unnecessary and damaging delays in the case’s
resolution. Therefore, we now announce that the procedural requirements
governing a motion for relief from judgment based on a claim of ineffective
assistance of counsel in a jeopardy proceeding—including the deadlines for
filing such a motion relative to the date a jeopardy order is entered—are the
same as those we prescribed for a claim of ineffectiveness at a termination
hearing, see id. ¶¶ 20-21.16
[¶60] This extension of the post-termination framework governing
claims of ineffective assistance of counsel to jeopardy hearings was not in place
at the time the jeopardy order was issued against the father, and we therefore
do not hold the father rigidly to the temporal requirements of that process.
Nonetheless, the court did not err by denying the father’s Rule 60(b) motion for
relief from the jeopardy order as untimely because, even if the father is allowed
to benefit from a more generous view of when such a claim must be raised, the
father filed the motion beyond any reasonable temporal parameter—nearly
two years after the jeopardy order was entered. See In re Evelyn A., 2017 ME
A parent has the statutory right to appeal from a jeopardy order, see 22 M.R.S. §§ 4006, 4035
16
(2018), and therefore has access to the same procedural vehicle for asserting a claim of
ineffectiveness as with a judgment terminating parental rights.
39
182, ¶¶ 7, 12, 19, 169 A.3d 914 (concluding that the parents’ challenge to the
effectiveness of counsel at a jeopardy proceeding “came far too late” where the
challenge was brought more than two years after the entry of the jeopardy
order and many months after the termination judgment was entered); M.R.
Civ. P. 60(b) (requiring that a motion for relief from judgment be made “within
a reasonable time”); see also 22 M.R.S. § 4003(3) (stating the Legislature’s
intent to “prevent needless delay for permanent plans for children”). During
that nearly two-year period that began in June of 2016, the attorney who
represented the father at the jeopardy hearing was given leave to withdraw in
September of 2016, and the father then came to be represented by three more
attorneys in series, eliminating any concern that the father would have had to
assert a claim of ineffectiveness against his current attorney. These
circumstances allowed ample time and opportunity for the father to have
asserted, pursued, and be heard on a claim of ineffective representation at the
jeopardy hearing.
[¶61] Therefore, the court acted well within its authority when it denied
as untimely the father’s Rule 60(b) motion as it related to counsel’s
representation of him at the jeopardy hearing.
40
III. CONCLUSION
[¶62] This action presented the court with considerable challenges both
in case management and on the merits, including the application of complex
laws governing substance and process, the consideration and analysis of a large
body of evidence, and the participation of parents who did not work well with
their numerous legal counsel. Despite these challenges, the court’s
management of this case was exemplary, and the court committed no error by
terminating the parents’ parental rights and denying their other requests for
relief.
The entry is:
Judgment affirmed.
Randy G. Day, Esq., Garland, and Amy R. McNally, Esq. (orally), Woodman
Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant mother
Laura P. Shaw, Esq. (orally), Camden Law LLP, Camden, for appellant father
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Department of Health and
Human Services
Carolyn Adams, Esq., Law Office of Carolyn Adams, Waterville, for appellee
Penobscot Nation Department of Social Services.
Calais District Court docket number PC-2016-01
FOR CLERK REFERENCE ONLY