In re Corey T. , 2018 ME 20 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 20Docket: Cum-17-394
Submitted
On Briefs: January 11, 2018
Decided: February 1, 2018
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE COREY T.
PER CURIAM
[¶1] The mother of Corey T. appeals from a judgment entered by the
District Court (Portland, Eggert, J.) finding jeopardy as to the mother pursuant
to 22 M.R.S. § 4035 (2017).1 She contends that the evidence was insufficient to
support the trial court’s finding of jeopardy.2 Because the record evidence
supports the court’s finding and determination of jeopardy, we affirm the
judgment.
1 The court also found jeopardy as to the father. The father filed an appeal that was later
withdrawn.
2 The jeopardy order included a provision, based on the court’s finding that continued
reunification services were inconsistent with the permanency plan, relieving the Department of
Health and Human Services of its obligation to provide the mother with reunification services
pursuant to 22 M.R.S. § 4041(2)(A-2)(2) (2017). Although the mother challenges this finding and
order, that part of her appeal is from an interlocutory order and we do not address it. See 22 M.R.S.
§ 4006 (2017); In re Z.S., 2015 ME 110, ¶ 8, 121 A.3d 1286 (“[T]he disposition ordered by a court
after it makes [a jeopardy] finding is not appealable.”) (second alteration in original) (quotation
marks omitted); In re Johnna M., 2006 ME 46, ¶ 7, 903 A.2d 331.
2
[¶2] The Department of Health and Human Services initiated a child
protection proceeding, and the court (Dobson, J.) entered a preliminary
protection order and placed the child in Department custody on April 22, 2017,
the day the child was born. After a contested hearing, by order dated
September 14, 2017, the court (Eggert, J.) found jeopardy to the child’s health
and welfare. The court based its jeopardy determination on the following
findings of fact:
The mother . . . has been diagnosed with Schizoaffective
Disorder, and she has been working with [a service provider] for at
least the past year. Based on the testimony, it is clear that the
mother struggles with daily functioning and social interactions due
to her mental health diagnosis. According to her psychiatric nurse
practitioner, the mother is only able to manage her own activities
of daily living and there are no signs that she can do much more
than that, preventing her from being able to appropriately care for
an infant.
[The mother] has been living at [a women’s homeless
shelter] for the past seven years, but cannot live there with a child.
She may soon be getting more permanent housing at a [supported
housing] group home, which would provide her with 24-hour
support and would be good for her. The group home is only for
adults. There is no way to determine how long she would be a
resident there, but estimates of six months to two years are too
long to wait for permanency for this infant.
[¶3] Based on these findings, the court determined, by a preponderance
of the evidence, that the child was in circumstances of “jeopardy to his health
3
and welfare in the absence of a Jeopardy Order.” See 22 M.R.S. § 4035(2). The
mother timely appealed. See 22 M.R.S. § 4006; M.R. App. P. 2B(c)(1).
[¶4] Contrary to the mother’s contentions, the court’s findings are
supported by competent evidence in the record that can rationally be
understood to establish as more likely than not that the child was in
circumstances of jeopardy to his health and welfare.3 See 22 M.R.S. § 4035(2);
In re Nicholas S., 2016 ME 82, ¶¶ 9, 13, 140 A.3d 1226.
The entry is:
Judgment affirmed.
Kristina Dougherty, Esq., Wise Old Law, LLC, Portland, for appellant mother
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Health and Human
Services
Portland District Court docket number PC-2017-39
FOR CLERK REFERENCE ONLY
3 The mother also made an ineffective-assistance-of-counsel claim in her direct appeal from the
jeopardy order. Ineffective-assistance-of-counsel claims in child protection proceedings are an “area
of evolving jurisprudence.” In re Evelyn A., 2017 ME 182, ¶ 19, 169 A.3d 914. We need not reach the
mother’s argument because, even assuming that the claim is cognizable on appeal from a jeopardy
order, such a claim would require a prima facie showing of ineffectiveness. See In re Aliyah M.,
2016 ME 106, ¶ 12, 144 A.3d 50. Without deciding whether, and how, a parent may make a claim for
ineffective assistance of counsel to challenge a jeopardy order, we conclude that the record does not
support a genuine claim that counsel’s performance rose to the level of serious incompetency,
inefficiency, or inattention, or that “the [mother] was prejudiced by counsel’s alleged failure[s].”
In re Tyrel L., 2017 ME 212, ¶¶ 8, 12-14, 172 A.3d 916 (second alteration in original) (quotation
marks omitted).