In re Child of Kenneth S.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 14Docket: Wal-21-203
Submitted
On Briefs: December 21, 2021
Decided: February 17, 2022
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HORTON, and CONNORS, JJ.
IN RE CHILD OF KENNETH S.
JABAR, J.
[¶1] In this consolidated appeal, the father challenges the termination of
his parental rights as to his child entered in the District Court. (Belfast,
Worth, A.R.J.). The mother raises an appeal conditioned on our vacating the
District Court’s termination of the father’s parental rights.1 We affirm the
judgment as to both parents.
I. BACKGROUND
[¶2] The facts are drawn from the court’s findings, which were entered
after a five-day consolidated hearing and are supported by competent record
evidence. See In re Children of Michelle C., 2021 ME 61, ¶ 2, 264 A.3d 1221.
1 The mother argues that, if we were to vacate the trial court’s termination of parental rights to
the father based on any of his challenges, it would not be in the child’s best interest to terminate her
rights. Because we affirm the order terminating the father’s parental rights, we need not reach this
argument. Additionally, as discussed below, the trial court’s determinations as to parental unfitness
of the mother and best interest of the child were supported by competent record evidence.
2
[¶3] Shortly after the child was born in 2010, the father was granted sole
parental rights and responsibilities and primary residence of the child, and the
mother’s contact was limited to supervised visits.2 Prior to 2018, the father had
sought mental health treatment for the child because the child was often
dysregulated in his emotions and actions. In March 2018, police performed a
welfare check on the child’s residence and found the child locked in his room.
In an interview, the child stated that his father dragged him up the stairs by the
hood of his sweatshirt and locked him in his room. The father was charged with
domestic violence assault related to this incident and was prohibited from
having contact with the child.3 Pursuant to a safety plan between the father and
the Department of Health and Human Services, the child was placed with his
maternal grandparents but remained in the father’s custody.
[¶4] After the child had several behavioral incidents in April and
May 2018, and after healthcare and educational professionals had difficulty
engaging with the father, the father asked the Department to take custody of
the child. On May 15, 2018, the Department filed a petition for child protection
2Between 2010 and 2018, the Department of Health and Human Services investigated the parents
several times due to its concern about the parents’ ability to care for the child but never opened a
case.
3 This charge was later dismissed pursuant to a plea agreement where the father pleaded guilty
to disorderly conduct and was ordered to pay a fine.
3
that included a request for a preliminary protection order. The court
(Mathews, J.) granted the Department custody of the child that same day. The
Department continued the child’s placement with the maternal grandparents.
[¶5] On August 16, 2018, the court (Fowle, J.) entered a jeopardy order,
by agreement, as to each parent. The order as to the father stated that the father
caused the child to be in circumstances of jeopardy due to the threat of physical
and emotional harm and the deprivation of needed medical care. The order as
to the mother stated that the mother posed “the threat of injury and the
deprivation of adequate supervision and care.”
[¶6] On December 4, 2019, the Department filed a petition to terminate
the parental rights of both parents. On March 9, 2020, the father filed a motion
to continue the termination hearing, and, on March 12, the father’s attorney
moved for leave to withdraw; the court (Davis, J.) granted both motions. The
father requested a new attorney. He claimed that his attorney was to delete
certain portions of the agreed-to jeopardy order, by agreement with the state,
and had failed to move the court to amend the order to reflect those deletions.
The court appointed a new attorney on March 16, 2020. Following several
further continuances, the petition was eventually heard over five days, almost
a year later, on January 25, March 30, April 1, May 21, and May 24, 2021.
4
[¶7] At the close of the hearing, the court (Worth, A.R.J.), made no findings
or indication of its decision, instead stating that it was going to review the
exhibits and statutes and write a decision “as quickly as [it could].” The court,
then, through a clerk, via email, notified all parties that it was requesting a
proposed order and findings only from the Department. The father filed a
memorandum objecting to the court’s request and “propose[d] that no parties
provide any proposed orders and findings or that all parties provide proposed
orders and findings.” The court denied the father’s objection stating that it “had
ample opportunity to understand [the father’s] positions taken, and his likely
proposed findings and conclusions.” The court received the proposed order
and findings from the Department on June 9, 2021.
[¶8] On June 14, 2021, the court entered its termination order, finding
that the parents were unwilling or unable to protect the child from jeopardy or
take responsibility for the child in a time reasonably calculated to meet the
child’s needs and that termination was in the child’s best interest. See 22 M.R.S.
§ 4055(1)(B)(2)(a), (b)(i)-(ii) (2021).
[¶9] The court found the father unfit based on the child’s high needs, the
father’s own mental health needs, the father’s erratic therapy attendance, the
father’s claim that he was in therapy only because the Department demanded
5
it, the Department’s need to suspend visits because of the inappropriate
interactions between the father and the child that upset the child to the point
where the child no longer wanted to attend visits, and the father’s continual
denial of the inappropriateness of his actions that caused the need for the
Department’s involvement.
[¶10] The court found the mother unfit based on her significant health
needs that had occasionally led to her being hospitalized, and because, since
April 2019, she had seen the child only while supervised. The mother had
declined to have more frequent visits with the child and had stated that she did
not believe that she could parent the child on a regular basis.
[¶11] The court found that the child’s well-being had improved since he
began living with his grandparents. The child also expressed his desire to stay
with his grandparents.
[¶12] Both parents timely appealed. See 22 M.R.S. § 4006 (2021); M.R.
App. P. 2B(c)(1).
[¶13] On July 2, 2021, the father also filed a motion for relief from the
judgment, alleging ineffective assistance of counsel by the father’s first
attorney.4 M.R. Civ. P. 60(b). On October 20, 2021, the court (Martin, J.), denied
4 On August 20, 2021, we permitted the trial court to act on the father’s motion for relief.
6
the father’s motion, stating that the father had failed to make a prima facie
showing of ineffective assistance of counsel and that the motion was untimely
filed.
II. DISCUSSION
[¶14] On appeal, the father raises three arguments. He argues that the
court erred by denying his request to submit a proposed order while allowing
the Department to submit a proposed order, and such an error amounted to the
denial of a closing argument and violated his procedural due process rights. He
also argues that the trial court used language in its order that inappropriately
shifted the burden of persuasion to the father.5 Finally, he argues that his
attorneys provided ineffective assistance of counsel, necessitating remand.
A. Due Process
[¶15] The father contends that the court was required to allow him to
present a proposed order and that the court’s failure to allow him to present
5 This argument, based on the court’s imprecise use of language, is unpersuasive, and does not
warrant extended discussion. A review of the decision as a whole demonstrates that the court
properly placed the burden of persuasion on the Department. The burden remains on the
Department at all times to prove parental unfitness by clear and convincing evidence. See, e.g., In re
Forest G., 2017 ME 26, ¶ 4, 155 A.3d 879.
7
proposed findings while requesting that the Department present a proposed
order and findings was a violation of due process.6
[¶16] The state must use procedures that align with due process
requirements when terminating parental rights. In re C.P., 2016 ME 18, ¶ 17,
132 A.3d 174. This requirement allows for “an opportunity to be heard upon
such notice and proceedings as are adequate to safeguard the right which the
particular pertinent constitutional provision purports to protect.” In re
Alexander D., 1998 ME 207, ¶ 13, 716 A.2d 222 (quotation marks omitted).
Courts determine if there has been a due process violation based on
(1) the private interest that will be affected by the government’s
action; (2) the risk of an erroneous deprivation of such an interest
through the existing procedure and the probable utility of
additional or substitute procedural safeguards; and (3) the
government’s interest in adhering to the existing procedure,
including the fiscal and administrative burdens that additional
procedures might entail.
Id. (quotation marks omitted). We “review de novo whether an individual was
afforded procedural due process.” In re Children of Benjamin M, 2019 ME 147,
¶ 8, 216 A.3d 901.
6 The father also contends that not allowing him to submit a proposed order is akin to not allowing
him to make a closing argument. However, even if we equate a proposed order with a closing
argument, there is no right to make or submit a closing argument in child protection proceedings.
See In re M.B., 2013 ME 46, ¶¶ 26-29, 65 A.3d 1260 (holding that parents in a termination of parental
rights proceeding “are not entitled to closing argument as a matter of right” (quotation marks
omitted)).
8
[¶17] When addressing a due process challenge, the first factor we
consider is the private interest that will be affected by the court’s action. The
private interest at issue here involves the termination of a parent’s
constitutional right to raise his children, and we have held that “parents must
be afforded the utmost in procedural protection when the state deprives them
of their parental rights.” In re Chelsea C., 2005 ME 105, ¶ 11, 884 A.2d 97 (citing
Santosky v. Kramer, 455 U.S. 745, 753 (1982)). This factor weighs heavily in
favor of requiring a court to allow a parent to submit a proposed order and
findings when allowing the Department to submit a proposed order and
findings.
[¶18] The second factor involves a determination of whether the process
adopted carries a “risk of an erroneous deprivation . . . and [of] the probable
utility of additional or substitute procedural safeguards.” In re Alexander D.,
1998 ME 207, ¶ 13, 716 A.2d 222 (quotation marks omitted). At the conclusion
of the hearing, the trial court did not render a decision. Rather, it indicated that
it would review the evidence and “write a decision as quickly as [it could].” The
process the trial court used here—where only the Department was allowed to
submit a proposed order—could have had a significant impact upon the court’s
9
decision. The obvious procedural safeguard would have been to allow the
father to submit a proposed order and findings.
[¶19] The third factor in a procedural due process analysis—the
additional fiscal and administrative burden associated with adopting any extra
procedural safeguards—also weighs in favor of the father. Allowing the father
to submit a proposed order and findings would have imposed a negligible
administrative burden on the court.
[¶20] After considering all the factors, we conclude that the trial court
erred because its refusal to allow the father to submit a proposed order and
findings while simultaneously requesting that the Department to submit a
proposed order and findings involved a significant private interest and carried
an inherent risk of an erroneous deprivation of his parental rights.
[¶21] When the court chooses to allow or request the submission of
proposed orders and findings or to allow oral argument, it may not extend the
opportunity to one side and not the other. If the court has yet to rule, a request
for argument or a proposed order is in substance an invitation for advocacy,
and the opportunity to advocate, if it is granted, must be extended equally.7 The
7 If the court’s request is made after the court has ruled, the request can be made of the prevailing
party only, but good practice, if not due process, calls for the opposing party to be allowed to
comment on whether the prevailing party’s submission accurately reflects the court’s ruling.
10
principle of equality of access to the courts is rooted in the Due Process Clause
of the United States Constitution. See Harrington v. Harrington, 269 A.2d 310,
314 (Me. 1970) (“[E]qual access to the civil courts was among the Fourteenth
Amendment’s primary objectives.”); U.S. Const. amend. XIV. In this instance,
given that the court had not yet ruled, the court should not have invited the
Department to submit a proposed order without affording the father the same
opportunity.8
[¶22] Notwithstanding the trial court’s error, to assert a procedural due
process error on appeal, a party must articulate an identifiable prejudice.
The vacating of an order entered after a procedural error is not
automatic. To vacate such an order, this Court must determine
that it was entered after a process that was “inconsistent with
substantial justice.” M.R. Civ. P. 61. We have held that an
appellant, to be successful, must demonstrate both error and
prejudice resulting to the appellant from the claimed error.
S. Me. Props. Co. v. Johnson, 1999 ME 37, ¶ 9, 724 A.2d 1255.
[¶23] Here, the court’s procedural error did not prejudice the father. In
terms of prejudicing a parent’s case, we have stated “[i]n termination cases,
where fundamental interests are at stake, due process requires: notice of the
issues, an opportunity to be heard, the right to introduce evidence and present
We focus on the requirements of the U.S. Constitution because the father has based his appeal
8
solely on a claim of a violation of the Due Process Clause of the U.S. Constitution.
11
witnesses, the right to respond to claims and evidence, and an impartial
fact-finder.” In re Child of James R., 2018 ME 50, ¶ 17, 182 A.3d 1252 (quotation
marks omitted). Here, the father had notice of the issues and had a five-day
hearing where he testified and responded to the claims and evidence the
Department presented against him. The concern is whether the trial court,
having access only to the Department’s proposed findings, could be an impartial
fact-finder. The father does not challenge the court’s independent judgment,
stating that “[t]his case has nothing to do with whether the trial court exercised
its ‘judicial function’ or ‘independent judgment.’” Even if this had been
challenged, however, the record indicates that the court did exercise its
independent judgment and did not adopt the Department’s proposed order
verbatim. See In re Marpheen C., 2002 ME 170, ¶ 7, 812 A.2d 972 (“[A] verbatim
adoption of findings proposed by one party . . . is disfavored, as such an
approach suggests that the court has not applied its independent judgment in
making its findings and conclusions.”).
[¶24] A review of the record indicates that the trial court’s decision to
accept a proposed order and findings only from the Department did not affect
the outcome of the case.
12
[¶25] The trial court identified two bases of parental unfitness as to the
parents—(1) their unwillingness or inability to protect the child from jeopardy
and the unlikelihood these circumstances would change within a time
reasonably calculated to meet the child’s needs and (2) their unwillingness or
inability to take responsibility for the child within a time reasonably calculated
to meet the child’s needs. 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). The court’s
findings with regard to the father’s unfitness were fully supported by the
testimony presented during the trial that demonstrated, inter alia, that the
father struggled to attend therapy, declined to engage with intensive outpatient
therapy, did not engage in parenting classes despite urging from the
Department, and had multiple inappropriate visits with the child. The father
himself testified that he did not completely recognize that locking the child in
his room was inappropriate. He also testified that he was attending therapy
only because the Department required him to do so. The court’s decision
concerning the mother was supported by testimony that, during the period
between the jeopardy hearing and the trial, the mother had been hospitalized
several times due to her mental illness and had declined to expand visitation
because she did not feel capable of being a mother.
13
[¶26] With regard to the best interest of the child, the trial court’s
conclusion was supported by testimony from school officials, social workers,
therapists, and the father about the child’s extensive needs and the child’s
improvements since living with his grandparents. Notably, the mother agrees
with the court’s determination on best interest, asserting, on appeal, that she
“believes it is in her child’s best interests that both parents’ rights be
terminated.”
[¶27] In summary, the trial court’s procedural error did not prejudice
the father’s due process rights because the error did not affect the outcome of
the case. The record contains overwhelming evidence to support the court’s
determinations that the parents were unfit and that termination of their rights
was in the best interest of the child.
B. Ineffective Assistance of Counsel
[¶28] The father also argues that his first attorney rendered ineffective
assistance of counsel when he failed to delete certain portions of the initial
jeopardy order, resulting in some facts being erroneously deemed admitted for
future proceedings, and that his second attorney then failed to make a timely
challenge to the jeopardy order based on the first attorney’s ineffective
assistance. When analyzing a claim of ineffective assistance of counsel, we use
14
the Strickland standard, which requires proof of deficient performance and
resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
In re M.P., 2015 ME 138, ¶¶ 23-27, 126 A.3d 718. We have stated that the
procedural requirements for a claim of ineffective assistance at the jeopardy
stage are the same as those required at the termination-of-parental-rights
stage. In re Child of Radience K., 2019 ME 73, ¶ 59, 208 A.3d 380. These claims
can be raised on “direct appeal if the record already contains the basis for the
claim.” Id. ¶ 58. We have emphasized that the “need for a swift resolution of
ineffectiveness claims at the termination stage of child protection proceedings
applies just as forcefully at the jeopardy stage.” Id. ¶ 59 (citation and quotation
marks omitted).
[¶29] Although the initial jeopardy order was entered before our
decision in Radience K., either of the father’s attorneys could have raised the
issues with the jeopardy order when Radience K. was published. Because the
father had specifically raised issues with how the first attorney had handled the
jeopardy order when the father’s first attorney was replaced, the father’s
second attorney was on notice of the issues. That attorney failed to raise those
issues until after the court terminated the father’s parental rights. Although the
father’s claim of ineffective assistance of counsel concerning the jeopardy order
15
is not timely, we nonetheless address it in the context of the appeal from the
order terminating his parental rights.9
[¶30] We begin our analysis by considering the second prong of the
Strickland test, determining whether any potential deficient performance was
prejudicial. We review this prong by examining “whether [the] ineffective
assistance of counsel rose to the level of compromising the reliability of the
judgment and undermining confidence in it.” In re Children of Jeremy A., 2018
ME 82, ¶ 21, 187 A.3d 602 (alteration and quotation marks omitted).
Importantly, this appeal is a challenge to the termination of the father’s
parental rights, not to the jeopardy order or the court’s ruling on the father’s
Rule 60(b) motion. Ultimately, while the father argues that there were several
ways in which he was prejudiced, he fails to show how the court’s decision to
terminate his parental rights was affected by his attorneys’ failure to move the
court to amend the jeopardy order, for at least two reasons. First, it is unclear
how much of the jeopardy order the father now disputes. Second, while the
trial court referred to the jeopardy order in its order terminating parental
9 “To bring a claim of ineffective assistance of counsel . . . on direct appeal . . . the parent making
the claim must submit a signed and sworn affidavit stating, with specificity, the basis for the claim.”
In re M.P., 2015 ME 138, ¶ 21, 126 A.3d 718. The father submitted a two-page affidavit with the
appellant’s brief on October 12, 2021.
16
rights, it also relied on the testimony of numerous witnesses, including the
father’s testimony and reports of events occurring in the almost three years
between entry of the jeopardy order and the termination of parental rights
hearing. Nothing in the record indicates that any of the agreed-upon findings
at issue made any difference in the trial court’s decision to terminate his
parental rights. Because the father fails to show how changes to the jeopardy
order would have changed that outcome, the father fails to prove the second
prong of the Strickland test, prejudice.
[¶31] Because we conclude that any potential ineffective assistance of
counsel rendered by the father’s attorneys did not result in any prejudice to his
case, we do not address the first prong of the Strickland test, whether the
assistance rendered to him was deficient.
III. CONCLUSION
[¶32] Although we conclude that the trial court erred by requesting and
receiving a proposed order and findings only from the Department and
rejecting the father’s request to submit a proposed order and findings, the
father was not denied due process because he was not prejudiced by the trial
court’s error. Furthermore, the father failed to prove his claim of ineffective
assistance of counsel.
17
The entry is:
Judgment affirmed.
Rory A. McNamara, Esq., Drake Law LLC, York, for appellant father
Joseph W. Baiungo, Esq., Belfast, for appellant mother
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
Belfast District Court docket number PC-2018-11
FOR CLERK REFERENCE ONLY