In re T.B.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 49
Docket: Ken-12-478
Argued: April 9, 2013
Decided: May 23, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, and GORMAN, JJ.
IN RE T.B.
ALEXANDER, J.
[¶1] The father appeals from a judgment entered in the District Court
(Waterville, Dow, J.) terminating his parental rights to three-year-old T.B. See
22 M.R.S. § 4055(1)(B)(2) (2012). The father’s sole argument on appeal is that,
prior to trial, he was denied due process when the court did not, on its own
initiative, inform him that he could proceed without counsel after denying the
father’s motion to dismiss his current counsel and his implicit motion to appoint
new counsel to represent him at trial. We affirm the judgment.
I. CASE HISTORY
[¶2] The father, now forty-four years old, has a long history of substance
abuse, mental health issues, criminal activity, and incarceration. In addition to
numerous convictions for various other offenses, the father was convicted of
assault in 2009. During his probationary period for the 2009 conviction, the father
tested positive for drug use in violation of a condition of probation and, upon
signing an extensive bail contract, was admitted to the co-occurring disorders court
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(CODC) in October 2009. The father’s obligations with respect to participation in
CODC included random drug testing.
[¶3] T.B. was born in May 2010. Two days after T.B.’s birth, the
Department of Health and Human Services filed a request for and was granted a
preliminary protection order as to T.B.’s mother. The mother thereafter consented
to the termination of her parental rights.
[¶4] The father was confirmed to be T.B.’s biological father in February
2011. He requested and was given appointed counsel that month. His counsel
moved to withdraw one month later, citing deterioration of the attorney-client
relationship. The court granted the motion and appointed new counsel to represent
the father.
[¶5] The father met T.B., who was then ten months old, for the first time in
March 2011. In May 2011, the father stipulated to the entry of a jeopardy order
and entered into a reunification plan in which he agreed to random drug testing and
continuing attendance in CODC. Reunification services were interrupted in June
2011 when the father was incarcerated for a probation violation after he tested
positive for marijuana and benzodiazepines.
[¶6] After the father’s release from jail, reunification services resumed, and
the Department placed T.B. with the father in October 2011. That placement was
initially successful. However, in December 2011 and in January 2012, the father
3
tested positive three times for marijuana use in violation of conditions of probation.
He was incarcerated for two weeks. The Department removed T.B., then almost
twenty-one months old, from the father’s care in January 2012.
[¶7] After the father was released from jail in February 2012, the
Department developed a new reunification plan for the father, but the father again
tested positive for marijuana use that same month. He was incarcerated for a third
time during the reunification period with T.B., this time for a period of four
months. The Department then filed a petition to terminate the father’s parental
rights. A hearing on that petition was scheduled for June 21, 2012.
[¶8] Approximately one week before the hearing was scheduled to begin,
the father personally moved for substitution of court-appointed counsel,
specifically identifying two other attorneys that he wanted to represent him. On
June 19, 2012, the court held a hearing on the father’s motion for substitution of
counsel and on his attorney’s oral motion to withdraw at the father’s request. The
court denied the motions on the grounds that trial was to start in two days and that
the father’s attorney had adequately prepared for trial. At the time, the child had
been in State custody for over two years.
[¶9] Because the court needed to address certain pretrial motions, the trial
on the petition to terminate parental rights was continued to July 12, 2012. The
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father did not renew his motion for substitution of counsel during this three-week
continuance.
[¶10] Before opening statements on the morning of trial, the father’s
attorney again moved to withdraw, stating that the father wished to proceed in a
manner that she believed was not legally proper. The court denied the motion,
noting that it was the morning of a difficult-to-schedule trial, that the attorney was
the father’s second court-appointed attorney, and that the court had “no concerns
about the way [the attorney has] represented [the father’s] interests.” The father
then spoke, stating that he wanted his present counsel to be allowed to withdraw
because there had been an ongoing lack of communication, his attorney had told
him that if he testified the way he intended he would perjure himself, and his
attorney had failed to locate all of the witnesses that he wanted to testify. The
court provided the father multiple opportunities to articulate fully his reasons in
support of his motion.
[¶11] In a lengthy colloquy, the father made clear that his primary concern
was that, having just been released from jail, he wanted more time to prepare for
trial and that several witnesses he wanted to testify had not been contacted and, in
any event, his “number one witness” would not be available to testify that day.
Thus, the father indicated that what he sought was both the withdrawal of counsel
and a continuance of the proceedings. The court again denied the father’s motion,
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and the father preserved his continuing objection to the denial. Despite having
ample opportunity, the father never indicated any interest in representing himself at
the hearing.
[¶12] At the close of the two-day trial, the court stated on the record that it
found the father to be unfit and that termination of his parental rights was in the
child’s best interests, after which the court issued a full written decision. After the
hearing, the father explicitly requested appointment of new counsel for purposes of
appeal, again identifying two alternative attorneys by name. The court granted the
father’s request, and the father brings this appeal through his third court-appointed
counsel.
II. LEGAL ANALYSIS
[¶13] At oral argument, the father’s attorney clarified that the only issue on
appeal is whether the father’s due process rights under the United States and Maine
Constitutions were violated because, “under the circumstances of this case, the trial
court needed to complete the process of figuring out who was going to speak for
the father,” asserting that the court failed to allow the father an opportunity to
articulate fully what he wanted to have happen when he moved for dismissal of his
appointed counsel.1 It is from this point that we begin our analysis.
1
Specifically, when asked whether his argument is that “fundamental fairness requires that the judge
say to a party affirmatively, ‘and you have the right to represent yourself,’” the father’s attorney replied
that he was “trying to be a little more cautious than that. I’m saying that fundamental fairness suggests
that the trial court should be comfortable that the person presenting the case is someone that the father
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[¶14] A parent determined to be indigent has a due process right to
appointed counsel at State expense in a child protection proceeding initiated by the
State, unless the right is knowingly waived. Hatch v. Anderson, 2010 ME 94, ¶ 7,
4 A.3d 904; Danforth v. State Dep’t of Health & Welfare, 303 A.2d 794, 795,
800-01 (Me. 1973); cf. Lassiter v. Dep’t of Social Servs. of Durham Cty., N.C.,
452 U.S. 18, 24-27, 30-34 (1981) (declining to recognize a per se due process right
under the Fourteenth Amendment to court-appointed representation for indigent
persons in state-initiated termination of parental rights proceedings). This right to
counsel is codified by state statute specifying that indigent parents involved in
child protection proceedings initiated by the State are entitled in most types of such
proceedings to court-appointed legal counsel, paid for by the State, and that
counsel must be appointed to them upon their request. 22 M.R.S. § 4005(2)
(2012); see In re Christopher C., 499 A.2d 163, 164 (Me. 1985).
[¶15] The father here repeatedly invoked his right to court-appointed
counsel, and for good reason. There is significant benefit derived from
representation by counsel and disadvantages that arise from a party’s proceeding
without counsel in child protective matters. See In re Christopher C., 499 A.2d at
164-65; Danforth, 303 A.2d at 799.
wants to present his case” and the father never had an opportunity to say to the court how he wanted to
proceed at trial because the court “simply cut the whole inquiry off.”
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[¶16] We have emphasized, however, that child protective proceedings are
somewhat unique in that the rights of the parent litigants are not the only interests
at stake. “The core purpose of that process is to protect children.” In re D.P.,
2013 ME 40, ¶ 13, --- A.3d --- (citing 22 M.R.S. § 4003 (2012) (“[T]he health and
safety of children must be of paramount concern and . . . the right to family
integrity is limited by the right of children to be protected from abuse and
neglect”)); see In re Richard G., 2001 ME 78, ¶¶ 11-12, 770 A.2d 625 (recognizing
the State’s interest in the well-being of children). A child protective proceeding
may even implicate the interests of other children not addressed in the particular
proceeding. See In re D.P., 2013 ME 40, ¶ 14, --- A.3d ---.
[¶17] A court must determine the best interest of the child, which interest
may be best served by proper representation of a parent to ensure that all issues and
interests in a child protective proceeding are fully and fairly litigated. See Lassiter,
452 U.S. at 27-28 (stating that the State has an “urgent interest” in the child’s
welfare in a child protective proceeding and shares “the parent’s interest in an
accurate and just decision,” and that those interests may be best served when both
the State and the parent are represented by counsel).
[¶18] Here, the father repeatedly invoked his right to appointed counsel. He
requested counsel at the initial stages of these proceedings when it was determined
that he was the biological father of T.B. When his first appointed counsel moved
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to withdraw on grounds that the father lacked faith in his counsel and the
attorney-client relationship had deteriorated, the father was again given and
accepted court-appointed counsel. This second attorney represented the father
continuously for more than fifteen months without any indication that the father
was dissatisfied by that representation. The father did not move to dismiss his
second appointed counsel until one week before the trial on the petition for
termination of his parental rights was scheduled to begin.
[¶19] At that time, the father unambiguously sought new court-appointed
counsel, as evidenced by his naming possible replacement attorneys. After the
court denied that motion, the father remained silent for three weeks, until moving
again for dismissal or substitution of counsel at the start of trial. At that time,
contrary to the father’s claim on appeal, the court provided the father with an
extensive opportunity to present his arguments in support of his motion. In his
argument, the father did not suggest in any way that he wanted to proceed
unrepresented. To the contrary, the record before us indicates only that the father
consistently sought to be represented by counsel from the initiation of the
proceedings through to the appeal now before us.
[¶20] Given the facts of the case, we do not reach the father’s contention
that the court violated his due process rights by neglecting to determine, sua
sponte, whether the father wanted to proceed unrepresented. See In re
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Christopher H., 2011 ME 13, ¶ 18, 12 A.3d 64 (“Before we reach directly any
constitutional issue, prudent appellate review requires that we first determine
whether the issue may be resolved on a basis that does not implicate the
constitution.”).2 The father made apparent to the trial court at every step of the
proceeding that he wanted appointed counsel and had no intention to waive that
right.
[¶21] We thus confine our review to the determination of whether the court
abused its discretion in denying the father’s motion to dismiss or substitute his
counsel on the day of trial and his implicit motion to continue. See In re Trever I.,
2009 ME 59, ¶ 28, 973 A.2d 752; Bradshaw v. Bradshaw, 2005 ME 14, ¶ 10,
866 A.2d 839; see also State v. Dunbar, 2008 ME 182, ¶ 5, 960 A.2d 1173.
[¶22] On the record before us, the court did not abuse its discretion in
denying the father’s motion to substitute or dismiss counsel or his implicit motion
for a continuance. See In re Trever I., 2009 ME 59, ¶ 28, 973 A.2d 752;
2
In In re Christopher H., the appellant argued that the court violated his due process rights when the
court failed to determine on the record at his hearing for involuntary commitment whether the appellant
was able to meaningfully participate in his hearing after having been involuntarily administered
medication the previous day, or whether the hearing should be postponed. 2011 ME 13, ¶¶ 1, 17, 12 A.3d
64. We held that it was unnecessary to reach that constitutional issue because, despite the fact that the
court was informed that the appellant had been medicated prior to the hearing, the court failed to engage
the party in a colloquy to determine his ability to participate in the hearing, which resulted in an
inadequate record for appellate review. Id. ¶¶ 18-19.
The father in this case argues in part that the court in the termination of parental rights hearing failed to
engage the father in a colloquy to ascertain “who was going to speak for the father,” but unlike the court
in In re Christopher H., the trial court in this case had no reason to engage in such a colloquy when the
father had made clear throughout the child protective proceedings that he wanted court-appointed counsel.
10
Bradshaw, 2005 ME 14, ¶ 10, 866 A.2d 839;3 see also State v. Brown, 2000 ME
25, ¶¶ 17-20 & n.9, 757 A.2d 768 (stating in the context of a criminal matter that
“[a] court need not tolerate unwarranted delays, and, if in the sound discretion of
the court the attempted exercise of choice is deemed dilatory or otherwise
subversive of the orderly . . . process, the court may compel a defendant to go to
trial even if he is not entirely satisfied with his designated attorney”).
The entry is:
Judgment affirmed.
On the briefs:
Jack Hunt, Esq., Kennebunk, for appellant father
Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen.,
Office of the Attorney General, Augusta, for appellee Department of
Health and Human Services
At oral argument:
Jack Hunt, Esq., for appellant father
Nora Sosnoff, Asst. Atty. Gen., for appellee Department of Health and
Human Services
3
The father has not argued that the court’s decision to not continue the trial violated his due process
rights, and we do not address that issue. See Holland v. Sebunya, 2000 ME 160, ¶ 9 n.6, 759 A.2d 205;
see also In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463.