In re Aliyah M.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 106Docket: Cum-15-566
Submitted
On Briefs: May 26, 2016
Decided: July 12, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
IN RE ALIYAH M.
HJELM, J.
[¶1] The mother of Aliyah M. appeals from a judgment entered in the
District Court (Portland, Eggert, J.) terminating her parental rights. The mother
asserts that the evidence was insufficient to support the court’s judgment, and she
also argues, for the first time during the pendency of this case, that she was denied
effective assistance of counsel during the termination proceedings. Concluding
that the judgment is supported by the evidence and that the mother has not
presented—in form or in substance—a prima facie case of attorney ineffectiveness,
we affirm.
I. BACKGROUND
[¶2] In May 2015, the Department of Health and Human Services filed a
petition to terminate the mother’s parental rights.1 The petition was preceded by
nearly three years of the Department’s intervention with this family beginning
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The Department also petitioned to terminate the father’s parental rights. In its judgment, the court
terminated his rights, and he has not appealed.
2
when the child was an infant, due to, among other issues, chronic domestic
violence between the parents in the child’s presence—including an incident that
resulted in serious injury to the mother and a different violent episode when the
child was knocked down—and the mother’s failure to fully acknowledge the effect
of that violence on the child.
[¶3] A three-day hearing on the termination petition was held in
September 2015. By a judgment issued in October 2015, the court terminated the
mother’s parental rights after determining by clear and convincing evidence that
she “has not made the changes necessary to meet [the child’s] needs and to protect
her from jeopardy in a reasonable time,” and that termination is in the best interest
of the child. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i) (2015).
[¶4] Through trial counsel, the mother filed a notice of appeal. See
22 M.R.S. § 4006 (2015); M.R. App. P. 2. The court then granted trial counsel’s
motion for leave to withdraw, and, at the mother’s request, we appointed new
counsel to represent her on appeal. In compliance with the process outlined in
In re M.C., 2014 ME 128, ¶ 7, 104 A.3d 139, that attorney filed an appellate brief
that outlines the factual and procedural history of the case and states that he did not
find any arguable issues of merit for appeal. Counsel also filed a motion for an
enlargement of time to allow the mother to personally file a supplemental brief.
After we granted the motion for enlargement, the mother filed a supplemental brief
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in which she disputes the evidence, challenges the court’s findings, and asserts that
trial counsel’s representation of her was ineffective.
II. DISCUSSION
[¶5] Contrary to the mother’s contentions, the evidence is sufficient to
support the court’s findings, by clear and convincing evidence, that the Department
proved at least one ground of parental unfitness and that termination is in the best
interest of the child. See 22 M.R.S. § 4055(1)(B)(2); In re G.T., 2016 ME 2, ¶ 10,
130 A.3d 389. We write, however, to address the mother’s additional argument
that she was denied effective assistance of counsel during the termination
proceedings.
[¶6] We have held that there are two ways a parent can raise a claim of
ineffective representation in a termination case. See In re M.P., 2015 ME 138,
¶¶ 19-20, 126 A.3d 718. First, “if there are no new facts that the parent seeks to
offer in support of the claim,” the parent may make an ineffectiveness claim in a
direct appeal from a termination order. Id. ¶ 19. Second, if the basis for the
parent’s ineffectiveness challenge is not clear from the existing record and would
require a court to consider extrinsic evidence, “the parent must promptly move for
relief from a judgment terminating his or her parental rights pursuant to
M.R. Civ. P. 60(b)(6).” Id. ¶ 20.
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[¶7] Irrespective of whether the issue is presented on direct appeal or
through a Rule 60(b)(6) motion, a parent challenging the effectiveness of counsel
in termination proceedings must execute and file an affidavit “stating, with
specificity, the basis for the claim.” Id. ¶ 21. An affidavit serves somewhat
different purposes in the two different contexts, but those differences do not detract
from the filing requirement. First, when the parent’s claim of ineffective
assistance of counsel is raised in the direct appeal, the affidavit must not contain
information that is extrinsic to the existing record but rather is the means by which
the parent states affirmatively that he or she is making the ineffectiveness claim.
Id. ¶ 21 n.5. We will then review the existing record in the manner described
below. See infra ¶¶ 12-13.
[¶8] Alternatively, when the parent pursues an ineffectiveness claim by
means of a Rule 60(b)(6) motion, the parent must file an affidavit setting out the
extrinsic information underlying the claim, and the parent must also submit
affidavits executed by any other person with information that the parent wants the
court to consider. Id. ¶ 21. The submission of one or more affidavits in support of
a Rule 60(b)(6) motion is necessary to allow the trial court to make a prompt
preliminary determination of whether to allow the parties to present additional
testimony if a party makes such a request, and then to promptly decide the
ineffectiveness claim based on a proper record.
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[¶9] Whether the claim is presented as part of a direct appeal or a
Rule 60(b)(6) motion, these processes are designed to balance the parent’s
due process interests against the State’s interests in providing stability and
permanency for the child. See id. Nonetheless, because an affidavit always
constitutes the foundation for an ineffectiveness claim, if a parent fails to submit a
signed and sworn affidavit, the ineffectiveness claim or motion “must be denied.”
Id.
[¶10] Here, although the mother argues in her supplemental brief that
counsel’s performance was deficient, she did not submit a signed and sworn
affidavit—much less one specifying the basis for her ineffectiveness claim.
Moreover, as presented in her brief, her assertion of ineffective assistance draws on
information that goes beyond the record. Because the mother has failed to satisfy
the strict procedural requirements applicable to a direct appeal as prescribed in
In re M.P., we must deny her claim of ineffective assistance.
[¶11] Even if the mother had presented her claim of ineffective
representation in a procedurally proper way, her contention would be unavailing.
Starting with the process we prescribed in In re M.P., we take this occasion to
explain the steps that ensue when a parent raises an ineffectiveness claim for the
first time on a direct appeal, and within that procedural framework we then review
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the information submitted by the mother in her supplemental brief as if she had
presented it in proper form.
[¶12] On a direct appeal, when a parent states in the required affidavit that
he or she is challenging the effective assistance of counsel, we will review the
existing record to determine whether the evidence in that record creates a
prima facie showing of ineffectiveness. This consists of a prima facie case that
“(1) counsel’s performance was deficient, i.e., that there has been serious
incompetency, inefficiency, or inattention of counsel amounting to performance
below what might be expected from an ordinary fallible attorney”; and (2) the
deficient performance prejudiced the parent’s interests at stake in the termination
proceeding to the extent that “the trial cannot be relied on as having produced a
just result.” Id. ¶ 27 (quotation marks omitted). If a parent makes a prima facie
showing of both elements of an ineffectiveness claim based on the record on
appeal, we will remand the case to the trial court so that the court can adjudicate
the full merits of that claim. We will then consider any appeal taken from that
adjudication in the trial court.
[¶13] This approach respects the proper roles of the trial and appellate
courts and is consistent with the principle, applied in other contexts, that when a
party makes a prima facie showing on any claim or defense, triable issues of fact
must be determined in the trial court. See Bell ex rel. Bell v. Dawson,
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2013 ME 108, ¶ 16, 82 A.3d 827 (explaining that when a plaintiff establishes a
prima facie case for each element of his or her cause of action, genuine issues of
fact exist and summary judgment is inappropriate); N.J. Div. of Youth & Family
Servs. v. B.R., 929 A.2d 1034, 1040 (N.J. 2007) (holding that if an appellate court
determines that the record generates a “genuine issue of fact” on a parent’s
ineffectiveness claim raised in a direct appeal, the matter should be remanded for a
hearing); see also Susan Calkins, Ineffective Assistance of Counsel in
Parental-Rights Termination Cases: The Challenge for Appellate Courts,
6 J. App. Prac. & Process 179, 209 (2004) (proposing that “[w]hen the record is
insufficient for determining the merits of [an] ineffectiveness claim[]” and “the
parent persuades the court that he or she is likely to prevail,” the matter should be
remanded to the trial court). Conversely, if the parent fails to make a prima facie
case for ineffective representation, there are no factual issues to be resolved, and
we must conclude that the claim fails as a matter of law.
[¶14] Here, even if the extrinsic information in the mother’s unsworn
submission had been properly presented to us, that information would not generate
a prima facie case that she was denied effective assistance of counsel during the
termination hearing.
[¶15] As shown in the record, trial counsel was actively engaged during the
hearing, presenting testimony from the mother and two case managers who worked
8
with the family, cross-examining most of the witnesses called by the Department
and the father, introducing exhibits in evidence, and arguing against the merits of
the Department’s termination petition. Nonetheless, the mother claims in her
supplemental brief that her attorney “failed to stress” certain points and did not
present evidence that the mother describes (although, again, not in affidavit form).
Without reaching the question of whether those contentions arguably constitute
deficient representation, they do not rise to the level of a prima facie showing of
prejudice.
[¶16] First, as described by the mother, any failure to merely emphasize
evidence already in the record could not support a determination of prejudice.
[¶17] Second, the record does not support a genuine claim that the mother
was prejudiced by counsel’s alleged failure to present the evidence described by
the mother. The allegedly omitted evidence is limited in scope and significance.
For example, while the mother states that trial counsel failed to present evidence
that she had made significant efforts to engage in domestic violence education and
counseling, several witnesses—including the mother herself—discussed her
relatively recent work with an individual counselor and the reasons why it was
difficult for her to participate in a domestic violence support group. Also, on
examination by her attorney, she was invited to tell the court “anything
else . . . about the work” she had done to address the issues relevant to this case.
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She therefore had the opportunity to present evidence that she claims her attorney
foreclosed.
[¶18] As another example, the mother complains that her attorney did not
present evidence that she expressed regret several days after stating during a family
team meeting that she planned to leave the three-year-old child in the care of her
seven-year-old twins, whom the caseworker described as hyperactive, when she
wanted to step outside to smoke marijuana. Given that the mother does not dispute
that she proposed this so-called child care plan, she has not made an arguable
showing that her subsequent expression of regret would have materially mitigated
the statement’s significance on the issue of parental unfitness.
[¶19] Separate from our consideration of the discrete aspects of evidence
that, according to the mother, her attorney improperly failed to present at trial,
when the trial record is examined in its totality, consideration of the evidence now
proffered by the mother does not raise a legitimate argument that the mother was
prejudiced by any such failures. The record supports the court’s findings, among
others, that for years the mother was involved in a violent relationship with the
child’s father, often drawing a response from law enforcement; that the child has
been exposed to that violence; that even within a week of when the termination
hearing began, the mother initiated contact with the child’s father and was
aggressive towards him; that the mother had recently entered into a relationship
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with a person who was also involved in a child protection case but was not
participating in services relating to his own child; and that the mother has not
participated consistently in mental health services but rather chooses to “medicate”
herself by using marijuana.
[¶20] Further, although the mother asserts that her attorney should have
presented evidence about the child’s well-being while in foster care, the court
found, based on competent evidence in the record, that the child—who lives in the
pre-adoptive home of a licensed therapeutic foster parent—is “very damaged” due
to past psychological trauma; “vital[ly]” needs a stable and healthy environment;
and, as described by the child’s Early Headstart teacher, is now thriving.
[¶21] When the evidence of parental unfitness and the child’s best interest is
viewed as a whole, the additional information described in the mother’s
supplemental brief is not sufficient to raise a tenable claim that the trial failed to
produce a just result. See In re M.P., 2015 ME 138, ¶ 27, 126 A.3d 718.
[¶22] We therefore conclude that the mother’s claim of ineffective
representation, raised on this direct appeal, fails because she has not presented her
claim in a manner that satisfies the procedural requirements we have established,
and, separately, because even if the evidence had been presented properly, it would
not generate a prima facie case that she was prejudiced by any deficiencies in trial
counsel’s representation of her.
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The entry is:
Judgment affirmed.
On the briefs:
Jared S. Brewer, Esq., Schneider and Brewer Attorneys at Law,
Waterville, for appellant mother
Appellant mother pro se
Janet T. Mills, Attorney General, Meghan Szylvian, Asst. Atty.
Gen., and Sarah Glidden, Stud. Atty., Office of the Attorney
General, Augusta, for appellee Department of Health and
Human Services
Portland District Court docket number PC-2013-39
FOR CLERK REFERENCE ONLY