208 A.3d 380
Me.2019Background
- Child is a member of the Penobscot Nation; DHHS removed the child in 2016 after disclosures of sexual abuse by the father and entered a jeopardy order finding the father posed a sexual threat and the mother failed to protect the child.
- Father was incarcerated throughout most of the proceedings on sexual offense charges; he has prior convictions for possession of child pornography and was diagnosed with pedophilia per expert testimony.
- DHHS filed a termination petition in March 2017; the termination hearing (consolidated with judicial review) occurred Dec 2017–Feb 2018; the court terminated both parents’ rights in April 2018.
- The court found (1) parents were parentally unfit and termination was in the child’s best interest under Maine law, (2) DHHS proved by clear and convincing evidence it made ICWA-required “active efforts” tailored to each parent that proved unsuccessful, and (3) by beyond a reasonable doubt continued custody would likely cause serious emotional or physical damage under ICWA.
- Father moved pre- and post-judgment to transfer the case to the Penobscot Tribal Court under 25 U.S.C. § 1911(b); the trial court denied the pre-judgment motion as filed at an advanced stage and declined to act on the post-judgment motion while the appeal was pending.
- Both parents filed Rule 60(b)(6) ineffective-assistance motions; the trial court denied them as untimely or meritless; father did not file a separate appeal from that post-judgment order.
Issues
| Issue | Father’s Argument | DHHS / Mother’s Argument | Held |
|---|---|---|---|
| Whether DHHS made required ICWA “active efforts” under 25 U.S.C. § 1912(d) | DHHS did not provide sufficient, culturally tailored, timely services to prevent breakup | DHHS provided tailored case management, referrals, transportation, jail counseling access, CODE evaluations, and tribal participation; parents failed to engage | Affirmed: clear and convincing evidence DHHS made active efforts and they were unsuccessful |
| Whether mother is parentally unfit under 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii) | Mother argues she improved in therapy and now understands the father’s risk | DHHS points to mother’s ongoing contact with father, inconsistent service engagement, and lack of protective change | Affirmed: credible findings mother unwilling/unable to protect and not likely to change in reasonable time |
| Whether trial court erred denying father’s pre-judgment tribal transfer motion under 25 U.S.C. § 1911(b) | Motion timely because filed before termination hearing; ICWA forbids denial for “advanced stage” filing | Court relied on advanced-stage factor (father had notice and case’s termination phase had been pending months) and tribal intervenor opposed transfer; good cause shown | Affirmed: court properly found good cause to deny transfer given advanced stage and notice to father/tribe |
| Whether father’s Rule 60(b) ineffective-assistance claim was preserved and timely | Father contends counsel was ineffective and Rule 60(b) denial should be reviewed | DHHS: appeal from termination judgment did not preserve the separate post-judgment Rule 60(b) order; claim untimely or meritless | Affirmed: denial of Rule 60(b) not reviewable (no separate appeal) and, alternatively, court properly denied as untimely/meritless; clarified that M.P. timing rules for ineffective-assistance claims apply to jeopardy stage |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (acknowledging constitutional protection of parental interest)
- Santosky v. Kramer, 455 U.S. 745 (clear-and-convincing standard for termination of parental rights)
- Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (tribal jurisdiction principles and transfer presumptions)
- In re M.P., 126 A.3d 718 (Me. 2015) (procedures and timing for asserting ineffective-assistance claims in termination proceedings)
- In re Evelyn A., 169 A.3d 914 (Me. 2017) (timeliness concerns for post-jeopardy ineffectiveness claims)
- In re Annette P., 589 A.2d 924 (Me. 1991) (application of active-efforts concept under ICWA)
- In re Children of Shirley T., 199 A.3d 221 (Me. 2019) (discussion of § 1911(b) transfer and good-cause framework)