In re Children of Kacee S., 2021 ME 36

Background

DHHS filed child protection and then a termination petition against Kacee S. (mother) in 2019–2020; preliminary and jeopardy orders had been entered earlier and the children were placed in DHHS custody.
Mother was served with the termination petition in hand but the service did not include the hearing date; the court later set the termination hearing and provided the date to mother’s trial counsel.
At the September 16, 2020 termination hearing the mother was absent; her trial counsel arrived late, did not move to continue, did only minimal cross-examination, presented no defense evidence or closing argument, and did not ask the record be held open.
The father initially sought a continuance but later consented to termination; the trial court found DHHS proved statutory unfitness criteria by clear and convincing evidence and terminated the mother’s parental rights.
The mother timely appealed and filed Rule 60(b) motions: an initial, timely but affidavit‑deficient Rule 60(b) by interim counsel (denied), and a later, affidavit‑supported Rule 60(b) by appellate counsel (denied as untimely by the trial court).
The Maine Supreme Judicial Court concluded exceptional circumstances excused the timing defect, found the mother made a prima facie showing of ineffective assistance by both trial and interim counsel, vacated the denial of her second Rule 60(b) motion, and remanded for an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Availability/timeliness of ineffective‑assistance claim	Mother: Second Rule 60(b) should be considered despite timing because initial Rule 60(b) was timely but deficient and she promptly cured defects.	DHHS: Mother’s properly supported Rule 60(b) was untimely under In re M.P. and should be barred.	Court: Exceptional circumstances excused timing; mother’s claim is properly before the court.
Ineffective assistance at trial (performance)	Mother: Trial counsel failed to notify her of hearing, failed to advise re: voluntary consent option, failed to object or present evidence, and provided only minimal cross‑examination.	DHHS: Record supports court’s findings; counsel’s actions may reflect strategy and mother appeared at earlier hearings.	Court: Mother made a prima facie showing that trial counsel’s performance was manifestly unreasonable.
Prejudice from trial counsel (effect on outcome)	Mother: Counsel’s failings deprived her of meaningful opportunity to be heard and of the chance to consent and avoid an aggravating factor.	DHHS: Even with counsel’s conduct, the record supports the court’s findings on statutory criteria and best interests.	Court: Mother made a prima facie showing of prejudice—errors undermined confidence in the judgment and risked an aggravating factor.
Ineffective assistance in post‑judgment phase (interim counsel)	Mother: Interim counsel’s Rule 60(b) motion omitted the required affidavit, thwarting a hearing on ineffectiveness and denying process.	DHHS: Interim counsel’s filings were made but court correctly denied the deficient motion.	Court: Interim counsel’s omission constituted prima facie ineffective assistance and caused prejudice by preventing a merits hearing.

Key Cases Cited

In re M.P., 126 A.3d 718 (procedure for raising ineffectiveness claims and timing rule)
In re Tyrel L., 172 A.3d 916 (affidavit requirement for Rule 60(b) ineffectiveness claims)
In re Aliyah M., 144 A.3d 50 (ineffectiveness claims on direct appeal and affidavit limits)
In re Children of Jeremy A., 187 A.3d 602 (Strickland standard applied in parental‑rights context)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
United States v. Cronic, 466 U.S. 648 (circumstances where prejudice may be presumed)
Adoption by Jessica M., 239 A.3d 633 (due‑process protections and meaningful opportunity to be heard)