IN RE CHILD OF KENNETH S.
Docket: Wal-21-203
MAINE SUPREME JUDICIAL COURT
Decided: February 17, 2022
2022 ME 14
Decision: 2022 ME 14
Reporter of Decisions
Submitted On Briefs: December 21, 2021
Pаnel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HORTON, and CONNORS, JJ.
[¶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 rеcord evidence. See In re Children of Michelle C., 2021 ME 61, ¶ 2, 264 A.3d 1221.
[¶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 thе 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 that included a request for a preliminary protection order. The court (Mathews, J.) granted the Department custody of the сhild that same day. The
[¶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 а 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 latеr, on January 25, March 30, April 1, May 21, and May 24, 2021.
[¶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 рroposed 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
[¶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 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.
[¶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
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 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.
[¶17] When addressing a due process challenge, the first factor we consider is the private interest that will be affected by
[¶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 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 submit a proposed order and findings involved a significant private interest and carried an inherent risk of аn 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 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.“);
[¶22] Notwithstanding the trial court‘s error, to assert a procedural due
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 succеssful, 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 рresent 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 impartiаl 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.
[¶25] The trial court identified two bases of parental unfitness as to the parents—(1) their unwillingness or inability tо 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.
[¶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
[¶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 еrroneously 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 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 procеdural 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 prоtection 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 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 sеcond 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 tо the jeopardy order or the court‘s ruling on the father‘s
[¶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.
The entry is:
Judgment affirmed.
Rory A. McNamara, Esq., Drake Law LLC, York, for apрellant 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