IN RE M.P.
Docket: Cum-14-131
MAINE SUPREME JUDICIAL COURT
October 29, 2015
2015 ME 138
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.
Submitted On Briefs: June 2, 2015; Reporter of Decisions
[¶1] This appeal requires us to identify a process by which a parent may challenge a judgment terminating parental rights based on ineffective assistance of counsel. The mother of M.P. appeals from a judgment entered in the District Court (Portland, Powers, J.) terminating her parental rights pursuant to
A. Factual Findings
[¶2] Following a hearing on a petition filed by the Department of Health and Human Services to terminate the mother‘s parental rights to her daughter, the court found the following facts by clear and convincing evidence, and the findings are supported by competent evidence in the record.1 See In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195. When M.P. was born in December 2011, personnel at Maine Medical Center contacted the Department regarding the mother‘s inability to meet the child‘s basic needs and to remember instructions that were given to her. In January 2012, the Department filed a petition for a child protection order, and M.P. was placed with her mother‘s aunt.
[¶3] The mother has cognitive limitations and has suffered from anxiety and depression. From March 2012 to October 2012, the mother had visits with M.P. twice a week. During the visits, the mother needed a lot of reminding about how to care for M.P., and she was not consistent in her care.
[¶4] In October 2012, the mother and M.P. entered the Mary‘s Place residential parenting program. While at Mary‘s Place from October 2012 to June
[¶5] When the mother left Mary‘s Place with M.P. after seven months of residential on-site parenting training and treatment, she still needed regular repetition and continued in-home support. Once back in her home, the mother was involved in the Spurwink Family Reunification Program for four to ten hours weekly, and she received ten to twenty hours per week of independent living skills services through Merrymeeting Behavioral Health.
[¶6] During the several months that the mother was involved in the Program, staff had to repeatedly address safety issues with the mother; she needed regular prompting and had trouble supervising M.P., who was by then an active toddler. After a team meeting in August 2013, the Program‘s staff decided to end its services for the mother and M.P. The team agreed that the mother needed support in a residential care program, which was no longer available. The mother was unable to progress to the parent education part of the Program because of ongoing safety concerns.
B. Termination Hearing
[¶8] After a year of intensive services, including the residential parenting program at Mary‘s Place, the Department filed a petition for termination of the mother‘s parental rights on October 30, 2013.2 The termination petition asserted that, although the mother had consistently participated in all reunification services, “[h]er intellectual limitations are preventing [her] from having the ability to comprehend, understand and consistently implement the parenting skills, to be pro-active in anticipating safety issues and to manage the ongoing changes related to her child‘s overall development.” The termination hearing was held in February 2014. The Department presented testimony from six witnesses: a psychologist who conducted an evaluation for the Child Abuse and Neglect Evaluation Program,3 a social worker from Mary‘s Place, a case management worker from Mary‘s Place, a visit supervisor, a case management supervisor with Spurwink‘s Family Reunification Program, and M.P.‘s caseworker from the Department. The
[¶9] The mother was twenty-five years old at the time of the termination hearing and had recently obtained her high school diploma. She was residing in Portland in an apartment and regularly engaging in services. She was seeing a therapist weekly and taking anxiety medication; she was having panic attacks at times. The mother admitted that it takes her longer than normal to “get it,” but she feels that she can care for M.P. with support from daycare and friends.
[¶10] At the hearing, the GAL opined that, although the mother had made a good faith effort to reunify, she still lacked the ability to meet the safety and developmental needs of M.P., she could not seem to apply the skills she had been taught to different circumstances, and she needed regular repetition of model parenting skills. The court found the GAL‘s opinion credible.
[¶11] The District Court terminated the mother‘s parental rights in a judgment entered on March 13, 2014. The court found that, though not unwilling, the mother is unable to protect the child from jeopardy or take responsibility for the child in a time reasonably calculated to meet the child‘s needs. See
C. Motion for Relief from Judgment Pursuant to M.R. Civ. P. 60(b)(6)
[¶12] While the appeal was pending, on June 17, 2014, the mother filed a motion for remand claiming that she had been denied her right to due process at the termination hearing based on ineffective assistance of counsel. By order dated June 18, we granted the mother‘s motion, stayed her pending appeal, and remanded the matter to the District Court to permit the mother to file, and the District Court to act on, a motion for relief from judgment. On June 25, 2014, the mother moved for relief from judgment pursuant to
[¶13] At a trial management conference, the court made it clear that the hearing on the motion would not be an opportunity to relitigate the termination case. Instead, the court indicated that it would allow the mother and the mother‘s
[¶14] The hearing on the motion for relief from judgment was held on August 13, 2014. Because the process employed and the evidence presented to the court at the hearing are relevant to our due process analysis on appeal, we describe the proceedings in further detail: The mother testified at the hearing and described her relationship with her former attorney. She also testified that her counselor, her teacher, and her friend would have testified that she was a hard-working student, loved her daughter very much, and was dedicated to bettering herself. The mother‘s former attorney testified that she had represented parents in child protection matters for five years, but she had never prevailed on behalf of a parent in a termination proceeding. She testified that she had attended monthly team meetings, met separately with the mother multiple times in person, and made phone calls to the mother and to service providers before the termination hearing. She described her trial strategy as “pok[ing] holes in the State‘s case.” Further, she testified that she had spoken to some of the witnesses the mother was now claiming should have been called at the termination hearing and decided that their testimony could not address the Department‘s continuing safety concerns. The attorney testified that she was not told about the mother‘s teacher and that she had
[¶15] After hearing from the mother and the mother‘s former attorney, and considering affidavits from other potential witnesses, the court denied the mother‘s motion for relief from judgment on August 20, 2014. Guided by the method by which ineffective assistance of counsel claims are dealt with in the criminal context, the court found that the mother had failed to prove that her former attorney‘s performance was “outside the normal or typical range of trial work in termination cases.” The court also found that, “despite the mother‘s desires and affection for [her daughter],” there was “considerable and persuasive” evidence supporting termination and that the other witnesses would not have made any appreciable difference in the evidence: “It is highly unlikely that additional testimony about [the mother‘s] educational achievement, love for her child, or condition of her home would affect the court‘s conclusions that supported termination.” The court further found that, although the mother‘s attorney could have approached preparing for the termination hearing differently, she was not required to do so and did not fail in her obligations to competently represent the mother before or during trial. Ultimately, the court found that the attorney‘s “performance did not cause actual prejudice to [the mother].” The mother appealed. See
[¶16] We now review both the mother‘s original appeal from the judgment terminating her parental rights and the court‘s ruling on the Rule 60(b) motion. Regarding the initial judgment, there is competent evidence in the record to support the court‘s finding, by clear and convincing evidence, of at least one ground of parental unfitness. See In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195. Moreover, the court did not commit clear error or abuse its discretion in determining that termination of the mother‘s parental rights was in the child‘s best interest. See In re Thomas H., 2005 ME 123, ¶¶ 16-17, 889 A.2d 297.
[¶17] Regarding the court‘s judgment denying her motion for relief based on ineffective assistance of counsel pursuant to
A. Process to Raise a Claim of Ineffective Assistance of Counsel
[¶18] We have not yet had the opportunity to opine on the best procedural vehicle for raising a claim of ineffective assistance of counsel in a termination of
[¶19] To promote the swift resolution of ineffectiveness claims, and in the absence of a statutorily created process, we now hold that a parent may raise an ineffective assistance of counsel claim in a direct appeal from an order terminating his or her parental rights if there are no new facts that the parent seeks to offer in
[¶20] We anticipate, however, that there may be circumstances in which the record does not illuminate the basis for the challenged acts or omissions of the parent‘s counsel. In that event, the parent must promptly move for relief from a judgment terminating his or her parental rights pursuant to
B. The Applicable Standard on an Ineffective Assistance of Counsel Claim
[¶22] As the trial court correctly noted, we have not yet addressed the standard that will apply in assessing a parent‘s claim of ineffective assistance of counsel in termination of parental rights proceedings. See In re S.P., 2013 ME 81, ¶ 10 n.4, 76 A.3d 390. Courts in other jurisdictions that recognize a parent‘s right
[¶23] The first is the same standard used in criminal cases, which was first announced in Strickland v. Washington, 466 U.S. 668. The Strickland standard is a two-part test for determining ineffectiveness in the criminal context:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. “[T]he performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.” Id. at 688. “Because of the difficulties inherent in making [such an] evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance . . . .” Id. at 689.
[¶24] The other standard used to address ineffectiveness claims is the “fundamental fairness” standard announced in Geist, 796 P.2d at 1203. The fundamental fairness standard is similar to the Strickland standard; it requires, for a parent‘s challenge to succeed, that a parent demonstrate that appointed counsel failed to “exercise professional skill and judgment” and that the attorney‘s
[¶25] Both the Strickland standard and the fundamental fairness standard require that a parent demonstrate an attorney‘s inadequate performance and some form of prejudice. The majority of state courts confronting this issue have adopted the Strickland standard. See, e.g., Jones v. Ark. Dep‘t of Human Servs., 205 S.W.3d 778, 794 (Ark. 2005); People ex rel. C.H., 166 P.3d 288, 290-91 (Colo. App. 2007); In re R.E.S., 978 A.2d 182, 191 (D.C. 2009); In re S.N.H., 685 S.E.2d 290, 298 (Ga. Ct. App. 2009); In re M.S., 115 S.W.3d 534, 545 (Tex. 2003); In re J.R.G.F., 250 P.3d 1016, 1018 (Utah Ct. App. 2011); see also Calkins at 214-15 & nn.180-188 (collecting cases). But see In re RGB, 229 P.3d at 1090; Baker v. Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1039-41 (Ind. 2004).
[¶26] We now adopt the Strickland standard to govern ineffective assistance of counsel claims in termination of parental rights proceedings. Although we recognize that this standard—developed through criminal law proceedings—may have to be tailored to termination of parental rights proceedings in some respects, the deprivation of parental rights is in many ways similar to the deprivation of liberty interests at stake in criminal cases.6 The Strickland standard is known to
[¶27] Thus, a parent claiming ineffective assistance of counsel in a termination proceeding may directly appeal from the judgment terminating her parental rights if the record does not need to be supplemented to support her claim. Otherwise, the parent must move promptly—ordinarily, within twenty-one days after the expiration of the appeal period—for relief from judgment pursuant to
C. The Due Process Analysis
[¶28] In the matter before us, although the mother did not move for relief from judgment pursuant to Rule 60(b)(6) within twenty-one days after the expiration of the appeal period, we nonetheless allowed a hearing on the motion because we had not previously opined on this issue.
[¶29] The trial court held the Rule 60(b)(6) hearing, the mother received court-appointed counsel, and the mother had the opportunity to present evidence. The mother now argues that the court denied her due process in that proceeding when it declined to allow her to call additional witnesses at the hearing and instead accepted testimony from the mother regarding what she believed the witnesses would have testified to and considered the witnesses’ sworn affidavits.
[¶30] “When due process is implicated, we review such procedural rulings to determine whether the process struck a balance between competing concerns that was fundamentally fair.” In re A.M., 2012 ME 118, ¶ 14, 55 A.3d 463 (quotation marks omitted). “The fundamental requirement of due process is the
[¶31] When analyzing whether a party was afforded the process that is due, we balance the three factors articulated by the Supreme Court of the United States in Mathews v. Eldridge, 424 U.S. 319:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[¶32] The first and third Mathews factors—the parent‘s interest and the government‘s interest—are well established and need little explication. The parent‘s interest is significant because a parent has a statutory right to legal counsel in child protection proceedings given the important liberty interests at stake, see
[¶33] We focus on the second Mathews factor, which requires us to consider whether the procedures used by the court—and the court-imposed limitation on the mother‘s ability to call witnesses at the Rule 60(b)(6) hearing—posed a significant risk that the mother would not be able to demonstrate her trial counsel‘s deficiency and resulting prejudice, which, pursuant to Strickland, is the necessary test for proving that she was denied her right to effective counsel.
[¶34] The process employed by the court at the Rule 60(b)(6) hearing was thoughtful and well balanced. Through the evidence presented by the live testimony of the mother and her former attorney, and the affidavits of other potential witnesses, the court was able to assess the quality of the evidence that the mother claimed should have been offered at the termination hearing. In this regard, the court was able to determine both whether the mother‘s former attorney‘s decision not to call these witnesses was outside what might be expected “of an ordinary fallible attorney,” Aldus, 2000 ME 47, ¶ 16, 748 A.2d 463, and whether the witnesses’ averments, together with the mother‘s testimony about what she believed those witnesses would have testified to, demonstrated that “counsel‘s errors were so serious as to deprive” the mother of “a fair trial, a trial whose result is reliable,” Strickland, 466 U.S. at 687. Thus, the process employed by the court
[¶35] We do not suggest that a court should never allow sworn testimony in addition to the affidavits. In some cases, it may be necessary to assess the credibility of the witnesses from whom the court receives affidavits to resolve disputes of fact that would establish whether counsel was ineffective. In this case, however, the affidavits were sufficient to demonstrate the quality of the mother‘s additional evidence so that the court could assess both the attorney‘s judgment in not calling the witnesses and whether the absence of that evidence prejudiced the mother. See Strickland, 466 U.S. at 687; Aldus, 2000 ME 47, ¶¶ 16, 20, 748 A.2d 463.
[¶36] Thus, when a parent promptly moves for relief from judgment pursuant to
[¶37] After reviewing the Mathews v. Eldridge considerations, we conclude that the procedures followed by the District Court on the mother‘s motion for relief
III. CONCLUSION
[¶38] Due process requires “the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 333 (quotation marks omitted). To successfully and efficiently process a parent‘s ineffective assistance of counsel claim without undermining the Legislature‘s stated purpose of “[p]romot[ing] the early establishment of permanent plans for the care and custody of children who cannot be returned to their family,”
[¶39] On the adequate record before us, the court did not violate due process by declining to allow the mother to call other witnesses at the Rule 60(b)(6) hearing, see Mathews, 424 U.S. at 333-35, or abuse its discretion in denying the mother‘s motion for relief from judgment, see In re David H., 2009 ME 131, ¶ 41, 985 A.2d 490.
The entry is:
Judgment affirmed.
On the briefs:
Henry I. Shanoski, Esq., Portland, for appellant mother
Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
Portland District Court docket number PC-2012-03
FOR CLERK REFERENCE ONLY