In re Alexandria C.

• Decision Date: 22 December 2016
• Docket Number: Docket: Som–16–219
• Parties: IN RE ALEXANDRIA C.
• Court: Maine Supreme Court

152 A.3d 617

IN RE ALEXANDRIA C.

Docket: Som–16–219

Supreme Judicial Court of Maine.

Argued: October 27, 2016

Decided: December 22, 2016

Verne E. Paradie, Jr., Esq. (orally), Paradie, Sherman, Walker & Worden, Lewiston, for appellant mother

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

SAUFLEY, C.J.

[¶ 1] The mother's parental rights to Alexandria C. were terminated by a judgment of the District Court (Skowhegan, Benson, J. ) on June 8, 2015, after police discovered that the mother had taken a series of shocking, graphic, and abusive photographs of her daughter, and the mother declined to participate in any way in reunifying with the child.¹ We affirmed the judgment. In re A.C. , Mem–15–106 (Dec. 22, 2015). The mother then filed a motion for relief from judgment, alleging the ineffective assistance of counsel. She now appeals the court's denial of that motion. Because the mother failed to meet her burden to prove that her trial counsel was ineffective, we affirm the judgment. We take this opportunity to clarify the emerging process for post-judgment review of judgments terminating parental rights.

I. BACKGROUND

[¶ 2] The petition for termination in this case was unusual in that Alexandria's father is well able to care for her, and she is safely placed with her father where she has made "progress ... emotionally, mentally, physically, and academically in his care." Ordinarily, there would be no need to permanently terminate the mother's rights to her child. Unfortunately, the mother's obsession, since at least May of 2008, "with the belief that the father ... is a mortal danger to [Alexandria]" has resulted in her unwillingness or inability to allow Alexandria to be raised in peace by her father. The termination court summarized an extensive history of litigation by the mother in which she alleged abuse by the father in three protection from abuse matters, the parents' divorce, and in post-divorce motions. The court further noted that there was never a finding of abuse in any of these matters.

[¶ 3] We affirmed the termination of the mother's parental rights because, as the guardian ad litem recognized, the mother's litigiousness would in all likelihood lead her immediately "back to court attempting to amend [any] parental rights and responsibilities order." Her litigious approach to the ancillary family matter proceedings, along with her obstinate unwillingness to participate in any services designed to allow her to normalize her relationship with her daughter, necessitated the unusual action by the Department of Health and Human Services seeking to have her parental rights permanently terminated.

[¶ 4] The child protective proceeding originated when the police discovered the mother's graphic photographs of Alexandria. The court granted a preliminary child protection order on the same day. When the mother contested the preliminary order two weeks later, the court (Fowle, J. ) found that Alexandria was at immediate risk of serious harm and granted custody of Alexandria to her father. After a hearing in which the court made a finding of jeopardy as to the mother, including an aggravating factor, the Department filed a petition to terminate the mother's parental rights.

[¶ 5] The court (Benson, J. ) then held a hearing on the termination petition and considered the testimony of the mother and the Department caseworker, reports of a GAL, and orders that were entered in prior family and protection from abuse matters. The court found that the mother "has not gained any appreciation for the gravity and the harm" caused by her "outrageous and disgusting conduct," and that she remained a "considerable and significant threat" to Alexandria. Further finding that termination was in Alexandria's best interest, the court entered a judgment terminating the mother's parental rights.

[¶ 6] The mother appealed, arguing that there was insufficient evidence to support the court's findings. See In re A.C. , Mem 15–106 (Dec. 22, 2015). We affirmed the court's judgment terminating the mother's parental rights on December 22, 2015. Id. While the mother's appeal was pending, on October 29, 2015, we published an opinion in a different child protection proceeding in which we announced the procedural requirements and standards that apply to claims of ineffective assistance of counsel in cases for termination of parental rights. In re M.P. , 2015 ME 138, 126 A.3d 718.

[¶ 7] Relying on the process announced in that case, on January 8, 2016, seventeen days after we affirmed the judgment terminating her parental rights, the mother filed a motion for relief from judgment. See M.R. Civ. P. 60(b). She argued that her trial counsel had rendered ineffective assistance. She did not file the required sworn affidavit identifying the basis for her claim. See In re M.P. , 2015 ME 138, ¶ 21, 126 A.3d 718.

[¶ 8] Despite the missing affidavit and the questions regarding timing, the court acted cautiously and allowed the mother to proceed promptly to hearing to challenge her counsel's representation. The mother and her former attorney testified at the hearing. At the conclusion of the hearing, the court recited the following factual findings from the bench, which are supported by record evidence. During the termination proceeding, the mother was rigid and unwilling to consider any resolution that would allow contact between Alexandria and the father. The mother threw "roadblocks" in the way of meeting with her attorney, would not provide releases for her attorney to meet with her medical providers, and declined to provide witnesses. The mother's trial counsel thoroughly discussed with her the option of a potential agreement that would have avoided termination of her parental rights, and fully advised her of the risk and consequences of having her rights terminated.

[¶ 9] In accordance with its findings, the court ultimately concluded that the mother had not met her burden to prove that her trial counsel provided ineffective assistance, and it denied her motion for relief from judgment on April 29, 2016. This appeal followed.

II. DISCUSSION

A. Procedure

[¶ 10] We begin by emphasizing the critical importance of swift resolution in child protection proceedings to promote stability and permanence for children who are the subjects of these proceedings. When the Department alleges that a child cannot safely be returned to her parents, the law requires prompt action to "[p]romote the early establishment of permanent plans for the care and custody of children who cannot be returned to their family." 22 M.R.S. § 4003(4) (2015) ; see also In re M.P. , 2015 ME 138, ¶¶ 18–19, 126 A.3d 718. To this end, we have imposed strict procedural requirements on a parent claiming the ineffective assistance of counsel in termination proceedings following the opportunity for a full trial on the merits of the Department's petition for termination of parental rights. In re M.P. , 2015 ME 138, ¶¶ 19–21, 126 A.3d 718.

[¶ 11] Thus, we have said that ineffectiveness claims in termination proceedings should generally be raised on direct appeal. See id. ¶¶ 19–20. We allow an exception, however, where "the record does not illuminate the basis for the challenged acts or omissions" of a parent's attorney. Id. ¶ 20. This exception permits no delay. In such cases, "the parent must promptly move for relief ... pursuant to M.R. Civ. P. 60(b)(6)... no later than twenty-one days after the expiration of the period for appealing the underlying judgment." Id. This timeframe is necessary so that any appeal from the Rule 60(b)(6) ineffective assistance claim can be heard together with the direct appeal and not unreasonably delay the achievement of a permanent out of home placement for the child, or the swift return to a meaningful reunification effort. See id. ¶ 20 & n.4.

[¶ 12] Accordingly, when a parent presents a claim of ineffective assistance of counsel following a termination proceeding that is not included in the appeal itself, the claim must be made within the time frames established in In re M.P. To be specific, any Rule 60(b)(6) motion alleging ineffective assistance of counsel must be made within twenty-one days after the time for taking an appeal has expired. Id. ¶ 20. The trial court will dismiss and therefore not act on the merits of an untimely Rule 60(b)(6) motion alleging ineffective assistance of counsel, and no appeal from the trial court's dismissal of an untimely motion will lie. See 22 M.R.S. § 4006 (2015).

[¶ 13] We stress these time requirements because we are acutely aware of the challenges presented in rapidly assessing the situation regarding representation, which must be weighed against the competing need for finality for the children involved. It will be critically important for counsel to be attentive to these deadlines at the conclusion of termination proceedings.

[¶ 14] In the matter before us, because In re M.P. was certified months after the order terminating the mother's parental rights was docketed, and because the motion was filed within seventeen days after the decision affirming the order of termination against the mother, we accept the mother's Rule 60(b)(6) motion as timely filed. See In re M.P. , 2015 ME 138, ¶ 28, 126 A.3d 718.

[¶ 15] In addition to the strict temporal limitations on Rule 60(b)(6) motions, "the parent making the claim must submit a signed and sworn affidavit stating, with specificity, the basis for the claim." Id. ¶ 21. "Because of the counter-balancing interests of the State in ensuring stability and prompt finality for the child, if the parent fails to comply with this procedure, the parent's motion ... must be denied." Id. ; see also In re Aliyah M. , 2016 ME 106, ¶ 9, 144 A.3d 50.

[¶ 16] When a parent pursues a claim of ineffective assistance by...