In re Child Rebecca J., Docket: Ken-18-384

• Decision Date: 21 May 2019
• Docket Number: Docket: Ken-18-384
• Citation: 208 A.3d 405
• Parties: IN RE CHILD OF REBECCA J.
• Court: Maine Supreme Court

208 A.3d 405

IN RE CHILD OF REBECCA J.

Docket: Ken-18-384

Supreme Judicial Court of Maine.

Argued: April 9, 2019

Decided: May 21, 2019

Julian Richter, Esq. (orally), Richter Law, LLC, Gardiner, for appellant mother

Aaron M. Frey, Attorney General, Meghan Szylvian, Asst. Atty. Gen., and Hunter C. Umphrey, 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.

PER CURIAM

[¶1] Rebecca J. appeals from a judgment of the District Court (Waterville, Stanfill, J. ) terminating her parental rights to her child pursuant to 22 M.R.S. § 4055(1)(A)(1)(a), (1)(B)(1) (2018).

[¶2] In 2015, we prescribed a process by which a parent whose parental rights to a child were terminated following an evidentiary hearing could assert a claim of ineffective assistance of counsel, either on direct appeal or by filing a motion for relief from the termination judgment in the trial court pursuant to M.R. Civ. P. 60(b)(6). In re M.P. , 2015 ME 138, ¶¶ 8, 11, 38, 126 A.3d 718. Here, we are called upon to decide whether a parent has a right to the effective assistance of counsel in a proceeding where the parent consents to the termination of her parental rights, and, if so, whether the court abused its discretion in denying the mother's two motions for relief asserting ineffective assistance in this case. See In re Children of Jeremy A. , 2018 ME 82, ¶ 21, 187 A.3d 602 (stating that "the trial court's ultimate denial of a Rule 60(b) motion" is reviewed for an abuse of discretion (quotation marks omitted)).

[¶3] We hold that the mother had a right to the effective assistance of counsel at the proceeding where she consented to the termination of her parental rights and we conclude that the trial court did not abuse its discretion in finding that the mother received effective assistance when she voluntarily gave her consent in this case. Accordingly, we affirm the judgment.

I. BACKGROUND

[¶4] The relevant facts are procedural. On March 30, 2016, the Department of Health and Human Services filed a petition for a child protection order and a request for a preliminary protection order concerning the child; a preliminary order was entered the same day (Dow, J. ) granting custody of the child to the Department. See 22 M.R.S. §§ 4032, 4034 (2018). Counsel was appointed to represent the mother. Following a contested summary preliminary hearing, see 22 M.R.S. § 4034(4), the court (Stanfill, J. ) ordered continued custody with the Department. In July 2016, the court (Mathews, J. ) entered an order finding jeopardy as to the mother by agreement. See 22 M.R.S. § 4035 (2018).

[¶5] In December 2017, the Department petitioned to terminate the mother's parental rights.¹ See 22 M.R.S. § 4052 (2018). At a hearing held on August 20, 2018 (consent hearing), the mother, represented by the same counsel appointed more than two years earlier, advised the court (Stanfill, J. ) that she had decided to consent to a termination of her parental rights. The court asked the mother a series of questions to ensure that she was acting voluntarily and that she understood the rights that she was foregoing and the consequences of her decision; the court also inquired of the mother's counsel whether in counsel's opinion the mother was prepared to give an informed and voluntary consent. See 22 M.R.S. § 4055(1)(B)(1). Satisfied that the mother's decision was knowing and voluntary, and having witnessed the mother sign a written consent form, see id. ; the court made a finding to that effect and ordered that the mother's parental rights be terminated.

[¶6] Fifteen days later, acting pro se, the mother filed a letter in the trial court claiming that she was "pressured" by her attorney to consent to the termination. She requested a new trial with new counsel. The court appointed new counsel and set the matter for a hearing; counsel then filed a notice of appeal from the termination judgment, asserting that the mother's consent was involuntary and that she had received ineffective assistance of counsel in giving consent. On September 26, treating the mother's letter as a motion for a new trial pursuant to M.R. Civ. P. 59, the court held an evidentiary hearing (new trial hearing) at which the mother and her former attorney testified.

[¶7] The court subsequently entered a written order denying the mother's request to set aside her consent, finding that "at the time of the [consent hearing] this court found [the mother's] consent to be voluntary and knowing. Nothing in [the mother's] subsequent testimony—or that of [her former attorney]—undermines the court's confidence in that decision." The court further found that "[the mother] failed to prove that she received ineffective assistance of counsel when she voluntarily consented to the termination of her parental rights."

[¶8] In the interim between the new trial hearing and the court's decision, the mother moved us to allow the trial court to act on a M.R. Civ. P. 60(b)(6) motion for relief from the termination judgment, which she anticipated filing in accordance with our decision in In re M.P. , 2015 ME 138, ¶ 20, 126 A.3d 718 (stating that "[in] circumstances in which the record does not illuminate the basis for [an ineffective assistance claim] ... the parent must promptly move for relief ... pursuant to M.R. Civ. P. 60(b)(6)"). We granted leave for the trial court to act, and the mother filed a timely Rule 60(b)(6) motion soon after her Rule 59 motion was denied. That motion, accompanied by affidavits from the mother and her new counsel, asserted, inter alia, that her former counsel had failed to contact and have available at the consent hearing two witnesses who could have "at least cast doubt on" some of the Department's allegations. The mother asked the court to hold a new evidentiary hearing on her motion and to grant her relief from the termination judgment.

[¶9] In a written order entered December 13, 2018, the court declined to hold an additional evidentiary hearing and denied the motion on the existing record and the affidavits, noting that it had already found that "[former counsel's] performance was not deficient," and that the "current [m]otion ... and incorporated affidavits do not add any facts that lead this court to a different legal conclusion pursuant to the Strickland doctrine."² The court found that

[i]ndeed, [the mother] already testified at the [new trial] hearing that the lack of witnesses being present at the [consent hearing] did not impact her decision in consenting to the termination of her parental rights. Therefore, even assuming everything in the affidavits is true, it does not impact the finding already made that [the mother's] consent [at the consent hearing] was done knowingly and voluntarily. Under these circumstances, there is no need to hold a second evidentiary hearing.

[¶10] The mother appealed from the denial of her Rule 60(b)(6) motion, and we ordered that the appeal be consolidated with her earlier appeal from the termination judgment. At oral argument, the mother stated that she is pressing only her assertion that the court erred by denying her request for a hearing on her Rule 60(b)(6) motion. Nonetheless, in the interest of completeness, we address the other contentions she raises in her brief, namely that the court erred by denying her Rule 59 motion for a new trial and by denying her Rule 60(b)(6) motion.

II. DISCUSSION

A. The Rule 59 Motion

1. Voluntariness of Consent

[¶11] The mother contends that the court erred in denying her request to withdraw her consent and hold a new termination hearing, which the court treated as a motion for a new trial pursuant to M.R. Civ. P. 59,³ because her consent was involuntary. "We review the factual findings underlying a motion for new trial for clear error, and the court's ultimate disposition on the motion for an abuse of discretion." Ma v. Bryan , 2010 ME 55, ¶ 4, 997 A.2d 755.

[¶12] We discern no error or abuse of discretion on this record. Before it may terminate a parent's rights pursuant to 22 M.R.S. § 4055(1)(B)(1),⁴ the District Court must find by clear and convincing evidence that the parent consented to the termination voluntarily and knowingly. In re H.C. , 2013 ME 97, ¶¶ 11-13, 82 A.3d 80. In order to make the required finding, "a court must, at minimum, (1) explain to the parent his or her parental rights and the effects of his or her decision thereon, (2) inquire into the parent's understanding of the effects of the decision, and (3) determine that the parent's decision is freely given." Id. ¶ 13.

[¶13] "[B]ecause a child's interest in the finality of [the termination] proceeding[ ] outweighs a parent's desire to revoke the consent in circumstances where the consent was knowingly and voluntarily executed," after a parent enters a valid consent to the termination of his or her parental rights, that consent "may be set aside only on the basis of fraud, duress, mistake, or incapacity." Id. (quotation marks omitted); see also In re Amanda N. , 1998 ME 115, ¶ 1, 710 A.2d 264 ("We conclude that the mother's knowing and voluntary consent to the termination is irrevocable absent a showing of fraud, duress, mistake, or incapacity ....").

[¶14] All of the requirements for a valid consent were satisfied here. Before allowing the mother to execute a written consent form in open court, the presiding judge was advised by the mother that she wished to consent to termination. The court then inquired of the mother personally as to whether she had been given enough time to consider her decision and whether she was consenting voluntarily "because you think it's the best thing to do." The court next ensured that the mother understood her right to have a hearing on the Department's petition; that at the hearing the court would make the decision as to whether the Department had proved by clear and convincing evidence that her parental...