In re Children of Matthew G., Docket: Oxf-19-79
Decision Date | 09 July 2019 |
Docket Number | Docket: Oxf-19-79 |
Citation | 211 A.3d 226 |
Parties | IN RE CHILDREN OF MATTHEW G. |
Court | Maine Supreme Court |
Heidi M. Drew, Esq., Lewiston, for appellant father
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
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
[¶1] Matthew G. appeals from a judgment of the District Court (Rumford, Carlson, J. ) terminating his parental rights to his two children pursuant to 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2018). He argues that the court erred by relying solely on his incarcerated status to support its findings of parental unfitness and claims that he received ineffective assistance of counsel at the termination hearing.1 We affirm the judgment.
[¶2] The Department of Health and Human Services initiated child protection proceedings as to the father's two children in March 2018 while the father was incarcerated, roughly one month after the children's mother died from an apparent drug overdose. See 22 M.R.S. § 4032 (2018). The court (Nale, J. ) issued preliminary protection orders the same day, granting custody of the children to the Department. See 22 M.R.S. § 4034 (2018). A jeopardy hearing was held on June 18, 2018; the father did not appear at the hearing, and the court (Carlson, J. ) later issued a jeopardy order. See 22 M.R.S. § 4035 (2018).
[¶3] On November 7, 2018, the Department filed a petition to terminate the father's parental rights, and the court held a two-day hearing on the petition the following month. By judgment dated January 3, 2019, the court terminated the father's parental rights. Based on clear and convincing evidence in the record, the court determined that the father (1) is unwilling or unable to protect his children from jeopardy and these circumstances are unlikely to change within a time which is reasonably calculated to meet their needs and (2) is unwilling or unable to take responsibility for the children within a time which is reasonably calculated to meet their needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii). Finally, the court concluded that termination of the father's parental rights is in the children's best interests. See id. § 4055(1)(B)(2)(a).
[¶4] In support of those determinations, the court made the following findings of fact, which are supported by competent record evidence. See In re Child of Erica H. , 2019 ME 66, ¶ 3, 207 A.3d 1197.
[¶5] Given these findings, all of which are supported by competent record evidence, the court did not impermissibly consider the father's incarceration in reaching its parental unfitness determination, and therefore it did not err in finding that the father is unfit. See In re Children of Anthony L. , 2019 ME 62, ¶ 9 n.3, 207 A.3d 624 ; In re Asanah S. , 2018 ME 12, ¶ 5, 177 A.3d 1273 ; In re Alijah K. , 2016 ME 137, ¶ 14, 147 A.3d 1159 ().
[¶6] The father also directly raises a claim that his counsel at the termination hearing was ineffective. We have recognized two ways in which a parent can raise a claim of ineffective assistance of counsel in a termination case. See In re Tyrel L. , 2017 ME 212, ¶ 7, 172 A.3d 916 ; In re M.P. , 2015 ME 138, ¶ 27, 126 A.3d 718. "First, if there are no new facts that the parent seeks to offer in support of the claim, the parent may make an ineffectiveness claim in a direct appeal from a termination order." In re Aliyah M. , 2016 ME 106, ¶ 6, 144 A.3d 50. "Second, if the basis for the parent's ineffectiveness challenge is not clear from the existing record and would require a court to consider extrinsic evidence, the parent must promptly move for relief from a judgment terminating his or her parental rights pursuant to M.R. Civ. P. 60(b)(6)." Id. "Regardless of how the parent presents the claim, the parent must execute and file an affidavit stating, with specificity, the basis for the claim." In re Child of Stephen E. , 2018 ME 71, ¶ 12, 186 A.3d 134. "[I]f a parent fails to submit a signed and sworn affidavit, the ineffectiveness claim ... must be denied." In re Aliyah M. , 2016 ME 106, ¶ 9, 144 A.3d 50 (emphasis added).
[¶7] Here, the father asserts his ineffective representation claim on direct appeal.2 He failed, however, to submit an affidavit, and thus we must deny his claim. "The strict procedural requirements for ineffective assistance claims ... are designed to balance the parent's due process interests against the State's interests...
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