In re Jeremy A.

• Decision Date: 26 June 2018
• Docket Number: Docket: And–17–515
• Citation: 187 A.3d 602
• Parties: IN RE CHILDREN OF JEREMY A.
• Court: Maine Supreme Court

187 A.3d 602

IN RE CHILDREN OF JEREMY A.

Docket: And–17–515

Supreme Judicial Court of Maine.

Argued: May 16, 2018

Decided: June 26, 2018

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant father

Heidi M. Pushard, Esq. (orally), Law Office of Heidi M. Pushard, 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, JABAR, HJELM, and HUMPHREY, JJ.

HJELM, J.

[¶ 1] On the third appeal in this child protection matter, see In re E.A. , 2015 ME 37, 114 A.3d 207 ( Evelyn I ); In re Evelyn A. , 2017 ME 182, 169 A.3d 914 ( Evelyn II ), the parents of two children challenge the judgment entered by the District Court (Lewiston, Dow, J. ) terminating their parental rights and denying their motions to reopen the record and for relief from judgment. We affirm the judgment.

I. BACKGROUND

[¶ 2] Much of the procedural history—which has been anything other than linear—and the description of the facts in this case are set out in the opinions we issued in the first two appeals. See Evelyn I , 2015 ME 37, ¶¶ 2–6, 114 A.3d 207 ; Evelyn II , 2017 ME 182, ¶¶ 1–13, 169 A.3d 914. Here, to provide context to the issues presented, we briefly review some of that material, and we describe developments since the most recent appeal.

[¶ 3] In 2003, the parents' 21–month–old son, Nathaniel, died. The mother was convicted of manslaughter for Nathaniel's death, see State v. Allen , 2006 ME 20, 892 A.2d 447, and the father was convicted of assaulting him the night before he died, see State v. Allen , 2006 ME 21, 892 A.2d 456. Ten years after they were convicted, the mother and father became parents to the twins who are the subject of this proceeding. Less than a week after the children were born prematurely and while they were still hospitalized, the Department of Health and Human Services sought a preliminary protection order on the basis of the parents' convictions for the crimes they had committed against Nathaniel. The court (Oram, J. ) issued the order and gave custody of the children to the Department. Directly following the children's release from the hospital, they were placed in the foster home where they have lived ever since.

[¶ 4] The court held a lengthy jeopardy hearing in the late winter and spring of 2014, where the parents offered evidence challenging the cause of Nathaniel's death, "did not accept responsibility for Nathaniel's death, and ... expressed their belief that his death was caused by some other undiagnosed medical problem, possibly due to his immunizations

or a seizure or metabolic disorder." Evelyn II , 2017 ME 182, ¶ 6, 169 A.3d 914. In early June of 2014, the court (Beliveau, J. ) entered an order finding the children to be in circumstances of jeopardy. Because the court also found aggravating factors based on the parents' convictions for their crimes against Nathaniel, the court ordered the Department to cease reunification efforts. See 22 M.R.S. §§ 4002(1–B)(A), (B)(3), (5) and 4041(2)(A–2)(1) (2017). On the parents' appeal, we affirmed the jeopardy order in March of 2015. See

Evelyn I , 2015 ME 37, ¶¶ 1, 14, 114 A.3d 207.

[¶ 5] The Department had petitioned for termination of parental rights in July of 2014. After a two-day hearing held in October of 2015, the court (Dow, J. ) entered a judgment in early 2016 terminating the rights of both parents to the children. The parents filed timely notices of appeal, but the father moved to stay the appellate proceedings because he anticipated filing a motion for relief from judgment pursuant to Maine Rule of Civil Procedure 60(b). We granted the motion to stay, and eventually, in June of 2016, both parents filed a joint Rule 60(b) motion, which, as amended five months later,¹ alleged ineffective assistance of counsel for each parent at both the jeopardy and termination hearings.

[¶ 6] In December of 2016, the court held a hearing on the motion. During the hearing, the parents presented testimony from a forensic pathologist whom the court had not allowed to testify at the termination hearing because even approximately two months after the expiration of the deadline to exchange expert reports, counsel for the mother had not yet produced a report, and the court then denied the mother's late motion for enlargement of time to exchange reports. During the motion hearing, the forensic pathologist questioned the determination reached by the physician whose practice focuses on child abuse and who had testified at both the manslaughter trial and the jeopardy hearing that Nathaniel's fatal injuries were "inflicted." That child abuse specialist also testified at the motion hearing and stated that, despite the opinions of the parents' expert, his original opinion remained unchanged and that, in his view, the opinion of the parents' expert was unsupported by the medical evidence and the medical community's understanding of head trauma

in children. During the hearing, the parents also testified, both still maintaining that the mother was not responsible for Nathaniel's death.

[¶ 7] In February of 2017, the court issued an order granting the Rule 60(b) motion based on a conclusion that the parents had been deprived of effective representation at the jeopardy hearing because, in the court's view, counsel improperly failed to advise the parents to accept an offer that would have allowed reunification services to continue. For that reason, the court vacated the termination order, reinstated the jeopardy order, and ordered the Department to offer the parents a proposed jeopardy order that would allow for reunification services.

[¶ 8] On an appeal taken by the Department, we issued an opinion in August of 2017 concluding that the court erred by addressing the claim of ineffectiveness of counsel at the jeopardy hearing. See Evelyn II , 2017 ME 182, ¶¶ 3, 34, 169 A.3d 914. We therefore vacated the court's order and remanded for the court to reconsider the evidence presented during the termination hearing because the court erroneously imposed a burden of proof on the parents. Id. We also ordered that, if the court again determined that parental rights should be terminated, the court would then be required to consider the parents' Rule 60(b) motion but only to the extent that it alleged ineffectiveness of counsel at the termination hearing. Id.

[¶ 9] The parents moved for us to reconsider the scope of the remand proceedings. By order dated September 15, 2017, we denied the motion, making clear that when the court readdressed the issue of termination on remand, the record would include "any evidence that was appropriately considered" during the termination hearing but that the parents also would be entitled to move to reopen the record if there had been changes in circumstances after the original termination hearing. Importantly for this case, we stated that the court "would grant such a motion only if it determines that reopening the record is appropriate in the circumstances, taking into account that the passage of time resulted largely from the parents' own motions for enlargement of time and their subsequent filing of a late motion to amend their Rule 60(b) motion." We also stated that the record to be considered by the court in adjudicating the termination petition "does not include evidence offered in the Rule 60(b) proceeding." (Emphasis added.) This had the direct effect of foreclosing the court from considering the testimony of the parents' expert regarding the cause of Nathaniel's death as part of the termination hearing record, leaving it germane only to the claim of ineffectiveness.

[¶ 10] Within several weeks after the case was remanded, the parents filed two sequential motions to reopen the record of the termination hearing. See M.R. Civ. P. 43(j). Both motions sought to allow the development of two additional areas of evidence: the testimony of their expert witness presented at the Rule 60(b) motion hearing and updated evidence about the children's circumstances since the termination hearing held in October 2015. In the first motion, the parents recited that they had attached affidavits describing updated information relating to the children. In fact, no such affidavits accompanied the motion. The second motion, which the parents referred to as their amended motion, requested that the court accept affidavits in lieu of testimony, but the parents again did not submit any affidavits and did not suggest what evidence they wanted to present about the children for the court to consider.

[¶ 11] A month later, the court issued a consolidated order adjudicating all matters pending before it. First, using the standard prescribed in our September 2017 order denying the parents' motion to reconsider and concluding that it was not appropriate to reopen the record, the court denied the parents' motion to reopen the evidence.

[¶ 12] Second, the court terminated the parental rights of the parents. The court pointed to, among other things, the convictions for acts of violence committed by each parent against Nathaniel—with the mother having been convicted for causing his death; each parent's denial of responsibility for, and lack of insight into, the cause of Nathaniel's death and their deflection of blame to an "unfair judicial system"; the absence of any protections that could be imposed to protect the children; and the best interests of the children, which would be promoted by termination.

[¶ 13] Finally, the court denied the parents' Rule 60(b) motion as it related to the termination hearing. The court found that representation of the mother was deficient because her attorney had failed to timely designate the forensic pathologist as a witness and provide a report to the Department. The court concluded, however, that although it had now heard "the medical testimony the parents had wanted for so long...