In re Kenneth S.
| Decision Date | 17 February 2022 |
| Docket Number | Docket: Wal-21-203 |
| Citation | 269 A.3d 242,2022 ME 14 |
| Parties | IN RE Child of KENNETH S. |
| Court | Maine Supreme Court |
Rory A. McNamara, Esq., Drake Law LLC, York, for appellant father
Joseph W. Baiungo, Esq., Belfast, for appellant mother
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: STANFILL, C.J., and MEAD, GORMAN, JABAR, HORTON, and CONNORS, JJ.
[¶1] In this consolidated appeal, the father challenges the termination of his parental rights as to his child entered in the District Court. (Belfast, Worth, A.R.J. ). The mother raises an appeal conditioned on our vacating the District Court's termination of the father's parental rights.1 We affirm the judgment as to both parents.
[¶2] The facts are drawn from the court's findings, which were entered after a five-day consolidated hearing and are supported by competent record evidence. See In re Children of Michelle C. , 2021 ME 61, ¶ 2, 264 A.3d 1221.
[¶3] Shortly after the child was born in 2010, the father was granted sole parental rights and responsibilities and primary residence of the child, and the mother's contact was limited to supervised visits.2 Prior to 2018, the father had sought mental health treatment for the child because the child was often dysregulated in his emotions and actions. In March 2018, police performed a welfare check on the child's residence and found the child locked in his room. In an interview, the child stated that his father dragged him up the stairs by the hood of his sweatshirt and locked him in his room. The father was charged with domestic violence assault related to this incident and was prohibited from having contact with the child.3 Pursuant to a safety plan between the father and the Department of Health and Human Services, the child was placed with his maternal grandparents but remained in the father's custody.
[¶4] After the child had several behavioral incidents in April and May 2018, and after healthcare and educational professionals had difficulty engaging with the father, the father asked the Department to take custody of the child. On May 15, 2018, the Department filed a petition for child protection that included a request for a preliminary protection order. The court (Mathews, J. ) granted the Department custody of the child that same day. The Department continued the child's placement with the maternal grandparents.
[¶5] On August 16, 2018, the court (Fowle, J. ) entered a jeopardy order, by agreement, as to each parent. The order as to the father stated that the father caused the child to be in circumstances of jeopardy due to the threat of physical and emotional harm and the deprivation of needed medical care. The order as to the mother stated that the mother posed "the threat of injury and the deprivation of adequate supervision and care."
[¶6] On December 4, 2019, the Department filed a petition to terminate the parental rights of both parents. On March 9, 2020, the father filed a motion to continue the termination hearing, and, on March 12, the father's attorney moved for leave to withdraw; the court (Davis, J. ) granted both motions. The father requested a new attorney. He claimed that his attorney was to delete certain portions of the agreed-to jeopardy order, by agreement with the state, and had failed to move the court to amend the order to reflect those deletions. The court appointed a new attorney on March 16, 2020. Following several further continuances, the petition was eventually heard over five days, almost a year later, on January 25, March 30, April 1, May 21, and May 24, 2021.
[¶7] At the close of the hearing, the court (Worth, A.R.J. ), made no findings or indication of its decision, instead stating that it was going to review the exhibits and statutes and write a decision "as quickly as [it could]." The court, then, through a clerk, via email, notified all parties that it was requesting a proposed order and findings only from the Department. The father filed a memorandum objecting to the court's request and "propose[d] that no parties provide any proposed orders and findings or that all parties provide proposed orders and findings." The court denied the father's objection stating that it "had ample opportunity to understand [the father's] positions taken, and his likely proposed findings and conclusions." The court received the proposed order and findings from the Department on June 9, 2021.
[¶8] On June 14, 2021, the court entered its termination order, finding that the parents were unwilling or unable to protect the child from jeopardy or take responsibility for the child in a time reasonably calculated to meet the child's needs and that termination was in the child's best interest. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i)-(ii) (2021).
[¶9] The court found the father unfit based on the child's high needs, the father's own mental health needs, the father's erratic therapy attendance, the father's claim that he was in therapy only because the Department demanded it, the Department's need to suspend visits because of the inappropriate interactions between the father and the child that upset the child to the point where the child no longer wanted to attend visits, and the father's continual denial of the inappropriateness of his actions that caused the need for the Department's involvement.
[¶10] The court found the mother unfit based on her significant health needs that had occasionally led to her being hospitalized, and because, since April 2019, she had seen the child only while supervised. The mother had declined to have more frequent visits with the child and had stated that she did not believe that she could parent the child on a regular basis.
[¶11] The court found that the child's well-being had improved since he began living with his grandparents. The child also expressed his desire to stay with his grandparents.
[¶12] Both parents timely appealed. See 22 M.R.S. § 4006 (2021) ; M.R. App. P. 2B(c)(1).
[¶13] On July 2, 2021, the father also filed a motion for relief from the judgment, alleging ineffective assistance of counsel by the father's first attorney.4 M.R. Civ. P. 60(b). On October 20, 2021, the court (Martin, J. ), denied the father's motion, stating that the father had failed to make a prima facie showing of ineffective assistance of counsel and that the motion was untimely filed.
[¶14] On appeal, the father raises three arguments. He argues that the court erred by denying his request to submit a proposed order while allowing the Department to submit a proposed order, and such an error amounted to the denial of a closing argument and violated his procedural due process rights. He also argues that the trial court used language in its order that inappropriately shifted the burden of persuasion to the father.5 Finally, he argues that his attorneys provided ineffective assistance of counsel, necessitating remand.
[¶15] The father contends that the court was required to allow him to present a proposed order and that the court's failure to allow him to present proposed findings while requesting that the Department present a proposed order and findings was a violation of due process.6
Id. (quotation marks omitted). We "review de novo whether an individual was afforded procedural due process." In re Children of Benjamin W. , 2019 ME 147, ¶ 8, 216 A.3d 901.
[¶17] When addressing a due process challenge, the first factor we consider is the private interest that will be affected by the court's action. The private interest at issue here involves the termination of a parent's constitutional right to raise his children, and we have held that "parents must be afforded the utmost in procedural protection when the state deprives them of their parental rights." In re Chelsea C. , 2005 ME 105, ¶ 11, 884 A.2d 97 (citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). This factor weighs heavily in favor of requiring a court to allow a parent to submit a proposed order and findings when allowing the Department to submit a proposed order and findings.
[¶18] The second factor involves a determination of whether the process adopted carries a "risk of an erroneous deprivation ... and [of] the probable utility of additional or substitute procedural safeguards." In re Alexander D. , 1998 ME 207, ¶ 13, 716 A.2d 222 (quotation marks omitted). At the conclusion of the hearing, the trial court did not render a decision. Rather, it indicated that it would review the evidence and "write a decision as quickly as [it could]." The process the trial court used here—where only the Department was allowed to submit a proposed order—could have had a significant impact upon the court's decision. The obvious procedural safeguard would have been to allow the father to submit a proposed order and findings.
[¶19] The third factor in a procedural due process analysis—the additional...
To continue reading
Request your trial