In re M.P., Docket No. Cum–14–131.

• Decision Date: 29 October 2015
• Docket Number: Docket No. Cum–14–131.
• Citation: 126 A.3d 718
• Parties: In re M.P.
• Court: Maine Supreme Court

126 A.3d 718

In re M.P.

Docket No. Cum–14–131.

Supreme Judicial Court of Maine.

Submitted on Briefs: June 2, 2015.

Decided: Oct. 29, 2015.

Henry I. Shanoski, Esq., Portland, for appellant mother.

Janet T. Mills, Attorney General, and Meghan Szylvian, 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, and JABAR, JJ.

SAUFLEY, C.J.

[¶ 1] This appeal requires us to identify a process by which a parent may challenge a judgment terminating parental rights based on ineffective assistance of counsel. The mother of M.P. appeals from a judgment entered in the District Court (Portland, Powers, J. ) terminating her parental rights pursuant to 22 M.R.S. § 4055(1) (2014) and denying her motion for relief from judgment pursuant to M.R. Civ. P. 60(b)(6) based on her claim of ineffective assistance of counsel. In addition to challenging the judgment terminating her parental rights, the mother argues that she was denied due process because she was not provided with the effective assistance of counsel and was not allowed to present witnesses' testimony at the hearing on the Rule 60(b)(6) motion. We now address the process to be employed for raising ineffective assistance claims in termination of parental rights matters, adopt a standard modeled after Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and affirm the judgment.

I. BACKGROUND

A. Factual Findings

[¶ 2] Following a hearing on a petition filed by the Department of Health and Human Services to terminate the mother's parental rights to her daughter, the court found the following facts by clear and convincing evidence, and the findings are supported by competent evidence in the record.¹ See In re Thomas D., 2004 ME 104, ¶ 21, 854 A.2d 195. When M.P. was born in December 2011, personnel at Maine Medical Center contacted the Department regarding the mother's inability to meet the child's basic needs and to remember instructions that were given to her. In January 2012, the Department filed a petition for a child protection order, and M.P. was placed with her mother's aunt.

[¶ 3] The mother has cognitive limitations and has suffered from anxiety and depression. From March 2012 to October 2012, the mother had visits with M.P. twice a week. During the visits, the mother needed a lot of reminding about how to care for M.P., and she was not consistent in her care.

[¶ 4] In October 2012, the mother and M.P. entered the Mary's Place residential parenting program. While at Mary's Place from October 2012 to June 2013, the mother struggled to understand M.P.'s developmental needs and to apply the advice that she was given to different situations. The mother had difficulty multi-tasking and there continued to be safety concerns; sometimes the mother would confine M.P. too long in her crib or highchair as a way of accomplishing other tasks without having to worry about her.

[¶ 5] When the mother left Mary's Place with M.P. after seven months of residential on-site parenting training and treatment, she still needed regular repetition and continued in-home support. Once back in her home, the mother was involved in the Spurwink Family Reunification Program for four to ten hours weekly, and she received ten to twenty hours per week of independent living skills services through Merrymeeting Behavioral Health.

[¶ 6] During the several months that the mother was involved in the Program, staff had to repeatedly address safety issues with the mother; she needed regular prompting and had trouble supervising M.P., who was by then an active toddler. After a team meeting in August 2013, the Program's staff decided to end its services for the mother and M.P. The team agreed that the mother needed support in a residential care program, which was no longer available. The mother was unable to progress to the parent education part of the Program because of ongoing safety concerns.

[¶ 7] After the Program ended, M.P. returned to living with her mother's aunt, and biweekly visits resumed with the mother. The mother was still not consistent in her care during visits.

B. Termination Hearing

[¶ 8] After a year of intensive services, including the residential parenting program at Mary's Place, the Department filed a petition for termination of the mother's parental rights on October 30, 2013.² The termination petition asserted that, although the mother had consistently participated in all reunification services, "[h]er intellectual limitations are preventing [her] from having the ability to comprehend, understand and consistently implement the parenting skills, to be pro-active in anticipating safety issues and to manage the ongoing changes related to her child's overall development." The termination hearing was held in February 2014. The Department presented testimony from six witnesses: a psychologist who conducted an evaluation for the Child Abuse and Neglect Evaluation Program,³ a social worker from Mary's Place, a case management worker from Mary's Place, a visit supervisor, a case management supervisor with Spurwink's Family Reunification Program, and M.P.'s caseworker from the Department. The mother testified, but her attorney presented no other witnesses on her behalf. The guardian ad litem (GAL) also testified, and the court took judicial notice of all GAL reports.

[¶ 9] The mother was twenty-five years old at the time of the termination hearing and had recently obtained her high school diploma. She was residing in Portland in an apartment and regularly engaging in services. She was seeing a therapist weekly and taking anxiety medication; she was having panic attacks at times. The mother admitted that it takes her longer than normal to "get it," but she feels that she can care for M.P. with support from daycare and friends.

[¶ 10] At the hearing, the GAL opined that, although the mother had made a good faith effort to reunify, she still lacked the ability to meet the safety and developmental needs of M.P., she could not seem to apply the skills she had been taught to different circumstances, and she needed regular repetition of model parenting skills. The court found the GAL's opinion credible.

[¶ 11] The District Court terminated the mother's parental rights in a judgment entered on March 13, 2014. The court found that, though not unwilling, the mother is unable to protect the child from jeopardy or take responsibility for the child in a time reasonably calculated to meet the child's needs. See 22 M.R.S. § 4055(1)(B)(2)(b)(i), (ii). The court also found that termination is in M.P.'s best interest. See 22 M.R.S. § 4055(1)(B)(2)(a). The mother timely appealed from the termination judgment.

C. Motion for Relief from Judgment Pursuant to M.R. Civ. P. 60(b)(6)

[¶ 12] While the appeal was pending, on June 17, 2014, the mother filed a motion for remand claiming that she had been denied her right to due process at the termination hearing based on ineffective assistance of counsel. By order dated June 18, we granted the mother's motion, stayed her pending appeal, and remanded the matter to the District Court to permit the mother to file, and the District Court to act on, a motion for relief from judgment. On June 25, 2014, the mother moved for relief from judgment pursuant to M.R. Civ. P. 60(b)(6). In her motion, the mother asserted, among other things, that her attorney had failed to call or subpoena witnesses who would have offered favorable testimony regarding the mother's strengths and ability to parent M.P., and had neglected to prepare her to testify on her own behalf. Attached to the motion were affidavits from the mother, the mother's counselor, the mother's teacher at Portland Adult Education, and a close friend. The mother requested an evidentiary hearing to call witnesses on her behalf and present her own prepared testimony.

[¶ 13] At a trial management conference, the court made it clear that the hearing on the motion would not be an opportunity to relitigate the termination case. Instead, the court indicated that it would allow the mother and the mother's former attorney to testify and would also consider the affidavits submitted with the motion.

[¶ 14] The hearing on the motion for relief from judgment was held on August 13, 2014. Because the process employed and the evidence presented to the court at the hearing are relevant to our due process analysis on appeal, we describe the proceedings in further detail: The mother testified at the hearing and described her relationship with her former attorney. She also testified that her counselor, her teacher, and her friend would have testified that she was a hard-working student, loved her daughter very much, and was dedicated to bettering herself. The mother's former attorney testified that she had represented parents in child protection matters for five years, but she had never prevailed on behalf of a parent in a termination proceeding. She testified that she had attended monthly team meetings, met separately with the mother multiple times in person, and made phone calls to the mother and to service providers before the termination hearing. She described her trial strategy as "pok[ing] holes in the State's case." Further, she testified that she had spoken to some of the witnesses the mother was now claiming should have been called at the termination hearing and decided that their testimony could not address the Department's continuing safety concerns. The attorney testified that she was not told about the mother's teacher and that she had only met the mother's friend a week before the trial and did not want to risk putting someone she had just met on the stand.

[¶ 15] After hearing from the mother and the mother's former attorney, and considering affidavits from other potential witnesses, the court denied the mother's motion for relief from judgment on August 20, 2014. Guided by the method by which ineffective assistance of counse...