In re Child of Kenneth S. , 2022 ME 14 ( 2022 )


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  • MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
    Decision:    
    2022 ME 14
    Docket:      Wal-21-203
    Submitted
    On Briefs: December 21, 2021
    Decided:     February 17, 2022
    Panel:       STANFILL, C.J., and MEAD, GORMAN, JABAR, HORTON, and CONNORS, JJ.
    IN RE CHILD OF KENNETH S.
    JABAR, J.
    [¶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.
    I. BACKGROUND
    [¶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
    .
    1 The mother argues that, if we were to vacate the trial court’s termination of parental rights to
    the father based on any of his challenges, it would not be in the child’s best interest to terminate her
    rights. Because we affirm the order terminating the father’s parental rights, we need not reach this
    argument. Additionally, as discussed below, the trial court’s determinations as to parental unfitness
    of the mother and best interest of the child were supported by competent record evidence.
    2
    [¶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
    2Between 2010 and 2018, the Department of Health and Human Services investigated the parents
    several times due to its concern about the parents’ ability to care for the child but never opened a
    case.
    3 This charge was later dismissed pursuant to a plea agreement where the father pleaded guilty
    to disorderly conduct and was ordered to pay a fine.
    3
    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.
    4
    [¶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(B)(2)(a), (b)(i)-(ii).
    [¶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
    5
    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
    4   On August 20, 2021, we permitted the trial court to act on the father’s motion for relief.
    6
    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.
    II. DISCUSSION
    [¶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.
    A.       Due Process
    [¶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
    5 This argument, based on the court’s imprecise use of language, is unpersuasive, and does not
    warrant extended discussion. A review of the decision as a whole demonstrates that the court
    properly placed the burden of persuasion on the Department. The burden remains on the
    Department at all times to prove parental unfitness by clear and convincing evidence. See, e.g., In re
    Forest G., 
    2017 ME 26
    , ¶ 4, 
    155 A.3d 879
    .
    7
    proposed findings while requesting that the Department present a proposed
    order and findings was a violation of due process.6
    [¶16]      The state must use procedures that align with due process
    requirements when terminating parental rights. In re C.P., 
    2016 ME 18
    , ¶ 17,
    
    132 A.3d 174
    . This requirement allows for “an opportunity to be heard upon
    such notice and proceedings as are adequate to safeguard the right which the
    particular pertinent constitutional provision purports to protect.”                            In re
    Alexander D., 
    1998 ME 207
    , ¶ 13, 
    716 A.2d 222
     (quotation marks omitted).
    Courts determine if there has been a due process violation based on
    (1) the private interest that will be affected by the government’s
    action; (2) the risk of an erroneous deprivation of such an interest
    through the existing procedure and the probable utility of
    additional or substitute procedural safeguards; and (3) the
    government’s interest in adhering to the existing procedure,
    including the fiscal and administrative burdens that additional
    procedures might entail.
    
    Id.
     (quotation marks omitted). We “review de novo whether an individual was
    afforded procedural due process.” In re Children of Benjamin M, 
    2019 ME 147
    ,
    ¶ 8, 
    216 A.3d 901
    .
    6 The father also contends that not allowing him to submit a proposed order is akin to not allowing
    him to make a closing argument. However, even if we equate a proposed order with a closing
    argument, there is no right to make or submit a closing argument in child protection proceedings.
    See In re M.B., 
    2013 ME 46
    , ¶¶ 26-29, 
    65 A.3d 1260
     (holding that parents in a termination of parental
    rights proceeding “are not entitled to closing argument as a matter of right” (quotation marks
    omitted)).
    8
    [¶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 (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 hearings, 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
    9
    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 fiscal and administrative burden associated with adopting any extra
    procedural safeguards—also weighs in favor of the father. Allowing the father
    to submit a proposed order and findings would have imposed a negligible
    administrative burden on the court.
    [¶20] After considering all the factors, we conclude that the trial court
    erred because its refusal to allow the father to submit a proposed order and
    findings while simultaneously requesting that the Department to submit a
    proposed order and findings involved a significant private interest and carried
    an inherent risk of an erroneous deprivation of his parental rights.
    [¶21] When the court chooses to allow or request the submission of
    proposed orders and findings or to allow oral argument, it may not extend the
    opportunity to one side and not the other. If the court has yet to rule, a request
    for argument or a proposed order is in substance an invitation for advocacy,
    and the opportunity to advocate, if it is granted, must be extended equally.7 The
    7 If the court’s request is made after the court has ruled, the request can be made of the prevailing
    party only, but good practice, if not due process, calls for the opposing party to be allowed to
    comment on whether the prevailing party’s submission accurately reflects the court’s ruling.
    10
    principle of equality of access to the courts is rooted in the Due Process Clause
    of the United States Constitution. See Harrington v. Harrington, 
    269 A.2d 310
    ,
    314 (Me. 1970) (“[E]qual access to the civil courts was among the Fourteenth
    Amendment’s primary objectives.”); U.S. Const. amend. XIV. In this instance,
    given that the court had not yet ruled, the court should not have invited the
    Department to submit a proposed order without affording the father the same
    opportunity.8
    [¶22] Notwithstanding the trial court’s error, to assert a procedural due
    process error on appeal, a party must articulate an identifiable prejudice.
    The vacating of an order entered after a procedural error is not
    automatic. To vacate such an order, this Court must determine
    that it was entered after a process that was “inconsistent with
    substantial justice.” M.R. Civ. P. 61. We have held that an
    appellant, to be successful, must demonstrate both error and
    prejudice resulting to the appellant from the claimed error.
    S. Me. Props. Co. v. Johnson, 
    1999 ME 37
    , ¶ 9, 
    724 A.2d 1255
    .
    [¶23] Here, the court’s procedural error did not prejudice the father. In
    terms of prejudicing a parent’s case, we have stated “[i]n termination cases,
    where fundamental interests are at stake, due process requires: notice of the
    issues, an opportunity to be heard, the right to introduce evidence and present
    We focus on the requirements of the U.S. Constitution because the father has based his appeal
    8
    solely on a claim of a violation of the Due Process Clause of the U.S. Constitution.
    11
    witnesses, the right to respond to claims and evidence, and an impartial
    fact-finder.” In re Child of James R., 
    2018 ME 50
    , ¶ 17, 
    182 A.3d 1252
     (quotation
    marks omitted). Here, the father had notice of the issues and had a five-day
    hearing where he testified and responded to the claims and evidence the
    Department presented against him. The concern is whether the trial court,
    having access only to the Department’s proposed findings, could be an impartial
    fact-finder. The father does not challenge the court’s independent judgment,
    stating that “[t]his case has nothing to do with whether the trial court exercised
    its ‘judicial function’ or ‘independent judgment.’”      Even if this had been
    challenged, however, the record indicates that the court did exercise its
    independent judgment and did not adopt the Department’s proposed order
    verbatim. See In re Marpheen C., 
    2002 ME 170
    , ¶ 7, 
    812 A.2d 972
     (“[A] verbatim
    adoption of findings proposed by one party . . . is disfavored, as such an
    approach suggests that the court has not applied its independent judgment in
    making its findings and conclusions.”).
    [¶24] A review of the record indicates that the trial court’s decision to
    accept a proposed order and findings only from the Department did not affect
    the outcome of the case.
    12
    [¶25] The trial court identified two bases of parental unfitness as to the
    parents—(1) their unwillingness or inability to protect the child from jeopardy
    and the unlikelihood these circumstances would change within a time
    reasonably calculated to meet the child’s needs and (2) their unwillingness or
    inability to take responsibility for the child within a time reasonably calculated
    to meet the child’s needs. 22 M.R.S. § 4055(B)(2)(b)(i)-(ii). The court’s findings
    with regard to the father’s unfitness were fully supported by the testimony
    presented during the trial that demonstrated, inter alia, that the father
    struggled to attend therapy, declined to engage with intensive outpatient
    therapy, did not engage in parenting classes despite urging from the
    Department, and had multiple inappropriate visits with the child. The father
    himself testified that he did not completely recognize that locking the child in
    his room was inappropriate. He also testified that he was attending therapy
    only because the Department required him to do so. The court’s decision
    concerning the mother was supported by testimony that, during the period
    between the jeopardy hearing and the trial, the mother had been hospitalized
    several times due to her mental illness and had declined to expand visitation
    because she did not feel capable of being a mother.
    13
    [¶26] With regard to the best interest of the child, the trial court’s
    conclusion was supported by testimony from school officials, social workers,
    therapists, and the father about the child’s extensive needs and the child’s
    improvements since living with his grandparents. Notably, the mother agrees
    with the court’s determination on best interest, asserting, on appeal, that she
    “believes it is in her child’s best interests that both parents’ rights be
    terminated.”
    [¶27] In summary, the trial court’s procedural error did not prejudice
    the father’s due process rights because the error did not affect the outcome of
    the case. The record contains overwhelming evidence to support the court’s
    determinations that the parents were unfit and that termination of their rights
    was in the best interest of the child.
    B.    Ineffective Assistance of Counsel
    [¶28] The father also argues that his first attorney rendered ineffective
    assistance of counsel when he failed to delete certain portions of the initial
    jeopardy order, resulting in some facts being erroneously deemed admitted for
    future proceedings, and that his second attorney then failed to make a timely
    challenge to the jeopardy order based on the first attorney’s ineffective
    assistance. When analyzing a claim of ineffective assistance of counsel, we use
    14
    the Strickland standard, which requires proof of deficient performance and
    resulting prejudice. See Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984);
    In re M.P., 
    2015 ME 138
    , ¶¶ 23-27, 
    126 A.3d 718
    . We have stated that the
    procedural requirements for a claim of ineffective assistance at the jeopardy
    stage are the same as those required at the termination-of-parental-rights
    stage. In re Child of Radience K., 
    2019 ME 73
    , ¶ 59, 
    208 A.3d 380
    . These claims
    can be raised on “direct appeal if the record already contains the basis for the
    claim.” Id. ¶ 58. We have emphasized that the “need for a swift resolution of
    ineffectiveness claims at the termination stage of child protection proceedings
    applies just as forcefully at the jeopardy stage.” Id. ¶ 59 (citation and quotation
    marks omitted).
    [¶29]   Although the initial jeopardy order was entered before our
    decision in Radience K., either of the father’s attorneys could have raised the
    issues with the jeopardy order when Radience K. was published. Because the
    father had specifically raised issues with how the first attorney had handled the
    jeopardy order when the father’s first attorney was replaced, the father’s
    second attorney was on notice of the issues. That attorney failed to raise those
    issues until after the court terminated the father’s parental rights. Although the
    father’s claim of ineffective assistance of counsel concerning the jeopardy order
    15
    is not timely, we nonetheless address it in the context of the appeal from the
    order terminating his parental rights.9
    [¶30] We begin our analysis by considering the second prong of the
    Strickland test, determining whether any potential deficient performance was
    prejudicial. We review this prong by examining “whether [the] ineffective
    assistance of counsel rose to the level of compromising the reliability of the
    judgment and undermining confidence in it.” In re Children of Jeremy A., 
    2018 ME 82
    , ¶ 21, 
    187 A.3d 602
     (alteration and quotation marks omitted).
    Importantly, this appeal is a challenge to the termination of the father’s
    parental rights, not to the jeopardy order or the court’s ruling on the father’s
    Rule 60(b) motion. Ultimately, while the father argues that there were several
    ways in which he was prejudiced, he fails to show how the court’s decision to
    terminate his parental rights was affected by his attorneys’ failure to move the
    court to amend the jeopardy order, for at least two reasons. First, it is unclear
    how much of the jeopardy order the father now disputes. Second, while the
    trial court referred to the jeopardy order in its order terminating parental
    9 “To bring a claim of ineffective assistance of counsel . . . on direct appeal . . . the parent making
    the claim must submit a signed and sworn affidavit stating, with specificity, the basis for the claim.”
    In re M.P., 
    2015 ME 138
    , ¶ 21, 
    126 A.3d 718
    . The father submitted a two-page affidavit with the
    appellant’s brief on October 12, 2021.
    16
    rights, it also relied on the testimony of numerous witnesses, including the
    father’s testimony and reports of events occurring in the almost three years
    between entry of the jeopardy order and the termination of parental rights
    hearing. Nothing in the record indicates that any of the agreed-upon findings
    at issue made any difference in the trial court’s decision to terminate his
    parental rights. Because the father fails to show how changes to the jeopardy
    order would have changed that outcome, the father fails to prove the second
    prong of the Strickland test, prejudice.
    [¶31] Because we conclude that any potential ineffective assistance of
    counsel rendered by the father’s attorneys did not result in any prejudice to his
    case, we do not address the first prong of the Strickland test, whether the
    assistance rendered to him was deficient.
    III. CONCLUSION
    [¶32] Although we conclude that the trial court erred by requesting and
    receiving a proposed order and findings only from the Department and
    rejecting the father’s request to submit a proposed order and findings, the
    father was not denied due process because he was not prejudiced by the trial
    court’s error. Furthermore, the father failed to prove his claim of ineffective
    assistance of counsel.
    17
    The entry is:
    Judgment affirmed.
    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
    Belfast District Court docket number PC-2018-11
    FOR CLERK REFERENCE ONLY