In re M.C. ( 2014 )


Menu:
  • MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
    Decision:   
    2014 ME 128
    Docket:     Oxf-14-75
    Submitted
    On Briefs: October 27, 2014
    Decided:    November 13, 2014
    Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, and JABAR, JJ.
    IN RE M.C.
    ALEXANDER, J.
    [¶1] The father of M.C. appeals from a judgment of the District Court
    (Rumford, Carlson, J.) terminating his parental rights pursuant to 22 M.R.S.
    § 4055(1)(A)(1)(a), (B)(2) (2013). After reviewing the evidence in this case, and
    the appropriate briefing process utilized by the father’s counsel on appeal, we
    affirm.
    I. CASE HISTORY
    [¶2] The court held a termination of parental rights hearing on January 21,
    2014, during which it heard testimony from the child’s foster parents and a
    Department of Health and Human Services caseworker.               At the termination
    hearing, the father was represented by counsel.
    [¶3] The father received proper notice of the termination proceedings, but at
    the time of the termination hearing he was incarcerated in Massachusetts, pending
    trial on multiple felony charges. He had not been in contact with his attorney since
    2
    August 2013. Despite multiple efforts to communicate with the father, including
    mailed communications to the facility where he was incarcerated, counsel had
    received no response from the father regarding the child protection proceedings.
    During this same time, however, the father had sent correspondence to the child’s
    foster home. Accordingly, the court could have properly inferred that the father
    had received notice of the termination proceeding and of his opportunity to
    participate in the proceeding,1 and had chosen to ignore the notices. See Graybar
    Elec. Co. v. Sawyer, 
    485 A.2d 1384
    , 1387 (Me. 1985) (stating that evidence that a
    letter or notice, properly addressed, was mailed supports a presumption that the
    letter or notice was received by the addressee).
    [¶4] The evidence at the termination hearing demonstrated that, when he
    was not incarcerated, the father engaged in domestic violence and substance abuse
    in front of the child and had on occasion been intoxicated while caring for the
    child. Although he had significant substance abuse problems, the father refused to
    recognize his substance abuse as a concern or problem with his parenting. While
    he was not incarcerated, he had failed to participate in good faith in offered
    rehabilitation and reunification efforts by not attending certain family team
    meetings or engaging in treatment for substance abuse. In addition, his continued
    1
    Although he was incarcerated, the father’s participation by remote communications technology from
    his place of incarceration could have been arranged had he indicated any desire to participate. See In re
    A.M., 
    2012 ME 118
    , ¶¶ 20-27, 
    55 A.3d 463
    .
    3
    incarceration rendered him unable to meet the child’s needs or to protect the child
    from jeopardy at the hands of his mother.
    [¶5] The court entered its order terminating parental rights on February 7,
    2014, on the grounds that the father was unwilling or unable to take responsibility
    for the child in a time frame calculated to meet the child’s needs and that
    termination of parental rights was in the best interest of the child. Pursuant to the
    termination order, the permanency plan for the child is adoption by his current
    foster parents. The father timely appealed the order pursuant to 22 M.R.S. § 4006
    (2013) and M.R. App. P. 2(b)(3).
    II. PROCEDURE ON APPEAL
    [¶6]   On June 3, 2014, counsel for the father filed an appellate brief
    containing only a procedural history and statement of facts, accompanied by a
    motion for enlargement of time to allow the father to personally file a supplemental
    brief. Counsel stated in his motion that he did not find any arguable issues on
    appeal and was filing the motion and statement of facts according to the process
    identified in In re William P., 
    2001 ME 25
    , ¶ 3, 
    765 A.2d 76
    . We granted the
    motion on June 6, 2014, to allow the father to personally file a brief on or before
    July 11, 2014. The father did not file a supplemental brief, and on July 21, 2014,
    we ordered that we would consider the appeal on the counsel for the father’s brief,
    without any briefing by the Department.
    4
    [¶7] The process utilized by the father’s counsel in this appeal was proper
    and in line with our past precedent for addressing appeals of questionable merit in
    cases involving fundamental constitutional rights when, as a matter of due process,
    a party has a right to have an appeal heard. When a parent’s attorney in a child
    protection case believes, in good faith, that there are no arguable issues of merit in
    an appeal, counsel should:
    1.     File with the Court, with a copy to the client, a brief outlining the
    factual and procedural history of the case, and including a statement that counsel
    believes that there are no arguable issues of merit for an appeal.
    2.     Provide the client with notice that, if the client believes that there is a
    valid ground for appeal, the client should file (a) a brief with this Court identifying
    the issues the client wishes to raise on appeal, and (b) a request for the appointment
    of new counsel if the client desires new representation.
    3.     Request from this Court a reasonable extension of time for filing the
    appellant’s brief to allow the client time to prepare and file a separate brief
    addressing the issues on appeal from the client’s perspective.
    See In re William P., 
    2001 ME 25
    , ¶ 3, 
    765 A.2d 76
    ; see also State v. Hofland,
    
    2012 ME 129
    , ¶¶ 13-17, 
    58 A.3d 1023
    ; see generally State v. Junkins, 
    2001 ME 133
    , 
    779 A.2d 948
    (addressing the appropriate process to address appeals, or issues
    on appeal, that counsel determines may lack merit in criminal cases).
    5
    [¶8] Counsel did as we have suggested in this case. The father was given
    the opportunity to but did not file a separate brief by the time allowed by our grant
    of the motion for extension of time to file his brief. The matter is now in order for
    decision. The record supports the court’s findings, to the clear and convincing
    evidence standard, that at least one ground of parental unfitness is proved.
    See 22 M.R.S. § 4055(1)(B)(2)(b)(ii); In re Michaela C., 
    2002 ME 159
    , ¶¶ 17-23,
    
    809 A.2d 1245
    . Further, there was ample evidence in the record to support the
    court’s finding that termination of the father’s parental rights was in the child’s
    best interest. See 22 M.R.S. § 4055(1)(B)(2)(a); In re Charles G., 
    2001 ME 3
    ,
    ¶ 14, 
    763 A.2d 1163
    .
    The entry is:
    Judgment affirmed.
    On the briefs:
    Christopher W. Dilworth, Esq., Farmington, for appellant father
    The Department of Health and Human Services did not file a
    brief
    Rumford District Court docket number PC-2012-2
    FOR CLERK REFERENCE ONLY