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In re Evelyn A.

Supreme Court of Maine

August 22, 2017

IN RE EVELYN A. et al.

          Submitted On Briefs: July 19, 2017

          Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellant Department of Health and Human Services.

          Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellee father.

          Heidi M. Pushard, Esq., Law Office of Heidi M. Pushard, Lewiston, for appellee mother.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HJELM, JJ.

          SAUFLEY, C.J.

         [¶1] Evelyn and Elijah A. are twins born in 2013. Because the twins' parents had been convicted, in 2005, of the assault and manslaughter of their twenty-one-month-old son, Nathaniel, the twins went from the hospital into foster care. They have remained with the same foster parents since their birth, and although Evelyn has cerebral palsy that affects her ability to walk, both children are otherwise healthy. The parents have never accepted the jury's verdict finding the mother guilty of manslaughter or the separate verdict finding the father guilty of assault. They have testified that they believe that the scientific and medical communities have been wrong about the cause of Nathaniel's death and the system of justice has failed them.

         [¶2] The matter comes before us in an unusual procedural posture. After a trial on a petition to terminate parental rights brought by the Department of Health and Human Services, the District Court (Lewiston, Dow, J.) terminated both parents' parental rights to the twins. The parents filed notices of appeal and moved for relief from the judgment of termination and months later moved for relief from the court's initial finding of jeopardy [Field, J.), all based on claims of ineffective assistance of counsel. After a hearing, the court concluded that trial counsel had been ineffective at the jeopardy stage and declined to make findings regarding counsel's effectiveness in the termination proceeding. Based on the finding regarding the jeopardy proceeding, the court vacated the termination order and required the Department to negotiate a plan to provide reunification services to the parents. The Department appeals from the court's judgment vacating the termination order.

         [¶3] We conclude that the court erred in addressing the parents' untimely raised allegations that they had received ineffective assistance of counsel at the jeopardy stage, in ordering further reunification efforts, and in declining to adjudicate the claim of ineffective assistance of counsel regarding the termination proceeding. Accordingly, we vacate the court's judgment granting the parents' motion for relief as it affects the original jeopardy determination. We also clarify the process for applying what the Legislature has called a "rebuttable presumption, " 22 M.R.S. § 4055(1-A) (2016), [1] and remand to allow the court to determine whether to terminate the parents' parental rights by applying section 4055(1-A) in a manner that is consistent with due process. On remand, the court must also, as necessary, issue findings and determinations regarding the parents' claim of ineffective assistance of counsel at the termination hearing.

         I. BACKGROUND

         [¶4] The following facts are drawn from the court's findings, all of which are supported by competent evidence in the record, and from the lengthy procedural record. See In re Gabriel W., 2017 ME 133, ¶ 3, __A.3d__ Evelyn and Elijah are twins born prematurely in October 2013. Six days after they were born, the Department petitioned for a preliminary protection order on the ground that the twins' parents had been convicted of crimes perpetrated against their first child, Nathaniel, who died due to the mother's abuse within the first year after they had adopted him. Specifically, in 2005, the mother had been convicted of manslaughter (Class A), 17-A M.R.S. §203(1)(A) (2016), see State v. Allen, 2006 ME 20, ¶ 1, 892 A.2d 447 (affirming conviction), and the father had been convicted of assault of a person under the age of six (Class C), 17-A M.R.S. § 207(1)(B) (2016), see State v. Allen, 2006 ME 21, ¶ 1, 892 A.2d 456 (affirming conviction).[2]

         [¶5] The court (Oram, J.) signed an order of preliminary protection on October 9, 2013, placing the twins in the custody of the Department. When the children were discharged from the neonatal intensive care unit in mid-November, they were placed in a foster home, where they have resided ever since.

         [¶6] The parents waived the right to a summary preliminary hearing. The court [Beliveau, J.) held a five-day contested jeopardy hearing on February 25 and 26, March 14, April 30, and May 9, 2014.[3] See 22 M.R.S. § 4035(1) (2016). The parents were represented by counsel throughout the proceeding. At that hearing, the court heard specific evidence regarding the convictions related to Nathaniel's death. Notwithstanding the convictions, the court allowed the parents to offer evidence to challenge the cause of Nathaniel's death. The Department presented evidence of the head and neck injuries suffered by Nathaniel while he was in his mother's care; the resulting inter-cranial bleeding that was the immediate cause of death; the medical opinion of the cause of death that had been presented to the jury-violent and repeated shaking of the child; and the parents' frustration with Nathaniel's behavior that preceded his injuries. The parents both testified. They did not accept responsibility for Nathaniel's death, and they 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.

         [¶7] The court entered an order on June 2, 2014, finding the children to be in jeopardy. See 22 M.R.S. § 4035(2) (2016). Although the Department had not sought a finding of an aggravating factor, the court determined that an aggravating factor existed as to each parent because of the mother's criminal conviction of manslaughter, see 22 M.R.S. § 4002(1-B)(B)(3) (2016); the father's felony conviction of assault on a child under the age of six resulting in serious bodily injury, see 22 M.R.S. § 4002(1-B)(B)(5) (2016); and the father's subjection of Nathaniel to "treatment that is heinous or abhorrent to society, " 22 M.R.S. § 4002(1-B)(A) (2016), [4] by beating the child with a wooden spoon. The court specifically found that the mother is "unable to show remorse for her actions" and "unable to take responsibility for her actions."

         [¶8] The court found that, since her conviction, the mother

has not once admitted to any wrongdoing. She, along with [the father], maintains that Nathaniel's death was caused by an untreated medical condition. She does admit that her actions on that night could have made Nathaniel's medical condition worse, thereby leading to his death, but she still feels she has committed no wrong. In counseling she . . . focused more on her anger towards the legal system than her grief for the loss of Nathaniel. [The mother] was Nathaniel's caregiver on the night he died, and she has yet to provide a consistent and plausible story for Nathaniel's death.

         [¶9] The court ordered the Department to cease reunification efforts with the parents based on these aggravating factors. See 22 M.R.S. §§4036(1)(G-2), 4041(2)(A-2)(1) (2016). The parents appealed from the jeopardy order. See In re E.A., 2015 ME 37, ¶ 6, 114 A.3d 207. We affirmed the court's order as to both parents. See id. ¶ 1.

         [¶10] The parents did not request any services to alleviate parenting deficits, and they continued to maintain that they presented no risk to the twins. On July 1, 2014, the Department petitioned for termination of the parents' parental rights. More than a year later, the court [Dow, /.) held a hearing on October 29 and 30, 2015, and entered a judgment terminating both parents' parental rights to the children on February 23, 2016. The court considered the evidence that the parents offered to rebut the statutory presumption that they are "unwilling or unable to protect the child[ren] from jeopardy and these circumstances are unlikely to change within a time which is reasonably calculated to meet the child [ren]'s needs"-a presumption the court found arose from the mother's conviction and the father's conduct toward their first child that was "heinous or abhorrent to society." 22 M.R.S. § 4055(1-A)(A), (B)(3).[5] The court found that the parents "ha[d] the burden to rebut the presumption of parental unfitness" and that they "fail[ed] to meet that burden." The court found, by clear and convincing evidence, that the parents were unwilling or unable to protect the children from jeopardy and that those circumstances were unlikely to change within a time reasonably calculated to meet the children's needs, and it determined that the children's best interests would be served by termination of the parents' parental rights. See 22 M.R.S. § 4055(1)(B)(2)(a), (b)(i) (2016).

         [¶11] The parents timely appealed from the judgment, and each moved for an enlargement of time to file a motion for relief from judgment. See M.R. Civ. P. 60(b). The court granted the parents' motions for enlargement of time, ultimately allowing the parents until June 16, 2016, almost four months following the entry of the termination order, to file any Rule 60(b) motions specifically related to allegations of ineffective assistance of counsel. With respect to the parents' pending appeal, we directed the Clerk of the Law Court "to withdraw the briefing schedule if, and only if, either parent files a motion in the District Court pursuant to M.R. Civ. P. 60(b) on or before June 16, 2016."

         [¶12] On June 15, 2016, the parents filed a joint motion for relief from the judgment terminating their parental rights. They alleged that they received ineffective assistance of counsel at the termination hearing, and they attached affidavits in support of their motion. For reasons that are not clear on the record, no immediate hearing was held on the motion for relief from judgment. Five months later, on November 10, 2016, the parents moved to amend their motion to add allegations of ineffective assistance at the jeopardy stage. About one month later, the court held a hearing on the Rule 60(b) motions. On February 17, 2017, the court entered a judgment granting the motion to amend the motion for relief from judgment and finding ineffective assistance at the jeopardy stage by both parents' counsel primarily due to what it concluded was insufficient advice regarding the parents' decision whether to consent to a finding of jeopardy to reduce their exposure to a potential finding of an aggravating factor and a cease reunification order. See 22M.R.S. §§4002(1-B)(A), (B)(3), (5), 4036(1)(G-2), 4041(2)(A-2)(1). The court found that counsel's inaccurate advice affected the parents' decisions to reject an agreement offered by the Department that, if accepted by the court, would not have included an aggravating factor. Although the parents had not sought any specific services other than increased visitation, the court ordered the Department to offer the same agreement to the parties and to negotiate with the parents and the guardian ad litem, in good faith, to create "a reunification plan likely to serve the children's best interest."

         [¶13] The Department filed a notice of appeal from the court's decision and moved for reconsideration and for findings of fact. The court granted the motion for findings of fact in part, clarifying that the jeopardy order was not vacated: "Jeopardy has not been alleviated. The jeopardy order was properly entered on the trial evidence, appealed to and affirmed by the Law Court." Nonetheless, the court also found that "[t]he result of the remedy ordered by the Court in the February 17 judgment would likely be an amended jeopardy order." The jeopardy order was therefore to remain in effect until replaced, but the termination judgment was vacated to allow for additional proceedings. We now consider the appeals brought by the parents and the Department.

         II. DISCUSSION

         A. Final Judgment Rule

         [¶14] Preliminarily, we note that the matter before us does not, as it stands, finally dispose of the case. Although we would ordinarily dismiss an appeal from an interlocutory decision, we apply the death knell exception to the final judgment rule in this matter. See In re Bailey M.,2002 ME 12, ¶ 7, 788 A.2d 590. "That exception allows a party to appeal an interlocutory order immediately if substantial rights of that party will be irreparably lost if review is delayed until final judgment." Id. (alteration omitted) (quotation marks omitted). Here, because of the statutorily mandated priority given to establishing permanency in child protection proceedings, 22 M.R.S. ยง 4003(4) (2016), the previous delay in reaching the claim of ineffectiveness of counsel, and the number of years that these children have been in foster care-fully three and a half years now-the resolution of the issues in this appeal must be ...


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