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In re Children of Jeremy A.

Supreme Court of Maine

June 26, 2018


          Argued: May 16, 2018

         Reporter of Decisions

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant father

          Heidi M. Pushard, Esq. (orally), Law Office of Heidi M. Pushard, Lewiston, for appellant mother

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


          HJELM, J.

         [¶l] On the third appeal in this child protection matter, see In re E.A., 2015 ME 37, 114 A.3d 207 (Evelyn I); In re Evelyn A, 2017 ME 182, 169 A.3d 914 [Evelyn II), the parents of two children challenge the judgment entered by the District Court (Lewiston, Dow, J.) terminating their parental rights and denying their motions to reopen the record and for relief from judgment. We affirm the judgment.

         I. BACKGROUND

         [¶2] Much of the procedural history-which has been anything other than linear-and the description of the facts in this case are set out in the opinions we issued in the first two appeals. See Evelyn I, 2015 ME 37, ¶¶ 2-6, 114 A.3d 207; Evelyn II, 2017 ME 182, ¶¶ 1-13, 169 A.3d 914. Here, to provide context to the issues presented, we briefly review some of that material, and we describe developments since the most recent appeal.

         [¶3] In 2003, the parents' 21-month-old son, Nathaniel, died. The mother was convicted of manslaughter for Nathaniel's death, see State v. Allen, 2006 ME 20, 892 A.2d 447, and the father was convicted of assaulting him the night before he died, see State v. Allen, 2006 ME 21, 892 A.2d 456. Ten years after they were convicted, the mother and father became parents to the twins who are the subject of this proceeding. Less than a week after the children were born prematurely and while they were still hospitalized, the Department of Health and Human Services sought a preliminary protection order on the basis of the parents' convictions for the crimes they had committed against Nathaniel. The court (Oram, J.) issued the order and gave custody of the children to the Department. Directly following the children's release from the hospital, they were placed in the foster home where they have lived ever since.

         [¶4] The court held a lengthy jeopardy hearing in the late winter and spring of 2014, where the parents offered evidence challenging the cause of Nathaniel's death, "did not accept responsibility for Nathaniel's death, and ... 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." Evelyn II, 2017 ME 182, ¶ 6, 169 A.3d 914. In early June of 2014, the court [Beliveau, J.) entered an order finding the children to be in circumstances of jeopardy. Because the court also found aggravating factors based on the parents' convictions for their crimes against Nathaniel, the court ordered the Department to cease reunification efforts. See 22 M.R.S. §§ 4OO2(l-B)(A), (B)(3), (5) and 4O4l(2)(A-2)(1) (2017). On the parents' appeal, we affirmed the jeopardy order in March of 2015. See Evelyn I, 2015 ME 37, ¶¶ 1, 14, H4A, 3d 207.

         [¶5] The Department had petitioned for termination of parental rights in July of 2 014. After a two-day hearing held in October of 2 015, the court [Dow, J.) entered a judgment in early 2016 terminating the rights of both parents to the children. The parents filed timely notices of appeal, but the father moved to stay the appellate proceedings because he anticipated filing a motion for relief from judgment pursuant to Maine Rule of Civil Procedure 60(b). We granted the motion to stay, and eventually, in June of 2016, both parents filed a joint Rule 60(b) motion, which, as amended five months later, [1] alleged ineffective assistance of counsel for each parent at both the jeopardy and termination hearings.

         [¶6] In December of 2016, the court held a hearing on the motion. During the hearing, the parents presented testimony from a forensic pathologist whom the court had not allowed to testify at the termination hearing because even approximately two months after the expiration of the deadline to exchange expert reports, counsel for the mother had not yet produced a report, and the court then denied the mother's late motion for enlargement of time to exchange reports. During the motion hearing, the forensic pathologist questioned the determination reached by the physician whose practice focuses on child abuse and who had testified at both the manslaughter trial and the jeopardy hearing that Nathaniel's fatal injuries were "inflicted." That child abuse specialist also testified at the motion hearing and stated that, despite the opinions of the parents' expert, his original opinion remained unchanged and that, in his view, the opinion of the parents' ...

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