Argued: December 12, 2018
G. Day, Esq., Garland, and Amy R. McNally, Esq. (orally),
Woodman Edmands Danylik Austin Smith & Jacques, P.A.,
Biddeford, for appellant mother
P. Shaw, Esq. (orally), Camden Law LLP, Camden, for appellant
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
Carolyn Adams, Esq., Law Office of Carolyn Adams, Waterville,
for appellee Penobscot Nation Department of Social Services.
SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY,
A mother and father appeal from a judgment of the District
Court (Calais, D. Mitchell, J.) terminating their
parental rights to their child pursuant to Maine's Child
and Family Services and Child Protection Act (MCPA), 22
M.R.S. §§ 4001 to 4099-H (2018) and the Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§
1901-1963 (LEXIS through Pub. L. No. 116-8). Both parents
challenge the court's determination that "active
efforts [had] been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of
the Indian family," as required by ICWA. 25 U.S.C.S.
§ 1912(d). Additionally, the mother challenges the
sufficiency of the evidence supporting the court's
determination that she is parentally unfit within the meaning
of state law, see 22 M.R.S. §
4055(1)(B)(2)(b)(i)-(ii), and the father challenges the
court's denial of his two motions to transfer the case to
the Penobscot Nation Tribal Court, see 25 U.S.C.S.
§ 1911(b), and the denial of his post-judgment motion
alleging ineffective assistance of counsel, see M.R.
Civ. P. 60(b)(6). We affirm the judgment.
The following facts are drawn from the court's findings,
which are supported by competent record evidence, and from
the extensive procedural record. In re Evelyn A,
2017 ME 182, ¶ 4, 169 A.3d 914.
The child at issue in this case is an Indian child within the
meaning of ICWA. See 25 U.S.C.S. §
The Department first became involved with the family in 2012
when the father was charged with crimes arising from his
possession of child pornography on the family computer. The
following year, he was convicted of multiple counts of
possession of sexually explicit material (Class C), 17-A
M.R.S. § 284(1)(C) (2018). After the father served the
unsuspended portion of the resulting prison sentence, the
Department closed the family's case because any contact
between the father and the child was to be supervised by the
The Department became involved with the family again in
February of 2016, when it petitioned the court for child
protection and preliminary protection orders on behalf of the
child, see 22 M.R.S. §§ 4032-4034, who was
then six years old. The Department filed the petition after
receiving new information that the father had sexually abused
a child to whom he is related. The Department knew of the
family's affiliation with the Penobscot Nation and,
before filing the petition, notified the Nation of its intent
to do so. See 25 U.S.C.S. §
1912(a) (requiring that notice be provided to the Indian
child's tribe); see also id. § 1903(5)
(defining "Indian child's tribe"). The court
granted the petition for a preliminary protection order and
placed the child in departmental custody. The court also
appointed counsel for each parent, see id. §
1912(b); 22 M.R.S. § 4005(2), and granted the Penobscot
Nation's motion to intervene, see 25 U.S.C.S.
§ 1911(c); 22 M.R.S. § 4005-D(5).
After holding a summary preliminary hearing in March of 2016,
the court found that the child was in immediate risk of
serious harm and ordered that the child remain in the
Department's custody. See 22 M.R.S. §
4034(4). The court also addressed the pertinent provisions of
ICWA, finding that active, albeit unsuccessful, efforts had
been made to prevent the breakup of the Indian family and
that continued custody of the child by the parents would
result in serious emotional or physical damage to the
child. See 25 U.S.C.S. §
1912(d)-(e). Soon after the court held the summary
preliminary hearing, the father was arrested on charges
resulting from the child abuse allegations that had been
reported to the Department, and he remained incarcerated
throughout the pendency of this child protection action.
In June of 2016, the mother-who was now represented by her
second attorney-and the father agreed to a jeopardy order,
see 22 M.R.S. § 4035, in which the court found,
among other things, that the child had made detailed
disclosures of inappropriate conduct by the father, that the
father posed a threat of sexual abuse or exploitation to the
child,  and that the mother had failed to
protect the child from the risk of sexual abuse or
exploitation posed by the father.
In the months after the court entered the jeopardy order,
counsel for each parent filed a motion to withdraw. The court
granted the motions and appointed new counsel for each
A contested judicial review hearing began in February of
2017. See id. § 4038. Shortly thereafter, the
father's second attorney filed a motion to withdraw. The
court granted the motion and appointed the father his third
attorney. In late March of 2017, before the second day of the
judicial review hearing was held, the Department filed a
petition to terminate the parental rights of each parent.
See id. § 4052. On the Department's motion,
the court consolidated the termination hearing with the
ongoing judicial review hearing. See M.R. Civ. P.
In early June of 2017, each of the parents' third
attorneys filed a motion to withdraw. The court granted both
motions and assigned the father new counsel; the mother
initially stated that she wanted to represent herself but
eventually petitioned the court to appoint a new attorney.
During the transition of counsel, the parents filed a number
of joint motions pro se, which the court addressed at a
hearing held on a date in July when the consolidated hearing
had been scheduled but was continued by the court because of
the recent change in the parents' representation.
Because of circumstances unrelated to this appeal, the
now-consolidated hearing on the termination petition and the
judicial review was not rescheduled to begin until December
4, 2017. Just prior to that date, on November 28, the father
filed a motion for the case to be transferred from the
District Court to the Penobscot Nation Tribal Court pursuant
to ICWA. See 25 U.S.C.S. § 1911(b); 25 C.F.R.
§ 23.115 (2018). The Nation and the child's guardian
ad litem each filed a written objection to the
transfer. The court held a hearing on the motion
on the first morning of the consolidated hearing and, after
receiving evidence, denied it, stating:
The Court finds that this proceeding is at an advanced stage
and that the father did not act promptly to request the
transfer after he received notice of the action. . . .
He's had a desire to request a transfer for a long time[,
] according to his testimony.
... [E]ven assuming that his prior attorneys were indeed not
responsive, he's demonstrated an ability on his own to
file his own motions.
The court then proceeded with the hearing on the termination
petition and judicial review, which took place over six days
from December of 2017 through February of 2018. The court
heard testimony from a number of witnesses, including the
mother and the father; caseworkers from the Department and
the Penobscot Nation Department of Social Services;
therapists for the mother and the child; one of the
child's foster parents; and a qualified expert witness,
as ICWA requires, designated by the Penobscot Nation,
see 25 U.S.C.S. § 1912(f); 25 C.F.R. §
On April 19, 2018, the court entered a judgment granting the
Department's termination petition. Addressing the
standards set out in the MCPA, the court found by clear and
convincing evidence that each parent was unwilling or unable
to protect the child from jeopardy or take responsibility for
the child and that those circumstances were unlikely to
change within 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 by clear and
convincing evidence that termination of each parent's
parental rights is in the best interest of the child. See
id. § 4055(1)(B)(2)(a). Then, applying the
provisions of ICWA, the court found that the Department had
proved by clear and convincing evidence that active remedial
efforts had been made to prevent the breakup of the Indian
family and that those efforts had proved unsuccessful,
see 25 U.S.C.S. § 1912 (d), and also that the
Department had proved beyond a reasonable doubt that
continued custody of the child by the parents was likely to
result in serious emotional or physical damage to the child,
see id. § 1912(f)-a conclusion supported by the
testimony of the Nation's ICWA-mandated expert witness.
In its judgment, the court made the following findings of
fact, all of which are supported by competent record
Mother has failed to demonstrate through her conduct that she
understands the risk posed by the Father and that she is able
to protect the child.
... Mother permitted [Father to have] unsupervised contact
[with the child, ] which, based on the child's
disclosures, enabled Father to watch naked pictures or movies
with the child while naked. Despite engaging in counseling
and the Non Offenders Group, something she did on an
inconsistent basis, Mother continued to maintain contact with
the Father, calling him daily and visiting him on weekends
during his incarceration to discuss this case. . . .
Mother's actions speak much more loudly than do her words
and the court does not find her testimony credible.
The Department through its various case workers offered
rehabilitative services and attempted on numerous occasions
to maintain contact with the mother, who at times was simply
not around and who rarely maintained contact with the
Department herself. . . . The Department made referrals to
counselors, held family team meetings, and took efforts to
ensure that Mother understood what was expected of her....
[Mother] is in no better position now to safely parent the
child, protect the child from jeopardy and take
responsibility for the child than she was when the case
began. These circumstances are not likely to change within a
time reasonably calculated to meet the child's needs,
particularly when the child has been in care since February
... [The jeopardy order] found that Father "poses a
threat of serious harm to the child ... in particular a
threat of sexual abuse or exploitation" . . . based on
his criminal convictions and the current criminal allegations
involving a young relative. [The psychologist] who conducted
the CODE [court-ordered diagnostic evaluation] and whose
testimony the court finds credible, found ... that Father
"either lacks an ability to understand or acknowledge
the jeopardy he poses to a child sexually and to the
pathological power and control as well as potential
exploitation he has over a vulnerable child." . . .
Significantly, the evidence also supports a finding that
Father carries a diagnosis of pedophilia, a condition that is
exceedingly difficult to treat if at all, particularly] from
a jail, where Father has been since essentially the outset of
In this case, reasonable or active efforts  to provide
services designed to prevent the breakup of the family would
include, at a minimum, offering services to the mother
designed to improve her ability to recognize the threat posed
by Father and be able to demonstrate her ability to protect
the child from that threat. The court finds that the
Department has done that. Although it offered services with
more local therapists, the Mother wanted to see counselors in
Bangor. The Department at times provided transportation for
that to occur. Moreover, the Department provided Family Team
Meetings in order to gauge the direction of the case and
address issues. Despite the services offered, the
Department's efforts were not successful......
With respect to Father, the Department did assist in having a
counselor at the jail see the Father and also took efforts
with the county jail to enable Father to participate in team
meetings. It also arranged for a CODE early on, which the
Father did not initially attend. . . . Admittedly,
Father's incarceration made it difficult for services to
be offered and for him to participate. However, ...
pedophilia lacks an effective treatment, and according to the
Qualified Expert Witness, the Department is not obligated to
engage in efforts, reasonable [, ] active[, ] or otherwise,
that may prove fruitless. Based on the evidence and based on
the [Nation's] Qualified Expert Witness's opinion,
the court finds, by clear and convincing evidence, that
active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup
of the Indian family and that these efforts have proved
In addition to engaging in "active efforts[, "] the
Department has established and the court finds by proof
beyond a reasonable doubt that . . . continued custody of the
child by either parent is likely to result in serious
emotional or physical damage to the child. . . . Absent a
demonstrated understanding of the significant risk Father
poses both by his prior conduct and by that which the child
has recently disclosed, the child remains at significant risk
and is likely to suffer serious emotional or physical damage,
victimization and injury, all of which is supported by the
opinion of the Qualified Expert Witness.
The mother and father filed timely notices of appeal.
See 22 M.R.S. § 4006; M.R. App. P. 2B(c)(1).
The mother then filed a motion in the District Court for
relief from judgment on the ground of ineffective assistance
of counsel. See M.R. Civ. P. 60(b)(6); In re
M.R, 2015 ME 138, ¶¶ 20-21, 126 A.3d 718. At
the same time, the Department and the mother filed a joint
motion to stay the appeal and permit the trial court to act
on the mother's Rule 60(b) motion. See M.R. App.
The father then filed his own motion for relief from judgment
in the District Court on the ground of ineffective assistance
of counsel, accompanied by his supporting affidavit,
see M.R. Civ. P. 60(b)(6); In re M.P., 2015
ME 138, ¶¶ 20-21, 126 A.3d 718, and a motion to
enlarge the time to file additional affidavits in support of
that motion. The father also filed a motion with us to stay
the appeal and permit the trial court to act on his Rule
60(b) motion. See M.R. App. P. 3(d). We granted each
parent's motion to stay the appeal and permitted the
trial court to act on the parents' Rule 60(b) motions.
Following the issuance of our order, the father filed his
second motion in the District Court to transfer the case to
the Penobscot Nation Tribal Court. See 25 U.S.C.S.
§ 1911(b); 25 C.F.R. § 23.115.
Based on the existing record and the court's extensive
familiarity with this case, and without taking additional
evidence, see In re David H., 2009 ME 131, ¶
34, 985 A.2d 490, the court issued two orders. In one order,
the court addressed the father's motion to transfer the
case to Tribal Court and concluded that it was without
authority to act on the motion because the father had failed
to seek leave from us to take such action. See M.R.
App. P. 3(d). The court's second order denied the
parents' Rule 60(b) motions after determining that the
father's claim of ineffectiveness at the jeopardy hearing
was untimely and rejecting on the merits each parent's
claim of ineffectiveness. See In re M.P., 2015 ME
138, ¶¶ 26-27, 126 A.3d 718.
After the court entered judgment on all of the matters
properly before it, the appeal moved forward, taking us to
the issuance of this opinion.
This appeal presents a broad range of issues for our
consideration: the substantive state and federal standards
governing the termination of parental rights to an Indian
child; temporal considerations for motions to transfer a
child protection action from state court to a tribal court;
temporal and substantive standards for claims of ineffective
assistance of counsel at the jeopardy and termination stages
of a child protection case; and appellate practice.
Judgment Terminating the Parents' Parental Rights
State court child protection proceedings involving Indian
children, such as the child at issue here, see supra
n.1, require the court to apply both state child protection
law prescribed by Maine's Child and Family Services and
Child Protection Act, and federal law prescribed by the
Indian Child Welfare Act of 1978. Because of the differences
in state and federal law, ...