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In re Child of Radience K.

Supreme Court of Maine

May 21, 2019

IN RE CHILD OF RADIENCE K.

          Argued: December 12, 2018

          Randy G. Day, Esq., Garland, and Amy R. McNally, Esq. (orally), Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant mother

          Laura P. Shaw, Esq. (orally), Camden Law LLP, Camden, for appellant father

          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

          Carolyn Adams, Esq., Law Office of Carolyn Adams, Waterville, for appellee Penobscot Nation Department of Social Services.

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

          HJELM, J.

         [¶1] 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.

         I. BACKGROUND

         [¶2] 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.

         [¶3] The child at issue in this case is an Indian child within the meaning of ICWA. See 25 U.S.C.S. § 1903(4).[1] 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 mother.[2]

         [¶4] 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.[3] 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).

         [¶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.[4] 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.

         [¶6] 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, [5] and that the mother had failed to protect the child from the risk of sexual abuse or exploitation posed by the father.

         [¶7] 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 parent.

         [¶8] 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. 42(a).

         [¶9] 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.

         [¶10] 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.[6] 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.

         [¶11] 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. § 23.122 (2018).

         [¶12] 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.

         [¶13] In its judgment, the court made the following findings of fact, all of which are supported by competent record evidence.

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 2016.
... [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 this case.
In this case, reasonable or active efforts [7] 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 unsuccessful.
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.

(Footnotes omitted.)

         [¶14] 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. P. 3(d).

         [¶15] 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.

         [¶16] 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.

         [¶17] 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.

         II. DISCUSSION

         [¶18] 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.

         A. Judgment Terminating the Parents' Parental Rights

         [¶19] 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, ...


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