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In re Children of Brittany B.

Supreme Court of Maine

January 2, 2020


          Submitted On Briefs: November 21, 2019

          Brittany M.R. Sawyer, Esq., Holmes Legal Group, LLC, Wells, for appellant mother

          Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, and HUMPHREY, JJ. [*]

          SAUFLEY, C.J.

         [¶1] Brittany B. appeals from orders entered in the District Court (Springvale, Mulhern, J.) finding, by a preponderance of the evidence, that two of her children[1] were in jeopardy to their health or welfare in the mothers care. She argues, on appeal, that her due process rights were violated because of ineffective assistance of counsel. She also argues that the court abused its discretion in denying her motion in limine and admitting in evidence certain statements made by the children to Department of Health and Human Services caseworkers. Concluding that the mother has not presented a prima facie case of attorney ineffectiveness and that the record supports the courts evidentiary ruling, we affirm the judgment.

         I. BACKGROUND

         [¶2] The following facts are drawn from the courts findings, which are supported by competent record evidence, and from the procedural record. See In re Child of Radience K., 2019 ME 73, 2, 208 A.3d 380.

         [¶3] In late 2018, after the two children had expressed to a caseworker that they had been physically abused by their father, [2] the Department filed a petition for a child protection order for the two children. At the time, however, the Department did not request that the court remove the children from the mothers custody. In early 2019, the Department dismissed the petition after the mother began participating in treatment services.

         [¶4] On March 8, 2019, the mother left the children in her home with two men. The two men had a history of substance abuse.[3] That night, while the mother was absent, an officer responded to a report of an assault occurring at her home. Individuals had allegedly come to the home and assaulted one of the men watching the children. After the incident, Department caseworkers interviewed the older child, who explained that the children heard noises and were afraid throughout the incident. The next evening, the mother again left her children in the care of one of the two men. Two days later, the mother visited a hospital-accompanied by the youngest child-seeking treatment for a skin infection. After the mother became verbally assaultive when asked if she had been using drugs, a physician made a referral to the Department.

         [¶5] The Department again initiated child protection proceedings as to the two children on March 12, 2019, and petitioned for a preliminary protection order. The court (Moskowitz, J.) entered a preliminary protection order that day, placing the children in temporary Department custody. After the order had been entered, the mother fled with the children to Massachusetts. On March 18, 2019, the children were located, and Department caseworkers traveled to a hospital in Massachusetts where the children were waiting with a Massachusetts state trooper. The children were taken to a foster home in Maine that same day.

         [¶6] At a summary preliminary hearing on March 25, 2019, the mother exercised her right to contest the temporary order. Following the hearing, the court (Duddy, J.) found that the children were in immediate risk of serious harm in the custody of their parents and continued the preliminary protection order.

         [¶7] On June 3 and June 4, 2019, the court (Mulhern, J.) held a contested jeopardy hearing. On the first day of the hearing, the mother filed a motion in limine, seeking to exclude from evidence any statements by her children to Department caseworkers regarding the incident on March 8, 2019. The court denied the motion. On June 6, 2019, the court found jeopardy to the children based on the risk of physical and emotional harm, and exposure to multiple unsafe people with a history of violence. The court based its determination on the following findings of fact:

Jeopardy as to the mother consists of a risk of physical and emotional harm due to exposing the children to unsafe individuals and situations. [The mother] has left the children with caregivers who she knows to be drug users, drug dealers and have histories of domestic violence. In mid-March, after the children were placed in the Departments temporary custody, [the mother] fled with the children in an attempt to keep them from the Department. She returned to Maine only upon her arrest on a warrant. [The mother] has been getting services for substance abuse and trauma issues for over one year ... but she continues to make unsafe decisions for herself and her children. These jeopardy issues are due to a ...

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