MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	14

Docket: Wal-21-203

Submitted

On	Briefs: December	21,	2021

Decided: February	17,	2022

Panel: STANFILL,	C.J.,	and MEAD,	GORMAN,	JABAR,	HORTON,	and	CONNORS,	JJ.

IN	RE	CHILD	OF	KENNETH	S.

JABAR,	J.

[¶1]	 In	this	consolidated	appeal,	the	father challenges	the	termination	of	

his	 parental	 rights	 as	 to	 his	 child	 entered	 in	 the	 District	 Court.	 	 (Belfast,	

Worth, A.R.J.).	 	 The	mother	 raises	 an	 appeal	 conditioned	 on	our	 vacating the	

District	 Court’s	 termination	 of	 the	 father’s	 parental	 rights.

1	 	 We	 affirm	 the	

judgment as	to	both	parents.

I.	 BACKGROUND

[¶2]		The	facts	are	drawn	from	the	court’s	findings,	which	were	entered	

after	a	five-day	consolidated	hearing and	are	supported	by	competent	record	

evidence.		See	In	re Children	of	Michelle	C.,	2021	ME	61,	¶	2,	264 A.3d	1221.

1 The	mother argues	that,	if	we	were	to	vacate	the	trial	court’s	termination	of	parental	rights	to	

the	father	based	on	any	of	his	challenges,	it	would	not	be	in	the	child’s	best	interest	to	terminate	her	

rights.		Because	we	affirm	the	order	terminating	the	father’s	parental	rights,	we	need	not	reach	this	

argument.		Additionally,	as	discussed	below,	the	trial	court’s	determinations	as	to	parental	unfitness	

of	the	mother	and	best	interest	of	the	child	were	supported	by	competent	record	evidence.		
2

[¶3]		Shortly	after	the	child	was	born	in	2010,	the	father	was	granted sole	

parental	rights	and	responsibilities	and	primary	residence	of the	child, and	the	

mother’s contact	was	limited	to	supervised	visits.

2		Prior	to	2018,	the	father	had	

sought	 mental	 health	 treatment	 for	 the	 child because the	 child	 was	 often	

dysregulated in	his	emotions	and	actions.		In	March	2018,	police	performed	a	

welfare	check	on	the	child’s	residence and found	the	child	locked	in	his	room.		

In	an	interview, the	child	stated that	his	father	dragged	him	up	the	stairs	by the	

hood	of	his	sweatshirt	and	locked him in	his	room.		The	father	was	charged	with	

domestic	 violence	 assault	 related	 to	 this	 incident	 and	 was	 prohibited	 from	

having	contact	with	the	child.3		Pursuant	to	a	safety	plan	between	the	father	and	

the	Department of	Health	and	Human	Services, the	child was	placed with	his	

maternal	grandparents	but remained	in	the	father’s	custody.		

[¶4]	 	 After	 the	 child	 had	 several	 behavioral incidents	 in	 April	 and	

May 2018, and after	 healthcare	 and	 educational professionals	 had	 difficulty	

engaging	with	the	 father, the	 father	asked	the	Department	to	take	custody	of	

the	child.		On	May	15,	2018,	the	Department	filed	a	petition	for	child	protection

2		Between	2010	and	2018,	the	Department of	Health	and	Human	Services investigated	the	parents	

several	times	due	to	its	concern	about	the	parents’	ability	to	care	for	the	child	but	never	opened	a	

case.		

3 This	charge	was	later	dismissed pursuant	to	a	plea	agreement	where	the father	pleaded	guilty	

to	disorderly	conduct	and	was	ordered	to	pay	a	fine.		
3

that	 included	 a	 request	 for	 a	 preliminary	 protection	 order.	 	 The	 court	

(Mathews, J.)	granted	the Department	custody	of	the	child	that	same	day.		The	

Department	continued	the	child’s placement	with	the	maternal	grandparents.		

[¶5]		On	August	16,	2018,	the	court	(Fowle,	J.)	entered	a	jeopardy	order,	

by	agreement,	as	to each parent.		The order	as	to	the	father stated	that the	father	

caused	the	child	to	be	in	circumstances	of	jeopardy	due	to	the	threat	of	physical	

and	emotional	harm	and	the	deprivation	of	needed	medical	care.		The	order	as	

to	 the	 mother stated	 that	 the	 mother	 posed	 “the	 threat	 of	 injury	 and	 the	

deprivation	of	adequate	supervision	and	care.”		

[¶6]		On	December	4,	2019,	the	Department	filed	a	petition	to	terminate

the parental	rights	of both	parents.		On	March	9,	2020,	the	father	filed	a	motion	

to	 continue	 the	 termination	 hearing, and, on	March	 12,	 the	 father’s	attorney	

moved	for	leave	to	withdraw;	the	court (Davis,	J.)	granted	both	motions.		The	

father	requested	a	new	attorney. He	claimed that	his attorney	was	 to	delete	

certain	portions	of	the	agreed-to	jeopardy	order,	by	agreement	with	the	state,	

and	had	failed to move	the	court	to	amend	the	order	to	reflect	those	deletions.

The court	 appointed	 a	 new	 attorney on	 March	 16,	 2020.	 	 Following several

further	continuances,	the	petition	was	eventually	heard	over	five	days,	almost	

a	year	later, on	January	25,	March 30,	April	1,	May 21,	and	May	24,	2021.		
4

[¶7]		At	the	close	of	the	hearing,	the	court(Worth,	A.R.J.), made	no	findings	

or	 indication	 of	 its	 decision,	 instead	 stating	 that	 it was	 going	 to	 review	 the	

exhibits	and	statutes	and	write	a	decision	“as	quickly	as	[it	could].”		The	court,

then, through	 a	 clerk,	 via	 email,	 notified	 all	 parties	 that	 it	 was	 requesting	 a	

proposed	 order	 and	 findings	 only	 from	 the	 Department.	 	 The father	 filed	 a	

memorandum	objecting to	the	court’s request and	“propose[d]	that	no	parties

provide	any	proposed	orders	and	findings	or	that	all	parties provide	proposed	

orders	and	findings.”		The court	denied	the	father’s	objection	stating	that	it	“had	

ample	opportunity	to	understand	[the	father’s]	positions	taken,	and	his	likely	

proposed	 findings	and	 conclusions.”	 	The	 court received	 the	 proposed	 order	

and	findings	from	the	Department	on	June	9,	2021.		

[¶8]		On	June	14,	2021,	the	court	entered	its	termination	order,	finding	

that	the	parents	were	unwilling	or	unable	to	protect	the	child	from	jeopardy	or	

take	 responsibility	 for	 the	 child	in	 a	 time	 reasonably	 calculated	 to	meet	 the	

child’s	needs	and	that	termination	was	in	the	child’s	best	interest.		See	22 M.R.S.	

§	4055(B)(2)(a),	(b)(i)-(ii).

[¶9]		The	court	found	the	father	unfit	based	on the	child’s	high	needs,	the	

father’s	own	mental	health	needs,	the	father’s erratic	therapy	attendance,	the	

father’s claim	that	he	was	in	therapy	only	because	the	Department	demanded	
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it,	 the	 Department’s	 need	 to	 suspend	 visits	 because	 of	 the	 inappropriate	

interactions between	the	father	and	the	child that	upset	the	child	to	the	point	

where	 the	child	no	longer	wanted	 to	attend	 visits,	and	the	 father’s continual	

denial	 of	 the	 inappropriateness	 of	 his	 actions	 that	 caused	 the	 need	 for the	

Department’s involvement.		

[¶10]		The	court	found	the	mother	unfit based	on	her	significant	health	

needs	 that	had	occasionally	led	 to	her	being	hospitalized,	and because,	since	

April 2019,	 she	 had seen the	 child	 only	 while	 supervised.	 	 The	 mother had	

declined to	have more	frequent	visits	with	the	child	and	had stated	that	she	did

not	believe	that	she	could parent	the	child	on	a	regular	basis.		

[¶11]		The	court	found	that	the	child’s	well-being	had improved	since	he	

began	living with	his	grandparents.		The	child	also	expressed	his	desire	to	stay	

with	his	grandparents.		

[¶12]		Both	parents	timely	appealed.		See 22	M.R.S.	§	4006	(2021);	M.R.	

App. P. 2B(c)(1).	

[¶13]		On	July	2,	2021,	the	father	also	filed	a	motion	for	relief	from	the	

judgment, alleging	 ineffective	 assistance	 of	 counsel	 by	 the	 father’s	 first	

attorney.

4 M.R.	Civ.	P.	60(b).	 On	October	20,	2021,	the	court (Martin,	J.), denied	

4		On	August	20,	2021,	we	permitted	the	trial	court	to	act	on	the	father’s	motion	for	relief.		
6

the	 father’s	 motion, stating that the	 father had failed	 to	 make	 a	 prima	 facie	

showing	of	ineffective	assistance	of	counsel	and that the	motion	was	untimely	

filed.		

II.		DISCUSSION

[¶14]		On	appeal,	the	father	raises	three	arguments.		He	argues	that	the	

court	erred	by	denying his	request	to submit	a	proposed	order	while	allowing	

the	Department	to	submit	a	proposed	order,	and	such	an	error amounted to	the	

denial	of	a	closing	argument	and	violated his	procedural	due	process	rights.		He	

also	argues	that	the	trial	court	used	language	in	its	order	that	inappropriately	

shifted	 the	 burden	 of	 persuasion	 to	 the	 father.5 Finally,	 he	 argues	 that	 his	

attorneys	provided	ineffective	assistance	of	counsel,	necessitating	remand.

A. Due	Process

[¶15]		The	father	contends	that	the	court	was	required to	allow	him	to	

present	a	proposed	order	and	that	the	court’s	failure	to	allow	him	to	present	

5		This	argument,	based	on	the	court’s	imprecise	use	of	language,	is	unpersuasive,	and	does	not	

warrant	 extended	 discussion.	 	 A	 review	 of	 the	 decision	 as	 a	 whole	 demonstrates	 that	 the	 court	

properly	 placed	 the	 burden	 of	 persuasion	 on	 the	 Department.	 	 The	 burden	 remains	 on	 the	

Department	at	all	times	to	prove	parental	unfitness	by	clear	and	convincing	evidence.		See,	e.g.,	In	re	

Forest	G.,	2017	ME	26,	¶	4,	155	A.3d	879.
7

proposed	 findings	while	requesting	 that the	Department	present	a	proposed

order	and findings was	a	violation	of	due process.6

[¶16]	 	 The	 state	 must	 use	 procedures	 that	 align	 with	 due	 process	

requirements	when	terminating	parental	rights.		In	re	C.P.,	2016	ME	18,	¶ 17,	

132	A.3d	174.		This	requirement allows	for “an	opportunity	to	be	heard	upon	

such	notice	and	proceedings	as	are	adequate	to	safeguard	the	right	which	the	

particular	 pertinent	 constitutional	 provision	 purports	 to	 protect.”	 	 In	 re	

Alexander	 D.,	 1998	 ME	 207,	 ¶	 13, 716	 A.2d	 222 (quotation	 marks	 omitted).		

Courts	determine	if	there	has	been	a	due	process	violation	based	on	

(1)	 the	private	interest	 that	will	be	affected	by	 the	government’s	

action;	(2)	the	risk	of	an	erroneous	deprivation	of	such	an	interest	

through	 the	 existing	 procedure	 and	 the	 probable	 utility	 of	

additional	 or	 substitute	 procedural	 safeguards;	 and	 (3)	 the	

government’s	 interest	 in	 adhering	 to	 the	 existing	 procedure,	

including	 the	 fiscal	 and	 administrative	 burdens	 that	 additional	

procedures	might	entail.

Id. (quotation	marks	omitted).		We	“review	de	novo	whether	an	individual	was	

afforded	procedural	due	process.”		In	re	Children	of	Benjamin	M,	2019	ME	147,	

¶	8,	216	A.3d	901.

6		The	father	also	contends	that	not	allowing	him to	submit	a	proposed	order	is	akin	to	not	allowing	

him	 to	 make	 a	 closing	 argument.	 	 However,	 even	 if	 we	 equate	 a	 proposed	 order	 with	 a	 closing	

argument,	there	is	no	right	to make	or submit	a	closing	argument	in	child	protection	proceedings.		

See	In	re	M.B.,	2013	ME	46,	¶¶	26-29,	65	A.3d	1260 (holding	that	parents	in	a	termination	of	parental	

rights	 proceeding	 “are	 not	 entitled	 to	 closing	 argument	 as	 a	 matter	 of	 right” (quotation	 marks	

omitted)).
8

[¶17]	 	 When	 addressing	 a	 due	 process	 challenge,	 the	 first factor	 we	

consider	is	the	private	interest	that	will	be	affected	by	the	court’s	action.		The	

private	 interest	 at	 issue	 here	 involves	 the	 termination	 of	 a	 parent’s	

constitutional	right	to	raise	his	children,	and we	have	held	that “parents	must	

be	afforded	the	utmost	in	procedural	protection	when	the	state	deprives	them	

of	their	parental	rights.”		In	re	Chelsea	C.,	2005	ME	105,	¶	11,	884	A.2d	97 (citing	

Santosky	v.	Kramer,	455 U.S.	745,	753	(1982)).		This	 factor	weighs	heavily	in	

favor	 of	 requiring	a court	to	allow	a	parent to	 submit a proposed	order	and	

findings when	 allowing the	 Department	 to	 submit	 a	 proposed	 order	 and	

findings.	

[¶18]		The	second	factor	involves	a	determination	of	whether	the	process	

adopted	carries	a	“risk	of an erroneous	deprivation	.	.	.	and	[of]	the	probable	

utility	of	additional	or	substitute	procedural	safeguards.”		In	 re	Alexander	D.,	

1998	ME	207,	¶	13,	716	A.2d	222 (quotation	marks	omitted).	 At	the	conclusion	

of	the	hearings,	the	trial	court	did	not	render	a	decision.	 Rather, it	indicated

that	it	would	review	the	evidence	and	“write	a	decision	as	quickly	as	[it	could].”		

The	process	the	trial	court	used	here—where	only	the	Department was allowed	

to	 submit	 a	 proposed	 order—could	 have	 had	 a	 significant	 impact	 upon	 the	
9

court’s	decision.		The	obvious	procedural	safeguard	would	have	been	to	allow	

the	father	to	submit	a	proposed	order	and	findings.

[¶19]	 	 The	 third	 factor	 in	 a	 procedural	 due	 process	 analysis—the	

additional	fiscal	and	administrative	burden	associated	with	adopting	any	extra	

procedural	safeguards—also	weighs	in	favor	of	the	father.		Allowing	the	father	

to	 submit	 a	 proposed	 order	 and	 findings	 would	 have	 imposed	 a	 negligible

administrative	burden	on the	court.

[¶20]		After	considering	all	the	factors,	we	conclude that the	trial	court	

erred because	its	refusal to	allow	the	 father to	submit	a	proposed	order	and	

findings	 while	 simultaneously	 requesting that	 the	 Department	 to	 submit	 a	

proposed	order and	findings involved	a significant	private	interest	and	carried	

an	inherent	risk	of	an	erroneous	deprivation	of	his	parental	rights.

[¶21]	 	When	 the	 court	 chooses	 to	 allow or	 request	 the submission	 of

proposed	orders and	findings or	to	allow oral	argument,	it	may not extend	the	

opportunity	to	one	side	and	not	the	other.		If	the	court	has	yet	to	rule,	a request	

for	argument	or	a	proposed	order	is	in	substance	an	invitation	 for	advocacy,	

and	the	opportunity	to	advocate,	if	it	is	granted,	must	be	extended	equally.7		The

7		If	the	court’s	request	is	made	after	the	court	has	ruled,	the	request	can	be	made	of	the	prevailing	

party	 only,	 but	 good	 practice,	 if	 not	 due	 process,	 calls	 for	 the	 opposing	 party	 to	 be	 allowed	 to	

comment	on	whether	the	prevailing	party’s	submission accurately	reflects	the	court’s	ruling.
10

principle	of	equality	of	access	to	the	courts	is	rooted	in	the	Due	Process	Clause	

of	the	United	States	Constitution.		See Harrington	v.	Harrington,	269	A.2d	310,	

314	(Me.	1970) (“[E]qual	access	to	the	civil	courts	was	among	the	Fourteenth	

Amendment’s	 primary	 objectives.”);	U.S. Const. amend. XIV.	 	 In	 this	instance,	

given	 that	 the	court	had	not	 yet	 ruled,	 the	court	should	not	have	invited	 the	

Department	to	submit	a	proposed	order	without	affording	the	father	the	same	

opportunity.8

[¶22]		Notwithstanding	the	trial	court’s	error, to	assert	a	procedural	due	

process	error	on	appeal, a	party	must	articulate	an	identifiable	prejudice.

The	vacating	of	an	order	entered	after	a	procedural	error	is	not	

automatic.	 To	 vacate	 such	an	 order,	 this	 Court must	 determine	

that	 it	 was	 entered	 after	 a	 process	 that	 was	 “inconsistent	 with	

substantial	 justice.” M.R.	 Civ.	 P.	 61.	 We	 have	 held	 that	 an	

appellant,	 to	 be	 successful,	 must	 demonstrate	 both	 error	 and	

prejudice	resulting	to	the	appellant	from	the	claimed error.

S. Me.	Props.	Co.	v.	Johnson,	1999	ME	37,	¶	9,	724	A.2d	1255.

[¶23]		Here,	the	court’s	procedural	error	did	not prejudice	the	father.	 In	

terms	 of	 prejudicing	 a parent’s	 case,	we	 have	 stated	 “[i]n	 termination	 cases,	

where	fundamental	interests	are	at	stake,	due	process	requires:	notice	of	the	

issues,	an	opportunity	to	be	heard,	the	right	to	introduce	evidence	and	present	

8 We	focus	on	the	requirements	of	the	U.S.	Constitution	because	the	father	has	based	his	appeal	

solely	on	a	claim	of	a	violation	of	the	Due	Process	Clause	of	the	U.S.	Constitution.		
11

witnesses,	 the	 right	 to	 respond	 to	 claims	 and	 evidence,	 and	 an	 impartial	

fact-finder.”		In	re	Child	of	James	R.,	2018	ME	50,	¶	17,	182	A.3d	1252 (quotation	

marks	omitted).		Here,	 the	 father	had	notice	of	 the	issues	and	had	a	 five-day	

hearing where	 he	 testified	 and	 responded to	 the	 claims	 and	 evidence	 the	

Department	 presented	 against	 him.	 	 The	 concern	 is	 whether	 the	trial	 court,	

having access	only	to	the	Department’s	proposed	findings,	could	be an	impartial	

fact-finder. The	 father	does	not	challenge the	court’s	independent	judgment,	

stating	that	“[t]his	case	has	nothing	to	do	with	whether	the	trial	court	exercised	

its	 ‘judicial	 function’	 or	 ‘independent	 judgment.’”	 	 Even	 if	 this	 had	 been	

challenged, however, the	 record indicates that	 the	 court	 did exercise	 its	

independent	 judgment	 and	 did not	 adopt	 the	 Department’s	 proposed	 order	

verbatim. See	In re	Marpheen	C.,	2002	ME	170,	¶ 7,	812	A.2d	972 (“[A]	verbatim	

adoption	 of	 findings	 proposed	 by	 one	 party	 . . . is	 disfavored,	 as	 such	 an	

approach	suggests	that	the	court	has	not	applied	its	independent	judgment	in	

making	its	findings	and	conclusions.”).		

[¶24]		A	review of the	record	indicates that	the	trial	court’s	decision	to	

accept	a	proposed	order	and	findings only	from	the	Department	did	not	affect

the	outcome	of	the	case.	
12

[¶25]		The trial	court	identified	two	bases	of	parental	unfitness as	to	the

parents—(1) their unwillingness or	inability to	protect	the	child	from	jeopardy	

and	 the	 unlikelihood	 these	 circumstances	 would change	 within	 a	 time	

reasonably	calculated	to	meet	the	child’s	needs	and	(2) their	unwillingness	or	

inability	to	take	responsibility	for	the	child	within	a	time	reasonably	calculated	

to meet	the	child’s needs.	22 M.R.S.	§ 4055(B)(2)(b)(i)-(ii).	The	court’s	findings

with	 regard	 to	 the	 father’s	 unfitness	 were	 fully	 supported	 by	 the	 testimony	

presented	 during	 the	 trial	 that	 demonstrated,	 inter	 alia, that	 the	 father	

struggled	 to	 attend	 therapy,	 declined	 to	 engage	 with	 intensive	 outpatient	

therapy,	 did	 not	 engage	 in	 parenting	 classes	 despite	 urging	 from	 the	

Department,	and	had	multiple	inappropriate	visits	with	the	child.		The	father	

himself	testified	that	he	did	not	completely	recognize	that	locking	the	child	in	

his	room	was	inappropriate. He	also	 testified	 that	he was	attending	 therapy	

only	 because	 the	 Department	 required	 him	 to	 do	 so.	 	 The	 court’s	 decision	

concerning	 the	 mother	 was	 supported	 by	 testimony that,	 during the	 period	

between	the	jeopardy	hearing	and	the	trial, the	mother	had	been	hospitalized	

several	times	due to	her	mental	illness	and had	declined	to	expand	visitation	

because	she	did	not	feel	capable	of	being	a	mother.		
13

[¶26]	 	 With	 regard	 to	 the	 best	 interest	 of	 the	 child,	 the	 trial	 court’s	

conclusion was	supported	by testimony	 from	school	officials,	social	workers,	

therapists,	 and	 the	 father	 about the	 child’s	 extensive	 needs	 and	 the	 child’s	

improvements	since	living	with	his grandparents.		Notably,	the	mother	agrees	

with the court’s	determination	on	best	interest,	asserting,	on	appeal,	that	she

“believes it	 is	 in	 her	 child’s	 best	 interests	 that	 both	 parents’	 rights	 be	

terminated.”		

[¶27]	 In	summary,	the	 trial	court’s	procedural	error	did	not	prejudice	

the	father’s	due	process	rights	because	the	error	did	not	affect	the	outcome	of	

the	case.		The	record	contains	overwhelming	evidence	 to	support	 the	court’s	

determinations	that	the	parents	were	unfit	and	that	termination	of	their	rights	

was	in	the	best	interest	of	the	child.

B. Ineffective	Assistance	of	Counsel

[¶28]		The	father	also	argues	that	his	first	attorney rendered	ineffective	

assistance	 of	 counsel	 when	 he failed	to	 delete	 certain	 portions of the	 initial	

jeopardy	order,	resulting	in some	facts	being erroneously deemed	admitted for	

future	proceedings, and	that	his	second	attorney then failed	to	make	a	timely	

challenge	 to	 the	 jeopardy	 order	 based	 on	 the	 first	 attorney’s	 ineffective	

assistance.		When	analyzing	a claim	of ineffective	assistance	of	counsel,	we	use
14

the	 Strickland	 standard,	 which	 requires	 proof	 of deficient	 performance	 and	

resulting	 prejudice.	 	 See	 Strickland	 v.	Washington,	 466	U.S.	 668,	 687	 (1984);	

In re	 M.P.,	 2015	 ME	 138,	 ¶¶ 23-27,	 126	 A.3d	 718.	 	 We	 have stated	that	the	

procedural	requirements	 for	a claim	of	ineffective	assistance at	 the	jeopardy	

stage	 are	 the	 same	 as those	 required	 at the	 termination-of-parental-rights	

stage.		In	re	Child	of	Radience	K.,	2019	ME	73,	¶	59,	208	A.3d	380.		These	claims	

can	be	raised	on	“direct	appeal	if	the	record	already	contains	the	basis	for	the	

claim.”		Id.	¶	58.		We	have emphasized	that	the	“need	for	a	swift	resolution	of	

ineffectiveness	claims	at	the	termination	stage	of	child	protection	proceedings

applies just	as	forcefully	at	the	jeopardy	stage.”		Id.	¶	59 (citation	and	quotation	

marks	omitted).

[¶29]	 	 Although the	 initial	 jeopardy	 order	 was	 entered	 before our

decision	in	Radience	K.,	either of	 the	 father’s attorneys	could	have	raised	 the	

issues with	the	jeopardy	order when	Radience	K.	was	published.		Because the	

father	had	specifically	raised	issues	with	how	the	first	attorney	had	handled	the	

jeopardy	 order	 when	 the	 father’s	 first	 attorney	 was replaced,	 the	 father’s	

second	attorney	was	on	notice	of	the	issues.		That	attorney	failed	to	raise	those	

issues until	after	the	court	terminated	the	father’s	parental	rights.		Although	the	

father’s	claim	of	ineffective	assistance	of	counsel	concerning	the	jeopardy	order	
15

is	not	timely,	we	nonetheless	address	it	in	the	context	of	the	appeal	from	the	

order	terminating	his	parental	rights.9

[¶30]	 	 We begin	 our	 analysis	 by	 considering	 the	 second	 prong	 of	 the	

Strickland	test,	determining whether	any	potential	deficient	performance	was	

prejudicial. We review	 this	 prong	 by	 examining “whether	 [the]	 ineffective	

assistance	 of	 counsel	 rose	 to	 the	level	 of	 compromising	 the	 reliability	 of	 the	

judgment	and	undermining	confidence	in	it.”		In	re	Children	of	Jeremy	A., 2018	

ME	 82, ¶	 21,	 187	 A.3d	 602 (alteration	 and	 quotation	 marks	 omitted).		

Importantly,	 this appeal is	 a	 challenge	 to	 the	 termination	 of the	 father’s

parental	rights,	not	to	the	jeopardy	order	or	the	court’s	ruling	on	the father’s

Rule 60(b)	motion.		Ultimately,	while	the	father	argues	that	there	were	several	

ways in	which	he was	prejudiced,	he	fails	to	show	how	the	court’s	decision	to	

terminate his	parental	rights	was	affected	by	his	attorneys’	failure	to move	the	

court	to amend	the jeopardy	order,	for	at	least	two	reasons.		First,	it	is	unclear	

how	much	of	 the	jeopardy	order the	 father	now	disputes.		Second,	while	 the	

trial	 court	 referred	 to	 the	 jeopardy	 order	 in	 its order terminating parental	

9		“To	bring	a	claim of	ineffective	assistance	of	counsel	.	.	.	on	direct	appeal	.	.	.	the	parent	making	

the	claim	must	submit	a	signed	and	sworn	affidavit	stating,	with	specificity,	the	basis	for	the	claim.”	

In	 re	M.P.,	2015	ME	138,	¶	21,	126	A.3d	718.		The	 father	submitted	a	 two-page	affidavit	with	 the	

appellant’s	brief	on	October	12,	2021.		
16

rights,	 it	 also	 relied	 on the testimony	 of	 numerous	 witnesses,	 including	 the	

father’s	 testimony and	 reports	 of	events	 occurring	in	 the almost three	 years	

between	 entry	 of	 the	 jeopardy	 order	 and	 the	 termination	 of	 parental	 rights	

hearing.		Nothing	in	the	record	indicates	that	any	of	the agreed-upon	findings

at	 issue made	 any	 difference	 in	 the	 trial	 court’s	 decision	 to	 terminate	 his

parental	rights.	 Because	the	father	fails	to	show	how	changes	to	the	jeopardy	

order	would	have	changed	that	outcome,	the	 father	fails to	prove the	second	

prong	of	the	Strickland test, prejudice.

[¶31]		Because	we	conclude that	any	potential	ineffective	assistance	of	

counsel	rendered	by	the	father’s	attorneys did	not	result	in	any	prejudice	to	his

case,	 we	 do not	 address the	 first	 prong	 of	 the	 Strickland test, whether	 the	

assistance	rendered	to	him	was	deficient.		

III.	 CONCLUSION

[¶32]		Although	we	conclude	that	the	trial	court erred	by	requesting	and	

receiving	 a	 proposed	 order	 and	 findings only from	 the	 Department and	

rejecting	 the	 father’s	 request	 to	 submit	 a	 proposed	 order	 and	 findings,	 the	

father	was not	denied	due	process	because	he	was not	prejudiced	by	the	trial	

court’s	error.		Furthermore,	 the	 father	 failed	 to	prove	his claim	of	ineffective	

assistance	of	counsel.
17

The	entry	is:

Judgment	affirmed.

Rory	A.	McNamara,	Esq.,	Drake	Law	LLC,	York,	for	appellant	father

Joseph	W.	Baiungo,	Esq.,	Belfast,	for	appellant	mother

Aaron	M.	Frey,	Attorney	General,	and	Hunter	C.	Umphrey,	Asst.	Atty.	Gen.,	Office	

of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	Human	

Services

Belfast	District	Court	docket	number	PC-2018-11

FOR	CLERK	REFERENCE	ONLY