MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2019	ME 129 Docket: Yor

- 18

- 461 Submitted

On	Briefs: June 26 ,	2019 Decided: August	6,	2019 Panel: SAUFLEY,	C.J.,	and ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.

IN	RE	CHILDREN	OF	MEAGAN	C.

SAUFLEY,	C.J. [¶1]		A	mother	 and	 father	appeal	 from	 a	consolidated	judgment	 of	 the District	 Court	 (York, Duddy,	 J. )	 terminating	 their	 parental	 rights	 to their children. See 22	M.R.S.	 §	 4055(1)(B)(2)(a),	 (b)(i)

- (ii)	 (2018)

. 1 Both	parents challenge	the	sufficiency	of	the	evidence	supporting	the	court’s	determination that	they	are	parentally	unfit	and contend that	the	court	abused	its	discretion in	 determining	 that termination was in	 the	 children’s	 best	 interest s . Additionally,	 the	 father	 challenges	 the	 denial	 of	 his	 post

- judgment Rule 60(b)(6)	 motion for	 relief	 from	 judgment on	 the	 ground	 of ineffective assistance	of	counsel. See M.R.	Civ.	P. 60(b)(6). We	affirm	the	judgmen ts.

1 The	children subject	to	this	appeal	are	two	girl s	and	one	boy. The	mother	and	father	are	the biological parents	of	the	girls	and	the	mother	is	the biological parent	of	the	boy. The	father	was	the legal	father	of	the	boy	because	he	and	the	mother	were	married	at	the	t ime	she	gave	birth	to	the	boy. The	father	has	since,	however,	consented	to	the	termination	of	his	parental	rights	with	respect	to	the boy ,	22	M.R.S.	§	4055(1)(B)(1)	(2018) ;	he	does	not	appeal from the	judgment. The	judgment	now	on appeal	 terminated	 the	 b oy’s	 biological	 father’s	 parental	 rights ;	 he	 does	 not	 appeal from	 that judgment.2 I.		BACKGROUND [¶ 2 ] In	June	2017,	the	Department	petitioned	to	terminate	the parents’ parental	rights	as	 to the girls , and	 the mother’s parental	rights	as	 to the boy

. See 22	M.R.S.	 §	4052	 (2018) .		The	court	 ( Duddy,	J. ) held	a three

- day	hearing, from	September	25	through	September	27,	2018, on	the	Department’s	petition at	which	both	parents	were present	and represented	by	counsel. See 22	M.R.S. § 4054	(2018). [¶ 3 ] By	 judgment	 dated November	 2,	 2018,	 the	 court	 terminated	 the parents’	parental	rights	as	 to the	girls ,	and	 the	mother’s	parental	rights	as	 to the	boy

. See id. §	4055(1)(B) (2)(a),	(b)(i)

- (ii)

. T he	court	 found	by	clear	and convincing	evidence	that	each	parent (1) is	unwilling	or	unable	to	protect	the child ren from	jeopardy	and	these	circumstances	are	unlikely	to	change	within a	time	which	is	reasonably	calculated	to	meet	the	child ren ’ s	needs and	(2) has been	unwilling	or	unable	to	take	responsibility	for	the	child ren within	a	time which	 is	 reasonably	 calculate d	 to	 meet	 the	 child ren ’ s	 needs

. See	 i d. § 4055(1)(B)(2)(b)(i)

- (ii). The	 court	 also	 found	 by	 clear	 and	 convincing evidence	that	termination	of	the	parents’	parental	rights	is	in	the	children ’s	best
interest s . See	i d. §	4055(1)(B)(2)(a); In	re	Caleb	M. ,	2 017	ME	66,	¶	6,	159	A.3d 345

.3 [¶ 4 ] The	court’s	supported factual findings	as	to	the mother’s fitness are as	follows: The	 children	 were	 taken	 into	 custody	 over	 two	 years	 ago. Since	 that	 time, [the	 mother] has	 failed	 to	 resolve	 her	 chronic substance	abuse	and	to	address	her	mental	health. [The	mother] has	continued	to	use	drugs	and	alcohol,	has	failed	to	get	clean	and sober,	and	is	currently	abusing	alcohol	and	Subutex. [The	mother] bullies	and	threatens her	treating	physician	to	support	her	various substance	use	habits. [The	mother]	lies	about	and	minimizes	her substance	 use,	 and	 is	 in	 a	 state	 of	 denial	 and	 dishonesty.	 	 [The mother]	has	failed	to	seek	out	and	obtain	mental	health	treatment, and	has	faile d	to	address	her	mental	health	issues.		[The	mother] has	failed	to	nurture	a	healthy	attachment	with	[ the	children ].		The GAL	 testified	 at	 trial	 that	 in	 his	 opinion	 [the	 mother]	 has	 not improved	at	all	since	the	start	of	this	case, and	the C ourt	agrees. Given	 her	 continued	 state	 of	 poly	 substance	 abuse,	 [the mother]	is	currently	unable	and	unwilling	to	protect	her	children from	jeopardy.		She	is	also	currently	unable	and	unwilling	to	take responsibility	 for	 her	 children. After	 two	 years, [the	 mother]’s visits	 with	 her	 children	 are	 still	 fully	 supervised

. Even	 in	 a supervised	setting,	[the	mother]	is	barely	able	to	feed	[ the	boy ],	and totally	unable	 to	 take	responsibility	 for	a	child	with	his	profound disabilities.		[The	mother]’s	visits	with [the	girls] have	been	hurtful and	 counterproductive.	 	 [The	 mother]	 has	 demonstrated	 no understanding	of	or	ability	to	manage	[ the	younger	girls ]’s	anxiety disorder	or [the	older	girl ]’s	PTSD. In	view	of	[the	mother]’s	failure for	 over	 two	 years	 to	 make	 any	 progress toward	 sobriety	 and improved	 mental	 health,	 and	 her	 current	 state	 of	 denial,	 [the mother]	shows	no	prospect	for	the	foreseeable	future	of	protecting the	children	from	jeopardy,	or	taking	responsibility	for	them. The	court’s	supported	evidentiary	finding s	as	to	the	father ’s parental	fitness	are as	follows:4 In	 the	 over	 two	 years	 since [the	 girls] were	 taken	 into Department	 custody, [the	 father] has	 done	 next	 to	 nothing	 to alleviate	jeopardy	or	take	responsibility	for	the	girls.		When	he	was given	 visitation	 in	 late	 2016,	 after	 being	 released	 from	 jail,	 he missed	several	visits	and	his	visitation	was	suspended.		Soon	after visitation	 was	 resumed, [the	 father]	 relapsed,	 and	 he	 asked	 for visitation	 to	 be	 suspended.	 	 He	 failed	 to	 engage	 consistently	 or successfully	in	any	services	while	he	was	not	incarcerated.		He	has only	recently	begun	participating	in	services	during	his	current	jail sentence.		H e	concedes	 that	it	will	be	at	least	nine	 to	 ten	months before	he	might	be	ready	to	parent	the	girls.

.	.	. [T]he C ourt	finds that	 prediction	 unrealistic.	 	 The	 smallest	 thing	 triggers	 [the father]’s	drug	use,	and	his	track	record	establishes	that	[the	fath er] is	 not	 willing	 or	 able	 to	 do	 the	 work	 necessary	 to	 improve	 his situation.	 	 [The	 father]	 will	 not	 be	 able	 to	 protect	 the	 girls	 from jeopardy,	 or	 take	 responsibility	 for	 them,	 anytime	 in	 the foreseeable	future. Accordingly,	[the	father]	is	unable	or	unwi lling to	 protect	 the	 girls	 from	 jeopardy,	 or	 to	 take	 responsibility	 for them,	within	a	time	reasonably	calculated	to	meet	their	needs. [¶ 5 ] The	court also	made	the	following	supported	findings	regarding the best	interests	of	the	children : [ The	boy ]	. .	.	has	lived	with	the [foster	parents] for	most	of	his	life. The [foster	parents] have	learned	how	to	interpret	[ the	boy ]’s	facial expressions	and	how	to	read	his	body	language. [The	foster	mom] understands	 how	 to	implement	lessons	learned	 from	 [ the	 boy ]’s many	therapies. [She] has	also	figured	out	how	to	successfully	feed [ the	boy ].		The [foster	parents’] household	is	stable,	and	provides	a safe	 environment	 in	 which	 all	 of	 [ the	 boy ]’s	 substantial	 physical and	emotional	needs	can	be	met.		[ T he	boy ]	is not	old	enough,	or intellectually	able,	to	express	a	meaningful	preference.		However, the	fact	that	[ the	boy ]	has	thrived	in	the	care	of	the [foster	parents] reflects	his	deep	and	meaningful	bond	with [them]

. [The	mother]	.	.	.	ha[s]	demonstrated	no	abi lity	to	take	care of	[ the	boy ].		[ T he	boy ]	has	not	lived	with	[the	mother]	.	.	.	for	over5 two	years,	and	has	no	ability	to	integrate	back	into	a	home	with	[the mother]	.	.	.	.		[The	mother]	lives	with	her	current	boyfriend	.	.	.	who in	 turn	lives	in	 the	ho me	of	his	pa re nts.		 [He]	has	never	met	 [ the boy ],	and	has	no	 realistic	understanding	about	 the	extent	 of	 [ the boy ]’s	 physical	 and	 intellectual	 disabilities.	 	 [The	 boyfriend] ’ s statements	that	[ the	boy ]	(along	with [the	girls] )	are	all	welcome	to move	 into his	 parent’s	 house	 with	 him,	 are	 fanciful	 and unpersuasive.		[The	mother]	thus	lacks	stable	and	safe	housing	for [ the	 boy ]. In	light	 of	 all	 of	 the	 above,	 therefore,	 terminating	 the parental	rights	of	[the	mother]	.

. .	is	in	[ the	boy ]’s	best	interest.

. .	. [ The	girls] have	lived	in foster	care	for well	over	two	years. Both	 girls	 were	 in	 deep	 distress	 when	 they	 were	 taken	 into Department	 custody,	 and	 have	 improved	 physically	 and emotionally	with	the	loving	care,	structure,	and	constancy	of	their therape utic	foster	family.		Both	girls,	however,	still	have	emotional and	 mental	 health	 challenges	 arising	 from	 their	 respective diagnoses	and	the	trauma	inflicted	on	them	by	their	parents. Neither	 [ of	 the	 girls has ] a	 healthy	 attachment	 to	 [the mother]	or	[th e	father].		[The	father]	has	not	lived	with	or	parented the	girls	since	he	walked	away	from	the	family	in	2014.		Since	that time,	 [the	 father]	has	been	almost	entirely	absent	 from	 the	girls’ lives,	due	to	choices	he	has	made,	incarceration,	and	drug	use. He does	not	understand	the	girls’	needs,	has	no	ability	to	meet	those needs,	and	has	no	home	into	which	the	girls	could	reintegrate.		The girls	have	more	recently	lived	with	[the	mother],	but	[the	mother]’s relationship	with	the	girls	has	been	marred	by	[t he	mother]’s	poly substance	abuse.		[The	mother]’s	visitation	with	the	girls	has	made matters	worse,	not	better.		[The	mother]	does	not	understand	the girls’	needs,	and	has	no	ability	to	meet	those	needs.		[The	mother]’s boyfriend	.	.	.		has	never	met	[ the girls ]. [The	mother’s	boyfriend’s] comments	that [the	girls]

.	.	. are	welcome	to	move	in	with	him	in the	home	of	his	parents,	is	fanciful	and	unpersuasive.		Accordingly, [the	 mother]	 also	lacks	 a	 stable	 home	into	which	 the	 girls	 could reintegrate.6 [ T he	older	girl ]’s	comments	regarding	her	future	placement reflect	deep	ambivalence.		On	the	one	hand,	[ the	older	girl ]	has	been overheard	on	occasion	 to	say	 that	she	would	like	 to	return	home with	her	mother. On	the	other	hand,	[ the	older	girl ]	has	more	of ten commented	 that	 her	 mother	 is	 mean,	 lies	 constantly,	 and	 is	 not doing	well	enough	to	resume	custody	of	the	children.		As	a	result, [ the	 older	 girl ]	 has	 not	 expressed	 a	 meaningful	 preference.	 	 In contrast, [the	 younger	 girl]	 has	 been	 quite	 clear	 about	 her preference. [ T he	 younger	girl ]	would	like	 to	live	with	her	 foster family	(although	she	understands	that	is	not	an	option),	or	live	with [ the	boy ]’s	 foster	 family. [ The	 younger	 girl ]	has	not	expressed	 a me aningful	desire	to	live	with	[the	mother]. The	 girls’	 placement	with	 their	 therapeutic	 foster	 family	is not	pre
- adoptive,	but	has	nevertheless	worked	very	well	 for [the girls]

. The	foster	family	has	provided	love,	skillful	care,	an	absence of	trauma,	a nd	constancy.		These	are	the	ingredients	the	girls	need in	 a	 permanent	 placement,	 which	 can	 be	 achieved	 through adoption.		Both	girls	are	desperate	for	a	sense	of	permanency,	and for	[ the	older	girl ]	especially,	the	ongoing	uncertainty	with	regard to	[the mother]	and	[the	father]	is	painful	and	traumatizing.		[The mother]	and	[the	father]	offer	no	reasonable	hope	of	stability	and permanency.	 	 Both	 girls	 are	 very	 adoptable,	 and	 adoption	 will provide	an	appropriate	permanent	placement	for [the	girls] .		The De partment	is	already	exploring	a	possible	kinship	adoption. For all	of	these	reasons,	terminating	the	parental	rights	of	[the	mother] and	[the	father]	is	in	the	best	interest	of [the	girls]

. [¶ 6 ] The	mother and	father each filed a notice	of	appeal. Se e 22	M.R.S. § 4006	(2018) ; M.R.	App. P. 2B(c)(1) ,	(d)

. [¶ 7 ] Over	 two	 months	 later,	 on	 January	 9,	 2019, the	 father moved to permit	trial	court	action	on	his post
- judgment motion	for	an extension	of	time to	 file	 a	 Rule	 60(b)(6)	 motion	 for	 relief	 from	 judgment	 alleging	 ineffective7 assistance	of	counsel	at	the	termination	hearing. See M.R.	Civ.	P.	60(b)(6) ; M.R. App.	P

. 3(c)(2); In	re	M.P. ,	2015	ME	138,	¶¶	20

- 2 1,	2 7 ,	126	A.3d	718

. By	orde r dated January	 15,	 we	 granted	 the	 father’s	 motion, and stayed the appeal pending	trial	court	action.		The	father	filed	his motion for	an	extension

. [¶ 8 ] On	January	25,	2019,	the	court ( Duddy ,	J. ) citing In	re	M.P. ,	2015	ME 138, ¶	 20 n.4.,	 126	 A.3d	 718 , denied	 the	 father’s motion	 for	 an	 extension , concluding that	the	father	“did	not	timely	file	his	Rule	60(b)(6)	motion,	nor	did he	timely	move	for	an	extension	of	time ,”	within	the	prescribed	twenty

- one	day filing	period. The	court	concluded that , after “balancing	the	children’s	interest with	 [the	 father]’s	 interest , ”	 such “ does	 not	 weigh	 in	 favor	 of	 [the	 father]’s interest.	 	 There	 is	 nothing	 exceptional	 and	 unusual	 about	 [the	 father’s] incarceration	that	would	warrant	an	extension	of	time	to	file	his	Rul e	60(b)(6) motion.”		(Citing In	re	Alijah	K. , 2016	ME	137,	¶	14,	147	A.3d	1159 (“A	parent who	 is	 unable	 to	 fulfill	 his	 parental	 responsibilities	 by	 virtue	 of	 being incarcerated	 is	 entitled	 to	 no	 more	 protection	 from	 the	 termination	 of	 his parental	rights	than	a	parent	who	is	unable	to	fulfill	his	parental	responsibilities as	a	resul t	of	other	reasons.”).) [¶ 9 ] The	father	filed	a	notice	of	appeal from that	order,	and	we	remanded the	matter	for	the	court	to	“ perform	an	initial	review	of	the	motion	immediately8 after	it	is	filed	to	determine	whether	it	raises	sufficient	grounds	to	war rant	a response	 and any further	 proceedings.” The	 father	 filed	 his	 Rule	 60(b)(6) motion	 for	 relief	 from	 judgment .	 	 Attached	 to	 the	 motion	 were signed	 and sworn	 affidavits	 from the	 father ,	 his own father,	 his	mother,	 and a pastor ; a signed	letter	from the father to	an	unidentified	recipient	requesting	supervised visits	with the	girls ; an	unsigned	and	unsworn	affidavit	from	his	sister ; a	letter from	the	Director	of	Victim	Services	at	the	Department	of	Corrections, allowing the	father	one	visit	and	two	phone calls	with the	girls ; a nd	an	email	from	the Department Permanency	 Caseworker	 indicat ing that	 the	 father	 may	 write	 a letter	responding	to	the	girls’	letter	to	him

. [¶1 0 ] The court denied	 the	 motion after	 it “carefully	 and	 thoroughly reviewed	[the	father]’s	motion,	.	.	.	the	affidavits	and	other	materials	submitted ” and	the	court’s	prior	orders. The	court found as	follows: The C ourt	concludes	[the	father]	has	not	presented	any	persuasive reason	justifying	 re lief	 from	 the	 operation	 of	 the	judgment. The C ourt	rejects	[the	father]’s	argument	that	if	only	his	attorney	had called	the	ten	“potential”	witnesses,	or	offered	the	seven	suggested documents,	 or	 managed	 his	 trial	 time	 differently,	 or	 taken	 other steps,	t he C ourt	would	have	had	insufficient	evidence	to	make	the required	 termination	 findings,	 or	 the	 outcome	 would	 somehow have	been	different.		The	Department	proved	its	case	by	clear	and convincing	evidence,	and	the	outcome	with	regard	to	[the	father] was	 not close.	 	 The C ourt	 has	 specifically	 reviewed	 its	 findings regarding	[the	father]’s	parental

. .	. fitness, and	the	children’s	best interest,	 in	 light	 of	 [the	 father]’s	 proffer	 in	 his	 Rule	 60(b)(6)9 motion,	and	his	supporting	affidavits	and	materials,	and	co ncludes there	is	no	reason	to	provide	[the	father]	with	relief	from	judgment. [¶ 1 1 ] The	father filed	a	notice	of	appeal	from	that order

. W e dismissed the	 father’s	 appeal	 of	 the	 order	 denying	 his request	 for	 an extension, and consolidated his appeal of	the order denying	his	Rule	60(b)(6)	motion with	the
par ents ’	appeal s of	the	judgment	terminating	their	parental	rights.
II.		DISCUSSION
A. Sufficien cy	of	the	Evidence [¶1 2 ] Here,	 t he court’s findings	 are	 sufficient	 to	 support	 the	 court’s determinat ion s that	 both	 parents	 are	 unwilling	 or unable	 to	 protect	 the children	from	jeopardy	and	these	circumstances	are	unlikely	to	change	within a	 time	which	is	reasonably	calculated	 to	meet	 the	children’s	needs , that	both parents	are u nwilling	or	unable	to	take responsibility	for	the	children	within	a time	 which	 is	 reasonably	 calculated	 to	 meet	 their	 needs , s ee 22	 M.R.S. § 4055(1)(B)(2)(b)(i)

- (ii) ,	and	that	termination	of	the	parents’	parental	rights
is in	the	children’s	best	interest, s ee id. § 4055(1)(B)(2)(a)

. See In	re	M.P. ,	2015 ME	138,	¶	16,	126	A.3d	718

. 1. Parental Fitness [¶1 3 ] The	mother argues	that	the	court	found	her	unfit	“ mainly because she	‘failed	to	resolve	her	chronic	substance	abuse’	by	continuing	to	use	drugs10 and	abuse	alcohol	and	Subutex,”	but	that	“the	record	is	so	void	of	support	for that	finding,	the T rial C ourt	could	not	even	have	been	reasonably	persuaded	as to	the	same.”		(Emphasis	added.) To	the	c ontrar y ,	t he	court	did	not determine that the	mother was unfit	“mainly” for	that	reason ;	the	court	found	her	unfit	for

a multitude of	 reasons. T he	court	 found,	and	 the	evidence	 supports,	 that , in addition	to	her	illicit	substance	use	and	alcohol	abuse,	she has	failed	to	seek	out and	 obtain	 mental	 health	 treatm ent , nurture	 a	 healthy	 attachment	 to	 the children , and	demonstrate an understanding	of	or	ability	to	manage	any	of	the children’s physical	and	mental	health	needs

. [¶1 4 ]		There	is	also	ample	evidence	to	support the	finding that she does
continue to	“use drugs	and	abuse	alcohol	and	Subutex .” B y	the	mother’s	own admission,	 she	 has	 used	 heroin,	 fentanyl,	 Percocet,	 and	 cocaine	 since	 the beginning of	the	child	protection	proceeding. The	court	also	heard	testimony and	found	that	the	mother	sought	hospital	tre atment	during	the	pendency	of this	 case	 where	 she	 reported	 that	 she	 had	 been	 drinking	 one

- half	 of	 a 750

- milliliter	bottle	of	vodka	per	day	and	the	hospital	diagnosed	her with	“Daily and	 problematic	 patter n of	 alcohol	 consumption	 to	 suggest	 dependence	 and abuse

. ” A	 urine	 sample , taken	 near	 the	 time	 she	 reported	 to	 the	 hospital, confirmed an	“exceptionally	high	level ” of	alcohol	 that	could	corroborate her11 reported alcohol	consumption. Although	the	mother te stified that	those	facts

are not	true,	the	court	found

— as	is	in	its	discretion	as	fact

- finder

— the	mother “to	be	a	particularly	untruthful	and	unreliable	witness,	to	lack	credibility	on	key factual	 issues	 as	 to	 her	 sobriety	 and	 use	 of	 alcohol.” See In	 re	 C hild	 of Radience K. ,	2019	ME	73,	¶ 34, 208 A.3d 380; In	re	Children	of	Tiyonie	R. ,	2019 ME	34,	¶ 6,	203	A.3d	824

. [¶1 5 ]		The	mother	also	argues	that	the	court	erred	in	finding	that	she	has “not	 improved”	 and	 that	 her	 housing	 arrangements	 for	 the	 childre n	 were “fanciful	and	unpersuasive”	because,	she	argues,	the	Department	investigated her	care	of	her	youngest	child who	remains	in	her	care and	has	found	“the	exact opposite

— that	the	Mother	was	fit	and	her	home	was	safe	and	appropriate	for an	infant.” [¶1 6 ]	 	 The	 mother’s	 fitness	 to	 parent	 one	 infant	 child	 with	 no	 known disabilities	is	 significantly	different	 than	her	 fitness	 to	parent	any	 one	 of	 the three	children	at	issue	in	this	case,	much	less	all	four	children	at	once. The	court found,	and	the	record supports,	that all of	the	children	here	struggle as	a	result of past harm s inflicted	upon	them	while	in	the mother’s care,	requiring therapy , special	education	sessions,	and	 full,	daily	supervision	by	 their	 foster	parents. The	testimony	at	trial	is	that	i n	the	past	two	years,	the	mother	has	attended a12 total	of	three	of the	boy ’s medical appointments,	no	appointments	for	the	girls, and	has	attended	on ly	one school	event.		The	mother	has	shown	she	has	great difficulty	during supervised visits	in	controlling and	managing	the	needs	of the three	children and	her infant	 son while	all	 together .		The	mother	has	had to remove	 herself	 from the	 group	 visits	 with	 the	 four	 children due	 to	 feeling “overwhelmed. ” The	court’s	finding s as	to	the	mother’s parental	un fitness are well	supported	by	the	record. [¶1 7 ] The	 father	 testified	 that	it	would	be at	least	nine	 to	 ten	months before	he	might	be	ready	to	parent	the	girls.		The	court	found	that	this	predicted timeline	was	“unrealistic.” The	father	argues	that	this	findi ng	is	not	supported by	evidence	in	the	record for	the	following	reasons:	he has	been	sober	for	nine months ; he	 had	 previously	 attended	 Bay	 Street	 Recovery ; he has	 been undergoing	 treatment	 and	 training while	 incarcerated ;	 and he	 has	 family support	when	released	from	prison. T h e entirety	of	the evidence fully supports the	court’s	finding. [¶1 8 ] T he	court	 found,	 and	 the	 evidence	 supports, that	 the father	 has been	incarcerated	 on	 and	 off	 during	 the	 time	 that	 the	 girls	 have	 bee n	in the Department’s care. See In	re	Alijah	K. ,	2016	ME	137,	¶ 14,	147	A.3d	1159 (“A parent	who	is	unable	 to	 fulfill	his	parental	responsibilities	by	virtue	of	being13 incarcerated	 is	 entitled	 to	 no	 more	 protection	 from	 the	 termination	 of	 his parental	righ ts	than	a	parent	who	is	unable	to	fulfill	his	parental	responsibilities as	a	result	of	other	reasons.”). The	evidence	further	shows	that,	w hile	he	was released	from	prison,	he	lacked	stable	housing ; continued	to	use	illicit	drugs

— including	 a	 relapse	 on	 co caine	 in	 May	 2017; received	 only	 some	 substance abuse	counseling

— admitting	that	he	completed only two	phases	at	Bay	Street Recovery	 before	 being	 arrested ; and received	 no	 mental	 health	 treatment despite his	self

- reported	need	for	such	treatment

. The	fathe r	testified that he has	only	recently	begun	treatment and, although	he	has	been	looking	for	sober housing	 programs	 for	 after	 his	 release, he	 does not	 presently	 have housing arranged. Moreover,	although	 the	 father argues	 that	he	has	been clean	 from substances for	 the	 past	 nine	 months,	 a	 majority	 of	 which	 he	 has spent incarcerated,	his	lack	of	consist ent	sobriety	while he	was not	in prison supports the	 court’s	 finding	 that	 the	 father’s	 “track	 record	 establishes	 that	 [he]	is	 not
wi l ling	or	able	to	do	t he	work	necessary	to	improve	his	situation”	or	meet	the girls’	needs. [¶1 9 ] T he	court’s	finding s that	the	father	is unwilling	or unable	to protect the	girls	from	jeopardy	or take	responsibility	for	the	girls	within	a	time which is	reasonably	calculated to	meet	their	needs are fully	supported	by	the	record.14 2

. B est I nterest s of	the	Girls [¶ 20 ]		The	parents	argue	 that	 the	court’s	ultimate	 termination	 of	 their parental	rights	constituted	an	abuse	of	discretion	because	termination	at	this point,	when	the girls’	current	foster	family	is	not	willing	to	adopt them ,	fails	to establish	permanency	for	the	girls. 2 We	have	frequently	stated	that , “ [ a ] lthough permanency	 is	 often	 achieved	 through	 adoption,	 permanency	 can	 also	 be achieved	through	other	arrangements.” In	re	Marcus	S. ,	2007	ME	24,	¶	10,	916 A.2d	225

. T he	concept	of	permanency	is	a	dynamic	one,	and	permanency	in	a particular	case	“must	be fashioned	from	the	actual	circumstances	and	needs	of the	.	.	.	children	before	the	court.” Id. Based	on	the	record	before	us,	the	court did	not	abuse	its	discretion	when	it	determined	that	termination	is	in	the	best interests	of	these	two girls	when	the parents	have	demonstrated	that	they	are unable	to	offer	the	children	any	semblance	of	permanency	due	to	their	failure to	alleviate	jeopardy	over	the	two year s since	the	removal of	the	girls , even	with ample	support	from	the	Department. See	id. ¶	10

- 11 ; cf

. In	re	Thomas	H. ,	2005 ME	123, ¶¶	31

- 34, 889	A.2d	297 (vacating	the	denial	of	a	petition	to	terminate

2 The	mother	also	argues	that	there	was	not	sufficient	evidence	presented	at	trial	for	the	court	to conclude	that	termination	of	her	rights	is	in	the	boy’s	best	interest. As	addressed	above,	the	record fully	supports	the	court’s	finding	by	clear	and	convincing	evidence	that	termination	is	in	the	boy’s best	interest. S upra ¶	12; see 22	M.R.S.	§	4055(1)(B)(2)(a)	(2018).15 parental	rights	whe n,	considering the	child’s need	for	permanency, the	denial prevented	the child from	being	adopted). We discern no	abuse	of	discretion	in the	court’s	conclusion	 that	 termination	 of	 the	parents’	parental	rights	was	in each	of the girls’	best	interest s . B. Post

- Judgment	Motion	for	Relief	from	Judgment [¶ 2 1] The	 father also argues	 that	 the	 court	 abused	 its	 discre tion	 in denying	 his	Rule	60(b)(6)	motion	 for	 relief	 from	judgment	 on	 the	ground	 of ineffective	assistance	of	counsel and	that	the	court	erred	in	denying	his	motion without	 affording	 him	 the	 opportunity	 of	 a	 hearing	 to	 create a	 testimonial record	to support his	claim

. We	address	each	argument	in	turn.
1

. Ineffective A ssistance	of C ounsel [¶ 22 ] The procedure for a	parent	to	bring	a	claim	of	ineffective	assistance of	 counsel	 through a	 motion	 for	 relief	 from	 judgment	 pursuant	 to M.R.
Civ. P. 60(b) ( 6) is now settled

. See In	re	M.P. , 2015	ME	138,	¶ ¶ 19

- 21 ,	26

- 27 , 126	A.3d	718

. 3 Within	twenty

- one	days	following	the	expiration	of	the	appeal

3 When	the	existing	record	provides	sufficient	facts	t o	support	a	claim of ineffective	assistance	of counsel,	the	parent	asserting	the	claim	may	do	so	on	direct	appeal. See In	re	M.P. ,	2015	ME	138,	¶ 19, 126	A.3d	718 ; see	also In	re	Aliyah	M. ,	2016	ME	106,	¶¶ 6

- 8,	144	A.3d	50

. When,	as	is	the	case	here, the basis	for	the	parent’s	claim	is	not	clear	from	the	existing	record , requiring	the	parent to	present extrinsic	evidence	to establish his claim,	the	parent	must promptly raise	the	claim to	the	trial	court through	a	motion	for	relief	from	judgment	pursuant	t o M.R.	Civ.	P. 60(b)(6). See In	re	M.P. ,	2015	ME 138,	¶ 20 ,	126	A.3d	718 ; see	also In	re	Aliyah	M. ,	2016	ME	106,	¶¶ 6

- 8,	144	A.3d	50

.16 period,	t he	parent filing	the	motion must	submit	a	signed	and	sworn	affidavit stating ,	 with	 specificity, that (1) counsel’s	 performance	 was	 deficient

— such that	it	was incompetent or inefficient

— and (2)	the	parent	was	so	prejudiced	by that	deficiency that it r ose to	the	level	of	preventing	a	just	result

. Id. ¶	21. If	the parent	asserts	that	counsel ’s	deficiency	was	d ue	to	his	or	her	fa i lure to	call	any individuals	as	witnesses	during	 the	 termination	hearing,	 the	parent’s	motion must	be	accompanied	by signed	and	sworn affidavits	 from	 those	individuals. Id. Similarly,	if	the	parent	asserts	that	counsel	failed	to	offer certain	exhibits into	evidence,	the	parent	must	attach	those	exhibits	to	the	motion. See	generally In	re	Aliyah	M. ,	2016	ME	106,	¶	8,	144	A.3d	50 (discussing	the	presentation	of extrinsic	 evidence	 through	 the	 parent’s	 affidavit)

. Affidavits	 submitted	 to support	an	alleged	failure	to	call	a	witness	or	present	specific	evidence	must be from witnesses	or refer	to evidence	known	and	available to	counsel before the hearing. If a parent	fail s to	comply	with	this	procedure,	we	will	affir m	a	trial court’s	 denial	 of the parent’s	 Rule 60(b)(6)	 motion “ [b] ecause	 of	 the

counter
- balancing	 interests	 of	 the	 State	 in	 ensuring	 stability	 and	 prompt finality	for	the	child

. ” In	re	M.P. , 2015	ME	138,	¶ 21 , 126	A.3d	718

. We	review

t he	 factual	 findings underlying	ineffectiveness	 claims	 for	 clear	 error and	 the17 trial	court’s	ultimate	denial	of	a	Rule	60(b)(6)	motion	for	an	abuse	of	discretion. In	re	Children	of	Jeremy	A. ,	2018	ME	82,	¶	21,	187	A.3d	602

. [¶ 23 ] Here,	the	father	filed	a	signed	and	sworn affidavit	with	his	motion stating	why	he	believed	his	counsel	at	 the	 termination	hearing	was	deficient.
He asserted	that	his	attorney	failed	to	call	ten	witnesses	to	present	testimony at	 the	 termination	 hearing.	 	 In	 his	 motion,	 he	 provided	 signed	 and	 swor n affidavits	from	only	three	of	those	ten	witnesses

— his	father,	his	mother,	and a church	pastor. The	father	also	asserted	that	his	attorney	failed	to	present	seven documents	in	evidence .		In	his	motion,	he	provided	three	documents,	none	of which	were	iden tifiable	as	one	of	the	seven	that	he	had	said	his	attorney	failed to	offer	at	trial. Accordingly, the	father’s	motion	ultimately	relied	on	the	three signed	 and	 sworn	 affidavits and	 three	 unlisted	 documents	 of	 minimal relevance

. See In	re	Tyrel	L. ,	2017	M E	212,	¶	8,	172	A.3d	916 (providing	that the	 court	 should	 consider	 the	 parent’s	 motion when	 it complies	 with	 the procedural	requirements	of	providing	signed	and	sworn	affidavits). [¶ 24 ] We are	 left	 to	 review	 the	 three	 properly	 presented	 signed	 and sworn	 affidavits

— from	 his	 father, his mother,	 and a church	 pastor

— to determi ne whether	the	court	erred	in	concluding	that	these	affiants’	assertions were	insufficient	to	prove	ineffectiveness. To properly	assert	ineffectiveness,18 the	affiants	would	have	needed	to	assert	facts	that ,	if	presented	at	trial,	c ould have rendered	as	unjust the	court’s	 finding	 that	 the	 father	 “has	done	next	 to nothing	to	alleviate	jeopardy	or	take	responsibility	for	the	gi rls , ” that	“[h]e	does not	understand	the	girls’	need s ,	has	no	ability	to	meet	those	needs,	.	.	.	has	no home	into	which	 the	girls	could	 reintegrate,	 .	 .	 .	 [and]	 offer[s]	no	 reasonable hope	 of	 stability	 and	 permanency.” None	 of	 the	 affiants	 asserted	 facts that spoke	 to	contrary	 findings

. Nor	did	 t he	affiants provide evidence suggesting that the	father will	be able	to	maintain sobriety	and stability	after	his	release. [¶ 25 ] To	be	clear,	t he	Rule	60(b) (6) process that	we	have	established is not	intended	to	allow	a	parent	to	have a	second	chance	to	show	that he	is at	last attending	 t o	 the	 responsibilities of provid ing safe	 and	 nurturing	 care	 for his children

. T he	 process is specifically designed to	 avoid d elay s in	 the	 final adjudication	of	a parent’s	parental	right s,	allowing	the	children	some	hope	of permanence	and finality , while at	the	same	time allowing	a	parent	to	be	heard if	there	has	truly	been	a	lapse	in	the	service	of	the	attorney

. The	trial	court	here understood	 the	 process,	 acted	 p romptly	 and	 thoroughly,	 and	 reviewed	 the record	carefully	for	any	indication	that	prior	counsel	was	ineffective. What	the record	 established	 was	 that	 the	 father,	 himself,	 had	 been	 ineffective	 in maintaining	sobriety	and	creating	a	safe	home	for	his	childr en , and	that	people19 who	cared	about	him	hoped	that	someday	he	would	be	able	to	do	so

. Given	the father’s	failure	to present	any	evidence	demonstrating	ineffective	assistance	of counsel,	the	court	did	not	err	in	its	conclusion.
2. Motion	Hearing [¶ 26 ] The	father	filed	his	Rule	60(b)(6)	motion	for	relief	from	judgment nearly	 three	 months	 after	 the	 court	 entered	 the	 judgment	 terminating	 his parental	rights	onto	the	docket. See In	re	M.P. ,	2015	ME	138,	¶ ¶ 19

- 20 ,	126	A.3d
718 (holding	that	t he	motion	for relief	from	judgment	should	be	filed	no	later than	 twenty

- one	 days	 after	 the	 expiration	 of	 the	 period	 for	 appealing	 the underlying	judgment ). In what	was perhaps	an	excess	of	caution,	we permitted the	 trial	 court	 to	 act,	 but,	 to	 effectuate	 promptness,	 or dered	 that it	 do	 so

“ expeditiously”	and	suggested	that it “ perform	an initial	review of	the	motion immediately	after	it	is	filed	to	determine	whether	it	raises	sufficient	grounds	to warrant	a	response	and any	further	proceedings .”		(Emphasis	added); see In re Aliyah	M. ,	2016	ME	106,	¶	8,	144	A.3d	50	( holding	that	after	the	parent	files	a Rule 60(b)(6)	 motion,	 the	 t rial	 court will	 then “ make	 a	 prompt	 preliminary determination	 of	 whether	 to	 allow	 the	 parties	 to	 present	 additional testimony ”); In	re	M.P. ,	2015 ME	138,	¶ 36,	126	A.3d	718 ( holding	that	“ it	is	for the	trial	court	to	determine	what	process	is	necessary	to	meaningfully	assess	a20 parent’s	[Rule	60(b)(6)]	claim”)

. The	court	did	exactly as	we	ordered

. After	it determined that	the	father	failed	to	make a	prima	facia	case	of	ineffectiveness in	 the	 documents	 accompanying	 the	 motion ,	 the	 court	 concluded	 that	 no hearing	on	his	motion	was	necessary. W e discern no	error in the	court ’s action s taken pursuant	to	our	direction. The	entry	is: Judgment s affirmed.

Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., Biddeford, for appellant m other Kristina Dougherty, Esq., Chester & Vestal, P.A., Portland, for appellant Father Aaron M. Frey, Attorney General, and Zack Paakkon en, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

York	District	Court	docket	numbers	PC

- 2016

- 08	and	PC

- 2016

- 09 F OR C LERK R EFERENCE O NLY