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	 interests.		

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	judgments.	

 1		The	children	subject	to	this	appeal	are	two	girls	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	time	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	 boy’s	 biological	 father’s	 parental	 rights;	 he	 does	 not	 appeal	 from	 that

judgment.	
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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).	 The	court	 found	by	clear	and	

convincing	evidence	that	each	parent	(1)	is	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 and	(2)	has	

been	unwilling	or	unable	to	take	responsibility	for	the	children within	a	time	

which	 is	 reasonably	 calculated	 to	 meet	 the	 children’s	 needs.	 	 See	 id.

§ 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	

interests.		See	id. §	4055(1)(B)(2)(a);	In	re	Caleb	M.,	2017	ME	66,	¶	6,	159	A.3d	

345.		
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[¶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	failed	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	Court	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	findings	as	to	the	father’s parental	fitness	are	

as	follows:
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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.		He	concedes	 that	it	will	be	at	least	nine	 to	 ten	months	

before	he	might	be	ready	to	parent	the	girls. .	.	. [T]he	Court	finds	

that	 prediction	 unrealistic.	 	 The	 smallest	 thing	 triggers	 [the	

father]’s	drug	use,	and	his	track	record	establishes	that	[the	father]	

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	unwilling	

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.		[The	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	ability	to	take	care	

of	[the	boy].		[The	boy]	has	not	lived	with	[the	mother]	.	.	.	for	over	
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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	home	of	his	parents.		 [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	

therapeutic	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	[the	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	[the	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.		
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[The	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	often	

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.		[The	 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	

meaningful	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,	and	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	

Department	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.		See 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	 ineffective	
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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,	¶¶	20-21,	27,	126	A.3d	718.		By	order	

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	Rule	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	result	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	immediately	
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after	it	is	filed	to	determine	whether	it	raises	sufficient	grounds	to	warrant	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; and	an	email	from	the	

Department Permanency	 Caseworker	 indicating that	 the	 father	 may	 write	 a	

letter	responding	to	the	girls’	letter	to	him.

[¶10]	 	 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	Court	concludes	[the	father]	has	not	presented	any	persuasive	

reason	justifying	 relief	 from	 the	 operation	 of	 the	judgment.	 	The	

Court	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,	the	Court	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	 Court	 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)	
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motion,	and	his	supporting	affidavits	and	materials,	and	concludes	

there	is	no	reason	to	provide	[the	father]	with	relief	from	judgment.		

[¶11]		The	father	filed	a	notice	of	appeal	from	that	order. We	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	

parents’	appeals of	the	judgment	terminating	their	parental	rights.	

II.		DISCUSSION

A.	 Sufficiency	of	the	Evidence	

[¶12]	 	 Here,	 the court’s	 findings	 are	 sufficient	 to	 support	 the	 court’s	

determinations 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	unwilling	or	unable	to	take responsibility	for	the	children	within	a	

time	 which	 is	 reasonably	 calculated	 to	 meet	 their	 needs, see	 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, see	id. § 4055(1)(B)(2)(a).	 See	In	re	M.P.,	2015	

ME	138,	¶	16,	126	A.3d	718.		

1. Parental Fitness	

[¶13]	 The	mother	argues	that	the	court	found	her	unfit	“mainly because	

she	‘failed	to	resolve	her	chronic	substance	abuse’	by	continuing	to	use	drugs	
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and	abuse	alcohol	and	Subutex,”	but	that	“the	record	is	so	void	of	support	for	

that	finding,	the	Trial	Court	could	not	even	have	been	reasonably	persuaded	as	

to	the	same.”		(Emphasis	added.) To	the	contrary,	the	court	did	not determine	

that	the	mother was unfit	“mainly”	for	that	reason;	the	court	found	her	unfit	for	

a	multitude of	 reasons.		The	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	 treatment, 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.		

[¶14]		There	is	also	ample	evidence	to	support	the	finding	that	she	does	

continue to	“use	drugs	and	abuse	alcohol	and	Subutex.”		By	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	treatment	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	 pattern 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	her	
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reported	alcohol	consumption.		Although	the	mother	testified 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	 Child	 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.		

[¶15]		The	mother	also	argues	that	the	court	erred	in	finding	that	she	has	

“not	 improved”	 and	 that	 her	 housing	 arrangements	 for	 the	 children	 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.”		

[¶16]	 	 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 harms 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	in	the	past	two	years,	the	mother	has	attended	a	
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total	of	three	of	the	boy’s	medical appointments,	no	appointments	for	the	girls,	

and	has	attended	only	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	findings as	to	the	mother’s	parental	unfitness are

well	supported	by	the	record.		

[¶17]		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	finding	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.		The	entirety	of	the	evidence	fully supports	

the	court’s	finding.	

[¶18]		The	court	 found,	 and	 the	 evidence	 supports,	that	 the father	 has	

been	incarcerated	 on	 and	 off	 during	 the	 time	 that	 the	 girls	 have	 been	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	being	
13

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	result	of	other	reasons.”).		The	evidence	further	shows	that,	while	he	was	

released	from	prison,	he	lacked	stable	housing; continued	to	use	illicit	drugs—

including	 a	 relapse	 on	 cocaine	 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	father	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	consistent	sobriety	while he	was not	in prison	supports	

the	 court’s	 finding	 that	 the	 father’s	 “track	 record	 establishes	 that	 [he]	is	 not	

willing	or	able	to	do	the	work	necessary	to	improve	his	situation”	or	meet	the	

girls’	needs.		

[¶19]		The	court’s	findings 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.		
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2. Best	Interests 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.		The	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 years 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.		Supra ¶	12;	see 22	M.R.S.	§	4055(1)(B)(2)(a)	(2018).
15

parental	rights	when,	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	interests.	

B.	 Post-Judgment	Motion	for	Relief	from	Judgment

[¶21]	 	 The	 father	 also argues	 that	 the	 court	 abused	 its	 discretion	 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	Assistance	of	Counsel	

[¶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	to	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	to	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.	
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period,	the	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	rose to	the	level	of	preventing	a	just	result.		Id.	¶	21.		If	the	

parent	asserts	that	counsel’s	deficiency	was	due	to	his	or	her	failure 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	fails to	comply	with	this	procedure,	we	will	affirm	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	

the	 factual	 findings underlying	ineffectiveness	 claims	 for	 clear	 error and	 the	
17

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	 sworn	

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	identifiable	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	ME	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	

determine 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,	could

have rendered	as	unjust the	court’s	 finding	 that	 the	 father	 “has	done	next	 to	

nothing	to	alleviate	jeopardy	or	take	responsibility	for	the	girls,”	that	“[h]e	does	

not	understand	the	girls’	needs,	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	 the	affiants	provide	evidence	suggesting	

that	the	father	will	be	able	to	maintain	sobriety	and	stability	after	his	release.		

[¶25]	 To	be	clear,	the	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	 to	 the	 responsibilities	of providing safe	 and	 nurturing	 care	 for	his

children.	 	 The	 process	 is	 specifically designed to	 avoid	 delays in	 the	 final	

adjudication	of	a	parent’s	parental	rights,	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	 promptly	 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	children,	and	that	people	
19

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	the	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,	 ordered	 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	 trial	 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	a	
20

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.		We	discern no	error	in the	court’s actions

taken	pursuant	to	our	direction.		

The	entry	is:

Judgments affirmed.

Amy McNally, Esq., Woodman Edmands Danylik Austin Smith & Jacques, P.A., 

Biddeford, for appellant mother

Kristina Dougherty, Esq., Chester & Vestal, P.A., Portland, for appellant Father

Aaron M. Frey, Attorney General, and Zack Paakkonen, 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

FOR	CLERK	REFERENCE	ONLY