MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	76

Docket: Ken-18-384

Argued: April 9,	2019

Decided: May	21,	2019

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

IN	RE	CHILD	OF	REBECCA	J.

PER	CURIAM

[¶1]	 	 Rebecca	 J. appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Waterville, Stanfill,	J.)	terminating	her	parental	rights	to	her child	pursuant	to	

22	M.R.S.	§ 4055(1)(A)(1)(a),	(1)(B)(1)	(2018).

[¶2]		In 2015,	we	prescribed	a	process	by	which	a	parent	whose	parental	

rights	to	a	child	were	terminated	following	an	evidentiary	hearing	could	assert	

a	claim	of	ineffective	assistance	of	counsel,	either	on	direct	appeal	or	by	filing	a	

motion	for	relief	from	the	termination	judgment	in	the	trial	court	pursuant	to	

M.R. Civ. P.	60(b)(6).		In	re	M.P.,	2015	ME	138,	¶¶	8,	11,	38,	126	A.3d	718.		Here,

we	 are	 called	 upon	 to	 decide	 whether	 a	 parent	 has	 a	 right	 to	 the	 effective	

assistance	 of	 counsel	 in	 a	 proceeding	 where	 the	 parent	 consents to	 the	

termination	 of	 her	 parental	 rights,	 and,	 if	 so,	 whether	 the	 court abused	 its	

discretion	in	denying	the	mother’s	two	motions for	relief	asserting	ineffective	

assistance in	 this	 case.	 	 See In	 re	 Children	 of	 Jeremy	 A.,	 2018	 ME	 82,	 ¶	 21,	
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187 A.3d	 602	 (stating	 that	 “the	 trial	 court’s	 ultimate	 denial	 of	 a	 Rule	 60(b)	

motion”	is	reviewed	for	an	abuse	of	discretion	(quotation	marks	omitted)).

[¶3]		We	hold	 that	 the	mother	had	a	right	 to	the	effective	assistance	of	

counsel	 at	 the	 proceeding	 where	 she	 consented	 to	 the termination	 of	 her	

parental	rights	and	we	conclude	that	the	trial	court	did	not	abuse	its	discretion	

in	 finding	 that	the	mother received effective	assistance	when	she	voluntarily	

gave	her	consent	in	this	case.		Accordingly,	we	affirm	the	judgment.

I.		BACKGROUND

[¶4]	 	 The	 relevant	 facts	 are	 procedural.	 	 On	 March	 30,	 2016,	 the	

Department	of	Health	and	Human	Services	filed	a	petition	for	a	child	protection	

order	and	a	request	for	a	preliminary	protection	order	concerning	the	child;	a	

preliminary	order	was	entered	the	same	day	(Dow,	J.)	granting	custody	of	the	

child	 to	 the	Department.	 	 See	22	M.R.S.	 §§	4032,	4034 (2018).	 	Counsel	was	

appointed	 to	 represent	 the	 mother.	 	 Following	 a	 contested	 summary	

preliminary	 hearing,	see	 22	 M.R.S.	 § 4034(4),	the	 court	 (Stanfill,	 J.)	 ordered	

continued	custody	with the	Department.		In	July	2016,	the	court	(Mathews,	J.)	

entered	an	order	finding	jeopardy as	to	the	mother	by	agreement.		See	22	M.R.S.	

§	4035 (2018).
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[¶5]	 	 In	 December	 2017,	 the	 Department	 petitioned	 to	 terminate the	

mother’s	parental	rights.1 See	22	M.R.S.	§	4052 (2018).		At	a hearing	held	on	

August 20,	 2018 (consent	 hearing),	 the	 mother,	 represented	 by	 the	 same	

counsel	appointed	more	 than	 two	years	earlier,	advised	 the	court	(Stanfill, J.)	

that	she	had	decided	 to	consent	 to	a	 termination	of	her	parental	rights.		The	

court	 asked	 the	 mother	 a	 series	 of	 questions	 to	 ensure	 that	 she	 was	 acting	

voluntarily	and	that	she	understood	the	rights	that	she	was	foregoing and	the	

consequences	of	her	decision;	the	court	also	inquired	of	the	mother’s	counsel	

whether in	counsel’s	opinion	the	mother	was	prepared	to	give	an	informed and	

voluntary	consent.		See	22	M.R.S.	§ 4055(1)(B)(1).		Satisfied that	the	mother’s	

decision	was	knowing	and	voluntary, and	having	witnessed	the	mother	sign	a	

written	consent	form,	see	id.; the	court	made	a	finding	to	that	effect	and	ordered	

that	the	mother’s	parental	rights	be	terminated.

[¶6]		Fifteen	days	later,	acting	pro	se,	the	mother	filed	a	letter	in the	trial	

court	 claiming	 that	 she	 was	 “pressured”	 by	 her	 attorney	 to	 consent	 to	 the

termination.		She	requested	a	new	trial	with	new	counsel.		The	court	appointed	

new	 counsel	 and	 set	 the	matter	 for	 a	 hearing;	 counsel	 then	 filed	 a	 notice	 of	

appeal	from	the	termination	judgment,	asserting	that	the	mother’s	consent	was	

 1		The	father	consented	to	a	termination	of	his	parental	rights;	he	is	not	a	party	to	this	appeal.
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involuntary	and	that	she	had	received	ineffective	assistance	of	counsel	in	giving	

consent.		On	September	26,	treating	the	mother’s	letter	as	a	motion	for	a	new	

trial	pursuant	to	M.R.	Civ.	P.	59,	the	court	held	an	evidentiary	hearing	(new	trial	

hearing)	at	which	the	mother	and	her	former	attorney	testified.

[¶7]	 	 The	 court	 subsequently entered	 a	 written	 order	 denying	 the	

mother’s	 request	 to	 set	 aside	 her	 consent,	 finding	 that	 “at	 the	 time	 of	 the	

[consent hearing]	this	court	found	[the	mother’s]	consent	to	be	voluntary	and	

knowing.	 	 Nothing	 in	 [the	 mother’s]	 subsequent	 testimony—or	 that	 of	 [her	

former	 attorney]—undermines	 the	 court’s	 confidence	in	 that	 decision.”	 The	

court further	 found	 that	 “[the	 mother] failed	 to	 prove	 that	 she	 received	

ineffective	 assistance	 of	 counsel	 when	 she	 voluntarily	 consented	 to	 the	

termination	of	her	parental	rights.”

[¶8]	 	 In	 the	 interim	 between	 the	 new	 trial	 hearing and	 the	 court’s	

decision, the	 mother	 moved	 us	 to	 allow	 the	 trial	 court	 to	 act	 on	 a

M.R. Civ. P. 60(b)(6)	 motion	 for	 relief	 from	 the	 termination	 judgment,	 which	

she	 anticipated	 filing	 in	 accordance	 with	 our	 decision	 in	 In	 re	 M.P.,	

2015 ME 138,	¶ 20,	126	A.3d	718	(stating	that	“[in]	circumstances	in	which	the	

record	does	not	illuminate	the	basis	for	[an	ineffective	assistance	claim]	.	.	.	the	

parent	must	promptly move	 for	 relief	 .	 .	 .	pursuant	 to	M.R.	Civ.	P.	60(b)(6)”).	
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We granted	 leave for	 the	 trial	 court	 to	 act, and	 the	 mother	 filed	 a	 timely	

Rule 60(b)(6)	motion	soon	after	her	Rule 59	motion	was	denied.		That	motion,	

accompanied	 by	 affidavits	 from	 the	 mother	 and	 her	 new	 counsel,	 asserted,

inter alia, that	her	former	counsel had	failed	to	contact	and	have	available	at	the	

consent hearing	two	witnesses	who	could	have “at	least	cast	doubt	on”	some	of	

the	 Department’s	 allegations.	 	 The	 mother	 asked the	 court	 to	 hold	 a	 new	

evidentiary	hearing	on	her	motion	and	to	grant	her	relief	from	the termination	

judgment.

[¶9]		In	a	written	order	entered	December	13,	2018,	the	court	declined	to	

hold	an	additional	evidentiary	hearing	and	denied	the	motion	on	the	existing	

record and	 the	 affidavits,	 noting	 that	 it	 had	 already	 found	 that	 “[former	

counsel’s]	performance	was	not	deficient,”	and	that	the	“current	[m]otion	.	.	.	

and	 incorporated	 affidavits	 do	 not	 add	 any	 facts	 that	 lead	 this	 court	 to	 a	

different	 legal	 conclusion	 pursuant	 to	 the	 Strickland doctrine.”2	 	 The	 court	

found that

[i]ndeed,	 [the	mother]	already	 testified	at	 the	[new	 trial]	hearing	

that	the	lack	of	witnesses	being	present	at	the	[consent	hearing] did	

not	 impact	 her	 decision in	 consenting	 to	 the	 termination	 of	 her	

parental	 rights.	 Therefore,	 even	 assuming	 everything	 in	 the	

affidavits	is	true,	it	does	not	impact	the	finding	already	made	that	

 2		We	assess	claims	of	ineffective	assistance	of	counsel	in	termination	of	parental	rights	cases	using	

the	standard	announced	by	the	United	States	Supreme	Court	in	Strickland	v.	Washington,	466	U.S. 668	

(1984).		In	re	M.P.,	2015	ME	138,	¶	26,	126	A.3d	718.
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[the	 mother’s]	 consent	 [at	 the	 consent	 hearing] was	 done	

knowingly	and	voluntarily.		Under	these	circumstances,	there	is	no	

need	to	hold	a	second	evidentiary	hearing.

[¶10]		The	mother	appealed	from	the	denial	of	her	Rule	60(b)(6)	motion,

and	we	ordered	that	the	appeal	be	consolidated	with	her	earlier	appeal	from	

the	 termination	 judgment.	 	 At	 oral	 argument,	 the	 mother	 stated	 that	 she	 is	

pressing	only	her	assertion	that	the	court	erred	by	denying	her	request	for	a	

hearing	 on	 her	 Rule	 60(b)(6)	 motion.	 	 Nonetheless,	 in	 the	 interest	 of	

completeness,	we	address	the	other	contentions	she	raises in	her	brief,	namely	

that	 the	 court	 erred	 by	 denying	 her	 Rule	 59	 motion	 for	 a	 new	 trial	 and	 by	

denying	her	Rule	60(b)(6)	motion.

II.		DISCUSSION

A. The	Rule	59	Motion

1. Voluntariness	of Consent

[¶11]		The	mother	contends	that	the	court	erred	in	denying	her	request	

to	withdraw	her	consent	and	hold a	new	termination hearing,	which	the	court	

treated	 as	 a	motion	 for	 a	 new	 trial	 pursuant	 to	M.R. Civ.	 P.	 59,

3 because	 her	

 3		Because	the	mother	filed	a	notice	of	appeal	after	filing	her	pro	se	request,	the	trial	court	had	no	

power	 to	 act	 on	 the	 request	 except	 in	 a	 circumstance enumerated	 in	 the	 applicable	 rule.		

M.R. App. P. 3(b),	(c)(2).		The	State	noted	at	the	outset	of	the	hearing	on	the	mother’s	request	that	a	

motion	 for	 a	 new	 trial	 filed	 pursuant	 to	 M.R.	 Civ.	 P.	 59	 is	 such	 a	 circumstance;	 the	 court	 then	

proceeded	to	take	evidence	and	issue	a	decision.		M.R.	App.	P.	2B(c)(2)(C),	3(c)(2).
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consent	was	involuntary.		“We	review	the	factual	findings	underlying	a	motion	

for	new	trial	for	clear	error,	and	the	court’s	ultimate	disposition	on	the	motion	

for	an	abuse	of	discretion.”		Ma v. Bryan,	2010	ME	55,	¶	4,	997 A.2d 755.

[¶12]		We	discern	no	error	or	abuse	of	discretion	on	this	record.		Before	

it	may	terminate	a	parent’s	rights	pursuant	to	22 M.R.S.	§	4055(1)(B)(1),4 the	

District	 Court	 must	 find	 by	 clear	 and	 convincing	 evidence	 that	 the	 parent	

consented	to	the	termination	voluntarily	and	knowingly.		In	re	H.C.,	2013	ME 97,	

¶¶	11-13,	82	A.3d	80.		In	order	to	make	the	required	finding,	“a	court	must,	at	

minimum,	(1)	explain	to	the	parent	his	or	her	parental	rights	and	the	effects	of	

his	or	her	decision	thereon,	(2)	inquire	into	the	parent’s	understanding	of	the	

effects	 of	 the	 decision,	 and	 (3)	 determine	 that	 the	 parent’s	 decision	is	 freely	

given.”		Id. ¶ 13.

[¶13]	 	“[B]ecause	 a	 child’s	 interest	 in	 the	 finality	 of	[the	 termination]

proceeding[] outweighs	 a	 parent’s	 desire	 to revoke	 the	 consent	 in	

circumstances	 where	 the	 consent	 was	 knowingly	 and	 voluntarily	 executed,”

after a parent	enters	a	valid consent	to	the	termination of	his	or	her	parental	

rights, that	consent	“may	be	set	aside	only	on	the	basis	of	fraud,	duress,	mistake,	

 4		The	statute	provides	that	one	alternative	allowing	a	court	to	terminate	parental	rights	is	satisfied	

when	 “[t]he	 parent	 consents	 to	 the	 termination.	 Consent	 shall	 be	 written	 and	 voluntarily	 and	

knowingly	 executed	in	 court	 before	 a	judge.	 The	judge	 shall	 explain	 the	 effects	 of	 a	 termination	

order[.]”		22	M.R.S.	§ 4055(1)(B)(1)	(2018).
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or	 incapacity.”	 	 Id. (quotation	 marks	 omitted);	 see also In	 re	 Amanda	 N.,	

1998 ME 115,	¶ 1,	710	A.2d	264	(“We	conclude	that	the	mother’s	knowing	and	

voluntary	consent	to	the	termination	is	irrevocable	absent	a	showing	of	fraud,	

duress,	mistake,	or	incapacity .	.	.	.”).

[¶14]	 	All	 of	 the	 requirements	 for	 a	 valid	 consent	 were	 satisfied	 here.		

Before	allowing	the	mother	to	execute	a	written	consent	form	in	open	court,	the	

presiding	 judge was	 advised	 by	 the	 mother	 that	 she	 wished	 to	 consent	 to	

termination.		The	court	then	inquired	of	the	mother	personally	as	to	whether	

she	had	been	given	enough	time	to	consider	her	decision	and	whether	she	was	

consenting	voluntarily	“because	you	think	it’s	the	best	thing	to	do.”		The	court	

next	ensured	 that	 the	mother	understood	her	 right	 to	have	a	hearing	 on	 the	

Department’s	petition;	that	at	the	hearing	the	court	would	make	the	decision	as	

to	whether	the	Department had	proved	by	clear	and	convincing	evidence that	

her	parental	rights	should	be	 terminated;	 that	 the	mother’s	decision	was	not	

the	result	of	any	promises	concerning	her	future	contact	with	the	child;	and	that	

the	result	of	her	consent	would	be	the	loss	of	all	legal	rights	concerning the	child	

except	for	the	child’s	right	to	inherit,	see	22 M.R.S.	§	4056(1) (2018),	including	

the	right	to	know	anything	about	the	child	following	termination.		The	mother	
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answered	all	of	those	questions	in	a	way	that	demonstrated	her	knowing	and	

voluntary	consent	to	termination.

[¶15]		At	the	conclusion	of	its	colloquy	with	the mother,	the	court	asked	

once	again	whether	she	had	had	enough	time	to	make	her	decision	and	asked	

whether	she	had	“any	other	questions	.	.	.		or	concerns”;	the	mother	said	that	

she	did	not	have	any	questions	or	concerns	and	reiterated	that	she	was	acting	

voluntarily.		The	court	then	asked	the	mother’s	attorney	whether	in	her	opinion

the	mother	was	acting	voluntarily;	counsel	agreed	that	she	was	and	stated	that	

the	 mother had	 been	 “fully	 informed”	 of	 the	 consequences	 of	 her	 decision.		

Only then	did	 the	court	allow	 the	mother	 to	sign	a	written	consent	 form	and	

order	that	her	parental	rights	be	terminated.		The	court’s	careful	actions	fully	

complied	with the	requirements	for	accepting	a	knowing	and	voluntary	consent	

that	we	articulated	in	In re H.C.,	2013	ME	97,	¶ 13,	82	A.3d	80.

[¶16]	 	Of	 the	 reasons	 that	 may	 justify	 setting	 aside	 a valid consent	 to	

termination, the	mother	advances two,	asserting	that	she	was	“pressured”	by	

her	attorney	and	thus	acted	under	duress and	that	counsel	failed	to	“assess	and	

investigate”	her	mental	health	and	intellectual	capacity.	 See	id. (stating	that	a	

voluntary	and	knowing	consent	may	be	set	aside	for	“fraud,	duress,	mistake,	or	

incapacity”).		Neither	argument	is	persuasive.
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[¶17]	 Nothing	 about	 the	 cordial,	 respectful,	 and	 unrushed consent	

hearing	suggests	that	the	mother	was	coerced	or otherwise	compelled	to	act	by	

anything	 other	 than	 the	 circumstances	 in	 which	 she	 found	 herself—

circumstances	that	were	the	result	of	her	own	actions	and	behavior.		Cf. City	of	

Portland	 v.	 Gemini	 Concerts,	 Inc.,	 481	 A.2d	 180,	 183	 (Me.	 1984)	 (discussing	

“wrongful	 acts	 or	 threats	 which	 subvert	 the	 will”	 as	 forms	 of	 duress);	 see	

generally	 Duress,	 Black’s	 Law	 Dictionary	 (10th	 ed.	 2014).	 	 At	 the	 new	 trial	

hearing,	the	attorney	who	had	represented	the	mother	at	the	consent	hearing	

testified	that	there	were	ongoing	child	protection	proceedings	concerning	both	

of	the	mother’s	other	children;	that	she	had	advised	the	mother	she	would	likely	

lose	a	contested	termination	hearing	that	day	given	the	anticipated	evidence	of	

her	poor	reunification	efforts;	and	 that	an	involuntary	 termination	judgment	

following	 a	 contested	 hearing	 would	 be	 harmful	 to	 her	 cause	 in	 subsequent	

child	 protection	 proceedings	 concerning	 the	 other	 children.	 	 The	 court	

ultimately	found	that	“[the	mother]	was	clearly	in	a	difficult	position	between	

the	Scylla	and	Charybdis,	a	situation	in	which	the	choices	were	all	repugnant	to	

her.		She	made	a voluntary	choice,	and	although	she	may	regret	it,	there	is	no	

basis	to	set	it	aside.”
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[¶18]		Nor	was there	any	suggestion	from	any	party	or	the	court,	after	its

extended	 colloquy	 with	 the	 mother at	 the	 consent	 hearing,	 that	 the	 mother	

lacked	 the	capacity to understand	 or	appreciate	what	was	 occurring.		To	 the	

contrary,	when	the	court	asked	the	mother at	the	new	trial	hearing,	“Just	to	be	

clear,	on	the	day	of	the	consents	. . .	you	knew	what	you	were	signing,	that	there	

were	 consents	 to	 terminate	 your	 parental	 rights?”	 the	 mother	 answered,	

“Yes . . .	 yeah.”5 On	 this	 record,	 the	 court’s	 finding	 that	 “[the	 mother]	 fully	

understood	what	she	was	doing”	is	not	clearly erroneous.		See	Ma,	2010 ME	55,	

¶	4,	997	A.2d	755.

2. Ineffective	Assistance

(a)		The	Mother’s	Right	to	Effective	Counsel

[¶19]	 	Before	 reaching	 the	 merits	 of	 the	 mother’s	 contention	 that	 she	

received	 ineffective	 assistance	 of	 counsel	 at	 the	 consent	 hearing,	 we	 first	

address	a	preliminary	question—whether	 the	mother	had	a	right	 to	effective	

assistance	in	a	proceeding	where	there	was	no	trial	because	she	consented	to	a	

termination	 of	 her	 parental	 rights.	 	 The	mother	 asserts that	 she	 did	 and	 the	

Department	agrees.

 5		The	mother	signed	two	consents	to	termination	at	the	consent	hearing,	the	one	at	issue	in	this	

appeal and	a	conditional	consent	concerning	another	child;	that	consent	was	later	vacated	when	the	

condition	precedent	was	not	fulfilled.
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[¶20]	 	 We	 also	 agree	 that	 the	 mother	 had	 a	 right	 to	 the	 effective	

assistance	 of	 counsel	 in	 making	 the	 decision	 to	 voluntarily	 consent	 to	

termination,	as	would	unquestionably	have	been	 the	case	had	 she	elected	 to	

proceed	to	a	contested	hearing.		See In	re	Child	of Nicholas	G.,	2019	ME	13,	¶	16,	

200	 A.3d	 783	 (“An	indigent	 parent	 has	 a	 due	 process	 right .	 .	 . to	 appointed	

counsel	 in	 a	 child	 protection	 proceeding.”);	 In	 re	 M.P.,	 2015	 ME	 138,	 ¶	 38,	

126 A.3d	718	(setting	out	the	process	by	which	a	parent	may	assert	a	claim	of	

ineffective	 assistance	 of	 counsel	 in	 an	 appeal	 from	 a	 judgment	 terminating	

parental	rights).		The	same	“fundamental	liberty	interest”—the	mother’s	right	

“to	make	 decisions	 concerning	 the	 care,	 custody,	 and	 control	 of	 her	 child[],”	

In re	Children	of	Bethmarie	R.,	2018	ME	96,	¶	23,	189 A.3d	252	(alteration	and	

quotation	marks	omitted)—was	at	stake	at	the	time	she	was	required	to	decide,	

with	the	advice	of	counsel,	what	course	of	action	to	take.		Effective	counsel	was	

no	less	necessary	simply	because	 the	mother	decided	 to	consent	rather	 than	

put	the	Department	to	its	proof.

[¶21]		Furthermore,	the	Legislature	has	provided	that	“[p]arents	.	.	.	are	

entitled	to	legal	counsel	in	child	protection	proceedings,”	22 M.R.S.	§	4005(2)

(2018),	and	we	held	in	another	context	involving	the	potential	deprivation	of	

liberty	that	“where	a	state	statute	affords	an	individual	.	.	. the	right	to	counsel,	
13

the	 legislature	 could	 not	 have	 intended	 that	 counsel	 could	 be	 prejudicially	

ineffective.”		In	re	Henry B.,	2017 ME	72,	¶	6,	159	A.3d	824	(quotation	marks	

omitted).		The	same	rationale	applies	in	this	case.

(b)		Effectiveness	of	Counsel	at	the	Consent	Hearing

[¶22]		We	now	turn to the	mother’s	contention that	she	must be	allowed	

to	withdraw	her	consent	because	her	counsel	was	constitutionally	ineffective	

at	the	consent	hearing.		The	court	emphatically	found	to	the	contrary following	

the	evidentiary	new	trial	hearing:	“Here,	not	only	was	[counsel’s]	performance	

not	 deficient,	 the	 advice	 she	 provided	 to	 her	 client and	 the	 time	 she	 took	 to	

explain	 the	 different	 courses	 of	 action	 and	 their	 consequences	 was	 very	

appropriate,	 exceeding	 that	 which	 might	 be	 seen	 with	 the	 ordinary	 fallible	

attorney.”

[¶23]		We	recently	restated the	mother’s	burden on	appeal:

A	parent	alleging	ineffective	assistance	of	counsel	in	a	child	

protection	 case	 has	 the	 burden	 to	 show	 that	 (1)	 counsel’s	

performance	 was	 deficient,	 i.e.,	 that	 there	 has	 been	 serious	

incompetency,	inefficiency,	or	inattention	of	counsel	amounting	to	

performance below	 what	 might	 be	 expected	 from	 an	 ordinary	

fallible	attorney;	and	(2)	the	deficient	performance	prejudiced	the	

parent’s	 interests	 at	 stake	 in	 the	 termination	 proceeding	 to	 the	

extent	that	the	trial	cannot	be	relied	on	as	having	produced	a	just	

result.	 When	 considering	 the	 issue	 of	 prejudice,	 the	 court	 must	

determine	 if	 there	 is	 a	 reasonable	 probability	 that	 the	

ineffectiveness	resulted	in	a	different	outcome—meaning,	whether	

ineffective	assistance	of	counsel	rose	to	the	level	of	compromising	
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the	 reliability	 of	 the	judgment	 and	 undermining	 confidence	in	it.

Because	 the	 [mother] had	 the	 burden	 of	 proof	 at	 the	 motion	

hearing	to	prove	ineffectiveness,	[she] must	demonstrate	here	that	

the	evidence	compelled	a	contrary	outcome.

In	 re	 Children	 of	 Jeremy	 A.,	 2018	 ME	 82,	 ¶	 21,	 187	 A.3d	 602	 (alterations,	

citations,	and	quotation	marks	omitted);	see	In	re	Alexandria	C.,	2016	ME	182,	

¶¶	18-19,	152	A.3d	617.

[¶24]		The	trial	court	did	not	err	by	concluding that	the	mother	failed	to	

meet	her	burden	to	show	that	her	counsel	at	the	consent	hearing	was	deficient;

therefore, we	need	not	reach	the	prejudice	prong	of	the	ineffective	assistance	

analysis.		The	mother’s	former	counsel	testified	at	the	new	trial	hearing	that	she	

began	her	“[a]miable	.	.	.	very	friendly”	representation	of	the	mother	in	2016.		

The	mother	gave counsel	no	reason	to	be	concerned	about	her	competency	and	

gave	 every	 indication	 that	 she	 understood	 the	 issues	 involved	 and	 her	

attorney’s	advice.		She stayed	in	contact	with	counsel	and	provided	all	of	 the	

information	that	counsel	requested.		Counsel	never	saw	the	mother	impaired	

and	said that	the	mother	spoke	using a	normal vocabulary.

[¶25]	 	 In	 “multiple	 conversations”	 over	 several	 months,	 the	 mother

consistently	said	that	she	wanted	to	contest	termination	at	a	hearing.		On	the	

day	 of	 the	 hearing,	 the	 mother	 instead	 decided	 to	 consent	 after	 receiving

counsel’s	detailed	advice	concerning	the	state	of	the	evidence,	the	likelihood	of	
15

success, and	 the	 potential	 effect of	 an	 involuntary	 termination	 judgment	 on	

pending	child	protection	cases	involving	her	other	children.		See supra	¶ 20.

[¶26]	 	 The	 mother	 testified	 that	 preceding	 her	 consent	 she	 had	 a

discussion	with	her	attorney	that	lasted	about	forty-five	minutes,	during	which	

counsel	explained	her	options to	her.		She	said	that	she	wrote	to	the	court	a	few	

days	 later	 asking	 to	 withdraw	 her	 consent	 after	 talking	 to	 a	 friend	 who	

recommended	 that	 she	do	 so.		She	 told	 the	court	 that	 she	 felt	that she	had	a	

choice	at	the	consent	hearing,	albeit	one	that	she	felt	“pressured”	to	make.

[¶27]	 	 Relevant	 to	 the	 mother’s	 contention	 in	 the	 trial	 court,	 and	 on	

appeal,	 that	 she	 was	 prejudiced	 by	 her	 former	 attorney’s failure	 to	 have	

available	two	witnesses	whom she	had	identified,	when	her	attorney asked	her

at	 the	 new	 trial	 hearing,	 “Did	 that	 have	 any	 impact	 on	 your	 decision?”	 the	

mother	 answered,	 “No.”	 	 Therefore,	 even	 if	 we	 were	 to	 reach	 the	 issue	 of	

prejudice,	the	evidence	did	not	compel	the	court	to	conclude	that	the	mother	

established	this	element	of	an	ineffective	assistance	claim.

[¶28]		It	is	well	established	that	“the	court,	as	fact-finder	and	sole	arbiter	

of	witness	 credibility,	was	 free	 to	 selectively	 accept	 or	 reject”	 the	 testimony	

offered by	the	mother	and	her	former	attorney.		Amero	v.	Amero,	2016 ME	150,	

¶	13,	149	A.3d	535	(quotation	marks	omitted).		On	this	record,	the	court	did	not	
16

clearly	err	in	finding	that	the	mother	voluntarily	consented	to	a	termination	of	

her	parental	rights	after	her	attorney	provided	advice	“exceeding	 that	which	

might	 be	 seen	 with	 the	 ordinary	 fallible	 attorney.”	 See	 In re Alexandria C.,	

2016 ME	182,	¶	19,	152	A.3d	617	(“We	review	the	factual	findings	underlying	

ineffectiveness	claims	for	clear	error.”).

B. The Rule	60(b)	Motion

[¶29]	 	 The	 mother’s	 motion	 for	 relief	 from	 the	 termination judgment,	

filed	 pursuant	 to	 M.R.	 Civ.	 P.	 60(b)(6)	 in	 accordance	 with	 our	 guidance	 in	

In re M.P.,	 2015	 ME	 138,	 ¶	 20,	 126	 A.3d	 718,	 similarly	 asserted	 ineffective	

assistance	of	counsel	based	on	(1)	her	former	attorney’s	failure	to	produce	two	

specified	witnesses	at	the	consent	hearing,	and	(2)	her involuntary	consent.		As	

required	by	In	re	M.P.,	the	motion	was	supported	by	affidavits,	one	executed	by	

the	mother	and	the	other	by	her	new	counsel.		2015 ME	138,	¶ 21,	126	A.3d 718.		

Counsel’s	affidavit	 stated	 that	he	had	contacted	 the	 two	witnesses	by	phone,	

that	 the	 witnesses	 gave	 at	 best	 vague	 information,	 and	 that	 neither	witness	

would	voluntarily participate	in	any	court	proceeding	or	sign	an	affidavit.

[¶30]		The	court	declined	to	hold	a	new	evidentiary	hearing	and	denied	

the	motion	by	written	order,	noting	that	it	had	already	found	in	its	decision	on	

the	Rule	59	motion	that	former	counsel’s	performance	was	not	deficient,	and	
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finding	 that	 “[the	 mother’s]	 current	 Motion	 for	 Relief	 from	 Judgment	 and	

incorporated	affidavits	do	not	add	any	facts	that	lead	this	court	to	a	different	

legal	conclusion	pursuant	 to	 the	Strickland doctrine.”		The	court	 took	special	

note	 of	 the	 mother’s	 testimony	 at	 the	 new	 trial	 hearing	 “that	 the	 lack	 of	

witnesses	being	present	at	the	[consent	hearing]	did	not	impact	her	decision in	

consenting	to	the	termination	of	her	parental	rights.”

[¶31]		We	discern	no	abuse	of	discretion	in	the	court’s	determination	that	

“[u]nder	 these	 circumstances,	 there	is	 no	 need	 to	 hold	 a	 second	 evidentiary	

hearing,”	 or	 in	 its	 decision	 to	 deny	 the	 Rule	 60(b)(6)	 motion	 for	 relief.	 	 See	

In re Children	of	Jeremy	A.,	2018	ME	82,	¶	21,	187	A.3d	602	(“[W]e	review	for	an	

abuse	 of	 discretion	 the	 trial	 court’s	 ultimate	 denial	 of	 a	Rule	 60(b)	motion.”	

(quotation	marks	omitted)).		We	have	said	that	

when	a	parent	promptly	moves	for	relief	from	judgment	pursuant	

to	M.R.	Civ.	P.	60(b)(6)	based	on	ineffective	assistance	of	counsel,	it	

is	 for	 the	 trial	 court	 to	 determine	 what	 process	 is	 necessary	 to	

meaningfully	 assess	 a	 parent’s	 claim	 while	 balancing	 the	 State’s	

important	interest	in	expeditiously	establishing	permanent	plans	

for	children.	 Such	a	determination	will	necessarily	call	upon	a	trial	

court	 to	 tailor	 the	process	 to	 the	 facts	and	circumstances	of	each	

case.

		

In	re	M.P.,	2015 ME	138,	¶	36,	126	A.3d	718 (citation	omitted).		In	making	that	

assessment,	“a	court	is	not	required	to	hold	an	evidentiary hearing,	even	when	
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a	party	asserts	that	such	a	hearing	is	necessary,	to	receive	evidence	in	support	

of	a	Rule	60(b)	motion.”		In	re	David	H.,	2009	ME	131,	¶	34,	985	A.2d	490.

[¶32]		Here,	the	court	had	already	heard	the	testimony	of	the	mother	and	

her	former	attorney	at	the prior	evidentiary	hearing	concerning	the	mother’s	

claim	that	her	consent	was	involuntary,	and	had	heard	the	mother	testify	that	

the	absence	of	the	two	witnesses	she	identified	in	her	Rule	60(b)(6)	motion	had	

no	effect on	her	decision	 to	consent	 to	termination.		Nothing	in	 the	affidavits	

filed	with	the	Rule	60(b)(6)	motion	had	any	material	effect on	the	evidence	the	

court	 had	 previously	 received.	 See	 In re	 Alexandria	 C.,	 2016	 ME	 182,	 ¶	 16,	

152 A.3d	 617	 (“When	 a	 parent	 pursues	 a	 claim	 of	 ineffective	 assistance	 by	

means	of	a	Rule 60(b)(6)	motion,	the	parent’s	affidavit	and	any	accompanying	

affidavits	 must	 . . .	 demonstrate	 that	 there	 was	 admissible,	 material,	 and	

noncumulative	evidence	that	counsel	was	aware	of	and	did	not	offer	to	the	trial	

court,	or	that	the	parent’s	counsel	was	deficient	for	some	other	very	substantial	

reason.”).		For	that	reason,	“[t]he	court	did	not	err	in	considering	and	deciding	

the	[mother’s] Rule	60(b)	motion[]	.	.	.	based	on	affidavits	presenting	[her] best	

case.”		In	re	David	H.,	2009 ME	131,	¶	34,	985 A.2d	490.

The	entry	is:

Judgment affirmed.
19

Julian	Richter,	Esq. (orally),	Richter	Law,	LLC,	Gardiner,	for	appellant	mother

Aaron	M.	Frey,	Attorney	General,	Meghan	Szylvian,	Asst.	Atty.	Gen.,	and	Hunter	

C.	Umphrey,	Asst.	Atty.	Gen. (orally),	Office	of	the	Attorney	General,	Augusta,	for	

appellee	Department	of	Health	and Human	Services

Waterville	District	Court	docket	number	PC-2016-20	

FOR	CLERK	REFERENCE	ONLY