MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 32 Docket: Aro

- 19

- 427 Submitted

On	B riefs : February	2 6 ,	20 20 Decided: March	12,	2020 Panel: MEAD, GORMAN,	JABAR , HUMPHREY , HORTON,	and	CONNORS, JJ.
IN	RE	CHILDREN	OF	JESSICA	J.

PER	CURIAM [¶1] The	mother of	 two	children appeals	 from an	order of	 the District Court	( Presque	 Isle , Nelson ,	J. ) denying	her	post

- judgment	motions	 for	a	new trial	 and	 for	 relief	 from	judgment,	M.R.	 Civ.	 P.	 59(a),	 60(b)(6),	 following	 the court’s	entry	of	a	judgment terminating	her	parental	rights	to	her	children , s ee 22	M.R.S.	 § 4055(1)(B)(2)(a),	 (b)(i),	 (ii)	 (2018)

. The	mother	 argues that	 the court	 abused	 its	 discretion	 in	 denying	 her	 post

- trial	 motion s because	 the Department of	Health	and	Human	Services had scheduled a	visit	between	her and	 the	 children	 after	 the	 court	 entered	 its	 order	 terminating	 her	 parental righ ts. Assuming without	 deciding that	 an	 appeal	 from	 post

- judgment motions	 that	 do	 not	 involve claims	 of ineffective	 assistance	 of	 counsel	 is2 permitted	 by 22	 M.R.S.	 §	 4006	 (2018) , 1 and	 that	 the	 same	 section	 permits post
- judgment	 motion appeals not	 attached	 to orders terminati ng parental rights, see	 generally In	 re	 Kaylianna	 C. ,	 2017	 ME	 135,	 166	 A.3d	 976 ,	 w e disagree	that	the	court	abused	its	discretion	in	denying	the	mother’s	motions for	a	new	trial	and	for	relief	from	judgment

. We	therefore	af firm	the	judgment.
I.		BACKGROUND [¶ 2 ] In	 December	 2017,	 the	 Department	 filed	 a	 petition	 for	 a	 child protection	 order	 and	 preliminary	 protection	 order	 for	 the	 children,	 who	 at that	 time	 were	 one	 and	 four	 years	 old.	 	 The	 petition	 alleged,	 and	 the accompanying	 affidavit	 from	 the	 Department	 averre d,	 that	 the	 mother	 was abusing	drugs,	specifically	methamphetamine,	and	that	the	children	had	been exposed	to	domestic	violence. [¶ 3 ]	 	 The	 court	 ( O’Mara,	 J. )	 entered	 an	 order	 of	 preliminary	 child protection	 and	 the	 children	 were	 placed	 in	 the	 Department’ s	 custody.	 	 The mother	waived	her	 opportunity	 for	 a	 summary	preliminary	 hearing,	 and	 the court	entered	an	order	maintaining	the	Department’s	custody	of	each	child.

1 We	considered	the	merits	of	an	appeal	 from a trial	court’s	denial	of a post
- judgment	motion under	M.R.	Civ.	P.	60(b)(6) after	entry	of	an	order	terminating	parental	rights	in In	re M.P. ,	2015	ME 138, ¶	1, 126	A.3d	718

. In	that	case,	the	mother’s	motion	for	relief	from	judgment	alleged	that	her trial	 counsel	 had	 been	 constitutionally	ineffective. Id. ¶ 17 ; see	 also 22	M.R.S.	 §	 4005(2)	 (2018) (providing	 that	 “[p]arents	 and	 custodian s	 are	 entitled	 to	 legal	 counsel	 in	 child	 protection proceedings”).		The	mother	raises	no	such	argument	here.3 [¶ 4 ]	 	 In	 April	 2018,	 upon	 agreement	 of	 the	 parties	 after an	 informal mediation, the	court ( Soucy,	J. )	entered	a	jeopardy	order	against	the	parents	as to	both	children .		The	jeopardy	finding	as	to	the	mother	was	based	on	neglect and	 emotional	 maltreatment	 resulting	 from	 the	 mother’s	 persistent	 drug abuse.		 The	court	 ordered	 the	mother	 to ,	among other	 things, attend	mental health	 and	 substance	 abuse	 assessments	 and	 follow	 recommendations	 for treatment,	 consistently	 attend	 visitation	 with	 the	 children,	 participate	 in random	 drug	 screening, attend	 all	 family	 team	 meetings	 as	 scheduled,	 and
maintain contact	 with her caseworker.	 	 The	 permanency	 plan	 was	 for reunification of	 the	 children with	 the	 parents.	 	 Although	 the	 children remained	 in	 the	 Department’s	 custody,	 they	 were	 placed	 in a	 kinship placement

. [¶ 5 ]		In	May	2019,	the	Department	petitioned	t o	terminate	the	mother’s parental	 rights	 to	 both	 children	 based	 on	 her	 lack	 of	 progress	 toward	 the rehabilitation	and	reunification	goals.		The	court	( Nelson,	J. )	held	a	hearing	on the	petition	in	August	2019.		After	hearing	testimony	from	several	witnesse s,4 including	the	mother,	the	court	entered	a	judgment	terminating	the	mother’s parental	rights on	September	4,	2019

. 2 [¶ 6 ] T he	 court	 made	 the	 following factual findings ,	 all	 of	 which are supported	 by	 competent	 evidence	 in	 the	 record. See In	 re	 Child	 of Erica	 H. , 2019	ME	66,	¶	3,	207	A.3d	1197

. Mother	 has	 a	 long	 history	 of	 substance	 abuse	 that	 started when	 she	 was	 age	 13.	 	 She	 was	 herself	 involved	 in	 the	 child protective	 system	 after	 having	 been	 exposed	 to	 substance	 abuse as	 a	 teenager	 in	 the	 care	 of	 her [sibling] .	 	 Her	 substance	 abuse struggles	continued	 to	plague	her	up	 through	 the	weeks	prior	 to the	 hearing	 on	 the	 Department’s	 petition	 to	 terminate	 the parental	rights	of	both	parents.

.	.	.	. Early	 on	in	 the	 case	when	 discussing	 the	 recommendation to	go	to	inpatient	rehab,	she	indicated	that	she	would	go	if	DHHS wanted	 her	 to ,	 with	 no	 appreciation	 for	 the	 impact	 that	 her substance	abuse	issues	were	having	on	her	and	the	children. In	 the	 fall	 of	 2018,	 mother	 was	 serving	 a	 6

- month	 jail sentence	 for drug	 possession. Mother	 acknowledged	 that	 upon her	 release	 from	 incarceration,	 she	 was	 living	 in	 “drug	 homes” that	 were	 a	 challenge	 to	 her	 sobriety.	 	 In	 February	 of	 2019, mother	 did	 find	 employment	 for	 a	 period	 of	 time,	 but	 did	 not engage	in	any	substanc e	abuse	treatment	through	the	end	of	April, 2019.	 	 At	 the	 end	 of	 April,	 mother	 referred	 herself	 to	 another substance	 abuse	 counselor

.	 .	 . .	 Mother	 failed	 to	 substantially

2 The	 judgment	 also	 terminated	 the	 father’s	 parental	 rights,	 but	 he	 did	 not	 appeal	 from	 the judgment,	so	we	do	not	address	the	court’s	decision	wi th	regard	to	him.5 engage	 in	 that	 treatment	 and	 was	 not	 consistent	 with	 her appointments. Mother	 has been	 provided	 referrals	 for	 a	 mental	 health assessment	 to	 determine	 the	 appropriate	 course	 of	 treatment. Mother	 failed	 to	 attend	 any	 of	 those	 intake	 appointments. Through	 August	 14,	 2019,	 she	 has	 failed	 to	 participate	 in	 any mental	 health	 services	 other than	 a	 short	 stay	 at [a	 hospital] , despite	 this	 clearly	 being	 identified	 as	 a	 significant	 need	 for	 her from	the	outset	of	this	case. After	 being	 served	 with	 the	 termination	 of	 parental	 rights petition,	mother	indicated	a	 desire	 to	continue	in	 services. Days later,	she	went	on	a	bender	and	used	methamphetamine.		Mother indicated	 that	 was	 the	 only	 way	 for	 her	 to	 cope.	 	 An	 incident related	to	her [ older	child ’s ] birthday	combined	with	the	petition, set	her	off. Mother	 was	 actively	 using	 methamphetamine	 and struggling	 with	 caring	 for	 herself	 when	 she	 presented	 to	 the emergency	room .	.	. with	suicidal	ideation	in	the	latter	part	of	July, 2019.		From [the	medical	center] ,	she	was	referred	to [a	hospital] in	 Bangor for	 what	 she	 described	 as	 detox	 and	 mental	 health treatment.	 	 When	 mother	 did	 go	 to [the	 hospital] ,	 she	 informed the	Department	 that	 she	wanted	 to	go	 to [that	hospital] because father	 was	 there	 and	 he	 convinced	 mother	 to	 move	 to	 Bangor. Mother	received	so me	care,	but	left	 the	program	against	medical advice. [¶ 7 ] T he	court determined that the	Department	had	met	its	burden	of establishing	by clear	and	convincing	evidence	that	the mother is	unwilling	or unable	to	protect	the	children	from	jeopardy	and	that	these	circumstances	are unlikely	 to	 change	within	 a	 time	which	is	 reasonably	 calculated	 to	meet	 the children’s	 needs,	 and	 that	 the	 mother	 is	 unwilling	 or	 unable	 to	 take6 responsibility	fo r	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)

. [¶ 8 ] T he	court made	 the	 following	additional	 findings	with	 respect	 to the	best	interest	determination: The	 children	 have	 been	 li ving	 with [their relatives ] since early	 on	 in	 this	 case.	 	 The	 children	 are	 thriving	 in	 their	 home. Both	children	are	close	with	one	another	and	it	is	crucial	that	they remain	together.		They	are	with	loving	family	members	which	has helped	 to	ease	 their	 tr ansition	into	care.		Mother’s	inconsistency with	 the	 visits	 has	 caused	 confusion	 for	 the	 children	 and	 an increase	in	behaviors.		This	increase	in	behaviors	has	been	caused by	 that	 inconsistency	 rather	 than	 by	 lack	 of	 contact	 with	 her	 by the	children,	as	mo ther	contends. [¶ 9 ] The	 court	 then	 determined	 that	 termination	 of	 the	 mother’s parental	rights	is	in	the	best	interests	of	the	children. Id. §	4055(1)(B)(2)(a)

. [¶1 0 ]		Thereafter,	the	mother	filed motions for	a	new	trial	and	for	relief from	judgment. See M.R.	Civ.	P.	59(a),	60(b)(6).		The	mother’s	motion s alleged that	 the	 Department	 had	 contacted	 her	 following	 entry	 of	 the	 court’s judgment	 to	 arrange	 for	 a	 visit	 or	 visits

— it	 is	 not	 clear	 which

— with	 the ch ildren.	 	 This,	 she	 argued,	 undermined	 an	 essential	 basis	 for	 the	 order terminating	her	parental	 rights	and	entitled	her	 to a	new	 trial	 or relief	 from the	 judgment. The	 Department	 opposed	 the	 motion s ,	 arguing	 that	 this	 last visit	 was	 nothing	 more	 than	 a	 “c losure	 visit,”	 commonly	 scheduled	 in7 appropriate	 cases ,	 and	 that	 the	 visit	 was	 planned	 with	 the	 children’s	 best interests	 in	 mind	 after	 consultation	 with	 their	 therapists	 and	 case	 manager.
T he	 court	 denied	 the	 mother’s	 post

- judgment motion s ,	 concluding	 th at the mere	 scheduling	 of	 a	 post

- termination	 visit	 by	 the Department did	 not

warrant a	new	trial	or	relief from the judgment

. [¶1 1 ]	 	 The	 mother	 filed	 a	 timely	 notice	 of	 appeal. See M.R.	 App.	 P. 2B(c)(2).
II.		DISCUSSION [¶1 2 ] The	mother’s	sole contention	on	appeal	is	 that	 the	court	abused its	discretion	in	denying	her	post

- judgment	motion s . She	contends	that,	in	the days	following	entry	of	the	judgment	terminating	her	parental	rights,	she	was contacted	 by the	 Department to	 schedule	 visits	 betwe en	 herself	 and	 the children.		In	her	view,	this	constitutes	newly	discovered	evidence	sufficient	to undermine	 the	 court’s	 determination	 that	 termination	 of	 her	 parental	 rights was	 in	 the	 best	 interests	 of	 the	 children.	 	 The	 mother	 argues,	 based	 on	 this

new ly	 discovered	 evidence,	 that	 the	 termination	 of	 her	 parental	 rights	 was “premature,”	and	that	the	Department	“should	have	continued	the	case,	giving the	mother	 the	benefit	 of	 reunification	 services	while	 the	 visits	were	carried out.”8 [¶1 3 ]		“We	review	t he	denial	of	a	motion	for	a	new	trial	deferentially	for a	clear	and	manifest	abuse	of	discretion.” In	re	Child	of Erica	H. ,	2019	ME	66, ¶ 15,	207	A.3d	1197 (quotation	marks	omitted)

. To	prevail	on	a	motion	for	a new	trial	under	Rule	59(a)	based	on	newly discovered	evidence,	the	burden	is on	the	moving party to	prove (a ) that	the	new	evidence	is	such	that	it	will	probably	change	the result	upon	a	 new	 trial,	 (b)	 that	it	has	been	discovered	 since	 the trial,	(c)	that	it	could	not	have	been	discovered	before	the	trial	by the	 exercise	 of	 due	 diligence,	 (d)	 that	 it	 is	 material	 t o	 the	 issue, and	(e)	that	it	is	not	merely	cumulative	or	impeaching.
Id. (alterations	omitted) (quotation	marks	omitted)

. Similarly,	we	review	the denial	of	a	motion for	relief	from	judgment under	Rule	60(b) (6) for	an	abuse discretion,	 and “ will	 set	 aside	 the trial court’s	 decision	 only	 if	 the	 failure	 to grant	 the	 relief	works	a	plain	and	unmistakable	injustice	against	 the	moving party.” Ezell	 v.	 Lawless ,	 2008	 ME	 139,	 ¶	 19,	 955	 A.2d	 202 ; see	 also In	 re Danielle	B. ,	685	A.2d	770,	771	(Me.	199 6)

. [¶1 4 ] In	 its	 order	 denying	 the	 mother’s	 post

- judgment	 motion s ,	 the court	 observed	 that	 issues	 concerning	 the	 mother’s	 visitation	 with	 the children	were	 fully	litigated. After	considering	all of the	evidence	presented, the	court	had	determined	that	it	was	in	the	children’s	best	interests	not	to	be9 subjected	to	the	mother’s	inconsistency	with	respect	to	visitation. 3 The	court stated	 that	 this	was	not	a	case	 that	“involve[d]	 the	development	of	 fact s	 that make	the	best	interest	determination	of	the	court	a	very	close	call.”		The	court concluded	that	the	mother’s	“performance	during	reunification	was	so	dismal and	 her	 instability	 over	 such	 a	 long	 period	 of	 time	 so	 profound,	 even	 if	 the court	had	been presented	at	trial	with	the	Department’s	agent’s	opinion	that	a visit	 after	 a	 termination	 was	 in	 the	 children’s	 best	 interest,	 such	 evidence would	not	have	altered	the	outcome.” The	court,	having	previously	heard	and reviewed	all	of	the	evidence	in	reachi ng	its	decision	to	terminate	the	mother’s parental	 rights,	 was	 in	 the	 best	 position	 to	 assess	 whether	 this purported newly	discovered	evidence	would	have	changed	the	result. [¶1 5 ] Based	on	the	court’s	factual	findings,	which	were fully supported by	 com petent	 evidence	 in	 the	 record,	 we	 have	 no	 trouble	 determining	 that termination	of	 the	mother’s	parental	rights	was	not	“premature,”	as	she	now argues	 on	 appeal

. The	 record	 is	 clear	 that	 she	 was	 given	 the	 benefit	 of reunification	services	and	visitation	th roughout	this	case,	and	she	was	unable to	do	what	was	required	of	her.

3 The	court found ,	based	on	 the	evidence	presented, that the	issue	seemed	 to	be	 the	mother’s inconsistency	with	visitation,	not	necessarily	the	visits	themselves.10 [¶1 6 ]	 	 We	 conclude	 that	 the	 court	 did	 not	 abuse	 its	 discretion	 in determining	 that	 the	 mother	 failed	 to	 sustain	 her	 burden	 on	 her post
- judgment	 motions	 for	 relief	 from	 judgment	 and	 for a	 new	 trial,	 or	 in denying	those	motions. See In	re	Child	of Erica	H. ,	2019	ME	66,	¶	15,	207	A.3d 1197; Ezell ,	2008	ME	139,	¶	19,	955	A.2d	202

. The	entry	is: Order	denying	mother’s	post

- judgment	motions affirmed

.

John	W.	 Tebbetts,	 Esq.,	 Tebbetts Law	 Office,	 LLC,	 Presque	 Isle,	 for	 appellant m other Aaron	M.	Frey,	Attorney	General , and	Meghan	Szylvian,	Asst.	Atty.	Gen.,	Office of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of	 Health	 and Human	Services

Presque	Isle	District	Court	docket number	PC

- 2017

- 31 F OR C LERK R EFERENCE O NLY