MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	32

Docket: Aro-19-427

Submitted

On	Briefs: February	26,	2020

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,	see	

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	 motions 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	

rights.	 	 Assuming	 without	 deciding	 that	 an	 appeal	 from	 post-judgment	

motions	 that	 do	 not	 involve	 claims	 of	 ineffective	 assistance	 of	 counsel	 is	
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permitted	 by	 22	 M.R.S.	 §	 4006	 (2018),

1 and	 that	 the	 same	 section	 permits	

post-judgment	 motion appeals not	 attached	 to	 orders	 terminating parental	

rights, see	 generally In	 re	 Kaylianna	 C.,	 2017	 ME	 135,	 166	 A.3d	 976,	 we	

disagree	that	the	court	abused	its	discretion	in	denying	the	mother’s	motions	

for	a	new	trial	and	for	relief	from	judgment. We	therefore	affirm	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	 averred,	 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	 custodians	 are	 entitled	 to	 legal	 counsel	 in	 child	 protection	

proceedings”).		The	mother	raises	no	such	argument	here.
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[¶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	to	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	witnesses,	
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including	the	mother,	the	court	entered	a	judgment	terminating	the	mother’s	

parental	rights on	September	4,	2019.

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[¶6]	 The	 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	substance	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	with	regard	to	him.		
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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	some	care,	but	left	 the	program	against	medical	

advice.		

[¶7]		The	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	 take	
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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).		

[¶8]	 	The	court	made	 the	 following	additional	 findings	with	 respect	 to	

the	best	interest	determination:

The	 children	 have	 been	 living	 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	 transition	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	mother	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).		

[¶10]		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	motions 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	

children.	 	 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	 motions,	 arguing	 that	 this	 last	

visit	 was	 nothing	 more	 than	 a	 “closure	 visit,”	 commonly	 scheduled	 in	
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appropriate	 cases,	 and	 that	 the	 visit	 was	 planned	 with	 the	 children’s	 best	

interests	 in	 mind	 after	 consultation	 with	 their	 therapists	 and	 case	 manager.		

The	 court	 denied	 the	 mother’s	 post-judgment motions,	 concluding	 that	 the	

mere	 scheduling	 of	 a	 post-termination	 visit	 by	 the Department did	 not	

warrant a	new	trial	or	relief	from	the	judgment.		

[¶11]	 	 The	 mother	 filed	 a	 timely	 notice	 of	 appeal.	 	 See	 M.R.	 App.	 P.	

2B(c)(2).		

II.		DISCUSSION

[¶12]		The	mother’s	sole	contention	on	appeal	is	 that	 the	court	abused	

its	discretion	in	denying	her	post-judgment	motions.		She	contends	that,	in	the	

days	following	entry	of	the	judgment	terminating	her	parental	rights,	she	was	

contacted	 by	 the	 Department to	 schedule	 visits	 between	 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	

newly	 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.”		
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[¶13]		“We	review	the	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	 to	 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.	1996).

[¶14]	 In	 its	 order	 denying	 the	 mother’s	 post-judgment	 motions,	 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	be	
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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	 facts	 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	reaching	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.	

[¶15]		Based	on	the	court’s	factual	findings,	which	were	fully	supported	

by	 competent	 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	throughout	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.		
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[¶16]	 	 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	

mother

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

FOR	CLERK	REFERENCE	ONLY