MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2020 ME 1 Docket: Yor

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- 251 Submitted

On	B riefs : November	21,	2019 Decided: January	2,	2020 Revised: April	14 ,	2020 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD ,	JABAR , and HUMPHREY , JJ. *

IN	RE	CHILDREN	OF	BRITTANY	B.

SAUFLEY,	C.J. [¶1] Brittany	 B

. appeals	 from orders entered	 in the	 District	 Court (Springvale, Mulhern,	J. ) finding,	by	a	preponderance	of	the	evidence,	that	two of	her children 1 were	in	jeopardy	to	their	health	or	welfare	in	the	mother’s	care. She	 argues ,	 on	 appeal, that	 her	 due	 process	 rights	 were	 violated because	 of ineffective	 assistance	 of	 counsel

. She	 also	 argues	 that	 the	 court	 abused	 its discretion	in	denying	her motion	in	limine and admitting in	evidence certain statements	made	by the	children to	Department of H ealth	and	Human S ervices caseworkers

. Concluding	that the	mother	has	not	presented a	p rima	facie	case

* Although	Justice	Hjelm	participated	in	the	appeal,	he	retired	before	this	opinion	was	certified.

1 Although	the	mother	has	several	children,	only	two	children	are	the	subject	of	this	appeal.2 of	attorney	ineffectiveness	and	that the record	supports	the	court’s evidentiary ruling , we affirm the	judgment.
I. BACKGROUND [¶ 2 ] The	following	facts	are	drawn	from	the	court’s	findings,	which	are supported	by	competent	record	evidence,	and	from	the	procedural	record. See In	re	Child	of	Radience	K. ,	2019	ME	73,	¶ 2,	208	A.3d	380

. [¶ 3 ] In late 2018,	after	the	two	children	had expr essed to a	caseworker that	 they	had	been	physically	abused	by	 their	 father, 2 the	Department	 filed	a petition	for a child	protection	order	for	the	two	children. At	the	time ,	however, the	Department did	not	 request	 that	 the	court	 remove	 the	children	 from the mother’s	custody. In early 2019,	t he	Department	dismissed	the	petition after the	mother	began	participating	in	treatment	services

. [¶ 4 ] On	March	8,	2019,	the	mother	left	the	children	in	her	home	with	two

men .		The	 two	men	had a	history	 of	 substance abuse

. 3 That	night,	while	 the mother	was	absent, an	officer responded	to	a	report	of	an	assault	occurring	at her	home. Individuals	had	allegedly	come	to	the	home	and	assaulted	one of the

2 The	court	found	jeopardy	as	to	the	father	on	June	24,	2019.		He	does	not	appeal	the	order.

3 Additionally,	an	officer	testified	that	police	had	observed drug paraphernalia inside	the	home. Similarly,	t he	olde r child	indicated	seeing	a large pipe.3

men watching the	 children. After	 the	 incident, D epartment	 casework ers interviewed t he	olde r child , who	explained	that	the	children	heard	noises	and were	afraid throughout	the	incident .		The next evening,	the	mother again	left her	 children	in	 the	 care	 of	 one	 of	 the	 two	men. Two days	later, the	mother visited	a	hospital

— accompanied	by	the	youngest	child

— seeking	treatment	for a	skin	infection. After	the	mother	became	verbally	assaultive	when	asked	if	she had	been	using	drugs,	a	physician	made	a	referral	to	the	Department. [¶ 5 ] The	Department again initiated	child	prote ction	proceedings	as	to the two children	on	March	12,	2019 , and	petitioned	for	a	preliminary	protection order .		The	court	( Moskowitz,	J. ) entered	a	preliminary	protection	order	that day , placing	 the	children	in temporary Department	custody. After	 the order had	 been	 entered ,	 the	 mother fled	 with the	 children	 to	 Massachusetts.	 	 On March	 18,	 2019, the	 children	 were	 located , and Department	 caseworkers traveled	to	a	hospital	in	Massachusetts	where	the	children	were	waiting	with	a Massachusetts s tate t rooper .		The	children	were taken to	a	foster	home	in	Maine that same day. [¶ 6 ] A t	a summary	preliminary	hearing on March	25,	2019 ,	the	mother exercised	her	right	to	contest	the	temporary	order .		Following	the	hearing,	the4
court ( Duddy,	J. ) found	that	the	child ren	were	in	immediate	risk	of	serious	harm in	the	custody	of	their	parents	and	continued	the	preliminary	protection	order. [¶ 7 ] On	June	3	and	June	4,	2019,	t he	court ( Mulhern,	J. ) held	a	contested jeopardy hearing

. On	the	first	day	of	the	hearing,	the	mother	filed	a	motion	in limine,	 seeking	 to	 exclude	 from	 evidence	 any statements by	 her	 children	 to Department	caseworkers	regarding	the	incident	on	March	8,	2019. The	court denied	the	motion. On	June 6, 2019,	the	cou rt found	jeopardy	to	the	children based	 on the risk	 of	 physical	 and	 emotional	 harm ,	 and	 exposure	 to	multiple unsafe	people	with	a	history	of	violence. The	court	based	its	determination	on the	following	findings	of	fact: Jeopardy	as	to	the	mother	consist s	of	a	risk	of	physical and emotional	harm	due	to	exposing	the	children	to	unsafe	individuals and	situations.		[The	mother]	has	left	the	children	with	caregivers who	she	knows	to	be	drug	users,	drug	dealers	and	have	histories	of domestic	violence.		In	mid

- March,	after	the	children	were	placed	in the	 Department’s	 temporary	 custody, [the	 mother]	 fled	 with	 the children	 in	 an	 attempt	 to	 keep	 them	 from	 the	 Department.	 	 She returned	to	Maine	only	upon	her	arrest	on	a	warrant.		[The	mother] has	been	getting	servic es	for	substance	abuse	and	trauma	issues	for over	 one	 year . . . but	 she	 continues	 to	make	 unsafe	 decisions	 for herself	 and	 her	 children.	 	 These	 jeopardy	 issues	 are	 due	 to	 a constellation	 of	 issues,	 including	 [the	 mother’s]	 trauma	 history, history	of substance	abuse	and	fragile	recovery,	health	issues	and the	effects	of	her	domestic	violence	history. [¶ 8 ] The	mother	appeals.
II. DISCUSSION5 [¶ 9 ] The	pleadings	before	us	present	two	issues.		The	mother argues	that (A) her trial	counsel’s	assistance was	ineffective	and	(B) the	court	abused	its discretion	in	 admitting	 statements	by	 the	children	 regarding	 the	incident	 on March	8,	2019. We	address	each	in	turn.
A. Ineffective	Assistance	of	Counsel [¶1 0 ] First,	 the	mother	raises	a	claim	 that	her	counsel	at	 the jeopardy proceeding	 was	 ineffective. It	 is	 well

- established that	 “a	 parent’s	 right	 to counsel	during	the	jeopardy	stage	of	child	protection	proceeding	includes	the right	to	the effective assistance of	counsel.” I d. ¶ 56. [¶1 1 ] Because	the	“need	for	a	swift	resolution	of	ineffectiveness	claims at	 the	 termination	 stage	 of	 child	 protection	 proceedings applies	 just	 as forcefully	at	the	jeopardy	stage	because	of	the	nature	of	the	parents’	interests th at	are	affected	by a jeopardy	order	and	the	ongoing	importance	of	achieving ultimate	 permanency	 for	 the	 child,”	 we	 have held that the	 procedural requirements	governing	claims	 of	ineffective	assistance	 of	counsel	 stemming from	 a	 termination	 hearing	 also	 govern	 claims	 of	 ineffective	 assistance	 of counsel	following	a	jeopardy	proceeding. I d. ¶ 59 (citation	omitted) (quotation marks	omi tted).6 [¶1 2 ] There	 are two	 procedural	 mechanisms	 through	 which	 a	 parent may	 raise	 a	 claim	 of	 ineffective	 assistance	 of	 counsel. In	 re	 C hildren	 of Matthew G. ,	2019	ME	106,	¶ 6,	211	A.3d	226 .		“First,	if	there	are	no new	facts that	the	parent	seeks	to	offer	in	support	of	the	claim,	the	parent	may	make	an ineffectiveness	claim	in	a	direct	appeal ”	from	the	jeopardy order. Id. “Second, if	 the	 basis	 for	 the	 parent’s	 ineffectiveness	 challenge	 is	 not	 clear	 from	 the
existi ng	record	and	would	require	a	court	 to	consider	extrinsic	evidence,	 the parent	 must	 promptly	 move	 for	 relief ” from the	 j udgment	 pursuant	 to	 M.R.
Civ. P.	60(b)(6). See	i d. “Regardless	of	how	the	parent	presents	the	claim,	the parent	must	execute	and	file an	affidavit	stating,	with	specificity,	the	basis	for the	claim.” I d. [¶1 3 ] Here, the	mother	asserts	her	ineffectiveness	claim	on	direct	appeal.
A lthough she has	submitted	a	signed	and	sworn	affidavit,	her	affidavit does	not provide any information	about the	basis	for	her	ineffectiveness	claim

. See In	re Aliyah	M. ,	2016	ME	106,	¶ 10,	144	A.3d	50

. T he	mother’s	affidavit	states	only, “I	believe	[ trial counsel’s]	representation	of	me	during	the	trial	was	inefficient and that this	effected the	outcome	of	the	trial. ” Because the affidavit provides no	specificity	whatsoever,	the foundation	for	a	claim	of	ineffective	assistance	of counsel is	absent , and we	must	deny	her	claim. I d. ¶ 9

.7 [¶1 4 ] Even	if	the	mother	had	presented	her ineffectiveness	claim	in	a n effective affidavit, 4 however, her argument

— as	far	as	we	can	discern	it

— would be	unsuccessful. I d. ¶ 11. In	her	brief,	t he	mother	asserts	that	her	counsel	failed to	 make	 a	 general	 request	 for	 discovery	 or	 file	 a	 motion	 to	 comp el	 when discovery had not been	promptly	provided. As	shown	in	the	record, however, trial	 counsel	 was	 provided	 discovery on	 May 30,	 2019, prior	 to	 the	 hearing

. Thus,	 that	 claim	 is	 unpersuasive. Moreover,	 a fter	 receiving	 discovery,	 t he mother’s counsel	prepared	a	motion	in	limine	seeking	to	exclude	the	children’s

statements regarding	the	incident	on	March	8,	2019 ,	in	great	part	based	on	the missing	 recordings of	interviews	conducted	 of	 the	children .		When	 the	court denied	 the	 motion, the	 mother’ s counsel	 addressed	 evidentiary	 concerns through	a	series	of	objections,	before renewing	efforts	regarding her motion	in limine. Ultimately,	the	record	demonstrates	assertive	and	effective	assistance of	counsel.

4 Wh en	a	parent	makes	a	claim	of	ineffective	counsel,	the	parent	bears	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

. . . belo w	 what	 might	 be	 expected	 from	 an ordinary	 fallible	attorney,”	and	demonstrate	 that	“(2)	the	parent	was	prejudiced	by	the	attorney’s deficient	 performance	 in	 that	 counsel’s	 conduct	 so	 undermined	 the	 proper	 functioning	 of	 the adversarial	process	that	the	tri al	cannot	be	relied	on	as	having	produced	a	just	result.” In	re	Child	of Kimberlee	C. ,	2018	ME	134,	¶ 6,	194	A.3d	925 (quotation	marks	omitted).8 B. Children’s	Out

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- Court	Statements [¶1 5 ] The	mother	 next	 argues	 that,	 because	 her	 counsel	 did	 not	 have access	 to	 audio	 recordings	 of	 the	 children’s	 interviews	 with	 Department caseworkers,	 her	 counsel	 could	 not	 properly	 prepare	 to	 cross

- examine
witnesses

. 5 She asserts	that , if the	court ha d granted	the	motion	in	limine	and excluded	the	children’s	statements	regarding	the	March	8,	2019,	incident,	there would	not	have	been	competent	evidence	in	the	record	to	support	a	finding	of jeopardy. “We	review	a	trial	court’s	evidentiary	rulings	for cl ear	error and an abuse	of	discretion.” In	re	Kayla	S. ,	20 0 1	ME	7 9 ,	¶ 9 , 7 7 2 A. 2 d 858

. [¶1 6 ] Generally,	 hearsay	 is	 inadmissible	 under	 Maine	 Rule	 of Evidence 802.	 	 A	 court,	 however , “ may	 admit	 and	 consider	 oral	 or	 written evidence	 of	 out

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- court	 statements	 made	 by	 a	 child,	 and	 may	 rely	 on	 that evidence	 to	 the	 extent	 of	 its	 probative	 value.” 22	 M.R.S.	 § 4007(2)	 (2018)

. Contrary	to	the	mother’s	contentions,	although	we	recognize	her	“fundamental liberty	interest	 to	direct	 the	care,	custody, and	control	of	 their	children,	 [w]e have	held	that	the	introduction	of	evidence	pursuant	to	22 M.R.S.	§ 4007(2)	.	.	.

5 Significantly,	n o	counsel	participating	in	the	hearing	had obtained	the audio	recordings	of	the children’s statements before	 the	 hearing

. At	 hearing, the	 counsel	 for	 the	 Department	 and	 the guardian	 ad	 litem	 stated	 that	 neither	 had heard,	 nor received , any	 recordings	 of	 the	 children’s statements.		The	record	is	not	clear	as	to	why	the	recordings	were	not provided,	but	it	is	clear	that counsel	took	steps	to	attempt	to	limit	the	detriment	that	her	client	might	experience	as	a	result	of	the missing	recordings.9 does	not	violate	due	process.” In	re	Children	of	Danielle H. ,	2019	ME	134,	¶ 6, 215	A.3d	217 (alterations	in	original) (citation	omitted)

. [¶1 7 ] The	mother’s	primary	objection	to	the	admission of	evidence of	the

c hildren’s	statements	through	others	was	based	on her	lack	of	timely	access	to the recordings	and	the	assertion	that	the	mother	would	be	at	a	disadvantage	if the	 statements	 were	 a dmitted	 without	 counsel	 having	 had	 access	 to	 the recordings.	 	 T he trial	 court	was	 unpersuaded by	 the	mother’s	 objection and reasonably	“balanced	the	interest	of	the	State	in	protecting	the	[children]	with the	 interest	 of	 the	 parents	 in	 maintaining	 custody” when	 it	 allowed	 the children’s	statements into	evidence

. In	re	Destiny	T. ,	2009	ME	26,	¶ 12,	965	A.2d
872 ; see 2 2	 M.R.S.	 § 4007(2). T h us,	 th e	 court	 recognized	 the	 statutory abrogation	 of	 the	 hearsay	 rule concerning statements	 made	 by	 children. Indeed, w hen	it	addressed the	issue	 of	hearsay as	it	 relates	 to	 the	children’s

statements ,	 the	 court recognized	 the general	 statutory policy	 that	 children’s statements	be	allowed and directed the	mother’s	counsel	to	make	appropriate objections	during	examinations , objections which	counsel presented

. A	court has	 “broad	 discretion	 in	 determining	 the	 weight	 to	 accord [ a	 child’s ]

statement. ” In	re	Serena	C. ,	650	A.2d	1343,	1345	(Me.	1994) ; In	re	Children	of10 Danielle	H. ,	2019	ME	134,	¶ 7,	215	A.3d	217	(explaining	that “whether	to	admit a	child’s	out

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- court	statement	lies	within	the	trial	court’s	discretion”)

. [¶ 18] We	discern	no	abuse	of	that	discretion	on	this	record,	where	the mother	 had	 opportunity	 to	 examine	 witnesses	 concerning	 the	 children’s statements	 and corroborating	 evidence, in	 addition	 to	 testifying	 herself concerning	the	events	at	issue. This	is	all	the	more	true	given	that	the evidence of	 the actual	 treatment	 of	 the	children	and	 the	chaos	 surrounding	 their	lives was	more	critical	to	the	court’s	anal ysis	than	the	children’s	statements	about those	events. [¶ 19 ]		Based	on	competent	evidence	in	the	record,	the	court	found	by a preponderance	of	the evidence	that	the children	would	be	in	circumstances	of jeopardy	 in	 the	 mother’s	 care

. See 22	 M.R.S.	 §§ 4035 , 4036 (2018) ; In	 re Children	of	Christine	A. ,	2019	ME	57, ¶ 9 ,	207	A.3d	186 ; In	re	Destiny T. ,	2009 ME	26,	¶ 14,	965	A.2d	872. The	entry	is: Judgment affirmed.

Brittany	 M.R.	 Sawyer,	 Esq.,	 Holmes	 Legal	 Group,	 LLC,	 Wells,	 for	 appellant mother11 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

Springvale	District	Court	docket	number	PC

- 2019

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