MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	1

Docket: Yor-19-251

Submitted

On	Briefs: 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	children1 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	Health	and	Human	Services	

caseworkers. Concluding	that	the	mother	has	not	presented	a	prima	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.
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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	expressed 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,	the	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,	the	older child	indicated	seeing	a large pipe.
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men watching the	 children.	 	 After	 the	 incident, Department	 caseworkers	

interviewed	the	older 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	protection	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	state	trooper.		The	children	were	taken to	a	foster	home	in	Maine	

that	same	day.

[¶6]	 At	a summary	preliminary	hearing	on March	25,	2019,	the	mother	

exercised	her	right	to	contest	the	temporary	order.		Following	the	hearing,	the	
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court	(Duddy,	J.)	found	that	the	children	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,	the	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	court 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	consists	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	services	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.	 DISCUSSION
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[¶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

[¶10]		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.”		Id.	¶ 56.	

[¶11]	 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	

that	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.		Id.	¶ 59 (citation	omitted)	(quotation	

marks	omitted).
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[¶12]	 There	 are two	 procedural	 mechanisms	 through	 which	 a	 parent	

may	 raise	 a	 claim	 of	 ineffective	 assistance	 of	 counsel.	 	 In	 re	 Children	 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	

existing	record	and	would	require	a	court	 to	consider	extrinsic	evidence,	 the	

parent	 must	 promptly	 move	 for	 relief” from the	 judgment	 pursuant	 to	 M.R.	

Civ. P.	60(b)(6).		See	id. “Regardless	of	how	the	parent	presents	the	claim,	the	

parent	must	execute	and	file	an	affidavit	stating,	with	specificity,	the	basis	for	

the	claim.”		Id.		

[¶13]	Here,	the	mother	asserts	her	ineffectiveness	claim	on	direct	appeal.		

Although	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.		The	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.		Id.	¶ 9.	
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[¶14]		Even	if	the	mother	had	presented	her	ineffectiveness	claim	in	an	

effective	affidavit,4 however,	her	argument—as	far	as	we	can	discern	it—would	

be	unsuccessful.		Id.	¶ 11.	In	her	brief,	the	mother	asserts	that	her	counsel	failed	

to	 make	 a	 general	 request	 for	 discovery	 or	 file	 a	 motion	 to	 compel	 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,	 after	 receiving	 discovery,	 the	

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		When	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 . . . below	 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	trial	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).
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B.	 Children’s	Out-of-Court	Statements

[¶15]	 	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	had 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 clear	error and an	

abuse	of	discretion.”	In	re	Kayla	S.,	2001	ME	79,	¶ 9,	772 A.2d	858.		

[¶16]	 Generally,	 hearsay	 is	 inadmissible	 under	 Maine	 Rule	 of	

Evidence 802.	 	 A	 court,	 however, “may	 admit	 and	 consider	 oral	 or	 written	

evidence	 of	 out-of-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,	no	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.
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does	not	violate	due	process.”		In	re	Children	of	Danielle H.,	2019	ME	134,	¶ 6,	

215	A.3d	217 (alterations	in	original) (citation	omitted).

[¶17]	The	mother’s	primary	objection	to	the	admission	of	evidence	of	the	

children’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	 admitted	 without	 counsel	 having	 had	 access	 to	 the	

recordings.	 	 The	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 22	 M.R.S.	 § 4007(2).	 	 Thus,	 the	 court	 recognized	 the	 statutory	

abrogation	 of	 the	 hearsay	 rule	 concerning statements	 made	 by	 children.	

Indeed,	when	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	of	
10

Danielle	H.,	2019	ME	134,	¶ 7,	215	A.3d	217	(explaining	that “whether	to	admit	

a	child’s	out-of-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	analysis	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	

mother
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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-2019-18

FOR	CLERK	REFERENCE	ONLY