MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018 ME 82 
Docket:	   And-17-515	
Argued:	   May	16,	2018	
Decided:	  June	26,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                           IN	RE	CHILDREN	OF	JEREMY	A.		
	
	
HJELM,	J.	

      [¶1]	 	 On	 the	 third	 appeal	 in	 this	 child	 protection	 matter,	 see	 In	 re	 E.A.,	

2015 ME 37,	114 A.3d 207 (Evelyn	I);	In	re	Evelyn	A.,	2017 ME 182,	169 A.3d
914 (Evelyn	II),	the	parents	of	two	children	challenge	the	judgment	entered	by	

the	 District	 Court	 (Lewiston,	 Dow,	 J.)	 terminating	 their	 parental	 rights	 and	

denying	their	motions	to	reopen	the	record	and	for	relief	from	judgment.		We	

affirm	the	judgment.	

                                    I.		BACKGROUND	

      [¶2]	 	 Much	 of	 the	 procedural	 history—which	 has	 been	 anything	 other	

than	 linear—and	 the	 description	 of	 the	 facts	 in	 this	 case	 are	 set	 out	 in	 the	

opinions	we	issued	in	the	first	two	appeals.		See	Evelyn	I,	2015 ME 37,	¶¶	2-6,	

114 A.3d 207;	Evelyn	II,	2017 ME 182,	¶¶	1-13,	169 A.3d 914.		Here,	to	provide	

context	to	the	issues	presented,	we	briefly	review	some	of	that	material,	and	we	

describe	developments	since	the	most	recent	appeal.					
2	

      [¶3]	 	 In	 2003,	 the	 parents’	 21-month-old	 son,	 Nathaniel,	 died.	 	 The	

mother	was	convicted	of	manslaughter	for	Nathaniel’s	death,	see	State	v.	Allen,	

2006 ME 20,	892 A.2d 447,	and	the	father	was	convicted	of	assaulting	him	the	

night	before	he	died,	see	State	v.	Allen,	2006 ME 21,	892 A.2d 456.		Ten	years	

after	they	were	convicted,	the	mother	and	father	became	parents	to	the	twins	

who	are	the	subject	of	this	proceeding.		Less	than	a	week	after	the	children	were	

born	 prematurely	 and	 while	 they	 were	 still	 hospitalized,	 the	 Department	 of	

Health	and	Human	Services	sought	a	preliminary	protection	order	on	the	basis	

of	 the	 parents’	 convictions	 for	 the	 crimes	 they	 had	 committed	 against	

Nathaniel.	 	 The	 court	 (Oram,	 J.)	 issued	 the	 order	 and	 gave	 custody	 of	 the	

children	to	the	Department.		Directly	following	the	children’s	release	from	the	

hospital,	they	were	placed	in	the	foster	home	where	they	have	lived	ever	since.			

      [¶4]	 	 The	 court	 held	 a	 lengthy	 jeopardy	 hearing	 in	 the	 late	 winter	 and	

spring	 of	 2014,	 where	 the	 parents	 offered	 evidence	 challenging	 the	 cause	 of	

Nathaniel’s	 death,	 “did	 not	 accept	 responsibility	 for	 Nathaniel's	 death,	 and	

.	.	.	expressed	their	belief	that	his	death	was	caused	by	some	other	undiagnosed	

medical	problem,	possibly	due	to	his	immunizations	or	a	seizure	or	metabolic	

disorder.”		Evelyn	II,	2017 ME 182,	¶	6,	169 A.3d 914.		In	early	June	of	2014,	the	

court	(Beliveau,	J.)	entered	an	order	finding	the	children	to	be	in	circumstances	
                                                                                                            3	

of	 jeopardy.	 	 Because	 the	 court	 also	 found	 aggravating	 factors	 based	 on	 the	

parents’	convictions	for	their	crimes	against	Nathaniel,	the	court	ordered	the	

Department	 to	 cease	 reunification	 efforts.	 	 See	 22	 M.R.S.	 §§	 4002(1-B)(A),	

(B)(3),	(5)	and	4041(2)(A-2)(1)	(2017).		On	the	parents’	appeal,	we	affirmed	

the	 jeopardy	 order	 in	 March	 of	 2015.	 	 See	 Evelyn	 I,	 2015 ME 37,	 ¶¶	1,	 14,	

114 A.3d 207.	

        [¶5]		The	Department	had	petitioned	for	termination	of	parental	rights	in	

July	of	2014.		After	a	two-day	hearing	held	in	October	of	2015,	the	court	(Dow,	J.)	

entered	a	judgment	in	early	2016	terminating	the	rights	of	both	parents	to	the	

children.	 	The	parents	filed	timely	notices	of	appeal,	but	the	father	moved	to	

stay	the	appellate	proceedings	because	he	anticipated	filing	a	motion	for	relief	

from	judgment	pursuant	to	Maine	Rule	of	Civil	Procedure	60(b).		We	granted	

the	motion	to	stay,	 and	 eventually,	in	June	of	2016,	both	parents	filed	 a	joint	

Rule	 60(b)	 motion,	 which,	 as	 amended	 five	 months	 later,1	 alleged	 ineffective	

assistance	 of	 counsel	 for	 each	 parent	 at	 both	 the	 jeopardy	 and	 termination	

hearings.			


   1		 In	 an	 appeal	 that	 followed,	 we	 held	 that	 the	 court	 abused	 its	 discretion	 by	 allowing	 the	
Rule	60(b)	motion	to	be	amended	so	belatedly	because	of	the	importance	of	“finding	permanency	for	
the	child	within	a	reasonable	time.”		In	re	Evelyn.	A.,	2017 ME 182,	¶	18,	169 A.3d 914.		As	we	note	
later	in	the	text,	see	infra	¶	9,	these	delays	in	the	proceedings	caused	by	the	parents	factored	into	our	
remand	 instructions	 for	 the	 court	 to	 act	 with	 considerable	 caution	 if—as	 they	 did—the	 parents	
sought	to	reopen	the	record.	
4	

      [¶6]		In	December	of	2016,	the	court	held	a	hearing	on	the	motion.		During	

the	hearing,	the	parents	presented	testimony	from	a	forensic	pathologist	whom	

the	 court	 had	 not	 allowed	 to	 testify	 at	 the	 termination	 hearing	 because	 even	

approximately	 two	 months	 after	 the	 expiration	 of	 the	 deadline	 to	 exchange	

expert	reports,	counsel	for	the	mother	had	not	yet	produced	a	report,	and	the	

court	then	denied	the	mother’s	late	motion	for	enlargement	of	time	to	exchange	

reports.	 	 During	 the	 motion	 hearing,	 the	 forensic	 pathologist	 questioned	 the	

determination	reached	by	the	physician	whose	practice	focuses	on	child	abuse	

and	who	had	testified	at	both	the	manslaughter	trial	and	the	jeopardy	hearing	

that	Nathaniel’s	fatal	injuries	were	“inflicted.”		That	child	abuse	specialist	also	

testified	 at	 the	 motion	 hearing	 and	 stated	 that,	 despite	 the	 opinions	 of	 the	

parents’	expert,	his	original	opinion	remained	unchanged	and	that,	in	his	view,	

the	 opinion	 of	 the	 parents’	 expert	 was	 unsupported	 by	 the	 medical	 evidence	

and	 the	 medical	 community’s	 understanding	 of	 head	 trauma	 in	 children.		

During	 the	 hearing,	 the	 parents	 also	 testified,	 both	 still	 maintaining	 that	 the	

mother	was	not	responsible	for	Nathaniel’s	death.			

      [¶7]	 	 In	 February	 of	 2017,	 the	 court	 issued	 an	 order	 granting	 the	

Rule	60(b)	motion	based	on	a	conclusion	that	the	parents	had	been	deprived	of	

effective	representation	 at	the	jeopardy	hearing	because,	in	the	court’s	 view,	
                                                                                      5	

counsel	improperly	failed	to	advise	the	parents	to	accept	an	offer	that	would	

have	 allowed	 reunification	 services	 to	 continue.	 	 For	 that	 reason,	 the	 court	

vacated	the	termination	order,	reinstated	the	jeopardy	order,	and	ordered	the	

Department	to	offer	the	parents	a	proposed	jeopardy	order	that	would	allow	

for	reunification	services.			

      [¶8]	 	 On	 an	 appeal	 taken	 by	 the	 Department,	 we	 issued	 an	 opinion	 in	

August	 of	 2017	 concluding	 that	 the	 court	 erred	 by	 addressing	 the	 claim	 of	

ineffectiveness	of	counsel	at	the	jeopardy	hearing.		See	Evelyn	II,	2017 ME 182,	

¶¶	3,	34,	169 A.3d 914.		We	therefore	vacated	the	court’s	order	and	remanded	

for	 the	 court	 to	 reconsider	 the	 evidence	 presented	 during	 the	 termination	

hearing	 because	 the	 court	 erroneously	 imposed	 a	 burden	 of	 proof	 on	 the	

parents.		Id.		We	also	ordered	that,	if	the	court	again	determined	that	parental	

rights	should	be	terminated,	the	court	would	then	be	required	to	consider	the	

parents’	Rule	60(b)	motion	but	only	to	the	extent	that	it	alleged	ineffectiveness	

of	counsel	at	the	termination	hearing.		Id.		

      [¶9]	 	 The	 parents	 moved	 for	 us	 to	 reconsider	 the	 scope	 of	 the	 remand	

proceedings.	 	 By	 order	 dated	 September	 15,	 2017,	 we	 denied	 the	 motion,	

making	 clear	 that	 when	 the	 court	 readdressed	 the	 issue	 of	 termination	 on	

remand,	 the	 record	 would	 include	 “any	 evidence	 that	 was	 appropriately	
6	

considered”	during	the	termination	hearing	but	that	the	parents	also	would	be	

entitled	 to	 move	 to	 reopen	 the	 record	 if	 there	 had	 been	 changes	 in	

circumstances	after	the	original	termination	hearing.		Importantly	for	this	case,	

we	stated	that	the	court	“would	grant	such	a	motion	only	if	it	determines	that	

reopening	the	record	is	appropriate	in	the	circumstances,	taking	into	account	

that	 the	 passage	 of	 time	 resulted	 largely	 from	 the	 parents’	 own	 motions	 for	

enlargement	of	time	and	their	subsequent	filing	of	a	late	motion	to	amend	their	

Rule	 60(b)	 motion.”	 	 We	 also	 stated	 that	 the	 record	 to	 be	 considered	 by	 the	

court	 in	 adjudicating	 the	 termination	 petition	 “does	 not	 include	 evidence	

offered	in	the	Rule	60(b)	proceeding.”		(Emphasis	added.)		This	had	the	direct	

effect	of	foreclosing	the	court	from	considering	the	testimony	of	the	parents’	

expert	 regarding	 the	 cause	 of	 Nathaniel’s	 death	 as	 part	 of	 the	 termination	

hearing	record,	leaving	it	germane	only	to	the	claim	of	ineffectiveness.	

      [¶10]	 	 Within	 several	 weeks	 after	 the	 case	 was	 remanded,	 the	 parents	

filed	two	sequential	motions	to	reopen	the	record	of	the	termination	hearing.		

See	 M.R.	 Civ.	 P.	 43(j).	 	 Both	 motions	 sought	 to	 allow	 the	 development	 of	 two	

additional	areas	of	evidence:	the	testimony	of	their	expert	witness	presented	at	

the	 Rule	 60(b)	 motion	 hearing	 and	 updated	 evidence	 about	 the	 children’s	

circumstances	since	the	termination	hearing	held	in	October	2015.		In	the	first	
                                                                                       7	

motion,	 the	 parents	 recited	 that	 they	 had	 attached	 affidavits	 describing	

updated	 information	 relating	 to	 the	 children.	 	 In	 fact,	 no	 such	 affidavits	

accompanied	the	motion.		The	second	motion,	which	the	parents	referred	to	as	

their	 amended	 motion,	 requested	 that	 the	 court	 accept	 affidavits	 in	 lieu	 of	

testimony,	 but	 the	 parents	 again	 did	 not	 submit	 any	 affidavits	 and	 did	 not	

suggest	what	evidence	they	wanted	to	present	about	the	children	for	the	court	

to	consider.			

      [¶11]		A	month	later,	the	court	issued	a	consolidated	order	adjudicating	

all	 matters	 pending	 before	 it.	 	 First,	 using	 the	 standard	 prescribed	 in	 our	

September	 2017	 order	 denying	 the	 parents’	 motion	 to	 reconsider	 and	

concluding	that	it	was	not	appropriate	to	reopen	the	record,	the	court	denied	

the	parents’	motion	to	reopen	the	evidence.		

      [¶12]	 	 Second,	 the	 court	 terminated	 the	 parental	 rights	 of	 the	 parents.		

The	court	pointed	to,	among	other	things,	the	convictions	for	acts	of	violence	

committed	 by	 each	 parent	 against	 Nathaniel—with	 the	 mother	 having	 been	

convicted	for	causing	his	death;	each	parent’s	denial	of	responsibility	for,	and	

lack	of	insight	into,	the	cause	of	Nathaniel’s	death	and	their	deflection	of	blame	

to	 an	 “unfair	 judicial	 system”;	 the	 absence	 of	 any	 protections	 that	 could	 be	
8	

imposed	to	protect	the	children;	and	the	best	interests	of	the	children,	which	

would	be	promoted	by	termination.			

      [¶13]	 	 Finally,	 the	 court	 denied	 the	 parents’	 Rule	 60(b)	 motion	 as	 it	

related	to	the	termination	hearing.		The	court	found	that	representation	of	the	

mother	was	deficient	because	her	attorney	had	failed	to	timely	designate	the	

forensic	pathologist	as	a	witness	and	provide	a	report	to	the	Department.		The	

court	 concluded,	 however,	 that	 although	 it	 had	 now	 heard	 “the	 medical	

testimony	the	parents	had	wanted	for	so	long	to	present,”	that	testimony	was	

not	of	sufficient	merit	to	demonstrate	even	that	the	parents	could	reasonably	

believe	 that,	 as	 the	 pathologist	 opined,	 there	 were	 causes	 for	 Nathaniel’s	

injuries	and	death	other	than	the	mother’s	criminal	agency.		Based	on	this,	the	

court	concluded	that	the	ineffectiveness	of	the	counsel’s	representation	of	the	

mother	 did	 not	 result	 in	 prejudice.	 	 As	 to	 the	 father,	 the	 court	 found	 no	

ineffectiveness	 because	 his	 counsel	 made	 a	 reasonable	 choice	 to	 focus	 on	 a	

post-jeopardy-hearing	 assessment	 of	 the	 risk	 posed	 by	 the	 father	 to	 the	

children	 rather	 than	 to	 relitigate	 the	 assault	 against	 Nathaniel	 for	 which	 the	

father	had	been	convicted.		Concluding	that	the	termination	hearing	“produced	

a	just	result”	as	to	 each	 parent,	the	court	denied	their	motion	for	relief	from	

judgment.			
                                                                                                         9	

         [¶14]		The	parents	timely	appealed	to	us.		See	M.R.	App.	P.	2B(c).			

                                           II.		DISCUSSION	

	        [¶15]		The	parents	assert	that	the	court	erred	by	denying	their	motion	to	

reopen	the	record	and	by	denying	their	Rule	60(b)	motion.2		We	address	these	

challenges	in	turn.		

A.       Motion	to	Reopen	the	Evidence	

	        [¶16]	 	 “A	 party	 who	 has	 rested	 cannot	 thereafter	 introduce	 further	

evidence	except	in	rebuttal	unless	by	leave	of	court.”		M.R.	Civ.	P.	43(j).		In	the	

context	of	a	proceeding	on	a	petition	for	termination	of	parental	rights,	we	have	

held	that	a	court	should,	but	is	not	required	to,	reopen	the	evidence	“when	there	

is	evidence	relevant	to	the	issues	in	the	case.”		In	re	Danielle	S.,	2004 ME 19,	¶	2,	

844 A.2d 1148.						

	        [¶17]		Here,	the	parents	moved	to	reopen	the	termination	record	on	two	

issues.	 	 First,	 the	 parents	 sought	 to	 include	 the	 testimony	 of	 their	 expert	

witness,	 developed	 during	 the	 Rule	 60(b)	 motion	 hearing,	 on	 medical	 issues	

relating	 to	 Nathaniel’s	 death.	 	 In	 our	 September	 2017	 order	 denying	 the	




     2		The	parents	also	challenge	the	court’s	determination	that	termination	of	their	parental	rights	is	

in	the	children’s	best	interests.		There	is	competent	evidence	in	the	record	supporting	that	conclusion	
by	a	clear	and	convincing	standard	of	proof,	see	In	re	Children	of	Amber	L.,	2018 ME 55,	¶	4,	---	A.3d	---;	
22	M.R.S.	§	4055(1)(B)(2)	(2017),	and	we	do	not	discuss	it	further.	
10	

parents’	motion	for	us	to	reconsider	the	remand	order	in	Evelyn	II,	however,	we	

explicitly	circumscribed	the	record	the	court	was	to	reconsider	in	adjudicating	

the	 termination	 petition	 so	 as	 to	 exclude	 evidence	 developed	 at	 the	 motion	

hearing.		This	is	because	the	purpose	of	that	portion	of	the	remand	was	to	allow	

the	 court	 to	 reconsider	 the	 evidence	 on	 termination	 pursuant	 to	 a	 correct	

evidentiary	 framework.	 	 See	 Evelyn	 II,	 2017 ME 182,	 ¶	 33,	 169 A.3d 914.		

Although	 we	 ordinarily	 review	 a	 court’s	 decision	 on	 a	 motion	 to	 reopen	 the	

evidence	 for	 an	 abuse	 of	 discretion,	 see	 In	 re	 Danielle	 S.,	 2004 ME 19,	 ¶	 2,	

844 A.2d 1148,	here	the	court	had	no	discretion	and	acted	properly	by	denying	

that	part	of	the	parents’	motion.3				

	        [¶18]	 	 Second,	 the	 parents	 sought	 to	 reopen	 the	 record	 to	 present	

evidence	 about	 developments	 in	 the	 children’s	 lives	 after	 the	 termination	

hearing,	 which	 is	 evidence	 that	 the	 parents	 claim	 is	 relevant	 to	 the	 issues	 of	

parental	 unfitness	 and	 the	 children’s	 best	 interests.	 	 During	 the	 two	 years	

following	 the	 original	 termination	 hearing,	 the	 children	 remained	 with	 the	

foster	 parents	 who,	 as	 the	 court	 described	 them,	 are	 “extraordinarily	




    3	 	 In	 any	 event,	 because	 the	 court	 ultimately	 rejected	 the	 opinions	 of	 the	 parents’	 expert,	 it	 is	

apparent	 that	 even	 if	 the	 testimony	 of	 the	 parents’	 expert	 had	 been	 included	 in	 the	 termination	
record,	that	evidence	would	not	have	affected	the	court’s	ultimate	determination	to	terminate	the	
parents’	parental	rights.			
                                                                                                    11	

experienced”	and	provide	the	children	with	“excellent	care,”	and	to	whom	the	

children	are	“very	attached.”		The	parents	had	regular	contact	with	the	children	

even	 after	 the	 termination	 order	 issued	 in	 2015,	 and	 therefore	 were	 in	 a	

position	to	make	an	offer	of	proof	regarding	the	prospective	evidence	about	the	

children’s	 present	 circumstances.	 	 Nonetheless,	 they	 did	 not	 make	 any	 such	

proffer.4			

	       [¶19]		We	recognize	that	in	child	protection	proceedings,	the	court	is	in	a	

position	to	consider	ongoing	changes	in	the	circumstances	of	both	children	and	

parents.		See	In	re	Child	of	James	R.,	2018 ME 50,	¶	19,	182 A.3d 1252;	In	re	Paige	

L.,	2017 ME 97,	¶	31,	162 A.3d 217;	In	re	Marcus	S.,	2007 ME 24,	¶	10,	916 A.2d
225;	In	re	Heather	G.,	2002 ME 151,	¶	14,	805 A.2d 249;	In	re	Scott	S.,	2001 ME
114,	¶	15,	775 A.2d 1144.		Nonetheless,	given	the	fundamental	goal	of	providing	

children	with	permanence	in	their	lives,	see	22	M.R.S.	§§	4003(4),	4050	(2017);	

see	also	Evelyn	II,	2017 ME 182,	¶	18,	169 A.3d 914,	and	the	caution	that	we	

directed	 the	 court	 to	 exercise	 if	 the	 parents	 were	 to	 move	 to	 reopen	 the	

evidence,	 the	 court	 did	 not	 abuse	 its	 discretion	 or	 violate	 the	 parents’	

constitutional	right	that	protects	their	relationship	with	the	children	when	it	



    4		Instead,	the	parents	simply	assert	in	their	brief,	“an	awful	lot	can	change	in	approximately	two	

years.		The	[D]istrict	[C]ourt	erred	by	not	bothering	to	check	if	that	was	the	case	here.”	
12	

reconsidered	the	termination	petition	based	on	the	then-existing	record,	see	In	

re	M.P.,	2015 ME 138,	¶¶	30-32,	126 A.3d 718 (explaining,	in	a	child	protection	

case,	that	due	process	is	determined	by	balancing	the	parent’s	rights	with	the	

State’s	 right	 to	 provide	 “stability	 and	 permanency”	 in	 a	 child’s	 life);	 Pitts	 v.	

Moore,	 2014 ME 59,	 ¶¶	 12,	 14,	 90 A.3d 1169  (“[T]he	 State	 has	 a	 compelling	

interest	in	limiting,	restricting,	or	even	terminating	a	parent's	rights	when	harm	

to	the	child	will	result	from	the	absence	of	such	governmental	interference.”).				

B.	    Ineffective	Assistance	of	Counsel		

	      [¶20]		We	next	turn	to	the	parents’	contentions	that	the	court	erred	by	

determining	 that,	 at	 the	 2015	 termination	 hearing,	 the	 mother	 was	 not	

prejudiced	 by	 her	 attorney’s	 ineffective	 representation	 and	 that	 the	 father’s	

counsel’s	performance	was	not	deficient	in	the	first	place.				

	      [¶21]	 	 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.”		In	re	
                                                                                         13	

Alexandria	 C.,	 2016 ME 182,	 ¶	 18,	 152 A.3d 617  (quotation	 marks	 omitted).		

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	the	reliability	of	the	[judgment]	and	undermining	confidence	

in	it.”		Theriault	v.	State,	2015 ME 137,	¶	25,	125 A.3d 1163.		Because	the	parents	

had	 the	 burden	 of	 proof	 at	 the	 motion	hearing	 to	 prove	 ineffectiveness,	 they	

must	demonstrate	here	that	the	evidence	compelled	a	contrary	outcome.		In	re	

Alexandria	C.,	2016 ME 182,	¶	19,	152 A.3d 617.		While	“[w]e	review	the	factual	

findings	 underlying	 ineffectiveness	 claims	 for	 clear	 error,”	 we	 review	 for	 an	

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

	      [¶22]		The	mother	stridently	asserts	that	the	court	erred	by	rejecting	the	

testimony	of	the	forensic	pathologist	who	stated	that	Nathaniel’s	death	could	

have	resulted	from	several	 accidental	falls,	which	the	mother	reported.		This	

assertion,	 however,	 fails	 to	 account	 for	 two	 aspects	 of	 the	 record.	 	 First,	 the	

mother	 was	 prosecuted	 for	 Nathaniel’s	 death	 and	 was	 convicted	 of	

manslaughter,	see	Allen,	2006 ME 20,	¶¶	6-10,	892 A.2d 447,	meaning	that	it	is	

established	 that	 she	 caused	 Nathaniel’s	 death	 recklessly	 or	 with	 criminal	

negligence,	see	17-A	M.R.S.	§	203(1)(A)	(2017).		That	conviction	was	affirmed	
14	

on	 appeal,	 see	 Allen,	 2006 ME 20,	 ¶	 27,	 892 A.2d 447,	 and	 conclusively	

establishes	her	personal	and	criminal	responsibility	for	the	child’s	death,	see	In	

re	Shulikov,	2000 ME 70,	¶	12,	749 A.2d 1270 (explaining,	in	a	termination	of	

parental	 rights	 case,	 that	 “[t]he	 doctrine	 of	 collateral	 estoppel	 .	 .	 .	 bar[s]	

relitigation	 of	 the	 facts	 resolved	 by	 the	 criminal	 convictions);	 cf.	 Evelyn	 II,	

2017 ME 182,	 ¶	 34,	 169 A.3d 914  (referring	 to	 the	 “undisturbed	 criminal	

convictions”	 entered	 against	 the	 parents	 for	 the	 crimes	 of	 violence	 they	

committed	against	Nathaniel).			

	       [¶23]		Second,	at	the	Rule	60(b)	motion	hearing,	the	parents	thoroughly	

developed	the	testimony	of	their	expert	in	an	attempt	to	demonstrate,	at	the	

very	least,	the	reasonableness	of	the	parents’	firmly	held	notion	that	the	mother	

did	not	bear	responsibility	for	Nathaniel’s	death.		In	response,	the	Department	

also	 presented	 the	 testimony	 of	 a	 qualified	 physician	 who	 roundly	 and	

vigorously	disagreed	with	the	parents’	expert	both	on	the	particular	aspects	of	

Nathaniel’s	 fatal	 injuries	 and	 on	 her	 description	 of	 the	 state	 of	 medical	

understanding	of	abusive	head	trauma	cases.		Given	this	record,	basic	principles	

of	appellate	review	make	it	evident	that	the	mother’s	contention	on	appeal	is	

without	merit.5		See	In	re	Aliyah	M.,	2016 ME 106,	¶	19,	144 A.3d 50;	Gordon	v.	


    5		Contrary	to	the	parents’	argument,	the	record	does	not	demonstrate	that	the	court	applied	an	

incorrect	standard	in	its	examination	of	prejudice.		Although	the	court	made	one	statement	that	the	
                                                                                                    15	

Cheskin,	2013 ME 113,	¶	12,	82 A.3d 1221 (explaining	that	factual	findings	are	

reviewed	for	clear	error	and	deference	is	given	to	the	court’s	determinations	of	

witness	credibility).			

	      [¶24]		For	his	part,	the	father	contends	that	the	court	erred	by	failing	to	

find	 ineffectiveness	 in	 two	 ways.	 	 Neither	 is	 persuasive.	 	 First,	 as	 the	 court	

found,	the	father’s	intransigent	minimization	of	his	assaultive	conduct	toward	

Nathaniel	made	it	reasonable	for	his	attorney,	at	the	termination	hearing,	not	

to	relitigate	the	medical	issues	but	instead	to	develop	evidence	demonstrating	

that	the	father	could	now	safely	care	for	the	children.		See,	e.g.,	Pineo	v.	State,	

2006 ME 119,	 ¶	 13,	 908 A.2d 632  (explaining	 the	 deference	 afforded	 to	

“strategic	and	tactical	decisions	by	defense	counsel[,	which]	must	be	manifestly	

unreasonable”	to	establish	ineffectiveness).		And	second,	in	the	context	of	the	

mother’s	ineffectiveness	claim,	the	court	rejected	the	parents’	expert’s	analysis.		

From	 this,	 it	 is	 apparent	 that,	 even	 if	 the	 father’s	 attorney	 was	 obligated	 to	

present	the	expert’s	testimony	at	the	termination	hearing	in	order	to	argue	that	

the	 father	 had	 not	 failed	 in	 his	 responsibility	 to	 protect	 Nathaniel	 from	 the	



parent’s	expert’s	testimony	would	not	have	“changed	the	result”	of	the	termination	hearing,	the	court	
correctly	 described	 the	 prejudice	 standard,	 which	 required	 the	 parents	 to	 prove	 that	 any	
ineffectiveness	did	not	produce	a	just	result,	and	the	court	ultimately	concluded	that	the	termination	
hearing	did	in	fact	produce	a	“just	result.”		See	In	re	Alexandria	C.,	2016 ME 182,	¶	18,	152 A.3d 617;	
Theriault	v.	State,	2015 ME 137,	¶	25,	125 A.3d 1163.			
16	

mother,	that	omission	was	not	prejudicial	because,	as	the	court	concluded,	that	

evidence	would	not	have	called	into	question	the	reliability	and	justness	of	the	

judgment	terminating	parental	rights.			

         The	entry	is:	
         	
                     Judgment	affirmed.		
	
	     	      	      	    	     	
	
Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	father	
	
Heidi	M.	Pushard,	Esq.	(orally),	Law	Office	of	Heidi	M.	Pushard,	Lewiston,	for	
appellant	mother	
	
Janet	T.	Mills,	Attorney	General,	and	Meghan	Szylvian,	Asst.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	Department	of	Health	and	
Human	Services	
	
	
Lewiston	District	Court	docket	number	PC-2013-73	
FOR	CLERK	REFERENCE	ONLY