In Re Child of Cassie S.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2026 ME 26
Docket: Cum-24-426
Submitted
On Briefs: November 25, 2025
Decided: March 17, 2026

Panel: STANFILL, C.J., and MEAD, LAWRENCE, DOUGLAS, and LIPEZ, JJ.

IN RE CHILD OF CASSIE S.

STANFILL, C.J.

[¶1] Cassie S. appeals from an order of the District Court (Portland,

Woodman, J.) finding that she placed her child in jeopardy by subjecting the

child to medical abuse. The mother does not contend that the evidence is

insufficient to support the court’s finding of jeopardy, but she has appealed

from the jeopardy order for a variety of other reasons. The mother argues that

the court (1) violated her right to counsel in determining that she was not

indigent and failing to appoint an attorney; (2) erred in continuing the jeopardy

hearing beyond the 120-day deadline; (3) violated her right to due process

when the judge did not recuse herself; (4) erred by drawing a negative

inference from the mother’s failure to call certain witnesses at the jeopardy

hearing; and (5) violated the mother’s First Amendment rights when it enjoined

the mother from posting on social media, speaking to the media, and discussing

any issues involved in this litigation. The mother additionally contends that the
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court erred in denying, without a hearing, her motion for relief from judgment

under M.R. Civ. P. 60(b), which alleged ineffective assistance of counsel at the

jeopardy hearing. We affirm the jeopardy order and the court’s denial of the

mother’s Rule 60(b) motion. We remand the matter to the trial court for the

court to modify the order restraining the mother from commenting on this case.

I. BACKGROUND

[¶2] The following facts are drawn from the court’s findings, which are

supported by competent evidence in the record, and from the procedural

record. See In re Child of Radience K., 2019 ME 73, ¶ 2, 208 A.3d 380.

A. Factual History

[¶3] Cassie S. is the mother of a child with a complex medical history

beginning when the child was about six months old. When the child was

twenty-one months old, the mother persuaded the child’s doctor to perform an

invasive procedure—a tracheotomy—to attempt to cure cyanotic spells she

had observed. According to the mother, the tracheostomy did not ameliorate

the cyanosis, so the child’s medical providers recommended its immediate

removal. The mother, however, insisted that the child’s tracheostomy become

permanent.
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[¶4] In the years that followed, the mother took the child to various

medical providers in Maine and other states, many of whom recommended the

removal of the child’s tracheostomy. The mother also reported to the child’s

doctor that the child was aspirating on liquids, and as a result, a gastrostomy

tube was placed in the child’s stomach.

[¶5] Ultimately, the medical director of the child protection program at

a Massachusetts medical center reported the mother to the Maine Department

of Health and Human Services. The medical director expressed concerns that

the child had received inappropriate medical care at the urging of the mother.

As a result, the Department petitioned for a protection order in 2019, although

that petition was ultimately dismissed. Throughout the 2019 proceedings, the

mother spoke to the press about the Department’s efforts to remove the child

from her care, resulting in published articles about the child’s medical history

and the mother’s experience with the Department.

[¶6] In September and October 2023, when the child was eight years old,

the mother took him to a pediatric pulmonology specialist in New York City.

The child arrived in a wheelchair with a tracheostomy, gastrostomy tube, and

leg braces. Doctors conducted various medical tests and exams, all of which

found no abnormalities. The doctors observed no mobility issues even though
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the child was wearing leg braces and the mother reported concerns with his

balance and gait. The child’s neurological examiner concluded that there was

no evidence of a neuromuscular abnormality. The pulmonologist concluded

that the child did not need the tracheostomy or gastrostomy tube, and that to

begin the removal process, the child should be observed overnight with his

tracheostomy capped. The mother refused to permit the child to undergo that

evaluation. In fact, after the child’s discharge from the New York hospital, the

mother scheduled a procedure with a Massachusetts doctor to enlarge the

child’s tracheostomy, a procedure that the court ultimately blocked.

[¶7] On October 18, 2023, the medical center in New York filed a report

with the Department expressing concerns that the mother was engaging in

medical abuse of the child.

B. Proceedings

[¶8] On December 6, 2023, the Department filed a petition for a child

protection order but did not request a preliminary protection order (PPO).

Days before the jeopardy hearing, the Department requested and received a

PPO that allowed the mother to maintain custody but imposed conditions on

her, including preventing her from moving forward with a procedure to enlarge

the child’s tracheostomy.
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1. Case Management Conferences and the Department’s Motion
to Continue

[¶9] The Department was unable to serve the mother with the petition

until January 4, 2024, partially because the mother’s privately retained

attorney sent a letter to the Department ordering it not to meet with or contact

the mother. The court held a case management conference on January 11, 2024.

During the conference, the court suggested that having a jeopardy hearing

without additional experts “may not provide any further clarification. I don’t

know the facts, and I don’t know what has happened since [the 2019

proceedings], but the parties may wish to discuss a third expert or another

expert or . . . if there can be an agreement to have [the child] seen by . . . an

agreed upon expert. . . . [T]here’s got to be some more medical info—or

documentation or expert’s opinion—other than the ones that we’ve already

heard.” When the Department replied that it planned to present only the child’s

medical providers, the court suggested that while information from the medical

providers “is very important and relevant to this issue, . . . you might want to

explore another expert that . . . can review all of the documentation, can review

all of the medical reports and . . . give an opinion.”

[¶10] The court then issued an order compelling the mother to sign

releases for the child’s medical records. The mother objected to this order
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almost two months later, and she refused to sign the releases. The court held a

trial management conference on March 4, which was continued to March 11 at

the Department’s request. At this conference, the court again ordered the

mother to sign all releases.

[¶11] The court initially scheduled the jeopardy hearing for mid-May,

but the Department moved to continue the jeopardy hearing. At a March 18

conference, during arguments on the motion to continue, the Department

explained that it had retained an out-of-state expert on child medical abuse but

the expert would be unable to finish his review and report by May because of

the mass of medical records and the complicated nature of the case. The

Department also expressed that the mother’s delay in signing the releases

meant that it had obtained only some of the child’s records. The mother

objected, arguing that there was no legal basis for a continuance, that the

hearing needed to occur within 120 days of the petition, and that that day she

had met with some of the child’s medical providers, who were ready to testify

in May.

[¶12] The court granted the Department’s motion to continue,

rescheduling the jeopardy hearing for July. It reasoned that the mother was not

served until January 4, had objected to the case management conference being
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held so soon after she had been served, had refused to sign releases for a couple

of months, and had previously objected to scheduling the jeopardy hearing for

mid-May.

2. Proceedings Relevant to the Mother’s Right to Appointed
Counsel

[¶13] After the mother was served with the petition in January 2024, the

court assigned counsel to represent her pending a later determination on

whether she qualified for appointed counsel. On January 31, 2024, the mother

completed a financial affidavit in support of her request for court-appointed

counsel. The financial screener recommended1 that the court find the mother

ineligible for appointed counsel. On February 12, 2024, after reviewing the

mother’s financial affidavit, the court denied her request for court-appointed

counsel. The court concluded that the mother was not indigent, and therefore

not entitled to appointed counsel, because she earned $92,000 in 2023,

expected to earn $73,000 in 2024, and also received $612 per month in child

support. See 22 M.R.S. § 4005(2) (2025) (“The court, if it finds the parent or

custodian indigent, shall appoint legal counsel.”). The court ordered that the

appointment of counsel would terminate on March 9, 2024, later extending it

to March 11.

1 The court is not bound by the financial screener’s recommendation.
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[¶14] The mother chose to begin representing herself at a March 4, 2024,

trial management conference even though appointed counsel would not be

removed until March 11. When asked if she wanted to represent herself at the

hearing despite the presence of her appointed counsel, she responded, “Yes, it

is [what I want].”

[¶15] On March 6, 2024, the mother completed a new financial affidavit

and the screener recommended that the court find the mother partially eligible

for court-appointed counsel. The mother did not move for reconsideration of

the court’s determination that she was not indigent.

[¶16] The mother was unrepresented from mid-March until the

beginning of the jeopardy hearing in mid-July. The mother’s privately retained

attorney filed a limited appearance immediately before the jeopardy hearing

and represented the mother during the hearing.

3. The Jeopardy Hearing, Post-Judgment Motions, and Appeal

[¶17] On July 10, 11, and 12, 2024, the court held a jeopardy hearing

regarding the mother and father. When the mother entered the courtroom, she

brought members of the public, including the press, to observe the hearing.

After ordering those individuals to leave the courtroom, the court issued a
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broad, indefinite order enjoining the mother from posting on social media,

speaking to the media, or discussing “any issues involved in this litigation.”

[¶18] On September 17, 2024, the court found that the child was in

jeopardy and ordered that the child be placed in the Department’s custody. The

court ordered the Department to work with an expert in child medical abuse to

coordinate the best plan for the child’s demedicalization and required the

mother to continue to receive mental health treatment and undergo an in-depth

psychological evaluation and risk assessment focusing on parental capacity.

[¶19] The mother immediately filed a notice of appeal as well as two

motions to stay the jeopardy order—one in the trial court and another in this

Court. Both motions to stay were denied.

[¶20] On November 18, 2024, the mother moved, under M.R.

Civ. P. 60(b), for relief from the jeopardy order based on ineffective assistance

of counsel. We stayed the mother’s appeal from the jeopardy order pending the

adjudication of that motion. On January 21, 2025, the trial court denied the

mother’s Rule 60(b) motion without a hearing; the mother timely appealed. See

M.R. App. P. 2B(c). We then consolidated the mother’s appeals from the

jeopardy order and from the denial of her motion for relief from judgment.
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II. DISCUSSION

A. The court did not err in finding that the mother had no right to
appointed counsel.

[¶21] The mother contends that the court erred in determining that she

was not indigent and that the court should have appointed an attorney to

represent her. See 22 M.R.S. § 4005(2) (2025). She argues that she was

prejudiced because she was deprived of counsel for the period leading up to the

jeopardy hearing.

[¶22] Because a parent’s indigency is a factual determination, we review

the court’s finding for clear error. See State v. Smith, 677 A.2d 1058, 1060

(Me. 1996) (explaining that a defendant’s indigency is a factual determination);

see also State v. Lowden, 2014 ME 142, ¶ 8, 106 A.3d 1134, as corrected (Apr. 16,

2015) (reviewing for clear error the finding that a criminal defendant was

partially indigent). The mother had the burden of proving indigence, see Smith,

677 A.2d at 1060, so to prevail she must demonstrate that the evidence

compelled a contrary finding. See In re Destiny H., 2024 ME 66, ¶ 27, 322 A.3d

1183.

[¶23] Contrary to the mother’s argument, the evidence does not compel

a finding that she was indigent, in whole or in part. The mother’s income is not

insubstantial, and she had privately retained attorneys for other matters, such
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as her divorce action. Indeed, the mother was able to retain counsel for the

jeopardy hearing and appeal. The court did not err in determining that the

mother was not indigent. Because there is no right to court-appointed counsel

for parents who are not indigent, there was no error in declining to appoint

counsel.

B. The court did not abuse its discretion in continuing the jeopardy
hearing.

[¶24] The mother argues the trial court abused its discretion by granting

the Department’s request to continue the jeopardy hearing and by issuing the

jeopardy order after the 120-day deadline provided in 22 M.R.S. § 4035 (4-A)

(2025), requiring vacatur of the jeopardy order and dismissal of the petition.

[¶25] We review a trial court’s grant or denial of a motion to continue a

child protection hearing for an abuse of discretion. In re Child of Mercedes D.,

2018 ME 149, ¶ 14, 196 A.3d 888.

[¶26] Section 4035(4-A) provides that “[t]he court shall issue a jeopardy

order within 120 days of the filing of the child protection petition.” 22 M.R.S.

§ 4035 (4-A). As we have previously held, however, this section “does not

provide for the dismissal of a jeopardy order as a remedy for an order entered

after the 120–day period.” In re Cameron W., 2010 ME 101, ¶ 4 n.1, 5 A.3d 668.
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[¶27] Moreover, section 4035(4-A) also provides that the 120-day

deadline “does not apply if good cause is shown.” 22 M.R.S. § 4035(4-A). In

granting the continuance, the trial court found, with record support, that the

mother contributed to the need for the continuance by refusing service for

almost a month and refusing to sign releases, which delayed the Department’s

access to the child’s medical records by three months from the start of the case

and led to the inability of the expert on child medical abuse to finish his review

and report in time to meet the 120-day deadline. Given the medical

complexities in the case, there was good cause for the continuance. We also

note that the mother does not explain how she was prejudiced by the

continuance. The mother had custody of the child throughout this period.

While she claims that witnesses who had agreed to testify in May were

unwilling or unable to testify in July, the record does not support the

assertation that the mother’s witnesses did not testify because of the delay. We

conclude that the trial court did not abuse its discretion in granting the

Department’s request for a continuance.

C. There was no obvious error in the trial judge’s failure to recuse from
the jeopardy hearing.

[¶28] The mother argues that the trial judge should have recused herself

because “numerous statements and rulings raised a reasonable question as to
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[her] impartiality,” including the judge’s suggestion that the Department obtain

an out-of-state medical child-abuse expert and her decision to grant a

continuance to accommodate this expert.

[¶29] “‘Pursuant to the Maine Code of Judicial Conduct, a judge must

recuse [her]self on motion for recusal made by any party in which [her]

impartiality might reasonably be questioned or in which the judge has a

personal bias or prejudice concerning a party or personal knowledge of

disputed evidentiary facts concerning the proceeding.’” Dalton v. Dalton, 2014

ME 108, ¶ 23, 99 A.3d 723, as corrected (Nov. 13, 2014) (quoting Charette v.

Charette, 2013 ME 4, ¶ 21, 60 A.3d 1264).

[¶30] “[W]hen a party fails to make a timely motion for recusal, that

failure constitutes an implicit waiver of the objection to the judge’s

qualification.” In re Kaitlyn P., 2011 ME 19, ¶ 8, 12 A.3d 50; see also MacCormick

v. MacCormick, 513 A.2d 266, 267 (Me. 1986). This is because “[a] party should

have no incentive to roll the dice for a favorable decision and then, if the

decision is unfavorable, raise grounds for recusal of which she or her counsel

had actual knowledge prior to the decision being made.” In re Kaitlyn P., 2011

ME 19, ¶ 9, 12 A.3d 50 (alterations and quotation marks omitted). We have

explained,
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A party who has a reasonable basis for moving to disqualify a judge
may not delay in the hope of first obtaining a favorable ruling and
then complain only if the result is unfavorable. Not only is such a
tactic unfair, but it may evidence a belief that the judge is not in fact
biased.

In re Michael M., 2000 ME 204, ¶ 13, 761 A.2d 865 (quotation marks omitted).

Although the mother implicitly waived any objection to the trial judge, we

review the judge’s decision not to recuse for obvious error. In re Kaitlyn P.,

2011 ME 19, ¶ 9, 12 A.3d 50; In re William S., 2000 ME 34, ¶ 8, 745 A.2d 991.

Obvious error is a “seriously prejudicial error tending to produce a manifest

injustice.” In re Child of Kaysean M., 2018 ME 156, ¶ 8, 197 A.3d 525 (quotation

marks omitted).

[¶31] We see nothing in the record to indicate a lack of impartiality

requiring recusal. The judge simply warned the Department, as well as the

mother, that the complexity of the case strongly suggested that an independent

expert would be important. If anything, the judge’s remarks suggested that she

doubted the strength of the Department’s case, not that she favored it.

Following this recommendation, both parties obtained experts on medical child

abuse. The court considered the testimony of both experts at the hearing and

treated the parties fairly. Nothing about the pretrial suggestion to the parties
15

that the case would require expert testimony deprived the mother of a fair

proceeding or amounted to obvious error.

D. Any negative inference made by the court from the mother’s failure
to call medical witnesses was harmless error.

[¶32] In the jeopardy order, the court noted that it was “significant” that

none of the child’s providers at the Massachusetts hospitals testified “even

though they were on the Mother’s witness list.” The mother argues that the

court wrongfully inferred that the witnesses’ opinions would be adverse to her

because they did not testify.

[¶33] A factfinder may not infer “whether a missing witness’s testimony

would be favorable or unfavorable.” State v. Ellis, 2025 ME 56, ¶ 5, 339 A.3d

794; see State v. Brewer, 505 A.2d 774, 777 (Me. 1985) (“[T]he failure of a party

to call a witness cannot be treated as an evidentiary fact that permits any

inference as to the content of the testimony of that witness.”); Budzko v. One

City Ctr. Assocs. Ltd. P’ship, 2001 ME 37, ¶ 18, 767 A.2d 310. Here, although the

court did not explicitly say that it made a negative inference or explain any

inference it made, the court noted that it was “significant” that none of the

Massachusetts providers testified.

[¶34] We review evidentiary decisions for clear error or an abuse of

discretion, In re Kayla S., 2001 ME 79, ¶ 9, 772 A.2d 858, and need not vacate
16

the trial court’s judgment if the error is harmless, In re Caleb M., 2017 ME 66,

¶ 25, 159 A.3d 345. “In the context of a [child protection] proceeding, a

preserved error is harmless if it is highly probable that the error did not

prejudice the parents or contribute to the result in the case.” Id. (quotation

marks omitted). Here, the court was presented with the child’s extensive

medical records and notes, which included opinions from the child’s providers

at the Massachusetts facilities. The court heard testimony from numerous

medical experts, including providers, supporting the conclusion that the

mother’s conduct constituted medical child abuse placing the child in jeopardy.

Any negative inference concerning the absent witnesses was harmless because

of “the great volume of evidence supporting the court’s [jeopardy] findings.”

In re Kaitlyn P., 2011 ME 19, ¶ 11, 12 A.3d 50.

E. The court did not err in entering an order enjoining the mother from
publicizing the confidential proceeding, but the order is overly
broad.

[¶35] The mother has a history of inviting members of the press, state

legislators, or other members of the public to child protection proceedings.

During the pendency of the prior petition, the mother spoke to the press about

the case, resulting in newspaper articles about the child’s medical history and

the mother’s experience with the Department. On the first day of the jeopardy
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hearing in the current case, after multiple members of the public, including

media, attempted to attend the hearing, the court issued the following order:

This matter is confidential pursuant to Title 22 § 4007. The
parties in this matter are enjoined and forbidden from speaking to
the media, posting on any social media platform, or speaking about
any issues involved in this litigation. Any dissemination of the kind
is subject to sanction, including but not limited to fine and/or
contempt of court.

The mother contends that the judge’s order restricting her ability to discuss this

case is an unconstitutional prior restraint under the First Amendment. Because

the mother did not challenge this order in the trial court, we review the order

for obvious error that “affects substantial rights or results in a substantial

injustice.” See Childs v. Ballou, 2016 ME 142, ¶ 9, 148 A.3d 291 (quotation

marks omitted).

[¶36] Court orders that prohibit future communications are considered

prior restraints on speech. Alexander v. United States, 509 U.S. 544, 550 (1993);

see also Childs, 2016 ME 142, ¶ 18, 148 A.3d 291. “There is a ‘heavy

presumption against [the] constitutional validity’ of any prior restraint on

speech.” Childs, 2016 ME 142, ¶ 18, 148 A.3d 291 (quoting Neb. Press Ass’n

v. Stuart, 427 U.S. 539, 558 (1976)); see New York Times Co. v. United States,

403 U.S. 713, 714 (1971). “The presumption against prior restraints is

heavier—and the degree of protection broader—than that against limits on
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expression imposed by criminal penalties.” Vance v. Universal Amusement Co.,

445 U.S. 308, 316 n.13 (1980).

[¶37] A prior restraint on speech is an extraordinary remedy, and for it

to be permissible,

the harm from the unrestrained speech must be truly exceptional.
A prior restraint is permissible only where the harm expected from
the unrestrained speech is grave, the likelihood of the harm
occurring without the prior restraint in place is all but certain, and
there are no alternative, less restrictive means to mitigate the
harm.

Shak v. Shak, 144 N.E.3d 274, 278 (Mass. 2020) (citations and quotation marks

omitted). Because this order is a prior restraint that restricts the content of

speech, it is subject to strict scrutiny. See Mowles v. Comm’n on Governmental

Ethics & Election Pracs., 2008 ME 160, ¶ 12, 958 A.2d 897. To satisfy strict

scrutiny, a prior restraint on speech must be “necessary to serve a compelling

state interest and . . . narrowly drawn to achieve that end.” Ass’n of Indep. Pros.

v. Me. Lab. Rels. Bd., 465 A.2d 401, 410 (Me. 1983) (quotation marks omitted).

[¶38] The court’s order relied on Title 22, section 4007, which provides

that “[a]ll [child protection] proceedings and records shall be closed to the

public, unless the court orders otherwise.” 22 M.R.S. § 4007 (2025); see also

22 M.R.S. § 4008 (2025) (limiting the release of records and information

connected to child protection cases). There is no question that the state has a
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compelling interest in ensuring that child protection proceedings remain

confidential. Safeguarding the details of a child’s alleged abuse and medical

conditions is of paramount importance. See Globe Newspaper Co. v. Super. Ct.

for Norfolk Cnty., 457 U.S. 596, 607–08 (1982) (protecting the physical and

psychological well-being of a minor is a compelling interest); see also Handler

v. Mayhew, 841 F. Supp. 2d 443, 445 (D. Me. 2012) (“[T]he state has a recognized

interest in protecting child victims from undue trauma and humiliation

. . . .” (quotation marks omitted)).

[¶39] However, the trial court’s order restraining the mother’s speech is

not narrowly tailored to ensure confidentiality throughout the proceedings and

to protect the child’s well-being. A restriction on speech is narrowly tailored if

it does not “unnecessarily circumscribe protected expression.” In re Dunleavy,

2003 ME 124, ¶ 30, 838 A.2d 338 (quotation marks omitted).

[¶40] The Supreme Court of Pennsylvania held that, in an ongoing child

protection case, an order forbidding a parent from communicating details to

the public which would tend to identify the child, including the use of the

parent’s name in public communications about the child protection case or

child abuse generally, was a permissible restraint on speech. S.B. v. S.S., 243

A.3d 90, 113 (Pa. 2020). The Court explained that the order restricting speech
20

affords Appellants ample opportunity to disseminate all of their
thoughts into the marketplace of ideas without restriction on the
content of their message. The gag order further allows Appellants
to voice all of their opinions regarding issues important to them,
including parental alienation, child sexual abuse, and placement of
children in the custody of sexually abusive parents, and to testify
about these issues before governmental bodies in an effort to
remedy these vital societal concerns. The only limitation on
Appellants’ speech lies in the manner of communication, as they
are precluded from conveying such public speech in a way that
exposes Child’s identity and subjects him to harm.

Id. at 107.

[¶41] In contrast to the order approved in S.B., here, the court issued a

sweeping restriction that prevents the mother from “speaking to the media,

posting on any social media platform, or speaking about any issues involved in

this litigation.” This restraint on speech appears to preclude political speech

such as advocacy for reform of the child protection system. It may also prevent

the mother from speaking to the media and posting on social media in general.

The mother’s ability to speak to the press about her experience with this case

as a means of advocating for policy or governmental change is the exact kind of

“core speech” that the First Amendment is intended to protect. However,

disclosing information which would tend to identify the child is not core speech

and may be restricted given the government’s compelling interest in protecting

the child from harm.
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[¶42] Likewise, a prior restraint with no definite term may be overbroad,

depending on the circumstances. See Vance, 445 U.S. at 316 (striking down

obscenity statute on ground that it restrained speech for period of indefinite

duration); see also Wacko’s Too, Inc. v. City of Jacksonville, 658 F. Supp. 3d 1086,

1122 (M.D. Fla. 2023), aff’d, 134 F.4th 1178 (11th Cir. 2025) (“A permissible

prior restraint requires a time limit on when the decisionmaker must issue the

license.”); Microsoft Corp. v. United States Dep’t of Just., 233 F. Supp. 3d 887,

900-01 (W.D. Wash. 2017).

[¶43] Although the State has a compelling interest in restricting access

to child protection proceedings and enforcing nondisclosure of private

information, the court’s order is not narrowly tailored to achieve that interest.

We thus vacate the order restraining the mother’s speech and remand to the

trial court for modification, including by providing a time limit and narrowing

the order’s scope to encompass only the disclosure of confidential information

or information that would tend to identify the child.

F. The court did not err in denying the motion for relief from judgment
without holding a hearing.

[¶44] Following the process we have outlined for raising a claim of

ineffective assistance of counsel, the mother moved for relief from judgment
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under M.R. Civ. P. 60(b)(6). See In re Destiny H., 2024 ME 66, ¶¶ 38-42, 322 A.3d

1183. The court denied the motion without a hearing.2

[¶45] A court is not required to hold a hearing on every motion for relief

from judgment alleging ineffective assistance of counsel. In re Child of Shaina T.,

2019 ME 107, ¶ 17, 211 A.3d 229; In re David H., 2009 ME 131, ¶ 34, 985 A.2d

490. We have said that “[t]he trial court has broad discretion in determining

what process is necessary to meaningfully assess a parent’s claim while

balancing the State’s important interest in expeditiously establishing

permanent plans for children. Such a determination will necessarily call upon

a trial court to tailor the process to the facts and circumstances of each case.”

In re Child of Shaina T., 2019 ME 107, ¶ 17, 211 A.3d 229 (quotation marks

omitted).

[¶46] The court’s decision whether to hold an evidentiary hearing on a

motion for relief from judgment is reviewed for an abuse of discretion. See

Smith v. Kennard, 496 A.2d 660, 663 (Me. 1985) (explaining that “the court

acted within its discretion in ruling on [the] motion for relief from judgment

2The mother thereafter moved for further findings of fact and conclusions of law on the court’s
denial of the Rule 60(b) motion, and she argues on appeal that the court’s denial of the motion was
error. However, we reiterate that motions under M.R. Civ. P. 52 for findings of fact are not
appropriate when there has been no evidentiary hearing. M.R. Civ. P. 52(a) (requiring findings of fact
upon request only “[i]n all actions tried upon the facts without a jury”); see In re Children of Kacee S.,
2021 ME 36, ¶ 10 n.4, 253 A.3d 1063 (“The court did not take evidence in connection with its denial
of the M.R. Civ. P. 60(b) motion, so the M.R. Civ. P. 52(b) motion was not appropriate.”).
23

without holding an evidentiary hearing.”). In reviewing the court’s denial of the

motion, we “determine whether the mother has made a prima facie showing of

ineffective assistance of counsel sufficient to justify a remand to the trial court

for a hearing on the claim.” In re Children of Kacee S., 2021 ME 36, ¶ 21, 253

A.3d 1063.

[¶47] A parent claiming ineffective assistance of counsel in a child

protection case must 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 . . . proceeding to the extent that the trial cannot

be relied on as having produced a just result.” In re Destiny H., 2024 ME 66,

¶ 26, 322 A.3d 1183 (alterations and quotation marks omitted).

[¶48] The mother’s motion alleges that the attorney who represented

her at the jeopardy hearing failed to issue out-of-state subpoenas for critical

medical witnesses and did not move to continue the jeopardy hearing to allow

time to do so. The mother did not subpoena the witnesses during the period

leading up to the hearing when she was self-represented, and alleges she was

unaware that she could. The motion further states that the attorney was
24

representing her at the jeopardy hearing under a limited appearance

agreement. See M. Bar. R. 1.2(c). The entry of limited appearance was filed with

the court and specifically recited that no continuance was being requested, that

the appearance would commence on the first day of the jeopardy hearing and

end at the conclusion of the hearing, and that the attorney would “have no

further obligations or duties in this matter.” Indeed, the mother’s brief to this

court specifically confirms that she agreed that the attorney’s representation

would not include subpoenaing witnesses.

[¶49] Based on the allegations contained in the motion, as supported by

the entry of the limited appearance, it is clear that the mother’s attorney did

exactly what she was hired to do. There is no claim that the attorney’s

performance during the trial was ineffective. The claim is based on the failures

to subpoena witnesses or move to continue the trial, both of which were

expressly outside the scope of the limited representation.

[¶50] Moreover, as we have already explained, there was no

unconstitutional denial of counsel in the period leading up to the trial. And, as

we have long held, a self-represented litigant is held to the same standards as

an attorney with respect to the rules. Estate of Turcic, 2017 ME 118, ¶ 5, 164

A.3d 134. Therefore, there can be no claim for ineffective assistance of counsel
25

simply because the mother may have been unaware of the procedure to

subpoena witnesses who were outside of Maine.

[¶51] Because the mother’s motion did not make a prima facie showing

that counsel’s performance was deficient, the court did not abuse its discretion

by denying the mother’s motion for relief from judgment.

The entry is:

Judgment affirmed as to the jeopardy order and
the denial of the mother’s Rule 60(b)
motion. The order restricting the mother’s
speech is remanded for modification in
accordance with this opinion.

Scott F. Hess, Esq., The Law Office of Scott F. Hess, LLC, Augusta, for appellant
Mother

Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen., Office
of the Attorney General, Bangor, for appellee Department of Health and Human
Services

Portland District Court docket number PC-2023-67
FOR CLERK REFERENCE ONLY