MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 55
Docket: Ken-25-359
Argued: March 3, 2026
Decided: June 25, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ., and
HJELM, A.R.J.
Concurrence: CONNORS, J.
IN RE CHILD OF MINDY P.
HJELM, A.R.J.
[¶1] Mindy P.’s parental rights to one of her children were terminated by
an order issued by the District Court (Augusta, Dieterich, J.). The termination
order was predicated upon the consent given by a guardian ad litem (GAL) who
had been appointed to represent the mother’s interests. The mother appeals,
arguing, among other things, that the process used by the court to appoint the
GAL violated her right to due process. 1 We agree with this contention and
therefore vacate the judgment and remand for further proceedings.
1 The mother also argues that she was deprived of effective assistance of counsel during the proceedings. Because we vacate the judgment on other grounds, we do not directly address this issue, although we discuss the duties owed by an attorney who represents a parent both when suspecting that the parent needs a GAL and, if one is appointed, while continuing to represent the parent, see infra ¶¶ 33-34 & n.12.
2
I. BACKGROUND
[¶2] We describe the relevant history of this case, drawn from the
procedural record. This description goes into some detail as necessary to
explain the process that resulted in the appointment of the GAL and its
consequences as the case progressed.
[¶3] In early June 2023, the Department of Health and Human Services
filed a petition for a child protection order and a request for a preliminary
protection order regarding the mother’s youngest child, who is now five years
old. 2 In the petition, the Department asserted, among other things, that the
Department had been involved with the mother “episodically since 2017 with
concerns for substance abuse, untreated mental health issues, and neglect to
the children.” The court (Woodman, J.) entered a preliminary child protection
order granting custody of the child to the Department and scheduled a
summary preliminary hearing for later in June. The mother did not appear at
that hearing or otherwise request to be heard, so the preliminary protection
order placing the child in the Department’s custody remained in effect. See
2 The mother has three children, but this appeal addresses only the termination of her parental
rights to the youngest. The child protection proceeding encompassed one of the mother’s other children. The record before us indicates that that other child is in a permanency guardianship. See 22 M.R.S. § 4038-C (2026).
3
22 M.R.S. § 4034 (2026). A jeopardy hearing was scheduled for August and was
continued several times before the hearing was held the following May.
A. Appointment of the mother’s Rule 17(b) GAL, August and
September 2023
[¶4] On August 31, 2023, about a week before the jeopardy hearing was
to be taken up on a trailing trial list, the court (Daniel Mitchell, J.) met with the
mother’s attorney, the attorney for the Department, and the child’s GAL to
address an oral request presented by the mother’s attorney that a GAL be
appointed pursuant to M.R. Civ. P. 17(b) to represent the mother’s interests.3
No motion had been filed, and it appears that the conference had not been
scheduled in advance. The mother asserts—and there is no record evidence or
suggestion to the contrary—that she was never personally notified that this
conference would take place or that her competency was being called into
question. The conference was recorded but not entered on the docket.
3 Maine Rule of Civil Procedure 17(b) states:
Whenever a minor or incompetent person has a representative, such as a general
guardian, conservator, or other like fiduciary, the representative may sue or defend
on behalf of the minor or incompetent person. A minor or incompetent person who
does not have a duly appointed representative may sue by a next friend or by a
guardian ad litem. The court shall appoint a guardian ad litem for a minor or
incompetent person not otherwise represented in an action or shall make such other
order as it deems proper for the protection of the minor or incompetent person. In
any action in which there are or may be defendants who have been served only by
publication and who have not appeared, the court may appoint an agent, guardian ad
litem, or next friend to represent them.
4
[¶5] During the conference, the mother’s attorney stated that during
“virtually every interaction [he’d] had with [the mother] she’s been
dysregulated”; that he believed that the mother had “significant mental health
issues that are not being addressed”; and that the mother had “disappeared for
a while. She took off to Florida.” In response, the court told the mother’s
attorney that it “trust[ed] [his] instincts” and that if he thought the mother
needed a GAL and the Department did not believe otherwise, then the court was
“inclined” to issue the order.4
[¶6] In response to the court’s inquiry about the role the GAL would play,
the attorneys stated that the extent of the GAL’s authority to make decisions on
the mother’s behalf would depend on how the court crafted the appointment
order. The court then stated that it planned to “give the [GAL] the full standard
. . . range of authority.” After this brief colloquy, the court stated that it was
“satisfied” and that it would “go ahead and order” the appointment of a GAL.
[¶7] Two weeks later, on September 14, 2023, a different judge
(Bristol, J.) issued an order appointing the GAL for the mother.5 The order
4 When asked by the court, the child’s GAL stated that she supported the appointment of a GAL for the mother.
5 It is unclear why the judge signing the written order was not the same judge who had participated in the August 31 conference. Given the consequential nature of the order, this is not the best practice.
5
stated that the court was relying upon “representations of counsel” when
determining that it was appropriate to appoint a GAL for the mother. The order
cited no evidence of incompetency to support its determination. Using a form
order for appointing a Rule 17(b) GAL, the court named the GAL and listed the
standard panoply of a GAL’s duties without limitation. 6 Pursuant to the order,
Coincidentally, on the same day the court appointed the GAL, the mother went to a hospital due to depression and anxiety and was found to have met the criteria for acute psychiatric involuntary hospitalization. She was involuntarily hospitalized for about a month.
6 The order describes the GAL’s duty and authority as follows:
A. If this appointment is made due to a finding of incompetence, and the GAL
believes the finding should be reconsidered, the GAL shall file a motion to that
effect with the Court.
B. The GAL shall be provided access to all pleadings, reports, and records relevant
to the case to which the party for whom this GAL is appointed has access.
C. The GAL shall be relieved of: (i) any duty or obligation to conduct an independent
investigation of any facts related to this proceeding; (ii) any duty or obligation to
have face-to-face contact with the party for whom a GAL is appointed on a set
scheduled basis; and (iii) any duty or obligation to report to the parties and the
court in writing.
D. The GAL shall have face-to-face contact with the party for whom a GAL is
appointed pursuant to this Order as often as events and developments in this case
warrant. The GAL shall conduct such investigation of the facts related to this
proceeding that, in his/her independent judgment, is reasonably necessary to
serve her interests.
E. The GAL shall attend and observe all court proceedings in this case. The GAL shall
have the right to be heard in any court proceeding in this case. The GAL is further
authorized to appear on the same basis as the party for whom this GAL is
appointed in the present action, to present and defend any claims or causes of
action on behalf of the party, including the presentation and submission of
testimony and evidence at trial, and to make binding decisions on behalf of the
party in this matter, including the compromise of any of the party's claims.
F. The GAL may file such motions, and take such other steps as are necessary to
obtain legal counsel for the party for whom this GAL is appointed.
G. The GAL shall be relieved of the rights, duties, and responsibilities provided by
the Maine Rules of Guardian ad Litem, and more particularly, the Standards of
Practice for Guardians ad Litem in Maine Courts because they are inconsistent
with the provisions of this Order. The obligations of a Rule 17(b) Guardian are
more closely aligned with those of a fiduciary, such as a GAL appointed for an
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the GAL was “authorized to appear on the same basis as the party for whom this
GAL is appointed in the present action” and “to make binding decisions on
behalf of the party in this matter, including the compromise of any of the party’s
claims.” The jeopardy hearing was continued generally, with a plan to schedule
the case for docket call several months out to give the GAL time to work on the
case.
B. Pre-jeopardy hearing developments, September 2023 to May 2024
[¶8] In a filing submitted in mid-December 2023, the Department moved
to continue the jeopardy hearing and referred to a conference that the court
had apparently held with counsel four days earlier. The conference was not
recorded or entered on the docket. In the motion, the Department recited that,
at that conference, “[t]he parties [had] agreed that a CODE evaluation[7] would
incapacitated person by the Probate Court. However, a Rule 17(b) GAL’s
authority and obligations concern only the present litigation and no other aspects
of the life of the party for whom this GAL is appointed.
H. The Order shall serve as authorization for the GAL to communicate with the
medical treatment providers of the party for whom this GAL is appointed as
necessary to understand the nature and extent of that party’s illness, the impact
of that illness on the party’s ability to act on the party's own behalf, and the impact
of the party's illness on the relief that the party may seek in the proceeding.
Section ten, entitled “General Provisions Applicable to All GAL Appointments,” includes a provision stating, “The GAL shall make the wishes of the party for whom this GAL is appointed known to the court if the party has expressed them, regardless of the recommendation of the GAL.”
7 “CODE” refers to a court-ordered diagnostic evaluation.
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be helpful” prior to the jeopardy hearing and that neither the attorney for the
mother nor the GAL for the mother objected to a continuance of the hearing for
that purpose. The court (Bristol, J.) granted the motion, and a few weeks later,
a different judge (Montgomery, J.) issued an order directing the mother to
undergo the diagnostic evaluation. The evaluation was conducted in February
and March 2024.8
C. The jeopardy hearing, May 2024
[¶9] The jeopardy hearing, which the mother attended, was held on
May 9, 2024, and related to the two children who were the subject of the
proceeding, including the child at issue here, see supra n.2. See 22 M.R.S. § 4035
(2026). At the start of the hearing, the court (Dufour, J.) addressed the mother’s
attorney’s request to withdraw, which had been filed in April and reported “a
fundamental disagreement” about how to proceed and which the court had
previously denied. Another attorney also appeared for the mother at the
hearing and informed the court that the mother had retained his firm to
represent her. The Department, the mother’s GAL, and the children’s GAL
The CODE report, admitted as an exhibit at the jeopardy hearing, describes problems affecting
8
the mother that relate to dysregulation, confused thinking, incoherence, and a compromised understanding of reality. Nonetheless, the report indicates that the mother acknowledged the purpose of the evaluation and gave verbal permission for the examination and for the results to be released to the Department. Relatedly, at the jeopardy hearing, the examiner testified that the mother’s GAL had told him that she thought that the mother was capable of providing information and participating in the evaluation.
8
objected to the mother’s initial attorney’s withdrawal on the grounds that there
had already been several continuances and that the case needed to proceed. See
22 M.R.S. § 4035(4-A). The court ordered that the hearing would be held that
day and directed the mother’s initial attorney and the retained attorney to work
together to represent the mother at the hearing.
[¶10] Before any evidence was presented, the mother’s GAL stated, “I’ve
been discussing this with my client – she is asking to allow us to try and craft
[an] agreement with the Department and to not have the hearing today on
jeopardy.” Because of the limited availability of the psychologist who had
performed the CODE, the court commenced the hearing to allow the
psychologist to testify, with a plan to then recess so the parties could explore
an agreement.
[¶11] The psychologist testified about the mother’s delusions and
difficulties with thought processes and focusing, and the effects of these
conditions on her ability to parent. The psychologist indicated that the
mother’s intellectual skills were not compromised but that she had “diminished
capacity with other cognitive skills.” He testified that she had shown
improvement when hospitalized and on an “antipsychotic antidepressant.”
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[¶12] The court also took testimony from the children’s resource parent
and the Department’s caseworker. The resource parent testified in part about
erratic behavior by the mother that was of sufficient concern to warrant her
obtaining a no-trespass order. The caseworker testified about the
circumstances leading to the initiation of the child protection proceeding,
including her observations of the state of the mother’s home, and about the
statement to the caseworker by one of the children that she had not been to
school in the past two days because the mother had told the child that it was
dangerous to be there.
[¶13] After the court took a recess and the parties conferred, the
attorney for the Department advised the court that the parties had reached an
agreement and that “all parties in this room” had seen the agreed-to order. The
proposed order provided for a cessation of efforts to reunify the mother with
the older child but continued reunification services with the younger child. The
mother’s GAL noted, however, that the mother did not agree to ceasing
reunification efforts as to the older child, despite the Department’s earlier
statement. When the court asked the mother if she wished to speak, she
declined. The court then told the mother that there would be “other
opportunities moving forward,” such as judicial review hearings and family
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team meetings, and that, if the mother wanted to return to court before the
review scheduled for July, “you have attorneys that you can . . . consult with
about that, and they can file motions for expedited hearings.”
[¶14] The resulting jeopardy order, issued later that day, stated that the
mother was unable to provide adequate care for the children as a result of her
“untreated significant mental health” concerns. It noted that an evaluating
doctor found “several risk factors” for the mother and that her “mental health
has had a negative impact on her ability to care for herself and her children.”
The order provided that the Department was to maintain custody of the
children. After the hearing, the mother’s first lawyer renewed his motion to
withdraw, again citing material differences regarding “how [to] best conduct
legal representation,” and the court granted this motion. The mother’s retained
counsel remained in the case.
D. The August 29, 2024 hearing
[¶15] In late August, the court (Hathaway, J.) held a judicial review and
permanency planning hearing, which the mother attended along with the
Department’s attorney and the mother’s retained attorney. See 22 M.R.S.
§ 4038 (2026); 22 M.R.S. § 4038-B (2026). The appearance of the mother’s GAL
was delayed because of a scheduling conflict. The Department’s attorney
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presented the court with a proposed permanency guardianship order for the
older child. 22 M.R.S. § 4038-C (2026). The court asked whether the mother
agreed to the order, and the mother’s attorney answered that the mother did
not. The Department’s attorney indicated that the Department had
communicated with the mother’s GAL about the proposed order and that the
mother’s GAL supported the order on the mother’s behalf. The mother’s
attorney then stated that he did not think he would “have the authorization
from [his] client to agree” to any of the orders proposed at the hearing and
stated, “I am anticipating that [the mother’s GAL] is going to disagree with [the
mother] on probably all of these questions and issues.”
[¶16] The court indicated that it would continue the matter involving the
older child for another judicial review, stating that the mother’s attorney and
the mother’s GAL “will have to figure out . . . who [the mother’s attorney] takes
his direction from in a situation like this. But that’s for you guys to figure out.”
[¶17] The court then addressed a proposed order on judicial review and
permanency planning relating to the younger child and asked the mother’s
attorney whether he was indicating that he could not “agree to that today
without [the mother’s GAL].” The attorney answered that he could not
“personally, on behalf of [the mother,] . . . agree.” The attorney added, “Whether 12
or not [the mother’s GAL], in her role as the 17(b) guardian, will choose to do
so for [the mother] is another matter.”
[¶18] After an email was presented indicating that the mother’s GAL
agreed to the orders, the mother’s attorney said that there was “a key difference
between what my – what my client is saying and – what [the mother’s GAL] is
saying.” He added that he did not think that “the two of them [had] to agree,”
but stated, “I don’t think I’m taking my direction from [the mother’s GAL]. I take
my direction from my client of whether or not she has the final say – my client
then has the final say on this issue. I believe that is – that’s a matter of the – the
17(b) guardian’s responsibility if I’m not mistaken.”
[¶19] The Department’s attorney then expressed the view that the
mother’s GAL stepped into the shoes of the mother and that the mother’s
attorney should be taking his direction from the mother’s GAL. The court
responded, “That’s the way I see it. That is my understanding.” The court then
said that it was “still concerned about the position that [the mother’s attorney]
finds himself in, of having essentially two clients. One is his actual client; the
other is the 17(b) guardian,” who was not yet present. The court stated, “I think
they need to have maybe a three-way discussion among them [about the]
attorney/client relationship and come to some consensus, at least if not on the
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decisions themselves, on who [the mother’s attorney] is going to take his
directions from because I think the purpose of the 17(b) guardian is, as [the
Department’s attorney] points out, to stand in the shoes of a person who is
unable to advise their attorney what they want. And that’s why the [c]ourt has
appointed a 17(b) guardian.”
[¶20] Later that day, after the mother’s GAL became available remotely,
the court reopened the hearing. The mother’s GAL confirmed that she agreed
to the permanency guardianship order as to the older child over the mother’s
objection, after having had discussions with the mother. When the mother’s
GAL was about to describe those discussions, the court interrupted the GAL,
stating that it did not need to know the content of the discussions between the
mother and the GAL, just that discussions had taken place. The mother’s GAL
then confirmed that the GAL agreed to the judicial review order for the younger
child. After the court asked whether the mother’s attorney had anything to add
and the attorney answered that he did not, the court issued the judicial review
order regarding the younger child.
E. The judicial review hearing, March 27, 2025
[¶21] The mother’s retained counsel filed several motions to withdraw,
reporting, among other things, that the attorney-client relationship had
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“broken down.” The court granted the last of the motions to withdraw, in
December, and later appointed successor counsel to represent the mother.
[¶22] In late March 2025, the court held another judicial review hearing,
at which the mother’s newly appointed attorney was present, but the mother
was not due to a work conflict. At that hearing, the mother’s attorney stated
that “we are in agreement” with the proposed judicial review and permanency
planning order but did not explicitly identify whom “we” referred to. The
mother’s attorney noted that the mother was now living in Florida and was
engaged in some services there, though those services “may not meet what the
Department wants to see.” The court stated that the proposed order would
“maintain[] the status quo” but that an anticipated petition for termination of
the mother’s parental rights would “start a new track in this case.”
[¶23] The resulting judicial review order, issued the same day, stated
that the mother was “not involved in any services to the Department’s
knowledge” and that the assigned caseworker had attempted to engage with
the mother, but that the mother had “asked the caseworker to stop
communicating with her” and stated that she would “find ‘another Department’
to work her case.” The order noted that the mother’s visits with the child had
been suspended in October 2024 as a result of the mother’s behavior during the
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visits and the child’s reaction to her. The order stated that the Department
nonetheless would be required to engage in reunification efforts with the
mother.
F. The termination hearing, August 4, 2025
[¶24] In June 2025, the court granted the Department’s motion to amend
a termination petition that had already been filed as to the child’s father, so as
to add the mother. See 22 M.R.S. § 4052 (2026). In July, the mother’s attorney
filed a motion to withdraw reportedly pursuant to the mother’s request, citing
a breakdown of the attorney-client relationship. The court (Bristol, J.) denied
the motion.
[¶25] The court (Dieterich, J.) held a hearing on the amended termination
petition on August 4. The mother’s attorney and the mother’s GAL were
present, but the mother herself was not.9 The mother’s attorney stated that she
“believe[d] it [was] in [the mother’s] best interest to avoid an aggravating factor
which exists in Title 22, if [the court] were to proceed with the default hearing”
and believed that the mother’s GAL was “prepared to consent on behalf of [the
At the hearing, the mother’s GAL indicated that she believed that the mother had chosen not to
9
be present for the hearing. She also stated that the mother did not believe that she had been “properly served in this case,” though the mother’s GAL believed that she had.
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mother] and that . . . [consent was] in [the mother’s] best interest.”10 The
mother’s GAL agreed that it was in the mother’s best interest to consent to a
termination order to avoid generating an aggravating factor. The GAL further
asserted that, in her view, the court’s appointment order gave her authority to
consent to the termination of the mother’s rights.
[¶26] The Department then stated that, although it agreed that the
mother’s GAL had decision-making authority, it preferred that the court
nonetheless conduct an evidentiary hearing in order “to put evidence on why
there is clear and convincing evidence of parental unfitness.” The mother’s
attorney and GAL disagreed, stating that a hearing on the merits of the
termination petition would risk creating an aggravating factor against the
mother and thus would not be in the mother’s best interest. The mother’s
attorney stated that if the court did proceed with a termination hearing, the
attorney anticipated an appeal and therefore agreed that “the best interest of
[the mother is] served by a consent.” The mother’s attorney also asserted that
the GAL “has a specific order that has not been appealed that gives [the
Title 22 M.R.S. § 4002(1-B)(C) (2026) provides that an involuntary termination of parental
10
rights is an aggravating factor in any future proceeding involving a sibling. The existence of an aggravating factor may relieve the Department of its obligation to make reasonable efforts to prevent removal of the child from the home or to reunify the family. 22 M.R.S. § 4041(2)(A-2)(1) (2026); 22 M.R.S. § 4036-B(3) (2026).
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mother’s GAL] the authority to consent [to] an act in [the mother’s] best
interest.”
[¶27] The court concluded that the mother’s GAL held the authority to
consent to termination on the mother’s behalf and that, given that the mother’s
GAL and the mother’s attorney believed that termination by consent was in the
mother’s best interest, it would enter a termination order based on that
consent.
[¶28] The court did, however, allow the Department to present
testimony from the mother’s GAL to develop the record on the issue of consent.
The mother’s GAL testified that, although she had met with the mother “many
times over the course of this case,” they had not discussed the termination
petition and that despite contacting the mother’s attorney several times to
discuss the case and to try to arrange a meeting with the mother, the mother
had refused to meet. The mother’s GAL stated that, consequently, the mother
was not aware of the GAL’s intent to consent on her behalf.
[¶29] The court issued the termination order, signed by the mother’s
GAL, that day. The written consent executed by the GAL recited that the mother
waived her right to appeal. The mother’s attorney requested that the waiver
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language be deleted, but the court declined. The mother filed a timely appeal.
M.R. App. P. 2B(c)(1). 11
II. DISCUSSION
A. The relevant law regarding appointment of a Rule 17(b) GAL and,
specifically, a GAL for a parent in a child protection proceeding
1. General principles governing the appointment of a Rule 17(b)
GAL
[¶30] When an attorney representing a client believes that the
appointment of a GAL for the client may be warranted, the attorney can—and
should—advise the court of that concern. See In re Child of Mercedes D., 2018
ME 149, ¶ 17, 196 A.3d 888 (“We recognize that an attorney bears the
‘responsibility to alert a court to [his or her client’s] possible incompetence,’
Middleton v. State, 2015 ME 164, ¶ 15, 129 A.3d 962, and we are not critical of
mother’s counsel for bringing her concerns to the court’s attention.” (alteration
in original)); see also M.R. Prof. Conduct 1.14(b) (“When the lawyer reasonably
believes that the client has diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot adequately act in the
11 To the extent that the Department contends that the consent and the waiver of appeal contained
within the consent effectively forecloses the mother’s appellate rights, that contention is unpersuasive because, for the reasons set out in this Opinion, the appointment of the GAL—who executed the waiver—was based on a judicial process that was materially deficient.
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client’s own interest, the lawyer may take reasonably necessary protective
action, including . . . seeking the appointment of a guardian ad litem . . . .”).
[¶31] Before the court appoints a Rule 17(b) GAL, the person for whom
the GAL is contemplated is entitled to due process—i.e., adequate notice and an
opportunity to be heard. See In re Guardianship of Chamberlain, 2015 ME 76,
¶¶ 17-20, 118 A.3d 229 (noting that due process protections apply to
guardianship determinations and applying the due process test set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976)); Eldridge, 424 U.S. at 333 (“The
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.”) (quotation marks omitted));
Thomas v. Humfield, 916 F.2d 1032, 1033-34 (5th Cir. 1990) (holding that a
party to litigation is entitled to notice and a hearing before the court declares
him incompetent and appoints a GAL); Thomasson v. Thomasson, 106 N.E.3d
1239, 1243-44 (Ohio 2018) (holding that prior to the appointment of a GAL for
an adult, the adult is entitled to notice and a hearing on the matter) (collecting
cases); cf. 18-C M.R.S. § 5-303(2) (2026) (stating that in adult guardianship
proceedings, a copy of a petition to appoint the guardian and notice of a hearing
on the petition must be served personally on the person for whom a
guardianship is sought informing the person of the person’s rights at the
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hearing); S.T. v. 1515 Broad St., LLC, 227 A.3d 1190, 1201 (N.J. 2020) (holding
that an attorney “acted in good faith when, pursuant to [the Rules of
Professional Conduct], he requested the appointment of a guardian ad litem
based on his reasonable belief” as to his client’s cognitive and mental
impairments, but that the attorney “erred in not copying his client on the
motion for the appointment of a guardian ad litem” because the client “had the
right to know about such a consequential motion filed by her lawyer”).
[¶32] After there is some showing or suggestion that a party may be
incompetent, a hearing must be held. The content of the competency hearing is
flexible, but, ordinarily, medical evidence is presented for the court’s
consideration. See In re Est. of Wood, 533 A.2d 772, 774 (Pa. Super. Ct. 1987)
(stating that “[m]edical testimony is of great significance since it assists the trial
court in determining the nature, severity, and consequences of an alleged
incompetent’s disability,” while noting that lay testimony as to the person’s
spoken words, acts, and conduct may also be highly probative); United States v.
Muriel-Cruz, 412 F.3d 9, 13 (1st Cir. 2005) (“In arriving at a competency ruling,
the district court may rely upon various kinds of evidence, including written
medical opinions and observations by the court, counsel, and defendant himself
regarding the defendant’s demeanor and fitness to stand trial.”); cf. 15 M.R.S.
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§ 101-D(1) (2026) (“The court may for cause shown order that the defendant
be examined to evaluate the defendant’s competency to proceed . . . .”);
18 U.S.C.A. § 4241(b) (Westlaw through Pub. L. No. 119-98) (“[T]he court may
order that a psychiatric or psychological examination of the defendant be
conducted, and that a psychiatric or psychological report be filed with the court
. . . .”); see generally In re Gower, 113 Me. 156, 156, 93 A. 64, 65 (1915)
(upholding appointment of a guardian where “[a] perusal of the record
discloses that full hearing was had, and ample opportunity afforded for
presentation of evidence. The petitioner was upon the stand, and much time
was devoted to the inquiry as to her mental condition.”); King v. Robinson,
33 Me. 114, 125 (1851) (“Whether the weakness of mind or decay of intellect is
so great as to prevent their being regarded as compos mentis, is often a question
of great delicacy and difficulty. One, which in many cases, can only be decided
properly after a most careful and thorough investigation and examination of
testimony.”).
[¶33] At the hearing to determine the competency of a party, the role of
the attorney for the party whose competency has been questioned by the
attorney is to advocate for what the attorney concludes is in the client’s best
interest. See generally United States v. Boigegrain, 155 F.3d 1181, 1189
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(10th Cir. 1998) (describing the scope of defense counsel’s duties when counsel
concludes that there is a competency issue and the defendant objects); Bishop
v. Superior Ct., 724 P.2d 23, 29 (Ariz. 1986) (noting that because of the unique
nature of a hearing to determine competency to stand trial, the attorney’s duty
is to aid the judge in reaching the correct decision).
[¶34] If a GAL is appointed, the role of the attorney for the party
ordinarily is to follow the instructions of the GAL. See Restatement (Third) of
L. Governing Laws. § 24 (2000) (“When a guardian has been appointed, the
guardian normally speaks for the client as to matters covered by the
guardianship. . . . The lawyer therefore should normally follow the decisions of
the guardian as if they were those of the client.”); Billups v. Scott, 571 N.W.2d
603, 605 (Neb. 1997) (“[A] guardian ad litem, generally speaking, steps into the
position of the ward and, after considering the alternatives, asserts the right of
the ward as the guardian ad litem sees fit.”).12
That the attorney follows the instructions of the party’s GAL is the general rule. There may be
12
unusual situations, however, where the court may conclude that the attorney should not adhere to the GAL’s instructions if those instructions are contrary to the ward’s expressed desires and the attorney representing the ward concludes that the GAL’s instructions are contrary to the ward’s best interests. See Schult v. Schult, 699 A.2d 134, 142 (Conn. 1997); Gross v. Rell, 40 A.3d 240, 260 (Conn. 2012) (conservator). The scope of a GAL’s duty “lies within the parameters of the order of appointment,” Gerber v. Peters, 584 A.2d 605, 607 (Me. 1990), and any circumstances requiring the deviation from the general rule should also be made clear by the court. Similarly, if in the course of a proceeding, the attorney representing the ward has concerns as to whether the GAL’s instructions are in the ward’s best interest, the attorney should present those concerns to the court. See In re Child of Danielle H., 2026 ME 19, ¶ 12, 354 A.3d 349 (stating that with respect to GALs appointed for children in child protection proceedings, “[g]iven the GAL’s central role in child protection
23
2. Appointment of a GAL for a parent in a child protection
proceeding
[¶35] We now address those general principles as they apply specifically
to child protection cases.
[¶36] In a number of decisions, we have discussed the test that should
be used to determine whether a parent is competent to proceed in a child
protection case. See In re Child of Sherri Y., 2019 ME 162, ¶¶ 13-16, 221 A.3d
120; In re Child of Mercedes D., 2018 ME 149, ¶¶ 15-16, 196 A.3d 888; In re H.C.,
2013 ME 97, ¶ 16, 82 A.3d 80; In re David H., 2009 ME 131, ¶¶ 16, 21, 985 A.2d
490. Pursuant to Rule 17(b), the court is authorized to appoint a GAL to
represent the interests of an “incompetent person” generally. We thus draw on
the child-protection case law relating to the standards of competence
applicable to a parent to inform our analysis of when and how a GAL should be
appointed for a parent pursuant to Rule 17(b).
[¶37] As the case law reveals, in determining whether a parent is
incompetent, the court shall examine whether the parent is unable to answer
questions appropriately and unable to understand the nature and
consequences of the proceeding or is otherwise incompetent to assist counsel
proceedings, it is the responsibility of everyone involved, including the court, to address any deficiencies in the GAL’s performance.”).
24
and participate in the proceeding. See David H., 2009 ME 131, ¶ 16, 985 A.2d
490; see also H.C., 2013 ME 97, ¶ 16, 82 A.3d 80 (rejecting a claim that the
parents lacked capacity to consent to termination; “nothing in the record
suggests that the parents were mentally incompetent to participate in the
proceeding. To prevail on a claim of incapacity, the asserting party must prove
that he was unable to reasonably understand the nature and consequences of
the consent.”); Sherri Y., 2019 ME 162, ¶ 16, 221 A.3d 120 (describing the test
as whether the parent is “unable to understand the nature and consequences of
the termination hearing, c[annot] answer questions, or [is] otherwise
incompetent to participate in the hearing.”). This is not unlike the framework
that applies to the question of competency in the context of criminal
proceedings. See State v. Gerrier, 2018 ME 160, ¶ 7, 197 A.3d 1083.
[¶38] The test for the appointment of a GAL in a child protection case is
not whether the parent has a mental illness or incapacity that renders the
parent unfit—the question of parental unfitness, whatever the cause, is one
element of the ultimate termination decision. 22 M.R.S. § 4055 (2026). Rather,
when it comes to the appointment of a GAL for a parent, the question focuses
on the measure and quality of the parent’s ability to participate meaningfully
and effectively in the judicial process—more specifically, whether the parent
25
lacks sufficient capacity to assist counsel and to understand and participate
meaningfully in the proceeding. See Mercedes D., 2018 ME 149, ¶ 16, 196 A.3d
888 (holding that a mother’s “limited cognitive functioning is not the same as
being incompetent to proceed in” a child protection proceeding (alterations
and quotation marks omitted)); see also Dep’t of Hum. Servs. v. K.L.W., 288 P.3d
1030, 1035 (Or. Ct. App. 2012) (“[I]f the parent lacks some mental capacity, but
is able to make decisions and to communicate with and act on the advice of his
or her counsel, then the appointment of a guardian ad litem is unnecessary
because the guardian could provide little, if any, service to the parent, that
would not be forthcoming from counsel.” (quotation marks omitted)).13
B. Application of these relevant principles
1. Due process
[¶39] In this case, the mother was deprived of both components of due
process. As to the first element, no party contends that the mother was given
notice of the discussion between counsel and the court when the court
determined that a GAL should be appointed. And as to the second, because the
Citing Maine National Bank v. Petrlik, 283 A.2d 660 (Me. 1971), the mother argues that a GAL
13
in a proceeding to terminate parental rights (or at least in this proceeding) cannot consent to the termination. Petrlik, however, does not foreclose a GAL from agreeing to a termination where the GAL has a reasonable basis to conclude that a consented termination is in the mother’s best interest or when the undisputed facts “are to the advantage of” the incapacitated person. Id. at 662. This assumes, of course, that there is a proper order of appointment that authorizes the GAL to give such consent.
26
mother had no notice, she had no opportunity to be heard on the matter. The
deprivation was immensely consequential because, as the direct result of
counsel’s discussion with the court, the court approved the issuance of an order
(albeit issued several weeks later by a different judge) not only appointing a
GAL but also authorizing the GAL to “make binding decisions” on the mother’s
behalf, “including the compromise of any” of her claims.
[¶40] Notably, the Department does not defend the process that resulted
in the appointment of the GAL. Rather, the Department contends that, in the
end, the appointment was not erroneous when seen in light of the evidence of
the mother’s mental health problems that might be relevant to competency,
presented at various times throughout the proceedings. This contention,
however, ignores the clear deficiencies in the appointment process itself.
Beyond that, in a form of reverse engineering, the Department’s position rests
on evidence that was introduced into the record after the GAL was appointed—
evidence, in other words, that the court could not have known when agreeing
to appoint a GAL at the August 31 discussion and when actually issuing the
order a couple weeks later.
[¶41] The record also reveals—and the written order of appointment
confirms—that the decision to appoint a GAL was based solely on
27
“representations of counsel,” not actual evidence. The input from the attorney
representing a party whom the attorney suspects may be incompetent is
certainly relevant. See Muriel-Cruz, 412 F.3d at 13 (asserting that given that
counsel “enjoys a unique vantage for observing whether her client is competent
. . . it would be untoward indeed to disqualify her from stating her opinion”).
That limited information, however, did not provide the court with a sufficient
basis to determine whether to appoint the GAL in the first place and, if a GAL
were appointed, the scope of the GAL’s authority. Particularly given a parent’s
constitutional interest and the deeply consequential issues that can be
presented in a child protective case, see Adoption of Isabelle T., 2017 ME 220,
¶ 4, 175 A.3d 639, the court has an independent duty to determine competency
and whether decision-making authority should be delegated to a third person.
The mere statement of counsel that the mother appeared “dysregulated” and
has “significant mental health issues that are not being addressed” was not a
sufficient basis for the court to determine that the mother was incapable of
meaningfully assisting counsel and participating in the proceedings to the
extent that warranted giving authority to the GAL to make fundamental and
dispositive decisions affecting the mother’s parental rights.
28
[¶42] Further, the absence of evidence about the mother’s capacity to
make decisions as the case progressed and to collaborate with counsel appears
to have led to confusion, evident in subsequent court events, about the role of
her attorneys. As noted above, if a party is incompetent to the extent that the
party lacks the ability to meaningfully participate in proceedings, then, to the
extent authorized by the order of appointment, the attorney ordinarily follows
the GAL’s instructions because the GAL stands in the shoes of the party.
Without a hearing where the court could properly determine that appointment
of a GAL was warranted, the various attorneys representing the mother seemed
at times to follow the GAL’s direction and at other times voiced an
understanding that they should follow the mother’s directions—including by
filing this appeal after the GAL consented to the order the mother challenges
here. The court acknowledged this confusion but left it to the GAL and
attorneys to resolve the issue among themselves, even suggesting at one point
that the mother’s attorney had two clients: the GAL and the mother herself.
[¶43] For these reasons, it is manifest that the appointment of a GAL to
act and make decisions for the mother was devoid of the process the mother
was due.14
The Department argues that it is too late for the mother to challenge the appointment of the
14
GAL and that the mother is judicially estopped from raising the issue now because she could have
29
2. Prejudice and relief on remand
[¶44] The next question is whether the mother was prejudiced by this
constitutional deprivation. When a court commits error in a termination
proceeding, prejudice will be presumed and the burden then placed on the
Department to demonstrate “that it is highly probable that the error did not
prejudice the parents or contribute to the result in the case. The [Department’s]
burden of persuasion is high. Any doubt will be resolved in favor of the parent.”
In re Michelle W., 2001 ME 123, ¶ 12, 777 A.2d 283 (alteration omitted)
(quoting In re Scott S., 2001 ME 114, ¶ 29, 775 A.2d 1144).
raised the issue in an appeal of the jeopardy order. Judicial estoppel applies when a party successfully asserts one position in a legal proceeding and then asserts a contrary position at a later stage. See In re Child of Nicholas P., 2019 ME 152, ¶ 16, 218 A.3d 247. Here, it is unclear whether the mother herself ever fully agreed to many of the orders entered in this matter that were significant, and it is clear from the record that she opposed some. Even if judicial estoppel could apply in some circumstances similar to those presented here, we decline to invoke it in this case given the unique development of these proceedings, where the mother was denied due process in the appointment of her GAL very early on; where, after the GAL was appointed, including in the proceedings associated with the jeopardy hearing, the court and the mother’s attorneys were unclear as to the proper roles of her attorneys as between the GAL and the mother herself; and where the court told the mother directly that she would have future opportunities to express her views, creating the prospect that the mother believed she was not obligated to register a prompt complaint about how the GAL was appointed. See Me. Educ. Ass’n v. Me. Cmty. Coll. Sys. Bd. of Trs., 2007 ME 70, ¶ 17, 923 A.2d 914 (citing Supreme Court authority for the proposition that there is no “mechanical test” for determining the applicability of the judicial estoppel doctrine, and its purpose is “to protect the integrity of the judicial process”). The Department’s arguments of unpreserved error, waiver, and judicial estoppel are further weakened by its own assertion that the mother’s “mental health circumstances were extreme enough” to justify the appointment of a GAL. See Pate v. Robinson, 383 U.S. 375, 384 (1966) (“[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.”). Because the appointment process was fatally deficient and the succession of the mother’s lawyers were uncertain whose instructions they should follow—the GAL’s or the mother’s—the Department’s claims of a procedural default, no matter the form of those arguments, are unpersuasive.
30
[¶45] On the record before us, we must conclude that the Department
has not cleared that “high” burden of establishing that the error in process was
not prejudicial or did not contribute to the final result of termination by
consent. We therefore must vacate the judgment and remand for further
proceedings before the trial court.
[¶46] Two central questions arise regarding the process that will govern
this case on remand. The first focuses on the issue that causes us to vacate the
judgment, namely, how now to determine the mother’s competence. The
second question concerns the extent to which the earlier proceedings must be
set aside. We address these two issues seriatim.
a. Competency determination
[¶47] As the first step to be taken on remand, the court must hold a
hearing to determine whether a GAL should be appointed based on the
mother’s capacity, because such a determination is the necessary predicate to
all further proceedings. The record is replete with ongoing indications of the
mother’s mental health challenges, and, based at least on the motions to
withdraw filed by a succession of attorneys for the mother, there is a suggestion
that the mother has difficulties working effectively with counsel. Although
much of that information bears more on parental unfitness than on competence
31
for purposes of Rule 17(b), the latter is an open question especially given that
no party—not even the mother—has asserted to us that the mother is
competent. It is therefore an issue that needs to be addressed and adjudicated.
The question we must address is whether that determination should be of the
mother’s current competence or whether it would be appropriate for the court
to consider whether to reconstruct and make a retrospective determination of
the mother’s competence throughout the proceedings, where a retrospective
finding that the mother was competent throughout could potentially salvage
the proceedings that have already occurred.
[¶48] Courts have found that, in some circumstances, a retrospective
determination of competency is permissible, but such an approach is
“disfavored.” Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999). As the
Supreme Court of the United States has concluded, a nunc pro tunc
determination of competency faces “inherent difficulties . . . under the most
favorable circumstances.” Drope v. Missouri, 420 U.S. 162, 183 (1975); see Pate
v. Robinson, 383 U.S. 375, 387 (1966) (“But we have previously emphasized the
difficulty of retrospectively determining an accused’s competence to stand
trial.”); Dusky v. United States, 362 U.S. 402, 403 (1960). The test used in other
jurisdictions, which we find useful, is whether a hearing to determine
32
competency retrospectively would be “meaningful.” Clayton, 199 F.3d at 1169;
see McGregor v. Gibson, 248 F.3d 946, 962-63 (10th Cir. 2001); Reynolds v.
Norris, 86 F.3d 796, 802-03 (8th Cir. 1996). “A ‘meaningful’ determination is
possible where the state of the record, together with such additional evidence
as may be relevant and available, permits an accurate assessment of the
defendant’s condition at the time of the original . . . proceedings.” Reynolds, 86
F.3d at 802.
[¶49] We conclude that, given the particular circumstances of this case,
a nunc pro tunc hearing to determine the mother’s competence would not be
sufficiently meaningful to provide a present assurance that her due process
rights were—and are—protected. As we discuss below, infra ¶ 54, a child
protective proceeding comprises multiple interrelated chapters. Unlike a
criminal case, for example, where the question may be the quality of a
defendant’s competence at a specific or circumscribed time, such as at trial, the
issue here would be the mother’s competence over a broad span of time,
starting with when the court issued the GAL appointment order in September
2023, continuing to the jeopardy hearing the following spring, then multiple
review hearings, and concluding with the termination hearing held in August
2025—an overall span of nearly two years that ended around a year ago. Then,
33
within those points on the timeline, a court would also need to consider the
mother’s competence between court events, when she was consulting with her
succession of attorneys, talking with her GAL, and facing and considering the
decisions she would need to make as the case moved forward in its various
phases. Although the passage of time “is not an insurmountable obstacle,” id. at
803, it is relevant, McGregor, 248 F.3d at 962. And even the lapse of more than
one year can be enough to foreclose the appropriateness of a retrospective
competency determination. Dusky, 362 U.S. at 403.
[¶50] We recognize that records were generated from the mother’s
involuntary hospitalization in September and October 2023, and a report
resulted from the court-ordered diagnostic evaluation. 15 The availability of
such information is germane to the question of whether a nunc pro tunc
assessment would be proper. McGregor, 248 F.3d at 962. But those records are
limited in time, and while they may have some indirect bearing on competence,
they were not the product of evaluations for legal competence, which have a
unique and specific purpose and therefore unique and specific content.
15 The CODE report refers to several other reports, but they are not included in the record, so we
cannot gauge whether they would have any value if the court were to consider them during an attempt to reconstruct the level of the mother's past competence.
34
[¶51] Applying these and the other factors that courts have employed on
this question to the particular circumstances of this case, see Clayton, 199 F.3d
at 1169 (identifying four factors, including the passage of time and the
availability of medical records), we determine that a “meaningful” nunc pro
tunc determination of the mother’s competence during the relevant portions of
the development of this case is not realistic. 16 Therefore, on remand, the court
shall conduct a hearing to determine whether the mother is presently
competent.17
b. Scope of remand
[¶52] We acknowledge that determining the scope of the proceedings to
be held on remand—in other words, how far back procedurally the case must
be unwound after the court determines whether to appoint a GAL for the
16As our discussion indicates, our conclusion here should not be construed as a categorical prohibition against nunc pro tunc competency determinations. Rather, we remand for a determination of the mother’s present capacity because of the specific circumstances presented in this appeal.
17 If, after a competency hearing, the court determines based on the mother’s current functioning
that a GAL should be appointed, a GAL other than the person who served previously shall be appointed. Nothing in the record casts doubt about the capabilities and the good faith approach of the person who has served as the GAL to date. If, however, a GAL is appointed on remand and given the authority to make dispositive decisions in the case; if the Department pursues the termination petition as to the child at issue here, see 22 M.R.S. § 4052(2-A) (2026) (“The department shall file a termination petition . . . [w]hen a child has been in foster care for 15 of the most recent 22 months.”); and if the GAL is authorized and called upon to decide whether to consent to the termination of parental rights, that decision should not be clouded by any appearance that the consent was preordained given that the present GAL has already rendered that consent. Whether a successor GAL reaches the same conclusion as did the original GAL, that decision should be made independently based on contemporary circumstances and considerations.
35
mother—is delicate and challenging because of the highly substantial interest
in achieving permanency for the child, whatever that may look like after a
judicial determination. See 22 M.R.S. § 4003(4) (2026). Even as we give weight
to this principle, however, given the error affecting the appointment of the
mother’s GAL, we must set aside the orders that were entered afterward,
starting with the jeopardy order.
[¶53] The appointment of the GAL for the mother was foundational and
served as the predicate for everything that followed, including the jeopardy
hearing.18 The effect of the appointment was perhaps most salient at the
termination hearing, where the termination order was explicitly and entirely
predicated on consent given by the GAL pursuant to the plenary authority
created in the appointment order. But more than a year earlier, the jeopardy
order based on the parties’ partial agreement contained underlying findings
that were unfavorable to the mother. Because that order was based on the
direct participation of the GAL, whose appointment was the result of an
18 Although the flawed appointment process was foundational, it did not constitute a structural error. A structural error is one that requires the judgment be set aside without consideration of the actual effect of the error. State v. Burdick, 2001 ME 143, ¶ 27, 782 A.2d 319 (explaining that a structural error is “intrinsically harmful” and requires the judgment to be vacated automatically, without regard to the effect the error had on the overall proceedings). Here, in contrast, the judgment is not subject to automatic reversal because, as we discuss above, supra ¶¶ 44-45, if the Department had been able to demonstrate to the requisite standard that the error was harmless, we would affirm the judgment. See In re Michelle W., 2001 ME 123, ¶ 12, 777 A.2d 283.
36
insufficient process, the basis for the order is called into question and therefore
requires a new hearing. Thus, based on the particular development of this case,
the remand must encompass more than the termination hearing and instead
must reach back as far as the jeopardy phase of the case.
[¶54] For another, related reason, the case should return to the jeopardy
phase, rather than only to the termination order, because of the general
statutory framework governing child protection proceedings. Although these
cases proceed in multiple steps—including the jeopardy hearing, judicial
reviews, and the prospect of a termination hearing, see 22 M.R.S. §§ 4035, 4038,
4054 (2026)—the process itself is integrated, and each step stands on the
shoulders of the previous ones. This is why, for example, the court may take
judicial notice of orders already issued and other actions already taken in the
same proceeding. In re Caleb M., 2017 ME 66, ¶ 23, 159 A.3d 345. Because of
the unitary character of a child protection proceeding, the consequential flaw
in the appointment process, which occurred early in the evolution of the case,
taints the subsequent proceedings. The remand here therefore requires more
than a retrial on only the termination petition because the termination hearing
that was already held cannot be surgically isolated from other proceedings that
were also compromised by the improper GAL-appointment process.
37
[¶55] On remand, the trial court will be called upon to make
discretionary decisions about the procedural path going forward, affecting both
the hearing on whether a GAL should be appointed for the mother and the
course the case will take after that decision is made, starting with the jeopardy
phase. For example, to assist the court in its determination of the mother’s
competency, the court may consider whether, before the competency hearing
is held, a competency evaluation of the mother is warranted. And once a
competency determination is made, the court must consider the adjudicatory
process and how best to proceed to jeopardy and termination hearings
expeditiously for the child’s benefit but in a way that is consistent with the
mother’s rights.19 We leave those decisions to the sound judgment of the trial
court.
III. CONCLUSION
[¶56] On the record before us, there is every reason to conclude that the
court, the mother’s appointed GAL, and the succession of lawyers representing
the mother were attempting to act in what they considered to be the mother’s
best interest. Rather than exposing the mother to the risk of an aggravating
19 The child has now been in foster care for almost three years, a length of time that supports
proceeding to a termination hearing quickly. The Child and Family Services and Child Protection Act statute does not appear to prohibit consolidation of the termination and jeopardy hearings so long as the court makes separate determinations.
38
factor that could bear on her rights regarding her other children, the decision
by the mother’s GAL and the mother’s lawyer to consent to termination may
have been wise. That, however, is not the issue before us. Instead, the question
presented here is whether the GAL’s appointment occurred in a manner that
was consistent with the mother’s constitutional right to due process. It did not.
The violation of the mother’s rights when her GAL was appointed was plain and
consequential. The judgment must therefore be vacated. On remand, the court
must hold proceedings that protect the mother’s due process rights while also
recognizing the child’s right to a swift permanency determination.
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
CONNORS, J., concurring.
[¶57] I concur with the entirety of the majority’s reasoning and
conclusions, except that I would leave the scope of the proceedings on remand
to the trial court, which will be in the best position to address the circumstances
as they present to it at that time.
39
Taylor Kilgore, Esq. (orally), Kilgore Law, PLLC, Turner, for appellant Mother
Aaron M. Frey, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.
(orally), Office of the Attorney General, Bangor, for appellee Department of
Health and Human Services
Augusta District Court docket number PC-2023-24
FOR CLERK REFERENCE ONLY