Opinion
No. 15–P–1042.
12-05-2016
H.T. v. J.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
H.T., the mother of a minor child, appeals from a final judgment of paternity, entered on October 7, 2014, adjudicating J.M. to be the child's father, denying him visitation, and ordering him to pay child support. The mother claims that the paternity judgment must be vacated because the Probate and Family Court lacked jurisdiction to adjudicate the father's parental rights. As there is no merit to this argument, we affirm.
The father, who appears pro se, has not briefed or argued the case.
Background. We draw the facts from competent evidence in the record appendix, and from the Supreme Judicial Court rescript opinion in the related case of H.T. v. Commonwealth, 465 Mass. 1011 (2013).
We exercise our discretion to consider the merits of the mother's arguments despite significant deficiencies in the appellate record. We have not been provided with a transcript of any hearing in the trial court; nor have we been provided with all of the relevant court filings and documentary evidence. Record references to many of the factual assertions made in the mother's brief are to an affidavit of counsel that is unsworn and not based on personal knowledge.
When the mother was fourteen years old and the father was nineteen years old, the two were in a relationship and engaged in sexual intercourse. As a result, the mother conceived and gave birth to the father's biological child. The father was prosecuted in Superior Court and pleaded guilty to four counts of statutory rape of a child, in violation of G.L. c. 265, § 23. He was sentenced to probation and, as conditions thereof, was ordered to acknowledge paternity, and to abide by any orders of support issued by the Probate and Family Court.
In March, 2012, the mother, who was representing herself at the time, filed a complaint in the Probate and Family Court, seeking to establish the father's paternity. In July, 2012, the father, who also was representing himself, acknowledged paternity of the child and was ordered to pay child support pursuant to a temporary order. Although the father never filed a counterclaim or motion seeking visitation, it is evident that he took some action to request visitation rights. The mother, who apparently obtained the assistance of counsel at this point, then moved in the Superior Court to revise the father's conditions of probation, claiming that they unlawfully bound her to an ongoing, unwanted relationship with the father.
An acknowledgment of parentage and a stipulation of the parties were docketed in the Probate and Family Court on July 2, 2012. However, these filings have not been included in the record appendix.
The mother's motion was denied by a judge of the Superior Court on the ground that she lacked standing to challenge the father's sentence; her subsequent petition pursuant G.L. c. 211, § 3, was rejected by a single justice of the Supreme Judicial Court, and, later, by the full court. See H.T. v. Commonwealth, supra at 1012–1013. The court explained, however, that it remained open to the mother to raise any claim of error in the ordinary appellate process from proceedings in the Probate and Family Court. Id. at 1013.
The mother also unsuccessfully sought similar relief in a Federal court action.
In November, 2013, the mother filed a motion in the Probate and Family Court case, seeking to vacate jurisdiction and terminate the father's parental rights (motion to vacate). A judge of that court denied the motion on March 10, 2014. On August 14, 2014, following an evidentiary hearing on the issue of visitation, the judge also denied the father "visitation or parenting time rights," finding that his stated desire for visitation was insincere and asserted solely as a "bargaining chip" in an effort to reduce or eliminate his child support obligation." On October 7, 2014, following a hearing on the remaining issue of child support, the judge entered a judgment "incorporat[ing] and affirm[ing]" the August 14, 2014 order and requiring the father to pay weekly child support of $110 until the child's emancipation. The mother's appeal followed.
Discussion. The mother argues that the judge erred in denying her motion to vacate because the court had "no authority" to adjudicate the parental rights of a father whose child was conceived by statutory rape. For the reasons that follow, we disagree.
Paternity proceedings involving children born out of wedlock are governed by G.L. c. 209C, § 1, et seq. Chapter 209C provides two methods of establishing paternity: (1) voluntary acknowledgment by both parents, and (2) judicial adjudication of paternity. See G.L. c. 209C, §§ 2, 3. Actions to establish paternity may be brought in one of three trial court departments; however, the Probate and Family Court has exclusive jurisdiction to make determinations regarding custody and visitation in a paternity proceeding. See G.L. c. 209C, § 3(a ).
In 2012, when the mother filed the complaint to establish paternity, G.L. c. 209C, § 3, provided the Probate and Family Court with "concurrent jurisdiction over complaints to establish paternity or support and the registration of voluntary acknowledgments of parentage" and exclusive jurisdiction over "[c]omplaints to establish paternity or support or for voluntary acknowledgments of parentage which also include a request for an order relative to custody or visitation." G.L. c. 209C, § 3(a), inserted by St.1986, c. 310, § 6, and as amended by St.1998, c. 64, §§ 207–209. Subsection 3(a) later was amended in 2014, as discussed in note 7, infra.
Here, the mother invoked the Probate and Family Court's jurisdiction under c. 209C by filing a complaint to establish paternity. The father's paternity thereafter was established by a voluntary acknowledgment of parentage, at which point the judge proceeded to adjudicate the remaining issues of custody, visitation, and support pursuant to G.L. c. 209C, §§ 3, 9(a), 10(a). Notwithstanding these events, the mother claims that the judge lacked jurisdiction to adjudicate the father's parental rights because the child was conceived as a result of statutory rape. However, nothing in the language of G.L. c. 209C expressly limits its applicability solely to children born as a result of lawful intercourse. Cf. Partanen v. Gallagher, 475 Mass. 632, 638 (2016).
The mother's counsel claims that her client did so at the direction of an employee of the Probate and Family Court. However, as the record appendix contains no competent evidentiary support for this assertion, we decline to consider it. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (appellant bears duty of providing the court with adequate appellate record).
To the contrary, c. 209C applies to "any" child born out of wedlock. Indeed, we may infer that the Legislature intended to include children who may have been conceived by statutory rape, given that c. 209C expressly permits a mother, "whether a minor or not," to commence a paternity action. See G.L. c. 209C, § 5(a ). Furthermore, a father convicted of statutory rape is not expressly excluded from the class of persons having standing to commence a paternity action. Ibid. "We will not read into the statute a provision which the Legislature did not see fit to put there." Chin v. Merriot, 470 Mass. 527, 537 (2015), quoting from Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct. for the County of Worcester, 446 Mass. 123, 126 (2006).
Finally, the Legislature's recognition that the Probate and Family Court has jurisdiction to adjudicate the parental rights of a parent convicted of statutory rape is shown by the enactment of a 2014 amendment restricting the court's authority to order visitation in such cases. While the applicability of the amendment to this case is not entirely clear (given that it went into effect after the judge denied the mother's motion to vacate, but prior to the entry of the final paternity judgment), it is apparent from its language that it was designed to limit, rather than to expand, the court's existing authority.
The 2014 amendment provides in relevant part: "[A] court may make an order providing visitation rights to a parent convicted of rape under section 23 of said chapter 265, if (i) visitation is in the best interest of the child and (ii) either the other parent of the child conceived during the commission of that rape has reached the age of 18 and said parent consents to such visitation or the judge makes an independent determination that visitation is in the best interest of the child." G.L. c. 209C, § 3(a ), as amended by St.2014, c. 260, § 16.
The mother nevertheless urges us "to conclude as a matter of policy that the [Probate and] [F]amily [C]ourt's jurisdiction should be vacated" in this case. We decline to do so, given that "the primary purpose of the paternity statute is to collect and to enforce child support from a child's biological father." L.W.K. v. E.R.C., 432 Mass. 438, 445 n. 19 (2000). Permitting the father to avoid his child support obligation would be inconsistent with "the declared public policy of this Commonwealth that dependent children shall be maintained ‘as completely as possible’ from the resources of their parents" and with "other mandates of the Legislature," including "that children born out of wedlock are entitled to the same rights and protections of the law as all other children." Id. at 445–446. Not only would the mother's desired disposition require us to treat the father more favorably than other biological fathers, it also would unfairly disadvantage the child by depriving her of the right to receive financial support from both parents. Id. at 445.
It is well-settled that a parent may not waive the child's right to support from the other parent. See Quinn v. Quinn, 49 Mass.App.Ct. 144, 146 (2000) ( "parents may not bargain away the rights of their children to support from either one of them"); Hoegen v. Hoegen, 89 Mass.App.Ct. 6, 11 (2016). See also G.E.B. v. S.R.W., 422 Mass. 158, 163 (1996) (in paternity action, "[t]he child has her own, independent, interests .... which cannot be equated completely with her mother's interests"). We therefore will not disturb the judgment of paternity entered by the Probate and Family Court on October 7, 2014.
Plaintiff's counsel has filed multiple letters pursuant to Mass .R.App.P. 16(l), as amended, 386 Mass. 1247 (1982), in which she seeks to supplement the arguments set forth in her brief. As these letters do not comply with rule 16(l), we decline to consider them. However, even if we were to consider the supplemental arguments set forth in these noncompliant filings, they would not change the disposition of this appeal.
To the extent that we do not address other contentions made by the mother, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).