Opinion
16-P-1160
03-09-2017
ADOPTION OF CAMILLE (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following the termination of her parental rights to her twins, the incarcerated mother appeals from an order dismissing her appeal for failure to file timely an affidavit of indigency along with her concededly timely notice of appeal. The mother also challenges the judge's limited allowance of her motions for fees and costs and appointment of appellate counsel. We vacate and remand.
Background . On October 29, 2015, after a trial on the petition of the Department of Children and Families (department), a judge of the Juvenile Court found that the minor children, one year old at the time of trial, were in need of care and protection. The judge adjudicated the parents unfit and terminated their parental rights, leaving the issue of posttermination and postadoption visitation between the parents and children to the discretion of the preadoptive mother (maternal aunt).
The judge also determined that the department's proposed plan of adoption by the maternal aunt, with whom the children had been living since their infancy, was in the best interests of the children.
It is undisputed that, on November 27, 2015, the mother filed a timely notice of appeal in the Juvenile Court in accordance with Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). A little more than one week later, she filed a motion for appointment of appellate counsel, with an accompanying affidavit of counsel, a motion for waiver of fees and costs for appeal, and an order form for a copy of the relevant compact disc recordings. Although a determination of indigency does not appear on the docket sheet, included in the record are a pretrial intake/indigency report form, a supporting household member report form, a probation service indigency verification consent form, and a probation service indigency verification results form, each dated November 22, 2015, and signed by the mother.
The father did not appeal the decrees nor is he a party to this appeal.
The mother asserts in her brief that the indigency intake form was submitted to the probation department on December 8, 2015; there is no acknowledgement of receipt by the court appearing on any of these forms.
Counsel did not at that time file the required two-page, signed affidavit of indigency. In her own affidavit, the mother's counsel recites in some detail her difficulties in obtaining the mother's signature on the necessary form. We reproduce those unrebutted representations in some detail because they shed light on the reasonableness of the motion judge's determination that there was no "excusable neglect" in the late filing of that particular form.
The affidavit states as follows:
"1. I was appointed to be the Attorney in the above matter on October 23, 2015.
"2. A Termination Trial took place and a decree was entered on the record on October 29, 2015.
"3. [The mother] participated in the trial by telephone.
"4. The mother ... is opting to appeal the decision as well as the decision to terminate her parental rights.
"5. She has signed the initial Notice of Appeal which was filed in a timely fashion.
"6. This Attorney had a very difficult time getting that filed as my client is incarcerated out of state and it took a significant amount of time for the mail to get to my client.
"7. I finally was granted permission to do the notice of appeal through her clinician.
"8. I did this through overnight mail.
"9. This still took approximately a week.
"10. The postman delivered this to the wrong mailbox.
"11. I tracked the number and found that it should have been delivered on November 24, 2015.
"12. This was after I had filed [an] extension.
"13. The Postal Carrier found my letter and delivered it on the 27th.
"14. I filed it on the 27th.
"15. My client did not fill out all of the paperwork that I had originally sent to her.
"16. She may not have received that package.
"17. I re-sent the indigency paperwork in December.
"18. I received it back in January not signed.
"19. I sent that back again in early February with a letter and notice where to sign the paperwork.
"20. The mail at the correctional facility takes an extremely long time.
"21. I have been dealing with the mail because it is my understanding that an original signature is needed.
"22. It is my understanding that [my client] never received my last mailing.
"23. I then received the motion to dismiss.
"24. There was not enough time to resend another letter to the correctional facility.
"25. I received the indigency paperwork on April 20, 2016 and filed it immediately.
"26. The appeal was dismissed for failure to prosecute.
"27. This appeal is being filed by [the mother].
"28. The delay in paper work was not the fault of my client.
"29. The delay was the result of many factors, including in large part the fact of incarceration.
"30. My client would like an opportunity to appeal her case."
On April 6, 2016, counsel for the children moved to dismiss the appeal "for failure to timely provide indigency verification to the Court." In the motion, counsel also represented that she had "a good faith concern that after notice of the MOTION TO DISMISS her appeal, Mother may rush to file her indigency verification." From this, we infer that the issue whether the mother was indigent was not actually in dispute.
Notwithstanding the fact that it was the allowance of this motion that prompted the present appeal, the children have not filed a memorandum as appellees.
After a hearing on April 20, 2016, the judge allowed the children's motion to dismiss, on the ground of "failure to prosecute in a timely manner." On June 13, 2016, the judge allowed the mother's motion for appointment of appellate counsel, and her motion for fees and costs associated with the appeal "for the limited purpose of appealing the April 20, 2016 order of dismissal of the appeal." In so doing, she stated that the limited allowance was "in consideration of children's counsel's argument that the children suffered prejudice in that permanency was unduly delayed by the failure to prosecute the appeal in a timely manner."
The department now argues that the mother made no showing of "excusable neglect" for what it describes as her violation of " G. L. c. 261, §§ 27A - 27G and the Juvenile Court's policy." It contends that "[h]er repeated disregard for the rules constitutes inexcusable neglect, which in light of the totality of the circumstances, warranted the dismissal of the appeal." The department also maintains that the undue delay from the late filing of the affidavit, in April, 2016, "is prejudicial to the children's rights to stability and runs counter to judicial economy." Finally, it argues that the mother "lacks a meritorious case deserving of appellate review."
Apparently, the Juvenile Court Department in Berkshire County has a long-standing policy of requiring all of the relevant papers to be filed at one time. The judge mentioned this policy in a footnote to her June 13, 2016, order on the mother's motions to appoint appellate counsel and for fees and costs associated with the appeal; however the judge disclaimed any reliance on that policy in reaching her decision.
Curiously, the department's memorandum, in recounting the facts, makes no reference to the fact that the mother apparently was incarcerated during the relevant time. Nor does the department contest that representation made in the mother's brief. Moreover, the judge, in her order of June 13, 2016, referred to the fact that the mother was incarcerated "beginning in June 2015."
Discussion . General Laws c. 261, § 27B, as appearing in St. 1980, c. 539, § 6, provides, in relevant part,
"[u]pon or after commencing ... any civil, criminal or juvenile proceeding or appeal in any court, ... any party may file with the clerk an affidavit of indigency and request for waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court and in accordance with the standards set forth in sections twenty-seven C to twenty-seven F, inclusive, and sworn to under oath by the affiant" (emphasis supplied).
As appears from the language of the statute, a contemporaneous filing of an affidavit of indigency is not required when filing the notice of appeal. This reading is supported by the language of G. L. c. 261, § 27C(1), as appearing in St. 1980, c. 539, § 7, instructing that, "[i]f the affidavit is filed with the complaint or other paper initiating the proceeding, the clerk shall receive the complaint or other paper for filing and proceed as if all regular filing fees had been paid" (emphasis supplied). In addition, under Mass.R.A.P. 3(a), as amended, 478 Mass. 927 (1979), the "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal."
" 'The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected.' Department of Pub. Welfare v. J.K.B ., 379 Mass. 1, 3 (1979), and cases cited. Due process requirements must therefore be met before a parent is deprived of his or her parental rights. Id . Due process includes 'the right to be heard "at a meaningful time and in a meaningful manner." ' Id . at 4, quoting Armstrong v. Manzo , 380 U.S. 545, 552 (1965)." Guardianship of V.V ., 470 Mass. 590, 592 (2015).
In this case, relying on these fundamental due process rights, we are persuaded that the judge erred in ordering dismissal of the mother's appeal based on a "[f]ailure to prosecute in a timely manner." In so doing, the judge implicitly found that there was no "excusable neglect" for the delay in securing the necessary form. However, the mother's counsel's uncontradicted affidavit appears to lay out a fair case for suggesting that the delay, while considerable, could be explained by the mother's incarceration and the vagaries of mail delivery at an out-of-State correctional facility. For this reason, we conclude that it was an abuse of discretion to dismiss the mother's appeal from the decrees terminating her parental rights and to deny her request for appellate counsel and for fees and costs associated with the appeal. See L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014).
Both the department and the judge describe in some detail the evidence offered in support of the department's petition for the proposition that the mother has little likelihood of prevailing on her appeal. It may be that they are correct; we express no opinion about the merits of any appeal that may follow this decision. Indeed, it would be difficult to do so as the mother's motion for appellate counsel and production of a transcript and other materials necessary to decide such an appeal was denied.
The order dismissing the appeal is vacated and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered .
Vacated and remanded.