Opinion
14-P-1939
09-30-2015
ADOPTION OF PENROD (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following entry of decrees terminating the mother's parental rights upon a stipulation signed by the mother, the mother moved to withdraw her stipulation and vacate the decrees of termination. She now appeals from the denial of that motion, and we affirm.
The mother also appeals from an order of the single justice denying her motion for a stay of the decrees pending appeal. The appeals were consolidated. The mother makes no argument in her brief directed to the order of the single justice; accordingly, any claim of error is waived.
We discern no abuse of discretion in the refusal of the motion judge to allow the mother's motion for relief from the decrees. As reflected in the findings of fact entered by a different motion judge following remand from the mother's motion for a stay of the decrees pending appeal, the mother's stipulation was knowing and voluntary. As the Department of Children and Families observes in its brief, there is no requirement for a trial judge to conduct an oral colloquy to confirm that the entry of such a stipulation is knowing and voluntary. See Adoption of John, 53 Mass. App. Ct. 431, 435 (2001). In the present case, the mother executed an affidavit confirming that she understood the rights she was relinquishing by her stipulation to the entry of decrees of termination. Moreover, as established by the findings of the motion judge following remand, the mother's trial counsel reviewed the stipulation with her line by line before she signed it. Taken together with the other findings of fact entered by the motion judge, which are supported by the record and which the mother has not demonstrated to be clearly erroneous, the mother's stipulation to termination of her parental rights was knowing and voluntary, and the first motion judge accordingly did not abuse his discretion in denying her motion to vacate the decrees based upon the contrary premise.
The judge who accepted the mother's stipulation, entered the decrees of termination, and denied her motion to vacate the decrees retired between the time of the mother's motion to vacate the decrees and the remand following her motion to stay the decrees pending appeal.
There accordingly is no basis for the mother's contention that her trial counsel was ineffective by reason of his failure to object to the absence of a colloquy when the stipulation was entered in the record of the case.
As for the mother's contention that her trial counsel was unauthorized to file the signed stipulation of termination and affidavit of voluntariness in court following her departure from the court house, the claim is not properly before us, as the mother did not raise it in her motion to vacate the decrees or even thereafter at the hearing on voluntariness following remand from her motion for a stay pending appeal. In any event, the claim is not supported by findings of fact made by the motion judge, or by evidence contained in the present record.
Order denying motion to vacate decrees affirmed.
Order of single justice affirmed.
By the Court (Green, Rubin & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 30, 2015.