Opinion
14-P-1005
05-05-2015
ADOPTION OF DOUGLAS (and five companion cases).
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
The mother appeals from decrees of the Juvenile Court denying postadoption and posttermination visitation with all six of her children. The father (first father) of the two oldest children, Douglas and Tom, appeals from decrees of the Juvenile Court denying postadoption and posttermination visitation with his two children. Douglas, Tom, Brian, and Mark (the four oldest children), also appeal from decrees of the Juvenile Court denying postadoption and posttermination visitation with their respective biological parents.
The father of the remaining four children (second father) filed a timely notice of appeal from the termination of his parental rights, but did not docket his appeal in this court; as a result, he is not a party to this appeal.
The two youngest children are satisfied with the decrees terminating parental rights of each parent and contend that the judge properly exercised his discretion when he declined to order posttermination and postadoption visitation between them and their parents.
Background. On January 15, 2009, the Department of Children and Families (department) filed a care and protection petition on behalf of the four oldest children, alleging neglect due to substance abuse and domestic violence by the mother and the second father. On March 31, 2011, the department filed a care and protection petition on behalf of the two youngest children; on May 24, 2012, that case was consolidated with the original petition involving the four oldest children.
The mother and both fathers waived their rights to a seventy-two hour hearing. On March 3, 2010, all parents stipulated to their current unfitness and that the children were in need of care and protection; the children were placed in the permanent custody of the department.
On June 3, 2013, the first day of trial, the mother submitted a stipulation of judgment, acknowledging her current unfitness and agreeing to the termination of her parental rights as to each of her six children; included in the stipulation was a waiver of her right to trial and to appeal the decrees. The following day, June 4, 2013, the first father acknowledged by stipulation of judgment his unfitness to care for his two children and agreed to the termination of his parental rights; included in the stipulation was a trial waiver, but he "retain[ed] the right to appeal any decision rendered as to the proposed plans of adoption for each child." He also submitted an affidavit attesting to his knowing, intelligent, and voluntary consent to the terms of the stipulation.
On the same day the second father also entered a stipulation acknowledging his unfitness and agreeing to termination of his parental rights to his four children; he also waived his right to trial and an appeal of the final decree.
In 2005, the first father was convicted of murder in the first degree; he is currently serving a life sentence without the possibility of parole.
The trial then began on the issue of placement for the six children, along with the issue of postadoption and posttermination visitation between and among the parents and the children. On February 10, 2014, the judge issued findings of fact and conclusions of law. Based on his 449 findings of fact and the stipulation of each parent, along with testimonial and documentary evidence, the judge concluded that the mother and both fathers were unfit to care for the children; he issued decrees terminating the parental rights of each parent in the best interests of the children. The judge also approved the adoption plans submitted by the department.
At the time of trial, Douglas was twelve years old, Tom was nine years old, Brian was eight years old, Mark was six years old, Cole was three years old, and Frank was two years old.
The department's adoption plans were as follows: Douglas was in a residential placement, but hoped to be adopted by a family member and her husband; if another placement were required, the judge approved the department's plan to try to identify a home in which no other child younger than Douglas resides; Tom was to be adopted by a relative of his father; Brian and Mark were to be adopted by their current preadoptive foster parents, who are related to their father; and Cole and Frank were to be adopted by their current preadoptive foster mother. In the event any one of these planned adoptions did not occur, the department would pursue recruitment efforts to find new adoptive families.
The judge also stated that "it has not been established by clear and convincing evidence" that it would be in the children's best interests for them to have visitation with any of the parents; he declined to order postadoption or posttermination visits between the parents and the children. In so doing, the judge acknowledged "that despite an apparent bond" between the mother and Douglas, further contact with the mother was not in Douglas's best interests, because, throughout the proceedings, the mother had "demonstrated an inability to comprehend and establish appropriate boundaries" with Douglas; the judge also concluded that none of the other children shared "any significant bond" with the mother. Finally, the judge concluded that none of the children shared a bond with his father.
Discussion. The mother. For the first time on appeal, the mother argues that trial counsel provided ineffective assistance when she failed to inform the judge, prior to the colloquy, that the mother's agreement to stipulate to unfitness and termination of parental rights was premised on the placement of all of the children with relatives (who are currently the preadoptive parents for Brian and Mark). See note 8, supra. She also contends that the judge erred in declining to order posttermination and postadoption visitation with any of her children because she shares a bond with each, and also because not all of the children had been placed in a preadoptive home.
As in the criminal context, the preferred method for parents raising a claim of ineffective assistance of counsel is, in the first instance, through a motion for new trial. See Care & Protection of Stephen, 401 Mass. 144, 150 (1987); Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Such a challenge "made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for [her] actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). As an exception to that rule, "a 'claim of ineffective assistance may be resolved on direct appeal . . . when the factual basis of the claim appears indisputably on the trial record.'" Commonwealth v. Zinser, 446 Mass. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). This case does not fall within that exception. See Guardianship of L.H., 84 Mass. App. Ct. 711, 719 (2014).
The transcript of the judge's colloquy with the mother indicates that the mother knowingly and intelligently agreed to the entry of the stipulation of judgment, with no mention of any conditions. After entry of the mother's stipulation on June 3, 2013, the judge informed all present that the trial would proceed only to determine appropriate placements of the children; there was no objection or indication from the mother that the trial was unnecessary because all six children were being placed with a relative. The trial then continued over seven trial days, concluding on June 20, 2013, and, at least on this record there was never any such objection. As a result, because this "trial record provides an insufficient factual basis for appellate review" regarding the issue of ineffective assistance, the mother's claim is waived. Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
"Following termination of parental rights, a biological parent has no right 'to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named therein.'" Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013). "[T]he parent whose rights have been terminated is without standing to determine the child's future." Ibid. Here, the mother submitted a stipulation conceding her unfitness and agreeing to the termination of her parental rights; based on this record, there is no indication that in that stipulation the mother reserved a right to appeal any subsequent judgments entered. As a result, the appeal must be dismissed because the mother has no standing to pursue it.
The mother's stipulation has not been included in the record appendix, and we do not assume that it was identical to the stipulation entered by the first father, which is before us.
The first father. The first father argues that he has standing to appeal the judge's refusal to order posttermination and postadoption visitation because the decrees terminating his parental rights were entered after the trial had concluded, and his stipulation included language preserving his right to appeal any decision based on the proposed adoption plans. He also contends that Douglas and Tom would benefit from having continued contact with him, and that such visits likely would not occur without a court order.
The decrees of termination of the first father's parental rights were not the result of a contested adjudication, but rather, as noted, were agreed to in the stipulation of judgment he submitted on June 4, 2013. See id. at 438-439. The first father "expressly waived [his] rights to appeal the decree[s]" and forfeited his standing with regard to any determination as to the children's future. See id. at 439. Although the first father's stipulation to his unfitness includes a provision retaining "the right to appeal any decision rendered as to the proposed plans of adoption for each child" (emphasis added), he does not now contest the proposed adoption plans. He therefore does not have standing to pursue this appeal.
Oldest children. The four oldest children (hereinafter, children) argue that the judge erred in not ordering posttermination and postadoption visitation with their parents and that such denial of visitation was contrary to the evidence presented at trial. The judge's broad discretion to determine posttermination and postadoption visitation is "'grounded in the over-all best interests of the child[ren], based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent.'" Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004), quoting from Adoption of Vito, 431 Mass. 550, 562 (2000). It is clear from the judge's extensive findings that he carefully considered the relationship between each of these children and his respective parents. In fact, the judge acknowledged the existing bond between Douglas and the mother, but found that the mother continually failed to abide by appropriate boundaries with him. On this record, we cannot say that the judge erred. In addition, there was sufficient evidence presented for the judge to determine that there existed no significant bond between the mother and her remaining five children.
The judge found that there was no evidence of a significant relationship between the first father and the two oldest children. The first father's interaction with Douglas consisted of six sporadic visits between 2008 and the time of trial, all while the first father was incarcerated; the last visit was in July, 2012. Tom had visited with the first father at the prison on five occasions between the time of his birth (2003) and the time of trial; the last visit occurred in December, 2011. Where "there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption [or posttermination] contact would usually be unwarranted.'" Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006), quoting from Adoption of Vito, supra at 563. Unlike in Adoption of Rico, 453 Mass. 749, 756 (2009), in this case, neither Douglas nor Tom had a significant bond with the first father, and the first father was not the principal relationship in either child's life.
With regard to Brian and Mark, who are placed together in a preadoptive home, there was evidence that they are currently experiencing stability for the first time, along with improvement with their behavioral issues. It was, therefore, well within the judge's broad discretion to determine that posttermination and postadoption visitation, "based on the current dynamics and emotional ties between the child[ren] and the biological parent[s]," was not in the "current best interests of the child[ren]." Adoption of Edgar, supra at 371 (quotations omitted).
The children also contend that the judge erroneously required them to prove by "clear and convincing evidence" rather than by a "preponderance of the evidence" that visitation would serve the best interests of the children. An order for posttermination or postadoption contact between a biological parent and a child must be based solely on the children's best interests. See Adoption of Vito, 431 Mass. at 562-565. Regardless of the phrasing of his order, there was ample evidence in this record for the judge to determine that future visits with the biological parents were not in the children's best interests. Based on the parents' stipulations, combined with the documentary and testimonial evidence presented at trial, there was, in fact, "clear and convincing evidence that the parent's unfitness to assume parental responsibility is such that it would be in the best interests of the child[ren] for all legal relations to be ended." Adoption of Nancy, 61 Mass. App. Ct. 252, 257 (2004), quoting from Petition of the Dept. of Social Services to Dispense with Consent to Adoption, 391 Mass. 113, 119 (1984). "[T]he question of what is in the best interests of the child[ren] . . . is bound up with the determination of unfitness," proven by clear and convincing evidence. Ibid., quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). We see no error.
Specifically, the judge found that the mother and the second father had exposed the children to repeated instances of domestic violence, sexual activity, and inappropriate sexual material; the mother was "unable or unwilling to set appropriate boundaries for her children," and "demonstrated an inability to protect the emotional welfare of her children." These parental deficiencies, combined with the specialized needs of each of the children, fully justified the judge's decision. In addition, the record reveals numerous instances where each of the four oldest children regressed or otherwise reacted very badly following a visit with the mother, including acting out sexually, bedwetting, nightmares, and throwing tantrums.
Two oldest children's father's appeal dismissed.
Mother's appeal dismissed.
Decrees affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 5, 2015.