Opinion
19-P-522
03-05-2020
ADOPTION OF ZINNIA (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a care and protection proceeding involving twin sisters born in December of 2015. When the children were one month old, the Department of Children and Families (DCF) filed a care and protection petition based on concerns about the mother's mental health and substance abuse. The children were placed in temporary custody of foster parents two months later. As of March 30, 2017, the date of the scheduled termination trial, the mother had negotiated an open adoption agreement with the foster parents. On that date, the mother was present in court and her counsel submitted a document stipulating to the termination of her parental rights. Under the stipulation, which was signed by all parties, the children were to be adopted by the foster parents (who had signed the open adoption agreement), and if for any reason that adoption did not occur, the plan was for DCF to recruit another family who would be willing to enter into such an agreement. To accept the mother's voluntary termination of her rights, the Juvenile Court judge was required to "make an appropriate inquiry to establish that the [mother's] consent was knowing and voluntary." Adoption of John, 53 Mass. App. Ct. 431, 435 (2001). The judge informed the parties that she wanted to review the documents before holding the required colloquy, and she scheduled a hearing date of May 12, 2017.
The father is not involved in these proceedings.
The mother did not show up at the rescheduled hearing. The judge agreed to reschedule the matter to May 23, 2017, and then again to August 7, 2017. Each time the mother failed to appear. On July 9, 2018, her counsel reported that he could not locate her and as a result the parties would not be going forward with a stipulation that day. The termination trial finally went forward in the mother's absence. The judge declined to hold the record open to take additional evidence and decrees entered finding the mother unfit and terminating her parental rights. The decrees did not mandate postadoption visitation, although neither did they prohibit it. See Adoption of Ilona, 459 Mass. 53, 65 n.15 (2011).
The mother was incarcerated between November 2017 and February 12, 2018.
The mother's appeal is extremely narrow. She does not claim that she is fit to regain custody of the children, nor does she challenge the termination of her parental rights. She argues instead that the judge abused her discretion by not holding a colloquy about the termination of her rights on the day it originally was offered. Based on this, the mother seeks to reclaim the benefits of the open adoption agreement that she had signed.
The open adoption agreement itself was never presented to the Juvenile Court, and it therefore is not properly part of the appellate record. We deny the mother's motion to expand the appellate record to include it. However, we assume that the agreement would have provided the mother rights not provided by the decrees (otherwise, her appeal would make no sense).
The mother does not assert that on the day the stipulation was presented to the judge, she insisted that the judge hold the requested colloquy that day. In addition, she points to nothing in the record that would have alerted the judge to the immediacy of the situation. Moreover, the judge's expressed reason for postponing the matter -- to allow time for her to read the papers -- was a valid one. Under these circumstances, the judge plainly did not abuse her discretion. See Adoption of Gillian, 63 Mass. App. Ct. 398, 409-410 (2005) ("The decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judge's decision will be upheld absent an abuse of that discretion").
As we do not find that the judge was required to hold a colloquy on the day the stipulation was presented, we do not address the question whether the judge could take into consideration all that had transpired in the mother's life since. We do note, however, that, by statute, a court has authority to reduce a biological parent's rights under an open adoption agreement if the facts so warrant. See G. L. c. 210, § 6D.
The mother additionally argues that certain of the judge's findings demonstrate bias. Where the mother does not challenge the termination of her rights, and does not even claim error in the judge's declining to mandate posttermination or postadoption visitation, we need not consider these arguments. That said, we discern no bias in the judge's findings.
To the extent the mother raises additional arguments, we discern no merit in them. See Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018).
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Decrees affirmed.