Opinion
10-P-1856
12-06-2011
CARE AND PROTECTION OF XANTHA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a Juvenile Court judgment concluding that his child, Xantha, is in need of care and protection and granting custody to the Department of Children and Families (DCF). On appeal, the father does not challenge the Juvenile Court judge's decision that the child was in need of care and protection, the ultimate conclusion of unfitness, or the subsidiary findings on which that conclusion is based. Rather, the father asserts three, alternative contentions: (1) that failure to notify him of the temporary custody hearing, pursuant to G. L. c. 119, § 24, constitutes a denial of his fundamental right to due process, and thereby, he is entitled to a new trial as to the issue of custody; (2) that the judge has failed to conduct a sufficient evidentiary hearing as to custody of Xantha; and (3) that he is entitled to notice of and participation in all the permanency plan hearings proposed by DCF. We affirm.
The parental rights of the father were not terminated. Therefore, the department does not take issue with the father's claim of right for review, reconsideration, and redetermination of the child's need for care and protection pursuant to G. L. c. 119, § 26(c). Moreover, pursuant to Rule 2G of Trial Court Rule VI, Uniform Rules for Permanency Hearings (2011), a parent whose rights have not been terminated, such as the father herein, continues to be a proper party for participation in permanency hearings under G. L. c. 119, 29B. Under Rule 2G the definition of a party include[s] the original parties to the actions . . . . [In addition, a] parent, including a parent who is not an original party to the action, shall be a party unless that parent's rights to consent to or receive notice of any petition for adoption, custody, guardianship or other disposition of the child pursuant to G. L. c. 119, §26, or G. L. c. 210, § 3 have been dispensed with or that parent has signed a voluntary surrender under G. L. c. 119, § 23(13), or G. L. c 210, § 2.'
The mother did not contest the petition nor has she appealed from the judge's finding her unfit to parent the child in question.
At that time § 24, read in relevant part: '[U]pon entry of the order, notice to appear before the court shall be given to either parent, both parents, a guardian with care and custody or another custodian. The court shall, at that time, determine whether temporary custody shall continue until a hearing on the merits of the petition for care and protection is concluded before the court.' G. L. c. 119, § 24, as in effect prior to St. 2008, c. 176, § 4.
1. Due process rights. The father contends that the failure to properly notify him of the temporary custody proceeding (seventy-two hour hearing) deprived him of his fundamental right to due process. He requests that the judgment be vacated and argues that he is entitled to a new trial.
Because the father failed to assert a due process claim during the hearing on the merits, he has waived this claim. 'As a general practice we do not consider issues, particularly constitutional ones, raised for the first time in this court.' Adoption of Donald, 52 Mass. App. Ct. 901, 901 (2001), quoting from Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mas. 696, 697 (1984). We therefore need not reach this constitutional claim.
Even if the father had properly preserved this argument, it would still fail on two separate grounds: firstly, because the father had sufficient notice of the care and protection proceedings; and secondly, any claim of a deprivation of due process becomes moot after the conclusion of a trial on the merits.
As to the issue of notice, it is well-settled that due process requires, at a minimum, 'notice and the opportunity to be heard at a meaningful time and in a meaningful manner.' Adoption of Rory, 880 Mass. App. Ct. 454, 458 (2011). '[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.' Adoption of Hugh, 35 Mass. App. Ct. 346, 350 (1993) (citations omitted).
Here, DCF made efforts to inform the father of the ongoing custody proceedings in a meaningful manner once DCF learned of the father's whereabouts. While DCF knew of him as the father, it was unaware of his location until his attorney made an internet inquiry of inmates in correctional facilities in Pennsylvania. Upon verification of his presence, DCF served the father with notice. Contrast Adoption of Hugh, 35 Mass. App. Ct. at 350 (father not afforded due process when DCF's records included an address for the father and DCF made no effort to locate him at that address). Absent knowledge of the father's whereabouts, an attempt to notify the father of the seventy-two hour hearing would constitute a mere formality and an otherwise empty gesture. Moreover, even if the father had been served in March, 2008, given the father's current incarceration without any defined parole eligibility, as well as the circumstances surrounding the filing of the petition, it is unquestionable that the result of the seventy-two hour hearing would have been different.
The record shows that, since 2004, the father has been serving a life sentence; the record is unclear as to whether he is eligible for parole.
Secondly, the father claims his due process rights were violated because he was not given notice of, and therefore, was not present at the seventy-two hour hearing following the filing of the petition in March, 2008. The nature and underlying purpose of the such hearings render the father's claim moot. The function of the seventy-hour hearing is to 'determine whether a child will be in immediate danger of serious abuse or neglect if returned to his parents or custodian.' Care & Protection of Orazio, 68 Mass. App. Ct. at 217, quoting from Care & Protection of Perry, 438 Mass. 1014, 1014 (2003). In short, the judge 'determin[es] the interim custody of the child pending an outcome of a trial on the merits.' Care & Protection of Orazio, supra. Thus, '[i]f a final hearing has occurred and has resulted in a determination by clear and convincing evidence that the custody of the child [] should be given to the department (or another) the need for another hearing may be moot.' Care & Protection of Robert, 408 Mass. 52, 68 n.8 (1990). See Adoption of Roni, 56 Mass. App. Ct. 52, 58 (2002) ('[B]y virtue of the final determination of parental unfitness following a full trial, the question [of the seventy-two hour hearing] is largely moot'). Here, the father genuinely participated in the trial on the merits after he was served. Represented by counsel throughout the proceedings, the father testified telephonically, a fact which he concedes in his brief. Therefore, we conclude that the requirements of due process were satisfied.
Return of service was not made until July, 2008. Because of the lack of service, he did not have an opportunity to participate in this proceeding.
Given the circumstances by which DCF was given physical custody of Xantha, the need for DCF's temporary custody is unquestionable.
2. Evidentiary hearing on custody. As noted above, the father does not contest the finding of unfitness and the child's need for care and protection. He specifically contends that the record lacks the required comprehensive findings in regard to custody of his child because neither the social worker nor his child testified at the hearing.
An adjudication that a child is in need of care and protection requires clear and convincing evidence, based on subsidiary findings supported by at least a fair preponderance of the evidence, that a parent is unfit to provide for the welfare of his child. Care & Protection of Laura, 414 Mass. 788, 793 (1993). Those findings will not be disturbed unless clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993).
It is undisputed that, on October 5, 2009, the judge held a hearing on the issue of custody. Based on the trial testimony, which included five marked exhibits and the telephonic testimony of the father, the judge made factual findings and ultimately committed Xantha to the custody of the department. As the judge correctly recognized, according to the provisions of the Interstate Compact on the Placement of Children, which Massachusetts has accepted, 110 Code Mass. Regs. § 7.503(8) (1993), a child's placement out-of-State cannot occur without the consent of the child welfare agency of that State. See Adoption of Warren, 44 Mass. App. Ct. 620, 623-624 (1998). As there was ample evidence for the judge to find that placing Xanatha in the custody of DCF was not shown to be in error, the decision must be affirmed.
We note again that the father does not challenge these findings of fact.
Apparently, home studies are in progress, but before a placement alternative to the mother is considered, the mother's home study must first be completed; it appears that the mother's lack of cooperation has stalled the study of other possible placements but efforts appear to be ongoing to complete these studies.
3. The father's right to participate in permanency hearings. With regard to future permanency hearings pursuant to G. L. c. 119, § 29B, the father's contention that he is entitled to participation in and notice thereof is correct, but his argument shows a misunderstanding of the underlying purpose of hearings conducted pursuant to § 29B. See Care & Protection of Isaac, 419 Mass. 602, 612 (1995); Rule 7 of the Uniform Rules for Permanency Hearings, Trial Court Rule VI (2011). He apparently overlooks that two permanency hearings have been held in connection with Xantha's placement concerning which no issue has been preserved for appeal. DCF held hearings on June 18, 2009, and July 22, 2010, prior to trial and nine months after trial, respectively. At neither of these hearings did the father object to DCF's permanent plan or take an appeal. See note 2, supra; G. L. c. 119, 29B(e). As there is no issue of merit before us as to the judge's decision that Xanatha was in need of care and protection, nor as to DCF's permanency plan, the judgment is affirmed.
The father argues that the judge is obligated to consult with Xantha in an 'age appropriate manner,' as Xantha is fifteen years old and otherwise suffers from no cognitive limitations. While the allegation asserted may affect the substantive rights of Xantha, this allegation does not affect the father's rights. As such, the father lacks standing to raise this argument.
To this effect, we note the father's misplaced contention that he has been denied an adequate opportunity to advocate for a kinship placement, e.g., with the mother of another of his children, a resident of Pennsylvania. We disagree with the father's contention. The findings of fact made by the judge clearly take into consideration the testimony given by the father on October 5, 2009.
So ordered.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),