Opinion
No. 11–P–1786.
2012-06-12
ADOPTION OF TANYA.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Tanya's mother appeals from a decree of the Juvenile Court terminating her parental rights and committing Tanya to the custody of the Department of Children and Families (department). The mother's main argument is that the Juvenile Court judge abused his discretion by denying her request for a continuance for a hearing on a petition for the care and protection of Tanya. She also contends that the judge erred by drawing a negative inference against her as a result of her absence from the hearing. We affirm.
Procedural and factual background. We summarize the facts as found by the judge, which are supported in the record, supplemented by uncontroverted testimony from the transcript. Tanya, the mother's fourth child, was born in November of 2009.
Her father's identity is unknown.
The mother's parental rights have been terminated with respect to two of her three older children—specifically, her first and third children—who now live in foster care in Massachusetts. Her second child lives in foster care in Georgia, where he was born, and the mother has made no effort to contact him.
At the time, the mother was living in a motel room provided by the Department of Transitional Assistance. Following an anonymous report of neglect made pursuant to G.L. c. 119, § 51A, on November 10, 2009, the department filed a care and protection petition pursuant to G.L. c. 119, § 24, and was granted temporary custody of Tanya that same day.
The judge also issued a decree terminating the parental rights of “any unknown/unnamed father of [Tanya].” There is no appeal in that regard before us.
In investigating the allegations of neglect, an employee from the department visited the mother in her motel room, and found that the mother had inadequate provisions for the baby, having only limited clothing, one package of diapers, and two packages of baby wipes. The mother stated that she hoped to receive more items following a baby shower. Shortly thereafter, the mother lost her housing at the motel, and has been homeless since that time. She has not provided the department with contact information or other information concerning her whereabouts.
Although she regularly visited the child, the mother did not complete the substantial majority of the tasks on the department's service plan for her, which included, among other things, obtaining stable housing and employment, submitting to a substance-abuse evaluation, submitting to a psychological evaluation and parenting-skills assessment, attending therapy and taking any prescribed medications, participating in a domestic violence support group,
taking parenting and anger management classes, attending foster care reviews, and cooperating with her social worker.
Prior to Tanya's birth in 2008, the department received several G.L. c. 119, § 51A, reports alleging domestic violence between the mother and the man who was her boyfriend at that time.
At the visits, which included Tanya as well as two of her other children, the mother had difficulty controlling her children's behavior. The mother did not bring diapers or wipes, as requested by the department, to these visits. The mother would sometimes forget to change Tanya's diaper, and her social worker would have to remind her or undertake the task herself. The mother would also wake Tanya when the child was attempting to sleep, and withdrew the baby's bottle before it was finished, and then refused to return it.
A hearing to adjudicate the care and protection of Tanya was scheduled to be held on January 20, 2011. The day before the hearing, the mother called her social worker in an effort to reschedule a visit with Tanya that she had missed. The social worker reminded her of the upcoming hearing, and the mother stated that she would be unable to attend due to difficulties with obtaining transportation. She later called her attorney and left a voice message stating the same. On the morning of the hearing, with all other parties and relevant witnesses assembled and prepared to proceed, the mother's attorney made a request for a continuance, which the judge denied.
On March 25, 2011, the judge issued a decree finding the mother to be unfit and finding termination of her parental rights to be in Tanya's best interests. The judge committed Tanya to the department's custody until she turned eighteen or the goal of her commitment (namely, adoption) had been accomplished. This appeal followed.
Discussion. a. Denial of the mother's request for a continuance. It is true that, before the State may deprive a parent of “all that parenthood implies ... the requirements of due process must be met.” Adoption of Eugene, 415 Mass. 431, 435 (1993), quoting from Armstrong v. Manzo, 380 U.S. 545, 550 (1965). The fundamental requirements of due process in this context are notice and a meaningful opportunity to be heard. See Care & Protection of Manuel, 428 Mass. 527, 535 (1998). Due process “requires that a parent be given the opportunity effectively to rebut adverse allegations concerning his or her child-rearing capabilities.” Custody of Two Minors, 19 Mass.App.Ct. 552, 557 (1985), quoting from Duro v. Duro, 392 Mass. 574, 580 (1984). However, “[w]hether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and his decision will be upheld absent an abuse of that discretion. Care & Protection of Quinn, 54 Mass.App.Ct. 117, 120 (2002). With those standards of review in mind, we are not persuaded by the mother's argument that the judge abused his discretion in denying her request for a continuance.
Although the mother contends that she was unable to get to court to attend the hearing, there is no evidence in the record indicating that she made any effort to secure transportation to court. Nor is there evidence that she requested assistance from the department or any other person in this regard. Moreover, even if the department was on notice that the mother had a problem with transportation to the hearing, it could not have assisted her in obtaining transportation because the mother failed to provide the department with contact information. On these facts, we conclude that the mother has failed to show that the judge abused his discretion by denying her last minute request for a continuance.
We also reject the mother's claim that the denial of the request for a continuance resulted in a denial of due process. Although the mother was absent from the proceedings, she was represented by able counsel throughout the proceedings. See Adoption of Jacqui, 80 Mass.App.Ct. 713, 716–719 (2011) (denial of due process resulted where father was incarcerated, received no notice of proceedings, and the representation by counsel was “cursory”). The cases cited by the mother in support of her due process violation claim concern incarcerated parents who were unable to attend hearings regarding the care and protection of their children, are inapposite. See Adoption of Edmund, 50 Mass.App.Ct. 526, 529–530 (2000) (incarcerated father was denied due process where he “made timely and persistent requests of the courts for leave to appear which were denied, he specifically sought to participate through the court-sanctioned mechanism of telephone conferencing, and no other procedure to respond was afforded to him”). Adoption of Whitney, 53 Mass.App.Ct. 832, 837 (2002) (incarcerated father “made abundantly clear to the court through counsel before and during trial his desire to participate in the hearing and his objection to its proceeding absent such participation”).
b. Negative inference. We are not persuaded by the mother's argument that the judge committed error by drawing a negative inference against her because she failed to attend the hearing. She contends that the judge may only draw a negative inference against a parent when the parent appears in court, but refuses to testify or invokes the privilege against self-incrimination. See Custody of Two Minors, 396 Mass. 610, 617 (1986); Care & Protection of Quinn, 54 Mass.App.Ct. at 121.
The cases cited by the mother simply make clear that the law permits a judge to draw a negative inference against the parent in those specific circumstances. See Custody of Two Minors, supra (“[T]he privilege against self-incrimination applicable in criminal proceedings, which prevents the drawing of a negative inference from a defendant's failure to testify, is not applicable in a child custody case”); Care & Protection of Quinn, supra (the privilege against self-incrimination “does not prevent opposing counsel from commenting on the defendant's choice not to testify or the fact finder from drawing a negative inference therefrom”). Moreover, the judge clearly noted in his findings that the negative inference that he drew against the mother for her failure to appear was merely one among many factors he considered.
Finally, even if the judge erred in drawing a negative inference against the mother, such error was not prejudicial because the evidence supporting termination of the mother's parental rights was overwhelming. See Adoption of Christine, 405 Mass. 602, 608 (1989) (“overwhelming evidence” of unfitness); Adoption of Paula, 420 Mass. 716, 728 (1995) (same); Adoption of Donald, 49 Mass.App.Ct. 908, 910 (2000) (same).
Accordingly, the decree is affirmed.
So ordered.