Opinion
19-P-620
12-31-2019
Tyler E. BROWN, Fourth v. Elcie SOLON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father, Tyler E. Brown, appeals from so much of a Probate and Family Court judgment that denied his request under G. L. c. 209C for an order allowing him in-person visitation with his two minor children. The father is incarcerated, and the mother has been inconsistent in bringing the children to visit him. Judgment on the father's complaints entered following what the father states was an eleven-minute pretrial conference. The mother did not appear for the conference or at any other hearing on the father's complaints. She did not file any responsive pleadings in opposition to the father's complaints, and she has not filed a brief opposing this appeal.
The father also sought orders for child support, written correspondence, and telephone calls. He filed separate but identical complaints for each child; a single judgment issued with respect to both docket numbers.
The father was housed at the Massachusetts Correctional Institution (MCI) at Cedar Junction when he filed the complaints. He currently is housed at MCI-Concord. At oral argument, he represented that he is scheduled to be released in early January, 2020, whereupon he will begin serving a five-year term of probation. We observe that because the father's probationary status upon release presents a risk of reincarceration should he violate the terms of his probation, his release from MCI-Concord will not render his complaints moot. See generally Cantell v. Commissioner of Correction, 475 Mass. 745, 754 n.17 (2016) (prisoners' complaints regarding conditions in special management unit not mooted by transfer out of unit where they remained incarcerated and therefore risked return to special management unit conditions).
Before the pretrial conference, the father filed proposed orders and memoranda in which he cited to legal and scholarly materials in support of his claim that in-person visitation is in his children's best interests and within his parental rights. At the conference, the judge asked the father to explain how it is in the children's best interests to visit him at Massachusetts Correctional Institution (MCI) at Cedar Junction, "[w]here [she has] been and [was] very familiar with, what it looks like, what it sounds like, what it smells like. [The judge asked the father to tell her] how [his] kids are going to react to that." The father responded:
"I'm their father. I've been involved. I've had positive, healthy, pro-social relationships with both of my children since their birth. ... "It's in their best interest because it allows us to preserve the continuity of our relationships. It's in our best interests because it allows me to help them contextualize some of their fears and perceptions of abandonment that they may have about me not being there. It allows me to be affectionate with them, express my love to them face to face, which is –- what's -– the value of that goes far beyond a text message, or a letter, or a phone call."
The judge then stated that she would review the father's memoranda and proposed orders before entering judgment, prompting the father to interject, "[W]e still have to go forward with the trial" on his complaints. The judge, however, without revealing how she would rule, responded, "No.... I'm going to enter a judgment today.... Because this is a pretrial conference ... and Mother has failed to appear, after having failed to appear at the time of the motion.... So this is going to be the final hearing on these complaints. I'm going to enter a judgment." The father responded, "Oh, okay."
Consistent with her promise, that day, the judge signed a judgment. The judgment allowed the father to communicate with the children by mail and by telephone but declined to order in-person visitation. The judge found that the "father has failed to meet his burden of establishing that in person parenting time with father at MCI-Cedar Junction is in the best interest of the children." The father timely appealed. We vacate so much of the judgment as denied the father's claims for in-person visitation and remand for further proceedings on that issue.
The judgment, which entered on September 14, 2017, also contains child support orders.
Standard of review. The best interests of the child is the cornerstone of the inquiry when a parent seeks an order of visitation under G. L. c. 209C. See Youmans v. Ramos, 429 Mass. 774, 783 (1999) ; Schechter v. Schechter, 88 Mass. App. Ct. 239, 246 (2015) ; Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000). That standard "permits visitation only where the petitioning [parent] has demonstrated by a preponderance of the evidence that visitation would serve the best interests of each [child] subject to a visitation order." Care & Protection of Jamison, 467 Mass. 269, 285 (2014). A judge deciding whether a parent has met their burden of proof "is authorized to consider the widest range of permissible evidence" (quotation and citation omitted), Schechter, supra, and should examine any factors found pertinent to the child's best interests in the circumstances of the dispute. Custody of Zia, supra. The inquiry "is fact-dependent and circumstance-specific, ... and includes such factors as the risk of harm to any of the [children] by the proposed visitation," taking into account their emotional and physical health. Care & Protection of Jamison, supra. Whether an order for in-person contact with a parent is wise "is a matter that should be left to the discretion of the judge," Youmans, supra, who must "exercise ‘utmost care’ in making" their determination. Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981).
In reviewing a judge's ultimate determination on visitation, "we consider whether there was an abuse of discretion in how the judge accounted for the child's best interests." Schechter, 88 Mass. App. Ct. at 245. A judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We will not sustain a visitation order "unless all relevant factors in determining the best interests of the child have been weighed." Custody of Kali, 439 Mass. 834, 845 (2003), quoting Rosenberg v. Merida, 428 Mass. 182, 191 (1998).
It should be noted that the father is not seeking to force the mother to escort the children to the facility where he is incarcerated. The father argued that he had family members known to the children who were willing to bring them.
Discussion. The father claims that he was deprived of due process of law when judgment entered following the pretrial conference without (1) notice, because he was not sent the pretrial notice and order required by Probate and Family Court Standing Order 1-06 (2006), or (2) an opportunity to present evidence. Absent evidence, the father claims, the judge's finding that he had not sustained his burden of demonstrating that in-person visitation is in his children's best interests constitutes an abuse of discretion. We agree.
The judge was required to "identify and weigh those factors pertinent to [each] child's best interests." Custody of Zia, 50 Mass. App. Ct. at 244. She did not. The only factor that the judge appears to have considered is the father's incarceration, which cannot be dispositive. See, e.g., G. L. c. 210, § 3 (c ) (xiii) ("Incarceration in and of itself shall not be grounds for termination of parental rights"). If it were, we presume that the Department of Children and Families would not have the obligation that it does, to "work in cooperation with incarcerated parents to promote a healthy relationship with their children" by arranging for "regular visitation at the correctional facility" where the parent is incarcerated. 110 Code Mass. Regs. § 1.10 (2008). It cannot be that in-person visitation is required "to prevent permanent or irremediable separation of children [who are in State custody] from their incarcerated parents," id., but not in the best interests of children who are not in State custody.
The father's paternity of the children is not in question. There is no claim that he is unfit. He has a constitutionally protected right to maintain his relationship with his children, Smith v. McDonald, 458 Mass. 540, 544-545 (2010), citing C.C. v. A.B., 406 Mass. 679, 685-686 (1990), and visitation "is at the core of" that relationship. L.B. v. Chief Justice of the Probate & Family Court Dep't, 474 Mass. 231, 242 (2016). Just as the father so poignantly argued, "being physically present in a child's life, sharing time and experiences, and providing personal support are among the most intimate aspects of a parent-child relationship. For a parent who has lost (or willingly yielded) custody of a child temporarily to a guardian, visitation can be especially critical because it provides an opportunity to maintain a physical, emotional, and psychological bond with the child during the guardianship period, if that is in the child's best interest." Id. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 574, 594 (ordering immediate reinstatement of incarcerated mother's child visitation rights).
The generalities expressed by the judge about what MCI-Cedar Junction may look, sound, and smell like, without more, were plainly insufficient to justify denying the father his fundamental liberty interest "in his relationship with his child[ren]." Youmans, 429 Mass. at 784. See Adoption of Vito, 431 Mass. 550, 566 (2000). Because she relied solely on her own subjective experience with MCI-Cedar Junction and did not give the father an opportunity to present evidence, "the judge failed to make specific or detailed findings based on evidence within the record" that in-person visitation with the father is not in the children's best interests (citation omitted). Rosenberg, 428 Mass. at 191.
We appreciate that the judge had discretion to hear the case at the pretrial conference once the mother failed to appear or to file an opposition. See Probate and Family Court Standing Order 1-06 (4) (b) (6), (4) (e) (2006). However, the judge was required to exercise that discretion "in such a manner as to provide the parties with a fair opportunity to be heard and to allow the court to reach a reasoned disposition." Probate and Family Court Standing Order, preamble. It is unclear on this record whether the father received the pretrial notice and order required under Standing Order 1-06, but even if he did, the judgment cannot be sustained for the reasons we have discussed.
The clerk's discussion with the judge at the pretrial conference strongly suggests that the notice was not sent.
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Conclusion. The visitation issue must be tried so that the father may present evidence in support of the complaints seeking in-person visitation with his minor children. Nevertheless, in "[r]ecognition of the primacy of parental rights and the child's need for stability and continuity," the father's visitation rights must be reinstated immediately and a visitation schedule established and continued until final determination of this issue, unless and until it is determined by a judge that such visitation will be, or is, a serious threat to the welfare of the children. Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 588.
Accordingly, so much of the judgment as denied the father's request for in-person visitation with his minor children is vacated. The case is remanded for further proceedings consistent with this decision, and also for a hearing on the father's motion for impoundment. See Rule 7 (a) of the Uniform Rules on Impoundment Procedure (2015) ("The court may enter an order of impoundment for good cause shown and in accordance with applicable law only after a hearing"); Reporters' Notes to Rule 12, Mass. Ann. Laws Court Rules, Uniform Rules on Impoundment Procedure, at 1446 (LexisNexis 2019) ("a motion for impoundment should be addressed in the first instance in the Trial Court"). The father's visitation shall be reinstated immediately.
So ordered.
Vacated.