Opinion
18-P-1097
11-15-2019
ADOPTION OF HAMILTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree issued by a judge of the Juvenile Court terminating her parental rights to her son, Hamilton, and approving the plan of the Department of Children and Families (department) for placement of Hamilton in a guardianship with the maternal grandfather and his wife. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. The mother argues that the representation provided by her trial counsel was so deficient that it amounted to a constructive deprivation of her constitutional right to counsel and "eroded her due process guarantees of notice and opportunity to be heard." For the reasons that follow, we affirm the decree.
The father surrendered his rights to Hamilton and is not a party to this appeal.
Background. In broad overview, the underlying facts are as follows. Hamilton was born in October, 2016. The mother has a history of substance use and admitted to an addiction to Percocet dating to 2014. She also has a history of using "street drugs, primarily heroin and crack cocaine." She was undergoing methadone treatment for her substance use during her pregnancy with Hamilton. Following his birth, Hamilton remained hospitalized for approximately two weeks, undergoing treatment for his exposure to, and withdrawal from, methadone. A report was filed with the department pursuant to G. L. c. 119, § 51A, two days after Hamilton's birth based on the mother's failure to obtain prenatal care until August, 2016. The department's investigation of that report led to the mother's admission that she used heroin on two occasions while pregnant. The mother subsequently admitted to using crack cocaine while pregnant. On November 1, 2016, the department filed a care and protection petition and obtained temporary custody of Hamilton. See G. L. c. 119, § 24. He was placed with the maternal grandfather and his wife and has remained with them since that time.
We take our summary of the facts from the judge's detailed findings of fact, none of which the mother challenges on appeal.
This was not the mother's first experience with the department. Beginning in 2014, multiple reports pursuant to G. L. c. 119, § 51A, were filed with the department alleging neglect of the mother's older child (the father of that child is not the father of Hamilton). A number of those reports were supported. See G. L. c. 119, § 51B. The older child is in the custody of his father.
The mother initially was in compliance with her service plan, engaging in the services required by the department and cooperating with visitation with Hamilton. The mother did not visit Hamilton between April and mid-July, 2017, because she was suffering from shingles, which she claimed prevented her from attending the visits. Visits with Hamilton began again in mid-July and were offered to the mother on a weekly basis. The mother missed six visits between mid-July and mid-September. She missed two of the visits because she was hospitalized on the days the visits were scheduled. Visits with Hamilton generally began well, although the mother sometimes became overwhelmed when he cried. In September, 2017, visits were changed to biweekly because of the mother's inconsistent attendance. On September 28, visits were further reduced to a monthly schedule. The mother failed to visit Hamilton at all between mid-September and the start of trial on December 19, 2017.
The mother stopped her methadone treatment in July, 2017, and was no longer involved in counselling. In September, 2017, the mother entered the STARR inpatient detoxification program, where she remained for seven days. The plan was that she would enter a step-down unit to start the use of the medication Vivitrol. The judge found that there was no evidence that the mother completed the detoxification program, that she entered the step-down unit, or that she began taking Vivitrol. In October, 2017, the mother informed the department social worker that she had begun a drug treatment program at Highpoint, but that was not confirmed. In December, 2017, the mother informed her social worker that she had been admitted to another detoxification program at Spectrum on November 27, 2017, but the department learned by December 14 that she was no longer at that treatment facility. The mother also informed the social worker in December, 2017, that she was a patient at UMass Memorial Hospital, but this could not be confirmed, as the mother had revoked releases she had executed that would have allowed the department to access such information.
By December, 2017, the mother was no longer in compliance with her service plan. Among other things, her drug screens were not current, she was not engaged in counselling, she had not met with the social worker in person, she had not participated in a psychological or medical evaluation, she had not met with her probation officer, and she had not completed a parenting class.
On October 18, 2017, the department filed a notice of intent to seek a decree terminating parental rights to Hamilton. Trial on the merits began on December 19, 2017. At the outset of trial the mother's counsel moved for a continuance on the ground that the mother was not present and that neither he nor the social worker had been able to contact her. The judge denied the motion but stated that he would "leave the evidence open for one week ... and grant [counsel] the opportunity ... to recall any witnesses who testified ... to inquire of them further after [counsel] may have had the opportunity to consult with [the mother]." Thirty-four exhibits submitted by the department were admitted in evidence. The only witness who testified at trial was the department social worker. Trial continued on December 27, 2017. The mother was not present. The mother's counsel informed the judge that he had not been in contact with the mother and would not present a case. The evidence closed, and a decree terminating the mother's parental rights and approving the department's plan for guardianship of Hamilton issued on January 25, 2018.
On March 12, 2018, the mother's motion to file a late notice of appeal was allowed. After the appeal was entered in this court, the mother, represented by new counsel, filed a motion to stay the appeal to permit her to file in the Juvenile Court a motion "to vacate judgment and reopen evidence." The motion was allowed by the single justice and the appeal was stayed. The mother then filed in the Juvenile Court a motion to vacate the judgment pursuant to Mass. R. Civ. P. 60 (b) (4) and (6), 365 Mass. 828 (1974), in which she asserted that the decree was void because she did not have notice of the trial date, which deprived her of her due process rights to notice and an opportunity to be heard. See Adoption of Rory, 80 Mass. App. Ct. 454, 458 (2011), quoting Adoption of Zev, 73 Mass. App. Ct. 905, 905 (2009) ("State action terminating a parent-child relationship must comport with due process, including notice and an opportunity to be heard at a meaningful time and in a meaningful manner"). She also asserted that the decree was void because she received ineffective assistance of counsel "to such a degree as to have been constructively deprived of the right to counsel itself." See Care & Protection of Stephen, 401 Mass. 144, 149 (1987) (parents entitled to effective assistance of counsel). The mother's motion to vacate the judgment and reopen the evidence was heard by the trial judge. Following the hearing, the judge issued a detailed memorandum of decision and denied the motion.
The Massachusetts Rules of Civil Procedure apply by analogy in termination of parental rights cases. See Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011) ; Adoption of Gillian, 63 Mass. App. Ct. 398, 410 (2005).
The mother did not file a notice of appeal from the order denying her rule 60 (b) motion, and the propriety of that ruling is therefore not before us. See Visnick v. Hawley, 69 Mass. App. Ct. 901, 902 (2007) (whether judge erred in denying rule 60 [b] motion not before court where defendant did not appeal from that order); Rothkopf v. Williams, 55 Mass. App. Ct. 294, 295 n.2 (2002). Compare Adoption of Jacqui, 80 Mass. App. Ct. 713, 713-714 (2011) (father's appeal from order denying motion for new trial consolidated with direct appeal).
Discussion. 1. Termination of parental rights. We turn to the mother's appeal from the decree terminating her parental rights and approving the plan for guardianship of Hamilton. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "[A] judge must ‘evaluate whether the [parent is] able to assume the duties and responsibilities required of a parent.’ " Adoption of Nancy, 443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass. 705, 710 (1993). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, supra at 711.
The mother has a history of substance use, which continued through the time of trial. In the months leading up to trial, she had enrolled in several substance use detoxification programs, but there was no evidence at trial that she had completed any of the programs. Her substance use had led to multiple supported reports of neglect of her older child. As previously noted, she had failed to comply with many of the requirements of her service plan related to Hamilton. She had not visited Hamilton since September, 2018. The mother's "[p]rior history ... has prognostic value," Adoption of George, 27 Mass. App. Ct. 265, 268 (1989), and the judge did not err in concluding that the mother's unfitness was likely to continue into the future. See Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012). The mother's "patterns of behavior would place [Hamilton] ‘at serious risk of peril.’ " Id. at 168, quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
"Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision was not a moral judgment or a determination that the mother ... [does] not love the child." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
"After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. at 515. The judge did not err in concluding that termination of the mother's parental rights was in Hamilton's best interests. Hamilton has lived with the maternal grandfather and his wife virtually Hamilton's entire life. The judge found that Hamilton has done well in this placement and that he is well attached to the maternal grandfather and his wife.
The judge considered the factors set forth in G. L. c. 210, § 3 (c ), and concluded that factors (ii), (iii), (v), (vi), (vii), (viii), and (xii) were applicable and supported termination of the mother's parental rights.
The judge further concluded that termination of the mother's parental rights would provide stability and permanency in Hamilton's life. See Adoption of Nancy, 443 Mass. at 517. Although "termination is not a prerequisite for guardianship," termination of parental rights "is in the best interests of a child when it would bring some measure of stability to the child's life." Adoption of Xarina, 93 Mass. App. Ct. 800, 803 (2018).
"The judge's findings are specific and detailed, and they demonstrate that he gave close attention to the evidence." Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017). The judge did not err in terminating the mother's parental rights and approving the department's plan for guardianship of Hamilton.
2. Ineffective assistance. The mother argues that the decree is void because she was deprived of her "fundamental due process protections" including the "right to counsel and a right to meaningful notice and opportunity to be heard." See Harris v. Sannella, 400 Mass. 392, 395 (1987) ("A judgment is void if the court from which it issues ... failed to provide due process of law). This is essentially the same argument asserted by the mother in her rule 60 (b) motion. In addition, the mother's notice of appeal, dated March 1, 2018, stated only that she appealed from the "Findings and Order" terminating her parental rights. See Mass. R. A. P. 3 (c) (1), 481 Mass. 1604 (2019).
In that motion, the mother also asserted ineffective assistance of counsel. To the extent issues the mother raises in her brief were the subject of her rule 60 (b) motion and a part of the judge's decision on that motion, we do not consider them here.
The effect of the mother not appealing from the denial of her 60 (b) motion is that we must confine our analysis of her ineffective assistance of counsel claims to the record in the appeal from the underlying decree without considering anything that may be in the record of her rule 60 (b) motion. With this limitation in mind, we consider the mother's arguments regarding her counsel's performance and see nothing that would lead us to conclude that she received ineffective assistance, much less was constructively deprived of counsel in violation of her constitutional rights. "That test inquires, first, whether the ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer,’ and, if so, ‘whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defense.’ " Care & Protection of Georgette, 439 Mass. 28, 33 (2003), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because the mother did not appeal from the order denying her rule 60 (b) motion, the materials submitted in connection with the motion are not properly a part of the record before us on appeal. Cf. Commonwealth v. Housen, 458 Mass. 702, 711-712 (2011), quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) ("an ineffective assistance of counsel claim raised in [a] direct appeal ... generally will succeed only if attorney error ‘appears indisputably on the trial record’ ").
Counsel's representation of the mother was not cursory. Compare Adoption of Jacqui, 80 Mass. App. Ct. at 718. The judge found that the mother's "contact with her attorney ha[d] been sporadic and he ha[d] not heard from her for five months prior to trial." In requesting a continuance on the date set for trial, counsel informed the judge that he had been unable to locate the mother at UMass Memorial Hospital the day before, and that she was not a patient there. At trial, counsel for the mother cross-examined the social worker, and was able to elicit favorable information about the mother's voluntary efforts to engage in detoxification programs. He objected to certain questions posed by the other attorneys. When the attorneys returned to court on December 27, 2017, the mother's counsel informed the judge that he remained unable to locate or contact the mother and was unable to put on a case-in-chief.
There is no suggestion that counsel knew of the mother's whereabouts or had the information necessary to contact her but failed to do so. See Adoption of Talik, 92 Mass. App. Ct. at 373. The social worker also had been unable to contact the mother in recent months. The social worker testified that she spoke with the mother on December 15, 2017, but there is no indication that the call was initiated by the social worker rather than the mother. In fact, the social worker stated that the mother had changed her telephone number "a couple of times" and that the mother's most recent telephone number was "no longer in service." The social worker further testified that she informed the mother that court dates were scheduled for December 18 and 19. The mother's counsel was sorely hampered by his inability to contact or otherwise locate the mother. Compare Adoption of Jacqui, 80 Mass. App. Ct. at 715 ("The father's attorney did not object to the trial continuing in his absence, nor did she insist on discovering if her client was incarcerated"). Similarly, there is nothing in the trial record that supports the mother's claim that her counsel effectively abandoned her in the months leading up to trial.
The mother's argument that counsel failed to meet the requirements of certain of the guidelines of the Performance Standards Governing the Representation of Children and Parents in Child Welfare Cases (performance standards), promulgated by the Committee for Public Counsel Services (CPCS), does not persuade us that counsel was ineffective. The Supreme Judicial Court has cited the CPCS performance standards in certain child welfare cases, but they have been among a variety of factors considered by the court in those decisions. See, e.g., Adoption of Nancy, 443 Mass. at 519 (nothing in CPCS performance standards recommends that children be "asked to express an opinion on what is in their best interests"); Care & Protection of Georgette, 439 Mass. at 38-42 (discussing CPCS performance standards where counsel appointed to represent child in termination of parental rights cases).
Although not cited by the mother, we note that performance standard 1.9, entitled "Missing Parent Clients," provides that "[i]n the event a client's whereabouts are unknown, counsel shall take a position in court ... consistent with the client's last clearly articulated position or directive. In the absence of such information, ... whether or not to take action on behalf of such client is a matter left to the discretion of counsel consistent with the Massachusetts Rules of Professional Conduct." CPCS Assigned Counsel Manual, Standard 1.9 of the Performance Standards Governing the Representation of Children and Parents in Child Welfare Cases (2019). At a minimum, counsel's representation of the mother here was directed at avoiding the termination of her parental rights. Furthermore, the mother relies on Guardianship of L.H., 84 Mass. App. Ct. 711 (2014), for the proposition that CPCS performance standards define the applicable standard of performance that an attorney must achieve. However, that was not the holding in the case. Id. at 721 n.9.
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Even were we to conclude (which we do not) that counsel was ineffective, we are not persuaded that "better work might have accomplished" a different result. Commonwealth v. Satterfield, 373 Mass. 109, 115 (1997). The mother has not identified a strategy or settlement option that her counsel should have pursued to preserve her parental rights given the overwhelming evidence of parental unfitness and the child's interests in being raised in a safe and stable environment. The judge's findings relating to the mother's longstanding addiction to opiates and unsuccessful efforts to overcome that addiction at the time of trial were not clearly erroneous, and he did not err in concluding that termination of the mother's parental rights and approval of the department's plan for guardianship was in the best interests of the child.
Decree affirmed.