Opinion
20-P-148
10-02-2020
ADOPTION OF XYLONA (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from decrees entered after a trial in the Juvenile Court finding him unfit to parent his two children, and terminating his parental rights as to them. The father argues that he was denied effective assistance of counsel during trial. He further argues that the judge improperly assumed the role of the Department of Children and Families (DCF) by asking the probation department to gather evidence relevant to the determination of the best interests of the children and the suitability of the proposed guardian. We affirm.
The father raises his arguments through appellate counsel pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981), and Care & Protection of Valerie, 403 Mass. 317, 318 (1988).
Background. We summarize the judge's findings of fact, which find ample support in the record. The mother and father met in 2010 when the mother's oldest child was about six months old. They lived together for six to seven years, during which time Xylona and David were born. Throughout their relationship, the mother obtained four G. L. c. 209A abuse prevention orders (209A order) against the father, requiring him to stay away from her and the children. The father was incarcerated for violating one of the 209A orders taken out by the mother. He was further incarcerated multiple times during the children's lives. The mother bore the primary responsibility for parenting the children.
The judge admitted G. L. c. 119, § 51A, reports to "set the stage," while G. L. c. 119, § 51B, investigative reports were considered "for statements of fact . . . not for purposes of diagnosis, prognosis, and evaluation." Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). See Mass. G. Evid. § 1115(b)(2)(A)-(B) (2020).
Although prior to having this child the mother had a son who was placed in the maternal grandmother's custody, we refer to this child as the mother's oldest child.
The father is not the biological or putative father of the mother's oldest child. This child is not the subject of this appeal.
Beginning in 2011, multiple G. L. c. 119, § 51A, reports (51A report) were filed alleging neglect of the mother's children and citing concerns regarding domestic violence in the home. DCF conducted G. L. c. 119, § 51B, investigations (51B investigation) and determined that the allegations in these reports were unsupported. In February 2016, DCF investigated a 51A report that the children had arrived at daycare improperly dressed, that Xylona was covered in bed bug bites, and that David was sick and in need of medical attention. The ensuing 51B investigation concluded that the allegations were supported and DCF opened a case to provide services to the family. Between March and August 2016, three more 51A reports were filed.
In March 2016, DCF concluded that allegations that the father had been in the home despite an active 209A order against him, that there was domestic violence occurring in the home when the children were present, and that the children were neglected by the father were supported. In August 2016, two 51A reports were filed: allegations made in the first report, that the children were being neglected by the mother and the father and that the family was living in the mother's car, were supported; however, the allegations made in the second report were unsupported.
In September 2016, DCF found that additional allegations of neglect of the children by the mother and the father were supported and incorporated them into the open case. There were ongoing concerns regarding the mother and father's relationship continuing despite the mother's active 209A order against the father. During an unannounced visit to the shelter apartment where the mother and the children lived at the time, DCF found the children in the care of a teenaged babysitter while the mother was reportedly out of town because her car had broken down. Observations inside the apartment included signs of drug use, unsanitary conditions, and little to no food. DCF took the children into emergency custody and were subsequently awarded temporary custody; the mother and the father waived their rights to a temporary custody hearing. DCF was granted permanent custody of the children on October 12, 2017. On May 14, 2018, DCF moved for a review and redetermination hearing with the goal of adoption for the children.
On November 15, 2018, the trial began. Shortly thereafter, the children's maternal grandmother petitioned the court to be appointed guardian of the children. Both parents supported the petitions, and a guardianship hearing was held. The judge denied the petitions. The trial resumed on March 7, 2019. The father attended only that day of trial and declined to return for the remaining proceedings. On March 22, 2019, the judge approved the mother's stipulation to unfitness and terminated her parental rights; the judge also approved an open adoption agreement. After the trial concluded, the judge determined that the father was unfit and that the termination of his parental rights was in the best interests of the children. The judge denied the father's motion for posttermination or postadoption visitation, and approved DCF's adoption plan for Xylona and David.
Although guardianship petitions are generally filed in the Probate and Family Court, a Juvenile Court judge may adjudicate such a petition where there is a pending care and protection case concerning the children. See G. L. c. 190B, § 1-302 (a). Here, the guardianship and care and protection actions were not consolidated.
The father was incarcerated during trial. Prior to declining to participate, the father was transported from the house of correction to participate in the proceedings.
Discussion. 1. Ineffective assistance of counsel. The father argues for the first time on appeal that he was denied the effective assistance of counsel at trial. He alleges that trial counsel failed to inform and advise him that the judge may draw a negative inference from the father's decision not to be present for the last four days of trial. The father further argues that trial counsel's failure to provide reasons for his absence to the judge negatively impacted his case. Finally, the father asserts that trial counsel's purported failure to notify him of the mother's decision to enter into an open adoption agreement precluded him from presenting an additional claim.
As a general rule, in child custody and termination of parental rights proceedings, judges have discretion to draw an adverse inference "against a parent who, having notice of the proceedings, is absent . . . without an adequate excuse." Adoption of Helga, 97 Mass. App. Ct. 521, 525 (2020), citing Adoption of Talik, 92 Mass. App. Ct. 367, 371 (2017). The father does not allege that the judge abused his discretion in drawing an adverse inference.
"Whenever [DCF] . . . is a party to child custody proceedings, the parent, guardian or custodian of the child . . . shall have and be informed of the right to counsel at all such hearings." G. L. c. 119, § 29. This includes the right to effective assistance of counsel. See Care & Protection of Stephen, 401 Mass. 144, 149 (1987). A claim of ineffective assistance of counsel is reviewed "to determine whether the 'behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer' and, if so, we further inquire 'whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defence.'" Id., quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Adoption of Azziza, 77 Mass. App. Ct. 363, 368 (2010). "'[T]he preferred method of resolving factual disputes concerning the conduct of the original trial' is for the aggrieved party to file a motion for a new trial. Absent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal." Care & Protection of Stephen, supra at 150, quoting Saferian, supra at 90 n.1. The present case does not involve such exceptional circumstances, and the claim fails for that reason alone.
Notwithstanding this procedural defect, the father also failed to demonstrate that trial counsel was ineffective. Trial counsel repeatedly represented to the judge that the father refused to attend the remainder of proceedings, noting that "[h]e was adamant." There is no evidence in the record to suggest counsel did not explain the potential consequences of that decision to the father. Similarly, there is nothing in the record to shed light on the conversations that trial counsel and the father may have had regarding the mother's decision to resolve the case. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ("an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions"). Furthermore, the father has not demonstrated that he suffered prejudice. The evidence of father's unfitness was overwhelming, and the negative inference drawn from the father's absence was only one of a myriad of factors the judge weighed in his decision. See Adoption of Azziza, 77 Mass. App. Ct. at 368 ("Under the second prong, prejudice must be shown; prejudice is not shown if there is overwhelming evidence of unfitness").
2. Guardianship proceeding. The father argues that during the guardianship proceeding, the judge impermissibly took on a prosecutorial role by directing the probation department to gather additional evidence regarding the maternal grandmother. DCF and the children contend that the father's argument is not properly before us because the maternal grandmother did not appeal the judge's decision. They further contend that the father did not object to the admission of the evidence gathered by the probation department, thereby waiving this issue on appeal. We agree that the father's argument is not properly before us. See Guardianship of Tara, 97 Mass. App. Ct. 11, 11 (2020) (father and children's appeal of denial of grandmother's petition for guardianship, where guardianship and care and protection proceedings were not consolidated, must be dismissed because "we are unable to provide any effective relief on appeal because the grandmother is not a party to the appeal"). See also Adoption of Kimberly, 414 Mass. 526, 534-535 (1993) ("The consequence of such a failure to object [at trial] is to waive the objection").
Even assuming that the appeal were properly before us and the father had preserved this issue for appeal, the claim lacks merit. In determining whether to transfer temporary or permanent legal custody to a guardian, a "judge must have sufficient evidence to make an appropriate determination." Adoption of Cadence, 81 Mass. App. Ct. 162, 173 (2012). Thus, a judge's decision may be made "after study by a probation officer or other person or agency designated by the court" to determine if the proposed guardian is "qualified to give care to the child." G. L. c. 119, § 26 (b) (2) (i). See Adoption of Cadence, supra ("Before making a custody award in a care and protection case, a home study of the potential custodian must be conducted"). Here, the judge followed the statute and precedent by seeking such information. Thus, there was no error.
The issues raised in this appeal do not address the critical issues before the trial court: parental fitness and the best interests of the children. In determining the father's unfitness, the judge properly considered the required factors under G. L. c. 210, § 3 (c), finding factors (ii), (iii), (iv), (v), (vi), (viii), (xii), and (xiii) to be applicable. The father does not contest the judge's findings on appeal nor does he contest the termination of his parental rights. Accordingly, the decrees must be affirmed.
So ordered.
By the Court (Blake, Massing & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 2, 2020.