Opinion
18-P-775
03-15-2019
ADOPTION OF UMA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Before us are the consolidated appeals from (1) the Juvenile Court's decree terminating the mother's parental rights as to the child and approving the adoption plan proposed by the Department of Children and Families (DCF) (first appeal), and (2) an order of a single justice of this court denying the mother leave to file a late notice of appeal from an order of another single justice that denied the mother's motion to stay the first appeal for purposes of filing a motion for a new trial in the Juvenile Court (second appeal).
The most substantial issue in this appeal is the failure of trial counsel to put before the judge certain evidence concerning, first, the possibility of a kinship placement with the maternal grandmother, and, second, the child's bond with her mother and maternal grandmother.
The mother does not challenge the judge's finding of unfitness. The judge had before her only two potential placements: A kinship placement with the paternal grandmother, and a nonkinship placement with a preadoptive family that was identified only two weeks before trial, and with whom the child had been placed literally the day before trial. For most of her life, the child had been living with a paternal aunt, whom DCF determined to be an unsuitable placement because she had two open shoplifting charges (about one of which she did not inform DCF), lied to DCF about various matters, lacked employment or other financial means of support, had truant children, and did not keep her children up to date with medical and dental appointments.
The mother does not contend before us that placement with the paternal grandmother was appropriate. As between the two placements with which the judge was presented, we see no abuse of discretion or clear error of law in the judge's choice of the preadoptive home. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). The judge approved a plan according to which the child would live in her preadoptive home for six months, at which time that family's suitability would be reassessed. If the family turned out not to be suitable, the plan required DCF to look for another preadoptive home. Because the child has had virtually no contact with her preadoptive family, this plan was essentially one of adoption by recruitment. The law requires that such plans be "sufficiently substantive to permit the requisite meaningful evaluation" by the judge. Adoption of Lars, 46 Mass. App. Ct. 30, 32 (1998). DCF's plan, "although abbreviated," was sufficient. Id. The judge found that DCF chose the preadoptive parents because they were financially stable, had been married for fourteen years, had adopted another girl of Caucasian and Hispanic descent (the same descent as the child), were dedicated to learning about the child's culture "and making sure that they keep that history and culture in their lives," and were supportive of maintaining the child's relationship with the paternal aunt, with whom the child had been living prior to this placement. This is sufficient.
The mother argues that the judge lacked sufficient evidence to find that termination was in the child's best interests because DCF failed to identify other kinship resources or make an effort to keep the child with the paternal aunt, but the judge was without information on which other kinship resources might have been available or what efforts DCF might have failed to make. And, because the plan was for adoption and a sufficiently detailed adoption plan (which identified an apparently suitable preadoptive home) had been proposed, we think, given what the judge had before her, there was no abuse of discretion or clear error of law in the judge's conclusion that termination of parental rights was in the child's best interests. The mother argues that the judge erred in failing to order visitation, but, again, visitation was not sought, and so, given what the judge had before her, we see no error.
However, as we have said, the mother's main contention in both these appeals is that the judge did not have before her information critical to making a placement determination, a best interests assessment, or a visitation order. The mother argues that trial counsel was ineffective for failing to put certain evidence and make certain arguments before the judge. She argues in the alternative that, regardless, she should be given an opportunity to present that evidence, as it is material to assessing the best interests of the child and determining the best placement and visitation for her and whether termination of parental rights is warranted.
Specifically, the mother argues that trial counsel was ineffective for, in various ways, preventing the judge from considering the maternal grandmother as a placement option: she argues that counsel falsely told her that she could propose only one plan; that counsel falsely told her that the maternal grandmother was not a viable option because the maternal grandmother's son, whose only criminal history was an eight year old conviction of operating under the influence, lived in the home, even though, in a prior investigation, DCF had determined that the maternal grandmother was a suitable resource in almost all respects; that counsel did not explore the possibility of having the maternal grandmother ask her son to move out, which the maternal grandmother has stated she is willing to do; that counsel failed to present the maternal grandmother as a potential placement option to the judge; and that counsel failed to adequately investigate the mother's potential plans by not speaking to the maternal grandmother until the day before trial.
Second, the mother claims that counsel failed to introduce evidence of the child's bond with the mother and the maternal grandmother, and that counsel should have sought visitation. She points to evidence that, although the mother stopped attending DCF-supervised visitation after the middle of 2016, she continued to have regular contact with the child through the paternal aunt, about which DCF knew but did not object. (The judge's finding, which was not clearly erroneous based on the evidence presented, was that "[a]t the time of trial Mother had not visited the child since June 30, 2016.") The mother also claims that counsel failed to introduce evidence that the maternal grandmother visited the child several times per week at the paternal aunt's home, and cared for the child in her own home on weekends.
Third, the mother argues that counsel was ineffective for failing to investigate DCF's proposed adoptive placement, which DCF had located only two weeks before trial. She claims that counsel could have obtained a continuance under rule 6 of the Trial Court's Uniform Rules for Permanency Hearings, which requires DCF to file its permanency report at least thirty days before trial, and lacked a strategic or tactical reason for not requesting one.
During the pendency of the appeal from the decree of the Juvenile Court, the mother filed a motion in this court seeking to stay this appeal to allow her to bring a motion for a new trial to present these arguments to the Juvenile Court in the first instance. Appended to that motion were sworn affidavits from the mother, appellate counsel, and the maternal grandmother supporting the factual allegations underpinning the mother's argument, and a draft motion for a new trial. That motion to stay was denied by the first single justice of this court. The mother later sought leave from the second single justice to file a late notice of appeal from the first single justice's order. That was denied. The mother filed a timely notice of appeal from the second justice's order. It is that appeal that has been consolidated with the appeal from the decree of the Juvenile Court.
As to the claim in the direct appeal that counsel was ineffective, "[a]bsent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal." Care & Protection of Stephen, 401 Mass. 144, 150 (1987). This is because claims of ineffective assistance often require independent fact finding, which appellate courts are not equipped to undertake. In this case, the factual predicates for most of the mother's claims of ineffective assistance come exclusively from affidavits submitted in support of her motion to stay the appeal pending a motion for a new trial. Moreover, DCF and the child have not had an opportunity to present facts of their own on these issues, nor do we have an affidavit from trial counsel that might shed light on her conduct, though appellate counsel does say in her affidavit that one was sought. This is therefore not one of those exceptional circumstances in which it is appropriate to consider a claim of ineffective assistance on direct appeal, and we decline to do so. Consequently, in the first appeal, the decree of the Juvenile Court is affirmed.
The mother also argues, citing Adoption of Dora, 52 Mass. App. Ct. 472, 476 (2001), that the judge erred by "leav[ing] the choice of adoptive placement to the direction of [DCF] subject only to review by the adoption judge under G. L. c. 210, § 6." We disagree. In Adoption of Dora, the trial judge declined to decide which of two proposed plans was in the child's best interests, instead leaving it to the discretion of DCF and the adoption judge. See id. at 475-476. We held this to be improper because "meaningful evaluation of the plan required the judge to assess both adoption options and to approve of one or disapprove of both." Id. at 476. Here, the judge did just that. She rejected the mother's proposed plan -- to which the mother does not assign error -- and accepted DCF's proposed plan.
We also disagree with the mother's argument that the judge did not consider evidence of a bond between the child and the paternal aunt to approve DCF's proposed plan. Visitation with the paternal aunt was not sought. The judge, however, found that the child had lived with the paternal aunt from June 23, 2014, to December 18, 2017, almost her entire life, before being placed in the preadoptive home one day before trial. The judge also approved DCF's proposed plan partly because the preadoptive family indicated that they would support maintaining the child's relationship with the paternal aunt. We find in these circumstances that the judge considered evidence of the child's bond with the paternal aunt.
As to the second appeal, we find no abuse of discretion in the second single justice's denial of the mother's motion for leave to file a late notice of appeal from the first single justice's order denying the motion for a stay of the appellate proceedings in light of the possibility of a new trial motion being brought following the decision of this appeal on the merits. Nonetheless, we think the evidence provided by the mother in her motion for a stay warrants review by the trial judge. Consequently, we give leave to the mother to file through appellate counsel within ten days of the issuance of the rescript in this matter a motion for a new trial, or to seek other appropriate relief as permitted by the Rules of Civil Procedure, in the Juvenile Court. The judge may allow the motion if she finds ineffective assistance of trial counsel or, indeed, even if she does not, if she determines that information necessary for a proper best interests determination was not put before her in the prior proceeding. See Petition of Worcester Children's Friend Soc'y to Dispense with Consent to Adoption, 9 Mass. App. Ct. 594, 602 (1980) ("Confinement to procedural boundaries cannot have priority over the concern at stake in proceedings to determine the best interests of a child"). We do not intend to indicate the proper outcome of any such motion.
Decree affirmed.
Single justice order entered August 22, 2018, affirmed.
By the Court (Vuono, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 15, 2019.