Opinion
No. 14–P–1657.
07-21-2016
ADOPTION OF YANCEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree by a judge of the Juvenile Court terminating her parental rights to her son Yancey pursuant to G.L. c. 119, § 26, and from an order denying her motion for relief from judgment. We affirm.
The judge also terminated the parental rights of the father. He is not a party to this appeal.
Procedural history. On December 4, 2012, the Department of Children and Families (department) filed a care and protection petition and obtained temporary custody of the child pursuant to G.L. c. 119, § 24. On December 7, 2012, the mother waived her right to a temporary custody hearing, and custody of the child continued with the department. The department filed its notice of intent to seek termination of parental rights on October 2, 2013.
Trial was scheduled for May 7 and 8, 2014. The mother did not appear for trial on May 7, 2014, but trial did not proceed on that date because the judge was not available. Trial commenced on May 8, 2014. Immediately preceding the one-day trial, the judge denied the mother's motion to continue. The mother was not present at trial, and the judge drew a negative inference against her based on her absence. At trial, two witnesses testified and twenty-one exhibits were admitted in evidence.
On May 9, 2014, the judge found the mother unfit and terminated her parental rights. Additionally, he found that the child was in need of care and protection, committed him to the department's custody, and approved the department's plan for adoption of the child by his foster parents. The judge left posttermination contact between the child and the mother to the discretion of the department and postadoption contact to the discretion of the adoptive parents. The mother filed a timely notice of appeal on June 6, 2014. On September 29, 2014, the judge issued his findings of fact and conclusions of law.
On January 9, 2015, the mother, represented by new counsel (appellate counsel), filed her motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). See Adoption of Gillian, 63 Mass.App.Ct. 398, 410 (2005) (“Although the Massachusetts Rules of Civil Procedure do not apply in termination cases, we proceed by analogy to Mass.R.Civ.P. 60 [b]”). On March 4, 2015, after argument, the judge denied the mother's motion and her request for an evidentiary hearing.
Discussion. 1. Motion for relief from judgment. The mother contends that her rule 60(b) motion should have been allowed and that the decree should be vacated where alleged conduct by her trial attorney, which she claims effectively prevented her from appearing at trial, constituted both ineffective assistance of counsel and a violation of her due process rights. She claims that her trial attorney advised her not to attend trial, depriving her of a meaningful opportunity to rebut the evidence against her. She further contends that the motion judge (who was also the trial judge) abused his discretion in denying her request for an evidentiary hearing on the motion.
The mother contends that had she “been present at trial, she would have been able to testify about her progress in treatment, which may have led to a conclusion that her unfitness was temporary.... [The][m]other believed that her presence at trial would, at the least, convey to the court her ongoing commitment to [Yancey] and to regaining custody of him.”
Both the mother and trial counsel were present and prepared to testify at the hearing on the motion. During the hearing, the judge considered the mother's arguments and reviewed the affidavits of trial counsel and the mother that accompanied the motion. As previously noted, the judge denied the mother's request for an evidentiary hearing. “It is well-established that while a judge may hold an evidentiary hearing regarding postjudgment motions in a termination of parental rights case, she is not required to do so.” Adoption of Gillian, supra.
We review the judge's decision whether to hold an evidentiary hearing on the motion for relief from judgment for an abuse of discretion. Adoption of Marc, 49 Mass.App.Ct. 798, 800–801 (2000). Here, there were significant factual conflicts between the affidavits of the mother and her trial counsel, the resolution of which could have had potential significance for the mother's meaningful opportunity to participate at trial. The judge nonetheless concluded that an evidentiary hearing was unnecessary. A review of the context in which this conclusion was reached is helpful for determining its propriety.
In denying the requested evidentiary hearing, the judge was clearly troubled by the attorney-client privilege ramifications of having trial counsel testify. He stated on the record that he did not know if the circumstances presented were sufficient to “overrule the privilege” and that he was “declin[ing] to address that issue because frankly, I don't know the answer.” He believed that privilege issues would necessarily restrict an evidentiary hearing to a one-sided consideration of the mother's live testimony, in which she would “tell half of a story.” This was error. An evidentiary hearing would not be restricted in the way that the judge suggested. See, e.g., Commonwealth v. Brito, 390 Mass. 112, 119 (1983) (“Once such a charge [of ineffective assistance of counsel] is made, the attorney-client privilege may be treated as waived at least in part, but trial counsel's obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel”); Darius v. Boston, 433 Mass. 274, 277 (2001) (“There are, under Massachusetts law, certain exceptions to the attorney-client privilege and some circumstances in which the privilege may be deemed waived other than by express waiver”); Commonwealth v. Silva, 455 Mass. 503, 529 (2009) (“Because the defendant essentially accused trial counsel of incompetence in circumstances covered by the attorney-client privilege and to which the only witnesses were the defendant and trial counsel, the privilege must be deemed waived, in part, to permit counsel to disclose only those confidences necessary and relevant to the defense of the charge of ineffective assistance of counsel”); Clair v. Clair, 464 Mass. 205, 218–221 (2013).
The mother was arrested on or about April 16, 2014, after being involved in a physical altercation while under the influence of alcohol. Pursuant to G.L. c. 123, § 35, she was involuntarily committed to the Women's Addiction Treatment Center (WATC), a treatment facility in New Bedford. Trial counsel and the mother agree that on or around May 2, 2014, counsel advised the mother to remain in residence at the WATC, and that he would move to continue the care and protection trial on that basis. Counsel was unable to file the motion to continue prior to trial because of the unavailability of the judge and opposing counsel in the intervening period. In the meantime, the mother was unexpectedly discharged from the WATC program on May 6, 2014, due to a disagreement that she had with the director of the facility.
The mother made an offer of proof that her discharge from the WATC was prompted by an argument that occurred when the WATC refused her request that she be transported to court in a program van for trial the next day and on May 8, 2014.
At this point, the stories in the affidavits presented to the motion judge diverge. The mother claims that she spoke with counsel by telephone on May 7 and he explained that trial had not taken place as scheduled on that date, that he would be returning to court the following day, and that the mother should not appear for trial as her appearance would be detrimental to her case now that she had been dismissed from her treatment program. Counsel stated in his affidavit that he did not speak with the mother at all between May 2 and May 9, that he learned of her discharge from a WATC clinician, and that he then tried without success to reach the mother at various telephone numbers.
On June 16, 2016, following oral argument before this panel, we issued an order seeking clarification from the judge regarding his rationale for denying the rule 60(b) motion. On June 22, 2016, the judge issued detailed findings clarifying the basis for his denial of the motion and the request for an evidentiary hearing, in which he specifically stated that he had discredited the mother's affidavit as “self-serving and not credible.” There was no abuse of discretion. Cf. Commonwealth v. Grant, 426 Mass. 667, 673 (1998) ; Commonwealth v. Pagels, 69 Mass.App.Ct. 607, 618 (2007). Based on the internal inconsistencies in the mother's affidavit and offer of proof highlighted by the department and the judge, we cannot say that the judge, in discrediting the mother's affidavit and declining to hold an evidentiary hearing, “made ‘a clear error of judgment in weighing’ the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives.” Murray v. Super, 87 Mass.App.Ct. 146, 148 (2015), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014). The denial of the rule 60(b) motion naturally followed.
The department states in its brief:
“Mother's own actions in connection with her discharge from WATC on May 6, 2014, as set forth in her affidavit, clearly discredit her claim that she passively relied on trial counsel's allegedly unreasonable advice. Mother's offer of proof made at the post-trial hearing indicated that despite her counsel's advice she not attend, she decided she would attend and her unexpected discharge resulted from an argument over her request that WATC transport her to trial.... Even though her insistence she be transported to the trial led to her discharge, once she was discharged from the program and was free to go, she still did not.”
For example, the judge noted:
“Mother claims by way of her affidavit that she was ‘scheduled’ for discharge from the program on May 6, 2014.... However, in the next paragraph and in oral argument by appellate counsel, it is apparent that this was not true. Mother was not ‘scheduled’ for discharge on May 6, 2014, she was ‘unexpectedly discharged’ from the program on May 6, 2014. In short, mother was asked to leave the program.... During oral argument on the Rule 60(b) motion, appellate counsel stated that mother was discharged from this facility due to an argument with the director of the program. The reason claimed for the argument was that mother wanted the program to transport her to court for the termination trial, in contradiction to the very advice of trial counsel she claims was the reason for her nonappearance at trial. Thus, this court does not credit mother's claim in her motion that she was prevented from appearing at the termination trial by trial counsel.... Having been discharged from the program, and having demonstrated her intent to ignore trial counsel's advice the day before trial, this court does not credit mother's claim that she was prevented from coming to court on May 7, 2014 or May 8, 2014 due to trial counsel's actions/advice.”
2. Ineffective assistance and due process. The mother raised ineffective assistance of counsel and due process claims predicated on her assertion that trial counsel advised her not to attend trial even after her discharge from the WATC. Where the judge reasonably discredited the mother's account of the events leading up to her absence from trial, these claims fail.
As discussed above, the mother sought to use her account of her interactions with trial counsel to raise a due process violation. In her motion for relief from judgment, the mother argued that Mass.R.Civ.P. 60(b)(4) requires a judge to relieve a party from final judgment if the judgment is void for lack of due process. “Parents have a fundamental liberty interest in maintaining a custody of their children.” Care & Protection of Erin, 443 Mass. 567, 570 (2005). “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.” Adoption of Zev, 73 Mass.App.Ct. 905, 905 (2009). “[F]undamental fairness, as well as due process concerns, requires that a parent be given the opportunity effectively to rebut adverse allegations concerning his or her child-rearing capabilities.” Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 185 (2010), quoting from Duro v. Duro, 392 Mass. 574, 580 (1984). Where a parent does not receive the process to which he or she is constitutionally due, the termination decree must be vacated. See Adoption of Zev, supra at 906. However, where the only support for mother's due process claim comes from the self-serving affidavit that was reasonably discredited by the judge, we need not reach the due process assertion.
3. Termination of parental rights. The standard for termination of parental rights involves a two-step analysis: first, a determination that a parent is unfit, and second, a determination that termination of parental rights is in the best interests of the child. Adoption of Nancy, 443 Mass. 512, 515 (2005). On appeal, the mother does not directly challenge the judge's finding of current parental unfitness. Rather, as part of her ineffective assistance of counsel claim, she contends that, but for her absence from trial, the evidence demonstrates that her parental unfitness was temporary. The department and the child counter that the mother's unfitness was proven clearly and convincingly through overwhelming evidence of her long-standing struggles with substance abuse and mental health issues, domestic violence, criminal involvement, neglect of the child, inconsistent visitation with the child, inability or unwillingness to correct her parental shortcomings, and the improvements in the child's behavior and development following his removal from the mother's custody. Further, the department and the child contend that termination of parental rights was proper where the judge found by clear and convincing evidence that it was in the child's best interests to be adopted by the foster, now preadoptive, family.
Where the mother's ineffective assistance claim has essentially been found to be unsupported and her absence from trial is attributable to the same behaviors justifying the adequately supported conclusion of unfitness, the mother's absence from trial provides no basis to revisit either the specific question whether her unfitness was only temporary or the termination of her parental rights generally.
4. Posttermination and postadoption visitation. Once again, in light of the failure of her ineffective assistance claim, the mother's contention that the judge's decision not to order posttermination or postadoption visitation was itself also at least partly influenced by her absence from trial provides no basis to review the judge's conclusion in this regard.
We consider harmless any error in the judge's consideration of unsworn representations by the foster mother after the close of evidence (to which no objection was lodged) concerning posttermination visitation, as the law already presumes that preadoptive parents will act in the best interests of the child in making decisions regarding visitation. See Adoption of Ilona, 459 Mass. 53, 64–66 (2011).
We discern no merit in the mother's contention that the trial judge's impartiality was compromised because of his familiarity with a child previously adopted by the foster mother.
Decree affirmed.
Order denying motion for relief from judgment affirmed.