Opinion
14-P-992
02-20-2015
CARE & PROTECTION OF SAM.
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
The mother appeals from the decision of a judge of the Juvenile Court finding her unfit to assume parental responsibility for her son, Sam. She claims that the trial judge's determinations of parental unfitness were not supported by clear and convincing evidence and that she received ineffective assistance of counsel when trial counsel failed to object to out-of-court statements attributed to her by third parties. We affirm.
The Department of Children and Families (department) filed a care and protection petition requesting the temporary custody of Sam and his twin brother on November 21, 2012. The boys, who were adopted by the mother and her husband (now deceased), had a tumultuous childhood. At the time the petition was filed, Sam and his brother were the subjects of a child in need of services (CHINS) proceeding and had been removed from the mother's home in May of 2010 at the age of twelve. Following a trial held over five days between August and November of 2013, the judge found the mother unfit to care for Sam and committed him to the custody of the department. Sam's brother was reunified with the mother in the summer of 2013, and with the agreement of the parties, the petition as to him was dismissed.
1. Unfitness. The removal of a child from the custody of his parent must be supported by clear and convincing evidence that the parent "currently is unfit to further the welfare and the best interests of the child." Care & Protection of Stephen, 401 Mass. 144, 150 (1987). Here, the finding that the mother is not "fit to parent [Sam] in these circumstances at this time" is amply supported by the evidence. Guardianship of Estelle, 70 Mass. App. Ct. 575, 582 (2007). The judge's findings that while under the mother's care Sam was physically aggressive, routinely displayed an oppositional and defiant demeanor, and engaged in assaultive behavior aimed at both his brother and the mother, are not disputed. Sam had been charged with assault and battery by the age of eleven, and his school had reported that both Sam and his brother displayed major behavioral problems. Based on the evidence presented at trial, the judge properly concluded that the mother was "utterly unable to control and manage [Sam's] behavior," and thereby failed to provide him with a structured environment that held him accountable for his actions.
Furthermore, after Sam was removed from her home, the mother resisted the department's service recommendations and showed little commitment to improving her parenting skills. The mother failed to engage in individual therapy and did not undergo the requested neuropsychological evaluation. The mother also violated the rules governing visitation by badgering Sam about the case, the frequency of their visits, and his wish to remain with his foster mother. By the time of trial, the mother had "established a pattern which demonstrates that it is likely [she] would not utilize services necessary to assist [Sam]: [she] would not engage in services [herself] nor would [she] obtain services for [Sam]." Adoption of Rhona, 63 Mass. App. Ct. 117, 129 (2005). After visiting with the mother, Sam appeared "beleaguered, sad and bitter." Sam feared that returning to the mother's home would mean a future in "jail" or a "mental hospital." Meanwhile, Sam thrived while living with his foster mother. He felt "settled." He participated in sports, had friends, and improved academically. He also expressed clearly his desire to remain with his foster mother and stated that he did not want to live with the mother.
The mother also claims that the judge improperly concluded that she has a mental disorder which contributed to her unfitness. Because there was sufficient evidence for the judge's finding of unfitness, even assuming the mother has no mental disorder, we do not reach the question of whether the mother's alleged mental disorder was established by clear and convincing evidence.
Contrary to the mother's assertion, it was permissible for the judge to conclude that her reunification with Sam's brother did not necessarily render her fit to parent Sam. Adoption of Adam, 23 Mass. App. Ct. 922, 926 (1986) (finding mother unfit to parent one child but not another where latter child had particular needs, mother and child had "unrelentingly poor relationship," and mother had own emotional difficulties). The mother's relationship with Sam was one of such conflict and negativity that Sam eventually refused to visit with her. Thus, while the mother is apparently capable of maintaining a positive relationship with Sam's brother, she has demonstrated no such ability with respect to Sam. In fact, the mother belittled Sam, often making "negative, vindictive and hurtful comments" about him and consistently comparing him unfavorably to his twin brother.
Lastly, the judge properly considered Sam's wishes. See Adoption of Nancy, 443 Mass. 512, 518 (2005), quoting from Care & Protection of Georgette, 439 Mass. 28, 36 (2003) ("A judge should consider the wishes of the children in making custodial determinations, and those wishes 'are entitled to weight in custody proceedings'"). Sam, at the age of fifteen, unequivocally did not want to return home to the mother.
2. Ineffective assistance of counsel. The mother claims that trial counsel was ineffective for failing to object to certain of her out-of-court statements contained within various reports prepared by department social workers and the court investigator. She also asserts that counsel should have objected to testimony provided by Sam's foster mother concerning statements made by Sam and by the mother to Sam's football coach.
An ineffective assistance of counsel claim ordinarily should be raised in the first instance by means of a motion for a new trial. See Adoption of Mary, 414 Mass. 705, 713 (1993). Cf. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). As Care & Protection of Georgette, supra at 31-33, 38, indicates, by analogy, the appropriate procedural vehicle through which to advance a motion for a new trial based on ineffective assistance of counsel is a motion under Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). As in the criminal context, when a parent does not assert her ineffective assistance of counsel claim by way of a motion for a new trial, she is entitled to relief only if the record clearly shows the alleged deficiencies. Here, while two of the challenged statements were likely inadmissible, the mother has not met her burden of showing that "counsel's conduct has likely deprived [her] of an otherwise available, substantial ground of defence." Adoption of Holly, 432 Mass. 680, 690 (2000), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). To the contrary, our review of the record satisfies us that it contains sufficient independent support for the judge's finding of unfitness.
Judgment affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 20, 2015.