Opinion
11-P-2028
05-09-2012
CARE AND PROTECTION OF YEVGENY (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Juvenile Court judge found the father unfit, adjudicated his two sons in need of care and protection, and awarded permanent custody to the Department of Children and Families (department). The father appeals from the judge's denial of his motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). He also appears to claim on the merits that the judge's decision to accept his stipulation to permanent custody with the department and waiver of trial was erroneous because they were involuntary. We affirm.
The department transferred custody to the mother.
'We look to rule 60(b) by analogy and as a cogent standard because the Massachusetts Rules of Civil Procedure do not apply [to care and protection proceedings.]' Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011), and cases cited.
Discussion. A. Rule 60(b)(6) motion. The father claims the judge abused her discretion when she denied his rule 60(b)(6) motion for relief from judgment. There are three factors to consider when addressing such a motion: 'whether the circumstances were so extraordinary as to warrant relief; whether the parents presented a 'meritorious' contention; and whether the ' substantial rights' of other parties would be adversely affected by granting the motion.' Adoption of Gillian, 63 Mass. App. Ct. 398, 411-412 (2005) (citation omitted). On appeal, a ruling on a rule 60(b)(6) motion will not be reversed ''except upon a showing of a clear abuse of discretion.' The standard is one of marked deference.' Adoption of Marc, 49 Mass. App. Ct. 798, 801 (2000) (citation omitted). 1. Extraordinary circumstances. The trial judge explained to the father that the trial need not continue if he agreed to waive his rights to trial and agreed to the children's permanent custody with the department. In addition, the judge would not terminate the father's rights but would leave that matter for the Probate and Family Court. The father claims that his waiver and stipulation were not knowing and voluntary and, thus, constitute extraordinary circumstances warranting relief from judgment. We disagree.
The relevant section of Mass.R.Civ.P. 60(b), reads: 'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . .(6) any other reason justifying relief from the operation of the judgment.'
The father's appeal is limited, as his brief does not directly challenge the sufficiency of the evidence, only whether the father knowingly, voluntarily, and intelligently waived his rights at trial.
The father also claims that the Juvenile Court judge was biased and that such bias constitutes extraordinary circumstances. There is no evidence in the record to support this claim.
We turn first to the dialogue between the judge and the father preceding the colloquy. The judge cautioned the father that his stipulation must be '[made] freely, voluntarily, intelligently, of [his] own accord.' She explained the terms of the stipulation at least twelve times when the father was present. She also reminded the father of his right to continue with the trial and defend his position and of his opportunity to seek custody of his children. The judge told the father, 'I'm not going to take your stipulation without a full understanding -- make sure you fully understand . . . .' 'This cannot be a forced situation.' 'I would have to be assured . . . from you under oath.'
A stipulation or waiver may be shown to be knowing and voluntary through 'an appropriate inquiry to establish that the parent's consent was knowing and voluntary.' Adoption of John, 53 Mass. App. Ct. 431, 435-436 (2001) (finding an inquiry into whether the mother had consumed alcohol or drugs, had consulted with her attorney, and was aware of the rights she was giving up, specifically the right to trial, sufficiently established a knowing and voluntary stipulation). The judge in this case conducted an almost identical inquiry. Further, the father repeatedly indicated that he was entering into this agreement voluntarily and of his own free will. As the inquiry here was nearly identical to that in Adoption of John, supra, we conclude that the father's stipulation and waiver were given knowingly and voluntarily.
Despite the appearance of a valid waiver and stipulation, the father argues that the following were evidence that his waiver was not knowing and voluntary: (a) he was not aware that he was stipulating to his unfitness, (b) he was forced to stipulate, and (c) he was confused and depressed. We consider each in turn.
a. Stipulation of unfitness. The father claims that as he was unaware that he was stipulating to unfitness, his stipulation was not knowing. The father, however, was not stipulating to unfitness, but waiving his right to trial on the issue by stipulating to a permanent custody order. Rejecting the proposal by the father's counsel that the judge issue a stipulation of permanent custody with the department without a finding of fitness or unfitness, the trial judge informed counsel that based on the evidence already presented, she had 'enough to give a permanent custody order and to make a finding of unfitness against him.'
The father seems to have made a somewhat different claim in his affidavit in 'Support of Motion for Relief from Judgment/Order,' when he stated that he 'submitted a stipulation of unfitness . . . under duress' and that he wished to withdraw his 'stipulation of unfitness.'
Unfitness of the mother and father was a central question in numerous hearings extending over several months. The father's claim that he was unaware that a determination of unfitness would be made is not plausible. Furthermore, the record belies this claim. For example, the father asked the judge, 'So according to what you're saying is that if we were to go to Probate Court after that, I could never go for custody of my children?' The judge responded:
'No, sir. You could seek custody of your children, but . . . the mother would have a permanent order from this court. There would be no finding of unfitness against her. I would make a finding based on the evidence that's already been presented with regard to you, and then you could seek custody, you could seek visitation, you could seek all those things. But you need to know she would have a permanent custody order from this court.' (Emphasis supplied.)
We also note that during his discussion with the judge, the father stated, 'I've already been told that you've already made a decision.' This indicates that the father's attorney informed him of the judge's prior statement at sidebar that 'if father is willing to stipulate today . . . I will make a finding of unfitness.' This inference is supported by the father's attorney's statement that they 'had lengthy discussions about that particular condition.' As such, we conclude that the father understood that he would be found unfit, and that he waived his right to trial knowingly and voluntarily.
Citing to Care & Protection of Erin, 443 Mass. 567 (2002), the father further claims that the judge was required to make factual findings on the record in support of her conclusion that he is unfit. That case, however, did not mandate such a finding, but held that 'the factual basis for the initial determination of unfitness ideally should appear somewhere on the record.' Id. at 572-573. Similarly, in Adoption of John, 53 Mass. App. Ct. at 437, the court stated that 'a specific finding of unfitness' is not required. That being said, an explicit finding of unfitness during the colloquy would have been advisable (and an appellate issue would have been removed).
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b. Forced stipulation. The father also claims he had no choice but to stipulate and waive his rights due to his attorney's unpreparedness. There is no support in the record for this contention. Indeed, the father's counsel denied this claim, and told the judge that he was prepared. The judge did not abuse her discretion by finding that the father's forced stipulation claim had no merit.
c. Depression and confusion. The father further argues that his emotional state at the time of his stipulation and waiver prevented him from voluntarily stipulating and waiving. Emotion and stress caused by the situation, however, are not sufficient to render a stipulation void. Surrender of Minor Children, 344 Mass. 230, 236 (1962). As the father's 'concerns [were] mostly just as a distraught father' and he was 'just scared,' we find that the father's emotional state was a result of the situation and was not sufficient to invalidate his waiver and stipulation.
2. Meritorious contention. Furthermore, in order '[t]o prevail in seeking to reopen a judgment' pursuant to rule 60(b)(6), one must present a meritorious contention by showing 'a chance of success on the merits.' Adoption of Hugh, 35 Mass. App. Ct. 346, 351 (1993). Here, the father has not presented a meritorious contention warranting relief from judgment. Ibid.
3. Effect on substantial rights of others. The father also argues that granting the motion would not adversely affect the ''substantial rights' of other parties.' Adoption of Gillian, 63 Mass. App. Ct. at 411-412, quoting from Parcell v. Keenan, 389 Mass. 809, 815 (1983). We disagree. Given that more than four years have elapsed since this proceeding first began, resuming trial would likely significantly delay the Probate Court's proceedings and unnecessarily disrupt the lives of the children and the mother. As such, we conclude that 'the substantial rights of the parties . . . will be affected by granting the motion.' Owens v. Mukendi, 448 Mass. 66, 72 (2006), quoting from Parcell v. Keenan, supra.
B. Finding of unfitness. We have considered the father's claim on the merits that the judge erred in finding him unfit.
For the reasons noted above, we discern no error, nor has the father shown that the finding should be disturbed.
Judgments affirmed.
Order denying motion for relief from judgments affirmed.
By the Court (Katzmann, Rubin & Fecteau, JJ.),