Opinion
No. 11–P–1095.
2013-02-22
ADOPTION OF OCTAVIA (and a companion case ).
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Both the mother and father appeal from the termination of their parental rights with respect to their two children, Octavia and Matthew. See G.L. c. 210, § 3. We affirm the decrees entered by a judge of the Juvenile Court and the order denying the mother's motion for new trial. We consider the arguments of each parent in turn.
The mother's claims. Ineffective assistance of counsel. The mother alleges numerous failures by her counsel to provide effective representation. She asserts that a long list of evidence, including some 400 pages of exhibits, should have been entered in evidence. These include records of participation in treatment programs and laboratory testing results. She also asserts a failure of communication between client and counsel, failure of counsel to withdraw from representation which was required by the alleged communication failure, a related failure to prepare the mother to testify at trial, and counsel's own lack of preparedness for the trial. Additionally, the mother faults trial counsel for the failure to call certain witnesses, asserts she was prejudiced by counsel's failure to prevent scheduling of evidentiary hearings when she was unable to attend, and points to counsel's failure to file proposed findings of fact. Our cases recognize the right to effective representation in a parental rights termination case equal to that enjoyed by a criminal defendant. Care & Protection of Stephen, 401 Mass. 144, 148–150 (1987). The mother filed a motion for new trial which was denied by the motion judge, who was also the trial judge. The decision was within the sound discretion of the judge, who observed counsel and determined that there was not ineffective assistance. See Adoption of Rory, 80 Mass.App.Ct. 454, 457 (2011). On this record we do not perceive an abuse of discretion.
Moreover, the extensive evidence of the mother's unfitness was clear and convincing. The record reveals significant substance abuse including at the time the mother was pregnant with these children both of whom were born addicted to controlled substances, her inability to conform to treatment plans, her intermittent homelessness, and her inability to parent her other children. The children themselves required early intervention to address speech and language delays, and delays in both gross and fine motor development. We conclude on this record that more effective assistance would not have altered the outcome of these proceedings.
Due process. The mother asserts that the trial suffered from structural error which denied her due process rights because she “was not permitted to be present for a substantial part of the trial.” The record is to the contrary. The Mother had notice of the trial. She was present for the first three days. She then elected to enter a drug treatment program to avoid incarceration. She directed her counsel not to move for a continuance.
Under these circumstances, the mother waived her right to be present, and the judge did not err in electing to continue with the trial. See Robinson v. Commonwealth, 445 Mass. 280, 281, 287 (2005). “[I]n these circumstances, the judge may elect to continue with the trial in the defendant's absence.” Id. at 287, citing Diaz v. United States, 223 U.S. 442 (1912), and Commonwealth v.. Flemmi, 360 Mass. 693 (1971).
Defense counsel so testified at the hearing on the mother's motion for a new trial. The motion judge, who was also the trial judge, did not credit the mother's testimony to the contrary.
Sufficiency of the evidence. The mother's final argument need not detain us. The extensive record of unfitness properly admitted in evidence is summarized supra. Argument on this issue is largely directed at a disagreement over the weight accorded to the evidence. Other alleged errors are either not error
For example, admission of G.L. c. 119, § 51A, reports “to set the stage” was not error. This permissible use for contextual purposes is not transformed into error by inclusion in numbered findings.
For example, the judge referred to one of the mother's older children (not subject to this proceeding) by the wrong name.
The mother's assertion that the evidence also showed a bond between her and her children was acknowledged by the judge, and formed the basis of her order for continuing contact and visitation.
The father's claims. Sufficiency of the evidence. The father asserts that the judge committed clear error because the evidence does not support a finding of unfitness. The father has a lengthy criminal record and has spent most of his adult life in prison.
The father has a substantial, lengthy criminal history dating back to June, 1988, and continuing to the present time. He has been convicted of many crimes, including numerous assaults and batteries, numerous assaults and batteries by means of dangerous weapons, operating under the influence, possession of a firearm, possession of a class B controlled substance, uttering, forgery, and receiving stolen property. He has served many short sentences for these convictions. The father was also convicted of a Federal conspiracy charge in 1993; he was sentenced to thirty-three months committed with three years on and after supervised probation. Thereafter he violated his probation and was recommitted for two years. In 1997, the father was indicted for malicious destruction of property, assault by means of a dangerous weapon, and armed assault. In 2002 the father was convicted of perjury and obstructing justice in Federal court. He was sentenced to thirty months committed. He is currently incarcerated. The father had additional criminal charges pending at the time of trial, including numerous motor vehicle violations, assault by means of a dangerous weapon, possession of a class A substance with the intent to distribute, possession of a class B substance with the intent to distribute, conspiracy to violate drug laws, and a school zone violation. The father also had a violation of probation hearing pending at the time of trial. On the first day of trial the father was placed into custody as he had an outstanding warrant and his probation officer wanted him held pending his violation hearing. He was incarcerated during the pendency of the trial. The father admitted to continued abuse of controlled substances, failed to provide drug screens on numerous occasions, and was terminated from all but one substance abuse program in which he participated.
At the time of trial the father was thirty-nine years old and had spent seventeen years incarcerated.
In sum, there was ample evidence to support the finding of unfitness. Like the mother's argument concerning the evidence, the father's argument is unavailing; both do no more than assert that the judge should have assigned different weight to the evidentiary factors.
Best interests. The father advances an argument closely related to his claim of insufficient evidence, namely that the close bond he has established with the children requires a finding that termination is not in their best interests. The judge acknowledged the father's affectionate, commendable, and considerate behavior towards his children. As with the mother, these findings led to an order for continuing contact and visitation.
In the context of the best interests of the children, we note as well that both children have made what the judge found to be “significant emotional and developmental progress” and “significant gains” since being placed in the preadoptive home. The judge noted as well that the preadoptive family would be willing and able to care for both children so that these siblings would not be separated. The children have bonded closely with their preadoptive parents and refer to them as “mommy” and “daddy.” The judge did not err in finding termination to be in the best interest of the children.
Decrees affirmed.
Order denying mother's motion for new trial affirmed.