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In re Vita

Appeals Court of Massachusetts.
Jun 18, 2012
82 Mass. App. Ct. 1101 (Mass. App. Ct. 2012)

Opinion

2012-06-18

ADOPTION OF VITA. (and three companion cases).


By the Court (GRAHAM, KATZMANN, & CARHART JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother appeals from a Juvenile Court judge's decrees terminating her parental rights with respect to the children, and an order of the same judge denying her motion for relief from judgment.

The mother argues that (1) she received ineffective assistance of counsel, (2) she was denied due process of law when the judge terminated her rights as to Lisa, and (3) the evidence supporting the order terminating her rights as to Lisa was insufficient. We affirm.

The fathers of the children are not involved in this appeal.

Discussion. The mother first argues that she received ineffective assistance of counsel. In assessing this claim, “we look to determine whether the ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer’ and, if so, we further inquire ‘whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defense.’ “ Care & Protection of Stephen, 401 Mass. 144, 149 (1987), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The mother must not only show that trial counsel's performance was defective, but that she was prejudiced thereby. Care & Protection of Georgette, 439 Mass 28, 33 (2003). There is no prejudice where evidence of parental unfitness is overwhelming. Id. at 34. We note that appellate counsel listed a number of things that trial counsel should have done in litigating this case. While we agree that trial counsel could have done more in representing the mother's interests, we need not address trial counsel's performance further because we agree with the judge that evidence of the mother's unfitness was overwhelming. The record amply supports the judge's finding that “[a]t various times, Mother exposed one or more of her children to medical neglect, domestic violence, unsanitary living conditions, and improper supervision.” While the mother testified that she did none of those things, the judge did not, and was not required to, credit her testimony. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). The evidence showed that the mother moves frequently, indicating “her inability to provide a stable, healthful home environment for her children”; “has been erratic and unreliable in her visits to the children”; “has not provided a clean, healthy home for the children”; “has not maintained any sort of financial stability”; and “lacks insight into the children's emotional [and medical] needs.” Id. at 713 & n. 11. Because “the judge may consider a past pattern of parental conduct for its prognostic value in determining current parental unfitness,” Care & Protection of Stephen, supra at 152, none of the evidence the mother faults trial counsel for failing to introduce would likely have influenced the judge's assessment of the mother's credibility and her future ability to care for her children. In light of the deference we accord a judge in weighing the evidence and assessing credibility, see Custody of Eleanor, 414 Mass. 795, 799 (1993), the mother cannot show that “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Accordingly, her ineffective assistance of counsel claim must fail.

The mother also contends that she was deprived of due process of law because the judge terminated her rights with respect to Lisa without notice. She further argues that the evidence supporting the order was insufficient. “[B]efore the State can sever the parent-child relationship, due process requires notice and an opportunity to be heard at a meaningful time in a meaningful manner.” Care & Protection of Orazio, 68 Mass.App.Ct. 213, 220 (2007). Notice must be “reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections.” Adoption of Hugh, 35 Mass.App.Ct. 346, 350 (1993), quoting from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). However, “where a party does not receive timely notice, but does participate in the hearing or receive a future meaningful opportunity to litigate, there is no due process violation.” Care & Protection of Orazio, supra.

There was no due process violation in this case. The record demonstrates that the mother had sufficient notice that her rights with respect to Lisa might be terminated: both the Department of Children and Families (department) and Lisa's father asked the judge to consider terminating the mother's rights in order to provide Lisa with permanency and stability. While it is true that the department stated that it was not seeking termination with respect to Lisa because it did not have custody, it did ask the judge to consider termination as part of its case-in-chief. The mother fully participated in the trial and offered evidence regarding all her children, including Lisa, and once the judge undertook a hearing on the merits to determine whether Lisa was in need of care and protection, the judge was empowered to “make any other appropriate order ... about the care and custody of the child as may be in the child's best interest,” including an order dispensing with the need for the mother's consent to adoption or guardianship. G.L. c. 119, § 26( b )(4), as amended by St.2008, c. 176, § 84. As previously noted, there was overwhelming evidence of the mother's unfitness, and there was no error in the judge's finding that termination of the mother's parental rights was in Lisa's best interests. The judge was therefore entitled to enter a decree terminating the mother's parental rights with respect to Lisa. See G .L. c. 119, § 26( b ) (upon finding that a child under the age of twelve is in need of care and protection, “the court shall enter an order dispensing with the need for consent to adoption upon finding that the best interests of the child ... will be served thereby”) (emphasis added).

Decrees affirmed.

Order denying motion for relief from judgment affirmed.


Summaries of

In re Vita

Appeals Court of Massachusetts.
Jun 18, 2012
82 Mass. App. Ct. 1101 (Mass. App. Ct. 2012)
Case details for

In re Vita

Case Details

Full title:ADOPTION OF VITA. (and three companion cases).

Court:Appeals Court of Massachusetts.

Date published: Jun 18, 2012

Citations

82 Mass. App. Ct. 1101 (Mass. App. Ct. 2012)
969 N.E.2d 185