Adoption of Douglas , 473 Mass. 1024 ( 2016 )

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SJC-11918
ADOPTION OF DOUGLAS (and five companion cases1).
February 17, 2016.
Adoption, Standing, Visitation rights, Care and protection.
Parent and Child, Adoption, Care and protection of minor.
Minor, Visitation rights, Care and protection. Practice,
Civil, Care and protection proceeding, Assistance of
counsel. Supreme Judicial Court, Superintendence of
inferior courts.
These cases are appeals of consolidated care and protection
petitions concerning six children -- Douglas, Tom, Brian, Mark,
Cole, and Frank. The appeals are brought by the biological
mother of the six children; by the biological father of the two
oldest children (father I) -- Douglas and Tom; and by four of
the children -- Douglas, Tom, Brian, and Mark. They appeal from
the provisions of decrees of the Juvenile Court denying parental
visitation after termination of the parental rights of the
mother, father I, and the biological father of the four younger
children (father II) -- Brian, Mark, Cole, and Frank.2 The
Appeals Court, in a memorandum and order pursuant to its rule
1:28, dismissed the appeals of the mother and father I. It
concluded that neither had standing to challenge the orders
concerning visitation because their parental rights had been
terminated after the consolidated hearings, pursuant to G. L.
c. 119, § 26, and G. L. c. 210, § 3, were concluded, and they
1
Adoption of Tom; Adoption of Brian; Adoption of Mark;
Adoption of Cole; and Adoption of Frank. The children's names
are pseudonyms.
2
The biological father of the four younger children (Brian,
Mark, Cole, and Frank) is not a party to this appeal.
2
had not appealed from the entry of the termination decrees. See
Adoption of Douglas, 87 Mass. App. Ct. 1118 (2015). With
respect to the appeal of the four children, the Appeals Court
affirmed the decrees of the Juvenile Court. Id. We granted
further appellate review, and affirm the Juvenile Court judge's
decrees.
Background. The Department of Children and Families
(department) filed a care and protection petition on behalf of
Douglas, Tom, Brian, and Mark, alleging neglect due to substance
use and domestic abuse of all four children. The department
subsequently filed a care and protection petition on behalf of
Cole and Frank, and the two petitions were consolidated. On
March 3, 2010, the mother, father I, and father II each
stipulated to his or her current unfitness and that their
respective children were in need of care and protection.3
On June 3 or 4, 2013, each of the parents submitted a
written stipulation acknowledging his or her current unfitness,
agreeing to the issuance of a decree terminating his or her
respective parental rights; waiving the right to trial on the
merits of the care and protection petitions; and waiving the
right to appeal "as to unfitness and the termination of parental
rights." The stipulations of father I and the mother also
expressly reserved "the right to appeal any decision rendered as
to the proposed plans of adoption for each child." They did so
with the apparent understanding and agreement that entry of
decrees terminating their parental rights would be deferred
until "the conclusion of the[] hearings" concerning placement of
the children and parental and sibling visitation, that they
would retain the right to participate in those placement
hearings, and that they could appeal from any adverse result.
The Juvenile Court judge conducted colloquies and accepted the
stipulations,4 but neither found the parents unfit nor entered
decrees terminating their parental rights at that time.
3
The biological father of Douglas and Tom (father I), was
convicted of murder in the first degree in 2005, and is
presently serving a life sentence without the possibility
parole.
4
During the colloquy with father I, the judge stated, "The
only thing that you would have the right to appeal would be if
the plan is something different than what you propose."
3
The judge thereafter conducted a hearing in the
consolidated cases that extended over the course of seven days,
beginning on June 3, 2013, and concluding on June 20, 2013.
Thereafter, on October 1, 2013, the judge issued an order
adjudicating, pursuant to G. L. c. 119, § 26, and G. L. c. 210,
§ 3, the parents to be unfit; ordering the entry of decrees
terminating their respective parental rights; approving the
plans of adoption submitted by the department;5 declining to
order either posttermination or postadoption visitation between
the children and their respective biological parents; and
ordering sibling visitation. He issued 449 findings of fact and
twenty-nine conclusions of law on February 10, 2014. The
mother, father I, and the four oldest children (Douglas, Tom,
Brian, and Mark) appealed.
Standing. Until parental rights have been terminated by
entry of a decree, parents have the right to participate in
proceedings to determine issues such as placement and visitation
arrangements concerning their children.6 See Adoption of
Gillian, 63 Mass. App. Ct. 398, 408 (2005); Adoption of Dora, 52
Mass. App. Ct. 472, 474-476 (2001). In this case, the mother
and father I had a right to (and did in fact) participate in the
"best interests" hearings because, although they had stipulated
to unfitness and agreed to the entry of decrees terminating
their respective parental rights, no decree terminating those
rights had entered at that time. See Adoption of Malik, 84
Mass. App. Ct. 436, 441 n.10 (2013); Adoption of Gillian, supra
at 408 (parents "had the opportunity to raise and preserve [the
visitation] issue prior to termination of their parental rights,
but failed to do so"); Adoption of Dora, supra at 476-477. See
also G. L. c. 119, § 26 (b) (4); G. L. c. 210, § 3 (b) ("entry
of [a decree] shall have the effect of terminating the rights"
of parent).
5
The judge initially deferred approval of the plan
regarding placement with respect to one child. He subsequently
approved the plan.
6
Although detailed written findings are not required when a
parent has consented to the entry of a decree terminating his or
her parental rights, a judge nonetheless must determine that the
stipulation was knowing and voluntary, that the parent is
currently unfit, and that termination is in the child's best
interests. See Adoption of John, 53 Mass. App. Ct. 431, 437-438
(2001).
4
It is only after "a decree enters terminating parental
rights . . . [that] the parent whose rights have been terminated
is without standing to determine the child's future," Adoption
of Malik, 84 Mass. App. Ct. at 438, although he or she may press
an appeal challenging the adjudication of the termination
proceeding. Id. at 439. See Adoption of Rico, 453 Mass. 749,
757 n.16 (2009); Adoption of Helen, 429 Mass. 856, 858 (1999);
Adoption of John, 53 Mass. App. Ct. 431, 433 (2001). The
department's suggestion that the biological parents are
presently without standing to challenge on appeal the judge's
visitation orders, because their parental rights were terminated
after the hearings concluded, is without merit. See Adoption of
Rico, supra (where "visitation order . . . was part of the
adjudication of a termination proceeding to which the father was
a party," biological father has standing to challenge visitation
order on appeal). The judge resolved the fitness, termination,
placement, and visitation issues in the same decision, "as part
of the adjudication of a termination proceeding" to which the
biological parents were parties.7 Id.
7
In Adoption of Rico, 453 Mass. 749, 750 (2009), both
parental fitness and visitation were contested issues. After a
multiday hearing, the Juvenile Court judge terminated parental
rights, dispensed with parental consent to adoption, and
approved, but did not order, parental or sibling visitation.
Id. at 749-750. The father and child appealed. Id. at 750.
The Appeals Court upheld the decision to terminate parental
rights and the order concerning parental visitation, but
remanded for further consideration of sibling visitation. Id.
On further appellate review, the father chose not to press his
appeal from the termination order. Id. at 753. See Spooner
Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692,
693 n.3 (2012), quoting Mass. R. A. P. 16 (a) (4), as amended,
367 Mass. 921 (1975). With respect to standing, this court
rejected the suggestion by the Department of Children and
Families (department), similar to the argument it presses here,
that because the biological father did not appeal the
termination decree, he lacked standing to challenge the
visitation order. Adoption of Rico, supra at 757 n.16.
The biological father in this case and in Adoption of Rico
participated as of right in proceedings culminating in a
decision that both ordered the termination of their parental
rights and resolved visitation and other issues. In the
circumstances, father I has the same standing as the biological
father in Adoption of Rico, who chose not to pursue an appeal of
the termination of his parental rights in this court.
5
Where the factual basis for termination of parental rights
is not contested, deferring the entry of a termination decree
until the completion of a "best interests" hearing on issues
such as adoption and visitation under G. L. c. 210, § 3, see
Adoption of Dora, 52 Mass. App. Ct. at 476, permits the
proceedings to be expedited, while preserving a parent's right
to participate in the hearing, and maintaining the parent's
standing to challenge the resulting adoption, visitation, or
similar order on appeal. In such circumstances, "the
substantive point of focus in reviewing the validity of the
order" is the child's best interests.8 Adoption of Rico, 453
Mass. at 757 n.16. See Adoption of John, 53 Mass. App. Ct. at
435 n.7 ("A number of factors could influence a parent to make
this decision [to agree to the entry of a termination decree],
including the recognition of an inability to parent, coupled
with the realization that agreement might bring to a speedier
conclusion a process that is often protracted, thereby giving
the child a certain and stable future"). The mother and
father I have standing to press their appeal.
Ineffective assistance of counsel. For the first time on
appeal, the mother contends that she received ineffective
assistance of counsel at trial. In particular, she claims that
trial counsel failed to notify the judge prior to the colloquy
that the mother's stipulation to unfitness and agreement to the
entry of a decree terminating her parental rights purportedly
was conditioned on the placement of all six of her children with
relatives. As we have said, "'the preferred method of resolving
factual disputes concerning the conduct of the original trial'
is for the aggrieved party to file a motion for a new trial.
8
Although a parent's right to participate in a termination
proceeding and to challenge on appeal any adverse ruling that
may result may be limited or waived by stipulation, those rights
may not be expanded to confer standing where it is otherwise
lacking. See Adoption of Malik, 84 Mass. App. Ct. 436, 440
(2013) (reservation of rights in stipulation "does not confer
upon [the mother] the right to challenge the judge's
determination, after entry of the decree terminating her
parental rights"). The respective stipulations of the mother
and father I waived their appellate rights only "as to unfitness
and the termination of parental rights," and expressly reserved
the right to appeal from a "decision rendered as to the proposed
plans of adoption for each child."
6
Absent exceptional circumstances, we do not review claims of
ineffective assistance of counsel for the first time on appeal."
Care & Protection of Stephen, 401 Mass. 144, 150 (1987), quoting
Commonwealth v. Saferian, 366 Mass. 89, 90 n.1 (1974). There
being nothing in the record to suggest that this case presents
extraordinary circumstances, and the factual basis for such a
claim not being demonstrated adequately on the record before us,
we decline to do so here.9
Parental visitation. Once a biological parent has been
found unfit to care for a child, "[t]ermination denies [him or
her] physical custody, as well as the rights ever to visit,
communicate with, or regain custody of the child." Petition of
Catholic Charitable Bur. of the Archdiocese of Boston, Inc., to
Dispense with Consent to Adoption, 392 Mass. 738, 741 (1984),
quoting Santosky v. Kramer, 455 U.S. 745, 749, 753 (1982).
Where it is in the child's best interests, however, a judge has
broad discretion to grant posttermination or postadoption
visitation. See Adoption of Vito, 431 Mass. 550, 562 (2000)
(discretion "grounded in the over-all best interests of the
child, based on emotional bonding and other circumstances of the
actual personal relationship of the child and the biological
parent, not in the rights of the biological parent nor the legal
consequences of their natural relation"); Adoption of Warren, 44
Mass. App. Ct. 620, 626 n.5 (1998) ("The decision as to whether
to allow postadoption [or posttermination] visitation is more a
question of what is in the interests of the child, rather than
one of the rights of the parent"). With respect to
posttermination visitation in particular, "[t]he purpose of such
contact is not to strengthen the bonds between the child and his
biological mother or father, but to assist the child as he
negotiates, often at a very young age, the tortuous path from
one family to another." Adoption of Vito, supra at 564-565.
See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013). See
also Adoption of Rico, 453 Mass. at 754-755. The judge did not
9
The appellate record is inadequate to support the mother's
claims. See Adoption of Mary, 414 Mass. 705, 713 (1993);
Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
There is, for example, no suggestion in the transcript of the
colloquy that the mother's stipulation was conditional, and the
stipulation expressly provides that no promises were made to
induce it. Although there was evidence that the mother's
preference was for familial placements, it falls short of the
type of evidentiary facts that might establish that her
stipulation was conditioned on fulfilment of such a provision.
7
abuse his discretion in declining to order parental visitation
in this case.
The department's plans for the children proposed that "the
four oldest [children] should have visits with their mother";
that father I would have continued visitation with the two
oldest children; and that visitation between the two middle
children and father II should be considered with caution.10 The
judge's extensive factual findings make clear that he thoroughly
considered evidence of the children's bonds with their
respective parents. With respect to the mother, he acknowledged
that the oldest child, Douglas, had a bond with the mother, but
concluded that a visitation order was not in Douglas's best
interests. Among other things, the judge found that the mother
continually failed to maintain appropriate boundaries with
Douglas. The judge also found that there was no significant
bond between the mother and her other five children. There is
sufficient evidence to support the judge's determination that
orders for visitation with the mother were not in the children's
best interests.
With respect to visitation with father I, the judge found
that there was no evidence of a significant relationship or bond
between him and the two oldest children. Before June 28, 2010,
Tom (who turned seven years old in July, 2010) had never met
father I, and Douglas (who was at that time nine years and five
months old) had last seen father I when he was a baby. Douglas
visited father I approximately six times before trial, and his
last visit was in July, 2012, almost one year before trial. Tom
visited with father I five times from birth until trial.
Although there was some evidence that visits between father I
and the two children went well, in the absence of evidence of a
significant existing bond, we cannot say that the judge abused
his discretion in concluding that an order requiring visitation
was not in the children's best interest.11 See Adoption of Vito,
10
The department did not propose that the two youngest
children have visitation with the mother. The two youngest
children support the judge's orders with respect to parental
visitation.
The department also proposed continuing sibling visitation.
The judge's orders concerning sibling visitation are not at
issue on appeal.
11
A judicial order requiring posttermination visitation is
"a reflection of the judge's determination that, at that time,
8
431 Mass. at 563. In the circumstances, the judge properly
declined to order visitation with father I.
The two middle children, Brian and Mark, likewise sought an
order requiring posttermination and postadoption visitation with
father II. The judge found, however, that the two children were
experiencing stability for the first time, and that their
behavior issues had improved. He also found that there had been
no contact with father II for the two years prior to trial, and
that there was no evidence of a significant bond with the
children. He concluded that visitation "based on emotional
bonding and other circumstances of the actual personal
relationship of the child and the biological parent," Adoption
of Vito, 431 Mass. at 562, was not in the best interests of the
children. See Adoption of Edgar, 67 Mass. App. Ct. 368, 371
(2006). The record provides support for this determination; the
judge did not abuse his discretion.12
the child's interests would best be served by such an order."
Adoption of Rico, 453 Mass. at 756. It "is in a sense a
provisional order. The judge presiding over the termination
case has no crystal ball, and cannot know whether the child's
best interests will later change because of changed
circumstances; current context is critical." Id. at 758. Until
adoption occurs, the department may still arrange for visitation
if it deems visits to be in a child's best interests, and a
child may periodically petition the court for review of the
department's visitation decisions if the child believes that its
decisions have not been in his or her best interests. See G. L.
c. 119, §§ 26, 29B.
12
The children contend that the judge held them to an
impermissibly high standard of proof, requiring them to prove by
"clear and convincing evidence" that visitation is in their best
interests. Regardless of how the judge's order was phrased,
however, the underlying subsidiary factual findings amply
support the judge's determination that (except between Douglas
and the mother) there was no "significant, existing bond" with
the biological parent. Adoption of Vito, 431 Mass. at 563.
Absent evidence of such a bond, a judge properly may conclude
that continued contact -- after termination of the legal right
of an unfit parent -- is not currently in the child's best
interest, and that an order requiring visitation is not
warranted. See Adoption of Ilona, 459 Mass. 53, 63-64 (2011);
Adoption of Vito, supra. With respect to Douglas, although the
judge acknowledged a bond with the mother, the subsidiary
factual findings support the conclusion that a visitation order
9
Conclusion. Prior to the entry of a decree terminating
parental rights, a parent has standing to participate in
proceedings to determine issues such as placement and visitation
of a child. Where orders involving termination, placement, and
visitation are issued as part of the same adjudication of a
termination proceeding, a parent has standing to press on appeal
any challenge that he or she has not expressly waived to that
adjudication. There being no error in the judge's decrees in
this case, we affirm the orders denying posttermination or
postadoption parental visitation.
So ordered.
Craig T. Spratt for Douglas & others.
Warren M. Yanoff for father I.
Diana Cowhey McDermott for the mother.
Robert J. McCarthy, Jr., for Cole & another.
Lynne M. Murphy for Department of Children and Families.
Jaime L. Prince & Andrew L. Cohen, Committee for Public
Counsel Services, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
was not in Douglas's best interests based on the mother's
"demonstrated . . . inability to comprehend and establish
appropriate boundaries," including exposing him to repeated
instances of sexual activity and domestic violence.