Recent Appellate Cases
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Adoption of Jacqui, 11-P-226, (Cypher, J.) Adoption of Rory (and a companion case), 10-P-2246, September 23, 2011 (Smith, J) Adoption of Daisy, SJC-10889, June 20, 2011 (Gants, J.) Adoption of Ilona, SJC-10741, March 4, 2011 Adoption of Thea, No. 10-P-1671, February 25, 2011 (Kafker, J.) Adoption of Daisy, No. 09-P-1837, September 23, 2010, Cohen, J. Adoption of Mariano, 09-P-1392, September 14, 2010 (Sikora, J.) Adoption of Parker (and a companion case), 09-P-2106, September 9, 2010 (Smith, J) Adoption of Azziza, 10-P-441, August 12, 2010 (Kantrowitz, J)
Adoption of Jacqui, 11-P-226, Cypher, J. The Appeals Court held that Jacqui’s father was denied his right to due process when he did not receive proper notice of the trial to terminate his parent rights, and was not able to participate because he was incarcerated. The Court held that he was denied a meaningful opportunity to rebut the evidence against him, despite having a lawyer who was present and participated at the trial. The Court reversed the denial of the father’s motion for a new trial, vacated the trial court’s decree dispensing with his parental rights, and remanded the matter. Facts At the termination trial, everyone suspected that the father was not present because he was incarcerated. No one, not the father’s lawyer, child’s lawyer, or DCF made an effort to find out if the father was incarcerated, or to bring him into court if he was incarcerated. The trial continued without stopping to discover if or where the father was incarcerated. Father’s counsel did not object to the trial continuing in his absence, nor did she request a continuance to find him and secure his presence at trial. The father filed a posttrial motion for visits and was brought into court by a habeas petition for the hearing on the motion. Counsel confirmed that the father had been incarcerated at the time of trial. The father said he did not know there was a trial. The judge asked counsel if she had sent the father notice of the trial, and she said she’d sent him a letter to his last known address. The father then filed a motion for a new trial with an affidavit stating he was incarcerated at the time of trial. The father was not brought in for the hearing on the motion for new trial, and his counsel said she may have forgotten to request a writ of habeas corpus for him. The judge again asked counsel if she had given him notice of the trial and she said she had sent correspondence to his last known address. The judge asked if the father had counsel’s address, and she said “as far as I know.” The judge denied the father’s motion for a new trial Discussion The Appeals Court called father’s counsel’s representation “cursory,” and noted that she did not “insist on discovering if her client was incarcerated.” The Court stated that proceeding to trial was improper where there was uncertainty about the father’s incarceration, and his attorney had been out of contact with him. It stated that the judge had a responsibility to “devise a mechanism for meaningful participation” by the father. (citations omitted). The Court was troubled that the trial judge weighed the father’s absence heavily and drew a negative inference from his failure to appear at trial. The Court noted that the findings indicated that the father was minimally engaged with DCF, without specifying which particular parental duties he failed, and that the findings “appeared to be based on evidence offered by DCF.” The Court found this problematic, even though there were findings that the father had not had contact with DCF for approximately 7 months, had failed to complete service plan tasks, and visited Jacqui twice. The Appeals Court reiterated the father’s fundamental liberty interest in maintaining custody of Jacqui, and that state action terminating his parental rights must comport with due process, including notice and an opportunity to be heard in a meaningful manner. Care and Protection of Erin, 443 Mass. 567, 570 (2005); Adoption of Zev, 73 Mass. App. Ct. 905, 905 (2009). The Court rejected DCF’s argument that the father had a duty to inform his lawyer that he was incarcerated, and that an incarcerated parent must make his desire to participate in a termination hearing abundantly clear. (Citation omitted). The Court stated that “Lacking notice, the father patently could not have made it clear that he wished to participate in the hearing.” Notably, the Court did not refer to the summons that all parents are required to be served at the beginning of care and protection proceedings, which includes the information that they may lose their parental rights as part of the proceedings, nor did the Court state that the summons provided adequate notice to the father. PRACTICE TIP: If you think that your client is incarcerated, you should call the inmate locator phone line at 1-877-421-8463, which will locate state prison inmates. If you find out that the client is not in state prison, you should look at his or her CORI to find out in which county (or counties) he or she has charges pending, and then call that county jail. If you call and your client is not at a particular jail or state prison, you should ask where the client is being held and they may look it up for you on their internal system. Adoption of Rory (and a companion case), No. 10-P-2246, Smith, J, September 23, 2011 Facts: At a hearing on the father’s motion for new trial, there was evidence that the father had regularly communicated with his lawyer about both trials and both children. The father had given specific instructions as to Rory in a brief text message to his lawyer the day before the first trial. The father did not appear in court for the trial because he had open warrants for his arrest and did not want to appear and be arrested. Discussion: PRACTICE TIP: When you are asked to reveal confidential client information or communication, look to Mass. Rule of Prof. Conduct, 1.6(a): A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation. . . Adoption of Daisy, SJC-10889, June 20, 2011 (Gants, J.) M.G.L. c. 233, § 82, provides that a child’s out-of-court statements concerning sexual abuse shall be admissible as substantive evidence if certain requirements are met. The statute states that it applies to hearsay statements “of a child under the age of ten,” and does not specify when the child must be under the age of ten. In Daisy, the SJC held that it is the child’s age at the time the hearsay statements were made that controls, not the age of the child when called to testify. At trial, the judge allowed into evidence Daisy’s hearsay statements concerning sexual abuse. Daisy was nine years old when she made the statements, and eleven years old at the time of trial. The Appeals Court affirmed.* The SJC granted the mother’s application for further appellate review, affirmed, and limited its review to a single issue of statutory interpretation: Whether M.G.L. c. 233, § 82 applies where the child was under the age of ten when she made hearsay statements concerning sexual abuse, regardless of the child’s age at the time of trial. The SJC stated that Daisy’s statements to a school social worker that her father had been repeatedly sexually abusing her were properly admissible because § 82 refers to her age at the time she made the statements, and not her age when these statements were offered as evidence at trial. M.G.L. c. 233, § 82, sets forth a specific process through which the trial judge may determine whether the out-of-court statements of a child under the age of ten concerning sexual abuse should be admitted into evidence. The statute provides that such hearsay statements: shall be admissible as substantive evidence in a civil proceeding (except those brought under G.L. c. 119, § 23 or § 24), where the statement is offered as evidence of material fact and is more probative on the point than any other evidence the proponent can procure through reasonable efforts; the person who heard the statements testifies; the child is unavailable as a witness as defined in § 82 (b); and the statement is reliable, as defined in § 82 (c).
*(See Adoption of Daisy, 77 Mass. App. Ct. 768 (2010); case note summary at http://www.publiccounsel.net/Practice_Areas/cafl_pages/recent_sjc_cases.html#Daisy). Adoption of Ilona, SJC-10741, March 4, 2011 (Gants, J) The SJC affirmed the trial court’s decision to terminate the mother’s rights against challenges that DCF failed to provide the mother with adequate services. The SJC also upheld the trial judge’s decision to leave postadoption contact to the discretion of the adoptive parents, despite the judge’s finding that such contact was in Ilona’s best interests. In doing so, the SJC reversed the Appeals Court’s decision on this issue, Adoption of Ilona, 76 Mass. App. Ct. 481 (2010), and clarified its holding in Adoption of Rico, 453 Mass. 749 (2009). Reasonable Efforts and Parental Unfitness In Ilona, the SJC affirmed the judge’s ruling that DCF had made reasonable efforts, although it noted (as had the Appeals Court) that there was “evidence of shortcomings” in the agency’s provision of services. The social worker did not speak Spanish, the mother’s primary language, and DCF’s use of interpreters was inconsistent. In addition, the mother had some cognitive deficits and the services provided by DCF were not adapted to meet her particular needs. Nevertheless, DCF had provided the mother with parenting classes and an anger management program, and the mother received weekly treatment from a therapist and met monthly with a psychiatrist. DCF recommended that the mother participate in a DMH day program, but she declined. The SJC also noted that the DCF social worker provided guidance to the mother during visits with Ilona to improve their interactions. The SJC concluded that “the judge’s finding of reasonable efforts was not clearly erroneous.” The SJC also rejected the mother’s argument that her unfitness was only temporary. The SJC noted the long pattern of physical abuse, the impact of the mother’s cognitive limitations on Ilona, and the mother’s lack of improvement in her parenting despite more than two years of weekly therapy. The SJC also noted the “extraordinary” progress Ilona had made since being placed with her preadoptive family. Postadoption Contact The SJC held that in this case, the judge did not abuse his discretion in leaving visitation to the discretion of the adoptive parents where the judge had found that the preadoptive mother was “warm and nurturing,” that she was supportive of continuing contact between Ilona and her mother, and that she would continue to allow the contact unless it became harmful to Ilona. An order was not “necessary” because the child’s interest in visitation was protected by the preadoptive mother’s commitment to continuing the visitation. Practice Note: Adoption of Ilona did not address the issue of posttermination visitation, i.e., visitation between the time parental rights are terminated and the child is adopted, which absent a court order is at the discretion of the department. Since the rights of adoptive parents are not at issue in posttermination contact orders, the balancing required in Ilona does not apply. Presumably, whenever the judge finds posttermination visitation to be in the child’s best interests, the court should enter such an order. Similarly, Ilona specifically applies in cases where a preadoptive family has been identified. If no family has yet been identified for the child, there can be no assurances that the adoptive family will be supportive of continued contact absent a court order. Adoption of Thea, No. 10-P-1671, February 25, 2010 (Kafker, J.) In Adoption of Thea, the Appeals Court reversed and remanded a judgment terminating parental rights because there was insufficient evidence in the record to determine whether termination was in Thea’s best interests. In addition, the Appeals Court directed the trial judge on remand to consider the issue of posttermination contact. Facts Parental Unfitness Best Interests Posttermination Visitation Telephonic Testimony Transition Plans for Aging Out Youth
Facts Failure to Preserve Issue in the Trial Court Due Process and Fundamental Fairness Practice Note: This case is another reminder of the importance of presenting witness testimony where possible, and on making sure that DCF’s case and DCF’s witnesses are put to the test where appropriate. Reliance on Evidence Introduced at the Temporary Custody Hearing Adoption of Azziza, 10-P-441, August 12, 2010 (Kantrowitz, J) Effective Marshaling of Evidence Asserting Ineffective Assistance on the Trial Date Assistance to Client’s Appellate Counsel
Adoption of Mariano, 09-P-1392, September 14, 2010 (Sikora, J.) In this private adoption case, the Appeals Court affirmed the Probate and Family Court judge’s denial of the father’s adoption surrender and the mother’s adoption petition. The parents’ intent was for Mariano’s father to give up his parental rights and his mother to be his sole legal parent. Where there was no evidence of abuse or neglect by Mariano’s father, the Court upheld the trial judge’s decision that it was not in Mariano’s best interests to irrevocably end his connection to his father. The Appeals Court reached this decision based on Mariano’s interest in 1) financial benefits, and 2) the “benefit of a parental identity” from his father. Interest in Parental Consortium The Court stated that a category of the child’s best interests is his “unique filial ties” to a parent. (citation omitted). These ties include “a unique physical, genetic and ethnic connection with his birth father,” and a “unique connection” that he is “entitled to share” with him. (citation omitted). The Court stated that Massachusetts law recognizes a child’s interests in parental consortium as “filial needs for closeness, guidance, and nurture.” (citation omitted). Parental consortium “consists at least of a ‘parent’s society and companionship.’” (citation omitted). The Court stated that Mariano had an “important interest” in retaining the possibility of a relationship with his father in the future. The Court contrasted this with cases where there was either evidence of abuse and neglect by a parent, (citation omitted), or where a third person, for example a stepparent, “joins a biological parent in a petition to adopt . . .and imports a new set of benefits offsetting the loss of the other biological parent’s relationship.” The Court stated that these permanent changes to a child’s relationship with a parent must be made by a judge in the child’s best interests. Economic Interest Although the trial judge did not discuss Mariano’s economic interests specifically, the Court stated that his economic welfare was “a factor visible to all parties” in the proceeding, and that the evidence included data about the parents’ economic status. The Court stated that allowance of the adoption would end or preclude several financial benefits to Mariano: child support; health insurance coverage under the father’s health plan; eligibility for social security benefits if the father died or became disabled; inheritance from the father and his family; the support of a second parent with a right and duty to care for Mariano if the mother died or became debilitated; the support of a second parent to serve as an additional resource if Mariano became injured or disabled. The Court stated that these economic “losses” were significant for Mariano because his mother and her family had little money, and he faced “a childhood with a seemingly thin margin of economic safety.” In its conclusion, the Court stated that the case “illustrates a firm principle in Massachusetts family law. In the negotiation of their disengagement, divorcing parents may not bargain away the best interests of their children in general, and the children’s right to support, financial or otherwise, from either one of them in particular.” (citations omitted). Birth Parent’s Petition to Adopt In a footnote, the Court stated that it would not address or decide the question of whether the mother may “adopt” her own child under M.G.L. c. 210, since none of the parties raised this issue. However, the Court did go on to say that the terms of the statute “literally permit such adoption,” and that decisional law “supports the conclusion that an already lawful parent can become an adoptive parent.” (citations omitted). Practice Note: Although Mariano involved different facts, it can provide some excellent language to argue against termination in a case where there is no identified adoptive family (or guardian). Counsel could argue that termination would “foreclose the opportunity of the child to receive the wealth of benefits, tangible and intangible, provided by a dedicated” parent “either now or later.” Counsel opposing termination can cite the child’s interest in retaining financial benefits and the benefit of parental identity. Counsel may also cite the child’s important right to retain the potential of future parental consortium or financial benefit, especially in a case where there is a question about the current parent-child bond. Similarly, in a termination case where there is an identified adoptive family (or guardian), Mariano provides some excellent language to argue in support of post adoption contact between the child and a birth parent. Counsel could argue that it is in the child’s best interest to retain his “unique filial ties” to a parent, and that the child “shares a unique physical, genetic and ethnic connection” with that parent. This argument may be particularly effective where the proposed adoptive parents (or guardian) do not share that connection. Although not an issue raised in Mariano, it may be helpful for counsel to retain an expert to explain to a judge how important it is to maintain a shared, “unique” parent- child tie or connection. For example, an expert may be useful in a cross-cultural adoption case.
Adoption of Daisy, No. 09-P-1837, September 23, 2010, Cohen, J. The Appeals Court affirmed termination of both parents’ rights due to the father’s sexual abuse of Daisy, and the mother’s persistent disbelief of Daisy’s accusations against the father. The Court stated that the mother’s disbelief was unreasonable, unlikely to change, and made it unsafe to return Daisy to her care. On appeal, the mother challenged the trial court’s decision to admit Daisy’s out of court statements under G.L. c. 233, § 82. (The statute is set out below the case summary.) The mother also argued that DCF abused its discretion when it failed to provide therapeutic services that would have made it possible to reunify Daisy with her mother, and when it suspended visits between the two without court authorization. Finally, the mother argued that the judge erred in not ordering post termination contact. The Appeals Court, sua sponte, addressed the additional issue of the sufficiency of the evidence against the mother. 1. M.G.L. c. 233 § 82 hearing: The Court affirmed that Daisy’s hearsay statements concerning sexual abuse by her father were admissible under § 82. a) The Court Held that the Child’s Age at the Time of the Statements Governs: § 82 provides for the admission of hearsay statements concerning sexual abuse “of a child under the age of 10” if certain conditions are met. Daisy was under the age of 10 at the time she made the statements, but she was over 10 at the time of trial. The Court held that it is the child’s age at the time the statements were made that controls, not the age of the child when called to testify. b) The Expert who testified was Appropriate: § 82 requires that the child be unavailable to testify. One ground of unavailability is if the court finds, “based upon expert testimony from a treating psychiatrist, psychologist or clinician, that testifying would be likely to cause severe psychological or emotional trauma to the child.” The mother challenged the testimony of the expert because she was not Daisy’s ongoing therapist, but rather another mental health professional who was hired to conduct an evaluation of Daisy and make recommendations for treatment. The Court noted that the statute says “a treating” not “the child’s treating” mental health professional, suggesting that a “treating relationship” may not be required. However, the Court did not reach this issue, deciding that the expert was sufficiently involved in Daisy’s care to qualify under the statute. The Court compared the case to one where an outside expert is hired for the sole purpose of testifying at the § 82 hearing. The Court also stated: “To the extent that [the expert] may have been less familiar with Daisy than her regular therapist, it was for the judge to take that into account in assessing the weight of the testimony.” c) The Expert Witness was Qualified: The Court stated that neither the witness’s prior inexperience testifying as an expert , nor her frequent provision of services to children involved with DCF required that she be found unqualified. The Court thought that there was enough evidence that the witness had substantial training and experience in both evaluating and treating children with a history of sexual trauma. d) The Expert’s Testimony Was Enough to Find Daisy Unavailable: While some of the expert’s testimony concerned “possibilities,” taken as a whole, it was “neither equivocal nor speculative,” and was enough of a basis for the judge to find Daisy unavailable. 2. Adequacy of Services and Visits : The Appeals Court reiterated that a parent must raise a claim of inadequate services in a timely manner. (citation omitted). The Court only considered the mother’s claims that it deemed properly raised below, in this case, by motions for abuse of discretion. b) DCF is not Obligated to Force an 11 Year Old to Visit: After a “disastrous” visit, Daisy refused to visit with her mother and the mother did not press the issue for 5 months. When she did bring a Motion to Compel Visits, and DCF countered with a Motion to Suspend Visits, the trial court allowed DCF’s motion, largely because Daisy refused to attend visits. The Appeals Court upheld this decision, and stated that DCF did not abuse its discretion because “as a practical matter, it was not in the position to force an eleven year old child to attend visits against her will.” 3. Posttermination and Postadoption Contact - DCF and Daisy’s Attorney Have Ongoing Obligations to Daisy Pre-Adoption: The Court affirmed the trial court’s declining to order contact. However, the Court did say that both DCF and Daisy’s attorney are obligated to bring the issue before the court for review and redetermination if Daisy changes her mind about contact with her mother posttermination and preadoption. The Court made clear that the child’s attorney “has ongoing obligations [to his client] during the period between termination and adoption.” 4. Sufficiency of the Evidence: After raising the issue at oral argument sua sponte, and requesting additional briefs on the issue, the Court stated that its concerns had been “allayed,” and that it was in Daisy’s best interests for her mother’s rights to be terminated. The Court stated that the trial court’s findings “do not identify the precise nature of the safety risk to Daisy in specific terms.” However, the Court also stated that the trial court implied, and the evidence supported by clear and convincing evidence, that Daisy would be “unsafe in her mother’s care in two particular respects:” 1) the risk Daisy would have to see her father because he lived nearby and remained in close contact with the mother, and 2) the mother would not be able to meet Daisy’s “acute psychological need for support and acceptance in order to recover from the trauma she sustained.” The Court also found compelling that a long period of time had elapsed without “progress toward reunification,” and that Daisy completely rejected the mother and wanted to move on and be adopted.
G.L. c. 233, Section 82 Civil proceedings; out-of-court statements describing sexual contact; admissibility Section 82. (a) The out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any civil proceeding, except proceedings brought under subparagraph C of section twenty-three or section twenty-four of chapter one hundred and nineteen; provided, however, that such statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; the person to whom such statement was made or who heard the child make such statement testifies; the judge finds pursuant to subsection (b) that the child is unavailable as a witness; and the judge finds pursuant to subsection (c) that such statement is reliable. |
