Recent Published Decisions

Guardianship of A.R., 99 Mass. App. Ct. 349 (March 24, 2021) (Blake, J.)
Adoption of Jacob, 99 Mass. App. Ct. 258 (March 1, 2021) (Massing, J.)
Adoption of Gertrude, 99 Mass. App. Ct. 817  (June 29, 2021) (Milkey, J.)
Adoption of Franklin, 99 Mass. App. Ct. 787 (June 28, 2021) (Milkey, J.)
Adoption of Xarissa, 99 Mass. App. Ct. 610 (May 24, 2021) (Ditkoff, J.)
Adoption of Yalena, 100 Mass. App. Ct. 542 (December 3, 2021) (Blake, J.)
Guardianship of Keanu, 100 Mass. App. Ct. 64 (July 22, 2021) (Rubin, J.)
Adoption of Darlene, 99 Mass. App. Ct. 696 (June 9, 2021) (Grant, J.)
Adoption of Yvonne, 99 Mass. App. Ct. 574 (2021)
Adoption of Oren, 96 Mass. App. Ct. 842 (2020)
Guardianship of Tara, No-18-P1531, January 29, 2020 (Ditkoff, J.)
Care and Protection of MC (II), 483 Mass. 444 (2019)
Care and Protection of Yarrick, 19-P-238, November 12, 2019
Adoption of Iliana, 19-P-166, November 6, 2019 (Hand, J.)
Adoption of Varik, 95 Mass. App. Ct. 762 (2019)
Adoption of Querida, 18-P-915, February 11, 2019 (Blake, J.)
Adoption of Posy, 17-P-1473, February 4, 2019 (Singh, J.)
Adoption of Ulrich, 94 Mass. App. Ct. 668 (2019)
Commonwealth v. Salazar, 481 Mass. 105 (2018)
Commonwealth v. Santos, 94 Mass. App. Ct. 558(2018)
Adoption of Luc, 18-P-473, December 13, 2018 (Sullivan, J.)
Guardianship of Kelvin, 94 Mass. App. Ct. 448 (2018)
Adoption of Xarina, 93 Mass. App. Ct. 800(2018)
Bonaparte v. Devoti, 93 Mass. App. Ct. 603(2018)
Hernandez-Lemus vs Arias-Diaz June 29 2018
Adoption of Raissa, 93 Mass. App. Ct. 447(2018)
Adoption of Lisette, 93 Mass. App. Ct, 285 (2018) &
Adoption of Virgil, 93 Mass. App. Ct. 298 (2018)
Care and Protection of M.C., 479 Mass. 246 (2018)
Millis Public Schools v. M.P., 478 Mass. 767(2018)
Adoption of Garret, 92 Mass. App. Ct. 664 (2018)
HASOURIS V. SOROUR, 92 Mass. App. Ct. 607(2018)
CARE AND PROTECTION OF WALT, 478 Mass. 212 (2017)
CARE AND PROTECTION OF VIERI, 92 Mass. App. Ct. 402 (2017)
ADOPTION OF TALIK, 92 Mass. App. Ct. 367 (2017)
S.M. v. M.P., 91 Mass. App. Ct. 775 (2017)
ADOPTION OF ILIAN, 91 Mass. App. Ct. 727 (2017)
GUARDIANSHIP OF YOSSELIN GUADALUPE PENATE/DOR V. LOPEZ, 477 Mass. 268 (2017)
FAZIO V. FAZIO, 91 Mass. App. Ct. 82 (2017)
ADOPTION OF UDAY, 91 Mass. App. Ct. 51 (2017)
ADOPTION OF YADIRA, 476 Mass. 491 (2017)
ADOPTION OF ZAK, 90 Mass. App. Ct. 840 (2017)
ADOPTION OF ANISHA, 89 Mass. App. Ct. 822 (2016)
ADOPTION OF BEATRIX, 89 Mass. App. Ct. 1132 (2016) (Mass. App. Ct. Rule 1:28)
COMMONWEALTH V. EPPS, 474 Mass. 743 (2016)
COMMONWEALTH V. GIBSON, 474 Mass. 726 (2016)
COMMONWEALTH V. GRADY, 474 Mass. 715 (2016)
CARE AND PROTECTION OF VICK, 89 Mass. App. Ct. 704 (2016)
CUSTODY OF VICTORIA, 473 Mass. 64 (2015)
ADOPTION OF EDEN, 88 Mass. App. Ct. 293 (2015)
ADOPTION OF ZAK, 87 Mass. App. Ct. 540 (2015)
ADOPTION OF ODETTA, 87 Mass. App. Ct. 576 (2015)
COMMONWEALTH v. DORVIL, 472 Mass. 1 (2015)
GUARDIANSHIP OF V.V., 470 Mass. 590 (2015)
CARE AND PROTECTION OF LAURENT, 87 Mass. App. Ct. 1 (2015)
ADOPTION OF QUAN, 470 Mass. 1013 (2014)
L.L. v. COMMONWEALTH, 470 Mass. 169, 185, n.27 (2014)
CARE AND PROTECTION OF JAMISON, 467 Mass. 269 (2014)
CARE AND PROTECTION OF YETTA, 84 Mass. App. Ct. 691 (2014)
ADOPTION OF MALIK, 84 Mass. App. Ct. 436 (2013)
ADOPTIVE COUPLE v. BABY GIRL, et. al., 570 U.S. ____ (2013)
ADOPTION OF CECILY, 83 Mass. App. Ct. 719 (2013)
ADOPTION OF NORBERT, 83 Mass. App. Ct. 542 (2013)
ADOPTION OF ZANDER, 83 Mass. App. Ct. 363 (2013)
ADOPTION OF MEAGHAN, 461 Mass. 1006 (2012) (right to counsel in private adoption cases) [No summary – Full Opinion]

_________________________________________________________________________

Hasouris v. Sorour, 16-P-1269, January 8, 2018 (Wendlandt, J.)

Summary by Katy Krywonis, CAFL Training Unit

This case provides a good overview of the prior recorded testimony hearsay exception and discusses how to navigate asserting the privilege against self-incrimination.  The Appeals Court held that a witness’ prior recorded testimony (here, a deposition transcript) can be used at trial where the judge determines that the witness is unavailable. This may be relevant in cases where a witness testifies under oath and is cross-examined in one proceeding (e.g. a 72 or other evidentiary hearing) and is unavailable to testify at a subsequent proceeding (e.g. trial).

Prior recorded testimony hearsay exception: The prior recorded testimony of a person may be admitted where the person is now unavailable, the testimony was given in a proceeding addressing substantially the same issues as in the current proceeding, and the party against whom the testimony is offered had a reasonable opportunity and similar motivation for cross-examination of the person during the prior proceeding. The exception applies equally in criminal and civil actions.

Unavailable: There are a number of bases for finding that a witness is unavailable. For example, a witness may be physically unavailable because they are deceased, missing, or out of state and cannot be secured for trial.  A witness who is considered incompetent is likewise unavailable. A witness who validly invokes the privilege against self-incrimination is unavailable.

Opposing counsel may challenge whether the witness is unavailable in the sense required, and then the judge must decide.

Invoking the privilege against self-incrimination: When a witness declares his intent to invoke the privilege against self-incrimination and the party intending to call the witness challenges whether the privilege has been properly invoked, the trial judge must determine whether the witness has established “a real risk that his answers to questions will tend to indicate his involvement in illegal activity, and not a mere imaginary, remote, or speculative possibility of prosecution.”  The witness must assert the privilege in response to particular questions, and the possible incriminatory potential of each question, or area which the prosecution might wish to explore, must be considered.  A witness may not make a blanket assertion of the privilege (unless the court determines that the privilege extends to the entire testimony).

Here, the witness invoked his privilege against self-incrimination. In pretrial motions and hearings, he “unequivocally indicated” his intent to assert the privilege if called to testify.  Then, when he did not appear for trial as subpoenaed, counsel reported that the witness was “gravely ill” and in any event, would assert the privilege.  The trial judge subsequently found the witness unavailable and admitted the deposition transcript in evidence.  The Appeals Court said that was okay.  However, the Appeals Court did not determine whether the witness validly invoked the privilege because his deposition testimony was independently admissible pursuant to Mass. R. Civ. P. 32(a)(3)(D).

If you have a case that sounds like this, you should read the full opinion, available here.

Care and Protection of Walt, 478 Mass. 212 (2017) [Full Opinion]

Summary by Ann Balmelli O’Connor, Attorney-in-Charge, CAFL Appellate Unit

 Introduction: In this unanimous decision authored by Chief Justice Gants, the Supreme Judicial Court took a significant step toward ensuring that the “foster care is a last resort” policy enshrined in state law for more than six decades will be honored by DCF and the courts. The Court affirmed that

• DCF is obligated to make reasonable efforts to avoid removal and to reunify families after children are removed.
• The Juvenile Court must enforce the reasonable efforts requirements.
• The Juvenile Court has broad powers to order DCF to provide services when it has not made reasonable efforts.
• Infrequent parent-child visits, or “parenting time,” endanger the parent-child attachment that is “essential” to reunification.
• DCF should explore short-term options (such as having a child live temporarily with a relative) as an alternative to taking custody of a child.

 

Nature of the Case and Holding: On a petition for interlocutory relief under G.L. c.  231, § 118, an Appeals Court Single Justice (Carhart, J) reported three legal issues to a panel of the Appeals Court. The Supreme Judicial Court transferred the case from the Appeals Court on its own motion and held that

(1) a juvenile court judge must determine whether DCF made reasonable efforts to prevent or eliminate the need to remove a child from his/her parents both at the emergency custody hearing and at the 72-hour hearing (unless the court decides not to keep the child in DCF custody);

(2) in a case in which none of the four statutory exceptions to DCF’s obligation to make reasonable efforts (G.L. c. 119, § 29C) applies, a court may not excuse DCF from making reasonable efforts, even due to “exigent circumstances” – i.e., that the child was subjected to “serious abuse or neglect or an immediate danger of serious abuse or neglect,” but the SJC recognized that judges must decide the reasonableness of DCF’s efforts in light of all the circumstances of the case, the child’s health and safety must be the principal concern, and, regardless of whether or not DCF’s efforts were reasonable, a child should be removed from his parents’ custody “if immediate removal is necessary to protect the child from serious abuse or neglect”; and

(3) where a juvenile court judge or a single justice acting under G.L. c. 231, § 118 determines that DCF did not make reasonable efforts to avoid removing a child from his parents, the judge or the single justice may, in the exercise of his or her equitable authority, order DCF to take “reasonable remedial steps to diminish the adverse consequences” to the parents and the child of DCF’s failure.

Disposition: The father’s appeal was dismissed as moot because the child was no longer in DCF custody when the SJC issued its decision. But because the legal issues are of importance to the public, were fully briefed and argued, and are capable of repetition but might evade review, the Court resolved them and entered the holdings set forth above.

Facts: A DCF investigator appeared at the home of Walt and his parents one evening and, within ten minutes, decided to take custody of the three-year-old child. The investigator based her decision (which a supervisor approved in a phone call) on her observations that the house was dirty and very cluttered and Walt’s mother recently had smoked marijuana in the parents’ bedroom, which was adjacent to Walt’s. The investigator did not ask if Walt’s parents had another place to go or whether another family member might care for Walt elsewhere, and she did not mention—let alone offer—any of the remedial services that DCF had at its disposal to address the presenting problem.[1] When Walt’s maternal great-aunt appeared and offered to take Walt to her home, the investigator said that because DCF had custody of the child and the DCF office was closed, the agency would begin an evaluation of the aunt on the next business day. At least for that night, DCF was set on placing the toddler in stranger foster care.

The investigator filed a custody petition in the Worcester Juvenile Court the following day. With the petition, she submitted an affidavit in which she and her supervisor stated under oath that DCF had tried to make reasonable efforts to prevent or eliminate the need to remove Walt, but that the parents did not engage in those efforts. The trial judge awarded custody to DCF and found both that DCF did make reasonable efforts prior to removing Walt, and that DCF was not required to have made reasonable efforts because the risk of harm to the child precluded DCF from providing preventative services. At the 72-hour hearing, the investigator testified that she did not know if DCF had services that she could have offered Walt’s parents to address the conditions she felt endangered Walt, that she did not consider any alternatives to removing Walt before she assumed custody of him, and that “as an investigator, it was not her job to make reasonable efforts to prevent or eliminate the need for removal before removing a child to” DCF custody. Walt at 217.  At the conclusion of the hearing, the trial judge (who was not the judge who had heard the emergency petition) found that, given the risk of harm to the child, DCF had had no obligation to make reasonable efforts before removing Walt from his parents.

Father filed a petition for interlocutory relief,[2] contesting both the trial judge’s decision to continue DCF’s custody of Walt and its determination that DCF was excused from its obligation to make pre-removal reasonable efforts. Father asked the single justice to determine that DCF had violated its reasonable efforts obligation and enter orders that would protect the father-son relationship that DCF improperly disrupted. Specifically, Father asked for orders for daily visits, that he be permitted to attend special education meetings for Walt, and that DCF assist him in obtaining suitable housing for the family. The single justice entered those orders, and also directed that the trial court reevaluate the need for Walt to be in DCF’s custody once Father found alternative housing. DCF asked the single justice to reconsider his orders or to report the legal issues to a panel of the Appeals Court. The single justice denied the request for reconsideration and reported the issues. The SJC transferred the case sua sponte.

Statutory Framework: Before resolving the legal issues, the SJC set out a nearly 8-page explanation of the statutes that would guide its discussion.

– The Court explained that the legislature has since 1954 maintained its policy that

“removal of a child from the family is a last resort.” Walt at 219, citing to G.L. c. 119, § 1.

– The Court discussed how DCF may acquire custody of a child under G.L. c. 119, § § 24

and 51B, and the determinations a trial court must make at an emergency custody hearing and at a 72-hour hearing. The Court noted, among other things, that § 29C requires a court both to certify that continuing the child in the home would contravene his best interests and to determine whether DCF made pre-removal reasonable efforts. Importantly, the Court highlighted that DCF’s “obligation to make reasonable efforts does not end once [DCF] takes temporary custody of a child, but the purpose of those efforts shifts” to reunification. Walt at 221, citing to G.L. c. 119, § 29C.

– The Court explained that the 1980 federal law that first required states to include reasonable efforts mandates in state law was designed to protect children and families from “unwarranted removal of children from their homes and inappropriate and unnecessarily prolonged foster care[.]” Walt at 222, quoting from H. Rep. 96-136, 96^th Cong., 1^st Sess (1979).

– The Court noted that through the 1997 Adoption and Safe Families Act, Congress empowered each state to define “aggravated circumstances” that would excuse its child welfare agency from making reasonable efforts to prevent removal or towards reunification, and clarified that a court assessing the reasonableness of DCF’s efforts must have the child’s health and safety as its primary concern. Walt at 222.

Analysis:

(1) The reasonable efforts determination must be revisited at 72-hour hearing.

DCF first argued that a trial court need make a reasonable efforts determination only at the emergency hearing. Relying on the plain language of G.L. c. 119, § 24, which requires a court to comply with G.L. c. 119, § 29C at the 72-hour hearing, the SJC rejected DCF’s claim. The Court noted that “the Legislatures’ imposition of this obligation on the judge at the seventy-two hour hearing is consistent with the State policy that removal of a child from his or her parent is a last resort.” Walt at 224.  The Court emphasized the importance of a judge’s revisiting a determination made at the summary, and usually ex parte, emergency hearing in a full evidentiary hearing at which the parents are present and they and their child are represented by counsel. The wisdom of the requirement was illustrated in this case, where the DCF investigator’s sworn ex parte claims regarding reasonable efforts were shown at the 72-hour hearing to have been “simply not true.” Walt at 225.

(2) There is no “exigent circumstances” exception to DCF’s obligation to make reasonable efforts to avoid separating a child from his parents.

DCF claimed that the trial court was correct to excuse it from its obligation to use reasonable efforts, even though the case did not meet one of the four exceptions to the reasonable efforts requirement set out in G.L. c. 119, § 29C. DCF asked the Court to construe an additional, “exigent circumstances,” exception to its statutory reasonable efforts obligation, i.e., to excuse DCF from making reasonable pre-removal efforts in any case in which a parent “subject[ed] a child to serious abuse or neglect or an immediate danger of serious abuse or neglect.” Walt at 226. The Court declined the invitation because the Legislature defined the “aggravated circumstances” exception in § 29C, and did not include subjecting a child to serious abuse or neglect or a danger of same in that definition. In explaining its rejection of DCF’s request, the Court recognized that “a judge must determine what is reasonable in light of the particular circumstances in each case, [] the health and safety of the child must be the paramount concern, and [] no child should remain in the custody of the parents if his or her immediate removal is necessary to protect the child from serious abuse or neglect.” Walt at 225.

The SJC explained that a court evaluating the reasonableness of DCF’s efforts must consider any “exigent circumstances” in the case. The Court continued that, where DCF had been working with a family before an emergency arose, the trial court may consider DCF’s pre-exigency efforts in its evaluation. And where an exigency led DCF to become involved with a family, DCF’s efforts “need only be reasonable in light of the exigency.” Walt at 227. In situations in which there is nothing DCF could have done to have avoided the need to remove a child, DCF still is obligated to “reasonably explore the possibility of reasonable alternatives to removal of the child[.]” Id. For example, before the DCF investigator in Walt decided to take custody of the child, she should have spoken with the parents to obtain information about their relationship with their son, whether they had met his ordinary and special medical needs, whether they could make other housing arrangements while the house was cleaned, and whether there was a family member who could have provided a home for Walt until theirs was in better condition. Id. at 227-228. Finally, the Court noted that even where DCF failed to make pre-removal reasonable efforts, a child should be removed from his parents “if immediate removal is necessary to protect the child from serious abuse or neglect.” Id. at 228.

(3) Trial judges and single justices have equitable authority to enter remedial orders.

DCF claimed that the single justice exceeded his authority, and that of a Juvenile Court judge, in ordering DCF to provide multiple father-son visits each week, to permit Walt’s father to participate in special education meetings, and to explore housing options for the family. The SJC disagreed. The Court explained that because DCF had violated its obligation to make reasonable pre-removal efforts, the single justice had equitable authority to order DCF “to take reasonable remedial steps to diminish the adverse consequences of its breach of duty.” Id. at 228.  Because the single justice acted on the case long after Walt had been removed from his parents, he could not have ordered DCF to make reasonable pre-removal efforts, but he still could “ensure that [DCF] fulfilled its duty to make it possible for the child to return safely to his father or to attempt to hasten the time when that reunification could become practicable.” Id. at 229 (citations omitted). The single justice’s orders were designed to do just that.

As to the order for visitation, which the Court termed “parenting time,” the Court stated that DCF’s schedule of visits—one hour every other week—“imperil[ed] the father-son bond that was essential if custody were to be restored.” Id. at 230. In light of that, “the single justice did not exceed his authority or abuse his discretion by ordering a visitation schedule that would enable that bond to remain intact.” Id. (citations omitted). Equity also warranted the order that father be permitted to remain involved in Walt’s education. The Court explained “[a]nother adverse consequence” of DCF’s failure to make reasonable pre-removal efforts: with Walt in State custody, it could be harder for his parents to obtain housing benefits, so that they might be delayed in obtaining alternative housing, which “was likely a prerequisite to family reunification.” Id.  Accordingly, the single justice acted reasonably and within his authority in ordering DCF to explore housing options to facilitate family reunification.

The SJC expressly declined to consider the scope of judicial authority to enter orders for parent-child visitation (“parenting time”) or other services in cases where DCF has temporary custody of a child but did meet its obligation to make reasonable efforts. The Court concluded that “where [DCF] has temporary custody of a child after failing to fulfil its duty to make reasonable efforts to prevent or eliminate the need for the child’s removal from parental custody, a judge has the equitable authority to take reasonable steps to attempt to remedy the adverse consequences on the child and the parents arising from [DCF’s] breach of that duty.”[3] Id. at 231.

Practice Tip:

In the aftermath of Walt, DCF social workers likely have been told that they cannot testify that they did nothing to avoid removing a child from his home (unless one of the statutory exceptions applies). They are going to say they did something, and the issue is going to be whether whatever they did was reasonably calculated to prevent or eliminate the need for removal, in light of the then-existing circumstances—e.g., the issue DCF believed endangered the child, the parents’ understanding of the concerns and amenability to assistance, and the availability of alternatives to removal. The court should take those circumstances into account in assessing the social worker’s actions, including her level of inquiry or examination, consideration of non-State resources, and proffered suggestions or services.

The first step in challenging a reasonable efforts determination at a 72-hour hearing is to find out what the petitioning social worker said in her affidavit or petition, and why the trial court determined at the emergency hearing that DCF had made reasonable efforts. You should obtain the affidavit or petition and the 29C form the emergency hearing judge completed and go over them with your client. You may be challenging both the efforts DCF made before it removed the child (either pursuant to 51B(c) or under an emergency custody order) and the efforts DCF has made in the time between the removal and the 72-hr hearing. As to an interim period challenge, you should be prepared to argue that DCF did not permit sufficient parenting time.

Be clear about what remedial orders your client is seeking in the event of a no reasonable efforts determination. You should ask the court to make orders that will address DCF’s identified concern and make reunification more likely to occur, and more likely to occur quickly. If possible, submit your requests to the court as a draft order. Be careful not to ask for more than your client is able to do, and keep in mind that you can ask the court to review DCF’s efforts towards reunification later in the case and ask for additional orders if the court finds no reasonable efforts at that time.

Additional practice tips and materials will be distributed at forthcoming trainings and will be made available in other ways.

[1] These include homemaker, family support, babysitting, and parent aide services. See 110 C.M.R. § § 7.020-7.064 (2008). The Court noted that DCF has access to these services “to support struggling families in need of such services.” Care and Protection of Walt, 478 Mass. 212, 217, n6 (2017).

[2] Mother had waived her right to the 72-hour hearing. Walt at 217.

[3] The Court was clear that the “judge” could be a Juvenile Court judge or a single justice. Walt at 231.

Care and Protection of Vieri, 92 Mass. App. Ct. 402 (2017)
Summary by Katy Krywonis, CAFL Training Unit

The trial judge adjudicated Vieri in need of care and protection and found his mother unfit because her home was unsafe and unsanitary, she was unable to meet Vieri’s escalating needs, and she refused to cooperate with DCF.  At trial, the evidence showed that the home had been in “deplorable” condition for an extended period.  The mother testified that the home was now clean, but she refused to let the social worker inside because she did not “have a very good relationship” with DCF.  On appeal, the mother argued that the evidence was insufficient to prove that she was currently unfit because there was no current evidence that her home was in “chaos.”  The Appeals Court disagreed and affirmed, noting that the evidence was not “fully current” only because the mother refused to let the social worker inside. The judge was permitted to draw a negative inference – that the home remained in poor condition – from the mother’s refusal to allow anyone into the home to report on its condition.  The judge could rely on the evidence that was available, including the probation officer’s and health department agent’s earlier observations of the home.  The judge was not required to credit the mother’s testimony that there was nothing amiss in the home.

The negative inference language from the Appeals Court is ambiguous.  However, the holding that the judge could draw a negative inference from the mother’s refusal to cooperate refers to the mother’s refusal to allow the social worker access to the home; it is not about the mother’s participation in other service plan tasks.

Practice Tip: If DCF has ample evidence of your parent client’s dangerously dirty or chaotic home, your client cannot avoid a finding of current unfitness by preventing others from observing the home.  The judge will be able to draw a negative inference that the home remains in dangerously dirty or chaotic condition.  To avoid that negative inference, you must urge your client to clean the home and give the DCF caseworker and/or other collaterals access.  If your client refuses to allow them access, she must have an extremely credible reason for doing so.  But whatever her reasons, she still must be able to rebut DCF’s evidence of past filth by presenting evidence (beyond her own testimony) that the home is currently clean.

Adoption of Talik, 92 Mass. App. Ct. 367 (2017)
Summary by Katy Krywonis, CAFL Training Unit

In this case, the Appeals Court was asked to decide whether a trial judge may draw an adverse inference from a parent’s failure to appear at trial.  The Appeals Court rejected the mother’s argument that due process requires the same protection against an adverse inference that is afforded to a defendant who is absent from a criminal proceeding.  The Appeals Court held that a trial judge may, in their discretion, draw an adverse inference from a parent’s absence from a care and protection or termination proceeding, just as they may draw an adverse inference from a parent’s failure to testify.  The Appeals Court stated that “[w]here a parent has notice of a proceeding to determine [their] parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned [their] rights in the child or cannot meet the child’s best interests.”  The Appeals Court found that there was enough evidence, including the adverse inference, for the trial judge to find that the mother was unfit and that termination of her parental rights was in Talik’s best interest.

Facts: Trial took place over four days.  The mother had notice of the proceeding, but was not present for any of the trial dates, nor was she in contact with her attorney or DCF.  She had not visited Talik in at least nine months or participated in her service plan tasks.  The judge heard testimony from social workers, experts, the father, a relative from California, and one of Talik’s foster parents.  The mother was present when the judge issued his decision from the bench, but did not offer any explanation for her absence or move to reopen the evidence.  The judge drew a negative inference from the mother’s failure to attend and testify at trial, terminated her parental rights, and approved DCF’s plan for Talik’s foster parents to adopt him.

Discussion: Citing Custody of Two Minors, 396 Mass. 610, 616 (1986), the Appeals Court reiterated that “the full panoply of constitutional rights afforded criminal defendants does not apply in these cases.”  For example, DCF is required to show only clear and convincing evidence of current unfitness, not proof beyond a reasonable doubt.  Importantly, the adverse inference is not sufficient, by itself, to meet DCF’s burden of proof.  DCF must still present a prima facie case of parental unfitness such that the parent may be expected to rebut the allegations.  Additionally, in determining whether to exercise their discretion to draw an adverse inference, the trial judge must consider whether such an inference is “fair and reasonable based on all the circumstances and evidence before [them].” Here, the trial judge inquired into the reasons for the mother’s absence, both at a pretrial hearing and again at the start of the trial. The mother’s counsel responded that he had not had contact with the mother.  The mother’s absence was just one of many factors the judge considered in finding her unfit.

Practice tip: Often when a parent does not appear for a court date, their attorney is put in a difficult position and may be pressured by the judge to answer questions regarding the client’s whereabouts and whether or not the client has communicated with them.  If a client does not appear for trial, counsel should object to the trial going forward and request a continuance.  Counsel should raise any reason for the client’s absence for the record, if that reason is helpful to persuade the judge to continue the trial.  Counsel must always be careful not to reveal confidential information that may prejudice the client’s case (e.g. informing the court that the client is missing and has not maintained contact with counsel).  Instead, one possible response to a judge’s questioning may be that counsel has no information to share with the court.

Counsel should advise parent clients at the initiation of proceedings to stay in touch with counsel and attend all court dates.  The right to counsel is not absolute.  If a parent does not attend court dates or maintain contact, the court may find that they have abandoned the proceedings and may strike counsel’s appearance, leaving the parent to represent themselves.  If a client does not appear but has been in contact with counsel and has articulated a position, counsel should inform the court of the client’s interest in the case.  If the court strikes counsel’s appearance and the parent (before termination of their parental rights) later appears and wishes to participate, counsel should be reappointed.  For more on this issue, counsel should review Care and Protection of Marina, 424 Mass. 1003 (1997), Adoption of Imelda, 72 Mass. App. Ct. 354 (2008), and Adoption of Rory, 80 Mass. App. Ct. 454 (2011).

S.M. v. M.P., 91 Mass. App. Ct. 775 (2017)
Summary by Katy Krywonis, CAFL Training Unit

In this case, the biological parents filed an equity complaint in the juvenile court after the adoptive parents notified them they were terminating their visits.  They successfully sought an order compelling the adoptive parents to provide the agreed upon four visits per year.  The adoptive parents appealed.  The Appeals Court vacated the order and remanded the matter to the juvenile court to (1) enter the appropriate findings and an order of modification if “a material and substantial change in circumstances” is found and the judge determines that “the modification is necessary in the best interests of the child,” and (2) determine whether the adoptive parents acted in honest good faith in terminating the visits.  The Appeals Court agreed that the adoptive parents waived the requirement to provide a working telephone number because they acquiesced in this failure for almost a year while communicating with the biological parents solely by mail.

Facts: The biological parents and adoptive parents entered into an open adoption agreement that provided for four supervised visits per year.  The agreement provided that if a visit causes the child “undue stress or anxiety,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.”  The agreement also required the biological parents to provide a working telephone number.  If the biological parents fail to do so, the adoptive parents, in their discretion, may terminate the agreement.

In June 2014, the adoptive parents notified the biological parents that they were terminating all future visits because (1) the biological parents had not provided a working telephone number, (2) the biological parents continued to refer to themselves as “mom and dad” (this was not part of the written agreement) and (3) the visits caused the children “undue stress, anxiety and confusion.”  The biological parents filed an equity complaint seeking specific performance of the visits.  At the hearing on the complaint, the adoptive mother testified that she believed the visits were causing the child undue stress because several days after the visits, the child would resume her old habit of picking the skin off her fingers and toes.  This behavior would resolve well before the next visit.  The judge found that the biological parents’ failure to provide a telephone number was not a material breach of the agreement, and that there was no indication that their use of the term “mom and dad,” or any other behavior at visits, had caused undue stress or anxiety.  The judge issued an order reinstating the visits.  She further ordered the biological parents to provide a working telephone number, and to stop referring to themselves as “mom and dad.”

Discussion: (1) Equitable Powers: The Appeals Court said the court could not exercise its equitable powers here because G.L. c. 210, §§ 6C and 6D provide a prescribed and adequate legal remedy.  The sole remedy for the breach of an open adoption agreement is an order for specific performance.  G.L. c. 210, § 6D provides that the court may modify the terms of the agreement if it finds that there has been “a material and substantial change in circumstances and the modification is necessary in the best interests of the child.”  Here, the judge modified the agreement by ordering the biological parents to stop referring to themselves as “mom and dad,” even though she found no material and substantial change in circumstances.

(2) Adoptive Parents Discretion to Terminate Visits: The Appeals Court held that the terms of the agreement gave the adoptive parents sole discretionary power to modify or terminate the visits if the visits caused the children undue anxiety or stress.  The adoptive parents were simply obligated to exercise that discretion honestly and in good faith.  Thus, the Appeals Court stated that the judge’s only review should be whether the adoptive parents exercised their discretion in good faith.  The Appeals Court said that the judge should not review whether the biological parents’ use of the term “mom and dad” caused undue stress or anxiety.

(3) Requirement to provide a telephone number: The Appeals Court concluded that the judge correctly deemed this provision waived, and appropriately reinstated (or retained) the agreement’s requirement to provide a working telephone number, including the potential negative consequences of failing to do so.

Dissent: The adoptive parents bear the burden to show not just that they acted in good faith. They must provide sufficient proof that it was the biological parents’ behavior that caused the child undue stress.  A good faith belief that a causal link exists does not by itself equate to proof of it.  The dissent stated that the adoptive parents’ discretion is not unfettered, and that adopted children can benefit from supportive relationships with their biological family.  “Too much love, by itself, is seldom a problem.”

Practice Note: Be careful what you agree to!  Settlement is a minefield – there are no assurances.  The risks, which are substantial, are really all on the parent’s (and sometimes the child’s) side.  Clients need to understand those risks to make an informed choice. Watch out for language that is so vague it renders the agreement meaningless, or that gives adoptive parents too much discretion.  For example, require a neutral, third party clinical opinion that visit suspension or termination is necessary to avoid serious emotional harm to the child, rather than leave it solely to the adoptive parents to decide.

Adoption of Ilian, 91 Mass. App. Ct. 727 (2017)
Summary by Abigail Salois, CAFL Appellate Unit

The Massachusetts Appeals Court affirmed a termination of parental rights decree and the trial court’s approval of DCF’s plan for Ilian’s foster parents to adopt him in this June 2017 published decision.  Because it is a published decision, it could be cited as binding precedent.  The father’s application to the SJC for further appellate review (“FAR”) is currently pending.

Facts: In August 2013, DCF sought custody of the child, then two years old, from the mother following allegations of neglect and mother’s arrest.  At that time, the father had been incarcerated since 2012 and was serving a four to five year sentence in state prison.  DCF placed the young child in four different placements while he was in DCF custody.  From August 2013 until May 2014, the DCF placed the child with a maternal relative.  DCF learned in March 2014 that the maternal relative was neglecting Ilian and in May, DCF moved the child to a STARR program, where he remained until July 2014.  DCF placed the child in a specialized DCF foster home from July 2014 until May 2015, when DCF ultimately placed the child in a preadoptive DCF foster home.  By the time of trial, Ilian was doing well in his preadoptive DCF foster home.

DCF investigated several potential kinship placements for Ilian before they placed him in a preadoptive home.  DCF ruled out two relatives due to their criminal records and paternal grandmother and the cousin did not have large enough apartments.  Paternal grandmother was ruled out because she failed to acquire a larger home.  When the cousin first contacted DCF, the agency told her to secure a larger apartment.  The Appeals Court found that there was an eighteen-month gap during which the cousin did not contact DCF, and that the cousin had not seen Ilian since he was approximately fourteen to eighteen months old.  By the time of the trial, the cousin had secured a two-bedroom apartment and had completed a successful probation department home study.  At trial, the father remained incarcerated and asked the trial court to grant custody of Ilian to the cousin.  The cousin provided extensive testimony to the trial court.

Discussion: This decision is significant in cases where a trial court is asked to weigh competing permanency plans for a child at trial.  The father put forth three arguments: (1) that, even though he conceded his unfitness, the trial court should not have terminated his parental rights where he put forth a suitable substitute caregiver for Ilian, (2) that several of the trial court’s findings were clearly erroneous, and (3) the trial court had failed to conduct an even-handed assessment of his and DCF’s competing permanency plans for Ilian.  The Court concluded that the trial court acted within its discretion and did not err in terminating the father’s parental rights.  As to the father’s second argument, the Court conceded that a couple of the trial court’s findings lacked evidentiary support, but in large part, the Court determined that the father was merely challenging the way in which the trial judge weighed the evidence.

The Court agreed with the father that the judge’s assessment of father’s plan was not explicitly even-handed but pointed out that the trial judge did make findings related to the cousin’s suitability.  The Court recognized that important facts, e.g., the cousin’s acquisition of a two-bedroom apartment and an approved home study, were wholly absent from the trial court’s findings.  The Court concluded that, although the trial judge should have made explicit findings about the cousin, the Court found that it was “implicit in the findings that [the trial judge] did make that she considered placement with the cousin and concluded that such placement was not in Ilian’s best interests.”  The Court also noted that the child was thriving in the stable environment and affirmed the trial court’s decision.

Practice Note: In this case, the father elected not to testify at the trial.  As a result, it was not completely clear from the record that the father was advancing a plan for the trial court to grant custody of the child to his cousin.  It was unclear from the record whether the father wanted his cousin to adopt the child or merely assume custody until father was able to do so.  A better record would have helped in this case.  In a competing plans case, counsel should explicitly present an alternative plan for the child.

Guardianship of Yosselin Guadalupe Penate/DOR v. Lopez, 477 Mass. 268 (2017)
Summary by Jennifer Klein, Immigration Impact Unit

In this case, the SJC addressed the question of whether a state Probate and Family Court or Juvenile Court judge may decline to make special findings in the case of a child under age 21 applying for Special Immigrant Juvenile Status (SIJ). To apply for SIJ, which provides undocumented youth with a path to citizenship, a juvenile below age 21[1] must obtain special findings from a “juvenile court” that (1) the child is dependent on a juvenile court, or under the custody of an agency or department of a state or an individual or entity appointed by the court or state; (2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) returning the child to his or her country of origin would not be in the child’s best interest. The child must then submit these findings along with an I-360 application to the U.S. Citizenship and Immigration Service (USCIS) which ultimately determines whether the child meets all the requirements of eligibility for SIJ status. After obtaining SIJ status, a child can be considered for a green card.

This case involved two juveniles – Yosselin Penate and EG. Yosselin was living in the custody of an uncle and presented a motion for special findings against her mother in conjunction with her uncle’s petition for guardianship. EG was living in the custody of her mother, and filed a motion for special findings against her father in conjunction with a paternity suit initiated by the Department of Revenue. In both cases the Probate and Family Court judges denied the motions. In Yosselin’s case, the judge declined to make findings as to the first and third prongs and found that Yosselin’s case did not satisfy the second prong because her primary motivation in moving for special findings was to be able to apply for SIJ and not that she could not be reunited with her mother. In EG’s case, the judge completely declined to make special findings because EG was in her mother’s custody.

The SJC’s decision after reviewing these two cases contains two major holdings. First, the SJC declared that the Probate and Family Court judge may not decline to make special findings if requested by an immigrant child. This holding applies regardless of whether the judge suspects that the juvenile seeks a path to lawful status for reasons other than her abuse/abandonment/neglect. In short, “[t]he immigrant child’s motivation is irrelevant to the judge’s special findings.” Additionally, a judge must make the special findings even if the judge believes that the child will not prevail in her application for SIJ status before USCIS, because, as the SJC noted, immigration “lies exclusively within the purview of the Federal government.”

Second, the SJC took the opportunity to clarify that special findings must be limited to the parent with whom the child claims that reunification is not viable. So, for a child like EG who is in the custody of her mother and moves for special findings regarding her father, the judge should only discuss the father in its findings. Finally, the SJC did not answer the question of whether the immigration statute requires a finding against one or both parents, as the state court’s duty is solely to make special findings against either one or both parents as requested by a child.

Practice Note: There are serious risks involved in applying for SIJ status.  Counsel must always consult with an immigration attorney before seeking SIJ status for a child.

[1] In Recinos v. Escobar, 473 Mass. 734 (2015), the SJC addressed the issue of the SIJ statute defining “child” as anyone below age 21 while the Massachusetts probate and juvenile court jurisdiction ends at 18. The SJC held that the Massachusetts Probate and Family Court, under its broad equity power under M.G.L. c. 215 §6, has jurisdiction over youth up to age 21 for the “specific purpose of making the special findings necessary to apply for SIJ status pursuant to the INA.”

Adoption of Beatrix, 89 Mass. App. Ct. 1132 (2016) (Mass. App. Ct. Rule 1:28)
Summary by Ann Narris, CAFL Training Unit

**PLEASE NOTE: A Summary decision issue by the Appeals Court pursuant to its Rule 1:28 is issued by a panel of the Court.  Thus it may be cited for its persuasive value, not as binding precedent**

The Massachusetts Appeals Court vacated a termination of parental rights decree in this July 2016 1:28 decision, citing various judicial errors in her treatment of the evidence.  Because it is a 1:28 decision, it can be cited for persuasive value only (not as binding precedent).

Facts:    A mother with mild cognitive limitations lost custody of her newborn daughter in the spring of 2014.  At the time, there were no allegations of abuse or neglect, just concerns by DCF due to Mother’s past history involving older children and her cognitive limitations. Nearly eight years earlier, the mother had lost custody due to leaving a baby without a caregiver.

The evidence at trial showed the mother had developed numerous positive parenting skills.  But, DCF and the trial judge chose to reject this considerable evidence of the mother’s current fitness. For example, DCF asked the mother to participate in a clinical parenting assessment, which she did.  The evaluator testified, and wrote in his report, that the mother had the “necessary skills” to parent the baby. Similarly, experienced visitation supervisors from the local YMCA provided extensive visitation notes and testified that the mother’s parenting skills were extensive.

Given DCF’s concerns that the mother not be alone with the child, the mother developed a supportive parenting plan.  The mother nominated her long-term partner to be the child’s legal guardian and be responsible for the child’s safety and supervision.  DCF rejected the mother’s plan, citing a policy in its area office that the mother would have to leave the home for DCF to support a guardianship.  Numerous friends and families testified that they would be there to support the family but nobody from DCF ever reached out to them in order to develop this plan.  Therefore, according to the Appeals Court, the evidence simply did not establish a basis for the judge to overlook the mother’s positive parenting evaluation and reject Mother’s supportive parenting plan.

Summary:  This 1:28 decision is significant in cases where a client has a disability.  In deciding to reverse the Juvenile Court’s decision, the Appeals Court cited that “any failure by the department to make reasonable efforts to accommodate the mother’s cognitive impairment may be considered ‘in deciding whether [the mother’s] unfitness is merely temporary.”  In making this analysis, the Appeals Court connected the lack of reasonable efforts with possible temporary unfitness.  This is a nice argument to make when faced with a parent whom DCF failed to provide services that would actually address the parenting deficiencies.  It provides a legal footing for the question: How do we know that the mother’s unfitness isn’t temporary if she hasn’t been given the opportunity to improve?

The Appeals Court also noted that DCF has an affirmative obligation to make reasonable efforts to strengthen families.  The Department must accommodate the special needs of a parent who has cognitive limitations.  In this case, the Appeals Court cited that the service plan “failed to include services which could assist the mother in light of her impairment.”   For example, the court cites how a journaling requirement for a cognitively impaired parent “seems particularly inappropriate.”  The Appeals Court ordered that DCF, on remand, is required to follow its regulations and create an appropriate service plan, reinforcing that the court has the authority to order DCF to comply with its regulations.  This case therefore provides a helpful citation in a motion for an order for services, visitation schedule, or placement consistent with DCF’s regulations.

The Appeals Court ultimately reversed the trial judge’s decision because: (1) the findings did not reflect an evenhanded analysis of the evidence at trial; (2) the focus was not on the mother’s current fitness and instead on her history from years prior; (3) the findings lacked a “well-founded reason for rejecting the parenting assessment performed at the department’s request;” and (4) the findings were internally inconsistent.

In its decision, the Appeals Court acknowledged that the purview of whether the weight of the evidence was sufficient falls to the trial judge.  However, in its review of the evidence, the Appeals Court decided that the Judge’s assessment was error. Moreover, because the evidence that the trial court relied on was “dated,” it was “unduly speculative, without more, to conclude that the mother’s past conduct is predictive of the mother’s current, significantly changed, circumstances.”

In Care and Protection cases, this 1:28 case can therefore be cited for the proposition that the judge cannot simply overlook positive evidence of your client’s improvement.  Doing so reflects an incomplete review of the evidence. “The failure to explicate the rationale for this [visitation] finding reflects an incomplete characterization of the uncontroverted evidence before her.”  Because this error was compounded in that the judge “failed to adequately address the stride the mother made,” remand was required.

Fazio v. Fazio, 91 Mass. App. Ct. 82 (2017)
Summary by Katy Krywonis, Esq., CAFL Training Unit

This case provides a good breakdown of the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app. §§ 501 et seq., which provides that a person in military service is entitled to a stay in any child custody proceeding if that military service prevents them from appearing in court.  In this appeal from an amended judgment for divorce nisi, the husband argued, inter alia, that the Probate and Family Court judge violated the SCRA by denying his request for a stay, holding a hearing, and issuing orders in his absence. The Appeals Court rejected this claim because his request for a stay did not satisfy the SCRA requirements, set forth below.

Facts: The husband was a major in the Army National Guard who repeatedly saw active duty over the course of the divorce proceedings.  He sought a stay of the hearing in question by faxing a letter to the Probate and Family Court the afternoon before.  The letter, written by his commanding officer, stated that the husband’s unit “will be conducting pre-deployment training from 1 October through 28 November 2010 in preparation for our mobilization which will occur on 29 November 2010.”  The commanding officer stated that the deployment would last approximately one year and “request[ed] that court hearings be postponed due to the [husband’s] inability to defend his interests, in accordance with the Servicemembers Civil Relief Act.”

The SCRA: Under the SCRA, a person in military service is entitled to a stay in “any civil action or proceeding, including any child custody proceeding” upon a showing that military service prevents the person from appearing in court.  It provides for a mandatory stay of at least 90 days upon a proper request by a qualifying servicemember.  To make a proper request, the servicemember must set forth the factual basis for the request, and the date the servicemember will next be available.  The request must also include the commanding officer’s statement “that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.”  Whether the request is adequate under the SCRA is a question of law, subject to de novo review on appeal.

Here, the Court stated that the commanding officer’s letter provided no details about the husband’s pre-deployment training and did not explain how the requirements of the training mission prevented the husband from taking part of one day to attend a court hearing.  Additionally, the commanding officer did not state that the husband could not obtain leave to appear at the hearing at any time during the two months prior to mobilization.  Although the judge, in her discretion, could have allowed the stay notwithstanding the incomplete request, the Appeals Court found no error in the judge’s denial of the stay.

Adoption of Uday, 91 Mass. App. Ct. 51 (2017)
Summary by Katy Krywonis, Esq., CAFL Training Unit

On appeal from a decree terminating his parental rights, the father argued, inter alia, that despite knowledge of Uday’s possible Cherokee ancestry, the Department failed to notify the tribe of the termination proceeding in violation of the Indian Child Welfare Act, 25 U.S.C. § 1912(a). The father further claimed that his attorney was ineffective for failing to assert an ICWA claim during the proceeding in the juvenile court.  The Department filed a supplemental record appendix, in which it submitted letters from three federally recognized Cherokee tribes, all to the effect that Uday is not an “Indian child” as defined by the statute.  The Appeals Court affirmed the decree terminating the father’s parental rights, on the grounds that these letters, dated within three months of a court investigator’s report first noting Uday’s possible Cherokee ancestry and over one year before the trial, demonstrated that the Department complied with ICWA’s notice requirements.  The Appeals Court also noted that in the future, to comply with the new ICWA regulations (see practice note below), documentation of compliance with ICWA’s notice provisions must be filed with the court and made part of the trial court record.

The Appeals Court also rejected the father’s arguments that the Department’s failure to make reasonable efforts to reunite him with Uday undermines the finding of unfitness, and that the finding of unfitness is unsupported.  The Court reminds us that a reasonable efforts claim must be raised in a timely manner.  Here, the father did not raise the issue of the adequacy of the Department’s service efforts prior to trial.

Practice note: This situation, where the trial court record did not reflect notice to the tribe, has been addressed by the new ICWA regulations that went into effect on December 12, 2016.  25 C.F.R. § 23.111(a)(2) requires that an original or a copy of each notice is filed with the court, with any return receipts or other proof of service.  All CAFL attorneys must be familiar with the new regulations, and vigilant about compliance with ICWA’s requirements, consistent with their client’s position.

Adoption of Yadira, 476 Mass. 491 (2017)
Summary by Katy Krywonis, Esq., CAFL Training Unit

In this case, the SJC was asked to decide whether federal regulation allows DCF to petition for termination of parental rights on behalf of unaccompanied refugee minors whose parents are also present in the U.S.  The SJC held that it does.  The Court stated that although unaccompanied refugee minors “are different from other children in foster care because they are separated from their parents by war, natural disaster, or other forces beyond their parents’ control…where parents of unaccompanied refugee minors arrive in the U.S. but make no attempt to reunite with their children (or are otherwise found to be unfit), their children deserve safety and permanency just like any other child.”  The SJC affirmed the interlocutory order denying the mother’s motion to deny DCF’s termination petition, and remanded the matter to the trial court.

Facts: The children arrived in Massachusetts from a Nepalese refugee camp through the Federal Unaccompanied Refugee Minors Program, and were placed in foster care.  Their mother and father later entered the U.S.  Since coming to the U.S., both parents have had “very limited contact” with the children.  DCF petitioned the Probate and Family Court to terminate parental rights.  The mother moved to deny DCF’s petition.  The trial judge denied the mother’s motion and reported the matter to the Appeals Court.  The SJC granted an application for direct appellate review.

Discussion: 45 C.F.R. § 400.115(c) provides that the purpose of the minor refugee program is “family reunification.” However, adoption of unaccompanied refugee minors is possible “in certain rare cases…provided a court finds that: (1) [a]doption would be in the best interest of the child; and (2) there is termination of parental rights (for example, in situations where the parents are dead or are missing and presumed dead) as determined by the appropriate State court.”

The parents argued that the use of the passive voice in the phrase “there is termination of parental rights…as determined by the appropriate State court” indicates that qualifying terminations must occur through nonjudicial means, such as parental death, and that the court is to determine only whether such termination occurred, not act to terminate rights itself.  The parents further argued that the use of the present tense means that DCF cannot petition for what would be a future termination; rather, the termination must already be in effect.  The SJC rejected this reading of the regulation, instead concluding it simply directs the court to determine the issue of termination according to its own state laws.  The SJC reasoned that the provision of examples indicates that there are more applicable situations than those listed.  Additionally, the Court stated that the parents’ interpretation means there would be no mechanism for a court ever to make a determination of parental unfitness and terminate parental rights to unaccompanied refugee minors.  This would leave a whole category of children without protection, and would be in direct conflict with the Adoption and Safe Families Act.

The SJC also rejected the parents’ argument that the minor refugee program and ASFA conflict, instead concluding that the two are “well-aligned.”  The SJC reasoned that there are three exceptions to ASFA’s termination of parental rights provision, including if there is a documented “compelling reason” not to file a termination petition.  A compelling reason not to file a termination petition could include the child’s unaccompanied refugee minor status.  ASFA applies to all children in foster care, whether or not they are unaccompanied refugee minors.

This is a very unique case. Counsel involved in a matter concerning unaccompanied refugee minors should read the full opinion, available here.

Adoption of Anisha, 89 Mass. App. Ct. 822 (2016) [Full Opinion]
Summary by Katy Krywonis, CAFL Training Unit

In this case, the Appeals Court was asked to decide whether a Juvenile Court judge properly exercised jurisdiction over a care and protection petition where the mother took the infant out of state and placed her with a relative before the petition was filed.  The Court concluded that the judge properly exercised jurisdiction because (1) the judge acted within his authority in denying the motion to dismiss while he explored which state had jurisdiction, and (2) the judge correctly exercised jurisdiction pursuant to section 2(a)(4) of the Massachusetts Child Custody Jurisdiction Act.  The Appeals Court also rejected the mother’s claim that the state had no basis to intervene because she had already placed Anisha with a suitable caretaker.

Facts: The mother gave birth to Anisha in New Hampshire. The mother and Anisha came to Massachusetts from New Hampshire, and then traveled to Tennessee, where the mother filed a petition seeking the appointment of the paternal aunt as Anisha’s guardian.  The mother had previously lost custody of six older children.  Two weeks after the mother filed a guardianship petition in Tennessee, DCF filed a care and protection petition in the juvenile court.  At the preliminary hearing, the mother’s counsel moved to dismiss the care and protection petition, claiming that the court did not have jurisdiction because Anisha was not born in Massachusetts and there was no evidence that she was in Massachusetts, and represented that Anisha was in St. Kitts, West Indies with the paternal aunt.  The judge denied the motion to dismiss without prejudice while he explored which state –Massachusetts or Tennessee – had jurisdiction, and contacted the court in Tennessee to resolve the issue.  Tennessee declined jurisdiction and Massachusetts then assumed jurisdiction.  The judge ultimately terminated the mother’s parental rights, and approved DCF’s plan of adoption by the paternal aunt and uncle.

Discussion: In Massachusetts, jurisdiction over child custody proceedings is determined according to the Massachusetts Child Custody Jurisdiction Act (MCCJA), G.L. c. 209B.  Under the MCCJA, a court must determine whether it has the power to exercise jurisdiction in a custody proceeding and, if so, whether it should exercise that power under the standards provided.  Because, in some cases, jurisdiction may not be clear, the MCCJA authorizes communication with courts of different states to determine whether Massachusetts is the appropriate forum.  The Court concluded that the judge acted within his statutory and inherent authority in denying the mother’s motion to dismiss while he explored whether Massachusetts or Tennessee had jurisdiction. The judge’s communication with the court in Tennessee was expressly authorized by the MCCJA and, most importantly, he did not decide custody until jurisdiction in Massachusetts was established.

The Court then concluded that the judge correctly exercised jurisdiction under section 2(a)(4) of the MCCJA.  Section 2(a)(4) of the MCCJA allows Massachusetts courts to exercise jurisdiction over custody if (i) no other state would have jurisdiction under section 2(a)(1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that the Commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child for Massachusetts to assume jurisdiction.  The requirements of section 2(a)(4)(i) were satisfied because Anisha did not have a “home state,” Tennessee declined jurisdiction, and no petitions had been filed in any other states.  The best interest requirements, as defined in section 2(a)(2), were satisfied because (1) the mother and Anisha had a significant connection to Massachusetts, and (2) there was substantial evidence concerning Anisha’s present and future care in Massachusetts.  The Court concluded that the mother had a significant connection to Massachusetts on the basis that she was a long-time resident of Massachusetts, and remained so until Anisha’s birth.  In determining that Anisha, too, had a significant connection to Massachusetts, the Court relied on the facts that Anisha came to Massachusetts with the mother upon discharge from the hospital, the mother planned to stay with her in Massachusetts, and the mother scheduled a pediatric follow-up visit for her in Massachusetts.  The Court determined that there was substantial evidence of Anisha’s present and future care in Massachusetts because the information DCF gathered in its 51B investigation and records DCF had concerning the mother’s history were located here.

Finally, the Appeals Court rejected the mother’s argument that the state had no basis to intervene because she had already placed Anisha with a suitable caretaker, instead viewing the mother’s actions as evasive and harmful.  Despite the fact that the aunt and uncle were subsequently approved, the Court concluded that Massachusetts had a substantial interest in Anisha’s custody because Anisha was endangered in the mother’s care and in need of care and protection, the mother was unfit, and the aunt and uncle “had not yet been evaluated by any court or agency.”

Commonwealth v. Epps, 474 Mass. 743 (2016) [Full Opinion]
Summary by Katy Krywonis, CAFL Training Unit, adapted from summary by
Peter M. Onek, Criminal Defense Training Unit

This case involves a claim of ineffective assistance for counsel’s failure to retain an expert to challenge a diagnosis of shaken baby syndrome.  The SJC reversed the denial of the defendant’s motion for a new trial on an indictment charging assault and battery on a child causing substantial bodily injury because of “the confluence of” trial counsel’s inadequate performance in failing to present an expert at trial and the “evolving scientific research” on possible alternative causes of symptoms generally associated with shaken baby syndrome.

Facts: The Commonwealth contended that the defendant violently shook two year old Veronica based on medical testimony that she was diagnosed with traumatic brain injury, and scans of her brain that showed retinal hemorrhages, subdural hematoma, and brain swelling – “the triad” associated with shaken baby syndrome.  The defendant denied injuring Veronica and contended that, hours before her injuries became manifest, she had fallen down wooden stairs in the home and later off a kitchen stool.  At trial in 2007, the Commonwealth’s medical expert offered the opinion that “injuries of the type and severity suffered by Veronica could not have been caused by the short falls described by the defendant.”  She testified that Veronica’s injuries “were consistent with shaken baby syndrome.” On cross-examination, she acknowledged research indicating that the same types of symptoms as occur in shaken baby syndrome could occur from short distance falls, but stated that those findings were not widely accepted within the national community of pediatricians or recognized by the American Academy of Pediatrics.  The defendant did not call an expert to offer an opinion contrary to that of the Commonwealth’s expert.

Several years after his conviction, the defendant moved for a new trial, claiming (1) his trial counsel was ineffective for failing to retain a medical expert to question whether Veronica’s injuries were caused by shaken baby syndrome and to acknowledge the possibility that her injuries could have been caused by an accidental short distance fall, and (2) new scientific advances on shaken baby syndrome and short falls warranted a new trial.  The motion for a new trial was denied.  The Appeals Court affirmed.

Discussion: In its decision to order a new trial, the SJC faulted trial counsel for failing to present expert testimony supportive of the accident defense.  Because of that failure, apart from the brief reference to research on accidental falls on cross-examination of the Commonwealth’s expert, the jury heard nothing about the possibility that Veronica’s injuries were caused by her accidental falls.  Had the jury learned from an expert “that injuries of the type and severity suffered by Veronica could have been caused by short falls of the type described by the defendant, they might have had reasonable doubt whether the defendant violently shook Veronica.”  Although these issues were hotly contested at the time of trial and experts supportive of the positions beneficial to the defense were in the minority, new research has since emerged “that would lend credibility to the opinion of such an expert.”  The Court concluded that under these circumstances, the defendant was deprived of a defense.

Commonwealth v. Gibson, 474 Mass. 726 (2016) [Full Opinion]
Summary by Katy Krywonis, CAFL Training Unit, adapted from summary by
Peter M. Onek, Criminal Defense Training Unit

In this case, the SJC was asked to decide whether the defendant’s pattern of hostile and threatening conduct toward counsel warranted forfeiture of his right to counsel under the guidelines adopted in Commonwealth v. Means, 454 Mass. 81 (2009).  The Court concluded that it did not because: (1) the defendant did not have a “full and fair” opportunity to be heard, and (2) the defendant’s posttrial conduct was not sufficiently egregious.

Facts: The defendant “engaged in a pattern of quarrelsome, confrontational, hostile, and threatening conduct toward a succession of nine different court-appointed attorneys over the course of trial and posttrial proceedings,” including accusations of unprofessional conduct and threats to report counsel to the Board of Bar Overseers.  He threatened violence to one trial attorney.  Most of the attorneys were permitted to withdraw as a result.  In response, the judge issued an order to the defendant to show cause why his right to counsel should not be deemed forfeited, and conducted a hearing on that issue the next day, at which the defendant revealed that he had been diagnosed with a brain tumor that caused him to have difficulty “putting things into words.”  The judge, relying on competency evaluations completed several years earlier in which the defendant had been found competent, determined that mental health was not a mitigating factor and ordered forfeiture of the defendant’s right to counsel in the probation revocation matter.

Discussion: In its decision, the Court reiterated that “forfeiture is an extreme sanction in response to extreme conduct that imperils the integrity or safety of court proceedings.”  “Because the consequences…are so severe, the sanction…should not be imposed until the defendant has had a full and fair opportunity at a hearing to offer evidence as to the totality of circumstances [including mental disability] bearing on the question of whether forfeiture is both warranted and appropriate.”  After a “full and fair” hearing, the judge must then determine “whether the defendant’s conduct was so egregious as to warrant the sanction of forfeiture, and, if so, in view of the totality of circumstances, whether the sanction of forfeiture is in the interests of justice.” In clarifying the nature of the conduct required for forfeiture, the Court maintained “that violence or threat of violence is the touchstone for a forfeiture order.”

The Court concluded that this forfeiture order was improper for both procedural and substantive reasons.  First, the defendant was not afforded a “full and fair” hearing because the one day notice “imposed unacceptable limitations on the defendant’s right to present evidence” of his mental disability, e.g. medical records or expert testimony.  The Court explained that “competency and mental illness are distinct concepts, each of which may bear on the propriety of forfeiture.”  “While competency is important to the forfeiture issue, it is not dispositive.”  Here, “the defendant’s mental condition should not have been left to speculation, particularly when the constitutional right to counsel was at risk.”  Additionally, the defendant’s conduct was not sufficiently egregious to warrant forfeiture because it did not “imperil the integrity or safety of the court proceeding.” Significantly, the one threat of violence was “far removed in time” from this proceeding.  Finally, even if the defendant’s conduct had met the threshold, the judge did not consider whether forfeiture was “in the interests of justice.”

The Court added that “a judge facing a pattern of hostile conduct from an uncooperative defendant is not without a remedy. Where a defendant persists in finding fault, without reason, with a succession of appointed counsel, the court may in appropriate circumstances consider whether to apply the doctrine of waiver by conduct.”  Waiver by conduct requires the judge to first conduct a colloquy with the defendant, warning that he or she may lose the right to counsel if he or she engages in abusive conduct (e.g. threats to sue or complain to the BBO) toward the attorney.  If the defendant then engages in the conduct about which he or she was warned, it may be treated as “an implied request to proceed pro se and, thus, as a waiver of the right to counsel.”

Waiver of counsel must be knowing, intelligent and voluntary, but the right to a hearing does not attach as in cases involving forfeiture.  For a detailed overview of waiver, counsel should review Adoption of Olivia, 53 Mass. App. Ct. 670 (2002) (concluding father waived his right to counsel where, after repeated requests for new counsel and absent showing of good cause, he elected to represent himself rather than proceed with appointed counsel).

Commonwealth v. Grady, 474 Mass. 715 (2016) [Full Opinion]
Summary by Katy Krywonis, CAFL Training Unit, adapted from summary by
Peter M. Onek, Criminal Defense Training Unit

In this case, the SJC modified the procedure to preserve appellate rights after denial of a motion in limine.  Now, a pretrial objection at the motion in limine stage will be sufficient to preserve appellate rights, if what is objectionable at trial was specifically the subject of the motion in limine.  In this circumstance, it will no longer be necessary to object again to the challenged evidence at trial.  The Court reasoned that where a defendant has already sought to preclude the very same evidence at the motion in limine stage, the judge has already been made aware of, and had the opportunity to consider, the objection.  An objection must still be made at trial, however, to anything that was not specifically at issue in the motion in limine.

Here, the Court concluded that the defendant did not properly preserve his appellate rights where, at the motion in limine stage, he challenged only who could testify, not the substance of that testimony, and did not object to or move to strike the specific testimony at trial.  Because the objection was not to the specific testimony that the witness might offer, the judge did not have an opportunity, prior to trial, to consider the propriety of the specific testimony.

The Court further cautioned that “a judge ought not to engage in the practice of indicating at the motion in limine stage that the judge is ‘saving’ or ‘preserving’ a defendant’s appellate rights,” because doing so “may lull a defendant into failing to raise a necessary objection at trial.”  The Court advised that, in the interest of avoiding any such misunderstanding, “the better practice is …to object at trial regardless of a motion in limine.”

Care and Protection of Vick, 89 Mass. App. Ct. 704 (2016) [Full Opinion]
Summary by Katy Krywonis, CAFL Training Unit

The trial judge adjudicated Vick in need of care and protection and found his mother unfit, on the basis that the home was unsafe and unsanitary, she refused to cooperate with DCF, and lacked judgment regarding Vick’s needs.  On appeal, the mother and Vick argued that the evidence was insufficient to establish a nexus between her parenting and a showing of harm to Vick; specifically, that the condition of the home coupled with her failure to cooperate with DCF did not endanger Vick to the degree necessary to demonstrate unfitness.  Citing the trial judge’s “specific and detailed” findings, the Appeals Court concluded that the evidence collectively was sufficient to support the determination of unfitness, and affirmed.

Custody of Victoria, 473 Mass. 64 (2015) [Full Opinion]
Summary by Jaime Prince, Staff Attorney, CAFL Administration

This case involves the Massachusetts Child Custody Jurisdiction Act (MCCJA), G.L. c. 209B, and provides a detailed overview of the MCCJA.  The SJC was asked to decide whether the MCCJA grants a Massachusetts court jurisdiction to decide the custody of an unaccompanied refugee minor who was transferred to Massachusetts by the Office of Refugee Resettlement (“the Office”), a Federal agency. The SJC concluded that G.L. c. 209B, § 2(a)(2), as applied to the specific facts of this case, grants jurisdiction to the Massachusetts court because (1) no other State has “home state” jurisdiction, and (2) it is in the child’s best interest.

Facts:    Victoria was born in Mexico in 1997. She moved to Texas with her mother when she was six years old, returned to Mexico to live with her grandmother when she was ten, and moved back to Texas to live with her Mother and stepfather when she was thirteen. When she was fourteen, she disclosed at school that she was being sexually exploited. She was referred to the Department of Homeland Security because she was an undocumented minor, and the Office took custody of her. The Office placed Victoria in a juvenile detention facility in Virginia, and then transferred her to a residential treatment program in Texas.  Her mother sought reunification. The Office denied the request, designated Victoria as an unaccompanied refugee minor, and assigned her for placement in Massachusetts.  In February 2014, the Office transferred Victoria to Massachusetts, released her from Federal custody, and placed her in the care of Lutheran Social Services, where she receive services and care.  DCF then filed a petition for custody of Victoria in the Probate and Family Court.

The trial judge reported the matter to the Appeals Court and the SJC transferred the case from the Appeals Court on its own motion.

Discussion:  Under Massachusetts law, a court may exercise jurisdiction in a custody proceeding only under the provisions of G.L. c. 209B. The SJC applied the facts of Victoria’s case to the factors set forth in G.L. c. 209B, and determined that the Massachusetts court has jurisdiction under G.L. c. 209B, § 2(a)(2).  First, the SJC’s determined that no other state qualified as Victoria’s home state.  In particular, it determined that Texas was not Victoria’s home state.  Although Victoria resided there for six months prior to the commencement of the Massachusetts proceeding, which is enough time under the statute, the SJC concluded that she was in Federal custody during that time, not in the custody of a “parent or person acting as a parent,” which includes an “authorized social service agency” under G.L. c. 209B, § 1. The SJC held that the Legislature intended “authorized social service agency” to apply to State, but not Federal, agencies. Thus, Texas could not be Victoria’s home state.

The SJC  then determined that it was in Victoria’s best interest for Massachusetts to exercise jurisdiction because (1) Lutheran Social Services met the statutory requirement to be a “contestant” (one who “claims a legal right to custody or visitation with respect to a child”) with significant connection to Massachusetts, and (2) there was “substantial evidence” concerning Victoria’s present and future care in Massachusetts because she receives mental health treatment, schooling and medical care in the Commonwealth.

Adoption of Eden, 88 Mass. App. Ct. 293 (2015). [Full Opinion]
Summary by Jaime Prince, Staff Attorney, CAFL Administration

This case involves the proper role of allegations in decisions involving the termination of parental rights. In an unpublished decision, the Appeals Court remanded the father’s case to the Juvenile Court for the trial judge to clarify whether he gave any weight to sexual abuse allegations against the father.  See Adoption of Eden, 87 Mass. App. Ct. 1109 (2015) (Mass. App. Ct. Rule 1:28).  The trial judge promptly issued supplemental findings that clarified he did not find by a fair preponderance of the evidence that the sexual abuse occurred, and did not rely on the allegations in his decision to terminate the father’s parental rights. The judge set forth the bases for his decision.  The Appeals Court affirmed.  The Appeals Court reiterated in its decision that “parental rights may not be terminated on the basis of an unproven allegation…it is essential that trial judges who recite allegations explain their significance to the disposition of the case.”

Facts:  In January 2011, two 51A reports were filed by mandated reporters alleging the father had sexually abused Eden. DCF filed an emergency care and protection petition and obtained custody of Eden and her siblings. The father was arraigned on charges relating to allegations, however the DA ultimately filed a nolle prosequi after Eden recanted the allegations.

Discussion:  The Appeals Court noted that the sexual abuse allegations formed a “center of gravity” in the judge’s initial decision, but “despite their significance to his decision, the judge made no finding with respect to these allegations.” The Appeals Court cited the “bedrock principle that parental rights may not be terminated on the basis of an unproven allegation.” The Court stated that where a decision terminating parental rights contains “a small number of factual errors,” it would be proper to affirm the decree if the errors did not affect the outcome or were otherwise “harmless.” However, “given the prominence of the alleged sexual abuse in the judge’s decision, that approach would not have been appropriate here”  If the allegations were among the bases for the judge’s decision to terminate the father’s parental rights –without a specific finding that the abuse occurred– the decree would have to be vacated. The Court remanded the matter to allow the trial judge to clarify the basis for his decision to terminate the father’s parental rights.

In his supplemental decision, the trial judge noted that he could not conclude by a preponderance of the evidence that the sexual abuse occurred, and stated that he did not rely on the allegations to terminate the father’s parental rights.  Instead, he placed “substantial weight” on the way the father dealt with the allegations and further found that the father lacked insight into the children’s needs. He also reiterated some of his previous findings illustrating the father’s “grievous shortcomings.”  In light of the judge’s clarification, the Appeals Court affirmed the decree terminating the father’s parental rights.

Practice Tip: If you represent a client who supports unfitness or termination, it is important to write proposed findings and conclusions of law that clearly lay out the bases for the determination.  If you believe that there is enough evidence to support a finding that a particular allegation has been proven by a preponderance of the evidence, there should be a finding made to that effect.  Otherwise, it should not be a basis for the ultimate finding of unfitness.

If your client does not support unfitness, make it clear that the particular allegation has not been established by a preponderance of the evidence (and therefore it cannot be considered), and the other evidence does not amount to unfitness by clear and convincing evidence.

Adoption of Zak, 87 Mass. App. Ct. 540 (2015) [Full Opinion]
Summary by Katharine Klubock, CAFL Training Unit

A panel of the Appeals Court vacated the trial judge’s orders for posttermination and postadoption visits between the children (Zak, Carol, and Nick) and their parents. Carol and Nick did not support posttermination or postadoption visits, and argued that the trial judge erred in failing to consider the effect on the children of domestic violence “as it relates to those visits.”  The Court remanded the matter to the trial judge to consider and make findings whether, in light of the history of domestic violence the children witnessed, “in addition to all other relevant factors,” the visits are in the childrens’ best interest. Citing the trial judge’s “careful and thorough findings of fact and rulings of law,” the Court found that the judge did not abuse her discretion when she terminated the parents’ rights, and denied their request to place the children with either a maternal great-aunt or paternal grandmother.

Posttermination and Postadoption Visits:

The Appeals Court stated that the trial judge “made explicit findings that the children had been exposed to a pattern of domestic violence that had affected them adversely, devoting an entire section . . . to that topic.”  The Court stated that, having made these findings, the trial judge should have considered “the history of domestic violence in the family, its impact on the children, or whether, notwithstanding that history, it was in the best interests of these children to have” visits with their parents.  The Court cited Custody of Vaughn, 422 Mass. 590, 599 (1996), and Maalouf v. Saliba, 54 Mass. App. Ct. 547, 551 (2002).

Practice Tip:  In a case that involves evidence of domestic violence, counsel moving for posttermination and postadoption visits should submit proposed findings setting forth why, notwithstanding that evidence, it is in the best interests of the child or children to have visits with the parent or parents.  Counsel opposed to visits should submit proposed findings setting forth why visits would not be in the child or childrens’ best interests.

Adoption of Odetta, 87 Mass. App. Ct. 576 (2015) [Full Opinion]
Summary by David J. Cohen, Staff Attorney, CAFL Appellate Unit

Nature of the Case and Holding:  The juvenile court terminated parental rights of Odetta’s father and approved DCF’s plan for her adoption by maternal aunt and uncle.  It also ordered monthly post-adoption visitation between Odetta and her paternal uncle.  The Appeals Court affirmed.  In a case of first impression on this latter issue, it held that a trial judge’s equitable authority to order post-adoption visitation was not limited to certain categories of persons, such as a biological parent, “de facto” parent, or grandparent.  Instead, that authority extended to situations where the judge found continuing contact with others to be in the child’s best interests.

Facts and Analysis:  Odetta’s parents, never married, separated when she was an infant.  Although her father and his brother (paternal uncle) assisted in raising her, Odetta lived with her mother.  During Odetta’s early years, paternal uncle attended her birthdays, took her to the mall each month, and sometimes hosted her overnight or watched her while mother was at work.  In March 2009, father was charged with murdering mother and later convicted.  DCF placed three-year-old Odetta with maternal aunt and uncle, with whom she had also previously spent time.  Paternal uncle, a Muslim, petitioned for guardianship and continued his visits with Odetta.  DCF sought her adoption by maternal aunt and uncle, who are Seventh Day Adventists.  At birth, Odetta had been given a Muslim name, and family members took part in a ceremony where she was recognized into that faith.  But, until age three, she attended both the mosque and the Seventh Day Adventist church.  Her parents did not choose one religion or culture for her but instead exposed her to both. By trial, Odetta had thrived under the care of maternal aunt and uncle for three years.  She was up to date medically, surrounded by extended family, well-adjusted socially, and described as “a happy child.”  She continued to attend church regularly with maternal relatives.

The Appeals Court noted that existing case law, while it had not addressed this particular set of circumstances, nonetheless provided guidance regarding with whom a court could use its equitable authority to order post-adoption visitation.  It reasoned that such authority was not limited, by the absence of precedent or express statutory language, to a certain category of persons, concluding that it was inherently broad enough, at least in this case, to support the trial court’s order, where the trial court deemed that order to be in the child’s best interests.  In particular, the Appeals Court affirmed the trial court’s conclusion that the “preservation of both religions/cultures” to which Odetta had been exposed was “fundamental to her development and in her best interests.”  It said that paternal uncle was the “sole family member available and able to continue to expose Odetta to a culture and religion that was an integral part of her life until the mother’s untimely death.”  It upheld the trial court’s order as necessary in this situation, noting maternal uncle’s cancellation of a visit with Odetta around Christmas one year “due to the apparent distrust” between the families.  Finally, the Appeals Court concluded, because the post-adoption visitation order was “narrowly tailored” and “not intended to interfere with” the ability of maternal aunt and uncle to raise Odetta as her adoptive parents, that it was not an abuse of the trial court’s discretion to make sure that Odetta’s best interests were met.

Commonwealth v. Dorvil, 472 Mass. 1 (2015) [Full Opinion]
Case Summary by Katharine Klubock, CAFL Training Unit

In this case the SJC reversed a father’s assault and battery conviction for spanking his 3-year old daughter’s bottom.

The Court laid out a standard to determine when a parent or guardian’s physical discipline of a child is acceptable and when it is unlawful.  In Dorvil, the SJC explicitly recognized that there is a “parental privilege defense” to the crime of assault and battery.  The decision also reaffirmed that a parent’s right to parent his child is a long-standing fundamental liberty interest, citing, inter alia, Troxel v. Granville, 530 U.S. 57, 65 (2000), and Santosky v. Kramer, 455 U.S. 745, 753 (1982).

The Dorvil Court held that a parent or guardian may not be subjected to criminal liability for the use of force against a minor child under his or her care and supervision, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.

The Court gave some guidance on how to apply the three-pronged framework. As to the first two prongs, the Court stated that the fact-finder may consider, “among other factors,” the child’s age, “’the physical and mental condition of the child,’ and ‘the nature of [the child’s] offense.’” (Citation omitted).  For the third prong, the fact-finder must decide whether the “force used or the risk of injury created was, in context, sufficiently ‘extreme’ as to be inherently impermissible.” (Citation omitted).  Because “parental privilege” is an affirmative defense, the Commonwealth bears the burden of disproving beyond a reasonable doubt at least one of the three prongs.

The SJC rejected the Commonwealth’s argument that a parent who struck his child in anger could not be disciplining the child.  “It is understandable that parents would be angry at a child whose misbehavior necessitates punishment, and we see no reason why such anger should render otherwise reasonable uses of force impermissible.”  The Court concluded that the parental privilege defense should not “hinge[] on a parent’s subjective state . . . .”

In Dorvil, the facts were in dispute.  In applying the standard to the facts of the case, the Court commented that “interactions between parents and children may appear ambiguous to outside observers and are susceptible to misinterpretation, leading to significant difficulties of proof at trial and heightened risk of wrongful conviction.”

The Court grounded its decision in the long-recognized Constitutional protection afforded to the relationship between a parent and child.  The Court was “deeply mindful of the dual important interests implicated in the defense:  the welfare of children requiring protection against abuse . . . and . . . the avoidance of unnecessary State interference in parental autonomy as it concerns child rearing.”  The Court later stated that the Massachusetts Appeals Court and numerous other states have recognized the parental privilege defense, and that “the widespread recognition of a parental privilege defense accords with important constitutional values.”

In its decision, the Court quoted Troxel v. Granville, supra, that “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by the [United States Supreme] Court.”  The Court went on to note that a parent’s right is not absolute and may be limited by the State’s compelling interest in protecting a child from abuse. (Citations omitted).

PRACTICE TIP:

Counsel in a child welfare case may use the Court’s decision in a number of ways.

Counsel in a care and protection case may use Dorvil to argue that a custodian’s action does (or does not) constitute permissible discipline.  For example, depending on the client’s position, counsel may use the three-pronged analysis to either challenge or support a 51B decision, emergency removal, grant of temporary custody, care and protection adjudication, or termination of parental rights.

In arguing that particular allegations do or do not amount to abuse, counsel should also review Cobble v. DSS, 430 Mass. 385 (1999).  In Cobble, the SJC held that a father’s spankings of his child with a leather belt did not constitute abuse under 110 CMR 2.00, because there was no evidence that the child had been injured as a result, nor was there any evidence that he was at substantial risk of harm.  430 Mass.  at 391-393.

In disputing factual allegations in a C&P case, counsel may want to point out the SJC’s statement that family interactions may be interpreted differently and may be susceptible to misinterpretation.  Counsel may use this to challenge, for example, a DCF worker’s account of what her or she saw, particularly where, as in Dorvil, there are differing accounts of what happened.  Depending upon the facts of the case, counsel may want to cite to the SJC’s ruling that a parent’s anger does not invalidate a claim of reasonable discipline.

While the Court’s decision seems to apply to cases involving physical force, counsel may consider using  the three-part test to argue whether other allegations of abuse or neglect that do not involve actual physical force constitute permissible discipline.  To make this argument, counsel should look at the court’s discussion of what is reasonable and the cases it cites in that discussion, some of which relate to allegations of neglect (e.g., withholding food as discipline).

Guardianship of V.V., 470 Mass. 590 (2015) [Full Opinion]
Summary prepared by Andrew Cohen, Director, CAFL Appellate Panel

In Guardianship of V.V., the SJC held that indigent parents have a constitutional right to counsel in private guardianship-of-a-minor proceedings.

In October 2014, the SJC solicited amicus briefs in Guardianship of V.V. on this question:  “Whether the biological parent of a minor child has a right to counsel in a guardianship action, where someone other than the parent (here the child’s great-grandparent) seeks to have herself appointed by the court as the child’s guardian.”  CPCS took the opportunity to brief an affirmative response to this question and to the related question of whether children have a constitutional right to counsel in guardianship-of-a-minor proceedings.  (Children are currently entitled to counsel in privately-initiated guardianship cases by statute, but that entitlement is conditioned on another party asking for the appointment or the judge determining that appointment is necessary; that is, the statute doesn’t guarantee appointment of counsel for children.)

The CPCS brief “tweaked” or “clarified” the SJC’s amicus question slightly, and asked that the Court hold that there is a right to counsel for children and indigent parents in contested guardianship cases.  In support of this tweak, we noted that the right to counsel in termination-of-parental-rights cases attaches only in contested cases.  See Adoption of Holly, 462 Mass. 680,  688, 689 (2000).  On February 10, 2015, the SJC held that indigent parents, based on due process and equal protection principles, have a right to counsel in guardianship cases.  The SJC was silent as to children’s right to counsel (indeed, it did not even mention the statute governing appointment of counsel for children).  While the SJC in V.V. did not expressly limit the right to counsel to contested guardianship cases, its language can be interpreted that way:  “[A]n indigent parent whose child is the subject of a guardianship proceeding is entitled to, and must be furnished with, counsel in the same manner as an indigent parent whose parental rights are at stake in a termination proceeding or, similarly, in a care and protection proceeding.”  (Emphasis added)  An indigent parent must appear and contest a termination case for the right to counsel to attach per Holly; an indigent parent must do so “in the same manner” in a guardianship case.  Overall, we see V.V. as a great victory for parents and the principles of due process and equal protection.  V.V. will change the legal landscape for thousands of parents (and, indirectly, for children) in guardianship cases going forward.

What does this mean for trial attorneys, both private and staff?  It means more cases to assign, possibly many more.  The Probate and Family Court has estimated that there are approximately 450 contested guardianships each year.  Based on this estimate, the CPCS brief assumed that success in V.V. would translate to approximately 500-1000 new appointments for children and indigent parents.  Probate and Family Court statistics show that there are about 5,000 guardianship cases filed each year.  Should the Probate and Family Court interpret V.V. to mean that all indigent parents are entitled to counsel, not just those who contest the petition, the result might be 5,000-10,000 assignments for children and indigent parents.  Meeting this demand would be very challenging for counsel and for CPCS.  CAFL  administration will be meeting with Probate and Family Court Chief Justice Angela Ordoñez soon in order discuss the Court’s and CPCS’s interpretation of V.V.

What does V.V. mean for appellate attorneys?  CPCS is interpreting the case to mean that indigent parents have a right to counsel for appeals of final judgments in all guardianship-of-a-minor cases, irrespective of DCF involvement.  Children will get counsel on appeal if (a) they had counsel at the trial level, or (b) a party asks the trial court to appoint, or the court sua sponte appoints, appellate counsel for the child.  We expect dozens of guardianship appeals will need appellate counsel after V.V.  Interlocutory appeals – as in care and protection cases – will be handled primarily by trial counsel, except in very special circumstances.  Please call CAFL administration if you have questions about interlocutory appeals.

We expect that private and staff attorneys will have many questions about the effect V.V. might have on their practice.  Feel free to contact any of us at (617) 482-6212 to discuss this issue.

CARE AND PROTECTION OF LAURENT, 87 Mass. App. Ct. 1 (2015) [Full Opinion]
Summary by David J. Cohen, Staff Attorney, CAFL Appellate Unit

Nature of the Case and Holding:  The juvenile court adjudicated nine-year-old Laurent in need of care and protection and found his mother unfit, essentially on the basis that she was too cognitively limited to parent him.  The Appeals Court reversed, holding that mother’s parenting deficiencies did not, taken as a whole, support a conclusion by clear and convincing evidence that Laurent was at risk of serious harm.  Even if mother was less than an ideal caretaker, some “amorphous harm” was insufficient to show parental unfitness because “the incremental risks to Laurent simply do not add up to a substantial risk of harm.”  Any general source of concern for parental fitness was mitigated by findings discounting each particular risk.

Facts and Analysis:  Forty years old at trial, the mother contracted lead poisoning as a child, resulting in developmental disabilities and cognitive impairments.  Despite a history of alcohol and cocaine use, she obtained a GED degree and some employment as an adult.  She had resided continuously at the same address for five years.  Laurent was mother’s fifth and youngest child.  The older four had all been adopted after DCF involvement, the three eldest by a single family in New Hampshire.  Laurent had been diagnosed with ADHD, asthma, and obesity.  DCF removed him when an intoxicated mother called police and accused Laurent’s father of attempting to strangle her in Laurent’s presence.  Afterward, mother obtained a restraining order against the father for domestic abuse, received individual counseling, and attended meetings designed to improve her parenting skills and prevent drug relapse.  She visited with Laurent consistently.  She sought out support from the Department of Developmental Services (DDS), meeting regularly with DDS providers and developing an individualized action plan to address her neurological deficits.  There was no evidence presented at trial that domestic violence or substance abuse were still present in mother’s life.  She and Laurent had a loving relationship.  DCF had planned to return Laurent to mother’s care but changed course after reports that, during visits, she smoked in front of him and his nebulizer usage exceeded the recommended dosages.

The juvenile court concluded that the evidence was “adequate, even if just barely” to find mother unfit.  It relied on: lack of “structure” in mother’s home; Laurent’s dietary needs; difficulties in administering his asthma medication; mother’s smoking in Laurent’s presence; and Laurent’s wish to live in New Hampshire with half-siblings.  Conceding DCF’s case was “long on smoke and short on fire,” the trial judge nonetheless found each item above exposed Laurent to “some, albeit ill-defined, risk of harm.”  The Appeals Court rejected that reasoning, noting that no amount of improvement in parenting skills by mother would then be enough because “some residual risk” from her cognitive challenges would remain.  It said there was no evidence that the lack of structure placed Laurent’s education at serious risk because mother recognized his difficulty in school and successfully advocated for his educational needs.  Laurent was no longer obese, and mother had started preparing nutritious meals.  No findings supported the conclusion that mother’s failure to monitor Laurent’s nebulizer or her using tobacco in Laurent’s presence caused him significant harm.  While Laurent’s wish to live in New Hampshire was entitled to some weight, the trial court itself had found Laurent’s preference was not a mature choice.

ADOPTION OF QUAN, 470 Mass. 1013 (2014). [Full Opinion]
Summary by Ann Balmelli O’Connor, Attorney-in-Charge, CAFL Appellate Unit

Nature of the Case and Holding:  The Worcester Juvenile Court (Leary, J) vacated termination of parental rights decrees that relied upon stipulations to judgment because the trial court found the stipulations were unknowing and involuntary.  DCF and one child appealed.  In an unpublished decision (2014-P-0487), the Appeals Court vacated the trial court’s orders.  The SJC granted the parents’ petitions for further review and, because neither DCF nor the child showed that Judge Leary abused his discretion in vacating the decrees, the SJC affirmed those orders.

Disposition:  The SJC remanded the case to the trial court for proceedings on DCF’s petitions to terminate parental rights.  The SJC noted the “very significant, time sensitive interests of Quan and his biological parents” and encouraged the trial court to conclude the proceedings quickly.

Facts and Analysis:  On the date set for trial, both parents stipulated to an agreement that  termination of parental rights decrees would enter (under G.L. c. 119, § 26), but they would retain the right to put forth plans for the child at a subsequent so-called “best interests” hearing.  Prior to that hearing, the Appeals Court issued Adoption of Malik, 84 Mass. App. Ct. 436 (2012).  There, the Appeals Court held that a parent who stipulates to entry of a termination decree does, upon entry of that decree, lose standing to be heard in a “best interests hearing” and cannot appeal from an order in that “best interests hearing.”  Because Quan’s parents stipulated to entry of the decrees with the understanding that they would have standing in the trial court to participate in the “best interests hearing” and in the Appeals Court in any appeal resulting from that hearing, they moved for relief from judgment under Mass.R.Civ.P. 60(b).

The trial court deemed the parents’ stipulations unknowing and involuntary and vacated the decrees.  Judge Leary explained that, relying in part on two unpublished decisions of the Appeals Court that preceded Malik, the parents, their lawyers, and the court believed when the stipulations were made that the parents retained the right to be heard at the “best interests hearing” and in any appeal resulting therefrom.[1]  Judge Leary deemed Malik a change in law that warranted relief from judgment under Rule 60(b)(1).

[1] The SJC did not mention in its decision that the trial court found that DCF counsel – who drafted the stipulations the parents signed – also held this belief.

L.L. v. COMMONWEALTH, 470 Mass. 169, 185, n.27 (2014). [Full Opinion]
Case Note by Andy Cohen, Director of CAFL Appellate Panel

On December 5, 2014, the SJC articulated a new abuse of discretion standard (or, at least, a new definition of abuse of discretion) in a footnote to a SORB case.  Here is footnote 27 in its entirety:

In discussing the abuse of discretion standard in Ronald R., 450 Mass. at 267, the court stated: “In order for the juvenile to sustain an abuse of discretion claim, he must demonstrate that ’no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.’  Commonwealth v. Ira I., 439 Mass. 805, 809 (2003), quoting Commonwealth v. Bys, 370 Mass. 350, 361 (1976).”  See Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 502 (1920). As the dates of the cases just cited suggest, this articulation of the abuse of discretion standard of review has enjoyed a long career in our jurisprudence, but, we conclude, it has “earned its retirement.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).  An appellate court’s review of a trial judge’s decision for abuse of discretion must give great deference to the judge’s exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result.  See Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986).  But the “no conscientious judge” standard is so deferential that, if actually applied, an abuse of discretion would be as rare as flying pigs.  When an appellate court concludes that a judge abused his or her discretion, the court is not, in fact, finding that the judge was not conscientious or, for that matter, not intelligent or honest.  Borrowing from other courts, we think it more accurate to say that a judge’s discretionary decision constitutes an abuse of discretion where we conclude the judge made “a clear error of judgment in weighing” the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives.  See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168-169 (2d Cir. 2001); Adoption of Mariano, 77 Mass. App. Ct. 656, 660 (2010).

The citation to Adoption of Mariano at the end means that this articulation of the abuse of discretion standard applies to child welfare appeals, too.  The abuse of discretion standard applies to many aspects of our practice, including appellate review of:

• Most “best interests” determinations
• The trial judge’s choice of disposition under c. 119, § 26(b) (after a determination that the child is in need of care and protection)
• The trial judge’s decision whether to grant a continuance
• The trial judge’s decision whether to grant post-termination and post-adoption visitation
• The trial judge’s decision as to the type and amount of post-termination and post-adoption visitation
• The trial judge’s decision whether to grant a motion for new trial or for relief from judgment

Historically, our challenges to discretionary trial court decisions have rarely been successful.  Going forward, L.L. should be the first case you cite when referring to an appellate court’s review of a trial court’s discretionary decision.

CARE AND PROTECTION OF JAMISON, 467 Mass. 269 (2014) [Full Opinion]

Lexis Summary:  The SJC concluded that the Juvenile Court has jurisdiction to consider petitions for sibling visitation pursuant to G. L. c. 119, § 26B (b), where the petitioning child is in State custody and his or her siblings are wards subject to guardianship established in the Probate and Family Court. [276-280]

A Juvenile Court judge, in granting a petition, pursuant to G. L. c. 119, § 26B (b), of a child in State custody to visit his two siblings, who were wards in the custody of legal guardians who objected to visitation, did not err as a matter of law in declining to apply to the guardians’ views the presumption of validity afforded parental judgments as to the best interests of their children with respect to grandparent visitation [280-284]; however, because further evidence was needed to determine whether visitation was in the best interests of all three children, and not just the petitioning child, this court remanded the matter to the Juvenile Court, so that psychological evaluations of the siblings as necessary and appropriate to an assessment of the impact upon them of the requested visitation could be performed and expert evidence in that regard could be available to the judge, along with other evidence, when determining whether the requested visitation is in each of the siblings’ best interests [284-290].

CARE AND PROTECTION OF YETTA, 84 Mass. App. Ct. 691 (2014) [Full Opinion]

Lexis Summary:  Discussion of the standard of review applicable to a decision on a petition for the care and protection of a child. [695-696]

At a care and protection proceeding, the judge’s findings were insufficient to support a conclusion of parental unfitness, where the parents’ lax supervision of their children was confined to several isolated incidents that failed to demonstrate the parents’ inability to provide minimally acceptable care, and where the finding that one child’s unsupported allegations of sexual abuse by the father were the result of a dysfunctional family was in conflict with other findings. [696-698]

ADOPTION OF MALIK, 84 Mass. App. Ct. 436 (2013) [Full Opinion]
Case Summary by Jaime Prince, Staff Attorney, CAFL Administration 

The Appeals Court held that when the court enters a decree terminating parental rights upon stipulation of the parties, a parent has no standing to participate in a subsequent proceeding related to the permanent plan for the child, even when the parent attempted to reserve that right in the stipulation.
Facts:  Malik’s mother and father stipulated to their unfitness and the termination of their parental rights.  As part of the stipulation, the mother attempted to “reserve her right” to participate in the “best interests” hearing concerning the permanent plan for Malik. After the termination decrees entered, the court held a hearing to decide which of the two proposed plans was in Malik’s best interests: DCF’s plan of adoption by the foster parents, or guardianship by the maternal grandparents. The mother participated in the hearing. The juvenile court found that the adoption plan proposed by DCF would be in Malik’s best interests and the mother appealed.
Discussion:   The Appeals Court held that the mother did not have standing to appeal the decision of the juvenile court because a decree terminating her parental rights had already issued. “Following termination of parental rights, a biological parent has no right ‘to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child’” (Citing G. L. c. 119, § 26, and G. L. c. 210, § 3)  “Accordingly, once a decree enters terminating parental rights, the parent whose rights have been terminated is without standing to determine the child’s future.” (Citations omitted.)
The mother argued that it was error for the termination decree to enter before the judge evaluated the competing plans and made a determination as to which plan was in Malik’s best interests.  However, this is exactly what was provided for in the stipulation. The stipulation stated that the court “shall enter a decree forthwith that adjudicates the Child in need of care and protection, commits him to the custody of the Department of Children and Families and dispenses with the requirement of notice to, or the consent of, Mother to the Child’s adoption, custody, guardianship or other disposition.”  The stipulation further stated that “Mother expressly and voluntarily waives her right to appeal from the final judgment or decree entered pursuant to this Stipulation for Judgment.”
The Appeals Court concluded that once a decree entered terminating the mother’s parental rights, the mother no longer had a right to participate in the proceedings or to challenge the judge’s decision regarding Malik’s adoption plan.  The Appeals Court noted that the judge had the discretion to allow the mother to participate, but the mother’s reservation of her “right” to participate did not legally give her a right to participate or to appeal the decision.  At most, it had the effect of assuring the judge’s consideration of the mother’s proposed plan for Malik.

ADOPTIVE COUPLE v. BABY GIRL, et. al., 570 U.S. ____ (2013) [Full Opinion]
Case Summary by Mimi Wong, Staff Attorney, Boston CAFL Office

The Supreme Court of the United States reversed and remanded a South Carolina State Supreme Court decision concerning the Indian Child Welfare Act.  The South Carolina State Supreme Court concluded that ICWA’s heightened evidentiary standard (proof beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child) applied to the proceeding and barred termination of the father’s parental rights.  The State Supreme Court also held that had there been sufficient evidence to terminate the father’s rights, ICWA’s adoption-placement preferences would have applied.  The U.S. Supreme Court reversed, holding that ICWA did not apply because the father had abandoned the child before her birth and never had physical or legal custody of her.
Alito delivered the opinion of the Court with Roberts, Kennedy, Thomas and Breyer joining.  Thomas and Breyer filed concurring opinions.  Scalia filed a dissenting opinion.  Sotomayor filed a dissenting opinion which Ginsburg and Kagan joined and Scalia joined in part.

Facts:

The Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) was passed by Congress to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.  The Act requires notice to the tribe, establishes placement preferences should an adoption take place, and imposes a  higher standard of beyond a reasonable doubt in termination of parental rights cases.

Father is a member of the Cherokee Nation.  While Mother was pregnant with Father’s child, their relationship ended and Father agreed to relinquish his parental rights via text message.  Subsequently, Mother decided to give up the child for adoption but did not inform Father.  For the duration of the pregnancy and the first four months after Baby Girl’s birth, Father provided no financial assistance to Mother or Baby Girl.  About four months after Baby Girl’s birth, the “Adoptive Couple” served Father with notice of the pending adoption.  In the adoption proceedings, Father sought custody and stated he did not consent to the adoption.  Under South Carolina state law, Father’s consent to the adoption would not have been required.  At trial, the South Carolina Family Court denied Adoptive Couple’s adoption petition and awarded custody to Father.  The State Supreme Court affirmed concluding that the ICWA applied because the child custody proceeding related to an Indian child; that Father was a “parent” under the ICWA; that 25 U.S.C. §§1912(d) and (f) barred the termination of his parental rights; and had his rights been terminated, §1915(a)’s adoption-placement preferences would have applied.  There was no question as to Father’s fitness since all parties agreed he was a fit parent.

Discussion:

25 U.S.C. §1912(f) bars involuntary termination of a parent’s rights in the absence of a heightened showing (beyond a reasonable doubt) that serious harm to the Indian child is likely to result from the parent’s continued custody of the child.  In addition, before terminating parental rights, 25 U.S.C. § 1912(d) requires proof that “active efforts” were made to “provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family.”

Under §1903, Father has to establish paternity in order for the ICWA to apply since he is an unwed father.  The Court, however, does not reach the issue of whether Father is a “parent” under the ICWA.  Instead, the Court assumes for the sake of argument that he is a “parent” and holds that neither §1912(f) nor §1912(d) bar the termination of his parental rights.

The Court holds that §1912(f) does not apply in cases where the Indian parent never had custody of the Indian child since the adjective “continued” plainly refers to a pre-existing state and therefore “continued custody” refers to custody that a parent already has or at least had at some point in the past.  The Court summarizes where the adoption of an Indian child is voluntarily and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s primary goal of preventing the unwarranted removal of Indian children and the dissolution of Indian families is not implicated.

The Court further holds that §1912(d)’s active efforts requirement is inapplicable when the parent abandoned the Indian child before birth and never had custody of the child.  The Court reasons that the term “breakup” refers to the discontinuance of a relationship.  As such, when an Indian parent abandons an Indian child prior to birth and the child has never been in the Indian parent’s legal or physical custody, there is no relationship that would be discontinued.  As a result, §1912(d) is inapplicable.

The Court also clarifies that §1915(a) which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family from adopting an Indian child when no other eligible candidates have sought to adopt the child.

Thomas concurrence:

Thomas joins in the Court’s opinion in full but writes separately.  Thomas states each party in the case has put forth a plausible interpretation of the relevant sections of the ICWA, but because the majority’s decision avoids significant constitutional problems, he joins the majority.  Thomas believes that there is no constitutional basis for Congress’ assertion of authority over these custody proceedings and that the ICWA is unconstitutional.

Breyer concurrence:

Breyer joins the Court’s opinion with several observations.  He notes that this case does not involve a father with visitation rights, or a father who has paid all of his child support obligations, or circumstances where a father was deceived about the existence of the child, or a father who was prevented from supporting his child, and that the holding of this case does not decide those situations.

Breyer also poses the question of whether §1915(a) and (c) allows an absentee father to re-enter the special statutory order of preference with support from the tribe and therefore allow Father to adopt his own child post-termination.

Scalia dissent:

Scalia joins in Sotomayor’s dissent except as to one detail.  Scalia rejects the conclusion that the phrase in the statute “continued custody” must refer to custody in the past.  Scalia reasons that “continued” may refer to custody in the future.  Scalia also writes that the majority’s opinion “needlessly demeans the rights of parenthood.”

Sotomayor dissent:

Sotomayor writes that under the majority view, the exclusion of noncustodial biological fathers from the ICWA’s substantive protections misapprehends the ICWA’s structure and scope.  ICWA’s purpose is to provide greater protection for the familial bonds between Indian parents and their children.  By providing notice, counsel and access to relevant documents the ICWA ensures a biological father’s meaningful participation in an adoption proceeding where the termination of his parental rights is at issue.  Sotomayor points out those protections are consonant with the principle that the biological bond between parent and child is meaningful citing Santosky v. Kramer, 455 U.S. 745 and Lehr v. Robertson, 463 U.S. 248.  Sotomayor states that nothing in the text of §1912(d) excludes blood relationship from the category of familial relationships that the provision aims to save from discontinuance.  The necessary conclusion is that the word “custody” does not strictly denote a state-recognized custodial relationship.  The phrase “continued custody” is most sensibly read to refer generally to the continuation of the parent-child relationship that an ICWA parent has with his or her child which would include a biological relationship.

Sotomayor also points out the ICWA protects not only Indian parents’ interests but also those of Indian tribes.  A tribe’s interest in its next generation of citizens is adversely affected by the placement of Indian children in homes with no connection to the tribe.  As such, the ICWA’s broad definitions of parent and termination of parental rights should be honored.

Practice Tip

The majority opinion holds that certain particular provisions of ICWA do not apply under the facts of the case.  It is important to note that this does not mean ICWA can be ignored completely in similar factual situations.  Other provisions of ICWA would still apply (e.g., notice to parent and tribe, right of tribe to intervene, placement preferences, etc.).

Also, counsel may wish to argue that this holding applies narrowly to the facts of this case: (i.e., where a non-Indian custodial mother gives up her child for adoption and where the biological Indian father has abandoned the child before her birth).  Breyer’s concurrence (he makes the 5th Justice for the majority) is useful in arguing the holding should apply narrowly.

If seeking the protections of ICWA on behalf of an unmarried father, it will be important to establish paternity as soon as possible in the case.  It also will be important to gather as many facts as possible about the father’s pre-existing relationship with the child in order to distinguish the case from this decision.

Finally, as time passes, it will be important to conduct legal research as state courts around the country likely will be asked to apply the decision in other cases.  Legal journals and other sources of expertise on ICWA may provide additional guidance in the future.

ADOPTION OF CECILY, 83 Mass. App. Ct. 719 (2013) [Full Opinion]
Case Summary by Mimi Wong, Staff Attorney, Boston CAFL Office

The Appeals Court affirmed the trial court’s decree terminating the mother’s parental rights and dispensing with her consent to adoption.  The Court found the decrees were based on sufficient evidence, including a subsidiary finding that the mother was present when the father shook Cecily.  The Court found that the trial judge did not err when it admitted grand jury testimony for its full substantive value, or when it drew a negative inference against the mother when she did not testify.  Finally, the Court upheld the trial judge’s denial of posttermination visits.

Facts:
Cecily’s father was the sole caretaker for Cecily while her mother worked all day during the week.   The parents took Cecily to the hospital after she was fussy and did not look well.  She was examined at the hospital and it was determined Cecily had suffered an acute subdural hematoma and edema of the brain.  Cecily was diagnosed with retinal hemorrhages in both eyes, rib fractures that were in various states of healing, a broken arm and a broken leg.  Both parents denied inflicting or witnessing any trauma.  DCF obtained emergency custody of Cecily.
The Lynn police began a criminal investigation.  Cecily’s maternal grandmother voluntarily went to the police and gave a statement three days after Cecily was admitted to the hospital.  The maternal grandmother later testified before a grand jury that she had seen the father, with the mother present, violently shake Cecily on two occasions, just weeks before she was hospitalized.

At trial, several of Cecily’s treating physicians testified as witnesses and the unanimous opinion was that Cecily’s injuries were inflicted and not accidental.  Three experts retained by the parents, none of whom examined Cecily, contended the injuries Cecily suffered were the result of undiagnosed conditions.  The judge credited the testimony of Cecily’s treating doctors.  The maternal grandmother recanted her statements to the Lynn police and to the grand jury at trial.  She claimed she had never seen the father shake Cecily.  Over the mother’s objection, the judge allowed DCF to introduce the maternal grandmother’s grand jury testimony for its full probative value.

The judge terminated the parental rights of both parents.  The judge found that the Mother had failed to protect Cecily, and she lacked insight needed to protect her from future harm.  The trial judge declined to order post termination contact between Cecily and her mother, explicitly finding that there was not bond or significant attachment between the two.

Discussion:
Grand jury testimony:  As a general matter, the prior inconsistent statement of a witness may be introduced only for purposes of impeachment.  Commonwealth v. Bookman, 386 Mass. 657, 665 (1982).  Prior inconsistent testimony, however, by a witness before a grand jury, under certain conditions, can be admitted as substantive evidence.  Commonwealth v. Daye, 393 Mass. 55, 71 (1984). Three general conditions must be met before the use of such testimony: (1) there must exist an opportunity for effective cross-examination of the witness at trial; (2) the witness’ statement must clearly be that of the witness, rather than the interrogator, and be free from coercion; and (3) some corroborative evidence must be presented.  Commonwealth v. Sineiro, 432 Mass. 735. 741 (2000).  In the instant case, all of these conditions were met as to the grandmother’s testimony before the grand jury and at trial. The Appeals Court, therefore, found the judge did not err in admitting portions of the grand jury testimony for their probative value.

The Mother claims on appeal that the judge erred in admitting the entire transcript of the grandmother’s statements to the grand jury.  The Appeals Court, without deciding whether the judge erred in admitting the entire grand jury testimony, found that any error was harmless because the testimony was merely cumulative of properly admitted evidence.

The Appeals Court rejected the mother’s claim that the judge abused his discretion in denying her motion to recall the maternal grandmother as a witness to testify that she had lied to the grand jury.  The Court found that the mother’s attorney had ample opportunity to question the maternal grandmother about her grand jury testimony.

Sufficiency of the evidence: The Appeals Court held the judge’s findings were supported by the record.  There was overwhelming evidence that the father caused the injuries to the child and Mother failed to acknowledge the evidence and failed to separate from Cecily’s abuser.
Adverse inference drawn by the judge: The Mother acknowledges the judge was free to draw a negative inference from her failure to testify, but argues that the judge gave it undue weight given that, at the time of trial, criminal charges were pending against her.  The Appeals Court rejected this argument, noting that the inference was one of several factors considered by the judge.

Posttermination visitation:  The Appeals Court affirmed the judge’s finding that there was no bond between Mother and Cecily and that posttermination visitation was not in the best interest of Cecily.

ADOPTION OF NORBERT, 83 Mass. App. Ct. 542 (2013) [Full Opinion]
Case Summary by Mimi Wong, Staff Attorney, Boston CAFL Office

The Appeals Court affirmed the trial court’s decrees terminating mother’s parental rights as to her son, Norbert, and her daughter, Monica, and dispensing with her consent to their adoption.  Norbert and Monica’s mother claimed on appeal that the trial judge was biased and should have recused himself from hearing the trial.  She based her claim on comments the judge made at a pretrial status conference, and the fact that he filed a 51A in the case.  She also argued that her due process rights were violated by the judge’s excessive questioning of witnesses at trial.  Justice Hanlon wrote a dissent.  She agreed with the majority on the recusal issue, but said that the judge’s questioning was so aggressive that it precluded the mother from getting a fair trial.

Facts:
DCF filed petitions alleging Norbert and Monica were in need of care and protection on November 14, 2008 and June 30, 2010.  At a status conference on September 16, 2009, DCF removed Norbert from mother’s custody but had not initiated proceedings to remove Monica, who was four months old.  The judge expressed frustration over the fact that DCF was seeking to remove one child but not the other.  At the conclusion of the hearing, the judge filed a report under G.L. c. 119. § 51A against the department based on the fact that the “department’s clinical approach to the case was confusing.”  The department subsequently removed Monica from her mother’s care but she was returned soon after.  Within a few months, another §51A report was filed and the department regained custody.  The children were never returned to the mother after that point.

The mother did not file a motion requesting that the judge recuse himself prior to trial.  The children’s father filed a motion seeking recusal and the motion was denied.  The mother claimed to have joined the father’s motion to recuse but nothing in the record supported her claim.  During the trial, the judge assumed an active role and extensively questioned all of the witnesses including mother.  The judge asked over 1,000 questions as compared to the approximately 725 questions asked by all counsel.  The mother’s attorney did not object to the judge’s conduct.

After six nonconsecutive days of trial and consideration of numerous exhibits and reports, the judge issued decrees committing the children to the permanent custody of DCF and terminated mother’s parental rights.  The judge found mother suffered from chronic untreated mental health issues, frequently exposed them to domestic violence and lacked insight into her parenting deficiencies.  The mother also missed numerous visits with her children and at one point, did not see Norbert for eight months.  The judge also found that she was not receptive to the services offered by DCF and often refused to work with social workers assigned to her case.  Post-adoption visitation was not ordered because there was no evidence that the children enjoyed visiting with the mother or would receive any benefit from contact with her.

Discussion:
Recusal:  The mother argued that the judge should have recused himself from hearing the trial after he “expressed frustration” that DCF was seeking to remove one child and not the other.  The judge stated that DCF’s investigation in the case was “beyond comprehension,” and filed a 51A against DCF.  The mother argued that the judge showed he was biased against her and it was “inappropriate” for him to hear the case.  The Appeals Court, citingDemoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 549 (1998), held that the mother had an affirmative obligation to seek recusal “at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.”  The mother was aware of the basis of her claim almost two years before trial and failed to do so.  Mother also failed to raise the issue at trial.  Issues that are not raised by a losing party at trial are not addressed on appeal, absent exceptional circumstances.  Adoption of Mary, 414 Mass. 705, 712 (1993).  The Appeals Court supported the children’s assertion that the claim was waived but due to the serious nature of the case, coupled with the fact that due process governs these proceeding, the Court found it appropriate to consider the issue even though the claim is untimely.

After reviewing the entire record, the Appeals Court concluded that recusal was not warranted on the basis of the judge’s conduct at the September 16, 2009 status conference.  The Court acknowledged that some of the judge’s comments were excessively critical and inappropriate.  It, however, was not persuaded that the record disclosed any bias or prejudice against the mother.  The Appeals Court found that the judge’s “ire was directed at the department and not toward either parent.”  Further, the Appeals Court found that the mother failed to show any alleged bias stemmed from an extrajudicial source.

Judge’s Questioning of the Witnesses:  The Appeals Court held that a judge, who in these types of cases is the fact finder, may question witnesses in order to obtain clarification or eliminate confusion.  The judge “must avoid the appearance of partisanship and the rule is one of reason.”  Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996).  Although the Appeals Court agreed with mother that the judge’s questioning went beyond clarification and delved into substantive areas that would have best been left to the attorneys, it found that mother was not denied due process.  The Appeals Court noted the lack of an objection by mother’s counsel as to the judge’s conduct as particularly significant.  Furthermore, the mother was not prevented from presenting relevant evidence and the judge did not solicit any inadmissible evidence.  The Appeals Court concluded that the judge’s behavior cannot be deemed to have deprived the mother of impartial justice.

Although the Appeals Court did not condone the conduct of the trial judge, it affirmed the decrees because the error was harmless.  The Appeals Court found there was ample support for the judge’s detailed findings in the record and the outcome of the trial would not have been different.

Dissent:  Hanlon, J
Hanlon wrote in her dissent that the questions posed by the judge were not designed to seek information.  On the contrary, they were very much like an effective cross-examination.  Hanlon discerned a tone in the judge’s questioning that can be described fairly as “aggressive.”  Hanlon further articulated that failure to object to the judge’s questions cannot carry the same implication of acquiescence as a failure to object to the questions of opposing counsel, citing Commonwealth v. Ragonesi, 22 Mass. App. Ct. 320, 322 n.4 (1986).  Despite the mother’s shortcomings, she was entitled to a fair trial and Hanlon did not believe she received one given the attorneys were given little opportunity to participate and the judge repeatedly interrupted each examination.  Justice Hanlon could not agree to “uphold the termination of her parental rights simply on the ground that a fair trial might produce the same result.”
PRACTICE TIP:  1) Bias and Recusal:  When you have reason to question a judge’s impartiality and bias, file a motion for recusal.  Raise this issue as soon as you discover facts demonstrating the basis for such disqualification.

2) Judge’s Questioning Witnesses: When there is questionable conduct, even by the judge, you must always make an objection politely and firmly to preserve the record.  This includes when, as Justice Hanlon stated, the judge’s questions look more like “effective cross-examination by a skillful adversary,” than simple questions “designed to seek information.”  The majority opinion was clear that it did not condone judge’s questioning that goes “beyond clarification and delved into substantive areas that would have best been left to the attorneys to develop.”

ADOPTION OF ZANDER, 83 Mass. App. Ct. 363 (2013) [Full Opinion]
Case Summary by Mimi Wong, Staff Attorney, Boston CAFL Office

The Appeals Court remanded solely for the trial judge to provide a formal schedule for posttermination and postadoption sibling visits.  The Court affirmed the decrees dealing with the adoption plan and determinations concerning visits for the youngest child and visits between the mother and the three oldest children.

Facts:
Marjorie, Amy, Zander and Sam are siblings.  Marjorie and Zander were adopted by the biological mother’s sister and her husband.  Amy was adopted by the Fisher family and Sam was adopted by the Williams family.

Sam’s biological father proposed his ex-girlfriend’s daughter, Patricia Gray, to adopt Sam.  At trial, a licensed independent clinical social worker gave extensive testimony about her preliminary home study.  The trial concluded prior to the completion of the home study of Ms. Gray.  Neither biological parent requested a continuance of the trial or objected to the conclusion of the trial before the completion of the home study.  The trial judge had concerns about Ms. Gray adopting Sam due to the close relationship between Ms. Gray and the biological father.  The trial judge specifically prohibited any visitation between Sam and the biological father and the judge doubted Ms. Gray’s ability to comply with this provision.  The trial judge accepted DCF’s plan for the Williams family to adopt Sam.

The trial judge declined to order postadoption visits between the biological parents and Sam after finding that neither the mother nor the father had developed a significant attachment with the child.  The trial judge determined that the father was “unfit to interact with” Sam due to his “troublesome behavior.”  With respect to mother, the judge found the adoptive family to be sincere in their expressed desire to allow visits consistent with Sam’s best interest and found it unnecessary to issue a visitation schedule.

The trial judge ordered six scheduled visits per year between the oldest three children and the mother, noting that the adoptive parents may arrange for additional visits if they find them to be in their best interest.  The trial judge refrained from scheduling court-ordered sibling posttermination and postadoption visits, but “left the timing and frequency of such visits to the discretion of the adoptive parents.”

Discussion:
The Appeals Court held the judge had properly considered the best interests of Sam in not approving the father’s adoption plan and did not abuse his discretion in arriving at the determination of visitation in regards to Sam.  It further affirmed the trial judge’s order of six scheduled visits per year stating the judge appropriately balanced the bond mother had with her children and the fact that a more extensive visitation schedule could interfere with the relationship between the adoptive parents and the children.

The Appeals Court reiterated that a judge “must decide whether and, if so, how sibling visitation is to occur. . .” including “the schedule and conditions of visitation.”

PRACTICE TIP:   When there is an adoption dealing with siblings who are separated, either request a written visitation schedule or file a Proposed Schedule of Posttermination and Postadoption Sibling Visits.  If there is a competing adoption plan and a pending home study, it is best practice to request a continuance of the trial to allow for the homestudy to be completed.