In re Adoption Douglas, 14-P-1005

ADOPTION OF DOUGLAS

(and five companion cases¹).

14-P-1005

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

May 5, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother appeals from decrees of the Juvenile Court denying postadoption and posttermination visitation with all six of her children. The father (first father) of the two oldest children, Douglas and Tom, appeals from decrees of the Juvenile Court denying postadoption and posttermination visitation with his two children.² Douglas, Tom, Brian, and Mark (the four oldest children), also appeal from decrees of the Juvenile Court denying postadoption and posttermination visitation with their respective biological parents.³

Background. On January 15, 2009, the Department of Children and Families (department) filed a care and protection petition on behalf of the four oldest children, alleging neglect due to substance abuse and domestic violence by the mother and the second father.⁴ On March 31, 2011, the department filed a care and protection petition on behalf of the two youngest children; on May 24, 2012, that case was consolidated with the original petition involving the four oldest children.

On June 3, 2013, the first day of trial, the mother submitted a stipulation of judgment, acknowledging her current unfitness and agreeing to the termination of her parental rights as to each of her six children; included in the stipulation was a waiver of her right to trial and to appeal the decrees.⁵ The following day, June 4, 2013, the first father acknowledged by stipulation of judgment his unfitness to care for his two children and agreed to the termination of his parental rights;⁶included in the stipulation was a trial waiver, but he "retain[ed] the right to appeal any decision rendered as to the proposed plans of adoption for each child." He also submitted an affidavit attesting to his knowing, intelligent, and voluntary consent to the terms of the stipulation.

The trial then began on the issue of placement for the six children, along with the issue of postadoption and posttermination visitation between and among the parents and the children.⁷ On February 10, 2014, the judge issued findings of fact and conclusions of law. Based on his 449 findings of fact and the stipulation of each parent, along with testimonial and documentary evidence, the judge concluded that the mother and both fathers were unfit to care for the children; he issued decrees terminating the parental rights of each parent in the best interests of the children. The judge also approved the adoption plans submitted by the department.⁸

The judge also stated that "it has not been established by clear and convincing evidence" that it would be in the children's best interests for them to have visitation with any of the parents; he declined to order postadoption or posttermination visits between the parents and the children. In so doing, the judge acknowledged "that despite an apparent bond" between the mother and Douglas, further contact with the mother was not in Douglas's best interests, because, throughout the proceedings, the mother had "demonstrated an inability to comprehend and establish appropriate boundaries" with Douglas; the judge also concluded that none of the other children shared "any significant bond" with the mother. Finally, the judge concluded that none of the children shared a bond with his father.

Discussion. The mother. For the first time on appeal, the mother argues that trial counsel provided ineffective assistance when she failed to inform the judge, prior to the colloquy, that the mother's agreement to stipulate to unfitness and termination of parental rights was premised on the placement of all of the children with relatives (who are currently the preadoptive parents for Brian and Mark).⁹ See note 8, supra. She alsocontends that the judge erred in declining to order posttermination and postadoption visitation with any of her children because she shares a bond with each, and also because not all of the children had been placed in a preadoptive home.

The transcript of the judge's colloquy with the mother indicates that the mother knowingly and intelligently agreed to the entry of the stipulation of judgment, with no mention of any conditions. After entry of the mother's stipulation on June 3, 2013, the judge informed all present that the trial would proceed only to determine appropriate placements of the children; there was no objection or indication from the mother that the trial was unnecessary because all six children were being placed with a relative. The trial then continued over seven trial days, concluding on June 20, 2013, and, at least on this record there was never any such objection. As a result, because this "trial record provides an insufficient factual basis for appellate review" regarding the issue of ineffectiveassistance, the mother's claim is waived. Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

"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 named therein.'" Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013). "[T]he parent whose rights have been terminated is without standing to determine the child's future." Ibid. Here, the mother submitted a stipulation conceding her unfitness and agreeing to the termination of her parental rights; based on this record, there is no indication that in that stipulation the mother reserved a right to appeal any subsequent judgments entered.¹⁰ As a result, the appeal must be dismissed because the mother has no standing to pursue it.

The first father. The first father argues that he has standing to appeal the judge's refusal to order posttermination and postadoption visitation because the decrees terminating his parental rights were entered after the trial had concluded, and his stipulation included language preserving his right to appeal any decision based on the proposed adoption plans. He also contends that Douglas and Tom would benefit from havingcontinued contact with him, and that such visits likely would not occur without a court order.

The decrees of termination of the first father's parental rights were not the result of a contested adjudication, but rather, as noted, were agreed to in the stipulation of judgment he submitted on June 4, 2013. See id. at 438-439. The first father "expressly waived [his] rights to appeal the decree[s]" and forfeited his standing with regard to any determination as to the children's future. See id. at 439. Although the first father's stipulation to his unfitness includes a provision retaining "the right to appeal any decision rendered as to the proposed plans of adoption for each child" (emphasis added), he does not now contest the proposed adoption plans. He therefore does not have standing to pursue this appeal.

Oldest children. The four oldest children (hereinafter, children) argue that the judge erred in not ordering posttermination and postadoption visitation with their parents and that such denial of visitation was contrary to the evidence presented at trial. The judge's broad discretion to determine posttermination and postadoption visitation is "'grounded in the over-all best interests of the child[ren], based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent.'" Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004), quotingfrom Adoption of Vito, 431 Mass. 550, 562 (2000). It is clear from the judge's extensive findings that he carefully considered the relationship between each of these children and his respective parents. In fact, the judge acknowledged the existing bond between Douglas and the mother, but found that the mother continually failed to abide by appropriate boundaries with him. On this record, we cannot say that the judge erred. In addition, there was sufficient evidence presented for the judge to determine that there existed no significant bond between the mother and her remaining five children.

The judge found that there was no evidence of a significant relationship between the first father and the two oldest children. The first father's interaction with Douglas consisted of six sporadic visits between 2008 and the time of trial, all while the first father was incarcerated; the last visit was in July, 2012. Tom had visited with the first father at the prison on five occasions between the time of his birth (2003) and the time of trial; the last visit occurred in December, 2011. Where "there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption [or posttermination] contact would usually...