In re Adoption Ted

ADOPTION OF TED

(and three companion cases¹).

14-P-746

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

March 9, 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

This case involves the welfare of one boy and three girls to whom we shall refer as Ted (born August, 2003), Sara (born August, 2006), Lisa (born August, 2010), and Judy (born June, 2012). After trial, a Juvenile Court judge issued decrees that found the children in need of care and protection, found the mother of all four children and the father of the three youngest children unfit,² granted permanent custody to the Department of Children and Families (DCF), and terminated the mother's and father's parental rights. After the trial judge denied their motions seeking relief from judgment and for a new trial, the mother and father appealed the denial of those motions and the underlying decrees, and Ted appealed the absence of mandated parental visitation rights. In these consolidated appeals, weremand with regard to Ted's visitation rights but otherwise affirm.

1. Issues related to the mother. Unfitness and termination. The judge made detailed and comprehensive factual findings. Those findings well document the mother's longstanding mental health problems and drug abuse (including her addiction to painkillers), as well as the negative effect that those issues had on her ability to serve as a parent to the children. For example, when Lisa was born with an opiate addiction that required medical intervention, the mother refused to consent to the newborn's being treated.³ Little would be served by repeating further details of the judge's findings regarding the mother's unfitness.

With only extremely limited exceptions, the parents do not challenge the judge's subsidiary findings as clearly erroneous. See Adoption of Paula, 420 Mass. 716, 729 (1995) ("While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous") (citation omitted). To the extent that the parents assert any errors in the subsidiary facts found, these involve minor discrepancies that are "not central to theultimate conclusion of unfitness." Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).⁴

The parents also argue that the findings as a whole fail to supply clear and convincing evidence of the mother's unfitness. In support of that argument, they point to particular findings or evidence favorable to the mother. Certainly, as the judge recognized, the mother did exhibit some positive parental qualities. However, in the end, the judge determined that these qualities were significantly outweighed by her profound shortcomings. The inquiry is whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child."⁵ Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).⁶ That standard was met here by clear and convincing evidence.

Of course, as we have often observed, "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). Neither parent has argued that the judge erred in terminating their rights even if they were properly deemed unfit, and in any event the judge's decision to terminate was well supported. In this regard, we note that the three younger children live together with a foster parent who plans to adopt them, and Ted lives with his paternal grandmother (the mother of his deceased biological father) who plans on adopting him. All four children -- each of whom has special needs -- are now thriving. Ted regularly visits with his siblings, and the judge ordered such visitation to continue.

Visitation between the mother and Ted. The judge found that there was no significant bond between the mother and the three youngest children. However, he did find such a bond between the mother and Ted. Nevertheless, based on "the impact of Mother and Father's behavior on [Ted]," he ultimately decided to leave visitation to "the discretion of [Ted's] adoptive parent." For well over four years, Ted has lived with his paternal grandmother. Visitations between the mother and Ted have continued, and the paternal grandmother at trial expressed her ongoing -- if somewhat equivocal -- support for them to continue.

The only party to challenge the judge's visitation ruling on appeal is Ted, who favors both termination of the mother's parental rights and mandated posttermination visitation with her. Interpreting the judge's ruling as ordering postadoption visitation, Ted argues that the judge nevertheless should not have left all details of any such visits to the adoptive parent (presumably the paternal grandmother). As an initial matter, we disagree with Ted's interpretation of the judge's ruling. To be sure, that ruling evinces a hope that some visitation will continue even after Ted has been adopted so long as the benefits to him outweigh any recurring negative effects. However, in our view, the judge plainly intended to leave the balancing of such considerations (not merely the details of any visits) to the adoptive parent. Even interpreting the judge's visitation order in this manner, we discern no abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 63-64 (2011). Compare Adoption of Rico, 453 Mass. 749, 755-756 (2009).⁷

The mother's motion for new trial. The mother's primary argument on appeal is that she was entitled to relief from judgment and a new trial based on alleged ineffective assistance of her trial counsel.⁸ See generally Care & Protection of Stephen, 401 Mass. 144, 149 (1987) (applying to care and protection cases the ineffectiveness standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 [1974]). Relying on the trial record and a detailed affidavit that she supplied, the mother claims that her counsel was ineffective in multiple respects. As but one example, she asserts that he failed adequately to prepare her to be a witness. According to her, counsel's allegedly substandard performance was rooted in an undisclosed conflict of interest that he faced. Unbeknownst to the mother, her lawyer had applied for a position at DCF, and his application remained pending at the time of trial.⁹

The mother's trial counsel supplied a detailed affidavit that admitted the background facts regarding his applying to DCF for employment. However, that affidavit otherwise contested the mother's claims regarding his conduct (including those relatingto his pretrial preparations, trial performance, and interactions with his client). Given that there were facts in dispute,¹⁰ the judge pressed the mother and father whether they were seeking an evidentiary hearing on their motions for new trial. They declined that invitation and made it clear that they were content to have the motions decided based on the trial record and the conflicting posttrial affidavits. The judge proceeded to review the motions on that basis.

Having heard the mother's and father's extensive testimony at trial, the judge noted that he had already determined that they had provided "perjurious" testimony. He therefore rejected the factual claims they made in their posttrial affidavits in favor of trial counsel's "affidavit which credibly portrays his efforts to provide zealous representation to a difficult and unresponsive client." Quoting from Commonwealth v. Saferian, supra, the judge denied the mother's motion because he concluded that she "presented no credible evidence showing that her trial counsel's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer or that his performance likely deprived [her] of an otherwise available substantial ground of defen[c]e.'" With regard to the alleged conflict of interest, the judge concluded that "[a]t best thecircumstances present[ed] a potential conflict [of interest] requiring the moving party to establish prejudice." For this conclusion, the judge cited Commonwealth v. Agbanyo, 69 Mass. App. Ct. 841 (2007).

We agree that the analogy to Agbanyo is an appropriate one. In that case, a criminal defendant learned after trial that prior to trial, his counsel had been offered employment by the district attorney's office that was prosecuting him. We rejected the defendant's argument that this entitled him to a new trial without a showing of prejudice. In reaching that conclusion, we found "it implausible that counsel deliberately would turn in a weak performance when doing so would only demonstrate to her prospective colleagues that she was either unskilled or unethical." Id. at 849. The same observations apply in the current context. This conclusion is consistent with Care & Protection of Georgette, 439 Mass. 28, 33 & n.7 (2003), in which the court rejected an ineffective assistance claim based on an alleged conflict of interest because prejudice could not be shown.

Lest our views be misunderstood, we emphasize that we are not ruling that trial counsel correctly decided that disclosure of his potential conflict of interest was unwarranted. To the contrary, regardless of whether counsel satisfied his formal ethical responsibilities (a question we ultimately do notreach), we believe that any doubts whether to disclose here should have been resolved in favor of disclosure. See Commonwealth v....