Adoption of Nate

868 N.E.2d 176, 69 Mass. App. Ct. 371, 2007 Mass. App. LEXIS 689
CourtMassachusetts Appeals Court
DecidedJune 20, 2007
DocketNo. 06-P-1912
StatusPublished
Cited by3 cases

This text of 868 N.E.2d 176 (Adoption of Nate) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of Nate, 868 N.E.2d 176, 69 Mass. App. Ct. 371, 2007 Mass. App. LEXIS 689 (Mass. Ct. App. 2007).

Opinion

Kafker, J.

Frustrated by the failure of the Department of Social Services (department) to identify a permanent placement for Nate, a troubled ten year old child, within one year after the termination of the mother’s parental rights, a Juvenile Court judge vacated the decree terminating the mother’s parental rights. The care and protection judgment, however, remained in place, and custody of the child remained with the department. The judge, in response to a motion by the department, then reconsid[372]*372ered his decision and reinstated the decree retroactive to the date of its original issuance. We conclude that the judge initially erred when he sought to resurrect the mother’s parental rights because of the failure of the department to secure a permanent placement for the child, but that the judge properly corrected his own error.

Background. On May 6, 2004, after four days of trial and the introduction of thirty-seven exhibits including eight supported reports of abuse and neglect, the mother signed a stipulation for judgment. After a colloquy with both parents, the Juvenile Court judge approved the stipulation and, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, a decree terminating the mother’s parental rights was entered.

The stipulation provided that “[t]he mother understands that by withdrawing her objections . . . the minor child will be adjudicated in need of care and protection and committed into the custody of the Department. . . and that her right to receive notice and to consent to the child’s adoption or guardianship is terminated and that the child is free to be adopted or placed under guardianship.” The stipulation also stated that “[t]he Department agrees that it shall make a good faith effort to locate an adoptive resource that would be open to some form of post-adoption contact, including visitation.” The mother was provided with four visits per year, which number could be increased or decreased by the department if the child was placed in a preadoptive home, the department changed its goals for the child, or the child’s therapist recommended a change. The agreement further provided that, when the child was placed in a pre-adoptive home, the parties would negotiate a formal open adoption agreement and that “[t]he Department [would] notify the parties ... in the event that the adoption plan approved by the court changes.”

Although the docket reflects that a permanency plan for adoption was approved by the judge, the child, who had significant behavioral issues requiring one-on-one attention, was placed in a residential treatment center. Despite the plan for adoption, the child remained in the residential placement throughout the course of the proceedings in the instant case.

On July 9, 2004, approximately two months after the decree entered, the mother filed a petition to become the child’s guar[373]*373dian. In response, the judge appointed a guardian ad litem to determine the mother’s suitability to be a guardian.2 In March, 2005, a second guardian ad litem, who had been appointed by the judge in December, 2004, filed her report regarding the mother. That report described the history of the mother’s neglect and abuse of her children,3 found some progress by the mother and her live-in boyfriend, and noted a variety of reservations regarding the mother’s capacity to parent.4 On April 5, 2005, the judge held a hearing with the mother, the department, and counsel for the child.5 The judge expressed frustration with the department for still not having a plan, and the department blamed the lack of progress on the mother’s interference. Nearly one year after the decree had entered, the child was still in the residential treatment center, and a preadoptive family had not been identified. The judge stated, “The Department hasn’t got a Plan, if they come up with a Plan that’s better than you then I’m giving the Department the Plan, if they don’t then I’m giving the child to you so long as you maintain sobriety.” The judge also strongly encouraged the child’s counsel to file a motion for relief from judgment.

The child’s counsel complied “somewhat reluctantly.” The child’s counsel’s motion for relief from judgment simply stated that, a year after the decree entered, there was no adoptive resource for the child and that this was not in the child’s best interests. On June 29, 2005, after another hearing, the judge, as noted above, with quite limited information concerning the mother’s fitness, vacated that part of the decree that terminated the mother’s parental rights, but left the care and protection judgment and custody of the child with the department. During that [374]*374hearing, the department’s attorney stated that the child was not in the preadoptive program at the residential treatment center.

The department filed a timely notice of appeal. On August 8, 2005, just before another hearing, the department also filed a motion for reconsideration seeking to reinstate the termination of the mother’s parental rights. Three more hearings were held, and at the last hearing on January 24, 2006, the judge allowed the motion for reconsideration and reinstated the decree retroactive to the date of its original issuance. As the judge explained, he “was primarily concerned that [Nate] was without a permanent placement . . . [and that he] also hoped (if no alternative placement was identified) that the petitioner would reassess the mother and perhaps place [Nate] with her.” The judge “recognize[d] that some of these concerns could have been handled in a permanency hearing but was concerned that compelling the petitioner to provide [the] mother with services was beyond the remedies available in a permanency hearing.” Nevertheless, upon reconsideration, the judge determined that “relief from judgment in the form of vacating the decree . . . was neither necessary nor justified as none of the grounds incorporated within rule 60(b) of the Rules of Civil Procedure[, 365 Mass. 828 (1974,)] are applicable.” The judge concluded that having accomplished the “important goals” of identifying a permanent placement for the child (his maternal aunt) and securing the department’s services for the mother as a client, “further review of the matter outside of the permanency hearing process is not deemed warranted.” The child did not appeal the decision allowing the motion for reconsideration. Rather, his counsel argued, as did the department, that the order allowing the motion for reconsideration should be affirmed. The mother appealed.

Discussion. The judge abused his discretion by his initial decision to vacate the decree terminating the mother’s parental rights. See Care & Protection of Georgette, 439 Mass. 28, 33 (2003). No argument was made to the judge, nor has any argument been made to this court, that the stipulation regarding the mother’s unfitness and the termination of her parental rights was not knowingly and voluntarily entered into by the mother. See generally Adoption of Thomas, 408 Mass. 446, 450 (1990) [375]*375(“For an expression of consent [to the termination of parental rights] to be effective, it must have been given voluntarily and on the basis of a full understanding of the facts necessary to the consent”). See Adoption of John, 53 Mass. App. Ct. 431, 434-435 (2001). The very limited information regarding the mother’s posttermination improvement was also certainly not enough to vacate the decree. Compare Adoption of Theodore, 36 Mass. App. Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
868 N.E.2d 176, 69 Mass. App. Ct. 371, 2007 Mass. App. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-nate-massappct-2007.