ADOPTION OF WILLA v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother has one daughter, Willa, with a man whom we shall call father 1, and two sons and another daughter, Adam, Michael, and Sara, with a man whom we shall call father 2. After a seven-day trial, a judge of the Juvenile Court terminated the mother's and father 1's rights to their respective children. (Father 2's rights to his children had previously been terminated.) The mother then filed a motion for a new trial, which was denied. She now appeals from both the decrees and the order denying her motion for a new trial.³ We affirm.

The decrees. The judge found the mother to be unfit partly because she found that the mother had exposed Willa to domestic violence between the mother and father 1, and all four children to domestic violence between her and father 2, and because she minimized the effects of the domestic violence on the children. The judge concluded that “[a]ll four children have been witness to domestic violence perpetrated against Mother by [father 2],” and that “Mother minimizes the violence and abuse that she has suffered at the hands of [father 2], and does not acknowledge the effect of witnessing domestic violence on her children.” Many of the judge's findings of fact regarding the domestic violence were consistent with statements made by the children to various social workers and court investigators, which the judge admitted only to show the children's state of mind. The mother argues that the judge improperly used this state of mind evidence as substantive evidence of the children's exposure to domestic violence.

We disagree. The judge stated that she was using the children's hearsay statements only to show their state of mind, and there is no reason to doubt her. There was substantive evidence that the children had been present when domestic violence occurred between the mother and father 2. Specifically, the mother testified to an incident in which father 2 pushed her into a wall hard enough to create an indentation. She and father 2 exchanged “loud words” during this altercation. According to the mother, Willa “was present” at the time, and the other three children were in the home, although she knew not specifically where they were. Given the loud words and the amount of force that would have been required to create an indentation in the wall, the judge was warranted in concluding that all four children would have at least heard this incident of domestic violence as it was happening, and hence it supports the finding that they “witnessed” it.⁴ There was also evidence that, at approximately 5:30 a.m. the next morning, father 2 forced open the door to the house, which the mother had barricaded with a chair, sufficiently forcefully that it caused the top hinge to snap off, which the judge also could have concluded was sufficiently loud for the children to have heard it.

The mother also argues that the judge made several erroneous findings regarding other alleged parenting deficiencies. First, she argues that the judge improperly faulted her for not having stable housing, even though she had been living in a particular two-bedroom, two-bathroom trailer home for the seven months before trial. But she does not dispute the judge's findings that she has been “evicted more than four times since 2010” and that she expressed a plan to move again. This supports the judge's conclusion that the mother had problems with housing stability. Second, the mother claims that the judge found that she had a problem with substance use even though her providers had long informed the Department of Children and Families (DCF) that she had not used substances in years, and her social worker testified that she had been sober for five years. But the judge found only that the mother had a history of substance use -- a fact that the mother does not contest -- not that that history was itself currently impacting her parenting. Nor did the judge ignore evidence that the mother had worked on this issue. She noted that the mother had successfully completed a substance abuse treatment program, provided negative drug screens, and was “consistent with her substance abuse treatment.” She also noted the social worker's testimony that the mother, to her knowledge, had been sober for five years. Third, the mother argues that the judge was not warranted in concluding that the mother had an anger problem. We disagree. There was evidence in the record that the mother slashed father 2's face with a knife and was abusive towards social workers in various ways with children present. In one incident she grabbed a social worker's arm, spat at her, and said, “I know what kind of car you bitches drive and you had better watch your backs out there.” During this incident she also called the social worker and two police officers “Nazi cunt bitches and fat pieces of shit.” In another incident, she called a different social worker a “stupid nigger.” The mother was also evicted from a hotel because of fights with other tenants and cursing at staff members. This evidence supports the judge's conclusion that the mother had an anger problem.

The mother next argues that the judge erred in finding that DCF's proposed adoption plans were in the children's best interests. At the time of trial, the two girls had been placed together in a preadoptive home, and the two boys had been placed together in a foster home. A potential adoptive home had been identified for the boys, but a home study had not been completed. The mother argues that the judge could not find the plan in the children's best interests because the home study had not been completed and because the adoption worker had not found a home where the children could be placed together. The judge expressly found that the adoption worker had attempted to find a home for all four children together but had been unable to do so. The mother's argument regarding the incomplete home study on the potential preadoptive home for the boys is incorrect as a matter of law. See Adoption of Stuart, 39 Mass. App. Ct. 380, 393 (1995) (adoption plan need not identify prospective adoptive parents or be “fully developed”).

Finally, the mother argues that the judge erred by not ordering sibling visitation apart from their two yearly visits with the mother, at which the children were all to attend. The mother did not raise this issue below, and it is therefore waived. See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005). In any event, the judge found that the children were visiting with each other twice per month and that the girls' preadoptive parents intended to maintain the girls' contact with the boys. In these circumstances, even though G. L. c. 119, § 29B, requires posttermination sibling visitation, the judge was not required to order it. See Adoption of Garret, 92 Mass. App. Ct. 664, 680 (2018) (“The plain language of the statute states that posttermination sibling visitation may be managed by either the court or DCF. Here, evidence was presented that sibling visitation was being provided by DCF, and the judge was thus under no obligation to order visitation”).

The motion for a new trial. The mother first argues that the judge should have granted a new trial because she erred by relying too heavily on evidence elicited by her own questioning of the mother. While the judge did ask a number of questions of the mother, the questioning was not objected to, did not exhibit any partisanship, did not solicit any inadmissible evidence, and did not invade any party's right to present relevant evidence. The mother has not identified any concrete way in which the questioning prejudiced her. There was no error, and even if there were error, no prejudice has been demonstrated. See Adoption of Norbert, 83 Mass. App. Ct. 542, 546-548 (2013).

The mother also argues that she was deprived of the effective assistance of counsel. To obtain a new trial, the mother must show both that the “behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer” and that “[counsel's conduct] has likely deprived [her] of an otherwise available, substantial ground of defence” (citation omitted). Care & Protection of Georgette, 439 Mass. 28, 33 (2003). An attorney's strategic or tactical decision amounts to ineffective assistance only if manifestly unreasonable when made. Adoption of Azziza, 77 Mass. App. Ct. 363, 368 (2010).

The mother identifies a number of ways in which she alleges counsel was ineffective. First, she claims counsel should have filed a pretrial memorandum and motions in limine, should have objected to untimely discovery, and should have hired experts. However, she does not purport to articulate any particular motions that should have been brought, discovery violations that occurred, or expert testimony that should have been elicited. She next argues that her counsel should have requested that DCF conduct an Interstate Compact on the Placement of Children to determine the appropriateness of her current residence in New Hampshire. Even if we assume, without deciding, that this was ineffective within the meaning of the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (“behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer”), the mother suffered no prejudice, because the judge did not find the mother's current residence to be inappropriate; the judge found only that the mother had issues with housing instability.

The mother also argues that her attorney failed to prepare her for meetings with the court investigator and the guardian ad litem, as well as for trial. She also argues that counsel was ineffective for failing to attend foster care reviews. But she articulates no way in which counsel's alleged failures prejudiced her with respect to her interviews and testimony. For instance, she does not identify anything she would have said or said differently. Again, assuming without deciding that counsel was ineffective, the mother has not demonstrated prejudice.

The mother next states that her attorney failed to prepare adequately for trial by failing to consult with clinicians and by failing to present certain evidence: an original certificate that the mother completed a domestic violence class, evidence of the mother's efforts in complying with her service plans, and evidence that the mother had engaged in individual therapy. The mother does not articulate any evidence that her clinicians might have offered. And the judge's findings reflect that the evidence the mother claims was omitted appears to have been introduced. The judge found that the mother “had a certificate of completion for the Battered Women's Group course.” The mother does not specify what efforts she made to comply with her service plan, but the judge found that the mother at some points “partially complied” with it. And the judge noted that the mother stopped attending individual therapy when it conflicted with visitation with the boys, which implies that she was attending it beforehand. In short, the mother has not identified any evidence that counsel could have introduced that was not already credited by the judge.

Finally, the mother argues that counsel was ineffective for failing to withdraw after she and the mother suffered a “fundamental breakdown in communication.” According to the mother, her attorney was often rude to her, frequently called her a liar, and said that the mother did not deserve to get the children back. Even assuming such behavior occurred, the mother has not articulated how her conflicts with her attorney affected her attorney's performance, and hence how the attorney's failure to withdraw constituted ineffective assistance of counsel. Contrast Commonwealth v. Rondeau, 378 Mass. 408, 414-416 (1979) (counsel's failure to withdraw constituted ineffective assistance requiring reversal because, by not withdrawing, he either would have testified for defendant despite conflict of interest, or would have not testified and deprived defendant of crucial alibi witness [himself] ).

The decrees terminating the mother's rights to the children and the order denying her motion for a new trial are affirmed.

So ordered.

Affirmed.

FOOTNOTES

3.   Neither father is involved in this appeal.

4.   The judge found that Willa “has witnessed several serious domestic violence episodes between Mother and [father 2].” This finding is not supported by nonhearsay testimony, but we do not think it requires reversal both because Willa, unlike the other children, was exposed to domestic violence between the mother and father 1, and because the judge evidently concluded with respect to the other children that their exposure to domestic violence, when combined with the mother's other deficiencies, warranted termination of the mother's parental rights to them. While the domestic violence involving father 1 is dated, “[p]rior history ․ has prognostic value,” Adoption of George, 27 Mass. App. Ct. 265, 268 (1989), especially when, as here, it is similar to more recent history.