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ADOPTION OF OWEN v. << (2021)

Appeals Court of Massachusetts.

ADOPTION OF OWEN (and two companion cases 1).


Decided: February 05, 2021

By the Court (Green, C.J., Kinder & Englander, JJ.2)


The mother appeals from decrees of the Juvenile Court terminating her parental rights as to the three children, and the mother and the children appeal from an order denying the mother's motion to vacate the decrees and to reconsider the order denying her motion to vacate her stipulations of termination of parental rights (collectively, motion for reconsideration).3 The decrees entered following entry of stipulations by the mother, which in turn followed a particularly detailed and thorough colloquy inquiring into the mother's understanding of the meaning and effect of the stipulations. We discern in the mother's various arguments no cause to vacate the decrees, and no abuse of discretion by the Juvenile Court judge in denying her motion for reconsideration.

The challenges of the mother and the children on appeal center on their contention that the mother lacked sufficient cognitive capacity to make a knowing and voluntary waiver of her rights.4 Those challenges in turn rest principally on an unsigned “Neuropsychological Evaluation,” bearing a “Date of Evaluation” of July 13, 2018, and submitted with the mother's motion for reconsideration.5 According to the neuropsychological evaluation, the mother's cognitive deficiencies include limited verbal comprehension and a fourth grade equivalency in reading and sentence comprehension.

Before accepting a stipulation terminating parental rights, the judge must “make an appropriate inquiry to establish that the parent's consent was knowing and voluntary.” Adoption of John, 53 Mass. App. Ct. 431, 435 (2001). A party seeking to set aside such a stipulation bears a “heavy burden” of showing that the decision was not made knowingly or voluntarily. Revocation of Appointment of a Guardian of a Minor, 360 Mass. 81, 87 (1971). When determining whether to vacate a stipulation, as in most questions concerning parental rights, the judge's paramount concern is the best interest of the children. See Surrender of Minor Children, 344 Mass. 230, 234 (1962). We review the decision to deny a motion for relief from judgment for abuse of discretion, see Care & Protection of Georgette, 439 Mass. 28, 33 (2003), and extend particular deference to the decision on such a motion by a judge who “hears the evidence, observes the parties, and is most familiar with the circumstances.” Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007).

As we observed above, before accepting the mother's stipulations the judge conducted a particularly thorough and detailed colloquy. The judge quoted extensively from that colloquy in her memorandum of decision denying the mother's first motion to vacate the stipulations (see note 2, supra), and the parties have quoted it extensively in their briefs on appeal; we need not repeat it here. We note, however, that among the judge's inquiries during the colloquy were questions of the mother concerning whether the mother suffered “from any conditions, physical or mental health-wise that might impact [her] decision-making” (the mother answered, “No”), and of the mother's counsel concerning his review of the documents with the mother and his belief that she understood them (counsel responded that he had “gone over each of the sets of paperwork line by line and discussed it and had her read it, and [he] believe[d] she thoroughly believes what's contained”). In addition to the colloquy, the judge had the opportunity to observe the mother in court proceedings over the course of almost three years during the various hearings that preceded the entry of the stipulations and decrees. We also note that, though the judge held a hearing on the mother's motion for reconsideration, the mother did not present testimony from any witnesses at that hearing; in particular, neither her trial counsel nor the psychologist whose name was affixed to the neuropsychological evaluation appeared.6 In assessing the mother's capacity to understand the import of her stipulation, the judge also properly could have considered the mother's work history as a home health aide and a certified nursing assistant (CNA), and in providing assisted living care in a nursing home.7 We discern no abuse of discretion in the judge's ultimate conclusion that the mother knowingly and voluntarily entered the stipulations terminating her parental rights.

As for the mother's claim of ineffective assistance of counsel, the absence of any explanation by trial counsel of the failure to disclose the neuropsychological evaluation at an earlier stage in the proceedings leaves us without insight into any potential strategic considerations that may have borne on that decision by counsel (and the mother). In any event, the judge was uniquely situated to evaluate whether earlier presentation of the evaluation -- the “better work” the mother now contends counsel should have performed -- would have “accomplished something material for the [mother].” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Implicit -- at least -- in the judge's rejection of the mother's request for relief from the decrees based on the neuropsychological evaluation is a conclusion by the judge that earlier presentation of it would have made no difference in her acceptance of the mother's stipulations terminating her parental rights.8 Accordingly, we discern no basis for relief in the mother's claims of ineffective assistance of counsel.9

The decrees are affirmed. The order entered on December 19, 2019, denying the mother's motion to vacate the decrees and to reconsider the order denying her motion to vacate her stipulations of termination of parental rights is also affirmed.

So ordered.



3.   The mother previously had filed a “Motion To Withdraw/Vacate Open Adoption Agreement,” which was denied by the same judge.

4.   Relatedly, the mother contends that her trial counsel was constitutionally ineffective in failing to advise her properly, or to raise concerns regarding her cognitive capacity with the judge.

5.   We note that the mother did not submit the neuropsychological evaluation with her first motion to vacate the stipulations. See note 2, supra.

6.   We note again that the evaluation submitted in support of the mother's motion was unsigned. We also note that although the mother previously disclosed to a Department of Children and Families (DCF) social worker that she had completed a neuropsychological evaluation, she was unwilling to share the results with DCF and advised the worker that she intended to seek a second opinion, suggesting that the mother herself (and possibly her counsel) did not consider it credible.

7.   In her July 2018 neuropsychological evaluation, the mother disclosed the following information regarding her work history. From 1997 to November 2007, she worked as a CNA for an agency that required her to travel to hospitals and nursing homes; from 2014 to November, 2017, she worked as a CNA for a nursing home; and by the summer of 2018, she was working as a CNA for another nursing home.

8.   Similarly, the judge was able to evaluate the potential merit of the mother's broadly expressed suggestion that the maternal grandparents would have provided a suitable kinship placement alternative. As the judge was well aware, the record reveals the severe limitations of the space available in their home.

9.   The mother's challenges to the validity of the stipulations and open adoption agreements based on alleged deficiencies in the execution or other formalities are without merit for substantially the reasons summarized in DCF's brief at pages thirty-eight to forty.

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ADOPTION OF OWEN v. << (2021)

Docket No: 20-P-817

Decided: February 05, 2021

Court: Appeals Court of Massachusetts.

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