ADOPTION OF QUANITA (and three companion cases 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from the order of a judge of the Juvenile Court denying her motion for relief from judgment under Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974).3 The mother also appeals from an order of the a justice of this court denying the mother's request to stay appellate proceedings to allow her to file a motion for new trial in the Juvenile Court.4 We affirm.
Background. We summarize the procedural history and undisputed findings of fact, reserving certain details for later discussion.
On March 29, 2018, the Department of Children and Families (department), filed a care and protection petition under G. L. c. 119, § 24, as to four of the mother's children – Quanita, Richard, Steven, and Thomas (the children). The mother also has three other children, siblings and half-siblings of the children (the siblings); none of them was in her custody at the time of the trial.5
On September 19, 2019, the mother and father, represented by separate trial counsel, each stipulated to the termination of their parental rights to the children. The judge accepted the parties’ agreements for open adoptions of the children, issued a postadoption sibling visitation order requiring at least four visits per year among Quanita, Richard, Steven, and Thomas, and terminated both the mother's and the father's parental rights.
Less than a week after stipulating to the termination of their parental rights, the mother and the father filed separate requests for a stay of proceedings, and motions to vacate the stipulations for judgment and for postjudgment relief under Mass. R. Civ. P. 60 (b) (6) (rule 60 [b] motion) in each of the cases involving the children. The mother's trial counsel also moved to withdraw from the case. In her rule 60 (b) motion, the mother argued that she had been pressured into agreeing to the stipulation terminating her parental rights to the children. The judge ultimately permitted mother's trial counsel to withdraw, and appointed successor counsel to represent the mother on the rule 60 (b) motion. After an evidentiary hearing at which the mother testified, contending that she was “rushed” into the stipulation at issue and that that her counsel had “lied” to her about the open adoption agreements, the judge denied the motion. The mother appealed.
On August 10, 2020, represented by new counsel, the mother sought relief from a single justice of this court, filing a motion to stay appellate proceedings and to allow her to file a motion for new trial on the grounds of ineffective assistance of counsel. Relying on Adoption of Ulrich, 94 Mass. App. Ct. 668, 675 (2019), the single justice denied the motion, ruling that the mother had failed to demonstrate “a sufficiently strong likelihood of success on the merits to justify the resulting delay in completion of appellate review.” Id.
Discussion. 1. Denial of motion for a stay. We begin with the mother's challenge to the order of the single justice denying her motion for a stay. We discern no error of law or abuse of discretion by the single justice. See Adoption of Ulrich, 94 Mass. App. Ct. at 673-674.
In ruling on the motion for stay, the single justice was required to make a “threshold assessment of [the mother's] prospects for success” on her proposed motion for new trial. See Adoption of Ulrich, 94 Mass. App. Ct. at 672. The mother argued that trial counsel was ineffective for failing to advise her that she had the right to request sibling visitation for all of her children.
Even if we were to assume, which we do not, that after the termination of her parental rights to the children the mother had standing to raise the issue of visitation, cf. Adoption of Donald, 52 Mass. App. Ct. 901, 901-902 (2001), and that as the mother alleges, G. L. c. 119, § 26B (b),6 requires the judge or the department to consider visitation orders among all of the mother's children as part of the underlying action in this case, we discern no error in the single justice's determination that this claim has no “sufficiently strong likelihood of success,” if only because the mother has not shown that visitation between the children and their three siblings was in any of the seven children's best interests. See G. L. c. 119, § 26B (b) (sibling visitation determination made “based upon a determination of the best interests of the child”). See also Care & Protection of Jamison, 467 Mass. 269, 284 (2014) (“ ‘best interests of the child’ standard does not establish a presumption in favor of sibling visitation”). Where the mother failed to show that she was prejudiced, her ineffective assistance claim fails. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (to prevail on ineffective assistance of counsel claim, client must show counsel's substandard representation and resulting prejudice); Adoption of Ulrich, 94 Mass. App. Ct. at 672-673 (Saferian test applicable to claim of ineffective assistance in context of termination of parental rights). Given the deficiencies in the mother's support for her motion for new trial, we discern no error in the single justice's assessment that the mother had a limited likelihood of success on the motion, and no abuse of discretion in the single justice's denial of the mother's motion for a stay of the appeal.
2. Rule 60 (b) (6) motion. The mother argues that her motion for postjudgment relief should have been allowed because under G. L. c. 119, § 26B (b), the judge was required to consider visitation among all of the mother's children, not just the four children at issue in this proceeding. However, she failed to raise this issue in her rule 60 (b) motion.7 The issue was, accordingly, waived, and we do not consider it.8 See Adoption of Douglas, 473 Mass. 1024, 1027 (2016) (“Absent exceptional circumstances,” appellate court does not review claims raised for first time on appeal); Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005) (issue parents could have, but did not, raise below waived on appeal).
Conclusion. The order denying the mother's rule 60 (b) motion is affirmed. The order of the single justice denying the mother's motion to stay the appellate proceedings is also affirmed.
3. “We look to rule 60(b) by analogy and as a cogent standard because the Massachusetts Rules of Civil Procedure do not apply to proceedings to dispense with consent to adoption.” Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011).
4. The father also moved for relief from judgment in the Juvenile Court. Although his motion also was denied, and he filed a notice of appeal, his appeal was not docketed in this court and he is not a party to this appeal.
5. One of the siblings had been adopted by her maternal grandmother after the mother agreed to the termination of her parental rights; the remaining two siblings were in the permanent custody of the same grandmother.
6. As relevant to the mother's arguments, G. L. c. 119, § 26B (b), provides,“The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings in other foster or pre-adoptive homes or in the homes of parents or extended family members throughout the period of placement in the care and custody of the department, or after such placements, if the children or their siblings are separated through adoption or long-term or short-term placements in foster care [emphasis added].“The court or the department shall determine, at the time of the initial placements wherein children and their siblings are separated through placements in foster, pre-adoptive or adoptive care, that sibling visitation rights be implemented through a schedule of visitations or supervised visitations, to be arranged and monitored through the appropriate public or private agency, and with the participation of the foster, pre-adoptive or adoptive parents, or extended family members, and the child, if reasonable, and other parties who are relevant to the preservation of sibling relationships and visitation rights.”
7. At oral argument, the mother suggested that her argument was preserved by the fact that she included it in her proposed motion for new trial. The motion, however, was never filed in the trial court, and we find no authority for the mother's position that its submission to the single justice as an attachment to the mother's motion to stay would have that effect.
8. Nothing in our decision today derogates from the siblings’ ability to seek visitation with one another, should they choose to do so. See G. L. c. 119, § 26; Adoption of Gillian, 63 Mass. App. Ct. 398, 408-409 (2005).
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