Adoption of Zak , 90 Mass. App. Ct. 840 ( 2017 )

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16-P-393 Appeals Court
ADOPTION OF ZAK (and two companion cases).1
No. 16-P-393.
Norfolk. October 7, 2016. - January 9, 2017.
Present: Hanlon, Sullivan, & Blake, JJ.
Adoption, Visitation rights, Standing. Parent and Child,
Adoption. Minor, Adoption, Visitation rights. Practice,
Civil, Adoption, Standing.
Petitions filed in the Norfolk County Division of the
Juvenile Court Department on May 19, 2010, and September 9,
2011.
Following review by this court, 87 Mass. App. Ct. 540
(2015), the cases were heard by Dana Gershengorn, J.
Julia A. B. Pearson for the mother.
Sherrie Krasner for the father.
Kari B. Kipf Horstmann for Department of Children and
Families.
Steven B. Rosenthal for Zak.
Yvette L. Kruger for Carol & another.
SULLIVAN, J. In this case we consider whether a mother and
father, whose parental rights have been terminated, have
1
Adoption of Carol and Adoption of Nick. The children's
names are pseudonyms.
2
standing to participate in a hearing on posttermination
visitation under the following circumstances. Termination of
parental rights and posttermination visitation were originally
litigated in a single trial. The termination of parental rights
was affirmed on appeal, but the matter was remanded to the
Juvenile Court on the question of posttermination visitation.
The parents were not notified of the remand hearing and did not
participate. Following the entry of an "amended order for
posttermination/adoption visitation" (posttermination visitation
order), the parents appealed again to this court. We now
conclude that the remand hearing was a continuation of the
original proceeding, and that the parents had standing to
participate in the remand hearing. Accordingly, we vacate the
posttermination visitation order and remand for further
proceedings.
Background. In Adoption of Zak, 87 Mass. App. Ct. 540
(2015) (Zak I), we affirmed the entry of decrees by a judge of
the Juvenile Court terminating parental rights and dispensing
with consent to adoption, but remanded on the question of
posttermination visitation. Although the judge had considered
the effect of domestic violence on the question of termination
of parental rights, her order on the visitation issue was silent
as to the impact of domestic violence on the question of
3
posttermination visitation.2 We remanded the case for further
findings and rulings in order to permit the judge to consider
that issue. We also noted the authority of the judge to
consider whether circumstances had changed since the issuance of
the original decrees. Id. at 547 n.10, citing Adoption of Vito,
431 Mass. 550, 557 n.15 (2000), and Adoption of Gwendolyn, 29
Mass. App. Ct. 130, 139 (1990).
The Department of Children and Family Services (department)
and the children were notified of the remand hearing. The
parents were not notified.3 The judge exercised her discretion
to consider both the previously admitted evidence, and to hear
new evidence about the children's current circumstances in a
combined remand and modification proceeding. Relying on all of
the evidence -- the evidence admitted at the previous trial and
the additional evidence adduced at the hearing -- the judge
found that the children had been profoundly affected by domestic
violence. She ruled that there had been a material change in
2
The original order granted the father and mother three
visits per year with their respective biological children. The
mother is the biological mother of all three children and seeks
posttermination visitation with all three. The father is the
biological father of the two younger children. He is not the
biological father of the oldest child, and claims no right of
posttermination visitation as to him.
3
The hearing was held after our opinion in Adoption of
Malik, 84 Mass. App. Ct. 436 (2013), and before the Supreme
Judicial Court decided Adoption of Douglas, 473 Mass. 1024
(2016).
4
circumstances since the entry of the decrees. Among other
things, the children had been placed together in a preadoptive
home, and had made "remarkable progress."
The judge concluded that posttermination visitation was not
in the best interests of the youngest child, who had no memory
of his biological parents, and that for reasons unique to the
two older children, "one visit per year with their biological
mother would be in [their] best interests." No posttermination
visits with the father were ordered.
The mother and father appeal, contending that they were
entitled to notice of the remand hearing because that hearing
was part of the same adjudication as the termination proceeding,
and their right to participate had not been extinguished. See
Adoption of Douglas, 473 Mass. 1024, 1029 (2016). The children
and the department assert that because parental rights were
terminated, the parents had no standing to participate in the
remand hearing. See Adoption of Malik, 84 Mass. App. Ct. 436,
438-439 (2013).
Waiver. Before turning to the merits of the appeal, we
must address one threshold issue. The two younger children
argue that, because their father appealed only the termination
order in Zak I, and not the visitation order, he has waived his
right to argue the issue here. This contention overlooks the
fact that the father was content with the original visitation
5
order, even if his parental rights were terminated. The two
children were not content, however, and filed a cross appeal
requesting that there be no posttermination visitation. The
father actively opposed the cross appeal, filing a reply brief
in this court and seeking further appellate review. The father
did not waive his rights to litigate the issue of standing or
posttermination visitation at any time. Contrast Nader v.
Citron, 372 Mass. 96, 101-102, 103 (1977) (waiver of issue on
appeal); Hager v. Hager, 6 Mass. App. Ct. 903, 904 (1978)
(express waiver of appeal); Hammell v. Shooshanian Engr.
Assocs., Inc., 73 Mass. App. Ct. 634, 640 (2009) (waiver of
appeal).4
Standing. "Until parental rights have been terminated by
entry of a decree, parents have the right to participate in
proceedings to determine issues such as placement and visitation
arrangements concerning their children." Douglas, supra at
1025. Here the parents participated fully in a trial of both
their parental fitness and their right to visitation. The first
appeal resulted in the affirmance of the decrees as to
4
The department has also made a similar contention, but has
waived the argument by relying solely on a bare assertion and
failing to brief it on appeal. Assertions of error that lack
legal citation do not rise to the level of appellate argument
and will not be reviewed by this court. Mass.R.A.P. 16(a)(4),
as amended, 367 Mass. 921 (1975). Kellogg v. Board of
Registration in Med., 461 Mass. 1001, 1003 (2011).
6
termination, but did not result in a final order with respect to
visitation.
The fact that the termination became final after trial and
appeal is not, in and of itself, dispositive of the standing
question. The effect of a final termination order on standing
to appeal from a visitation order issued in the same proceeding
was considered in Adoption of Rico, 453 Mass. 749, 757 n.16
(2009). In Rico, the department argued that because the
father's "parental rights have been terminated and he has not
appealed from that decision . . ., the father no longer has
standing to challenge [i.e., appeal] the judge's visitation
order." Ibid. The Supreme Judicial Court rejected this
contention, stating that the father had appealed from a
visitation order issued in the same decision, which "was part of
the adjudication of a termination proceeding to which the father
was a party." Ibid. Similarly, in Douglas, the court held that
"[w]here orders involving termination, placement, and visitation
are issued as part of the same adjudication of termination
proceeding, a parent has standing to press on appeal any
challenge that he or she has not expressly waived to that
adjudication," even though the termination decree was no longer
at issue. Douglas, supra at 1029.5
5
By contrast, in Malik, 84 Mass. App. Ct. at 439, the
mother stipulated to her unfitness and to termination of her
7
The children and the department point out, correctly, that
no appellate case has addressed standing in the context of a
remand, rather than an appeal. However, the rationale of Rico
and Douglas apply fully. In both cases, the termination of the
parents' rights had been adjudicated at the time of the appeals.
In both cases, the Supreme Judicial Court permitted the parents
to prosecute the appeals because the visitation issues were part
of the termination proceeding to which the parents were a party.
We see no principled distinction which would permit a parent to
appeal a visitation order, but bar that parent from
participating in a remand hearing ordered by the very appellate
court that heard the appeal. In short, the parents retained
standing here because the remand proceeding was part of the same
proceeding to which the parents were already a party.
The practical realities of remand proceedings demonstrate
the wisdom of this approach. In some remand proceedings the
judge may consider only the preexisting evidentiary record.
parental rights in a care and protection proceeding, and waived
her right to appeal from the resulting decree. After the decree
was entered, further litigation ensued concerning the child's
placement. A separate guardianship action then was consolidated
with the care and protection proceeding. Id. at 437. The
mother appealed the order denying the guardianship plan and
approving the department's proposal for adoption by the foster
family with whom the child had been living during the course of
the care and protection proceeding. Ibid. In Malik the
termination became final before placement was litigated. Here,
as in Douglas, there was a single proceeding.
8
Here, the judge held a combined remand and modification hearing.
The judge considered evidence of events occurring after the
first appeal, and evidence of domestic violence adduced at
trial.6 Consideration of this evidence at the remand hearing
could only be undertaken in the context of the continuation of
the proceeding to which the parents had been parties,7 because
the judge weighed and considered the facts adduced at trial. As
in Rico and Douglas, the fact that the termination was final did
not divest the parties of standing to participate in a hearing
that was a continuation of the very proceeding in which they had
participated.
Conclusion. Accordingly, we vacate the posttermination
visitation order dated August 28, 2015, and remand the case for
further proceedings consistent with this opinion.
So ordered.
6
This case does not present, and we do not decide, whether
the parents would have had standing to participate in a
posttermination, postappeal modification proceeding.
7
"While a judge may take judicial notice of the fact that
[s]he sat on a related case and also may take judicial notice of
the docket entries in the prior case, Morrison v. Krauss, 353
Mass. 761 (1968), [s]he may not judicially notice 'facts or
evidence brought out at the prior hearing.' Ferriter v.
Borthwick, 346 Mass. 391, 393 (1963). See also Day v. Crowley,
341 Mass. 666, 669-670 (1961); Morrison v. Krauss, supra; Asker
v. Asker, 8 Mass. App. Ct. 634, 639-640 (1979)." Howe v.
Prokop, 21 Mass. App. Ct. 919, 920 (1985).