Opinion
No. 13–P–1126.
2013-07-24
ADOPTION OF JOSETTE.
By the Court (COHEN, RUBIN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case has been referred by the single justice for decision by a panel of this court. Given the emergency nature of the relief sought and the fact that responses to the petitioners' filings have already been received, we proceed to decide the appeal based on the record submitted to the single justice.
1. Background. The child was born in March, 2010. She has lived with her foster parents continuously since she was one month old. As a newborn, Josette suffered burns while in the care of her biological father. On investigation by the Department of Children and Families (DCF), her biological parents' home was found to be unfit for human habitation, and, although they had lived in Massachusetts for only nine months, both parents had been charged with criminal offenses in the Commonwealth.
On April 1, 2010, temporary custody of the child was given to DCF, which placed the child with the foster parents. A seventy-two hour hearing was scheduled but was waived by both the mother and the father. Thereafter, DCF identified the foster parents as a preadoptive resource, and its permanency plan called for the adoption of the child by the foster parents. That permanency plan was first approved on April 22, 2011. However, over a period of approximately two years, the trial repeatedly was continued, as DCF and authorities in Florida and Georgia worked to evaluate the suitability first of the maternal grandmother and then, when the maternal grandmother was deemed unsuitable, the paternal great-aunt, as placements for the child. On the first day of trial in March, 2013, both biological parents stipulated that Josette was in need of care and protection and agreed to dispense with the need for their consent to her adoption. The judge appropriately proceeded to trial on the question of the best interests of the child. As the judge noted in her notice of decision, “it is the parents' preference and, through counsel, the child's preference that three year old [Josette] be placed with [her paternal great-aunt, who lives in Georgia] for the purpose of adoption.”
Given the emergency nature of this appeal and DCF's decision not to appeal the judge's decision, no transcript of that trial has been prepared; nor has the judge had occasion to enter written findings of fact explaining her decision. Nonetheless, the filings before us make clear that, although DCF's formal position was that the child should be adopted by the foster parents, the foster parents were not called as witnesses.
The mother also states that “[t]he Judge was not presented with any evidence on the child's bond with the Foster Parents, or any expert opinion regarding this issue.” Likewise, the father states that “[a]t trial both Tim Britton [DCF social worker] and Wendy Briggs [Early Intervention Service Coordinator] testified but the Child's pediatrician did not testify and there is no evidence in the record of the trial in the lower court that either party testified that it would be detrimental to the Child to be moved.” On May 14, 2013, the judge issued a decision “that it is in [Josette's] best interest to be placed with [the paternal great-aunt] for the purpose of adoption.”
.General Laws c. 119, § 29D, inserted by St.1999, c. 3, § 12, provides that “[t]he department shall provide notice of hearings” to foster or preadoptive parents “and shall inform” them “of [their] right to attend the hearing and to be heard.” The foster parents assert that, in violation of that statute, they were not allowed to attend the permanency trial and that DCF social worker Tim Britton told them they were not allowed to speak at that trial. If found to be true, these allegations would raise significant independent concerns. See Adoption of Sherry, 435 Mass. 331, 338 (2001) (foster parents have “an independent right to provide judges with evidence, and need not suffer in silence if the parties choose not to call them”).
On May 24, 2013, the foster parents filed three motions in Juvenile Court. The only one at issue here is their motion to intervene. In support of that motion, the foster parents submitted a verified pleading signed by them under pains and penalties of perjury. In it, they stated that the child has been diagnosed with pervasive developmental disorder, not otherwise specified, and with developmental, speech, and language delays. They represented that removal from their care would be highly detrimental to the well-being of the child, and asserted that the child's pediatrician had written a letter, a copy of which they attached, which stated, “[i]n view of [Josette's] problems and in view of the strong bond that she has developed with her foster parents who clearly love her and care for her in an admirable fashion, it is my professional opinion that removing her from a home where she is feeling comfortable and knows that she is loved would be disastrous for her welfare.”
A verified pleading is in essence an affidavit, see Harrison v. Boston Fin. Data Servs., Inc., 37 Mass.App.Ct. 133, 136 n.9 (1994), and, therefore, for purposes of the motion, the judge properly could have considered the doctor's letter attached to the verified pleading as part of the factual basis for the foster parents' request for relief. Cf. Sher v. Desmond, 70 Mass.App.Ct. 270, 272, 281–282 (2007) (complaint accompanied by affidavit containing hearsay statements and referencing attached, unsworn letters was sufficient to meet the heightened pleading requirement applied to grandparent visitation cases).
On May 29, 2013, the judge entered an order stating that the foster parents' “motions will not be considered; evidence is closed .”
2. Analysis. The foster parents' motion sought intervention for the “limited purpose [of] filing and litigating an adoption petition and/or guardianship of [Josette] and for presenting a motion for Restraining Order to Prevent Removal of [Josette].” Given that a decision already had entered in the case, and that the judge had ruled that “it is in [Josette]'s best interest to be placed with [the paternal great-aunt] for the purpose of adoption,” we construe the motion as one seeking to intervene for purposes of requesting that the decision be reopened to afford the foster parents the opportunity to present evidence relevant to which placement would be in the best interests of the child.
Because the motion was filed after the judge entered her decision, it is understandable that the judge may have thought she lacked authority to consider it. However, while a motion to intervene made “after entry of final judgment is seldom timely,” there are, in fact, “limited circumstances” in which such a motion properly may be allowed. See Peabody Fedn. of Teachers, Local 1289 v. School Comm. of Peabody, 28 Mass.App.Ct. 410, 413 (1990). Accordingly, it was error to decline to consider the motion on the ground that the evidence already had been closed.
We therefore vacate the May 29, 2013, order to afford the judge the opportunity to consider and rule on the motion to intervene, and, to that end, to hold a hearing and make findings. Whether intervention is appropriate will turn on whether the foster parents' “interest in the litigation is not adequately represented by existing parties.” Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass.App.Ct. 56, 61 (2000). Because this is a late-filed motion, it also will depend on “(1) whether the applicant could have intervened earlier; (2) whether delayed intervention would prejudice the central parties in the action; and (3) the force of the applicant's particular need to intervene.” Peabody Fedn. of Teachers, Local 1289 v. School Comm. of Peabody, 28 Mass.App.Ct. at 413. Given the nature of this case, the third factor—the force of the foster parents' need to intervene, and particularly, whether they have shown that they have significant information unknown to the judge and bearing on the best interests of the child—would appear to carry particular weight.
3. Conclusion. The order of May 29, 2013, declining to consider the foster parents' motion to intervene is vacated, and the case is remanded for proceedings consistent with this memorandum and order.
The stay entered by the single justice on June 21, 2013, shall remain in effect until the order and findings of the judge on the motion to intervene are entered. If any party is aggrieved by the judge's decision, files a notice of appeal, and wishes to have the stay continued pending appeal, that party shall follow the procedure described in Mass.R.A.P. 6(a), as appearing in 454 Mass. 1601 (2009), under which a stay must ordinarily be sought from the trial court judge before application is made to the single justice.
So ordered.