Opinion
No. 12–P–1001.
2013-03-13
ADOPTION OF IRVING.
A finding of parental unfitness must be supported by clear and convincing evidence. Custody of a Minor (No. 2), 392 Mass. 719, 725 (1984). As there was overwhelming evidence as to the father's unfitness, we conclude that any alleged ineffective assistance of counsel did not prejudice the father. 4
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from the Juvenile Court judge's decree dispensing with his right to notice of and consent to his son's adoption,
and from the denial by a single justice of this court of his motion for leave to file relief from judgment in the Juvenile Court.
The mother did not appeal from the termination of her parental rights.
The father's appeal from the single justice's order was consolidated with his appeal from the decree of the Juvenile Court.
Discussion. 1. Ineffective assistance of counsel. The father argues that he received ineffective assistance of counsel during the Juvenile Court proceedings and that as a result, he was deprived of his constitutional right to due process of law. See Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 4 (1979); G.L. c. 119, § 29. In considering a claim for ineffective assistance of counsel, “[f]irst, we look to determine whether the ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer’ and, if so, we further inquire ‘whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defence.’ “ Adoption of Azziza, 77 Mass.App.Ct. 363, 368 (2010), quoting from Care & Protection of Stephen, 401 Mass. 144, 149 (1987) (adopting Commonwealth v. Saferian, 366 Mass. 89, 96 [1974], standard to evaluate ineffective assistance claims in care and protection proceedings). “Under the second prong [of this analysis], prejudice must be shown; prejudice is not shown if there is overwhelming evidence of unfitness.” Adoption of Azziza, supra at 369. Here, we need not reach the question of ineffective assistance of counsel because the father's “parental unfitness was established by overwhelming evidence.” Adoption of Holly, 432 Mass. 680, 690 (2000). In his findings of fact, the judge made multiple determinations that overwhelmingly established the father's parental unfitness. The judge found that the father has an extensive adult criminal record dating back to 1989, which includes lewd and lascivious behavior, assault and battery by means of a dangerous weapon, domestic assault and battery, operating to endanger, malicious destruction of property, breaking and entering, and possession with the intent to distribute. Additionally the judge found that the father has abused illegal substances, namely heroin, since 2000; that he has a sparse employment record and does not have plans for future employment; and that he has made little effort to establish a relationship with his son. Moreover, the judge did not find the father to be a credible witness. At the end of his lengthy findings of fact, the judge wrote the following summary:
“I find that Father is not currently fit to parent [Irving] and will be unfit for the foreseeable future. Father's drug use and criminal activity has negatively affected his ability to parent all of his children: he was incarcerated for various periods of time, his means to financially support them was limited, and by his own admission, he was under the influence of various substances during periods when he cared for them. Father has also never demonstrated an ability to put the needs of his children above his own, as evidenced by his continued drug use, his decisions to purchase drugs rather than pay child support, and his general neglect of his parental responsibilities during periods when he was either under the influence or incarcerated.”
A finding of parental unfitness must be supported by clear and convincing evidence. Custody of a Minor (No. 2), 392 Mass. 719, 725 (1984). As there was overwhelming evidence as to the father's unfitness, we conclude that any alleged ineffective assistance of counsel did not prejudice the father.
While we need not reach this issue, we note that the father was afforded competent, effective counsel at trial. Trial counsel for the father provided a lengthy opening statement, subpoenaed and introduced fourteen exhibits, called five witnesses, made objections, cross-examined opposing witnesses, and provided an extensive closing argument. The father has not shown that trial counsel's performance was “measurably below that which might be expected from an ordinary, fallible lawyer.” Commonwealth v. Saferian, 366 Mass. at 96.
2. Motion for funds. Relying on Commonwealth v. Dotson, 402 Mass. 185, 187 (1988), the father argues that the judge abused his discretion when he heard the motion for funds in open court, rather than ex parte, because as a result of the inclusion of the Department of Children and Families (department), the father suffered prejudice as he was forced to publicly reveal his trial strategy.
The father also argues that in denying his motion without the benefit of the requested home studies, the judge did not have sufficient information to determine the best interests of the child. See Adoption of Cadence, 81 Mass.App.Ct. 162, 173 (2012). Specifically, the father requested that the judge grant him funds to pay a social worker to conduct home studies to determine the suitability of either the father's parents or sister as a possible placement for Irving.
Commonwealth v. Dotson, 402 Mass. 185, 187 (1988), however, has not been extended to care and protection proceedings.
.General Laws c. 261, § 27C(4), as amended by St.1980, c. 539, § 7, provides: “If the court makes a finding of indigency, it shall not deny any request with respect to normal fees and costs, and it shall not deny any request with respect to extra fees and costs if it finds the document, service or object is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay.”
First, the judge did not abuse his discretion in deciding to hear the father's motion for funds in open court. The plain language of G.L. c. 261 only requires a hearing; it does not require an ex parte hearing. Additionally, the father filed this motion on the ninth day of trial and there was no prejudice in hearing the motion in open court because all parties already knew that the father sought the award of custody of Irving to his parents or sister. Moreover, while in form the father's motion was a request for funds, in substance, it was more of a challenge to the sufficiency of the department's home study of the father's parents.
Accordingly, the judge appropriately decided to hear the motion in open court in order to benefit from the department's input.
At trial, Emily Young of the Cambridge Family and Children Services testified that she conducted a brief home study of the paternal grandparents. She found that the grandparents had an unsuitable home and requested that they make changes to accommodate Irving. The grandparents did not comply.
Second, the judge properly denied the father's motion for funds because he had sufficient information to arrive at a custody determination that served the child's best interests without any additional home studies. See id. at 173. At trial, the judge heard from both the father's mother and the father's sister. Notably, the judge found that the paternal grandparents “are no longer interested in adopting the child” and that the father's sister “is not interested in being an adoptive resource for Irving.” Accordingly, the father's request for additional home studies would not have provided the judge with helpful information as neither the grandparents nor the father's sister sought custody of Irving.
3. Singe Justice appeal. The father also appeals from a single justice's earlier denial of his motion for leave to file relief from judgment in the Juvenile Court. In support of his request, the father argued that Annie Dookhan, the Massachusetts Crime Laboratory employee who admitted to intentionally falsifying drug evidence, tested and certified the drug sample underlying his most recent criminal conviction. The father pleaded guilty to distribution of a controlled substance and served two and one-half years in prison. The father argues that if a lower court were to vacate his conviction, then much of the judge's factual findings as to his lack of parental fitness would prove to be unsubstantiated. We disagree. Even if a lower court were to vacate the father's most recent conviction, we would still conclude that he has an overwhelming criminal record, history of substance abuse, and lack of demonstrated interest in Irving that renders him unfit to serve as Irving's parent.
Decree affirmed.
Order of the single justice denying motion for leave to file relief from judgment affirmed.