Adoption of Rory
954 N.E.2d 22
Mass. App. Ct.2011Background
- The Department petitioned Rory and Sam as children in need of care and protection under G. L. c. 119, § 24, leading to separate trials.
- Judges dispensed with the need for the father’s consent to adoption, guardianship, custody, or other disposition, effectively terminating his parental rights.
- The father’s attorney’s appearances were struck at both trials after the father was absent, with the court citing abandonment of proceedings.
- The father later moved under Mass.R.Civ.P. 60(b) for relief from judgment and for new trials; motions were denied and appealed.
- The trial judge concluded the father abandoned the proceedings due to his absence and his instructions to counsel, including reliance on text communications.
- The appellate court held the father did not truly abandon participation and that striking counsel violated due process, voiding the decrees and remanding for new trials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether striking the attorney’s appearance violated due process | Smith argues 60(b)(4) voids decrees due to lack of counsel. | Smith contends abandonment justified striking counsel. | Yes; due process violation; decrees void. |
| Whether the father abandoned participation in the proceedings | Father abandoned proceedings by absence and manipulation via counsel. | Father communicated with attorney and appeared before trial, showing participation. | No absolute abandonment; not sufficient to justify striking counsel. |
| Whether the trials violated the father’s right to counsel | Indigent father required court-appointed counsel; absence breached rights. | Counsel’s appearance and father's communications sufficed to participate. | Rights violated; judgments void. |
| Whether rule 60(b) relief was proper given due process concerns | Relief appropriate to void judgments. | No merit, proceedings were appropriately conducted. | Relief granted; decrees vacated; remand for new trials. |
Key Cases Cited
- Department of Pub. Welfare v. J.K.B., 379 Mass. 1 (1979) (indigent parent entitled to counsel in termination proceedings)
- Custody of Two Minors, 396 Mass. 610 (1986) (negative inferences from absence permitted; abandonment considerations)
- Marina, 424 Mass. 1003 (1997) (no waiver of counsel required despite parent’s absence; striking allowed in broader abandonment context)
- Care & Protection of Erin, 443 Mass. 567 (2005) (parental rights due process protections; right to hearing)
- Brantley v. Hampden Div. of the Probate & Family Ct., 457 Mass. 172 (2010) (due process and rebuttal rights in parental termination proceedings)
- Duro v. Duro, 392 Mass. 574 (1984) (due process protections in family-related terminations)
- Ze v. Ze, 73 Mass. App. Ct. 905 (2009) (due process in guardianship/adoption contexts)