In Re Adoption of Ulrich
119 N.E.3d 298
Mass. App. Ct.2019Background
- DCF filed care-and-protection petitions for five children after the mother stabbed the father (four older children present) and later threatened a neighbor with a knife; children were placed in kinship/foster and residential settings.
- Mother diagnosed with mood disorder, PTSD, and polysubstance dependence; she participated intermittently in services, completed some programs, but had inconsistent therapy attendance and was expelled from a residential program as a safety risk.
- Visitation history showed a mix of successful and volatile visits, including incidents where the mother swore at children, physically grabbed one child from staff, and ended visits abruptly.
- Trial court found mother unfit and terminated parental rights as to all five children; mother appealed and sought a stay of the appeal to pursue a new-trial motion alleging ineffective assistance of counsel.
- A single justice denied the stay; the Appeals Court affirmed denial and upheld the termination decrees, concluding unfitness and that termination served the children’s best interests.
Issues
| Issue | Mother's Argument | Department / Judge's Argument | Held |
|---|---|---|---|
| Whether appellate stay should be granted so mother can file a new-trial motion alleging ineffective assistance | Mother argued stay should be allowed presumptively to pursue claim in trial court | Single justice balanced fairness, judicial economy, and children's need for prompt resolution and found mother's claim showed inadequate prospects | Denied—single justice may gatekeep and assess likelihood before staying appeal |
| Whether trial counsel rendered ineffective assistance by not calling maternal grandmother | Mother: grandmother would have testified about 2012 stabbing and 2013 sexual assault allegations | Department: grandmother's credibility was questionable and calling her posed risk of harmful cross-examination; evidence of unfitness was overwhelming | Denied—decisions reasonable and unlikely to change outcome |
| Whether mother was unfit to parent (clear and convincing standard) | Mother pointed to partial compliance with services and recent improvements | Judge relied on history of violence, service noncompliance, minimization/denial of children's abuse/needs, and volatile visits | Affirmed—clear and convincing evidence of unfitness |
| Whether termination was in each child’s best interests (discretionary review) | Children (some on appeal) argued permanence plans or sibling placements weighed against termination | Judge found children had therapeutic needs, stability in foster/residential placements, strong bonds with prospective adoptive caregivers or preadoptive approvals | Affirmed—termination served best interests and promoted permanence |
Key Cases Cited
- Commonwealth v. Saferian, 366 Mass. 89 (establishes two-part test for ineffective assistance review) (recognition of need to raise ineffective assistance in trial court rather than first on appeal)
- Commonwealth v. Montgomery, 53 Mass. App. Ct. 350 (approach to stays to pursue new-trial motions; balancing fairness and judicial economy)
- Lassiter v. Department of Social Servs., 452 U.S. 18 (1981) (recognition of parent and child due process interests and need for prompt resolution in custody cases)
- Adoption of Nancy, 443 Mass. 512 (standard: unfitness + best interests required for termination)
- Adoption of Rhona, 57 Mass. App. Ct. 479 (parental unfitness must be proved by clear and convincing evidence)
- Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327 (strategic decisions by counsel evaluated under manifestly unreasonable standard)