These cases are appeals of consolidated care and protection petitions concerning six children — Douglas, Tom, Brian, Mark, Cole, and Frank. The appeals are brought by the biological mother of the six children; by the biological father of the two oldest children (father I) — Douglas and Tom; and by four of the children —Douglas, Tom, Brian, and Mark. They appeal from the provisions of decrees of the Juvenile Court denying parental visitation after termination of the parental rights of the mother, father I, and the biological father of the four younger children (father II) — Brian, Mark, Cole, and Frank.
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The Appeals Court, in a memorandum and order issued pursuant to its rule 1:28, dismissed the appeals of the mother and father I. It concluded that neither had standing to challenge the orders concerning visitation because their parental rights had been terminated after the consolidated hearings, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, were concluded, and they had not appealed from the entry of the termination decrees. See
Adoption of Douglas,
Background. The Department of Children and Families (department) filed a care and protection petition on behalf of Douglas, Tom, Brian, and Mark, alleging neglect due to substance use and domestic abuse of all four children. The department subsequently filed a care and protection petition on behalf of Cole and Frank, and the two petitions were consolidated. On March 3,2010, the mother, father I, and father II each stipulated to his or her current unfitness and that their respective children were in need of care and protection. 3
On June 3 or 4, 2013, each of the parents submitted a written stipulation acknowledging his or her current unfitness, agreeing to the issuance of a decree terminating his or her respective parental rights; waiving the right to trial on the merits of the care and protection petitions; and waiving the right to appeal “as to unfitness and the termination of parental rights.” The stipulations of father I and the mother also expressly reserved “the right to appeal any decision rendered as to the proposed plans of adoption for each child.” They did so with the apparent understanding and agreement that entry of decrees terminating their parental rights would be deferred until “the conclusion of the[] hearings” concerning placement of the children and parental and sibling visitation, that they would retain the right to participate in those placement hearings, and that they could appeal from any adverse result. The Juvenile Court judge conducted colloquies and accepted the stipulations, 4 but neither found the parents unfit nor entered decrees terminating their parental rights at that time.
The judge thereafter conducted a hearing in the consolidated cases that extended over the course of seven days, beginning on June 3, 2013, and concluding on June 20, 2013. Thereafter, on October 1, 2013, the judge issued an order adjudicating, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, the parents to be unfit; ordering the entry of decrees terminating their respective parental rights; approving the plans of adoption submitted by the department; 5 declining to order either posttermination or postadoption visitation between the children and their respective biological parents; and ordering sibling visitation. He issued 449 findings of fact and twenty-nine conclusions of law on February 10, 2014. The mother, father I, and the four oldest children (Douglas, Tom, Brian, and Mark) appealed.
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.
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See
Adoption of Gillian,
It is only after “a decree enters terminating parental rights ... [that] the parent whose rights have been terminated is without standing to determine the child’s future,”
Adoption of Malik,
Where the factual basis for termination of parental rights is not contested, deferring the entry of a termination decree until the completion of a “best interests” hearing on issues such as adoption and visitation under G. L. c. 210, § 3,
see Adoption of Dora,
Ineffective assistance of counsel.
For the first time on appeal, the mother contends that she received ineffective assistance of counsel at trial. In particular, she claims that trial counsel failed to notify the judge prior to the colloquy that the mother’s stipulation to unfitness and agreement to the entry of a decree terminating her parental rights purportedly was conditioned on the placement of all six of her children with relatives. As we have said, “ ‘the preferred method of resolving factual disputes concerning the conduct of the original trial’ is for the aggrieved party to file a motion for a new trial. Absent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal.”
Care & Protection of Stephen,
Parental visitation.
Once a biological parent has been found unfit to care for a child, “[tjermination denies [him or her] physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.”
Petition of Catholic Charitable Bur. of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption,
The department’s plans for the children proposed that “the four oldest [children] should have visits with their mother”; that father I would have continued visitation with the two oldest children; and that visitation between the two middle children and father II should be considered with caution. 10 The judge’s extensive factual findings make clear that he thoroughly considered evidence of the children’s bonds with their respective parents. With respect to the mother, he acknowledged that the oldest child, Douglas, had a bond with the mother, but concluded that a visitation order was not in Douglas’s best interests. Among other things, the judge found that the mother continually failed to maintain appropriate boundaries with Douglas. The judge also found that there was no significant bond between the mother and her other five children. There is sufficient evidence to support the judge’s determination that orders for visitation with the mother were not in the children’s best interests.
With respect to visitation with father I, the judge found that there was no evidence of a significant relationship or bond between him and the two oldest children. Before June 28, 2010, Tom (who turned seven years old in July, 2010) had never met father I, and Douglas (who was at that time nine years and five months old) had last seen father I when he was a baby. Douglas visited father I approximately six times before trial, and his last visit was in July, 2012, almost one year before trial. Tom visited with father I five times from birth until trial. Although there was some evidence that visits between father I and the two children went well, in the absence of evidence of a significant existing bond, we cannot say that the judge abused his discretion in concluding that an order requiring visitation was not in the children’s best interest.
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See
Adoption of Vito,
The two middle children, Brian and Mark, likewise sought an order requiring posttermination and postadoption visitation with father II. The judge found, however, that (he two children were experiencing stability for the first time, and
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that their behavior issues had improved. He also found that there had been no contact with father II for the two years prior to trial, and that there was no evidence of a significant bond with the children. He concluded that visitation “based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent,”
Adoption of Vito,
Conclusion. Prior to the entry of a decree terminating parental rights, a parent has standing to participate in proceedings to determine issues such as placement and visitation of a child. Where orders involving termination, placement, and visitation are issued as part of the same adjudication of a termination proceeding, a parent has standing to press on appeal any challenge that he or she has not expressly waived to that adjudication. There being no error in the judge’s decrees in this case, we affirm the orders denying posttermination or postadoption parental visitation.
So ordered.
The children contend that the judge held them to an impermissibly high standard of proof, requiring them to prove by “clear and convincing evidence” that visitation is in their best interests. Regardless of how the judge’s order was phrased, however, the underlying subsidiary factual findings amply support the judge’s determination that (except between Douglas and the mother) there was no “significant, existing bond” with the biological parent.
Adoption of Vito,
Notes
The biological father of the four younger children (Brian, Mark, Cole, and Frank) is not a party to this appeal.
The biological father of Douglas and Tom (father I) was convicted of murder in the first degree in 2005, and is presently serving a life sentence without the possibility parole.
During the colloquy with father I, the judge stated, “The only thing that you would have the right to appeal would be if the plan is something different than what you propose.”
The judge initially deferred approval of the plan regarding placement with respect to one child. He subsequently approved the plan.
Although detailed written findings are not required when a parent has consented to the entry of a decree terminating his or her parental rights, a judge nonetheless must determine that the stipulation was knowing and voluntary, that the parent is currently unfit, and that termination is in the child’s best interests. See
Adoption of John,
In
Adoption of Rico,
The biological father in this case and in Adoption of Rico participated as of right in proceedings culminating in a decision that both ordered the termination of their parental rights and resolved visitation and other issues. In the circumstances, father I has the same standing as the biological father in Adoption of Rico, who chose not to pursue an appeal of the termination of his parental rights in this court.
Although a parent’s right to participate in a termination proceeding and to challenge on appeal any adverse ruling that may result may be limited or waived by stipulation, those rights may not be expanded to confer standing where it is otherwise lacking. See
Adoption of Malik,
The appellate record is inadequate to support the mother’s claims. See
Adoption of Mary,
The department did not propose that the two youngest children have visitation with the mother. The two youngest children support the judge’s orders with respect to parental visitation. The department also proposed continuing sibling visitation. The judge’s orders concerning sibling visitation are not at issue on appeal.
A judicial order requiring posttermination visitation is “a reflection of the judge’s determination that, at that time, the child’s interests would best be served by such an order.”
Adoption of Rico,