46 Mass. App. Ct. 64 | Mass. App. Ct. | 1998
This is an appeal from a decree entered by the
The issues on appeal involve only the mother’s younger daughter, Karla, the custody of the older child having been resolved by the parties prior to the filing of the briefs. The procedural posture of the case is unusual. After a three-day trial in May, 1995, the judge entered findings, dated July 19, 1995, stating that although she could not conclude by clear and convincing evidence that the mother was then unfit, she also could not conclude that the mother was “able to meet the needs of her children once they are returned to her.” The judge then ordered the matter continued for six months, during which time “[t]he parties shall transition the children to [the mother’s] home, completing the process in time for the beginning of school in September.” She retained jurisdiction over the matter. Upon the Department of Social Services’ (department) subsequent motion to stay placement of the children with their mother, the judge took additional evidence and, thereafter, entered a decree on December 14, 1995, dispensing with the mother’s consent to adoption. We turn to the issues posed by the mother on appeal.
1. Issue preclusion. The mother argues that the July 19, 1995, determination that the department had not proven her currently unfit had preclusive effect on the issue of the mother’s fitness, thereby prohibiting the judge from entering a subsequent finding of unfitness based on new evidence. The department counters that issue preclusion is inapplicable because the July findings did not take the form of a final judgment.
As a general matter, a final judgment is required for issue preclusion to come into play. Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 n.2 (1992). Fay v. Federal Natl. Mort. Assn., 419 Mass. 782, 790 (1995). However, it has been said that “finality” for issue preclusion purposes does not necessarily mean a final judgment in the traditional sense. Tausevich v. Board of Appeals of Stoughton, 402 Mass. 146, 148 (1988). While exceptions do exist to the final judgment requirement, the availability of appellate review is a critical factor in determin
From a procedural standpoint, issue preclusion would seem not to apply here. To begin, the July, 1995, findings clearly did not take the form of a final judgment or decree. Cf. Mass.R. Civ.P. 58(a), as amended, 371 Mass. 908 (1977). Compare Adoption of Reid, 39 Mass. App. Ct. 338, 341 (1995) (although neither Massachusetts Rules of Civil Procedure nor Massachusetts Rules of Domestic Relations Procedure apply to petitions to dispense with consent to adoption, “we proceed[ed] by analogy to” selected rules, “which may be used as a ‘cogent standard’ ” [citations omitted]). See G. L. c. 210, § 3(b) Sc (c) (providing that the court is to determine whether the best interest of the child will be served by issuing a decree dispensing with the need for consent, the entry of said decree terminating the parent’s rights). Nor are we persuaded that the findings, which by their express terms contemplate further proceedings, constitute an appealable order. See generally Mancuso v. Mancuso, 10 Mass. App. Ct. 395, 398-401 (1980) (interlocutory appeal of Probate Court orders available only by statute or judicial authorization, particularly where express terms of interlocutory order indicated that it was not intended to be a final adjudication of the parties’ rights); School Comm, of Quincy v. Quincy Educ. Assn., 22 Mass. App. Ct. 914, 915 (1986) (since the judge’s order for remand to arbitrator was one which expressly contemplated further hearing, it was not appealable). The judge, apparently in reliance on Adoption of Carlos, 413 Mass. 339,
The mother argues that, even if a final judgment or decree did not enter, the findings on the issue of the mother’s fitness should have precluded further litigation, that the findings constituted an appealable decision in substance if not in form. To be sure, the judge, although expressly continuing the case for six months and retaining jurisdiction of the reunification process, did not announce her intention to hear new evidence until the parties convened at the October 25, 1995, hearing. The Supreme Judicial Court in Adoption of Carlos, 413 Mass, at 350-351, impliedly approved postponing final judgment in c. 210 cases to permit the judge to reconsider parental fitness beyond the time of trial and into the future. “None of our cases, in which we have said that current parental unfitness is a prerequisite to the allowance of a petition to dispense with consent to adoption, should be construed as requiring such an extreme step whenever the parents are currently unfit, or as
We need not reach the issue. Even assuming, without deciding, that the July, 1995, findings were binding on subsequent proceedings, we nevertheless view the department’s September 22, 1995, motion to stay reunification based on changed circumstances as effectively a motion for reconsideration of the findings regarding fitness based on new or newly discovered evidence. In her December 14, 1995, findings, the judge recounted the September 22, 1995, telephone conference she held with counsel, wherein the department reported that circumstances regarding the mother’s fitness had changed since the May, 1995, hearing. A motion for reconsideration or stay is commonly employed to revisit orders entered in the trial court. See, e.g., Harris v. Commissioner of Correction, 409 Mass. 472, 474 (1991) (commissioner moved for reconsideration and for a stay of order that an inmate, who claimed deficiencies in his transfer hearing, be returned to Massachusetts); Department of Mental Retardation v. Kendrew, 418 Mass. 50, 52-53 (1994) (department moved for reconsideration and a stay of the judge’s order to place the defendant in a long-term residential program); Care & Protection of Isaac, 419 Mass. 602, 604 (1995) (department moved for reconsideration and a stay of an order that the minor be returned to school with additional staff support rather than retained in a residential facility); Guardianship of Brandon, 424 Mass. 482, 499-500 (1997) (department moved for reconsideration of findings and order regarding the ward’s treatment plan in light of intervening determination that treatment center was not in compliance with departmental regulations).
Primary among the evidence that was first discovered after the May, 1995, hearing was, we think, the revelations of Karla’s older sister regarding the mother’s conduct during the seven-week period in the fall of 1994 when the two girls were returned to her. As described in the judge’s findings, the older sibling reported to her therapist that the mother had permitted her boyfriend to engage in drug use in front of the children, that the mother had left the girls alone for days at a time, and that the girls had to prepare their own food and on occasion go without food. That information, which the judge found as supporting a finding of unfitness in these circumstances, could not have been offered at the first hearing. Although the older sibling had been in therapy since January, 1995, the judge found that the child’s feelings toward the mother only began to emerge in therapy since May, 1995. Accordingly, the information regarding the mother’s poor parenting skills during her brief period of custody, revealed in the older daughter’s therapy after May, 1995, was not available and could not have been discovered for presentation to the judge at the first hearing.
Also significant was the updated report and testimony of the newly assigned departmental social worker, as reflected in the judge’s findings, regarding the mother’s supervised visits with Karla, which took place after the May, 1995, hearing. The evidence indicated that the mother, although keeping her appointments for visits with Karla, did not focus adequately on Karla’s emotional needs during their time together. She repeatedly brought other adults or children to the visits, despite being asked not to do so, and was once observed reading the newspaper instead of interacting with Karla, even refusing the child’s request that the mother read to her. The social worker
Less compelling, in terms of new or newly discovered evidence under the rule 60(b)(2) standard, was the information offered by the guardian ad litem. While much of it pertains to his observations of interactions between the mother and the children and interviews which occurred subsequent to the May, 1995, hearing, it is likely that some of those observations, at least as to Karla’s relationship with her mother and with Karla’s foster mother, would have been available for report to the judge at the May, 1995, hearing, had the guardian ad litem been appointed earlier. On the other hand, the information offered by the guardian ad litem, viewed in the context of the older sibling’s recent disclosures and the new social worker’s observations about the mother, may have increased the judge’s concerns about the mother’s ability to meet the specific needs of a child who had been in foster care since shortly after her birth.
Whether or not the July, 1995, findings as to the mother’s fitness were correct when they were entered based on the available evidence, subsequent events over the summer and fall of 1995 supported a different result. We are also mindful that “[i]n any proceeding involving the custody of a child concerns of res judicata must inevitably give way to an overriding concern for the welfare of the child.” Cennami v. Department of Pub. Welfare, 5 Mass. App. Ct. 403, 408 (1977). In the circumstances of this case, where the parent had played a marginal role in the child’s upbringing since birth, we hold that the judge’s earlier finding regarding lack of proof of unfitness did not preclude her subsequent finding of unfitness, based on new or newly discovered evidence.
2. Clear and convincing evidence of unfitness. The mother additionally contends that the judge’s December 14, 1995, findings were unsupported in the record. Specifically, she insists that several of the December findings were inconsistent with the July findings without any new evidence to support those changes.
The familiar standard in G. L. c. 210 proceedings calls for proof of parental unfitness by clear and convincing evidence.
In our res judicata discussion, above, we outlined the new evidence that was not available and not discoverable for the May hearing. This evidence, in particular the disclosures by Karla’s older sister regarding their mother’s inattentive parenting during the seven weeks when the girls were in the mother’s custody and the observations of the department’s social worker regarding the mother’s lack of sensitivity toward Karla’s emotional needs over the summer months, support the judge’s change of position on the statutory factors argued in the mother’s brief. In addition, the guardian ad litem’s report provided significant support for the judge’s findings regarding Karla’s attachment to her foster mother and the damaging effects of severing those ties after several years, particularly where the mother showed little sensitivity to Karla’s needs and her bond with the foster mother. While not dispositive, Karla’s ties to her foster mother were properly weighed in the ultimate balance. Adoption of Nicole, 40 Mass. App. Ct. at 262-263 (judge found that removal of child from adoptive parents, with whom she had lived since shortly after birth, would place child at serious psychological risk).
We conclude that the judge’s findings are adequately supported in the record and that the department proved parental unfitness to further the best interests of the child by clear and convincing evidence. The decree entered in the Probate and Family Court allowing the department’s petition to dispense with the mother’s consent for adoption of Karla is affirmed.
Decree affirmed.
We note that the cases cited in the mother’s brief regarding the requirements for issue preclusion involved prior proceedings that went to judgment.
The judge did not cite to Adoption of Carlos in her July, 1995, findings, but referred to the case in response to the mother’s counsel’s objections to the taking of new evidence at the hearing on October 25, 1995.