Termination of Parental Rights and the Effective Assistance of Counsel

In a recent decision, Adoption of Ulrich, the Massachusetts Appeals Court addressed the termination of parental rights of a mother of five children, along with the mother’s entitlement to effective assistance of counsel.

The mother in this case had a lengthy criminal history and was the subject of five abuse prevention orders. The Department of Children and Families filed a care and protection proceeding on behalf of the children after the mother was arrested for stabbing the children’s father with a pair of scissors, with the children witnessing the incident. Temporary custody was initially granted to the maternal grandmother, then to a paternal aunt; however, after evidence of abuse in the aunt’s home emerged, the Department retained custody of the children.

In the following years, the mother’s willingness to work on her mental health and substance dependency issues fluctuated: at times, she was unwilling to enter a residential program or see her therapist, while at other times, she was willing to do so. Likewise, her visits with her children ranged from “successful to disastrous,” as the Court put it, some of the visits ending with the children running out of the room and crying and the mother hurling obscenities at them.

After a particularly tumultuous visit in which the mother declared that she was “done” and “these kids aren’t [my] issue, let their workers deal with them,” the Department informed the mother that her parental rights would be terminated. After a trial, the judge issued orders terminating the mother and father’s parental rights.

The mother appealed. After the mother entered the appeal, she motioned the Court to stay the appellate proceedings, so that she could bring a claim of ineffective assistance of counsel, vying for a new trial in the Juvenile Court. A single appellate justice heard that motion and denied it. The Appeals Court acknowledged that the mother was entitled to the effective assistance of counsel in a termination of parental rights proceeding.

However, the Court agreed with the single justice, holding: “we discern no error of law or abuse of discretion in any choice by the single justice to consider the prospects of the mother’s new trial motion for success in the Juvenile Court if a stay were granted; indeed, such consideration is entirely consistent with the consideration of judicial economy…and the interest in prompt resolution of custody. Placing the appellate process on hold to allow prosecution of a fruitless new trial motion in the trial court would serve neither interest.”

The Appeals Court then looked at the crux of the mother’s claim for ineffective assistance of counsel: he claims that her attorney erred by not calling the maternal grandmother to testify at trial. The Court noted that the mother at one point accused the grandmother of fabricating claims of sexual assault, which made it entirely reasonable for the mother’s attorney not to call the grandmother as a witness, in order to avoid damaging testimony elicited on cross-examination. “In any event, the evidence of the mother’s unfitness was overwhelming, without regard to the matters about which the mother now claims the maternal grandmother should have testified,” the Court noted. “It is accordingly unlikely that the decision of trial counsel about which the mother now complains had any bearing on the result of the trial.”

The Appeals Court then considered the mother’s parental fitness, ultimately affirming the trial judge’s decision to terminate parental rights. As the Court described, parental rights can only be terminated when it is in the best interests of the child and when the judge determines that the parent is unfit. In this case, the Court held, there was ample evidence that the mother was unfit. Moreover, the Court noted that mere participation in services does not render a parent fit, without some discernible evidence of improvement of her parenting.

The Appeals Court also noted that it was in the best interests of each of the mother’s five children to terminate parental rights, allowing the children to be placed in homes which would assist them with their various mental health issues, early intervention services, therapy programs, and a stable environment.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours.

Testimony in Care and Protection Cases: New Massachusetts Case Law

In care and protection cases, important pieces of evidence are introduced in order for the court to decide issues of custody and visitation. One example, which serves to be significant evidence in care and protection cases, deals with the testimony, notes, and assessment of the social worker who is assigned to the case.

That testimony was at the heart of a recent case decided by the Massachusetts Appeals Court. In the case, Adoption of Luc, a birth mother’s parental rights were terminated by the Juvenile Court. At trial, the social worker who was assigned to the case testified on direct examination. The trial was then continued for several months. Before the trial resumed, and before the mother may have had the chance to cross-examine the social worker, the social worker died.

The trial judge struck and excluded the social worker’s testimony, but he allowed into evidence the dictation notes, reports, and assessments of the social worker, subject to some limitations and to rebuttal. The social worker’s supervisor testified in his stead, and she was allowed to summarize some of the contents of his reports. It should be noted that the judge only allowed in statements of fact and excluded any statements of opinion or impressions.

On appeal, the birth mother claimed that the evidence was admitted in error; that the documents were hearsay which should have been excluded by the trial judge; and that she was unduly prejudiced by their admission, as she was unable to cross-examine the author of the documents due to his death.

The Appeals Court disagreed, holding that the reports and assessments documents were widely recognized to be admissible under the public documents exception to the hearsay rule, while the dictation notes, which made up the basis for those reports, were admissible as declarations of a deceased person.

“The underlying reports were prepared by numerous professionals who also have an obligation to make truthful and accurate reports to the department ‘as a matter of duty and routine,’” the Court stated. “Any prejudice stemming from the factual observations of the service providers is found not in the summary prepared by the department social worker, but in the observations of the service providers themselves. This second-level hearsay may be rebutted by subpoenaing the source.”

Moreover, the Court noted that the mother herself did not dispute some of the findings of the social worker which were introduced, such as the fact that she failed to attend her Alcoholics Anonymous meetings and left the child alone with her brother, who recently had been arrested for sexual assault. With the evidence properly admitted, the Court held that the trial judge properly found that parental rights of the birth mother should be terminated. “The mother’s long-term history of mental illness, sporadically treated, her reliance on drugs and alcohol to self-medicate, her positive urine screens during the pendency of the case, her noncompliance with service plans, and her inability to attend to Luc, coupled with the systematic neglect of her six older children due to the same untreated mental health and substance abuse issues, ‘proved parental unfitness by clear and convincing evidence[,]’” the Court held.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Step-Parent Adoptions

Today, society embraces blended families. Heartwarming stories about adoption and the wonderful gift of having a child abound. Often, a new marriage following a divorce brings children into the equation.

If you are a new step-parent, you may be interested in the possibility of adopting your step-child. Adoption may create a closer bond with you and your step-child, as well as a more stable family unit. This process can become complicated and complex, but also very rewarding for both you and the child. As family attorneys, we frequently deal with step-parents’ interest in adoption and are happy to assist you in this process.

In Massachusetts, a step-parent may adopt a step-child. To begin this process, a step-parent may file a petition to adopt, as long as the child is the step-parent’s spouse’s child. If the child you are adopting is over 14 years old, you must also obtain his or her consent to confirm that the child would like to be adopted. Additionally, your spouse must have legal and physical custody of the child. Legal custody means that a parent makes important decisions on behalf of their child regarding education, religion, and medical decisions. Physical custody determines where a child’s primary residence is.

For an adoption petition, a child must be in physical custody of the step-parent and spouse-parent for at least six months before the petition is filed. Also, it is important to know that the biological parent without custody must relinquish any parental rights in order for the adoption to take place. In these situations, we encourage step-parents to assess their family dynamic, the biological parent’s involvement in the child’s life, and what would be in the best interest of the child. Please be aware that the Commonwealth encourages both biological parents to be in a child’s life. If this is occurring, then step-parent adoption may not be possible, as both biological parents have an active role.

However, a step-parent may be forced to take on the responsibility of a biological parent. There are many instances in which a child can suffer severe physical or emotional damage if they remain in connection with their biological parent. Physical abuse, emotional abuse, substance abuse, incarceration, and death are just some of the reasons why a step-parent may be put in a position to adopt a stepchild. It is important to be sensitive to the reasons why a biological parent is suddenly unfit to be part of their child’s life. While you may be a better suited parent, custody and adoption hearings can be very contentious. As there are many parties, each wanting different outcomes, our family law attorneys will help you navigate the adoption process. Also, we will assist in ensuring that any court orders or pre-existing agreements are terminated by the time an adoption takes place.

Once the petition is approved, the adoption process differs from a standard adoption. A standard adoption involves the Commonwealth’s analysis of whether you and your spouse would be fit parents. However, as it is likely your spouse is a fit parent, and it is their child, home studies and state intervention are not required.

Once you adopt your stepchild, you take on the legal and physical rights of becoming the child’s guardian. As a responsible parent, you take on the responsibility of financially and emotionally supporting your spouse’s child. With your spouse, you will have the ability to make decisions on a child’s education, medical care and religion. You will also have the opportunity to give your stepchild benefits, such as health insurance.

Additionally, the process changes the child’s birth certificate, replacing the absentee parent’s name with yours. Through this process, your stepchild will be able to inherit under your will. In this case, as you are now the guardian of this child, they can inherit through intestacy under a will, even though you are not biologically connected. Also, if you and your spouse divorce, you may be liable for child support and custody of your stepchild since you have taken financial responsibility of this child.

If you have questions or concerns about issues involving family law, alimony, custody, child support, and more, you should contact a competent attorney. Our divorce, family, and domestic relations attorneys may be able to work on your behalf to handle your case. Contact our offices by phone at 978-225-9030 during business hours to schedule a free consultation. We will respond to you as soon as possible.


Absent Parents and Termination of Parental Rights: New Case Law

A judge may draw a negative inference from a parent’s absence and find that the parent is unfit, terminating parental rights, according to a recent decision of the Massachusetts Appeals Court.

In Adoption of Talik, the Court terminated parental rights of a mother failed to attend a trial regarding reunification with her child.  Adoption of Talik, 92 Mass. App. Ct. 367 (2017). The child, born in 2013, tested positive for narcotics at birth and was placed in the custody of the Department of Children and Families, then shortly after discharged to the care of his foster parents.

DCF drafted a service plan for the mother, with the goal of reunifying the mother and the child. Under that plan, the mother was to participate in substance abuse treatment, provide toxicology screens, and attend visits with her child, among other tasks. Due to a lack of attendance, the mother was discharged from the program.

Soon thereafter, DCF’s goal changed to that of adoption. A relative of the child who resided in California expressed interest in having the child placed with her, and California Child Protective Services conducted a placement study. The study concluded that the relative’s home did not meet the proper standards for placement as applied in Massachusetts, and the child remained with his foster parents. The mother sued, claiming that DCF abused its discretion, and seeking to have the child placed in the care of the relative.

During the trial, the mother’s attorney was present, but the mother was absent despite having had notice of the proceedings. The judge issued a decision terminating the mother’s parental rights and approving DCF’s plan to have the child adopted by his foster parents. On appeal, the mother argued an abuse of discretion by the trial judge.

The Appeals Court affirmed the trial judge’s decision. “[A]n adverse inference may be drawn against a parent who, despite having received notice, is absent from a child custody or termination proceeding, even though such an inference would be impermissible in a criminal matter absent affirmative evidence showing consciousness of guilt,” the Court stated. “Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child’s best interests.” Id., at 371-372.

The Court further explained that the trial judge has discretion to determine whether to draw such an inference, considering whether such inference is fair and reasonable based on all applicable circumstances. In the present case, the Court noted, the judge did not abuse his discretion, given the mother’s history of substance abuse, long history of domestic violence, failure to continue treatment, and noncompliance with the service plan.

If you need more information about Massachusetts family law, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form and we will respond to your phone call or submission promptly.



Open Adoption Agreements and Enforceability: New Case Law

In a recent case, of interest to adoption attorneys and parties alike, the Massachusetts Appeals Court discussed open adoption agreements, specifically the enforcement of clauses in those agreements which were at the sole discretion of the adoptive parents.

In the case at hand, the adoptive parents adopted two children who were both born to the biological parents. The first child was born in 2008 and placed with the adoptive parents at age thirteen months. As family law lawyers, it’s not uncommon to see substance abuse and mental health issues transcend from biological parents to adoptive children. This particular adoptive child had diagnoses of fetal alcohol syndrome, neurosensory hearing loss, and anxiety. The second child, her sister, was born in 2012 with neonatal abstinence syndrome; she was placed in the adoptive parents’ care immediately after her discharge from intensive care.

The parties opted for an open adoption, putting in place open adoption agreements for each child, executed by the biological parents and adoptive parents. The biological parents were allowed visitation with the children.

Regarding the agreement between the parties, the Court explained as follows: “As pertinent here, the agreement provides that, in the event a visit “causes undue stress or anxiety to the Child,” the adoptive parents “have the sole ability to modify visitation to conform to what they believe is in that child’s best interest, including the ability to terminate the visit.” Further, “[t]he visits will be considered unduly stressful if either as a result of a visit, or in anticipation of one, the Child demonstrates, either verbally or behaviorally, that the visit is detrimental to the [child’s] welfare.” 2  This guidance is instructive to an adoption attorney considering the route of open adoption for his or her client.

In addition, the agreement provided that the biological parents were to provide the adoptive parents with a working phone number at all times. It also provided that either side may seek specific performance from the other.

In June 2014, the adoptive mother sent a letter to the biological parents, notifying them that visitations were terminated. As reasons, she listed that the biological parents failed to provide a working phone number, and that they refused to stop referring to themselves as “mom and dad,” thereby causing the children stress and anxiety.

At a hearing regarding the biological parents’ rights to visitation, the judge issued an order reinstating visitation. She found that the failure to provide a working phone number was not a material breach of the agreement, and that there was no evidence that using the term “mom and dad” was detrimental to the children’s welfare. Experienced adoption attorneys would clearly have an valid argument on either side of that issue.

The adoptive parents appealed. They argued that the hearing judge erred in not following the law regarding enforcement of open adoption agreements, abrogating their statutory and contractual rights. They also argued that they had exercised their explicit right to terminate visitation based on the biological parents’ breach of the agreement.

The Appeals Court vacated the judge’s order, siding with the adoptive parents, and holding that the judge overstepped her bounds. “The fact that the judge did not follow the requirements of the statute or the agreement when she modified the agreement suggests that she believed that she was exercising her general equitable powers,” the Appeals Court explained. “As we have already observed however, the court’s general equitable powers are not available for use in matters controlled by the provisions of [the applicable law], or in contradiction of the applicable and specific contract provisions. Equity cannot be used when there is a prescribed and adequate remedy at law…Instead, the judge must follow the requirements of the statute and the agreement.” 3

The Appeals Court also explained that the biological parents were granted sole discretionary powers as to the occurrence of a condition—in this case, provision of a working phone number, among others. When this is the case, the court explained, the standard to review is whether the parties acted honestly and in good faith.

“The judge must follow the requirements of the relevant statutes, applicable provisions of the agreement, and our common law as related to contract interpretation and enforcement,” The Court noted. “[T}he judge should consider whatever evidence is probative, and necessary, to determine whether the adoptive parents acted honestly and in good faith in terminating the agreement. Pending final disposition, the judge may make such temporary orders for continued visitation as she may deem appropriate.”

If you have any questions about adoption or family law generally, our experienced family law attorneys are here to help. Call our office or schedule a free consultation today.


1 S.M. & another v. M.P. & another, No. 15-P-1047 (April 12, 2017-July 14, 2017).

2 Id., at 4.

3 Id., at 8.

Is Parental Consent Needed in an Adoption Case?

Typically, written consent of certain parties is required before an adoption may take place; the requirements are set forth in Massachusetts General Laws, chapter 210, section 2. If the child being adopted is over the age of 12, consent by the child is needed. If the person being adopted is an adult who is married, consent of the person’s spouse is also needed.

In addition, written consent of the “lawful parents” must also be obtained before the adoption may go forward. If the child was born during a valid marriage, both biological parents must provide consent. If the child was born out of wedlock, only the consent of the mother is required; the father is entitled to notice of the adoption proceedings and may request custody, so long as he was adjudicated the father, or has filed a parental responsibility form with the Department of Children and Families.

According to the statute, the form of written consent must take the following shape:

I, as the (relationship) of (name of child), age , of the sex , born in (place of birth), on (date of birth), do hereby voluntarily and unconditionally surrender (child) to the care and custody of (agency or person receiving custody) for the purpose of adoption or such other disposition as may be made by a court of competent jurisdiction. I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).


Under some circumstances, however, the courts may dispense with parental consent and allow an adoption to proceed without it. As with all issues dealing with custody, the court will use the “best interest of the child” standard: the court may dispense with parental consent only where it is in the best interests of the child to do so. According to Massachusetts General Laws, chapter 210, section 3, there are many statutory factors which the court will consider in determining parental fitness. Some of them include:

• Abandonment of the child;
• Severe or repetitive conduct of a physically, emotionally or sexually abusive or neglectful nature toward the child or toward another child in the home;
• Willful failure to visit the child where the child is not within the parent’s custody;
• A prior pattern of parental neglect or misconduct or an assault constituting a felony which resulted in serious bodily injury to the child and a likelihood of future harm to the child
based on such prior pattern or assault; and many others.

In one important case, the Supreme Judicial Court considered whether the trial judge erred in holding that a mother was proven by clear and convincing evidence to be an unfit parent, dispensing with the requirement of parental consent in the adoption of her two children. “The judge made ninety-seven findings of fact, each of which is supported by the evidence. The findings establish that Mary’s long-term history of substance abuse and mental illness (the latter of which continued through trial), combined with patterns of ongoing, repeated, serious parental neglect, abuse and misconduct, made her an unfit parent,” the Court noted. “The judge was warranted in finding and concluding that, while Mary had made progress in some areas, she ‘had made no progress in ways that would assist her in getting her children back.’”

If you have any questions about issues of divorce, custody, or other domestic relations issues, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.


[1] Mass. Gen. Laws, ch. 210, s. 2.

[2] Mass. Gen. Laws, ch. 210, s. 3.

[3] Adoption of Georgia, 433 Mass. 62 (2000).

[4] Id., at 66.