Guardianship Of Phelan.
| Decision Date | 20 May 2010 |
| Docket Number | No. 09-P-1452.,09-P-1452. |
| Citation | 76 Mass.App.Ct. 742,926 N.E.2d 566 |
| Parties | GUARDIANSHIP OF PHELAN. |
| Court | Appeals Court of Massachusetts |
Claudia Leis Bolgen, Woburn, for the aunt.
Brian Pariser for Department of Children and Families.
Maura J. Hardiman for the child.
Present: LENK, DUFFLY, & McHUGH, JJ.
The maternal aunt of a child, Phelan, appeals from (1) a judgment of the Juvenile Court dismissing her petition for appointment as guardian, with custody, of Phelan, and (2) an order of the single justice of this court staying the dismissal of the guardianship petition pending appeal but denying her request, as interpreted by the single justice, to stay the progress of the adoption of Phelan flowing from a care and protection action. We vacate the judgment dismissing the petition for guardianship and remand the matter to the Juvenile Court for a prompt trial on the petition. We dismiss the appeal from the order of the single justice.
1 Background.2 Phelan was born in the State of Georgia in December of 1997; no father was listed on his birth certificate. Before Phelan's birth, the aunt, who then apparently resided in Georgia, was granted custody of five of Phelan's older siblings by a Georgia court. In 2003, a Georgia court found Phelan and his sister, May, to be “deprived” and ordered that temporary custody of the children be removed from their biological mother and placed with the aunt (who had moved to Massachusetts) “under the protective supervision” of the Massachusetts Department of Children and Families (department). After a finding in 2004 that the two children continued to be “deprived,” the Georgia court ordered that “long term relative placement of the children is granted to the ... aunt.”
On November 2, 2005, the department filed a care and protection petition against the aunt on behalf of Phelan and four of his siblings alleging physical abuse (corporal punishment) of the children by the aunt.3 A judge of the Juvenile Court awarded emergency temporary custody of the children to the department on that date, and Phelan was placed in a foster home. On November 7, 2005, the aunt waived her right to a seventy-two hour hearing, and the judge awarded temporary custody of the children to the department.
On September 15, 2006, the aunt, represented by counsel, stipulated to a finding of unfitness, and the children were found in need of care and protection. At the time the aunt stipulated to unfitness, the department's goal was reunification of the children with the aunt. However, by late October, 2006, the department had changed its goal with respect to Phelan and May to adoption.4
In May, 2007, the aunt filed a motion to stay the care and protection proceedings pending the resolution of certain jurisdictional issues. After a hearing, the Juvenile Court judge rejected the aunt's jurisdictional challenges and determined further that the aunt had never been conferred with guardianship status with respect to Phelan and had no other standing to participate in the care and protection proceedings. The aunt did not appeal the judge's order dated September 5, 2007.5
On September 14, 2007, the aunt filed the instant petition for appointment of guardian of minor child pursuant to G.L. c. 201, in which she sought to be appointed guardian of Phelan, with custody. A hearing on the merits of the petition was scheduled for January 25, 2008. In the meantime, a hearing was scheduled on that same date on the department's permanency plan (dated November 15, 2007) in the care and protection case, in which the department sought to place Phelan for adoption. Although lacking party status in the care and protection proceeding, in both proceedings the aunt filed objections to the department's permanency plan and submitted an alternative permanency plan in which she requested that Phelan be reunited with her.
On January 23, 2008, the aunt filed a motion to intervene in the care and protection action with respect to Phelan and May. She also filed a motion requesting the judge to consolidate and order a joint hearing on the merits in the care and protection and guardianship matters (and to grant her full party status in the care and protection proceeding).
On January 25, 2008, the aunt's motions to intervene and to consolidate were denied (although the denials appear only on the docket in the care and protection proceeding), the petition for guardianship was referred to mediation,6 and, after a hearing, the judge approved the department's permanent plan of adoption for Phelan and determined that the department had made reasonable efforts to implement that plan. The aunt did not attempt to appeal from the orders denying her motions to intervene and to consolidate.
The biological mother executed an adoption surrender with respect to Phelan on March 14, 2008, and on October 9, 2008, the judge terminated the parental rights of any unknown or unnamed father. A guardian ad litem for Phelan was also appointed in the guardianship proceeding and filed an “updated report.” 7
2. The motion to dismiss. On December 15, 2008, the department and the child filed a joint motion to dismiss the guardianship petition (unsupported by affidavit), which was heard on December 16, the day trial on the petition was to commence.8 At the time of the hearing on the motion, it was undisputed that three of the four siblings (including May) who were removed with Phelan from the aunt's custody through the care and protection proceeding had been returned to the aunt's care and custody.9 It was the department's position at the hearing, as well as that of then counsel for Phelan, that notwithstanding the reunification of Phelan's siblings with the aunt, Phelan had been in his preadoptive foster home since 2005 and, as evidenced, in part, by the guardian ad litem's updated report (which was before the judge), had psychologically bonded with his preadoptive family and had been thriving in that home, had consistently expressed his view that he did not wish to return to the care and custody of the aunt, and had suffered emotional scars from his time with the aunt that would render his return to the aunt traumatic. Continuing, counsel noted that the guardian ad litem had recommended that Phelan remain in his preadoptive home and that adoption be completed as soon as possible, and that the current plan for adoption had been approved by the judge in the care and protection proceeding.10 In counsels' view, even if they were to “stipulate to anything [the aunt's counsel] were to present to the court,” there simply could be no basis for the judge to conclude that it was necessary, convenient, and in Phelan's best interests to be placed in the permanent guardianship of the aunt.
The aunt, in response, stated through counsel that the department and the child's attorney were, in effect, attempting to turn their motion to dismiss into one for summary judgment and that there were contested issues for trial in the case. More specifically, counsel asserted that the aunt had “evidence to put [i]n” that would show that things had changed since September, 2006: she had engaged a therapist and participated in a program for African-American families to help her address and change the disciplinary system she had grown up with, she had renounced and refrained from the use of physical punishment with the children, and she had participated in other programs and would call witnesses to show how she had changed and how she now addressed family and disciplinary issues, and that she, as a registered nurse and one who had participated in such programs, could assist Phelan with any issues of trauma resulting from his reunification with her and his siblings. Counsel for the aunt also represented that the siblings in her care were having difficulty visiting Phelan in his placement home 11 and were “anxious to come in and tell the court why they wanted [Phelan] to come home and live with them at their [aunt's] house.” 12 Counsel requested that the trial go forward so that the judge could hear the evidence “that so far [she had] only heard in reviews and in oral recitation by counsel or in written reports from [the department] or from the guardian ad litem.”
At the close of the hearing on the motion to dismiss, the judge allowed orally the motion, stating that even assuming everything the aunt's counsel stated were true “in terms of [the aunt] and about the siblings wanting visitation and the like,” none of it was “focused on the best interests” of Phelan. Rather, the judge pointed to the two care and protection actions that had been brought against the aunt which implicated Phelan and the aunt's stipulation of unfitness and the commitment of Phelan to the custody of the department. The judge noted, in addition, that she had made “several findings” based on a social worker's report that included the recommendation of Phelan's therapist that adoption was in the best interests of Phelan. Even assuming, the judge stated, that she struck all the grounds for the guardian ad litem's recommendation to which the aunt had objected, she still was left with the “inescapable recommendation by the GAL, back in March of '07 [in the care and protection case] as well as today ... that it is in the best interest of this child to be adopted.” 13 The judge also made reference to statements by an expert retained by the aunt that apparently appear in the March 2007, guardian ad litem report that Phelan's “behavioral disregulation” was characteristic of a child with posttraumatic stress symptoms and that Phelan's environment at the aunt's home could best be described as a “toxic environment” for the child. While acknowledging that the environment in the aunt's house had changed, the judge stated: “[B]ut we still have the memories of the traumatic behavior experienced in that home ... [a]nd this is a child who needs to be stable and secure and have some predictability to his...
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