In re Thomasina, 08-P-1919.
| Decision Date | 27 October 2009 |
| Docket Number | No. 08-P-1919.,08-P-1919. |
| Citation | 75 Mass. App. Ct. 563,915 N.E.2d 569 |
| Parties | Care And Protection of THOMASINA (and a companion case<SMALL><SUP>1</SUP></SMALL>). |
| Court | Appeals Court of Massachusetts |
Brad P. Bennion for the mother.
Patrick J. Roache, Jr., Boston, for the father.
Brian R. Pariser for Department of Children and Families.
Peter M. Gately, Franklin, for the children, submitted a brief.
Present: DUFFLY, KAFKER, & GRAINGER, JJ.
A judge of the Juvenile Court adjudicated Thomasina and Neil to be in need of care and protection and committed them to the permanent custody of the Department of Children and Families (department), pursuant to G.L. c. 119, § 26, as in effect prior to St.2008, c. 176, § 84, and St.2008, c. 215, § 64D.2 The biological mother of Thomasina and Neil, and Thomasina's biological father, appeal from that adjudication, both claiming that the judge's ultimate findings are not supported by the evidence and that parental unfitness was not clearly and convincingly established.3 The father additionally claims that the adjudication regarding visitation and placement do not adequately consider Thomasina's best interests.
Following final adjudication in the underlying care and protection action, separate guardianship petitions were filed by Thomasina's and Neil's foster parents. The trial judge—who also had presided over the care and protection proceeding— allowed the guardianship petitions and appointed the foster parents permanent guardians of the children pursuant to G.L. c. 201, §§ 2 and 5, as in effect prior to St.2008, c. 521, § 21.4
The department moved to dismiss the within appeal, arguing that, upon entry of a final judgment on the guardianship petition, the children were no longer in the department's care and custody and any appeal from the care and protection judgment was thus moot. For reasons we shall discuss, we do not agree that the appeal is moot. Proceeding to the merits, we affirm the adjudication placing the children in the department's permanent custody; we will remand for entry of orders as to visits with the children consistent with the judge's findings.
1. Procedural background. As reflected on the dockets, in September, 2006, the department filed its petitions and thereafter pursuant to G.L. c. 119, § 26, sought permanent custody of the children. The department is authorized under that statute to seek an adjudication
It will be significant to the department's claim of mootness that, despite its notice of intent to do so, the department apparently did not, as authorized by G.L. c. 119, § 26(4), seek to "dispense with parental consent to adoption, custody, guardianship or other disposition of the child." Because the department did not seek the dispensation of parental consent, the judge made no order in that regard, nor did she make findings addressing the standards set forth in G.L. c. 210, § 3, as would have been required for termination of parental rights.
Following four days of evidentiary hearings that commenced in early October, 2007, and concluded in November, 2007, the department was awarded permanent custody of Thomasina, age eleven at the time of trial, and Neil, then seven years old. The judge's written findings and "Adjudication, Commitment and Order" issued on August 31, 2008, nunc pro tunc to January 3, 2008. The judge found that "no professional believes that termination of parental rights is in the Children's best interests." The judge then determined that, in light of the foregoing, Additional visits would be permitted at the discretion of the guardians and consistent with the children's best interests. The trial judge concluded:
"[N]either [m]other nor [father] are currently able to assume parental responsibility for the Children, or either of them; ... [m]other and [father] are likely to remain unable to parent the Children for the indefinite future; ... [and] the best interests of the Children are served by granting the Department permanent custody pursuant to G.L. c. 119, § 26, with the goal of placing them in the guardianship of the [foster parents]."5
The father and mother filed timely notices of appeal.
As reflected in the supplemental appendix filed by the department, before the appeal entered on the docket of this court, the trial judge allowed petitions for guardianship under authority of G.L. c. 201, §§ 2 and 5, and appointed the foster parents as permanent guardians of the children.6 It was represented to us during oral argument that a trial had been conducted in connection with the guardianship petition and that the parents have appealed from the judgment. No appeal has been docketed in this court, and the matter is not before us.
2. Discussion. (a) Mootness. We first address the department's motion seeking dismissal on the ground of mootness, which is premised on the department's argument that "allowance of the guardianship petition effectively superseded the care and protection judgment" and that, as a consequence, it "is no longer the custodian of the children, and with the appointment of permanent guardians they are no longer in need of care and protection." The department further argues that the within appeal will serve no purpose as "even a reversal of the final judgment" in the care and protection action "cannot alter the final judgment of the guardianship petition." The parents' sole recourse, according to the department, is to appeal from the entry of the guardianship decrees or to seek revocation of the guardianships.
Our discussion is guided by the principle that "where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." FMR Corp. v. Commissioner of Rev., 441 Mass. 810, 819, 809 N.E.2d 498 (2004), quoting from Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514, 333 N.E.2d 450 (1975). We begin by summarizing the statutory authority and obligations that repose in the department when a child has been committed to its care by a final adjudication under G.L. c. 119, § 26, and the residual rights that remain with parents whose rights have not been terminated under c. 119, § 26(4),7 and G.L. c. 210, § 3.
Where a child has been adjudicated to be in need of care and protection under c. 119, § 26, but parental rights have not been terminated, as here, the child is committed to the department's custody "until he becomes 18 years of age or until, in the opinion of the department, the object of his commitment has been accomplished." The object of the child's commitment, and the department's obligation while the child is committed to its care is to keep the child safe from "serious risk of peril from abuse, neglect, or other activity harmful to the child," at the hands of a parent or guardian.8 Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761, 694 N.E.2d 27 (1998).
As defined in G.L. c. 119, §§ 21 and 23(a)(3), as appearing in St.2008, c. 176, § 83,9 custody of a child gives to the department certain powers, including the power to "determine the child's place of abode, medical care and education." The department is generally charged with placing children in its care or custody "in private families" unless the child's best interests require placement in a public or private institution for "special care, treatment or education of children." G.L. c. 119, § 32, as appearing in St.1954, c. 397, § 4. It is responsible for ongoing visitation between parent and child. G.L. c. 119, § 35. The department also plays a role in both grandparent and sibling visitation. See G.L. c. 119, § 26B, inserted by St.2008, c. 176, § 84.10
(i) any individual who, after study by a probation officer or other person or agency designated by the court, is found by the court to be qualified to give care to the child;
(ii) any agency, or other private organization licensed or otherwise authorized by law to receive and provide care for the child;
(iii) the department of [children and families].
"(3) It may order appropriate physical care including medical or dental care."
As noted earlier, the court may also— but did not do so here—"enter an order to dispense with the need for consent ... to the adoption, custody, guardianship or other disposition of the child ..., upon a finding that the child is need of care and protection pursuant to [c. 119, § 26,] and that the best interests of...
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