Adoption of Uday

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16-P-801 Appeals Court

ADOPTION OF UDAY.1

No. 16-P-801.

Middlesex. January 5, 2017. - February 16, 2017.

Present: Carhart, Massing, & Lemire, JJ.

Adoption, Dispensing with parent's consent. Minor, Adoption.
Parent and Child, Adoption, Dispensing with parent's
consent to adoption. Indian Child Welfare Act. Practice,
Civil, Adoption, Assistance of counsel.

Petition filed in the Middlesex County Division of the
Juvenile Court Department on May 9, 2013.

The case was heard by Kenneth J. King, J.

Daniel R. Katz for the father.
Kari B. Kipf Horstmann for Department of Children and
Families.
Amy S. DiDonna for the child.

MASSING, J. The father appeals from a decree terminating

his parental rights with respect to his son, Uday.2 He argues

1
A pseudonym.
2

that the Department of Children and Families (department) did

not comply with the notice requirements of the Indian Child

Welfare Act (ICWA), 25 U.S.C. § 1912(a) (2012), that the

department's failure to make reasonable efforts to reunite him

with the child vitiates the judge's finding of parental

unfitness, and that the finding of unfitness is unsupported in

any event. We affirm.

1. ICWA notice. The father contends that despite the

department's knowledge of Uday's possible Cherokee ancestry, it

failed to "notify the . . . Indian child's tribe . . . of the

pending [termination] proceedings." 25 U.S.C. § 1912(a). He

also claims that his attorney was ineffective for failing to

assert an ICWA claim during the proceedings in the Juvenile

Court.

We permitted the department to file a supplemental record

appendix in which the department submitted letters from the

three federally recognized Cherokee tribes -- the Cherokee

Nation, the United Keetoowah Band of Cherokee Indians in

Oklahoma, and the Eastern Band of Cherokee Indians -- all to the

effect that Uday does not qualify as an "Indian child" under 25

2
The mother did not oppose the removal of the child and did
not appeal from the termination of her parental rights.
3

U.S.C. § 1903(4) (2012).3 See Indian Entities Recognized and

Eligible To Receive Services from the United States Bureau of

Indian Affairs, 78 Fed. Reg. 26,384, 26,385, 26,388 (2013)

(listing tribal entities recognized as "Indian tribes" under 25

U.S.C. § 1903[4] and which must be notified of involuntary

custody proceedings in which Indian child is involved). These

responsive letters from the three Cherokee tribes demonstrate

that the department in fact did comply with ICWA notice

provision.

While any ICWA claim the father or child may have had fails

in this instance -- and any claim of ineffective assistance of

counsel in this regard is likewise doomed to failure -- we note

that the Department of the Interior recently added "a new

Subpart I to 25 CFR part 23 to address ICWA implementation by

State courts." Indian Child Welfare Act Proceedings, 81 Fed.

Reg. 38,778, 38,779 (2016). As part of the new Federal

regulations, effective as of December 12, 2016, "When a court

knows or has reason to know that the subject of an involuntary

foster-care-placement or termination-of-parental-rights

proceeding is an Indian child, the court must ensure that . . .

3
The letters are dated within three months of a court
investigator's report first noting Uday's possible Cherokee
ancestry and well over one year before the best interests trial.
See 25 U.S.C. § 1912(a) ("No . . . termination of parental
rights proceeding shall be held until at least ten days after
receipt of notice by the parent . . . and the tribe").
4

[a]n original or a copy of each notice sent under this section

is filed with the court together with any return receipts or

other proof of service." 25 C.F.R. § 23.111(a)(2). See Indian

Child Welfare Act Proceedings, supra at 38,811, quoting from In

re E.S., 92 Wash. App. 762, 773 (1998) ("'filing of proof of

service in the trial court's file would be the most efficient

way of meeting [the] burden of proof' in proving notice").

Thus, in the future, documentation of compliance with ICWA

is to be included in the trial court record.

2. Termination of parental rights. a. The department's

reasonable efforts. The father argues that the department's

failure to make reasonable efforts "to reunify [the] father with

his son" undermines the judge's finding of unfitness. We

disagree.

"Before seeking to terminate parental rights, the

department must make 'reasonable efforts' aimed at restoring the

child to the care of the natural parents." Adoption of Ilona,

459 Mass. 53, 60 (2011) (quotation omitted). This duty

"includes a requirement that the department provide services

that accommodate the special needs of a parent." Id. at 61.

"However, even where the department has failed to meet this

obligation, a trial judge must still rule in the child's best

interest." Ibid.
5

In his findings, the judge noted that the father suffered a

traumatic brain injury as a teenager and has received Social

Security disability benefits because of this injury. The judge

was critical of the department for being "remarkably incurious

about the nature and extent of the disability" and doing "little

to explore his injury or to tailor services to meet any

particular needs that he has as a result of this injury." The

department's failure even to obtain the father's medical records

was, in the judge's view, "utterly nonsensical." However, the

judge also noted that "[t]he responsibility for this

circumstance does not fall on the [department] alone," and

furthermore, that "no issue was raised [by the father] about the

adequacy of the [department's] service efforts . . . prior to

the trial."4 See Adoption of Gregory, 434 Mass. 117, 124 (2001)

4
The judge raised the issue of the adequacy of the
department's efforts sua sponte, noting that "this issue is not
addressed in the proposed findings and rulings filed on behalf
of [the father]. In this posture, although this judge is very
troubled by the [department's] failure to take a hard look at
[the father's] disability or to seek to accommodate his
disability in the provision of services to him, the issue has
not [been] actively litigated or framed for review."

The judge nonetheless carefully considered the issue. On
the record before us, the claim that counsel was ineffective for
failing to move for a continuance to obtain a neuropsychological
examination or for failing to obtain certain medical records --
raised for the first time on appeal, see Care & Protection of
Stephen, 401 Mass. 144, 150 (1987) ("[a]bsent exceptional
circumstances, we do not review claims of ineffective assistance
of counsel for the first time on appeal"), fails for want of a
6

("[A] parent must raise a claim of inadequate services in a

timely manner so that reasonable accommodations may be made").

"A determination by the court that reasonable efforts were

not made shall not preclude the court from making any

appropriate order conducive to the child's best interest."

G. L. c. 119, § 29C, as appearing in St. 2008, c. 176, § 87.

The judge properly prioritized the "welfare of the child,"

Adoption of Gregory, supra at 121, and found that Uday was "in

need of stability, consistency, and permanence," which the

father could not provide. The judge did not abuse his

discretion in determining that termination of the father's

parental rights was in the child's best interests,

notwithstanding the department's shortcomings.

b. Finding of unfitness. The judge's factual findings,

which the father does not claim are erroneous, demonstrate clear

and convincing evidence of the father's current unfitness and

the likelihood that his unfitness will continue indefinitely.

See Care & Protection of Vick, 89 Mass. App. Ct. 704, 706

(2016). "Parental unfitness is determined by considering a

parent's character, temperament, conduct, and capacity to

provide for the child's particular needs, affections, and age."

Ibid.

showing of prejudice. See Care & Protection of Georgette, 439
Mass. 28, 33-34 (2003).
7

The judge found that the father has a "nearly twenty year

history of serious, violent, criminal misconduct," including at

least six incidents of physical violence between the mother and

father where Uday was present. Despite his "violent

propensities," the father has refused the department's proposed

"treatment [to] mitigate[] the risk posed by his violent

tendencies," such as participating in domestic violence

education. The judge appropriately considered the father's past

behavior, see Adoption of George, 27 Mass. App. Ct. 265, 268

(1989), and refusal to accept domestic violence education, see

Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997), as

evidence of unfitness.

The judge also found that the child "has been diagnosed

with [posttraumatic stress disorder] and reactive attachment

disorder." He exhibited "aggressive and troubled behavior" in

previous placements, including "smearing feces, indifference to

toilet training, tantruming, and assaults on other children in

the foster homes." The judge concluded that the father's

"record of violent, assaultive behavior, as well as his lack of

treatment for such behavior supports the conclusion that he is

unable to provide [Uday] with the patient, consistent, nurturing

care that he requires," and found the father unfit to parent

Uday.
8

The judge's findings demonstrated "that close attention was

given to the evidence," Care & Protection of Vick, supra at 709,

quoting from Adoption of Helen, 429 Mass. 856, 859 (1999), and

set forth clear and convincing evidence that the father had

"'grievous shortcomings or handicaps' that put the child's

welfare 'much at hazard.'" Adoption of Katharine, 42 Mass. App.

Ct. 25, 28 (1997), quoting from Petition of the New England Home

for Little Wanderers to Dispense with Consent to Adoption, 367

Mass. 631, 646 (1975).

Decree affirmed.