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SJC-11748

                        ADOPTION OF QUAN.


                       December 18, 2014.


Adoption, Dispensing with parent's consent. Parent and Child,
     Dispensing with parent's consent to adoption, Adoption.
     Practice, Civil, Adoption, Stipulation, Record.



     The Department of Children and Families (department) and
the child in this case, whom we refer to as Quan,1 appealed from
an order of a Juvenile Court judge vacating decrees terminating
the parental rights of Quan's biological mother and father. A
panel of the Appeals Court, in a memorandum and order pursuant
to that court's rule 1:28, Adoption of Quan, 86 Mass. App. Ct.
1103 (2014), reversed the judge's order, effectively reinstating
the termination decrees, and remanded the case to the Juvenile
Court for a so-called "best interest" hearing regarding the
permanent placement of the child. We granted the parents'
applications for further appellate review. We affirm the
judge's order.

     Background. In July, 2011, the department filed a petition
pursuant to G. L. c. 119, § 24, for the care and protection of
Quan, who at that time was one year old. Both the mother and
father eventually stipulated to the entry of decrees (one
against each of them) adjudicating the child to be in need of
care and protection, committing him to the custody of the
department, and terminating their parental rights. The parents
expressly waived the right to trial on the petition, as well as
the right to appeal from a final decree entered pursuant to the

    1
        A pseudonym.
                                                                   2


stipulation, but purported to reserve a right to participate in
a subsequent best interest placement hearing. Each parent
additionally stipulated that "[t]he adoption of [the child]
shall be final and not subject to review," that his or her
agreement was "voluntary," and that he or she had "not relied on
any representations other than those contained in this
agreement." Each parent proposed adoptive or guardianship
resources and acknowledged that the department had recruited
Quan's foster parents as adoptive resources.

     The judge accepted the stipulations. The final decrees
indicate that he considered the factors enumerated in G. L.
c. 210, § 3 (c), and the placement plan proposed by the
department, and that he "found that [each] parent lacks the
ability, capacity, fitness and readiness to assume parental
responsibility for said child, and is currently unfit." The
final decrees terminated the parents' parental rights.

     Approximately nine months later -- but before any further
hearing on the child's permanent placement -- the parents moved
for relief from the final decrees. Their motions apparently
were prompted by the Appeals Court's recent decision in Adoption
of Malik, 84 Mass. App. Ct. 436 (2013).2 The mother's supporting
affidavit averred that her agreement to the termination of her
parental rights was the result of an "agreement and assurances"
that she would be "entitled to participate in a best interest
hearing," and that she was "assured" that she could appeal from
any decision following such a hearing. The father's affidavit
averred that he had agreed to termination of his rights on the

    2
       Adoption of Malik, 84 Mass. App. Ct. 436 (2013), was
decided by the Appeals Court after the decrees terminating
parental rights in this case were entered, but before the
parents moved for relief from the decrees. That case also
involved parents who stipulated to their unfitness but purported
to reserve a right to participate in the placement hearing. The
Appeals Court concluded that a parent who has stipulated to
termination of his or her parental rights has no right, after
the stipulation has been accepted and a termination decree has
entered, to participate in the placement hearing or to challenge
any adverse placement decision on appeal. The court suggested,
however, that "the birth parent and the department could agree
in a particular case to defer entry of a termination decree,
based upon a parental stipulation of unfitness, until after the
permanency hearing." Id. at 441 n.10. We express no view on
the correctness of the court's holding in Adoption of Malik,
supra.
                                                                   3


understanding that he "would have a best interest hearing" and
that, based on his belief that there would be such a hearing, he
did not appeal. He further alleged that the department had
decided to leave Quan in his current placement without a best
interest placement hearing and, therefore, that the father had
been deprived of his right to appeal.

     After a hearing, the judge vacated the decrees terminating
the mother's and father's parental rights. He concluded that
the parents' stipulations had not been knowing or voluntary, but
instead were the product of a collective misunderstanding by the
parents, their counsel, and the judge, all of whom believed that
parental rights could be terminated in advance of a best
interest placement hearing with the parents retaining the right
to participate in the placement hearing and to appeal from any
adverse placement decision.3

     Discussion. The judge granted relief from the decrees
terminating parental rights on the ground that there had been a
material mistake of law or neglect, in the sense that the
applicable law had changed.4 See Hingham v. Director of the Div.
of Marine Fisheries, 7 Mass. App. Ct. 908, 909 (1979) (Mass. R.
Civ. P. 60 [b] [1], 365 Mass. 828 [1974], is appropriate vehicle
for raising question of change in law).5 Motions for relief from

     3
       The judge stated in his order that he, "and presumably the
parties, utilized this process in reliance on two unpublished
court decisions. Adoption of Uriah, [Appeals Court
No. 2010-P-1783 (May 6, 2011)], and Adoption of Kiara, [Appeals
Court No. 2009-P-1705 (February 3, 2010)]. In each of these
cases, the parents stipulated to a termination of their parental
rights and then later participated in a hearing as to the best
interests of the subject child vis-à-vis competing permanent
placement plans."
     4
         See note 2, supra.
     5
       The parents moved for relief, and the judge purported to
act, pursuant to Mass. R. Civ. P. 60, 365 Mass. 828 (1974).
Although the rules of civil procedure do not apply in care and
protection and parental termination proceedings in the Juvenile
Court, and although the Juvenile Court Rules for the Care and
Protection of Children do not expressly contain a rule on relief
from judgment, we have little doubt that a Juvenile Court judge
has authority to grant such relief, if warranted, and that Mass.
R. Civ. P. 60 provides "a cogent standard" in this respect, at
least in the circumstances of this case. See Care & Protection
                                                                  4


final judgment are commended to the judge's discretion, and "a
judge's decision will not be overturned, except upon a showing
of a clear abuse of discretion." Scannell v. Ed. Ferreirinha &
Irmao, Lda., 401 Mass. 155, 158 (1987). That applies with
particular force where, as here, the motion judge was the same
judge who conducted the colloquies, accepted the stipulations,
and entered the decrees. See Commonwealth v. Grace, 397 Mass.
303, 307 (1986) (same general principle in criminal context).
Cf. Chapman v. University of Mass. Med. Ctr., 423 Mass. 584, 589
(1996) (deference given to motion judge's "determination of his
or her contemporaneous intent" for purposes of Mass. R. Civ. P.
60 [a], 365 Mass. 828 [1974]).

     The Juvenile Court docket indicates that the judge
conducted colloquies with both parents before accepting the
stipulations, and the decrees indicate that the judge considered
the proposed placement plans. The parents' attempt to reserve
their rights regarding a placement hearing was clearly the
subject of some thought and discussion. Notably absent from the
record on appeal, however, is any transcript of the colloquies,
or a statement in lieu of a transcript of what transpired at the
colloquies. It was incumbent on the department and the child,
as the appellants, to provide a record adequate for appellate
review. Commonwealth v. Woody, 429 Mass. 95, 96-99 (1999). See
Mass. R. A. P. 8 (a), as amended, 378 Mass. 932 (1979) (record
includes transcript of proceedings). See also Mass. R. A. P.
8 (c), as amended, 378 Mass. 932 (1979) (if transcript not
available, statement of evidence or proceedings may be
substituted). The record they have provided is not adequate to
the task. Without a record of what transpired at the
colloquies, we cannot say that the motion judge's findings
concerning the stipulations and the circumstances in which they
were made were unsupported by or contrary to the evidence; nor
can we say, on this record, that the appellants have
demonstrated an abuse of discretion in the judge's order
vacating the termination decrees.

     Conclusion. The order granting the parents' motions for
relief from the final decrees terminating their parental rights
is affirmed. The matter is remanded to the Juvenile Court for
further proceedings consistent with this decision. It has been
approximately twenty-two months since the entry of the final
decrees in this case. Given the very significant, time-
sensitive interests of Quan and his biological parents that are


of Richard, 456 Mass. 1002, 1002 n.3 (2010), citing Care &
Protection of Zelda, 26 Mass. App. Ct. 869, 871 (1989).
                                                                 5


at stake, we expect that the proceedings on remand will be
concluded expeditiously.

                                   So ordered.

     Roberta Mann Driscoll for the father.
     Ann Balmelli O'Connor, Committee for Public Counsel
Services, for the mother.
     Brian R. Pariser for Department of Children and Families.
     Robert J. McCarthy, Jr., for the child.
