Appeals court hears challenge to termination of parental rights; defense raises race and ineffective-assistance claims

The Appeals Court heard argument in an impounded Department of Children and Families (DCF) termination-of-parental-rights appeal in which the father’s lawyer argued the trial judge and agency did not adequately consider the children’s racial, cultural and heritage needs when approving a plan of adoption with a white pre-adoptive parent.

Attorney Deborah Dow for the father told the court that DCF regulations and state guidance require the agency and the court to consider race, culture and heritage in placement decisions even where the Indian Child Welfare Act (ICWA) does not apply; she said the record showed no meaningful findings that the children’s racial and cultural needs would be met by the pre-adoptive resource. “Termination of parental rights cases are not adoption parent centric. They are child centric,” Dow told the panel.

Jeremy Bayless, for DCF, argued that many of the points raised by the father were not preserved or supported in the trial record, and he framed the central inquiry as the children’s best interests. Bayless said the evidence did not show the children had an existing, strong cultural connection that required a different placement and that the trial judge had applied correct legal standards. Bayless also addressed the ineffective-assistance claim, arguing counsel’s conduct did not fall below a reasonable attorney’s performance given the factual circumstances, including the father’s limited contact with the children while incarcerated and a restraining order that precluded visitation for a period.

Children’s counsel Daniel Katz told the panel the judge properly found the father’s history of serious domestic violence — including an incident that injured a pregnant mother and a later assault involving a firearm in front of the children — supported termination. Katz said the children had been in the current foster placement since they were infants and that the judge reasonably concluded termination was in their best interests.

Dow also invoked a recent decision (Commonwealth v. Mattis) in urging caution about using post-adolescent prognostications to deny parents a chance at reunification; the Department and children’s counsel responded that Mattis is a criminal case and that child-welfare law’s focus remains the best interest of the child and timeliness of permanency. The court took the appeal under advisement.