JULY 2016 CASE ROUND-UP

Brumleve v. Ouellette

89 Mass. App. Ct. 1129 (2016)

Ever since its inception on March 1, 2012, the Massachusetts Alimony Reform Act has caused a lot of confusion about how the act effects alimony arrangements that were made prior to its enactment. This is especially true for cohabitation cases in which the payer-spouse wants to reduce or terminate alimony because the recipient-spouse is receiving financial help from the person he/she is living with. Most recently, this issue came up in the Massachusetts Appeal’s Court in the case of Brumleve v. Ouellette.

In that case, the parties were divorced in 2007, many years before the Alimony Reform Act was enacted. The divorce judgment stated that the husband was to pay the wife $1000 each week for alimony. In 2013, the husband filed a Complaint for Modification seeking to reduce his alimony payment because the wife was cohabiting with another man for a continuous period of time of at least three month. The Probate and Family Court applied section 49(d) of the Alimony Reform Act, which states that “[g]eneral term alimony shall be suspended, reduced, or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household…with another person for a continuous period of at least [three] months.”[1] Based on this analysis, the Probate and Family Court reduced the husband’s alimony obligation to $550 per week.

The wife appealed the Family and Probate Court decision to the Massachusetts Appeal’s Court. The wife stated that the Probate and Family Court erroneously applied the Alimony Reform Act retroactively. In 2007, when the original alimony judgment was ordered, the proper standard of proof for modification was whether the recipient-spouse’s economic circumstances had materially changed as a result of the cohabitation.[2] In other words, the wife argued that the Probate and Family Court should have applied the “materially change in circumstance” test, instead of the Alimony Reform Act.

The Massachusetts Appeal’s Court agreed with the wife. The Appeal’s Court looked to a 2015 Supreme Judicial Court case called Chin v. Merriot[3] for support. In the Chin case, the Supreme Judicial Court held that the Alimony Reform Act’s cohabitation provision applies prospectively, not retroactively and “therefore afford[s] no basis” for modifying an alimony obligation established prior to the act’s effective date. Accordingly, the alimony obligations established in 2007 continue to be governed by the “material change in circumstances” test.[4] The Appeal’s Court recognized that in 2013 the Family and Probate Court did not have the benefit of Chin case for guidance, and therefore the correct standard was not applied. Therefore, the Massachusetts’s Appeal’s Court remanded the case back to the Probate and Family Court for further consideration of whether the wife experienced a material change in economic circumstance as a result of her cohabitation with another man.

This case solidifies that the Alimony Reform Act cohabitation clause does not apply retroactively and that any alimony obligation established prior to March 1, 2012 must be held to the “material change in circumstance” test.

Care and Protection of Vick

89 Mass. App. Ct. 704 (2016)

In Care and Protection cases, Massachusetts Juvenile Courts may terminate parental custodial rights if the Court can prove that the parent is currently unfit to provide for the welfare and best interest of the child.[5] But what factors does the court take into consideration when they deem a person unfit to parent their child? In a recent Massachusetts Appeal’s Court case, Care and Protection of Vick, the Court outlined five (5) factors that they take into consideration when making custody determinations in a Care and Protection hearing. The factors are by no means meant to be an exhaustive list, but they do provide insight into the way the Court defines parental fitness.

In this case, a mother challenged a Juvenile Court holding that she was unfit to assume parental responsibilities. The mother appealed to the Massachusetts Appeals Court, stating that the evidence failed to establish a nexus between her parenting and a showing of harm to the child. The Appeal’s Court ultimately held that the juvenile judge’s holding was correct and that the mother was not fit to have custody of her child.

The Court outlined the following factors that they took into consideration when coming to its conclusion:

1. Conditions of the Home: The cleanliness of a parent’s home is an appropriate factor for consideration in determination of that parent’s fitness.[6] In this case, a probation officer found the home to be in a “deplorable” condition, with a dirty rug and refrigerator, a blackened stove, and a toilet that was dirty with brown water. Additionally, when DCF removed the child, the home had no heat, minimal lighting, and a strong smell of animals and cigarettes and piles of trash and dirt on the floor. The Court concluded that the mother failed to maintain a safe and sanitary conditions for the child.

2. Refusal to Cooperate With the Department of Children and Families (DCF): Likewise, “[e]vidence of parents’ refusal to cooperate with [DCF], including failure to maintain service plans…, is relevant to the determination of unfitness.”[7] In this case, the mother rejected all attempts by DCF to work with her to improve her situation. She did not return phone calls and prevented access to the home. She declined to work with a parent aide and refused all mental health services. She declined to comply with her service plan tasks, even though she DCF granted her substantial flexibility.

3. Poor Choices Regarding Caretakers: The mother made poor choices regarding caretakers for the child. The mother left the child with his aunt, and the aunt had outstanding warrants. The mother indicated her plan was for the child’s uncle to take care of the child while she was at work, however the uncle’s criminal record was very concerning to DCF.

4. Failure to Visit: Failure to visit the child is relevant to parental fitness. After removal from her care, the mother only visited with child once prior to trial.[8]

5. Ignoring Child’s Behavioral and Educational Issues: The child had behavioral and educational issues, and the judge concluded that the mother was unwilling or unable “to comprehend the impact of [her] behaviors” on the child. The mother insisted that the child had no issues at school.

It was only after taking all of these factors into consideration that the Massachusetts Appeal’s Court affirmed the Juvenile Court’s decision and concluded that the mother was unfit to parent.

Adoption of Beatrix

89 Mass. App. Ct. 1132 (2016)

Before parental rights to a child can be terminated, a judge must write something called the “Findings of Fact” which illustrate why the parent is unfit to care for the child and why termination of parental rights is in the best interest of the child. If the judge’s “Findings of Fact” are not supported by evidence, or are supported by erroneous evidence, then the order to terminate parental rights may be reversed.

Most recently, the Massachusetts Appeal’s Court reversed a Juvenile Court’s decision to terminate a mother’s parental rights on the basis that the judge’s “Finding of Facts” did not have strong enough proof that the mother was unfit to parent, nor that it would be in the best interest of the child. The Appeal’s Court case, Adoption of Beatrix, outlines the three specific areas in which the judge’s “Findings of Fact” failed to prove that the mother’s parental rights should be terminated. These specific areas are as follows:

1. Must Address Current Fitness To Parent: In Massachusetts, a judge must adequately evaluate a parent’s current fitness to parent, as opposed to past unfitness.[9] In Adoption of Beatrix, the judge placed significant focus on an incident that occurred nearly 8 years ago and did not take into consideration the enormous strides that the mother had made since the removal of her child. In this case, the Massachusetts Appeal’s Court stated that “given the dated nature of the mother’s past parenting issues, and in light of the mother’s improved cooperating with the department, it was unduly speculative, without more, to conclude that the mother’s past conduct is predictive of the mother’s conduct in her current, significantly changed, circumstances.”

2. Must Articulate A Well-Rounded Reason for Rejecting DCF’s Parenting Assessment: When a parent is at risk of losing their child, the Department of Children and Families conducts what is called a “parenting assessment” to evaluate what parenting arrangement is in the best interest of the child. In this case, the judge rejected DCF’s parenting assessment because (1) the judge found that the researcher for DCF did not have the proper experience and educational background to make an assessment on parental functioning, and (2) because the researcher for DCF failed to speak with the maternal grandmother as part of his evaluation. The Massachusetts’s Appeal’s court found that the Juvenile judge’s rationale for these findings was not supported by the facts. The researcher for DCF had over a decade of experience in the area and had conducted over 50 parental assessments, including many at the request of DCF. Additionally, the Massachusetts Appeal’s court stated that the Juvenile judge’s reliance on the researcher’s failure to speak with the material grandmother as a reason to reject his assessment fails to consider that the maternal grandmother was living in Florida, was estranged from the mother, and notably, had no first-hand knowledge of the mother’s circumstances.

3. Must Articulate Reason for Rejecting Mother’s Parenting/Guardianship Plan: The mother suggested that if she were not able to retain custody of the child, it would be in the best interest of the child for the mother’s partner to become her guardian. The judge rejected the plan without providing any reasoning. Additionally, the mother’s plan proposed that if DCF was concerned about her being alone with her child, there were other supportive family members who lived nearby that would come assist her with the child. The judge rejected these potential supports finding that “they may be able to provide sporadic assistance at best” as they had “jobs and families of their own.” The Massachusetts Appeal’s Court also found this finding to be erroneous.

In short, Adoption of Beatrix, illustrates how important it is for a judge to have well-researched facts to back up each of his or her findings, before terminating anyone’s parental rights.

If you would like to learn more about any of these cases and how they may affect your case, please contact Attorney Muska Yousuf of the Denby Law Office. Attorney Yousuf can be reached by email at myousuf@denbylawpc.com or telephone at 781-536-5826.

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[1] G.L. c. 208, §49(d).

[2] Gottsegen v. Gottsegen, 397 Mass. 617 (1986).

[3] Chin v. Merriot, 470 Mass. 527 (2015).

[4] Id. at 531-535.

[5] See Care & Protection of Laura, 414 Mass. 788 (1993); Custody of Eleanor, 414 Mass. 795 (1993).

[6] See Care & Protection of Three Minors, 392 Mass. 704, 713 & n.11 (1984).

[7] Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).

[8] See Adoption of Darla, 56 Mass. App. Ct. 519, 522 (2002).

[9] See Adoption of Rhona, 57 Mass. App. Ct. 487 (2003).