Opinion
No. 19-P-289
05-13-2020
ADOPTION OF BEA.
Mark A. Papirio, Springfield, for the mother. Adelaida P. Jasperse for Department of Children and Families. Amy L. Perry Mercier, Pittsfield, for the child.
Mark A. Papirio, Springfield, for the mother.
Adelaida P. Jasperse for Department of Children and Families.
Amy L. Perry Mercier, Pittsfield, for the child.
Present: Lemire, Singh, & Wendlandt, JJ.
WENDLANDT, J. The mother appeals from a decree entered by a Juvenile Court judge finding her unfit and terminating her parental rights to her daughter, Bea. On appeal, the mother contends that the judge abused her discretion by allowing testimony from an expert who observed the mother and the child for two hours in connection with providing an opinion of the relationship between the mother and the child. The mother maintains that the child's counsel, who requested the assessment, violated her ethical obligations under Mass. R. Prof. C. 4.2, as appearing in 471 Mass. 1440 (2015), by not providing prior notice of the observation to the mother's counsel. Instead, the preadoptive mother scheduled the logistics of the appointment with the mother directly.
This appeal presents the question whether the admission of the expert's testimony, regarding her observations during a two-hour assessment, requires reversal of the decree terminating the mother's parental rights. Because our lodestar is necessarily the best interests of the child, we conclude that reversal is not required in view of the other evidence of the mother's unfitness. Concluding that the mother's other arguments also do not warrant reversal, we affirm.
"Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision was not a moral judgment or a determination that the mother ... [does] not love the child. The inquiry instead is whether the [mother's] deficiencies or limitations ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ " Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8, 75 N.E.3d 1140 (2017), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761, 694 N.E.2d 27 (1998).
Background. We summarize the judge's findings of fact, supplemented by uncontroverted evidence from the record.
The child was born to the mother, who was then fifteen, in 2014. At the time the child was born, the relationship between the mother and the father, who was then twenty, was marred by domestic violence and abuse. The couple had started dating when the mother was twelve or thirteen years old; the father (who was then eighteen years old) began living with the mother in the home of the maternal grandmother, who consented to the cohabitation despite the age difference. Following the child's birth, the young family continued to live in the home of the maternal grandmother, who herself had had sixty-three abuse and neglect reports pursuant to G. L. c. 119, § 51A ( § 51A report), filed against her with the Department of Children and Families (department). See note 5, supra.
The mother first became involved with the Department of Children and Families (department) at a very young age as the subject of an open care and protection case against the maternal grandmother. As a child, the mother witnessed domestic violence between the maternal grandmother and the maternal grandfather and other men in their home. The mother was physically abused and was raped repeatedly by her stepfather starting at the age of six. She spent time in foster care. At an early age, the mother was diagnosed with anxiety and depression, leading to hospitalization and time in a residential program. She was prescribed medications but did not take them consistently. By age twelve, the mother was consuming marijuana "all day every day."
The father relinquished his parental rights in November 2017. He is not a party to this appeal.
The maternal grandmother has been involved with the department since 2003. See note 3, supra. At the time of the trial, the mother maintained a close relationship with the maternal grandmother and planned to rely on the maternal grandmother's assistance if awarded custody of the child.
1. Neglect of the child. During the six months the child remained in the mother's custody, the mother would leave the child behind and leave the maternal grandmother's home herself, her whereabouts unknown to the maternal grandmother. Often, the child was left in the care of the woman who is now the preadoptive mother, whom the mother had known her entire life.
The child began staying with the preadoptive mother within a few days of birth. In the ensuing months, the child was in the care of the preadoptive mother so often that the child's crib in the maternal grandmother's home was used to hold laundry; the mother explained to the department that she would remove the clothing when the baby returned from the preadoptive mother's home.
The department's involvement with the child began in January 2015, when it received a § 51A report that the child had been left with an inappropriate caretaker. By February 2015, the department had supported additional § 51A reports, confirming that the mother neglected the child's immunizations and failed to follow through with early intervention service referrals, and the department filed the present care and protection case. At the department's insistence, the maternal grandmother obtained an abuse prevention order pursuant to G. L. c. 209A (c. 209A order) against the father.
This individual's own child had been removed from her custody by the department.
In January 2015, the department received a § 51A report that the father had posted photographs on social media of the mother (then sixteen years old) naked. The department removed the mother from the maternal grandmother's home for one week.
2. The mother's mental health and cognitive limitations. The mother has several diagnosed mental health conditions, including depression, anxiety, attention deficit hyperactivity disorder, and posttraumatic stress disorder. At the time of trial, these conditions remained untreated. The mother neglected to take her medication as directed, did not have a psychiatrist, and, by the end of trial, had discontinued therapy altogether. Although the mother underwent a psychological evaluation, she refused to provide the results to the department.
The judge drew an adverse inference from the mother's decision not to share the results of the psychological evaluation. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120-121, 763 N.E.2d 573 (2002).
The judge found that the mother, who had an eighth-grade education, had cognitive limitations; her processing was slow, and she struggled to remember tasks. A parenting evaluation by the mother's expert showed that the mother was cognitively functioning in the very low to low average range. The mother testified that she planned to finish her general education degree and then attend nursing school; however, the judge found that the "[m]other [wa]s [not] working toward these goals."
The mother failed to obtain a high school equivalency diploma despite receiving at least four referrals to obtain her general education degree.
3. Lack of progress on service plan tasks. The department provided five service plans during the pendency of the case, each tailored to the mother's particular circumstances in relation to her age, mental health, cognitive limitations, and history with domestic violence. In view of the mother's failure to comply with most of her service plan tasks during the first year, the department changed its goal for the child to adoption.
The mother failed to attend weekly therapy and to comply with her medication regimen; to participate in parenting classes; to attend school; to cease contact with the father and abide by the c. 209A order; to attend regularly parent-child visits and arrive on time; and to follow the maternal grandmother's rules and curfews.
Thereafter, the department's service plans required the mother to undergo a psychological evaluation to assess her parental abilities, to receive therapy to address her relationship with the maternal grandmother, and to attend courses geared towards helping her understand how domestic violence and her relationships affected her parental abilities. The judge found that the mother failed to engage meaningfully in services and had not been able to benefit from those few services in which she had participated. The mother's expert opined that the mother could parent the child adequately with appropriate supports, including parenting partner services or community support. Unfortunately, the mother refused precisely the type of services -- specialized services designed to mitigate the effects of her cognitive limitations on her parenting abilities -- her expert opined were necessary. In particular, the department offered the mother the assistance of a parent aide who specialized in providing service to individuals with developmental disabilities. The mother refused to engage these services. The judge found that the mother's refusal to accept specialized services, coupled with her lack of community supports, "mean[t] that she ha[d] failed to overcome her parenting deficiencies."
In October 2017, the mother participated in a parenting class, but the judge found that she did not learn child care or disciplining techniques.
In this regard, the judge found that the maternal grandmother was not a resource from whom the mother could learn parenting skills.
4. The child's bond with the preadoptive parents and receipt of specialized services. At the time of removal, the child was temporarily placed in foster care; however, in April 2015, at the mother's request, temporary custody of the child was granted to the preadoptive parents. The child has remained in their home ever since, and the mother acknowledged the strong bond between the child and the preadoptive parents.
The child began early intervention services soon after being removed from the mother's custody; at the time of trial, the child was receiving behavioral therapy twice a week.
5. Visitation with the mother. Initially, visits between the mother and the child occurred in the preadoptive parents' home and, by agreement, were scheduled to occur twice weekly. However, the mother was inconsistent with the visits, often arriving late or not at all. After a few months, the visits were reduced to once per week because the mother agreed she could not manage more visits. The preadoptive mother supervised the visits in her home.
The preadoptive mother testified that the mother would fall asleep during visits, would be disrespectful, and, during one incident, consumed alcohol to the point of intoxication while in the preadoptive parents' home.
While visits were still occurring at the preadoptive parents' home, as discussed in more detail infra, the child's counsel retained an expert to conduct a relationship assessment between the child and the preadoptive parents and between the child and the mother. By June 2016, the weekly one-hour visits were moved to a supervised visitation center at the preadoptive mother's request. 6. New violent relationship, younger child's removal, and continued reliance on maternal grandmother. When the trial began, the mother was almost nineteen years old and was living with her new boyfriend at the maternal grandmother's home. Her relationship with the boyfriend, like the one with the father, was plagued by domestic violence. The judge did not credit the mother's benign explanations of, and attempts to minimize, the boyfriend's behavior, finding that the boyfriend acted "in a violent or tumultuous manner." The boyfriend (who had a significant criminal record and whose pending criminal charges included one for assault and battery at the time of the trial) was offered, but did not complete, services designed to assist him with his violent behavior.
Despite the c. 209A order and the child's removal, the mother continued the volatile relationship with the father for a period of time following the child's removal. All told, the mother remained with the father for five years.
Indeed, the mother called the police in July 2016 after an incident with him.
The mother and the boyfriend had a child in 2017 (younger child) who was removed from their custody. The department attempted to reunify the younger child with the mother and agreed to allow the younger child to return to the mother if the mother and the boyfriend left the maternal grandmother's home to reside in a shelter. The mother was able to secure a placement at a shelter; at the end of the trial, she lived there with the boyfriend and the younger child.
As a condition of reunification, the mother was to work with a parent aide.
At trial, the mother testified that she was sometimes overwhelmed with the care of the younger child and was not ready to take custody of Bea. She wanted time to achieve financial stability. If she did get custody, her plan was to enlist the maternal grandmother's help and to raise both children with the boyfriend.
7. Determination of unfitness and visitation. The judge found that the mother was currently unfit and that the unfitness was likely to continue into the indefinite future "to a near certitude." The judge determined that terminating the mother's parental rights would serve the best interests of the child. The judge also concluded that it was in the child's best interests for "some contact to continue" with the mother. Accordingly, the judge ordered posttermination and postadoption visits between the child and the mother.
Discussion. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606, 976 N.E.2d 814 (2012). On appeal, "[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59, 944 N.E.2d 115 (2011).
1. Evidentiary rulings. The mother raises three challenges to the judge's evidentiary rulings -- admission of the child's expert's testimony, admission of the expert's report, and denial of the mother's late request to add two witnesses -- each of which we review to determine whether the judge abused her discretion. See Adoption of Hugo, 428 Mass. 219, 232, 700 N.E.2d 516 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034, 119 S.Ct. 1286, 143 L.Ed.2d 378 (1999) ; Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131, 775 N.E.2d 770 (2002).
a. The child's expert's testimony. The mother first challenges the admission of expert testimony regarding the child's relationship with the mother and with the preadoptive parents on the ground that the child's counsel, who had asked the expert to perform the assessment, did not contact the mother's counsel in advance of the observation upon which the assessment was based; instead, the preadoptive mother contacted the mother directly to arrange the observation. The child's counsel retained the expert to perform the assessment to inform counsel's position whether the best interests of the child would be served by terminating the mother's parental rights. The judge rejected the mother's counsel's argument that this was an ambush. The child's counsel gave the expert the contact information for the mother's counsel; the expert, in turn, relied on the preadoptive mother –- who was, at the time, responsible for supervising visits between the mother and the child -- to schedule the appointment. The preadoptive mother arranged the appointment directly with the mother. In this lamentable game of telephone, however, no one informed the mother's counsel.
The child's counsel stated that she intended the assessment to help her formulate her position as to what would be in the best interests of the child. Neither the expert's testimony that the child's counsel told her that counsel "hoped" an adoption could proceed nor the subsequent listing of the expert's report among the department's trial exhibits is a basis for this court on appeal to find clear error in the judge's determination that the evaluation was not an "ambush" or otherwise "inappropriately scheduled or conducted." See Care & Protection of Jamison, 467 Mass. 269, 280, 4 N.E.3d 889 (2014) (substantial deference given to trial judge's findings based on witness credibility and weight of evidence). Our deference to the judge is particularly apt here, where the mother's counsel acknowledged that the contact with a represented party was not done deliberately.
At the end of the first day of trial, the child's counsel informed the judge that the expert had traveled from New York to provide her testimony. The mother's counsel, who learned of the expert's assessment at least two months prior to trial, moved to exclude the expert's testimony. The judge stated she was "a little confounded" to be learning of the expert witness's out-of-State travel late in the afternoon, rather than having the expert's schedule reported to her earlier that morning. "[I]nstead of hearing the whole motion at this moment," the judge asked the mother's counsel to give her a "thumbnail sketch" of his objection. The mother's counsel argued that failure to schedule the assessment through him was an ethical violation by the child's counsel. He asserted that the child's counsel violated Mass. R. Prof. C. 4.2, which provides:
The expert's assessment was conducted at least one year prior to trial.
"In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."
Following these preliminary arguments on the motion, the judge did not make a ruling; instead, she invited the mother's counsel to submit a memorandum of law in advance of the expert's anticipated testimony. Counsel for the mother stated that he would leave the decision whether to allow the expert's testimony to the judge. Indeed, he acknowledged that the judge had not ruled on his motion, stating "whichever way you rule," the mother's expert could comment on the child's expert's opinion "if you let it in." He then stated, "If I can find something I think is [unintelligible] I'll bring it in." He did not submit the requested memorandum of law.
The judge stated, "I'll give you a chance to give me a memo of law," and "I'm happy to consider any legal argument that you want me to -- you know, give me something to go off of and I can make an assessment of it."
More than one month later, the expert testified, without objection and with no further argument by the mother's counsel regarding the alleged impropriety of the assessment. The judge specifically inquired whether, before the expert testified, the parties had any issues to address. The mother's counsel chose not to raise the objection now pressed on appeal, and contrary to the dissent's conclusion, it is waived. See Adoption of Kimberly, 414 Mass. 526, 534-535, 609 N.E.2d 73 (1993). Accordingly, the expert's testimony "retained its full probative force." Adoption of Carla, 416 Mass. 510, 515, 623 N.E.2d 1118 (1993), citing Freyermuth v. Lutfy, 376 Mass. 612, 617, 382 N.E.2d 1059 (1978).
We are not faced here with a situation where a pretrial motion in limine to exclude the expert's testimony was denied; to the contrary, after hearing preliminary arguments, the judge invited the mother's counsel to submit a memorandum of law on the issue and then asked, prior to the expert's testimony, whether the mother's counsel had anything that needed to be addressed. The mother's counsel chose not to press the objection. Cf. Commonwealth v. Grady, 474 Mass. 715, 719, 54 N.E.3d 22 (2016) (renewed objection not required where trial judge denied pretrial motion in limine).
The expert testified concerning her observations of the child and the preadoptive parents, and her opinion that the child viewed them as "stable parenting figures." She also testified as to her observations of the mother and the child. She described that the child was affectionate with the mother, whom she called "mommy." She opined that the child (who was two years old) was "more hyper" and tested limits in ways she had not seen during her prior visit with the child and the preadoptive parents alone. According to the expert, the child ran back and forth between the mother and the preadoptive mother. She opined that the mother lacked parental discipline strategies and that the attachment between the mother and the child was "insecure" or "disorganized." On cross-examination, the mother's counsel noted that the logistics of the observation, with the preadoptive mother being present, may have "influenced" the observation. The expert explained that the preadoptive mother was (at the time of the scheduled observation) the designated supervisor for the mother's visits, so the expert did not "know how to get around that."
The mother nevertheless urges that, because the expert's observation of the mother violated the ethical obligations of the child's counsel under Mass. R. Prof. C. 4.2, we adopt a "case specific" rule requiring exclusion of the expert's testimony. We agree that the right to counsel in connection with determining whether to terminate parental rights is fundamental. See Adoption of Olivia, 53 Mass. App. Ct. 670, 674, 761 N.E.2d 536 (2002). Rule 4.2 is designed to preserve the "mediating role of counsel on behalf of their clients," to protect clients from "overreaching by counsel for adverse interests," and to protect "the attorney-client relationship" (quotations and citations omitted). Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347, 352, 764 N.E.2d 825 (2002). However, in assessing whether (had the objection been preserved) the judge abused her discretion in allowing the expert to testify, it is significant that it is not clear that the expert's observation of the mother's visit with the child was the type of "communicat[ion] about the subject of the representation" with a represented party expressly contemplated by Mass. R. Prof. C. 4.2. Instead, what transpired was a two-hour observation by a qualified expert on the mother's interaction with the child in the place where the mother customarily visited with the child under the supervision of the preadoptive mother -- the person responsible for supervision of visits between the mother and the child at that time. The only person who spoke to the mother about the assessment (in order to schedule the logistics of it) was the preadoptive mother, and there is nothing in the record to suggest that the child's counsel directed the preadoptive mother to do so or even was aware of the contact. Cf. Mass. R. Prof. C. 8.4, as appearing in 471 Mass. 1483 (2015) ("It is professional misconduct for a lawyer to ... knowingly assist or induce another to [violate the Rules of Professional Conduct], or do so through the acts of another").
That is not to suggest that the child's counsel was without fault. Certainly, she should have notified the mother's counsel regarding the planned observation rather than assuming the expert would do so in the normal course; however, there is nothing in the record to suggest the failure to do so was anything other than inadvertent. To the contrary, the child's counsel gave the expert the contact information for the mother's counsel. The child's counsel neither ordered nor ratified the manner in which the expert's observation was scheduled. Cf. Mass. R. Prof. C. 5.3, as appearing in 471 Mass. 1447 (2015) ("a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and ... a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: [1] the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved").
Even assuming the observation (or its scheduling) violated the child's counsel's obligations under Mass. R. Prof. C. 4.2, the mother cites no case law requiring exclusion of evidence on the grounds that an ethical violation has occurred. To the contrary, as she acknowledges, the Supreme Judicial Court has "reject[ed] the ... suggestion that we should extend the exclusionary rule to termination proceedings, or that we should view them as criminal proceedings." Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 384 Mass. 707, 711, 429 N.E.2d 685 (1981) (assuming arguendo conduct by department in placing child with department employee was illegal, and declining to apply exclusionary rule to department's evidence or dismiss termination proceeding). See Custody of a Minor, 13 Mass. App. Ct. 290, 302, 432 N.E.2d 546 (1982) (denial of motion to exclude experts' testimony not error where experts' bias and financial conflict of interest were subject of cross-examination, in view of "ultimate aim of these proceedings" to determine best interests of child and parental fitness).
Contrary to the dissent's suggestion, we do not hold that the absence of an exclusionary rule gave the judge carte blanche to admit the expert's testimony. However, the mother's argument that the child's counsel's alleged ethical violation requires reversal of the termination decree gives no consideration to the best interests of the child and, thus, "is fatally flawed." Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 384 Mass. at 711, 429 N.E.2d 685. "In considering what remedy, if any, is required to address ... misconduct, our lodestar is, of course, the best interests of the child[ ]." Adoption of Natasha, 53 Mass. App. Ct. 441, 450, 759 N.E.2d 1210 (2001) (affirming termination of parental rights despite department's violation of its own regulations, placement of child with department employee from the same service area, and evaluations of biological mother performed by that employee's colleagues).
Even in the criminal context, where the guidepost is not (as it must be here) the best interests of the child, courts have declined to apply a "prophylactic exclusionary rule" to alleged ethical violations of Mass. R. Prof. C. 4.2. Commonwealth v. Vao Sok, 435 Mass. 743, 754, 761 N.E.2d 923 (2002) (prosecutor's violation of rule 4.2 did not require exclusion of defendant's statement where defendant was not prejudiced).
Finally, any error in the admission of the child's expert's testimony here was harmless. See Adoption of Carla, 416 Mass. at 515, 623 N.E.2d 1118 (applying harmless error analysis to alleged error in admission of expert evaluation). Even without the expert's opinion, the judge's conclusion that the mother was unfit was clearly and convincingly supported by the judge's subsidiary findings of the mother's history of parental neglect, her pattern of volatile relationships, her cognitive limitations and untreated mental health issues, her failure to comply with services, and her refusal to engage in specialized services. See Adoption of Luc, 484 Mass. 139, 148, 139 N.E.3d 337 (2020). This evidence, gathered over the more than two years of the mother's neglect of the child and continued failure to accept or benefit from services designed to improve her parenting skills, shows that any error from the admission of the expert's opinion (formed on the basis of a two-hour evaluation) was harmless. The extensive findings demonstrate that the judge paid close attention to the evidence in relation to the fourteen factors outlined in G. L. c. 210, § 3 (c ), to determine that terminating the mother's parental rights was in the best interests of the child. These findings (even without the expert's assessment) show "grievous shortcomings or handicaps that would put the child's welfare ... much at hazard," and thus, the ultimate conclusion of unfitness and termination of the mother's rights are properly supported by the findings. Petition of New England Home for Little Wanderers, 367 Mass. 631, 646, 328 N.E.2d 854 (1975).
The mother began neglecting the child within days of her birth, leaving the maternal grandmother's home herself and allowing an inappropriate caregiver access to the child, allowing the child to fall behind on her immunization schedule, failing to follow early intervention services, and continuing the violent relationship with the father. See Adoption of Diane, 400 Mass. 196, 204, 508 N.E.2d 837 (1987).
The mother's relationship with the father was violent, and despite the c. 209A order, the mother continued the relationship following the child's removal. When that relationship ended, the mother entered another violent relationship with the new boyfriend. See Care & Protection of Isabelle, 33 Mass. App. Ct. 548, 549, 602 N.E.2d 591 (1992).
Although a parent's cognitive limitations are not evidence of unfitness per se, if a parent is not equipped to provide a child with sufficient care, a nexus between the limitation and unfitness exists. See Adoption of Lenore, 55 Mass. App. Ct. 275, 280, 770 N.E.2d 498 (2002). Here, the judge found the mother's cognitive limitations prevented her from meeting the child's needs. Moreover, the mother's mental health issues remained untreated, and she refused to provide her psychological evaluation report to the department.
The mother failed to comply with her service plan tasks during the first year. The following year, while her compliance improved, she maintained the violent relationship with the boyfriend and her ongoing dependence on the maternal grandmother, whom she planned to continue to use to assist her in parenting the child and the younger child.
The mother refused parenting aide services tailored to her cognitive limitations.
b. Admission of expert's report. The mother next contends that the child's expert's written report was improperly admitted because it was an out-of-court statement, offered for its truth, and no hearsay exception applied. We agree. See Adoption of Seth, 29 Mass. App. Ct. 343, 351-352, 560 N.E.2d 708 (1990). Nonetheless, the error in its admission did not prejudice the mother because the expert's testimony covered the substantive content of the report, and the judge solely relied on the expert's testimony in connection with the findings. See Adoption of Mary, 414 Mass. 705, 710, 610 N.E.2d 898 (1993).
c. Exclusion of two of the mother's witnesses. The mother maintains that the judge erred in excluding two of her proposed witnesses. Neither witness was timely disclosed on the mother's witness list; the mother did not seek leave to amend her witness list and failed to explain this deficiency. See Rule 15 of the Rules of the Juvenile Court for the Care and Protection of Children (2018) (absent good cause, parties are bound by their witness list disclosures). On this record, there was no abuse of discretion. See Mattoon, 56 Mass. App. at 131, 775 N.E.2d 770.
In any event, the first witness's testimony related to the mother's interactions with the child prior to removal, and not to the issue of the mother's fitness at the time of trial. Further, the second witness's testimony would have been cumulative of two other witnesses who testified as to the mother's visitations with the child. See Guardianship of Brandon, 424 Mass. 482, 496-498, 677 N.E.2d 114 (1997) (no abuse of discretion in excluding evidence that would needlessly consume trial time with collateral issues or would be cumulative).
At the time of trial in 2017, this same provision was set forth in Rule 11 B of the Juvenile Court Rules. The rules were revised in 2018.
2. Particular findings and conclusions of law. The mother challenges several of the judge's specific findings, which we review to determine whether there is clear error. Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). "A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Id., quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977).
a. Photographs of younger child. The mother asserts that findings of fact nos. 147 and 148, which relate to one or two photographs of an incident involving the younger child, are clearly erroneous. The photographs were not admitted in evidence but were described by the mother. They depict the younger child, an infant, strapped into a car, without an infant car seat, surrounded by one hundred dollar bills, including some on her lap. In one photograph, the younger child had grabbed one of the bills and was trying to put it in her mouth, and the mother "stopped" her. In the second photograph, the younger child had a bill in her mouth. Although the transcript does not directly support the judge's finding that the mother "slapp[ed]" (as opposed to "stopped") the infant, any error was "insignificant given the extensive evidence concerning the mother's unfitness." Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 n.6, 807 N.E.2d 237 (2004). Certainly, we discern no error in the judge's finding that the incident, which apparently occurred while the trial was pending, "exemplified" the mother's "lack of sound parenting skills and judgment."
The mother incorrectly asserts that the judge improperly relied on the photographs themselves, which were apparently viewed on a cell phone during the trial and not admitted in evidence; in fact, the judge expressly referenced the mother's testimony in her findings.
The mother's arguments regarding findings of fact nos. 174-187 and 189-193 and conclusion of law no. 24(vii) relate to the admission of the testimony of the child's expert, which (as discussed supra ) was waived and, in any event, was not improper.
b. The child's preferences. The mother next contends that the judge's finding of fact no. 193 and conclusion of law no. 29 are erroneous because they concern the preference of the then three year old child. This was not error; here, the child's counsel favored adoption. See Care & Protection of Georgette, 439 Mass. 28, 45-46, 785 N.E.2d 356 (2003) (when child is "incapable of verbalizing a preference, or incapable of making an adequately considered decision," child's counsel may substitute judgment for child [quotation and citation omitted] ).
c. Failure to engage in services. The mother challenges the judge's conclusion that she failed to engage in services, including those specifically aimed at improving her parental fitness, on the basis that her expert testified that she could adequately parent the child. The record shows that the department offered the mother services specifically tailored to her cognitive abilities and aimed at improving her parenting skills, and that she refused to continue these services. Moreover, the judge was not required to credit the mother's expert's opinion; the judge's assessment of the weight of the evidence and the credibility of witnesses is entitled to deference. See Custody of Eleanor, 414 Mass. at 799-800, 610 N.E.2d 938.
The mother's challenge to the judge's conclusions that (i) there was a reasonable expectation that the mother would not be able to provide proper care to the child, and (ii) her cognitive limitations would be likely to continue such that she would not be able to provide care for the child also rely on the mother's contention that the judge did not credit her expert's testimony. Accordingly, for the same reasons set forth supra, these arguments fail. Moreover, the judge's additional finding that the child has particular, specific needs is supported by the record.
d. Current relationship. The mother challenges the judge's reliance on her continued relationship with the boyfriend (who, as set forth supra, was offered services but failed to participate) in assessing the mother's fitness. The judge properly considered whether the mother could adequately protect herself and the child from the deleterious impact of domestic violence. See Care & Protection of Isabelle, 33 Mass. App. Ct. 548, 549, 602 N.E.2d 591 (1992).
e. Findings regarding the maternal grandmother. The mother asserts that the judge improperly relied on findings of fact nos. 3, 6, 7, 21, 23, and 25, which relate to the maternal grandmother, as irrelevant and based on stale evidence. These findings were relevant. The mother was nineteen at the time of trial. She continued to spend significant time with the maternal grandmother and planned to rely on her for assistance with the child. The mother's failure to demonstrate insight into her relationship with the maternal grandmother and the impact it had on her parenting abilities was relevant to the assessment of the mother's current fitness. See Adoption of Paula, 420 Mass. 716, 729, 651 N.E.2d 1222 (1995).
3. Reasonable efforts. The mother's claim, made for the first time on appeal, that the department failed to use reasonable efforts to strengthen the family is waived. See Adoption of Gregory, 434 Mass. 117, 124, 747 N.E.2d 120 (2001). Even if the mother had not waived this argument, it is belied by the record of the considerable efforts the department made to offer her services tailored to her cognitive needs.
To the extent that any of the mother's other arguments are not expressly addressed, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Commonwealth v. Brown, 479 Mass. 163, 168 n.3, 92 N.E.3d 1189 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).
Decree affirmed.
SINGH, J. (dissenting).
Without the knowledge of her counsel, the mother was subjected to an assessment by an expert engaged by another party to the proceeding. The information gained from the assessment was used against the mother at trial and credited by the judge when she terminated the mother's parental rights. I write separately because I believe that admission of the uncounselled assessment violated the mother's right to the effective assistance of counsel and deprived her of a fair trial.
A pseudonym.
The expert was engaged by the child's counsel. When the expert was asked what the child's counsel had hoped to accomplish with the assessment, she testified, "I would say that what was conveyed to me was the hope that an adoption could proceed." Additionally, the Department of Children and Families, whose aim it was to terminate the mother's parental rights, listed the report of the child's expert as one of its trial exhibits.
It is undisputed that the child's expert's assessment of the mother took place without the knowledge of the mother's counsel. After he learned of the situation through the course of discovery, the mother's counsel filed a motion in limine to exclude the assessment, specifically indicating his inability to advise the mother because he had not been informed of the assessment in advance. During argument on the motion, the mother's counsel mentioned that the child's counsel had an obligation to approach him about the proposed assessment pursuant to Mass. R. Prof. C. 4.2, as appearing in 471 Mass. 1440 (2015). He described the unfairness of the assessment itself and explained to the judge that, had he been consulted, he would have advised the mother not to participate, that he "never would have let this happen," and that he "would have stopped it."
The expert relied on the preadoptive mother to make the arrangements for the mother to be assessed during one of her visitations with the child. The assessment took place in the home of the preadoptive mother and in her presence, such that the mother was assessed as the child "ran between mothers."
Nevertheless, the judge indicated that she could see no basis for excluding the witness's testimony and offered the mother's counsel an opportunity to file a memorandum of law. After further argument, during which the judge continued to express her disagreement, the mother's counsel said, "I'll just note my objection and we can go forward." The judge then stated that she remained open to considering any additional legal argument that counsel might want to submit, but the mother's counsel responded, "I'll leave it up to you, Judge." At the conclusion of the hearing, the judge scheduled the expert's trial testimony.
By filing a motion in limine, arguing it at trial and twice indicating that he was content to have the judge rule on the basis of the motion already filed and the arguments already made, the mother's counsel fulfilled the purpose of objection and preserved the issue for appeal. See Commonwealth v. Andrade, 481 Mass. 139, 141 n.2, 113 N.E.3d 317 (2018) (prompt objection allows judge to cure defects in proceedings when they occur). To the extent that the judge failed to make an explicit ruling on the motion, scheduling of the expert's trial testimony effectively denied the motion. See Commonwealth v. Dubois, 451 Mass. 20, 29, 883 N.E.2d 276 (2008) (failure to rule on motion is treated as implicit denial). There was no need to renew the objection when the expert witness later testified, because "the judge had already been made aware of, and had the opportunity to consider, the objection" by way of the motion in limine. Commonwealth v. Grady, 474 Mass. 715, 719, 54 N.E.3d 22 (2016) (objection at motion in limine stage will preserve appellate rights "if what is objectionable at trial was specifically the subject of the motion in limine"). The issue was not waived. In admitting the uncounselled assessment in evidence, the judge failed to recognize the important advisory role of counsel. The right to counsel for parents in termination of parental rights proceedings is grounded in constitutional procedural due process. See Adoption of Olivia, 53 Mass. App. Ct. 670, 674 n.3, 761 N.E.2d 536 (2002), citing Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3-4, 393 N.E.2d 406 (1979). The mother had a right to the advice of counsel with respect to the decision whether to participate in the assessment proposed by the child's counsel and, if so, on what terms. See Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 235, 812 N.E.2d 895 (2004) (right to counsel includes assistance in making decisions about defenses and strategies, which may rise to critical stage of process). See also Seng v. Commonwealth, 445 Mass. 536, 548, 839 N.E.2d 283 (2005), citing Estelle v. Smith, 451 U.S. 454, 471, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (sentence vacated where defendant was denied assistance of his attorneys "in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed").
The majority characterizes the motion hearing on the first day of trial as "preliminary argument," as if there had been no hearing on the merits. Yet the motion was argued at length, by all parties, substantively, with the judge indicating disagreement. Although the judge invited further briefing, the mother's counsel declined it, specifically noting his objection and leaving it to the judge to make her decision. In context, the judge's invitation for further briefing simply conveyed her willingness to change her mind if counsel had anything more compelling to offer. The mother's counsel reasonably understood that, in the absence of any further briefing, his motion was denied. Indeed, no further motion hearing date was set, and the expert's trial testimony was scheduled. When the judge later asked the parties whether there was "anything that we need to address" before the child's expert took the witness stand, there was nothing left to address because the issue had been fully litigated and resolved against the mother.
In a similar vein, after the mother's counsel objected to the admission of the expert's report based on hearsay, the judge stated her disagreement with counsel's position but "welcome[d him] to file a motion citing the law behind it," and further stated that she would "leave it open for [the mother's counsel] to move on it." The subject was never raised again, and the report of the child's expert was admitted in evidence. Although counsel would be well-advised to request explicit rulings, trial judges would also be well-advised to make definitive rulings.
The decision whether to participate in an assessment of parental fitness and of a relationship with a child in a proceeding to terminate parental rights is no less significant than the decision to participate in an examination to determine criminal responsibility in a criminal prosecution. Moreover, many would regard the consequences to be no less significant. See Adoption of Raissa, 93 Mass. App. Ct. 447, 452, 105 N.E.3d 1218 (2018) (because loss of child may be as onerous penalty as deprivation of parent's freedom, courts look to criminal law in deciding issues relating to right to counsel).
Despite the mother's counsel's motion in limine and argument specifically addressing the issue of his inability to advise the mother, the judge did not see the issue. Indeed, the judge explicitly "did not find that the assessment was inappropriately scheduled or conducted." Yet the assessment was, in fact, inappropriately scheduled and conducted without the knowledge of the mother's counsel. The majority implicitly acknowledges this in stating that "[c]ertainly, [the child's counsel] should have notified the mother's counsel," ante at 425, 148 N.E.3d at 434, yet fails to examine why. The reason is not a matter of courtesy, but necessity. Counsel could be in a position to advise the mother only if he had been aware of the assessment in advance. Had the mother's counsel been notified of the proposed assessment of the mother, he could have advised her that participation in an assessment commissioned by a party seeking to have the child adopted was not likely to be in the mother's interest. Even if he determined that there was some benefit to participating, counsel could have negotiated the terms and ensured a process fair to the mother. He was prevented from doing so, to the detriment of the mother. In my view, it was not within the judge's discretion to admit this uncounselled assessment in evidence. In reaching the opposite conclusion, the majority notes that it is unclear whether the child's counsel's conduct amounted to an ethical violation. Whether the situation arose from an ethical violation or some other circumstance, the fact remains that the mother was denied the assistance of her counsel with respect to the assessment. The majority also notes that there appears to be no case law requiring exclusion under the circumstances presented here. The absence of a per se rule of exclusion, however, does not give a judge carte blanche with respect to the admission of evidence. The judge is still charged with ensuring due process and a fair trial. See Adoption of Parker, 77 Mass. App. Ct. 619, 622-623, 933 N.E.2d 654 (2010) (although parties agreed to procedure, judge erred in conducting trial on offers of proof, rather than testimony, because it did not comport with due process).
In her findings, the judge focused on whether the mother, rather than her counsel, had been aware of the assessment. Even had the mother been aware of the assessment, she could not waive the ethical rule that required her counsel to be informed and consent. See Maher, Communications with Represented Person: Look Who's Talking About ABA Formal Opinion 95-396, 12 Professional Law. 2, 13 (Spring 2001) (because Rule 4.2 of Rules of Professional Conduct is designed, in part, to protect effectiveness of lawyer's representation, represented person may not waive it). In any event, the judge's findings did not acknowledge the mother's right to counsel's advice in connection with the assessment.
Although the mother's counsel attempted to combat the blow by retaining a competing expert, the uncounselled assessment was still available for the judge to credit, which she did. The only effective remedy was exclusion of the evidence. See P.M. Lauriat, S.E. McChesney, W.H. Gordon, & A.A. Rainer, Discovery § 1:29, at n.73 (2019).
The majority notes that the child's counsel neither ordered nor ratified the manner in which the expert conducted the assessment. As the attorney engaging the expert, however, she was responsible for giving appropriate direction. See Mass. R. Prof. C. 5.3 (b), comment [3], as appearing in 471 Mass. 1447 (2015) (when retaining or directing nonlawyer, lawyer should communicate directions appropriate to give reasonable assurance that nonlawyer's conduct is compatible with professional obligations of lawyer).
The majority also questions whether the assessment involved a prohibited "communication" under Mass. R. Prof. C. 4.2. Although the term is not defined within the Rules of Professional Conduct, it is a "rule[ ] of reason" to be interpreted "with reference to the purposes of legal representation and of the law itself." Mass. R. Prof. C. Preamble and Scope. Given the purpose of Rule 4.2, it is not unreasonable to conclude that the child's expert's assessment of the mother without her counsel's knowledge is encompassed within that rule. See Black's Law Dictionary ("communication" defined as "expression or exchange of information by speech, writing, or gestures"). Indeed, "rule 4.2 ... is also known as the ‘no-contact rule,’ " Clark v. Beverly Health & Rehabilitation Servs., Inc., 440 Mass. 270, 272-273, 797 N.E.2d 905 (2003), perhaps because, as any lawyer instinctively knows, any such contact may risk prohibited communication.
Although it appears all parties accepted that the failure to contact the mother's counsel was negligent rather than intentional, the impact on the mother's rights was the same -- she was deprived of counsel's advice.
Contrary to the majority's suggestion, a determination that the assessment should have been excluded in the circumstances of this case does not amount to an "exclusionary rule." Ante at note 23. Citing Commonwealth v. Vao Sok, 435 Mass. 743, 754, 761 N.E.2d 923 (2002), the majority notes that, even in the criminal context, evidence is not required to be excluded because of a violation of Mass. R. Prof. C. 4.2. In Vao Sok, a prosecutor directed a police officer to continue administering a polygraph examination to the defendant after learning that the defendant had counsel who had requested that the exam cease. Id. Despite the prosecutor's directive, however, the police officer informed the defendant that his counsel did not want him to take the polygraph. Id. The court concluded there was "no resulting prejudice" from the ethical violation in circumstances where the defendant was nonetheless informed of his counsel's advice. Id. By contrast here, prejudice did result from the ethical violation because the mother was never informed of her counsel's advice.
The expert witness's assessment in this case was patently unfair to the mother, who was seventeen years old, with an eighth grade education and "apparent" cognitive limitations. To the extent that she had any idea of the significance of the assessment, she clearly needed, and was entitled to, the advice of counsel and protection of her attorney. Despite the appointment of counsel, she was deprived of both.
The record does not disclose what was communicated to the mother about the assessment, in particular, whether she had any choice in the matter. The preadoptive mother initially denied having asked the mother to participate but later testified that "maybe" the expert had her call the mother to say, "[H]ey, this is the day we're going to do it." The expert testified that she did not contact the mother and that it was her intention to simply "step into a visitation." When the mother arrived to visit the child, the expert did not explain who she was or why she was there. Although the mother appeared to believe that the expert was a visitation supervisor, the expert did nothing to disabuse her of that notion.
The majority disposes of the violation of the mother's right to counsel by noting that the priority in these proceedings is the best interests of the child. See ante at 426–27, 148 N.E.3d at 435-46. Yet, a just determination of the best interests of the child cannot be reached through a flawed process, one where a party is deprived of the assistance of counsel at a critical juncture. See Lavallee, 442 Mass. at 238, 812 N.E.2d 895 (absence of counsel for pretrial preparation "puts at risk ... the reliability of the adversarial testing process"); Adoption of Gabe, 84 Mass. App. Ct. 286, 292, 995 N.E.2d 1118 (2013) (where father's parental rights were terminated in proceeding where he had no legal representation, court remanded for new trial, noting that competent counsel assists judge in task of determining best interests of child, which decision "should rest on the reliability of a competent adversary process").
In my view, the trial judge's erroneous reliance on the uncounselled assessment contributed to the termination of the mother's parental rights and therefore cannot be viewed as harmless. See Commonwealth v. Vasquez, 456 Mass. 350, 360, 923 N.E.2d 524 (2010), quoting Commonwealth v. Tyree, 455 Mass. 676, 701, 919 N.E.2d 660 (2010) (harmless error analysis for constitutional violation in criminal case requires that error "did not have an effect on the [fact finder] and did not contribute to the [fact finder's findings]"). See also Satterwhite v. Texas, 486 U.S. 249, 258-259, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (where psychiatrist testified to results of examination of defendant, conducted without knowledge of his counsel, court vacated sentence, noting that question was not whether legally admitted evidence was sufficient to support sentence but rather whether error "did not contribute to verdict obtained" [citation omitted] ).
The expert's opinions, including that the child had "either an insecure or disorganized attachment" to the mother, were addressed to the key issues in the termination of parental rights proceeding and were not cumulative of other evidence in the case. See Commonwealth v. McNulty, 458 Mass. 305, 320-324, 937 N.E.2d 16 (2010) (admission of statements obtained in violation of right to counsel not harmless where they went to central issues and were not cumulative).