Opinion
14-P-61
12-11-2014
CUSTODY OF CATHERINE (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Juvenile Court judge determined that the father of Catherine and Ben was unfit, terminated his parental rights, and ultimately awarded permanent custody of the children to their mother. See G. L. c. 119, §§ 24, 26; G. L. c. 210, § 3. The father appeals from the termination of his parental rights, arguing primarily that the trial judge erred by considering newly discovered evidence in an improper procedural context. He also argues that the judge's findings were not supported by clear and convincing evidence and that the judge was biased against him. For the reasons set forth in the trial judge's carefully considered decision, we affirm.
The father, through appellate counsel, raises three additional issues in his reply brief under Commonwealth v. Moffett, 383 Mass. 201, 208 (1981). See Care & Protection of Valerie, 403 Mass. 317, 318 (1988).
Newly discovered evidence. At the initial care and protection proceeding, the judge found that Catherine and Ben were in need of care and protection, but that it would not serve their best interests to terminate the father's parental rights at that time. Less than three months later, the father was arrested and charged with parental kidnapping after forcibly removing the children from their foster home. The incident prompted the Department of Children and Families (department) to file motions requesting the judge to reconsider her decision not to terminate the father's parental rights and to allow the department to present additional evidence concerning the kidnapping. The judge allowed both motions, which were filed within two weeks of the incident, and scheduled an evidentiary hearing six months after the completion of the initial care and protection proceeding. The father contends that to challenge the judge's decree regarding his parental rights, the department was required to petition for review and redetermination under G. L. c. 119, § 26(c), and that this petition could not have been filed until six months after completion of the initial care and protection proceeding. Ibid. We disagree.
A review and redetermination proceeding is "primarily, the means by which a parent or other interested party, including the department, may bring to a judge's attention a change in the situation of a child, or of a child's parent, which might warrant reconsideration or modification of the original order adjudicating the child in need of care and protection" (emphasis supplied). Adoption of Helen, 429 Mass. 856, 861 (1999), quoting from Care & Protection of Isaac, 419 Mass. 602, 611-612 (1995). "A review and redetermination proceeding is a readjudication of the custody order under G. L. c. 119, § 26" (emphasis supplied). Care & Protection of Erin, 443 Mass. 567, 571 (2005). Although termination proceedings under G. L. c. 210, § 3, may be consolidated with care and protection proceedings, Custody & Adoption of Ned, 28 Mass. App. Ct. 557, 558-560 (1990), we do not read the six-month repose period for care and protection proceedings to apply to termination proceedings.
The department's motions to reconsider and present additional evidence were proper under Mass.R.Civ.P. 60(b)(2), 365 Mass. 828 (1974), which allows a party to file a motion for relief from a final judgment, order, or proceeding on the ground of newly discovered evidence, if made not more than one year after the order. The evidence must be of a material nature and so controlling as probably to induce a different result. Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 361 (2008). Although the text of the rule does not refer to motions for reconsideration or to reopen the evidence, the department's motions, in substance, were properly considered under rule 60(b)(2). See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 235-236 (1985).
At the hearing on the department's motions, the department presented evidence that the father was arrested and charged with kidnapping the children less than three months after the judge issued the decision declining to terminate his parental rights. The department presented further evidence that the father assaulted the children's foster mother and that Ben was injured during the encounter. Contrary to the judge's initial finding that the father did not threaten the welfare of the children, this new evidence led the judge to conclude that the father had "grievous shortcomings" and "handicaps" that put each child's welfare "much at hazard." The new, and previously unavailable, evidence was material to the proceeding; it ultimately "change[d] the result." Cahaly, 451 Mass. at 361, quoting from United States Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 52 (1st Cir. 2002).
Even if we were to find that a review and redetermination proceeding was the exclusive vehicle for the department to present evidence of the kidnapping and obtain a redetermination of the father's parental rights, we do not perceive any prejudice to the father. The rehearing occurred more than six months after the initial proceedings, he received the full due process protections to which he was entitled, and he makes no claim that the result of the proceeding would have been different.
Sufficiency of the evidence. The father next contends that the judge erred in finding, by clear and convincing evidence, that he is unfit to provide for the welfare and best interests of the children. See Adoption of Kimberly, 414 Mass. 526, 528 (1993). A decision to terminate parental rights involves a two-step analysis: first, a finding that the parent is currently unfit, and second, a finding that termination is in the best interests of the children. See Adoption of Mary, 414 Mass. 705, 710 (1993); Adoption of Nancy, 443 Mass. 512, 514 (2005). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. at 711. The finding of parental unfitness, by clear and convincing evidence, is the "critical inquiry." Adoption of Peggy, 436 Mass. 690, 701 (2002) (citation omitted).
For a judge to take such an "'extreme step,' we require that the judge articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that [the judge] has given the evidence close attention." Adoption of Nancy, 443 Mass. at 514-515, quoting from Adoption of Frederick, 405 Mass. 1, 5 (1989). A judge's findings of fact will not be set aside unless clearly erroneous. Adoption of Greta, 431 Mass. 577, 587 (2000). The sufficiency of the evidence, however, is a question of law subject to review by this court. Howard v. Burlington, 399 Mass. 585, 588 (1987). "On appellate review, 'we must determine whether the trial judge abused [her] discretion or committed a clear error of law.'" Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008), quoting from Adoption of Elena, 446 Mass. 24, 30 (2006).
Here, the evidence was sufficient for the judge to conclude the father lacked parental fitness. The judge issued ninety findings of fact and twenty-eight conclusions of law, which clearly and convincingly established that termination would be in the children's best interests. Not only did the father kidnap the children and demonstrate abusive behavior, Care & Protection of Frank, 409 Mass. 492, 494-495 (1991), but as the judge found, he also failed to provide the children with "a stable home life, education and routine medical care." See Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990). This evidence suggests a pattern of "serious parental neglect," which the judge properly relied on to dispense with the father's parental rights. Adoption of Carla, 416 Mass. 510, 517 n.7 (1993). Accordingly, we find there was no error.
Judge's bias. The father's bias argument is based on four comments made by the judge during a hearing on the department's motion to suspend visitation and "piecemeal criticism" of the judge's findings that are adverse to his parental rights. Edinburg v. Cavers, 22 Mass. App. Ct. 212, 217 (1986). A full review of the record reveals that the judge did not make any determination regarding the father prior to a full hearing on the merits. Cf. Care & Protection of Zita, 455 Mass. 272, 279 (2009).
Although the judge expressed her disapproval of the father's conduct during visitation with the children, she further explained that she was nonetheless inclined to deny the department's motion and that there was thus no need for the father to testify. She went on to say that she knew "the benefit of" the father testifying, and permitted the father to go forward with his testimony. Her statements regarding the facts introduced by the department and her comments concerning the mother's availability to testify during the care and protection proceeding do not disclose a "preconceived notion" of the results of the proceeding. Edinburg, 22 Mass. App. Ct. at 218. The judge's findings of fact "bear the imprint of [her] independent judgment" and are entitled to "the weight customarily afforded findings of trial judges." Id. at 219-220. We find no evidence demonstrating that the judge exhibited a disqualifying bias toward the father. See In the Matter of a Care & Protection Summons, 437 Mass. 224, 239-240 (2002).
Other claims. The Moffett claims raised by the father's appellate counsel on his behalf do not require extended discussion. The father claims that the department perpetrated fraud against him, that the judge "coached" the mother's counsel throughout the proceedings, and that the father's trial counsel was ineffective. We have given due consideration to these arguments, and they do not alter our conclusions.
The father also filed a motion to extend the time for filing his own Moffett brief and to exceed the length prescribed by Mass.R.A.P. 16(h), as amended, 438 Mass. 1601 (2003). Although we allowed the motion, the father did not avail himself of this opportunity. Any additional claims are therefore waived.
Decrees affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 11, 2014.