Opinion
22-P-90
09-26-2022
ADOPTION OF ESTHER.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial in the Juvenile Court, the mother appeals from the decree terminating her parental rights to her daughter, Esther, arguing that the judge was biased against her and so denied her the right to a fair trial. Notwithstanding the mother's failure to raise these arguments in the trial court, we conclude that the record fails to demonstrate that the mother's due process rights were violated in the course of the trial. Accordingly, we affirm.
Esther's father's rights were terminated separately. He is not a party to this appeal.
Background.
The mother challenges none of the judge's comprehensive and detailed factual findings, including his determination of her parental unfitness, as erroneous. We summarize the procedural history and the facts of the case as the judge found them, reserving certain details for later discussion.
In summarizing the facts, both we and the parties rely on the judge's "Second Amended Findings of Fact, Conclusions of Law and Order on Care and Protection Petition."
On April 26, 2019, one day after Esther was removed from the mother's home on an emergency basis based on a report under G. L. c. 119, § 51A, alleging that the mother had physically abused Esther, the Department of Children and Families (department) filed this care and protection petition. The case was tried on June 3, 7, and 14, 2021. After considering seventeen exhibits and the testimony of four witnesses, including the mother, the judge issued a decree that permanently committed Esther to the custody of the department, terminated the mother's parental rights, and approved the department's permanency plan for Esther's adoption.
In his findings of fact and conclusions of law, all of which were amply supported by the evidence, the judge found that the mother suffered from ongoing and serious mental health issues that caused or contributed to her abuse and neglect of her daughter. He found that the department made reasonable efforts to help the mother to address those and other concerns that brought Esther under its care, and that although the mother participated in some services (including engaging in a partial hospitalization program for mental health treatment and completing a parenting class), she failed to make use of referrals for individual therapy and to follow the recommendations of her clinical providers. To the extent that she participated in the services offered to her, she did not benefit from them; at the time of trial, the mother continued to lack insight into her mental illness and its impact on her ability to parent Esther adequately. In addition to his findings about the impact of the mother's mental health on her ability to parent Esther, the judge determined that the mother sometimes suffered from housing instability, was not supportive of Esther's having a relationship with other family members, and was inconsistent in her visits with Esther, often missing visits because she forgot or was "busy." While acknowledging that the mother wanted Esther to be safe, and that the mother loved her daughter, the judge concluded that the mother "remain[ed] just as [unable] to meet [Esther's] needs at the time of trial as she was at the time of her removal, if not more." The judge concluded that termination of the mother's parental rights and implementation of the department's plan for Esther's adoption was in Esther's best interests. Based on his assessment of the limited bond between the mother and Esther, the judge declined to order posttermination and postvisitation contact.
Even when the mother participated in visits, the judge's findings reflect that her conduct during the visits often made Esther uncomfortable. Ultimately, Esther asked to "take a break" from visitation with the mother.
The mother did not offer a competing permanency plan.
Discussion.
1. Waiver.
As the mother acknowledges, her due process challenge was not preserved at trial. "Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances." Adoption of Mary, 414 Mass. 705, 712 (1993). See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 697 (1984). Although the mother's constitutional challenge was waived, "given the serious nature of the case, coupled with the fact that due process governs these proceedings," we nonetheless determine that the mother's claims warrant our review. Adoption of Norbert, 83 Mass.App.Ct. 542, 545 (2013). After careful consideration of the transcript and the parties' arguments, we conclude that despite certain errors, the judge did not violate the mother's due process rights in his conduct of the trial.
As we discuss in greater detail, infra, we do not agree with the mother's contention that the record reflects structural error as a result of judicial bias in this case. Even were we to conclude otherwise, however, the argument would be waived. See Commonwealth v. Jackson, 471 Mass. 262, 268 (2015), cert. denied, 577 U.S. 1145 (2016) (public trial right, "like any structural right, can be waived").
2. Judicial bias.
The mother contends that she was denied a fair trial on the termination of her parental rights to Esther because the judge was biased against her. She argues that this judicial bias manifested itself in the judge's assuming a "prosecutor[ial]" role in the trial, primarily through his questioning of certain trial witnesses. She further argues that the errors at issue were structural, and so require an automatic reversal without a showing of prejudice. See Commonwealth v. Hampton, 457 Mass. 152, 163 (2010) (defining structural error). While we agree that some of the questions were improper, we are not persuaded that the errors, individually or collectively, were structural; we likewise discern no prejudice resulting from them.
Although the mother argues that the judge "interfered with the conduct of the trial by extensively examining three . . . of the four . . . witnesses . . ., asking leading questions that are verbatim from the statutory factors requesting conclusions from the witnesses he must consider in determining [the mother's] unfitness," her record citations are limited to the judge's questions to LaToya Valentine, a department supervisor, and herself. We limit our analysis accordingly. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
We need address only briefly the mother's argument that the judge acted improperly in instructing counsel for the department to "supplement" the trial exhibits with a safety plan not in evidence. That argument fails, if for no other reason than the fact that the document at issue was never provided to the judge, and so did not have any effect on the judge's conclusion.
The mother's suggestion that the judge engaged in a "takeover of questioning" at trial is both hyperbolic and misleading. Unlike the judge in Adoption of Norbert, 83 Mass.App.Ct. at 546, the judge here asked only a limited number of questions. See id. ("judge asked over 1,000 questions as compared to the approximately 725 questions asked by counsel [for all other parties] combined"). Additionally, with a limited number of exceptions, the judge used his questions permissibly to clarify the testimony and the record. See Commonwealth v. Hassey, 40 Mass.App.Ct. 806, 810 (1996) (judge may ask questions to clarify evidence).
The transcript does, however, disclose certain discrete errors. While we are not persuaded that any of them amounted to "fundamental defects in [the] trial" or denied the mother "[her] 'right to an impartial adjudicator,'" Hampton, 457 Mass. at 163, quoting Gomez v. United States, 490 U.S. 858, 876 (1989) -- and thus were not structural errors -- we pause to review our concerns about them. We agree with the mother that one line of questions to LaToya Valentine strained the limits of the judge's role as neutral fact finder. After the parties had questioned Valentine, a department witness who had testified to her observations about the mother's failure to meet the department's expectations and her challenges in making use of her opportunities to visit with Esther while Esther was in the department's temporary custody, the judge asked Valentine a series of leading questions that tracked nearly verbatim the language of the statutory factors the judge was required to consider in assessing parental fitness. See G. L. c. 210, § 3. The questions were improper in their form; more importantly, by suggesting answers that spoke directly -- and unfavorably -- to the statutory fitness considerations, the judge created an unnecessary risk that his "impartiality might reasonably be questioned." Commonwealth v. Morgan RV Resorts, LLC, 84 Mass. App. Ct. 1, 10 n.16 (2013) (term "appearance of partiality" shorthand for "whether a judge's impartiality might reasonably be questioned"). On a review of the entire trial record, read reasonably, however, we discern no prejudice. First, the substance of Valentine's answers to the questions was merely cumulative of evidence properly introduced at other points in the trial. See Adoption of Carla, 416 Mass. 510, 520 (1993) (upholding conclusion of unfitness even if some evidence should have been excluded). Second, we are not persuaded that the judge's questions would have raised doubts to a reasonable person who was not a party to the action. See Morgan RV Resorts, LLC, supra at 13-14. In doing so, we note the lack of any contemporaneous objection. See id. at 13.
For example, the judge asked Valentine:
Judge: "So, is it your testimony that mother was offered services intended to correct the circumstances which led to the abuse and neglect of the child which caused the removal of the child, and that mother was unable to utilize the services on a regular and consistent basis so was asked [sic] to substantially reduce the risk of danger or possible abuse to the child?"
Witness: "That's correct. . . ."
Judge: "And since the inception of this case and more so in the last six months, would you agree that mother's not maintained significant, meaningful contact with the child?"
Witness: "Yes."
Judge: And the child's been in DCF custody since the filing of the care and protection case, correct?"
Witness: "Correct."
Judge: "Do you believe that mother has caused a lack of effort on her end to obtain and participate in services?"
Witness: "I, I believe so, yes."
At oral argument, the mother's counsel urged us to consider that trial counsel's failure to raise the issue reflected not a lack of concern about the judge's conduct, but rather a concern about the potential repercussions of confronting a judge in whose court room members of the relatively small juvenile law bar are likely to appear regularly. We are not convinced that judges are unable to respond professionally to constructive criticism from the bar; certainly, there is nothing in this record to substantiate that concern. In any event, we doubt that such concerns excuse counsel from their obligation to advocate zealously for their clients.
We also agree with the mother that the judge overstepped in asking Valentine's opinion about the mother's mental health prognosis, a question that called for expert opinion for which no foundation had been laid. Here, again, however, where the record included substantial other evidence about the mother's mental health history and condition at the time of trial, we discern no prejudice resulting from the judge's question to Valentine. See Adoption of Carla, 416 Mass. at 517-520 .
As to the mother's claim that the tone of the judge's examination reflected bias against her, we note, as we did in Adoption of Norbert, that "the transcript cannot disclose the tone of the judge's voice or his manner in asking questions." Adoption of Norbert, 83 Mass.App.Ct. at 546. See Adoption of Querida, 94 Mass.App.Ct. 771, 777 (2019) (counsel's failure to raise issue of judge's bias "suggests that the judge's [conduct was] not perceived as prejudicial and biased at the time or in the context in which [it occurred]"). While the judge appears to have succumbed to momentary frustration with the mother at one point, his brief exchange with her was not representative of his conduct in the trial as a whole. His comment to the effect that the mother had failed to "prove" that she was acting in her daughter's best interests would have been better left unsaid, but we do not view the statement as indicative of bias against the mother or as an indication that the judge improperly shifted the burden of proof to her at trial. The same is true of the judge's response to the mother's testimony that she was concerned about how Esther was feeling about the mother's inconsistent visits. However these statements read on the page, and with the benefit of hindsight, "we view the lack of an objection by counsel as particularly significant" as indicators of their limited practical impact. Adoption of Norbert, supra at 547. Ultimately, we are satisfied by the judge's thorough and well-supported findings and conclusions that his assessment of the evidence was evenhanded and fair. Accordingly, the isolated errors do not require reversal.
The mother argues that the judge's tone was "indignant and hostile," and that the transcript shows that "disbelief and disdain ooze[d] through every word in every sentence [uttered by the judge to the mother]."
In response to the mother's statement to the effect that the department caused the problem by "fluctuating the schedules," the judge asked the mother, "How do you think your daughter felt coming to visits and you not showing up? How do you think that made her feel?"
Conclusion.
The decree is affirmed.
So ordered.
The panelists are listed in order of seniority.