Opinion
14-P-1296
06-10-2015
ADOPTION OF HARRY (and three companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The mother and the father of the four subject children separately appeal from decrees issued by a judge of the Juvenile Court adjudicating the mother and father unfit and terminating their parental rights. See G. L. c. 119, § 26. Specifically, the parents each allege violations of their rights to due process and challenge the trial judge's findings of fact and the admission of hearsay evidence. The mother also appeals from the denial of the parents' joint motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). We affirm the decrees and the order denying the motion.
1. Due process. "The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected." Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979). Thus, before the Commonwealth may terminate parental rights, "the requirements of due process must be met." Ibid. On appeal, both parents claim that their due process rights were violated during the course of trial. Their arguments focus on the judge's alleged lack of impartiality and her examination of Kathryn (a pseudonym), the then-twelve year old daughter of the father from a prior relationship.,
Kathryn was not a subject of this termination proceeding.
As an initial matter, counsel for the subject children contends that the parents' appeals should be dismissed for failure to timely file a new notice of appeal as required by Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999), after the denial of their joint motion to reopen the evidence and for relief from judgment. The parents each filed a timely appeal of the underlying decrees terminating their parental rights, and later filed timely appeals from the denial of their joint motion. The father's attorney then filed a motion to consolidate the appeals. We assume, without deciding, that the full case is properly before us.
A. The judge's alleged biased conduct. "Article 29 of the Massachusetts Declaration of Rights guarantees to every citizen the right 'to be tried by judges as . . . impartial . . . as the lot of humanity will admit,'" Adoption of Seth, 29 Mass. App. Ct. 343, 350 (1990), and our cases "make it abundantly clear that the finder of fact must keep an open mind until all the evidence is presented and both sides have rested." Adoption of Tia, 73 Mass. App. Ct. 115, 121-122 (2008). In her brief, the mother takes issue with (1) the trial judge's tone and evidentiary rulings, and (2) how quickly the trial judge announced her decision after the close of the evidence. The mother argues that these actions demonstrate a lack of impartiality on the part of the judge.
However, the mother made no objection at trial on these grounds, nor did she request that the judge recuse herself. Therefore, the issue is waived, and we need not consider it on appeal. Adoption of Pierce, 58 Mass. App. Ct. 342, 348-349 (2003). Rather, the mother's delayed challenge merely "suggests a tactical decision in the face of an adverse ruling." Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002).
B. The judge's examination of Kathryn. Although the art. 12 right to confrontation does not apply in the context of care and protection or termination proceedings, due process does require that "a parent have the opportunity effectively to rebut adverse allegations concerning child-rearing capabilities." Adoption of Don, 435 Mass. 158, 169 n.16 (2001), quoting from Adoption of Mary, 414 Mass. 705, 710 (1993). Both parents challenge on appeal the manner in which the trial judge took testimony from Kathryn, claiming that the judge's methods violated their due process rights, as they were prohibited from observing Kathryn's testimony, and though their counsel were present during the testimony, counsel were only allowed to submit questions via the judge. While the record is ambiguous as to whether either the mother or the father preserved this claim, we nonetheless conclude that it is without merit.
The father contends that trial counsel "vigorously objected" to the judge's method for taking Kathryn's testimony, and has an affidavit from trial counsel in support of that claim, but there is no transcript of this alleged discussion between trial counsel and the judge.
"Because of the delicacy of cases involving interests of children which may be adverse to that of their parents," trial judges are allowed in limited circumstances to interview children without the parents present to avoid trauma to the child. Adoption of Arthur, 34 Mass. App. Ct. 914, 915 (1993). This is not in conflict with our principles of due process, as the parents here were afforded an opportunity to rebut the allegations made against them. All counsel filed questions for the judge to ask Kathryn, and at several points during her examination of Kathryn, the judge inquired as to whether counsel had any additional questions. They had no further questions. More broadly, both parents had the opportunity to present witnesses and other evidence to rebut Kathryn's abuse allegations.
Furthermore, the trial judge did not err by not making an explicit finding that her method for taking Kathryn's testimony was tailored to avoid inflicting further trauma. The judge's determination that Kathryn would suffer trauma is implicit, given Kathryn's history and the concerns of her psychiatrist. Adoption of Roni, 56 Mass. App. Ct. 52, 55-57 (2002) (2003).
2. Challenges to the judge's factual findings. When considering whether to terminate parental rights, trial judges are required "to enter specific and detailed findings demonstrating that close attention has been given the evidence." Care & Protection of Laura, 414 Mass. 788, 791 (1993). Such a decision must be based on a consideration of all relevant facts, including those most troublesome to the judge's decision, which must be "faced rather than ignored." Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995) (quotation omitted). Subsidiary findings of fact need only be proved by a fair preponderance of the evidence, Care & Protection of Laura, supra, and will not be overturned unless clearly erroneous. Adoption of Stuart, supra.
The mother argues that several of the judge's findings of fact were clearly erroneous, and the father challenges findings of fact that stem from the judge finding Kathryn's testimony credible. The trial judge's assessment of the weight of the evidence and the credibility of the witnesses is accorded substantial deference. Adoption of Nancy, 443 Mass. 512, 515 (2005). Almost all of these challenges amount to no more than dissatisfaction with the judge's weighing of the evidence; the erroneous findings the judge did make involve marginal matters or cumulative evidence, and as such do not warrant reversal. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
3. Admission of hearsay statements. The father claims that hearsay statements by Kathryn and the subject children that were included in reports made pursuant to G. L. c. 119, § 51B, were improperly admitted in evidence for their truth. In his brief, the father states that trial counsel objected to this hearsay, thereby preserving the claim and calling into question dozens of the judge's findings. However, the father fails to cite to specific objections in the transcript, and cites merely to the parents' motion in limine and a single page of the trial transcript that fails to provide meaningful support for his argument. The father's claim "cannot be said to rise to the level of acceptable appellate argument," and is therefore deemed to be waived. Adoption of Kimberly, 414 Mass. 526, 536-537 (1993). Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
3. Denial of the parents' rule 60(b) motion. Lastly, the mother argues that the judge (1) erred by failing to issue her findings for fifteen months after the close of evidence, and (2) abused her discretion in denying the parents' joint motion to reopen the evidence in light of the judge's delay. Although the delay here is troublesome, the denial of the motion to reopen the evidence was not an abuse of discretion given that the posttrial evidence offered did not meaningfully counteract the clear and convincing evidence of unfitness admitted at trial. To the contrary, the substantial record support for the judge's decision to terminate parental rights -- including but not limited to the significant signs of trauma exhibited by the subject children after their removal from the parents' custody, the inability of the parents to maintain a stable home life or follow service plans, the parents' inability to meet the specialized needs of the subject children, and the presence of domestic violence between the parents -- leads us to affirm the decrees and the order denying the motion for relief from judgment.
Despite the judge's fifteen-month delay, these facts are still relevant. See Adoption of Paula, 420 Mass. 716, 729 (1995) ("When a parent's living situation has changed, a judge nonetheless properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness").
So ordered.
By the Court (Berry, Kafker & Cohen, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 10, 2015.