Opinion
No. 12–P–147.
2012-10-17
ADOPTION OF ZINNIA.
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following trial in the Juvenile Court, the commitment of his daughter to the permanent custody of the Department of Children and Families (DCF), and the termination of his parental rights in December, 2008, the father now appeals from the denial of his motion for a new trial. The trial judge denied the motion in a decision dated December 23, 2010.
On appeal, the decrees of the Juvenile Court were affirmed in Adoption of Zinnia, 77 Mass.App.Ct. 1110 (2010). Further appellate review was denied in 458 Mass. 1104 (2010).
The father claimed that he had newly discovered evidence that the daughter's DNA was not found on an electric toothbrush which DCF contended may have been used to sexually abuse the child. In a carefully considered decision, which we summarize, the judge concluded that the evidence was not newly discovered because the father's counsel “conceded that he and his client were aware of the allegations associated with the toothbrush and the location of the toothbrush throughout the termination trial and did not seek DNA testing.” The judge stated that even considering the DNA results as evidence, “the only effect ... would at most rule out [f]ather using the electric toothbrush ... to sexual[ly] abuse the child.” The judge concluded that the child's “numerous consistent and specific disclosures” of the abuse and the effects on the child “would remain and support the termination findings.”
For these reasons, the reasons given in the DCF brief at pages eleven through seventeen, and the reasons given in the child's brief at pages nine through seventeen, we conclude the judge did not err in denying the father's motion for a new trial.
Order denying motion for new trial affirmed.