Care and Protection of Georgette
| Decision Date | 22 May 2002 |
| Docket Number | No. 01-P-159.,01-P-159. |
| Citation | 768 NE 2d 549,54 Mass. App. Ct. 778 |
| Parties | CARE AND PROTECTION OF GEORGETTE (and three companion cases,). |
| Court | Appeals Court of Massachusetts |
Present: PORADA, LAURENCE, & KAFKER, JJ.
Matthew H. Beaulieu for Georgette.
Susan F. Drogin for the father.
Richard A. Salcedo for Department of Social Services.
Deborah D. Wolf for Beth & another.
A father appeals from a March 12, 1999, decision by a judge of the New Bedford Juvenile Court terminating his parental rights as to two of his daughters (Beth and Judith) and placing three other daughters (Rena, Georgette, and Lucy) in the permanent custody of the Department of Social Services (DSS). He alleges a variety of procedural and evidentiary grounds but chiefly challenges the ultimate finding of his unfitness as unsupported by the requisite quantum of clear and convincing evidence. Two of his children (Georgette and Lucy) appeal from a second Juvenile Court judge's denial of their March 28, 2000, motion for a new trial pursuant to Mass.R. Civ.P. 60(b)(6), 365 Mass. 828 (1974). That motion alleged that the attorney who was appointed in 1993 (after all of the children were removed from their home) to represent them and their three siblings rendered Georgette and Lucy constitutionally ineffective assistance at trial. They identify that ineffectiveness as the attorney's allegedly impermissible conflict of interest by virtue of his advocating for a finding of the father's parental unfitness as to all the children, while they wanted him to advocate that the two of them should remain with the father.3
Our review of the voluminous record firmly persuades us that the appellants' several arguments are without merit; that the trial judge committed no legal error; that his findings and conclusions easily survive appellate review; and that the motion judge correctly denied the children's rule 60(b) motion. The trial judge's detailed subsidiary findings, contained in 185 separate paragraphs and subparagraphs, not only reflect the conscientiousness, high degree of care, and close attention that he was obligated to, and did, exercise in this important and difficult matter, but also are amply supported by admissible evidence. The judge's ultimate finding and conclusion flowing from the totality of the evidence — that the father is currently unfit to provide for the welfare and best interests of Beth and Judith, with no reasonable expectation of his becoming able to do so in the foreseeable future — was reached after due consideration of the relevant statutory factors and rested not merely on clear and convincing evidence but on overwhelming evidence of that unfitness. Further, the judge's ultimate finding that the father is unfit and that DSS be granted custody with respect to Rena, Georgette, and Lucy is similarly supported by clear and convincing evidence. The two children's sole appellate contention, that the motion judge erroneously denied their right to a new trial on account of the supposed ineffectiveness of their conflicted trial counsel, is unsupported either by applicable law or on this record.
Accordingly, we affirm the decisions appealed from, finding ourselves in substantial agreement with the trial judge's findings and conclusions and the motion judge's memorandum of decision, as well as the factual analyses, reasoning, and authorities set forth in the briefs of DSS and the appellee children (Beth and Judith).
As to the father. There is no need to rehearse the depressing chronicle of the father's shortcomings, deficits, and misdeeds reflected in the detailed findings, covering over ten years of DSS interventions and proceedings and emerging from fourteen trial days at which twenty-two witnesses (including experts) testified and sixty-nine exhibits were introduced.4
The father has challenged a mere handful of the trial judge's subsidiary findings as being unsupported by the record, but those challenges are unavailing, because the remaining seven score unchallenged findings provide more than sufficient basis for the judge's conclusion as to the father's unfitness.5 Moreover, the few challenged findings are amply supported by other, unchallenged findings resting on admissible evidence; represent reasonable inferences drawn from evidence in the record or findings that are unchallenged; or rest upon the judge's unquestioned and unreviewable right to credit the testimony of DSS witnesses and experts rather than that which the father deems favorable to him (especially regarding his poor and unimproved parenting skills and his unshakable alcoholism problem).
The father's four related evidentiary complaints — that the trial judge supposedly relied on "extrajudicial" information, on evidence that had been stricken pursuant to motions in limine, and on "stale" evidence, and that the evidence did not support the findings as to the applicability to him of certain statutory factors enumerated in G. L. c. 210, § 3 — have no greater merit. His assertion that the judge improperly reviewed "extrajudicial" information about the case prior to the first day of trial in March, 1998 (based upon the judge's statement made on the first day of trial as to having prepared therefor by spending several hours reading various, mostly unidentified, documents relating to the case) has been waived, since he did not raise it or make any relevant objection during the trial.6
In any event, it is an ahistorical argument that fails to recognize that the judge had presided over matters related to the children for a period stretching back over five years. There had been investigative reports, hearings, and evidentiary submissions going back at least to August, 1993, and the judge was almost surely referring to documentary evidence that had previously been generated, presented, or admitted during the long drawn-out proceedings involving the children's care and welfare.7 Additionally, it speculatively presumes that the judge's action constituted improper consideration of facts not in evidence in the case. This is fallacious, not only for the reasons stated in the preceding sentence but also because it is virtually certain (and, indeed, is certain as to the few identifiable documents mentioned by the judge) that, whatever the so-called "extrajudicial" information the father complains the judge consulted may have been, it was eventually introduced in evidence over the fourteen-day trial that followed the judge's remarks and therefore could be properly relied on.8
The father's assertion that the judge struck but then relied on certain information contained in court investigators' reports, G. L. c. 119, § 51A, reports, and a social worker's affidavit is equally baseless. Very little information was in fact stricken (a truly tiny portion of the sizeable body of evidence presented in the case); the father has failed to identify, and we cannot discern, any findings based solely on stricken material; and no serious argument has been made that the stricken information had any impact on the judge's ultimate findings and conclusions.9
The father's complaint that the evidence was too "stale" to support a finding of unfitness ignores the propriety of the judge's reliance on prior patterns of ongoing or repeated parental neglect, abuse, and misconduct as reliable prognosticators (particularly so when, as here, they are supported by expert opinion) in assessing a parent's present and likely future capacity and ability to care for his children. See Adoption of Diane, 400 Mass. 196, 204 (1987). It also evades the fact that there was evidence (much of it from testimony the judge expressly found credible) of his continued unfitness up to or near the time of trial, including the father's unabated alcohol problems, noncompliance with plans and services, and the poor and unimproved quality of his interactions with his children.
The father's last evidentiary challenge, to the alleged lack of evidence for the judge's findings on the applicability of certain of the factors to be considered pursuant to G. L. c. 210, § 3, in dispensing with consent to adoption (chiefly concerning the extent to which the father had been offered but did not take advantage of services designed to address his parenting deficiencies), also fails. As noted earlier, those findings are either supported by the record evidence or rationally inferrable from other supported findings.10
As to Georgette and Lucy. Georgette and Lucy did not appeal the March 12, 1999, order committing them to the permanent custody of DSS. Nor did they move for a new trial within ten days of entry of the judgment thereon, pursuant to Mass.R. Civ.P. 59, 365 Mass. 827 (1974),11 as they could have on the issue that they then knew, or should have known, they had and of which they now complain, namely misconduct of counsel in acting for an adversary during trial (which had concluded eight months prior to the entry of the judgment) in a manner prejudicial to their interests. See Smith and Zobel, Rules Practice § 59.8 (1977).12 Instead, on March 28, 2000 (almost thirteen months after the judgment and twenty months after the completion of the trial), they filed (by new appellate counsel) a "Motion for a New Trial Pursuant to Massachusetts Rules of Civil Procedure Rule 60(b)(6)." That motion was supported only by the affidavit of appellate counsel, which averred that Georgette and Lucy wanted and were entitled to have the care and protection orders with respect to them vacated and a new trial ordered on the issue of their father's unfitness because of ineffective representation by their trial attorney. That attorney (who had been appointed in 1993 to represent all five siblings) had, the motion charged, an "actual" or "genuine" conflict of interest arising from his trial advocacy of the father's unfitness as to all five minor children before the court, in alleged direct opposition to Georgette and Lucy's...
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