In re Xenos
| Decision Date | 09 May 2023 |
| Docket Number | 22-P-595 |
| Parties | ADOPTION OF XENOS.[1] |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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,[2] a judge determined that the father and the mother were unfit to parent their child Xenos, and entered decrees terminating their parental rights. The father and mother appealed from the decrees. The father who waived counsel and represented himself at trial with the assistance of standby counsel, contends that the judge failed to give proper attention to potential explanations for his escalating mental health symptoms, including his demeanor and conduct while in court, and so failed to recognize the possibility that his unfitness was transient. He also argues that the judge's review of an affidavit prepared by counsel for the Department of Children and Families (department) in support of the department's motion to substitute counsel created an appearance of bias that required the judge to recuse herself from the case.[3] The mother, who does not contest the finding of her permanent unfitness to parent Xenos, but who supported the father's efforts to retain his parental rights to Xenos, argues that the judge failed to take adequate steps to ensure that the father was competent to waive counsel, and that the judge's failure to do so cleared the way for the father to act in a way that led the judge to be biased against the mother, as the father's supporter. Additionally, she contends that the judge failed adequately to address the issue of posttermination contact between the parents and the child in her order for visitation. After careful review of the record, we affirm.
Discussion.
The father's first challenge is to the judge's conclusion that his parental unfitness was likely to be permanent. The judge here made the "specific and detailed findings in support of [her] conclusion" required to "demonstrate[e] that she [gave] the evidence close attention." Adoption of Nancy, 443 Mass. 512, 514-515 (2005). Reviewing those findings, we identify no clear error in them (indeed, the father does not argue they are clearly erroneous) nor any abuse of discretion or other error in her ultimate conclusion that the father was unfit. See Adoption of Ilona, 459 Mass. 53, 59 (2011). In assessing the father's fitness, the judge was entitled to consider the father's lapses in self-control during the trial, see Adoption of Yvonne, 99 Mass.App.Ct. 574, 580 (2021) (); the escalating symptoms of mental illness he displayed in the months preceding the trial at issue here and their impact on his ability to act in the child's best interests, see Care &Protection of Bruce, 44 Mass.App.Ct. 758, 764 (1998), quoting G. L. c. 210, § 3 (c) (xii) (significance of mental illness that interferes with parent's ability "to provide minimally acceptable care of the child"); his history of threatening behavior to department workers and others, see Adoption of Yvonne, supra (); the parents' history of "mutual domestic violence," see Adoption of Jacob, 99 Mass.App.Ct. 258, 262 (2021) (); and the father's unsanctioned removal of the child from school and supervised visits, see Adoption of Varik, 95 Mass.App.Ct. 762, 767 (2019) ().
In considering the duration of the father's unfitness, the judge "[was permitted to] consider [this] past conduct to predict future ability and performance." Adoption of Katharine, 42 Mass.App.Ct. 25, 32-33 (1997). Where, at the time of trial, the father was unfit and was not engaging in the steps required to demonstrate progress toward a return to fitness, the judge was not required to postpone a determination that was otherwise in the child's best interests based on "a 'faint hope'" that the father would become fit at some unknown time in the future. Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Inez, 428 Mass. 717, 723 (1999). We discern neither an abuse of discretion nor clear error in the judge's conclusion that the father's unfitness was likely to be permanent.
To the extent that the father now contends that the judge should have considered whether the worsening of the father's mental health in the months before the trial at issue here (second trial) was merely a temporary response to a concerning procedural problem that arose in the course of the first trial,[4] the issue was not squarely raised below, and so it is waived.
See Adoption of Bea, 97 Mass.App.Ct. 416, 430 (2020); Adoption of Norbert, 83 Mass.App.Ct. 542, 545 (2013). See also Mayer v. Cohen-Miles Ins. Agency, Inc., 48 Mass.App.Ct. 435, 444-445 (2000) ( ).
Even if it were not waived, however, the argument is unavailing. While we acknowledge the likelihood that the events of the first trial would have left the father both unhappy and suspicious of the courts, it does not necessarily follow that the escalation of the father's mental health that occurred here close in time to the first trial was just a temporary response to those events. In fact, the judge's finding that the father's worsening symptoms were "similar in nature -- though far more extreme -- to behaviors he exhibited in the past when using substances" supports a different conclusion. Furthermore, the father does not challenge the judge's findings that the father refused to participate in the mental health evaluations required under his action plans with the department and refused mental health services when they were offered. In the circumstances, the judge cannot be faulted for refusing to speculate about the possibility of the father's improvement in the future.
Although the father argues that the judge abused her discretion in denying the mother's motion to recuse herself on the grounds of bias, he did not raise the issue at trial; his claims are therefore waived.[5] See Adoption of Bea, 97 Mass.App.Ct. at 430.
As we have noted, the father represented himself at trial, assisted by standby counsel. On appeal, the mother argues that the judge failed to conduct an appropriate inquiry into the father's competence to waive counsel before the trial began, and that the father's conduct after the department moved to substitute counsel on the second day of trial required the judge to act sua sponte to assess the father's competence to waive counsel.
Even assuming the mother's right to raise these issues (a point she does not support with any legal authority), her arguments are unavailing. As to the father's original waiver of counsel, the mother has not provided us with any contemporaneous record beyond a copy of the trial court's docket to show us what the judge's considerations and inquiry were. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (). The mother likewise fails to point to any record evidence that the facts and circumstances of the case raised "'bona fide doubt' as to the [father's] ability to make an informed decision to proceed without counsel" that would have triggered the judge's obligation to make the mid-trial inquiry into the father's competency to waive counsel that the mother now contends was required. Commonwealth v. Haltiwanger, 99 Mass.App.Ct. 543, 556 (2021), quoting Commonwealth v. Barnes, 399 Mass. 385, 389 (1987). In the circumstances, we do not consider the argument further.
b. Motion for recusal and mistrial.
On the second day trial, the department moved to substitute a new attorney in place of the lawyer who had represented it through the first trial day. According to an affidavit signed by the department's original trial counsel, the substitution was necessary based the father's having made what she perceived to be threatening statements to her after the first trial day about what he would do "if [the department] tr[ied] to keep [him] away from [Xenos]." After a nonevidentiary hearing,[6] the judge allowed the department's motion, concluding that "the matters alleged in the [department's] affidavit" (emphasis supplied) required new counsel to step in for the department. Based on that ruling, the mother moved for the trial judge to recuse herself from the case on the grounds that she could no longer be impartial; she also asked the judge to declare a mistrial in the case. The judge denied the mother's motion. Reviewing the judge's ruling for an abuse of discretion, see Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 517 (2021) (mistrial); Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 546 (1998) (recusal), we discern none.
As she explained on the record, the judge responded to the...
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