In re Yvonne

• Decision Date: 18 May 2021
• Docket Number: No. 20-P-791,20-P-791
• Citation: 170 N.E.3d 1178,99 Mass.App.Ct. 574
• Parties: ADOPTION OF YVONNE (and two companion cases ).
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 574

170 N.E.3d 1178

ADOPTION OF YVONNE (and two companion cases ¹ ).

No. 20-P-791

Appeals Court of Massachusetts, Suffolk.

Argued March 12, 2021.

Decided May 18, 2021.

Valerie B. Robin, for the mother.

Tasha Bahal, Special Assistant Attorney General, for Department of Children and Families.

Dawn M. Messer, for the children.

Present: Massing, Henry, & Ditkoff, JJ.

MASSING, J.

The mother appeals from decrees issued by a Juvenile Court judge terminating her parental rights with respect to three of her children² and from the order denying her late-filed motion for a new trial, which the judge properly treated as a motion for relief from judgment. She contends that certain of the judge's findings are clearly erroneous and that the ultimate finding of her unfitness is not supported by clear and convincing evidence. She further asserts that delays and interruptions during the trial amounted to a denial of due process, and that the judge abused his discretion in denying her motion for a new trial. We affirm, clarifying the standard for establishing entitlement to relief from judgment under Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974), which applies by analogy in termination of parental rights cases.

Background. The Department of Children and Families (department) initiated the underlying care and protection proceedings in August 2014, shortly after the birth of the mother's fifth child, Helen. When Helen was about one month old, the department received a report produced pursuant to G. L. c. 119, § 51A (51A report),³ which was later supported, alleging medical neglect of Helen. The mother had missed several of Helen's medical appointments, and the child had gained only one pound since birth. In similar circumstances, the department had previously initiated care and protection proceedings alleging medical neglect and physical abuse⁴ of the mother's third and fourth children, twins, which resulted in the termination of the mother's parental rights with respect to those two children.

The department sought emergency temporary custody of Helen and of the mother's two oldest children, Yvonne and Faye. See G. L. c. 119, § 24. The judge granted temporary custody of the two younger children, Faye and Helen, to the department,⁵ and temporary custody of the eldest, Yvonne, to the maternal grandmother.

The start of trial was rescheduled at least four times.⁶ Trial began in December 2017, more than three years after the initiation of the care and protection proceedings. Scheduling issues in the Juvenile Court and the mother's absence from or late arrival on certain trial dates further delayed the proceedings. Thus, the trial was held on eight nonconsecutive days over the course of six months. The mother's direct examination was staggered over three trial dates. She was absent on four days. On the final day of trial, June 13, 2018, the judge, acting sua sponte, struck the mother's testimony because she was not present to complete her direct examination or begin cross-examination. He also drew an adverse inference from her absences. At the conclusion of the trial, the judge orally announced his decision finding the mother unfit and terminating her parental rights. The judge issued an "Amended Notice of Decision" two days later. Twelve days after that, on June 28, 2018, the mother filed and served a notice of appeal and a motion for new trial, which the judge denied on August 17, 2018. The mother timely filed a notice of appeal from the order denying her motion. In July 2020, the judge issued detailed written findings of fact and conclusions of law.

Discussion. 1. The mother's fitness. To terminate a parent's rights with respect to her children, "a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child[ren]'s best interests will be served by terminating the legal relation between [them]." Adoption of Ilian, 91 Mass. App. Ct. 727, 729, 78 N.E.3d 779 (2017), quoting Adoption of Ilona, 459 Mass. 53, 59, 944 N.E.2d 115 (2011). "[T]he idea of ‘parental unfitness’ means ‘grievous shortcomings or handicaps’ that put the child's welfare ‘much at hazard.’ " Adoption of Katharine, 42 Mass. App. Ct. 25, 28, 674 N.E.2d 256 (1997), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 854 (1975). A judge must consider "a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age," Adoption of Mary, 414 Mass. 705, 711, 610 N.E.2d 898 (1993), and "may consider past conduct to predict future ability and performance," Adoption of Jacob, 99 Mass. App. Ct. 258, 262, 166 N.E.3d 475 (2021), quoting Adoption of Katharine, supra at 32-33, 674 N.E.2d 256. "We give substantial deference to the judge's decision to terminate parental rights ‘and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.’ " Adoption of Talik, 92 Mass. App. Ct. 367, 370, 84 N.E.3d 889 (2017), quoting Adoption of Ilona, supra.

The mother asserts that certain of the judge's subsidiary findings -- namely those concerning her unstable housing and financial instability, domestic violence in her relationships, and "concerning behaviors" -- were clearly erroneous. The mother further contends that even if the judge's findings were not clearly erroneous, they were based on stale evidence, lacked a nexus to her parenting abilities, and provided insufficient grounds for a finding of unfitness.

a. Factual findings. The judge's determination that the mother was unfit was "based on subsidiary findings proved by at least a fair preponderance of evidence," Adoption of Jacques, 82 Mass. App. Ct. 601, 606, 976 N.E.2d 814 (2012), which are supported by the testimony of the family's ongoing social worker and other department employees, and by unobjected-to department reports and court investigator reports,⁷ among other exhibits.

i. Domestic violence. The judge concluded that the mother's failure to recognize the need for services to address issues of domestic violence in her relationships and to engage in those services demonstrated a "lack of insight" regarding the effect domestic violence had on her and her children's lives. Because "[d]omestic violence may imperil a child's physical safety and psychological development ... evidence of domestic violence is relevant to a judge's determination of parental fitness." Adoption of Jacob, 99 Mass. App. Ct. at 262, 166 N.E.3d 475. See Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6, 826 N.E.2d 742 (2005).

The mother contends that the record does not support the judge's findings concerning domestic violence because he struck her testimony. Called as a witness by the department, on direct examination the mother testified at length about domestic violence in her relationships with all of the children's fathers. Indeed, domestic violence was the theme of the mother's defense.⁸ However, because the mother did not return to court to complete direct examination or to be questioned by the other parties -- or even by her own attorney -- the judge, sua sponte, struck her testimony. The department did not object; as a result, however, the department is now unable to rely on the mother's testimony to support the judge's findings and conclusions.⁹

Invoking Custody of Vaughn, 422 Mass. 590, 599, 664 N.E.2d 434 (1996), the mother also contends that the judge failed to make "detailed and comprehensive findings" concerning the effects of domestic violence on the children. In light of the "special risks to the child," id., judges are required to make such findings before granting custody to a parent who has committed acts of violence against a family or household member. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 142, 807 N.E.2d 237 (2004) (award of custody to father vacated where judge failed to make express and detailed findings concerning evidence of father's domestic violence, "its effects on the child, and its relationship to the father's ability to parent"). Where evidence of domestic violence is a factor contributing to a judge's decision to find a parent unfit or to terminate parental rights, however, the judge's findings need not be any more detailed or comprehensive than is required for any other factual findings supporting such determinations. See Adoption of Georgia, 433 Mass. 62, 66, 739 N.E.2d 694 (2000) ("we require that the judge's findings be specific and detailed, so as to demonstrate that close attention was given to the evidence").

As the presence of pervasive domestic violence was not a contested issue at trial, it is not surprising that the judge did not go to great lengths to document the occurrences of domestic violence in his findings. But even without the mother's testimony, the record reveals a pattern of abusive relationships that adversely affected the mother and the children. The department's G. L. c. 119, § 51B reports (51B reports), and the court investigation report documented a history of abuse, primarily by Faye's father. This properly admitted evidence provided adequate support for the judge's findings concerning domestic violence.¹⁰

The mother further argues that the record evidence of domestic violence is stale and shows no nexus to her fitness.

The judge recognized that the mother "briefly" made efforts to gain insight into the effects of domestic violence on her and the children's lives and he acknowledged that she was not in an abusive relationship at the time of trial. Although the mother did meet with a domestic violence therapist, she told the department soon after that "she did not feel a connection" with the therapist. She partially completed a group program on the impact of violence and completed an intake with a domestic violence advocate, but stopped engaging in...