text:
    COMMONWEALTH v. Shane CARNEY.
    18-P-57
    Appeals Court of Massachusetts.
    Entered: October 11, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On April 29, 2003, the defendant pleaded guilty to charges of assault and battery on a police officer, pursuant to G. L. c. 265, § 13D ; malicious destruction of property, pursuant to G. L. c. 266, § 127 ; threats to commit a crime, pursuant to G. L. c. 275, § 2 ; and disorderly conduct, pursuant to G. L. c. 272, § 53. The defendant filed motions to withdraw his guilty pleas on three occasions -- in 2009, 2016, and 2017 -- each of which was denied. In the instant appeal from the order denying the 2017 motion, the defendant maintains that there was an insufficient factual basis for his guilty plea to the crime of assault and battery on a police officer. We affirm.

Discussion. Passing on the question whether the defendant waived his present argument by failing to raise it in his first motion, the defendant's appeal falters because he has not shown that the denial of his motion to withdraw his plea was "an abuse of discretion that produces a manifestly unjust result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). Here, the factual basis for the defendant's plea included the following. On October 18, 2002, at approximately 2:30 A.M. , the defendant put his fist through the window of a convenience store. When Lowell police Officer Tong Phay arrived at the scene, he observed that the defendant was belligerent. He was screaming and threatening to "beat up" one of the other responding officers. As Officer Phay approached the defendant in an attempt to calm him, the defendant became even more violent. When Officer Phay tried to escort the defendant away from the store, he flailed his arm and struck Officer Phay in the shoulder. This was a sufficient factual basis for each of the elements of assault and battery on a police officer. Commonwealth v. Porro, 458 Mass. 526, 529 (2010).

Order entered November 7, 2016, denying motion to withdraw guilty plea affirmed.

      The recorded plea hearing no longer exists. The Commonwealth and the defendant aver that the charges were supported by the police report, from which we derive the following factual recitation.

      Because there was a sufficient factual basis for intentional assault and battery on a police officer, we need not reach the defendant's arguments regarding a reckless assault and battery theory.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Cynthia DELANEY.
    17-P-1207
    Appeals Court of Massachusetts.
    Entered: October 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A District Court jury convicted the defendant of operating a motor vehicle while under the influence of alcohol (OUI), and of operating a motor vehicle negligently so as to endanger (negligent operation). The defendant filed a motion for new trial, which the trial judge denied after an evidentiary hearing. In this consolidated appeal, the defendant argues that she is entitled to a new trial on the OUI conviction because of the ineffectiveness of her trial counsel, in combination with a misstep in the prosecutor's closing argument. She also argues that the evidence supporting the negligent operation conviction was insufficient as a matter of law. We affirm.

Alleged ineffectiveness of counsel. To make out a claim of ineffective assistance, a defendant must demonstrate (1) that her counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that it "likely deprived [her] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We review the denial of a motion for new trial for an abuse of discretion or other error of law. Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). Where, as here, the judge hearing the motion for new trial also presided at the trial, his ruling is entitled to "special deference." Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). The defendant argues that her trial counsel was ineffective in three respects, which we address in turn. For the reasons that follow, we agree with the judge that trial counsel's alleged shortcomings do not warrant a new trial, whether viewed on their own or together with other alleged errors.

At the conclusion of the arresting officer's direct testimony, the prosecutor asked him whether he was "able to form an opinion as to [the defendant's] sobriety only that evening." The defendant objected, but the judge properly overruled that objection. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) ("a lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication"). However, in responding to the question, the officer strayed beyond permissible grounds by answering that he believed that the defendant was not only "intoxicated," but also "impaired, and should not be driving." See id. (lay witness in OUI case "may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely"). Defense counsel did not object to or move to strike that portion of the officer's answer, and the defendant now claims that this failure constituted constitutional ineffectiveness.

Passing over the question whether counsel's failure to object fell "measurably below that which might be expected from an ordinary fallible lawyer," we agree with the Commonwealth that the defendant cannot satisfy the second Saferian prong. Saferian, 366 Mass. at 96. The evidence that the defendant was intoxicated and impaired was strong. Faced with such evidence, we find it difficult to imagine that the jury were swayed by hearing that the officer who arrested the defendant for OUI in fact believed she was "impaired, and should not be driving." This is especially true where the judge properly instructed the jury:

"[I]t is for you as the jury to determine whether the defendant was under the influence of alcohol according to the definition that I have provided ... [and y]ou may consider any opinion that you've heard and accept it or reject it, but in the end you and you alone must decide whether the defendant was under the influence of intoxicating liquor."

The defendant also claims ineffectiveness in her counsel's failure to object to testimony that the defendant had admitted to the arresting officer "that she takes a whole bunch of medication for back pain, back spasms, and inflammation," and that she had "take[n] her medication [that day]." Although there was no evidence of what specific medication the defendant had taken, or when that day she had taken it, the defendant now claims that the admission of such testimony seriously prejudiced her, by inviting the jury to speculate on how the medication might have exacerbated the effects of the alcohol in regard to her ability to operate a motor vehicle safely.

The record reflects that defense counsel made a considered, strategic decision to allow the jury to hear evidence that the defendant took medication for her physical ailments. Defense counsel believed the evidence would highlight the seriousness of her medical conditions for the jury and, in turn, provide a potential explanation for why the defendant performed so poorly on the field sobriety tests. "Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was ' "manifestly unreasonable" when made.' " Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). Defense counsel's decision to let such evidence stand was well within the bounds of reasonableness.

The defendant also argues that her counsel was ineffective by allowing in evidence the results of the breathalyzer tests that the defendant took after being brought back to the police station. Those results were .069 and .07 percent blood alcohol content by weight, figures that lie below the .08 legal limit for a per se violation. The record reflects that, again, defense counsel made a considered strategic choice to allow the jury to hear such evidence (a decision that defense counsel made only after extensive discussions with the defendant). Then, in an effort to use such evidence to the benefit of the defendant, defense counsel solicited testimony that "both of those [results] are below the legal limit of .08." We agree with the judge's assessment that defense counsel's decision to allow the jury to learn the breathalyzer test results "was a legitimate tactical decision and not the result of incompetence, inefficiency, or inattention of counsel."

The defendant also makes a different argument regarding the admission of the breathalyzer test results. As the defendant points out, State regulations constrain the use of breathalyzer testing. According to the defendant, the applicable regulations require that sample results be recorded in the two decimal mode and "when truncation results in non-identical readings, only the lower figure is admissible." See Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411-412 (2014). Had these requirements been followed, the defendant argues, the jury would have heard that the defendant had a blood alcohol of only .06, not .069 and .07. Because allowing the jury to hear the higher figures would serve no strategic purpose, the defendant maintains that her counsel was ineffective in failing to keep those figures out.

The flaw in this argument is that the defendant has not demonstrated how defense counsel could have insisted that only the .06 figure be used. Because the Commonwealth was proceeding only on an impairment theory, the introduction of any test results as to blood alcohol level would not have been sanctioned without their being accompanied by expert opinion explaining their significance. See Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007). Had the defendant objected to the testimony about the results, this presumably would have resulted in the exclusion of the testimony altogether, not in tailoring the results as the defendant preferred. See id. Therefore, the decision not to object to the blood alcohol results was not manifestly unreasonable. See Kolenovic, 471 Mass. at 674. In any event, that decision did not deprive the defendant of a "substantial ground of defence" in light of how strong the evidence of the defendant's intoxication and impairment was. Saferian, 366 Mass. at 96. See note 2, supra.

Closing argument. During her closing argument, defense counsel emphasized evidence that the defendant was driving safely, pointing out, for example, that the defendant was not seen to strike the guardrail or another car. In response, the prosecutor stated the following in closing:

"Congratulations, she didn't crash her car. The whole point of officers being out patrolling the streets is to be sure things like that don't happen. We don't want people to crash. I don't want her to crash and hurt herself or anyone else."

At this point, the defendant lodged an objection that the judge overruled, but he agreed to "hear [defense counsel] after the argument." Before switching topics, the prosecutor continued making similar remarks to the jury: "And I'm sure that the police don't want that to happen either. That's why they investigate and make sure that that doesn't happen." After the prosecutor finished her closing argument, defense counsel explained at sidebar that her objection was based on the prosecutor's "espousing her personal opinion." The judge responded that "in the context of the entire argument, [he found] the [prosecutor's] comment[s] harmless ... [b]ut [that he would] instruct the jury that they are to disregard any personal opinions of the attorneys in the closing argument, and remind them that closing arguments are not evidence." True to his word, the judge then forcefully instructed the jury to that effect.

On appeal, the defendant now argues that the prosecutor's remarks were erroneous on a different ground, namely that they constituted an improper appeal to the jury's passions and sympathies. See Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 312 (2005). An objection on one ground does not preserve a claim of error based on a different ground, and our review is therefore confined to whether any error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 425 Mass. 633, 636-637 (1997). Juries are presumed to exhibit a certain degree of sophistication, and we view the language that the prosecutor used as, at most, excusable "enthusiastic rhetoric" (citation omitted). Commonwealth v. Silva, 455 Mass. 503, 515 (2009). See Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). We discern no error, much less a substantial risk of a miscarriage of justice.

Negligent operation conviction. The arresting officer's attention was first drawn to the defendant's car when he observed it take a wide turn at an intersection and almost hit a pedestrian (who was "about seventy-five percent of the way through the crosswalk") at whom the defendant then hurled an expletive. Trailing the defendant's car from behind, the officer then observed the defendant change lanes without signaling and drive approximately five miles per hour above the posted speed limit. He then pulled the defendant over after he saw the car make another turn, this time drifting to the right "as if it was going to go onto the sidewalk." The defendant avoided this only by making a "last second" correction. Having "seen enough," the officer pulled over the defendant's car.

To sustain a negligent operation conviction, the Commonwealth must prove that a defendant operated a motor vehicle on a public way "negligently so that the lives or safety of the public might be endangered." Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). Relying principally on dicta in Commonwealth v. Twombly, 435 Mass. 440, 444 (2001), the defendant argues that any driving infractions here were so minor that the Commonwealth's proof that she had placed the public at risk was insufficient as a matter of law. We disagree. In considering the sufficiency of the evidence, we must, of course, read it in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979). Putting aside whatever risks the defendant's initial driving may have caused, the testimony that she almost drove onto the sidewalk provided sufficient evidence of endangerment to sustain a negligent operation conviction. See Duffy, supra at 923 (observing that governing "statute only requires proof that the lives or safety of the public might be endangered, not that they are endangered").

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant faced multiple other charges arising out of the same incident, but these charges were dismissed at the request of the Commonwealth prior to trial.

      After making a left turn, the defendant's vehicle drifted to the right "as if it was going onto the sidewalk"; her speech was slurred and her eyes glassy, "red[,] and wet"; she was unsteady on her feet; she admitted to having had a few beers and there was an open twenty-four-ounce can of malt liquor at her feet; she was unable successfully to complete oral and physical field sobriety tests; and her manner with the officers alternated between belligerence and overfamiliarity, with her even going so far that -- when an officer attempted to catch her as she nearly fell during her third try performing a field sobriety test -- she "broke into a dance, started dancing, trying to dance with" the officer.

      In a pretrial discussion with the judge, defense counsel agreed that she would stipulate to those results. At trial, a police witness offered the specific results in response to a question from the prosecutor whether he was aware of the results. Defense counsel did not object.

      In this regard, the defendant (who proceeded after the light had turned green) appears to suggest that her encounter with the pedestrian in the crosswalk was a result of the pedestrian's jaywalking, not her negligent driving.


text:
    COMMONWEALTH v. Bryant RODRIGUEZ.
    18-P-113
    Appeals Court of Massachusetts.
    Entered: October 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant was convicted of operating while under the influence of alcohol (OUI), in violation of G. L. c. 90, § 24 (1) (a ) (1). On appeal, the defendant contends that this conviction must be vacated because there was insufficient evidence. We affirm.

We review the defendant's claim of error to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Grandison, 433 Mass. 135, 140 (2001), quoting Commonwealth v. Lodge, 431 Mass. 461, 465 (2000). Viewed in the light most favorable to the Commonwealth, Grandison, supra, the evidence showed that, by his own admission, the defendant had consumed "[a] few beers," and "tequila and Fireball shots" prior to operating his vehicle. He garnered the attention of a police detective because his car repeatedly was weaving between the center line of his lane of travel and the edge of the roadway. At one point, the defendant abruptly jerked his car back towards his lane of travel.

When the defendant's car was pulled over, he smelled of alcohol, he had glassy, bloodshot eyes, and his speech was slurred. As he exited his car to perform two field sobriety tests (FSTs), he was "swaying" as he walked. The defendant was unable to follow instructions during the FSTs. For example, during the nine-step walk and turn test, the defendant failed to maintain the instructional position, took the wrong number of steps, and left gaps between his heel and toe during several steps. Similarly, during the one-leg stand test, the defendant failed to maintain proper arm position, swayed his body, and kept bending his legs to maintain balance.

Based on the foregoing, the jury could reasonably have found that the Commonwealth had established each of the elements of the crime charged, including that the defendant's consumption of alcohol impaired his ability to operate the car safely. See, e.g., Commonwealth v. Bryer, 398 Mass. 9, 10-11 (1986) ; Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) ; Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924 (1999).

Judgment affirmed.

      The defendant also had been charged with negligent operation of a motor vehicle (G. L. c. 90, § 24 [2] [a ] ), and a marked lanes violation (G. L. c. 89, § 4A ). A first jury acquitted the defendant of the negligent operation count, and a mistrial was declared on the remaining counts. On retrial, the second jury found the defendant not responsible for the marked lanes violation but, as set forth above, found the defendant guilty of the operating while under the influence charge.


text:
    Samuel AMPOMAH v. Louisa FILSON.
    17-P-1478
    Appeals Court of Massachusetts.
    Entered: October 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The father appeals from a paternity judgment that, among other things, declared his paternity, awarded the father and the mother joint legal and the mother sole physical custody of the children, established a visitation schedule for the father, and set the father's child support obligations. He challenges only so much of the judgment as awarded physical custody of the children to the mother. We affirm.

The father and the mother began a nonmarital relationship in 2011. The mother gave birth to their first child that year. The couple's relationship ended in March, 2013, when the mother and the older child moved out of the then-shared residence; the mother gave birth to a second child about one month later. In March, 2014, the father filed a complaint to establish paternity. The Department of Revenue soon thereafter filed a separate complaint to establish paternity and for child support. Pending trial the parties stipulated, among other things, that the father was the children's biological father, the father would have visitation on a certain schedule and with conditions, and the father would, pending trial, pay weekly child support to the mother in a specified amount. Trial took place over two days in April, 2017; the father, the mother, and other witnesses testified. At the trial's conclusion, the judge made findings and issued the judgment described above.

The judge correctly determined that a shared physical custody arrangement would not be appropriate because, as the judge found and the father effectively concedes, the parties are unable meaningfully to communicate or cooperate. See Smith v. McDonald, 458 Mass. 540, 553 (2010), quoting Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998) ("Joint custody is inappropriate for parents whose relationship to date has been 'dysfunctional, virtually nonexistent, and one of continuous conflict' "); Mason v. Coleman, 447 Mass. 177, 182 (2006) (shared custody "is generally appropriate only if the parties demonstrate an ability and desire to cooperate amicably and communicate with one another to raise the children"). The judge thus was left with determining which parent should have physical custody.

"[I]n deciding issues involving custody, the overriding concern of the court must be the promotion of the best interests of the children and their general welfare.... In exercising discretion, the judge is authorized to consider the widest range of permissible evidence" (quotation omitted). Schechter v. Schechter, 88 Mass. App. Ct. 239, 246 (2015). The judge properly discharged her duty here, finding, among other things, that the father has a history of alcohol abuse, the mother always has been the primary caretaker of the children, and the father, at least during the children's early years, took little interest in the children and did not otherwise participate to any meaningful extent in their upbringing. Those findings are all well supported. Most importantly for present purposes, the judge's findings to the effect that the father committed acts of domestic abuse also are, despite the father's denials, well supported. By themselves those findings powerfully support the judge's custody order. See G. L. c. 209C, § 10 (e ). See also Custody of Vaughn, 422 Mass. 590, 595 (1996) ("physical force within the family is both intolerable and too readily tolerated and ... a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm").

Pointing to evidence supporting his position, the father argues little more than that the judge did not properly weigh the evidence before her or credit the father's testimony. But the judge was not required to view the evidence from the father's perspective. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). Where, as here, "there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3 (2003), quoting Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985).

We do not agree that the judge failed to consider all relevant factors or otherwise disregarded what the father characterizes as the mother's attempts to limit his contact with the children. On the contrary, the judge made specific findings on most or all of the matters the father now raises, including the mother's 2013 decision to send the older child to Ghana to stay with a family member for a number of months, the mother's move out of the then-shared residence in March, 2013, the couple's 2011 ceremony or party, the mother's improper attempt to claim a tax deduction for her sister's child, and the mother's work schedule, which makes it difficult for the mother to get the children to school. The judge specifically credited testimony to the effect that the father's more recent behavior toward the children is both appropriate and loving, that the children are attached to the father, and that the father claims to have been sober for the past five years and is self-employed as a real estate broker. The judge also specifically commented that both the father and the mother "have credibility issues."

While the evidence before the judge thus was conflicting and subject to differing reasonable interpretations, it was for the judge, not this court, to weigh that evidence and balance the various considerations. Cf. Adoption of Bianca, 91 Mass. App. Ct. 428, 434 (2017) ("In choosing among placement plans, it falls to the sound discretion of the trial judge to determine what is in the best interest of the child, and our review on appeal is one of substantial deference" [quotation omitted] ). In viewing the record as a whole, we are satisfied that the judge considered all appropriate factors and reasonably exercised her considerable discretion by concluding that, on balance, the children's interests are best served by placing physical custody with the mother. Schechter, 88 Mass. App. Ct. at 245, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("A judge's discretionary decision constitutes an abuse of discretion [only] where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision").

Judgment affirmed.

      We do not consider the father's suggestion that the Supreme Judicial Court wrongly decided Mason. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390 n.5 (2017), quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003) ("even if we were inclined, we lack the authority to 'alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided").

      Section 10 (e ) provides, in relevant part, that "[i]n issuing any ... permanent custody order, the probate and family court shall consider evidence of past ... abuse toward a parent ... as a factor contrary to the best interest of the child.... [A] pattern or serious incident of abuse ... shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent").


text:
    COMMONWEALTH v. Pedro J. NAVARRO.
    17-P-1439
    Appeals Court of Massachusetts.
    Entered: October 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of resisting arrest and the negligent operation of a motor vehicle. On appeal, he claims that the judge erred by denying his motion for required findings of not guilty at the close of the Commonwealth's evidence. We affirm.

1. Background. The jury could have found the following facts. A person, later identified as the defendant, drove a green truck into the Registry of Motor Vehicles (RMV) parking lot in Worcester at a fast speed, causing bystanders to scream and get out if its way. The driver proceeded to yell obscenities and backed into a parked vehicle. An RMV security guard, William Hinson, responded to the parking lot where he found the defendant sitting in the driver's seat of the truck. He was the only occupant of the truck.

Worcester police Officer Jon Kachadoorian, who was dressed in full police uniform, was dispatched to the RMV. Upon his arrival, Kachadoorian spoke with the defendant, who was then in line outside the RMV. The defendant was agitated, screaming, and flailing his arms around. Kachadoorian asked the defendant to step out of line. The defendant refused, used profanity, and stated, "I'm not going over there." Kachadoorian then attempted to "corral" the defendant "to walk out of the line," but he pulled away, continuing to use profane language. When the defendant pulled away, Kachadoorian put his hands on the defendant's right arm "to try to control him." The defendant, who was combative, noncompliant, agitated, and tense, told Kachadoorian, "I'm going to kill you." Kachadoorian attempted to place the defendant's arms behind his back to handcuff him. The defendant then "[stuck] his hands in his rectal area" and told Kachadoorian to "smell his farts."

Lieutenant Michael McKiernan arrived at the scene and assisted Kachadoorian in handcuffing the defendant. While the officers were handcuffing the defendant, he was "kicking backwards" and kicked Kachadoorian in the thigh twice. The defendant continued kicking at the officers even after he was handcuffed. The defendant then proceeded to "gyrat[e] like he was ... having sex with the wall." The officers "place[d] him in the wagon bodily" due to his lack of cooperation and transported him to the police station.

2. Standard of review. When reviewing the denial of motions for a required finding of not guilty, we must determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). "The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding." Commonwealth v. Brown, 401 Mass. 745, 747 (1988), citing Commonwealth v. Nelson, 370 Mass. 192, 200-201 (1976).

a. Resisting arrest. To convict a defendant of resisting arrest, the Commonwealth must prove that the defendant "knowingly prevent[ed] or attempt[ed] to prevent a police officer ... from effecting an arrest ... by: (1) using or threatening to use physical force or violence against the police officer ...; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer." G. L. c. 268 § 32B (a ). The defendant argues that the Commonwealth presented insufficient evidence to show that he understood he was under arrest or that his actions created a substantial risk of injury to the arresting officers. We disagree.

Viewing the evidence in the light most favorable to the Commonwealth, the jury reasonably could have found that the defendant knew he was being placed under arrest. "The standard for determining whether a defendant understood that he was being arrested is objective -- whether a reasonable person in the defendant's circumstances would have so understood." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008). The defendant was both verbally and physically combative toward the police officers, threatened to kill one of the officers, and physically opposed the officers' efforts to remove him from the RMV line, subdue him, handcuff him, and transport him. No more was needed. See Commonwealth v. Nestor, N., 67 Mass. App. Ct. 225, 229 (2006) (The "restraint of the defendant's hand movements [by] the officer displayed a show of authority that would have communicated to a reasonable person that he ... was not free to leave"). See also Commonwealth v. Pimentel, 27 Mass. App. Ct. 557, 560 (1989), quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) ("Examples of circumstances that might indicate a seizure ... [include] some physical touching of the person").

Similarly, the jury could have found that the defendant used physical force or other means that created a substantial risk of causing an injury to the police officers. In addition to kicking Kachadoorian twice and flailing his arms and hands repeatedly, the defendant "through physical movement did engage in an act of force ... by going with his body in the direction opposite from which the officer sought to take him," Commonwealth v. Katykhin, 59 Mass. App. Ct. 261, 262 (2003), when he pulled away from Kachadoorian's grasp and when he had to be placed into the transport vehicle "bodily" due to his lack of cooperation.

b. Negligent operation of a motor vehicle. To convict a defendant of the negligent operation of a motor vehicle, the Commonwealth must prove that the defendant operated a motor vehicle upon a public way negligently so as to endanger the lives or safety of the public. G. L. c. 90, § 24 (2) (a ). The defendant argues that the Commonwealth presented insufficient evidence identifying him as the driver of the truck. We disagree.

"[A] conviction [for driving-related offenses] may rest entirely on circumstantial evidence." Commonwealth v. Woods, 414 Mass. 343, 354 (1993). "[I]t is not necessary to prove that the defendant had the exclusive opportunity to commit the crime[ ] and ... the inferences need not be inescapable or necessary" (citations omitted). Commonwealth v. Shea, 324 Mass. 710, 713 (1949). When Hinson came out of the building to assess the situation, he found the defendant alone in the truck sitting in the driver's seat. Hinson identified the defendant in court as the driver of the truck. RMV employees testified that they saw the truck drive into the parking lot at a fast rate of speed causing bystanders to get out of its way, that they never lost sight of the pickup truck, and that the driver yelled obscenities at them. Here, based on the reasonable inferences from the evidence, the jury were warranted in finding that the defendant was the driver of the truck.

Judgments affirmed.

      The defendant also was convicted of disorderly conduct, which conviction was placed on file with his consent, and was found responsible for speeding and failure to slow down for pedestrians. The defendant was found not guilty of assault and battery by means of a dangerous weapon, and assault and battery on a police officer.
      Although he filed a general notice of appeal, the arguments advanced in his brief address only the convictions of resisting arrest and negligent operation of a motor vehicle.

      The defendant's acquittal of assault and battery on a police officer does not negate the sufficiency of the evidence as to his resisting arrest conviction.


text:
    COMMONWEALTH v. Charles BILLUPS, Jr.
    18-P-296
    Appeals Court of Massachusetts.
    Entered: October 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order of a Superior Court judge denying his motion for new trial. The defendant also asserts, for the first time, an ineffective assistance of counsel claim that follows from the same set of facts. The fundamental issue is whether a sentencing reform law had been passed before or after the defendant's sentencing on January 25, 1980. Because the law was passed well after the defendant was sentenced, the sentence was not illegal. We affirm.

Nearly forty years ago, after a jury trial, the defendant was found guilty of assault with intent to rape, assault and battery by means of a dangerous weapon, attempt to commit murder by strangulation, armed assault with intent to murder, and armed burglary. For the assault with intent to rape count, he was sentenced on January 25, 1980, and received a State prison sentence of not less than thirty and not more than forty-five years committed. At the time, the crime was punishable by imprisonment for life or any term of years. See St. 1978, c. 379, § 1, amending G. L. c. 265, § 24. Then, on July 10, 1980, more than five months later, the Legislature passed Statute 1980, c. 459, which revised the crime's maximum penalty to not more than twenty years committed. See G. L. c. 265, § 24, as amended through St. 1980, c. 459, § 7. The governor submitted an emergency letter that effectuated the act on July 11, 1980. The defendant now argues incorrectly that St. 1980, c. 459, was passed prior to his sentencing and that this injustice warrants a new trial.

Rule 30 (b) of the Massachusetts Rules of Criminal Procedure allows a judge to grant a new trial if "justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The judge "shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law." Id. When reviewing a motion for new trial, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting Commonwealth v. Wright, 469 Mass. 447, 461 (2014).

Here, the judge committed no error in denying the motion for new trial. The judge's memorandum correctly identified the date of both the defendant's conviction and the date St. 1980, c. 459, went into effect. Nothing in the statutory language indicates that the Legislature intended the sentencing reform to be applied retroactively, as would be required. See Commonwealth v. Dotson, 462 Mass. 96, 99-101 (2012). Because the defendant was tried, convicted, and sentenced prior to the passage of the new sentencing limits, the defendant's sentence was not illegal and the denial of the defendant's motion for new trial was proper.

Additionally the defendant asserts that he received ineffective assistance from both trial and appellate counsel for their failure to raise the purportedly illegal sentence with the court. Since the defendant failed to raise this claim in his motion for new trial, we review to determine whether an error was committed, and if so, if it created a "substantial risk of a miscarriage of justice." Commonwealth v. Bowen, 92 Mass. App. Ct. 793, 800 (2018). For the reasons stated above, there was no error committed.

Lastly, to the extent that other contentions made by the defendant are not discussed, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Order denying motion for new trial affirmed.

      The defendant's filings fabricate an order of events that would justify his argument. In his motion for new trial, the defendant claimed that St. 1980, c. 459, was passed on January 25, 1980, and that he was sentenced on December 5, 1980. In his appellate brief, the defendant repeats the false assertion that the act was passed in January. His brief does use the correct sentencing date at first but goes on to reference a sentencing date of December 25, 1980.

      The Commonwealth argues that the defendant was actually sentenced under G. L. c. 265, § 24(B), rather than G. L. c. 265, § 24. General Laws c. 265, § 24(B), pertains specifically to the assault of a child under sixteen with the intent to commit rape. If that were the case, the outcome here would not change, because the statutory maximum for that charge is and has been life or any term of years. However, based on the mittimus and the docket included in the record, we believe the motion judge analyzed the issue correctly.


text:
    COMMONWEALTH v. Russell V. DINOVO.
    17-P-1099
    Appeals Court of Massachusetts.
    Entered: October 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Russell V. DiNovo, pleaded guilty to charges of assault and battery on a family or household member, G. L. c. 265, § 13M (a ), and resisting arrest, G. L. c. 268, § 32B ; he was sentenced to time served. Almost two years later he filed a motion for a new trial, arguing, among other things, that the plea judge erred in accepting his guilty pleas because there was no factual basis for the charges. The same judge who had accepted the pleas denied the motion, and the defendant appeals. We affirm.

Under Mass. R. Crim. P. 12 (c) (5) (A), as appearing in 470 Mass. 1511 (2015), "[a] judge may not accept a guilty plea 'unless there are sufficient facts on the record to establish each element of the offense.' " Commonwealth v. Hart, 467 Mass. 322, 325 (2014), quoting Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986). However, during a plea colloquy, the Commonwealth is not obligated to recite facts sufficient to prove each element beyond a reasonable doubt. See Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015). "Rather, a plea judge 'need determine only whether the evidence which he had heard, plus any information he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty.' " Id., quoting Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).

Specifically, the defendant contends that the prosecutor's recitation of the facts did not sufficiently establish that the victim of the assault and battery was a family or household member, or that he used sufficient physical force to be guilty of resisting arrest. We disagree.

The prosecutor stated, and the defendant acknowledged, that the victim of the domestic incident was his "then girlfriend," and that he "dragg[ed] her out of the house." To establish a factual basis for the plea, the Commonwealth was not required to provide evidence of the considerations enumerated in § 13M (c ) (iii), to determine whether the relationship was substantive. These factors are not elements of the offense. Even in the cases that go to trial, "[t]here does not need to be evidence as to each factor, let alone proof beyond a reasonable doubt as to any one or more of them." Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7 (2016).

The defendant admitted to "pushing and pulling" his "then girlfriend" "out of the apartment." The prosecutor's description permitted the inference that the two were involved in a substantive dating relationship and were living together when the incident occurred. For the purposes of rule 12 (c) (5) (A), this was enough to satisfy the judge that a factual basis existed for the defendant to plead guilty to assault and battery on a family or household member.

With respect to the charge of resisting arrest, the prosecutor described the defendant's conduct in the following terms: "[O]fficers do arrive, they do attempt to place Mr. Dinovo under arrest. He does resist that arrest, not placing his hands behind his back. Officers did have to deploy an arm-bar takedown technique to eventually bring Mr. Dinovo to the ground at which point he still ... did resist that arrest." The prosecutor's recitation went beyond merely stating that the defendant "resisted." See Hart, 467 Mass. at 328. Rather, she described conduct by the defendant that required the officers to wrestle him to the ground to effect the arrest. This description was sufficient for the judge to infer that the defendant's conduct was not merely passive, but rather was "an active, physical refusal to submit to the authority of the arresting officers." Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 469 (2006). The pleas had a basis in facts, and the judge did not err in accepting them.

Order denying motion for new trial affirmed.


text:
    Peter TSAKLIS v. Lacresha ROBINSON.
    18-P-14
    Appeals Court of Massachusetts.
    Entered: October 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff-landlord, Peter Tsaklis, commenced this summary process action on November 7, 2016, after the defendant-tenant, Lacresha Robinson, failed to vacate the premises when the lease expired on September 30, 2016. Following mediation, the parties entered into an agreement for judgment on December, 1, 2016. The agreement provided, in relevant part, that judgment for possession and $3,000 in rent owed for November and December, 2016, was to enter for the landlord on December 1, 2016, but execution would be stayed until January 2, 2017, provided that the tenant vacate the premises on or before December 31, 2016 (paragraph 5A), and that the premises be left in broom clean condition (paragraph 5B). Paragraph 5D of the agreement further provided that "[u]pon compliance with the above stipulations and surrender of the keys, [the landlord] agrees to waive the total judgment in full and shall pay [the tenant] the total amount of $2,150."

When the tenant vacated the premises, the landlord refused to pay the $2,150, claiming that the tenant failed to satisfy the conditions set forth in paragraphs 5A and B of the agreement. The tenant filed a "Motion to Enforce Settlement Agreement," which the judge allowed after an evidentiary hearing at which both parties testified. More specifically, the judge determined that the tenant was not in material breach of the agreement, ordered that the $3,000 judgment for the landlord be "waived and reduced to zero," and ordered the landlord to pay "the $2,150 he agreed to pay to the [tenant]." The landlord now appeals.

The landlord contends that the judge was blatantly biased against him. He further claims that the judge misinterpreted the agreement and that some of her findings were clearly erroneous.

As to the sufficiency of the evidence in support of her findings, the landlord has provided only four pages of the transcript, only two of which contain testimony. In the absence of a complete transcript, we "cannot find that any of the judge's factual findings are clearly erroneous." O'Meara v. Doherty, 53 Mass. App. Ct. 599, 606 (2002). Likewise, we cannot say, on the limited record before us, that the judge was biased in favor of the tenant.

Moreover, the landlord fails to cite to any case law, statutes, or other legal authority to support his arguments. Accordingly, the claims do not rise to the level of appellate argument, and are deemed waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975); Tobin v. Commissioner of Banks, 377 Mass. 909, 909 (1979).

Order dated May 1, 2017, allowing motion to enforce agreement affirmed.

      The judge found that the tenant and her family were in the process of moving from the house on December 31, 2016, when an occupant asked the landlord to disconnect a water line to the refrigerator and open the garage doors so that larger furniture items could be removed. The landlord told them that only his brother, who was present at the time, could do those things, and that he would come back later to do them. The brother did not return until January 3, 2017. The plaintiff removed the rest of her belongings (the refrigerator and furniture that needed to be removed through the garage) that day. The judge found that the landlord contributed substantially to the small delay. She rejected the landlord's contention that the tenant breached the condition of the agreement that the apartment be left in broom clean condition because he had failed to establish that the boxes and furniture left behind belonged to the tenant.

      The landlord contends that his brother returned later in the day on December 31, 2016, to disconnect the water and to open the garage, not, as found by the judge, on January 3, 2017. He also argues that the tenant never returned the keys and the judge failed to make a finding to that effect. Finally, he contends that the judge's finding that the premises were left in broom clean condition was clearly erroneous given the evidence he presented to the contrary. We note that the brief portion of the transcript provided in the record appendix appears to indicate that the parties dispute when the keys were to be turned over. In any event, based on the limited record before us, including the incomplete transcript, we cannot say that the landlord has met his burden of demonstrating that the judge's findings are clearly erroneous. See O'Meara v. Doherty, 53 Mass. App. Ct. 599, 606 (2002).


text:
    P.P. v. S.P.
    17-P-1493
    Appeals Court of Massachusetts.
    Entered: October 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, S.P., appeals from the issuance of an abuse prevention order entered pursuant to G. L. c. 209A. The plaintiff, P.P., obtained a fourteen-day ex parte order on June 6, 2017. Following an evidentiary hearing, a judge in the District Court extended the order for one year. S.P. appeals from that order claiming, inter alia, that the evidence was insufficient to support a finding that P.P. possessed a legitimate fear of imminent serious physical harm. We agree.

1. Background. P.P. and S.P. were married with one child when the relationship finally and fully disintegrated in 2017. While S.P. was away at annual National Guard training, P.P. moved out of the marital home with their three year old son and obtained a "stay away" order. The affidavit filed in support of the temporary order alleges that S.P. sometimes carries a firearm and verbally abuses P.P. While seeking the extension that is the subject of this appeal, P.P. testified that S.P. once threw eggs at her and nearly hit her with a child's car seat, and is experienced with and in possession of firearms. The judge determined that P.P.'s characterization of the relationship and demeanor at the hearing, coupled with S.P.'s alleged access to firearms, participation in the military, and alleged violation of the initial order, warranted extension of the original order.

2. Discussion. We review the extension of an abuse prevention order for an abuse of discretion or error of law. Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). An appellate court will only set aside the extension if, after reviewing all of the evidence, it "is left with the definite and firm conviction that a mistake has been committed." White v. Hartigan, 464 Mass. 400, 414 (2013), quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). An applicant for an abuse prevention order must prove by a preponderance of the evidence that an order, or the extension of an order, is necessary to prevent the types of abuse described in c. 209A. See Iamele v. Asselin, 444 Mass. 734, 739-740 (2005) ; Corrado v. Hedrick, 65 Mass. App. Ct. 477, 483 (2006).

Abuse is defined in c. 209A as "(1) attempting to cause or causing physical harm; (2) placing another in fear of imminent serious physical harm; or (3) causing another to engage involuntarily in sexual relations by force, threat or duress." G. L. c. 209A, § 1. A fear of imminent serious physical harm requires more than "[g]eneralized apprehension, nervousness, [or] feeling aggravated or hassled." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). The fear must be reasonable and the threat imminent. See Iamele, 444 Mass. at 739-740. See also Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002) (subjective and unspecified fear insufficient). The judge considers "the totality of the circumstances of the parties' relationship," including the basis of the original order, violations of the order, or changes in circumstances. See Iamele, supra at 740 (focus is on likelihood of ongoing hostility and interactions). Although credibility determinations are rarely disturbed, a likelihood of the types of abuse defined in c. 209A must be proved by the applicant before an abuse prevention order may be issued or extended. See Corrado, 65 Mass. App. Ct. at 484.

P.P. failed to meet her burden of proof. She testified that she is afraid of S.P. because of "his knowledge" of firearms, specifically because he was trained in the military and "is far more comprehensive in his knowledge of firearms than I am." Ownership of firearms and experience with weapons as a member of the military, however, are not reasons to issue an abuse prevention order when that experience and capacity is not coupled with actual or implicit threats. Contrast Diaz v. Gomez, 82 Mass. App. Ct. 55, 56, 62 (2012) (order restraining police officer warranted because he threatened applicant with weapon and sat outside her home in police cruiser). Although P.P. testified to past instances of hostility, those instances do not amount to a pattern of abuse or imminent threat sufficient for the extension of a c. 209A order. S.P. threw eggs at P.P. approximately five years before the order was sought, and more recently was demeaning and almost hit her with a child's car seat while transferring it from his truck to her vehicle. Contrast Callahan v. Callahan, 85 Mass. App. Ct. 369, 375 (2014) (husband's violent crimes against wife and son, violations of initial order, and hearing demeanor made extension proper). Significantly here, P.P. never testified that S.P. tried to hit her with the car seat, only that it almost hit her when S.P. was moving it into her vehicle. Even crediting P.P.'s affidavit and testimony in their entirety, P.P.'s fear was "subjective and unspecified" and insufficient to justify the extension of the original ex parte order. Carroll, 56 Mass. App. Ct. at 86.

The judge committed an error of law when he extended the original order for one year because the evidence was insufficient to show P.P. possessed a reasonable fear of imminent serious physical harm. An abuse prevention order carries significant ancillary effects and should not be issued "on the theory that it will do no harm, i.e., 'seems to be a good idea or because it will not cause the defendant any real inconvenience.' " Wooldridge, 45 Mass. App. Ct. at 639, quoting Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995).

Order dated June 20, 2017, vacated.

      Although certain testimony at the hearing to extend the order related to alleged incidences of violence and sexual assault, P.P. stated that she was not afraid of involuntary sexual activity and the judge repeatedly and specifically limited questioning to whether P.P. had a reasonable fear of imminent serious bodily harm.

      P.P., however, was licensed to carry a handgun (which S.P. was not) and obtaining such a license requires a demonstrated knowledge and familiarity with firearms.

      After P.P. moved out of the home, S.P. was arrested for violating the no contact order when he activated a camera used to monitor the child's bedroom and apparently attempted to communicate with P.P. through the camera. The judge stated that he did not consider this a significant violation and did not afford it much weight when making his decision to extend the order. The charge apparently was later dismissed.


text:
    Kyle BRYANT v. Douglas DEMOURA & others.
    18-P-61
    Appeals Court of Massachusetts.
    Entered: October 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and in his capacity as superintendent of MCI-Concord.

      Thomas A. Turco, III, individually and in his capacity as Commissioner of Correction, and Kyle Fitzpatrick, individually and in his capacity as a lieutenant at MCI-Concord.

   The plaintiff, Kyle Bryant, appeals from a judgment entered in favor of the defendants on cross motions for judgment on the pleadings. We affirm.

Background. The plaintiff, an inmate currently housed at the Souza-Baranowski Correctional Center, filed a complaint in the Superior Court seeking certiorari review of disciplinary reports filed against him, and damages for alleged violations of his civil rights. The disciplinary reports issued against the plaintiff stem from his refusal to enter the prison general population while he was incarcerated at MCI-Concord, because he feared for his safety.

Certiorari claim. The plaintiff challenges two disciplinary reports, asserting that it was unsafe for him to enter the general population. Our review of this claim is limited to the administrative record filed by the Department of Correction (department). See Seales v. Boston Hous. Auth., 88 Mass. App. Ct. 643, 649 (2015). Our review is not de novo, but rather we ask whether the administrative record contains substantial evidence of the inmate's guilt. Hill v. Superintendent, Mass. Correctional Inst., Walpole, 392 Mass. 198, 202 (1984). Substantial evidence is "evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs." Gonzalez v. Commissioner of Correction, 407 Mass. 448, 454 (1990), quoting 103 Code Mass. Regs. § 430.06 (1987).

Here, there was substantial evidence to find the plaintiff guilty of refusing a cell or housing assignment. The plaintiff admits that he refused a housing assignment, but claims that his refusal was justified due to concerns for his personal safety. After a review of the plaintiff's claim, he was cleared by the department to enter the general population each time and was so informed. The plaintiff's only evidence that he was at risk consists of his own assertions, but his subjective fear that he would be harmed by moving to general population is insufficient. See Schofield v. Clarke, 769 F. Supp. 2d 42, 50 (D. Mass. 2011). Accordingly, the judge properly concluded that "[t]he hearing officer had substantial evidence to support the disciplinary reports" and that "there was no evidence to corroborate [the plaintiff's] claims."

Civil rights claims. We treat a motion for judgment on the pleadings as akin to a motion to dismiss for failure to state a claim upon which relief can be granted. See Jarosz v. Palmer, 436 Mass. 526, 529 (2002). We take as true the plaintiff's allegations, but also "look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Here they do not.

The plaintiff claims that the defendants were deliberately indifferent to his situation, yet the complaint is devoid of any factual allegations that the defendants disregarded a known excessive risk to the plaintiff. See Giroux v. Somerset County, 178 F.3d 28, 32 (1st Cir. 1999). His allegations add up to no more than a generalized, subjective fear of harm of being assaulted in the midst of inmates in the general population of MCI-Concord, not an objectively reasonable and substantial risk of serious harm as to which the defendants were deliberately indifferent. See Schofield, 769 F. Supp. at 50. Department officials are afforded broad discretion in the exercise of the agency's vital functions relative to management of safety and security of the prison inmate population. See Rosado v. Commissioner of Correction, 91 Mass. App. Ct. 547, 551-552 (2017). The plaintiff has not alleged that there was wayward discretion or actionable misconduct (active or by omission) on the part of the defendants warranting relief based on the constitutional protections afforded to the plaintiff under the Eighth Amendment to the United States Constitution.

The plaintiff also contends that the defendants violated his rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution by issuing two disciplinary reports for refusing housing assignments on two occasions. However, the double jeopardy clause protects against the imposition of multiple criminal punishments for the same offense. Hudson v. United States, 522 U.S. 93, 99 (1997). Principles of double jeopardy are not implicated here, because the prison disciplinary actions were civil in nature.

The plaintiff's claim under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I, also fails. The defendants did not interfere with the plaintiff's "exercise or enjoyment of rights secured by the Constitution or the laws of either the United States or the Commonwealth." Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989). The plaintiff failed to demonstrate that the defendants' actions of placing him back in general population posed any threat to his safety. He did not otherwise identify "threats, intimidation, or coercion" on the part of the defendants and thus, the plaintiff's complaint failed to give rise to an MCRA claim. See Planned ParenthoodLeague of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994).

Finally, even assuming, arguendo, that the defendants' violated the plaintiff's constitutional rights, they are entitled to qualified immunity because the rights the plaintiff claims were not so clearly established that reasonable officials would have known they were acting improperly. See Mihos v. Swift, 358 F.3d 91, 98-102 (1st Cir. 2004).

Judgment affirmed.

      We reject the plaintiff's argument that the defendants defaulted on this claim. See Superior Court Standing Order 1-96 (1). Moreover, the plaintiff failed to follow the procedure for entry of a default as set forth in Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974).

      Contrast LaChance v. Commissioner of Correction, 463 Mass. 767, 778 (2012), holding that an inmate's "segregated confinement on awaiting action status for longer than ninety days" implicated a constitutionally-protected liberty interest, entitling an inmate to notice and a hearing.


text:
    M & I REALTY, INC. v. DEPARTMENT OF PUBLIC SAFETY
    17-P-1183
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, M & I Realty, Inc., seeks further review of the Department of Public Safety's (department) issuance of a fine based on the plaintiff's operation of an elevator without a valid inspection sticker. M & I Realty owns and operates a two-story office building in Worcester. In 2014, the department issued a $20,000 fine against M & I Realty for failing to maintain a valid inspection certificate in an elevator that had gone unused since the second floor tenant in the building vacated. After multiple appeals, the department refused to waive the fine in its entirety and M & I Realty filed an administrative appeal in the Superior Court pursuant to G. L. c. 30A. The judge in the Superior Court ruled on the pleadings in favor of the department. M & I Realty argues that the department's issuance of the fine violated the company's due process rights, and refusal to waive the fine violated the company's right to equal protection of the law. We see no error in the judgment below and affirm.

1. Background. In September, 2011, the second floor tenant of the office building owned by M & I Realty vacated the premises, and the second floor remained unoccupied until August, 2014. M & I Realty deactivated the elevator that serviced the second floor unit by locking its doors on the first and second floor and disconnecting its electrical supply. In June, 2014, M & I Realty decided to divide the second floor space into two separate units and engaged the services of an elevator installation company to reactivate the elevator. The elevator company submitted an application for annual inspection on behalf of M & I Realty, which alerted the department to the elevator's expired inspection certificate. Pursuant to G. L. c. 143, § 65, which authorizes the agency to levy a $100 fine for each day an elevator is in operation without a valid inspection certificate, the department issued a $20,000 fine to M & I Realty. M & I Realty appealed the fine twice, and the department first reduced the fine to $10,000 because of the de minimis risk of injury to the public and then reduced the fine further to $4,500 because of M & I Realty's lack of wilfulness or prior violations.

2. Discussion. Our review of agency decisions under G. L. c. 30A is limited. When an administrative agency issues a fine it is statutorily authorized to impose, an appellate court may not substitute its judgment or adjust the amount because it believes the penalty is too harsh given the circumstances. See Massachusetts Elec. Co. v. Department of Pub. Util., 469 Mass. 553, 576 (2014). We do, however, review the decision to ensure it is supported by substantial evidence and not arbitrary and capricious, based upon an error of law, or in violation of constitutional provisions. G. L. c. 30A, § 14 (7). Absent one of the errors enumerated in § 14, we defer to the discretionary authority conferred upon the agency. See Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010).

a. Due process. M & I Realty argues its due process rights were violated because the department did not provide the company with notice that its certificate would be expiring and a fine forthcoming. The department contends the statute and inspection certificate provided sufficient notice of when the certificate would expire and a civil fine would be issued. M & I Realty alleges the department historically provided notice to elevator operators when a certificate would soon expire, and therefore its failure to now do so makes statutory notice inadequate.

"The fundamental requirement of due process is notice and the opportunity to be heard." Matter of Angela, 445 Mass. 55, 62 (2005). No particular form of notice is required so long as the procedure adopted for the hearing stage protects the substantial rights of the affected party. See Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284, 291 (1980). In fact, mere notice of facts that would cause a reasonable person under similar circumstances to inquire further is sufficient notice of facts that further, diligent inquiry would reveal. See Commonwealth v. Olivo, 369 Mass. 62, 69 (1975), quoting Essex Nat'l Bank v. Hurley, 16 F.2d 427, 428 (1st Cir. 1926). Specifically, a person is presumed to know statutory requirements, especially when his or her conduct historically has been the subject of government regulation. See Kentucky R.R. Tax Cases, 115 U.S. 321, 331 (1885) ; Walsh v. Adams, 245 Mass. 1, 8 (1923). Once an enforcement proceeding is initiated, the only notice required is that which is "reasonably calculated to apprise an interested party of the proceeding" and the "grounds on which the [agency] might act." La Pointe v. License Bd. of Worcester, 389 Mass. 454, 458 (1983).

Ignorance of the law is no excuse. "[W]hen statutes impose punishment out of considerations of public policy, lack of knowledge of the law or of the fact that the law has been violated does not exonerate the person who may have unwittingly violated the statute." Franklin Office Park Realty Corp. v. Commissioner of Dep't of Envtl. Protection, 466 Mass. 454, 465 n.14 (2013). Here, the Legislature's enactment of G. L. c. 143, § 65, provided M & I Realty with sufficient notice that failing to maintain a valid inspection certificate could lead to a fine. The regulations promulgated and published by the department notified M & I Realty of the steps it needed to take to temporarily discontinue use of the elevator without incurring penalties. See 524 Code Mass. Regs. §§ 11.01 and 11.02 (2006). The inspection sticker in the building M & I Realty owns and operates stated when the former certificate expired. The fact that M & I Realty complied with the elevator inspection requirements in the past further belies the company's argument that it received insufficient notice that its certificate would be expiring and a fine could be issued. The department was not required to provide further notice to M & I Realty before issuing the company a fine.

The department's failure to follow best or past practices does not amount to a violation of due process. M & I Realty elevates the department's past efforts to notify elevator operators before their certificate expired into a requirement of due process. In the absence of statutory or regulatory notice requirements, however, enforcement of the law does not require additional notice. Compare Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767, 772-773 (1999) (interpreting explicit notice requirements of firearm licensing and revocation statute), with G. L. c. 143, § 65 (authorizing $100 fine per day for operating elevator without valid inspection certificate without reference to notifying operator before issuance). The department did not retroactively apply a new policy or interpretation of existing law because, as the motion judge found, it was never an official agency position that notice was required or must be given. Moreover, the fine issued was based on the period from when § 65 was amended to provide for the $100 per day fine to the time M & I Realty applied for reinspection. Although better practices may have been employed, the department was well within its authority and complied with due process when it fined M & I Realty for failing to maintain a valid inspection sticker.

b. Equal protection. M & I Realty also argues it has been denied equal protection of the law because fines issued to other elevator operators were waived while its fines were not. The department maintains the decision whether to waive a fine is squarely within the agency's discretion and here that discretion was not abused. Section 65 authorizes the department to "promulgate rules and regulations establishing criteria used to determine whether the fine may be waived." G. L. c. 143, § 65. The factors the department considers when determining whether to waive or abate a fine are the wilfulness and history of violations, clerical errors and inaccurate assessments, lack of prior use, actual risk to the public, and financial hardship caused by paying the fine. See 520 Code Mass. Regs. § 16.03 (2015).

Equal protection principles, of course, require the Commonwealth to treat all similarly situated parties alike. See Mancuso v. Massachusetts Interscholastic Athletic Ass'n, Inc., 453 Mass. 116, 128 (2009), quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). A party treated differently from others similarly situated must also show that such treatment is the result of invidious discrimination or an abuse of power. Mancusa, supra at 129-130. When the Legislature delegates significant discretion over resource allocation and regulatory enforcement, however, subjective, individualized assessments are in the very nature of that delegation and the exercise of that discretion must be an "egregious abuse of power" to violate the equal protection clause. Id. See Engquist v. Oregon Dep't of Agric., 553 U.S. 591, 603-604 (2008) (treating like individuals differently accepted consequence of broad discretionary enforcement power).

M & I Realty acknowledges it has not been subject to invidious discrimination, but argues the decision not to waive its fine is arbitrary and capricious, and irrational, because the department waived similarly situated elevator operators' fines. M & I Realty supports this claim by focusing on three cases, involving the Worcester public schools, Worcester Housing Authority, and Quinsigamond Community College, in which the department waived fines in their entirety. First, those cases all involve public or quasi public institutions that are not similarly situated. Second, the reasons for the waiver were not arbitrary, as the Worcester public schools' and Worcester Housing Authority's waivers were based upon severe financial hardship, and the Quinsigamond Community College's waiver was due to a clerical error not the fault of the college. M & I Realty has failed to show it is similarly situated to these other elevator operators, nor has it shown the disparate treatment was arbitrary.

The department has broad discretion to waive or abate fines in these circumstances. Section 65 authorizes the department to establish factors relevant to fine waivers or reductions. Where an agency is entrusted with broad discretion, as the department is here, disparate treatment of similarly situated parties does not violate equal protection principles because individualized assessments and treatment are the very purpose of entrusting the agency with that discretion. Engquist, 553 U.S. at 603. Additionally, we "accord special deference to an agency's interpretation of its own regulation," and only interfere if the agency's interpretation is unreasonable or arbitrary. Goldberg v. Board of Health of Granby, 444 Mass. 627, 636 (2005). The department has already abated M & I Realty's fine twice, and we are not in a position to substitute our judgment for that of the agency entrusted with enforcing G. L. c. 143. The department did not abuse its discretion or violate M & I Realty's right to equal protection of the law in refusing to waive M & I Realty's fine in its entirety.

3. Conclusion. We discern no error of law or violation of constitutional rights in the department's failure to notify M & I Realty before its inspection certificate expired, or the department's refusal to waive the fine that subsequently issued.

Judgment affirmed.

      The parties agree the elevator was not properly "decommissioned" pursuant to 524 Code Mass. Regs. § 11.02 (2006). Moreover, because the elevator was out of use for more than one year, it could not have been deemed "out of service" pursuant to 524 Code Mass. Regs. § 11.01 (2006). M & I Realty's compliance with either regulation would have prevented fines from accruing for failure to obtain a valid inspection certificate. See G. L. c. 143, § 65.

      Although it appears the department has since adopted procedures for providing notice to elevator operators ninety days before a certificate is set to expire, that policy was not in effect at the time M & I Realty's certificate expired.

      We have considered the remainder of M & I Realty's arguments and they are without merit.


text:
    Robert WALCZAK v. Bridget DRISCOLL.
    18-P-228
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The former husband, Robert Walczak (husband), appeals from a judgment dismissing his complaint for contempt against the former wife, Bridget Driscoll (wife), in connection with their daughter's college selection process. He contends that the judge abused his discretion in determining that the wife did not disobey a clear and unambiguous order of the Probate and Family Court. We affirm.

Background. The parties divorced in September, 2009. Their separation agreement, which was incorporated and merged into the divorce judgment, provided in relevant part, "The parties agree to cooperate with each other and agree that the choice of educational programs and institutions for their child/ren shall be made on the basis of joint consultation with due regard for the parties' financial circumstances and the child/ren's aptitudes, interests, desires and abilities." The parties further agreed that they would "each contribute to the cost of the child/ren's education," after exhausting financial aid options.

On June 29, 2016, the wife sent the husband an electronic mail message stating that the parties' daughter "will be attending college at Tyler School of Art at Temple University in Philadelphia in the fall," and that the wife "hope[d]" the husband would be "willing to help finance her college education." The husband responded on July 7, 2016, that he was "happy and excited" for their daughter, and "very proud of her accomplishments and that she will be attending College." He asked the wife to send him "all of [the daughter's] information and invoices, statements, etc. so [he could] review them and see how best [he could] help her."

In January, 2017, after the daughter had started college, the husband filed a complaint for civil contempt alleging that the wife violated the terms of the separation agreement by failing to consult with him regarding their daughter's choice of college. Following a trial at which the husband and the wife testified, the judge dismissed the husband's complaint for contempt, finding that, "With respect to the consultation language relative to education expenses referenced in the parties['] Separation Agreement, the [husband] has failed to prove a clear and unambiguous violation of a Court order, therefore, judgment is entered for the [wife]."

Discussion. On appeal, the husband argues that it was an abuse of discretion to dismiss his complaint, as the wife's obligation to consult with him prior to selecting a college for their daughter was clear on the face of the separation agreement. He contends that the wife did not consult with him until after the college selection was a "fait accompli."

In an action for civil contempt, the petitioner has the burden to prove "by clear and convincing evidence" the alleged contemnor's "disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 853 (2009). "Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt." Id. at 852, quoting Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). "[W]hether a separation agreement is ambiguous is a question of law, and we review the issue de novo." McManus v. McManus, 87 Mass. App. Ct. 864, 868 (2015).

We agree with the judge that the joint consultation provision relating to college selection does not provide a clear command to the parties. As the wife notes, the language raises more questions than it answers. For example, the provision is silent as to which party must initiate the joint consultation, when that consultation must occur, the effect of the child's desire to attend a specific college, or the appropriate course of action if the parties cannot agree. To be sure, the timing of the wife's notice of the daughter's decision to attend a particular college did not provide the husband with much of an opening for consultation. Nonetheless, the "vague or ambiguous language" of the joint consultation provision does not furnish "the 'clear and unequivocal command' necessary to support an action for contempt." Sax v. Sax, 53 Mass. App. Ct. 765, 772-773 (2002). Accordingly, the judge did not err in finding that the husband failed to prove the alleged contempt or in dismissing the husband's complaint.

Judgment affirmed.

      Both parties' requests for appellate attorney's fees are denied.


text:
    J.S. v. J.G.
    17-P-1318
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff applied for a G. L. c. 209A abuse prevention order against the defendant. A District Court judge denied the plaintiff's request at both the ex parte hearing and the hearing after notice ten days later. On appeal, the plaintiff argues that the judge applied the wrong legal standards to evidentiary issues and to the ultimate question of whether the plaintiff had proved "abuse" within the meaning of c. 209A. Because we cannot discern from the record whether the judge believed that he was required to apply strict rules of evidence at the hearing, or merely used his discretion to apply the rules of evidence, we vacate the denial of the application and remand the case for a new hearing.

Background. The plaintiff's testimony and affidavit submitted at the hearing after notice established the following. The defendant is the plaintiff's first cousin. When the plaintiff was six years old, and the defendant significantly older, he began touching her inappropriately. On two occasions he forced her to perform oral sex on him, and on one occasion he raped her. The plaintiff believed that further incidents occurred, but did not specifically recall them. At the time of the assaults, the plaintiff told her second cousin, who was approximately the same age as her, that she knew what sex was because the defendant showed her. The abuse stopped when the plaintiff was ten years old: the defendant joined the Army and left Massachusetts, then spent years in and out of prison.

Years later, the plaintiff disclosed these incidents to her therapist, the police, and the parties' family. The State police investigated the plaintiff's claims, interviewing the plaintiff, her immediate family, and the defendant. The investigators told the plaintiff that although they believed her, they recommended not pursuing a criminal case because of the lack of physical evidence and the passage of time. The defendant was later released from prison and was living in Boston. When he learned that she was telling family members about what he had done to her, he sent her a message on Facebook threatening to take legal action against her, which, she feared, would jeopardize her job.

The judge refused to admit a package of supporting documentation offered by the plaintiff, including a written statement from the plaintiff's treating psychologist, corroborating the traumatic injury the plaintiff suffered as the result of the defendant's conduct. The defendant testified at the hearing and denied the plaintiff's allegations.

The judge concluded that the plaintiff did not prove by a preponderance of the evidence that the defendant had sexually abused her. The judge further found that the plaintiff did not show a reasonable fear of imminent serious physical harm from the defendant. Accordingly, the judge denied the plaintiff's request for a c. 209A order.

Discussion. "We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). Under c. 209A, "a person 'suffering from abuse' by a 'family or household member' may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim." Carroll v. Kartell, 56 Mass. App. Ct. 83, 85 (2002). Abuse is defined as any of the following: "(a ) attempting to cause or causing physical harm; (b ) placing another in fear of imminent serious physical harm; [or] (c ) causing another to engage involuntarily in sexual relations by force, threat or duress." Id., quoting G. L. c. 209A, § 1. The plaintiff alleged the third type of abuse.

Unlike a plaintiff alleging abuse under G. L. c. 209A, § 1 (b ), a plaintiff alleging abuse under § 1 (a ) or § 1 (c ) is not required to prove imminent harm. See McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-734 (2016) ; Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-374 (2014). Where, as here, the alleged abuse is based on the plaintiff having been subject to physical harm or forced sexual relations in the past, the judge must conduct a "discerning appraisal" to determine whether an abuse prevention order is necessary "to protect the plaintiff from the impact of the violence [or forced sexual relations] already inflicted." Callahan, supra at 374.

The plaintiff asserts that we should reject the judge's factual finding that she failed to present adequate proof of past abuse because his evidentiary rulings were erroneous. One of the errors that the plaintiff identifies is the judge's ruling that the rules of evidence strictly applied. It is well established that in c. 209A cases "the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on." Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). See Matter of G.P., 473 Mass. 112, 122 (2015) ; Guidelines for Judicial Practice: Abuse Prevention Proceedings (Guidelines) §§ 3:06, 5:03 (2011). As an example, testimony that would otherwise be hearsay, such as "The doctor said that I had a concussion," can be admitted in c. 209A proceedings. Guidelines § 5:03 commentary.

The judge here, however, insisted, "The rules of evidence apply. Not loosely. They apply." He maintained this hard line even after counsel for the plaintiff directed the judge's attention to Matter of G.P. and Frizado. Although the judge had the discretion to apply the rules of evidence, he was not obligated to do so. Frizado, supra. As a result, the judge refused to consider the plaintiff's evidence that she had suffered and continues to suffer from posttraumatic stress disorder (PTSD), depression, and extreme anxiety, requiring "significant mental health treatment," and that the defendant's reappearance in her life had exacerbated her PTSD and anxiety. Such evidence arguably supported her claim of abuse, and is precisely the type of evidence that the judge may consider to conduct the "discerning appraisal" described in Callahan, 85 Mass. App. Ct. at 374. Because the judge erroneously ruled that the rules of evidence necessarily apply, we cannot say that the judge properly acted within his discretion.

Conclusion. In light of the foregoing, we vacate the denial of the plaintiff's application for a c. 209A order and remand the case to the District Court for a new hearing.

So ordered.

Vacated and remanded

      The plaintiff contends that the judge erred by requiring her to show not only that past abuse occurred, but also that she had a reasonable fear of imminent harm. It is true that after first finding that the plaintiff had failed to carry her burden of proving past abuse, the judge further ruled, as an alternative ground for denying the application, that the plaintiff had not shown "a reasonable fear of imminent serious physical harm from the defendant." On the view we take of this case, we need not decide whether the judge's first finding was an independent, sufficient ground on which to deny the petition, or whether it was influenced by his erroneous application of the § 1 (b ) standard in making the alternative finding.

      We need not address the plaintiff's additional claims of error, except to note, for the purposes of the new hearing, that the judge should take care in assessing evidence that criminal charges against the defendant were not pursued. We have held that a grand jury's failure to return an indictment for rape does not preclude the issuance of a c. 209A order based on the same allegations. See Doe v. Keller, 57 Mass. App. Ct. 776, 779 (2003) (grand jury's inquiry in determining whether to indict is not same as judge's inquiry in determining whether to issue abuse prevention order).


text:
    ADOPTION OF DARA (and a companion case ).
    18-P-476
    Appeals Court of Massachusetts.
    Entered: October 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Adam. The children's names are pseudonyms.

   The mother appeals from decrees of the Juvenile Court finding her unfit to parent Dara and Adam, and terminating her parental rights. She principally argues that the adoption plan presented by the Department of Children and Families (department) was not sufficiently detailed. She also contends that the judge erred in failing to order sibling visitation between the two children and their older sibling, Thomas. We discern no error, and affirm.

Background. We summarize briefly the findings of fact entered by the judge, which we adopt absent clear error. The mother has a significant history of substance abuse. In December, 2013, the mother was incarcerated for violating her probation after relapsing on heroin. After her release, she became pregnant, and admitted "that she used heroin 'a couple of times' while pregnant." The mother was incarcerated once again in February, 2014, after a positive drug test, and she received treatment for both her drug addiction and pregnancy during her incarceration. She was released in May, 2014.

The father also has a history of substance abuse and was incarcerated from January, 2013, to January, 2014, as a result of several probation violations stemming from a marijuana cultivation conviction. In April, 2014, he relapsed on heroin and sought suboxone treatment. The father was uncooperative with the department throughout the case, and as a result the department had little information concerning the father's whereabouts or sobriety.

The children are twins, born in September, 2014. The department came into contact with the family soon after the children's birth, when a mandated reporter filed a G. L. c. 119, § 51A, report (51A report) concerning the mother's and father's substance abuse history and, in particular, the mother's use of heroin while she was pregnant. The department supported the allegations in the 51A report and began to provide services to the family. Meanwhile, the mother, father, and the children moved into the paternal grandmother's home. However, the paternal grandmother soon asked the father to leave at the recommendation of the family's social worker, and then asked the mother to leave the home in December, 2014, due in part to her suspicion that the mother was allowing the father to visit when the paternal grandmother was away.

The department encouraged the mother to seek a shelter placement for herself and the children, and for a short time the mother and children lived with the mother's uncle. However, the mother and children then moved into the maternal grandfather's home -- despite the department's previous warning to avoid living there over concerns about safety and substance abuse by the other residents of that home. On March 12, 2015, a new 51A report was filed alleging that the mother had recently asked the father for suboxone -- suggesting that the mother had relapsed once again. While investigating that 51A report, the department learned that the mother and children were living with the maternal grandfather and conducted an emergency removal of the children, placing them in a foster home.

After the children were removed from the mother's care, the mother was inconsistent with following the service plan the department developed for her. She was late to scheduled visits with the children, was inconsistent in meeting with her parent aide, and failed to provide the department with verification of her sobriety. The mother met with her social worker in August, 2015, but missed visits in July and September. The mother's last visit with the children was in July, 2015, and her subsequent lack of regular contact with the department prevented the department from further determining her compliance with her service plan. By December, 2015, the department was unable to determine the mother's whereabouts, and the children's goal was changed from reunification to adoption.

The trial concerning the parents' parental rights was held on September 13, 2016. Neither the mother nor the father attended the trial, though counsel for the mother appeared on her behalf. At the conclusion of the trial, the judge determined that both the mother and father are unfit and that it was in the best interests of the children for parental rights to be terminated.

Discussion. General Laws c. 210, § 3 (b ), requires the department to "identify, recruit, process and approve a qualified family for adoption." The judge is then required to consider that plan and determine whether it serves the best interests of the child. G. L. c. 210, § 3 (c ). Such a plan "need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement 'so that the judge may properly evaluate the suitability of the department's proposal.' " Adoption of Willow, 433 Mass. 636, 652 (2001), quoting Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). The identification of a specific adoptive family is not required if the judge can otherwise properly make this evaluation. See Adoption of Dora, 52 Mass. App. Ct. 472, 477 (2001).

Here, though the department's adoption plan lacked certain details (including, in particular, identification of a specific proposed adoptive placement), there was sufficient information to allow the judge to make a determination whether it furthered the best interests of the children. The children have no special needs that would require discussion of a special housing situation or adoptive placement. The department indicated that the children would be placed together in the same adoptive home and that the department would seek a referral for adoption by recruitment. Further, although the department had not yet identified an adoptive resource for the children, the children's foster family had expressed interest in adopting them, and therefore the department was in the process of assessing whether the foster family would be an appropriate adoption placement. See Adoption of Lars, 46 Mass. App. Ct. 30, 31-32 (1998).

As to the mother's remaining claims concerning the adoption plan, we likewise discern no error. In cases such as this, adoption by recruitment is a valid plan that can be in the best interests of a child, and the department's efforts to identify a proper placement in the future does not equate to an impermissible delegation of a judge's statutory duty to determine what is in the child's best interests. See Adoption of Paula, 420 Mass. 716, 722 n.7 (1995) ("A fully developed adoption plan, while preferable, is not an essential element of proof" in termination of parental rights). Additionally, the judge's findings concerning the adoption plan were sufficient to demonstrate that she paid careful attention to the evidence. As the adoption plan was adoption by recruitment, there was not yet an adoptive family about which the judge could make specific factual findings. The adoption plan stated that the children's foster family had shown interest in adopting the twins, and therefore -- in the event the foster family was approved by the department -- the judge properly made several findings describing how the children exhibited a close bond with the foster family and had adjusted well to living in the foster home.

If it is "reasonable and practical" and in the best interests of the child, a trial judge must order visitation between siblings who are in the care of the department. G. L. c. 119, § 26B (b ). A judge has broad discretion in ordering visitation or leaving visits to the judgment of the child's legal guardian. See Adoption of Ilona, 459 Mass. 53, 66 (2011). At trial, the judge indicated that she was inclined to order some type of sibling visitation. However, counsel for the children was concerned that there may be interaction between the parents and the children posttermination if sibling visitation was ordered and the parents regained custody of Thomas. Therefore, to allow the children's adoptive family the flexibility to deal with such a situation, the judge left the details of sibling visitation up to that family. This was not an abuse of discretion. See id.

Decrees affirmed.

      The mother does not challenge the judge's determination that she is unfit to parent the children. The judge also found the father unfit and terminated his parental rights; he did not appeal.

      Thomas remains under permanent guardianship of the paternal grandmother and is not a subject of this appeal. The department has raised no question concerning the mother's standing to challenge the treatment of sibling visitation with Thomas (who is not a party to these proceedings), and we do not consider the question.

      The department's last contact with the father was by telephone in December, 2014.

      The children's toxicity screens at birth were negative.

      The children were originally placed in separate foster homes, but were reunited in their current foster home on June 10, 2015.

      At oral argument, counsel for the department indicated that since the time of trial, the foster family had been approved as an adoption resource for the children. See Custody of Deborah, 33 Mass. App. Ct. 913, 913-914 (1992) (although developments after termination trial are not reviewed on appeal, it is vital for counsel to inform appellate court as to issues which may make appeal moot). See also Adoption of Terrence, 57 Mass. App. Ct. 832, 840-841 (2003).

      Thomas remains free to bring a petition under G. L. c. 119, § 26, in the event he is denied visitation in circumstances he believes are inappropriate.