text:
    ADOPTION OF INIGO (and Two Companion Cases ).
    18-P-373
    Appeals Court of Massachusetts.
    Entered: November 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Beth. Adoption of Michael. The children's names are pseudonyms.

   Following a trial in the Juvenile Court, the judge found the father unfit to care for his three children, and concluded that termination of his parental rights was in the children's best interests. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. On appeal, the father contends that the judge erred by (1) using improper criteria to determine his parental fitness; (2) finding that the Department of Children and Families' (department) reunification services were adequate; and (3) improperly denying the father posttermination visits. We affirm.

Discussion. 1. Parental fitness. We review the decision of the judge to determine whether there was any abuse of discretion or error of law. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). We grant substantial deference to the judge's decision because a "judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment [regarding fitness]." Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). Consequently, we will uphold the judge's findings of facts unless they are "clearly erroneous." Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607 (2012).

Parents have fundamental, constitutionally protected interests in their relationship with their children. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). Accordingly, the State may only terminate parental rights if a "parent is currently unfit to care for the child." Adoption of Rhona, 57 Mass. App. Ct. 479, 482 (2003). A determination of unfitness requires careful consideration, in light of the unique facts in each case, of the parent's capacity to care for the child. See Freeman v. Chaplic, 388 Mass. 398, 405 (1983). "Unfitness" surpasses "ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent" (footnotes omitted). Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). Instead, unfitness reflects "grievous shortcomings or handicaps that would put the child's welfare in" danger. See Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). The department bears the burden of proving parental unfitness by clear and convincing evidence. See Adoption of Lorna, 46 Mass. App. Ct. 134, 139 (1999).

The child's welfare is the paramount consideration in parental fitness determinations. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 589. The judge must consider "whether the natural parents are currently fit to further the welfare and best interests of the child." Bezio v. Patenaude, 381 Mass. 563, 576 (1980). The parental unfitness and the best interests of the child are not mutually exclusive tests, but rather "reflect different degrees of emphasis on the same factors." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 641.

a. Criminal history. The father first argues that the judge erred by relying on "stale" information about the father's criminal history when evaluating his parental fitness. Although criminal convictions do not conclusively demonstrate parental unfitness, the judge may consider such convictions "[t]o the extent [that they] bear[ ] on fitness." Care & Protection of Frank, 409 Mass. 492, 495 (1991).

Here, the judge noted that the father, who describes himself as a "career criminal," has a criminal record that spans nearly twenty years, and includes several violent offenses against both the mother and other individuals. The judge also emphasized that the father was unavailable as a parent for most of the children's lives due to his many incarcerations. The judge further noted that the father's "serial incarcerations left the children in the care of [the] [m]other who, by her own admission, was unfit to parent them." Given the instability that the father's absences from the home created, and the father's demonstrated history of violence toward others, the judge correctly considered the impact of the father's criminal history on his present parental fitness. See Adoption of Frank, 409 Mass. at 495 (convictions relevant as they "bear[ ] on fitness"); Care & Protection of Quinn, 54 Mass. App. Ct. 117, 126 (2002) (suggesting past violent crimes relevant to present fitness).

b. Domestic violence. Next, the father argues that the department failed to show that he has a present "propensity for domestic violence," and contends that the judge's findings regarding the father's history of domestic violence are not supported by the record. "[W]itnessing domestic violence, as well as being one of its victims, has a profound impact on children." Custody of Vaughn, 422 Mass. 590, 599 (1996). Accordingly, "[v]iolence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children," and "a judge must consider issues of domestic violence and its effect upon the children." Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005).

Here, extensive evidence at trial established the father's history of domestic violence. The judge noted that three women, including the children's mother, obtained abuse prevention orders against the father. Moreover, both testimony at trial and the G. L. c. 119, § 51B, reports (51B reports) in the record supported the judge's findings regarding several specific instances of the father's violence toward the mother. For instance, the judge found that on July 7, 2010, the father threatened to kill the mother and choked her. Similarly, the judge found that on July 10, 2010, the father "put his hands around [the] [m]other's neck" during a confrontation, and that the mother had "visible bruising on her bicep," an incident for which the father was ultimately incarcerated. Additionally, the judge found that on May 31, 2011, the father punched the mother after the car in which they were riding ran out of gas. The judge noted that the oldest child observed the father "on top of mommy [with] his hand over her face," and that he previously observed the father hit the mother and the family dog. The judge emphasized that witnessing the father's violence had placed the oldest child in fear.

Significantly, the judge noted that the father has refused to acknowledge his past and present issues with domestic violence, and has failed to engage in services to address those issues. The judge concluded that the father's unwillingness to address his past issues with domestic violence placed the children at present risk for abuse.

Contrary to the father's contentions otherwise, these facts all provide ample support for the judge's finding that the father's past domestic violence contributed to present unfitness, especially in light of the severity of these incidents, the oldest child's direct observations of the father's violence, and the grave psychological consequences of children observing domestic violence. See Custody of Vaughn, 422 Mass. at 599 ; Adoption of Gillian, 63 Mass. App. Ct. at 404 n.6.

c. Unstable housing and income source. Next, the father argues that the judge improperly considered his lack of income and appropriate housing in relation to his parental fitness.

Given the importance of stability in children's lives, the judge may properly consider whether parents will be able to "assume all parental responsibilities" and provide "the stable and continuous care and nurturing [children] need[ ] and will continue to need" as part of the overall fitness determination. Adoption of Nancy, 443 Mass. 512, 517 (2005). Judges may consider the lack of appropriate housing or adequate financial stability as part of this evaluation. See Adoption of Vito, 431 Mass. 550, 555 (2000) ; Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).

Here, the judge found that the father lived with his new wife, who he had known for five months before marriage, in a "small one bedroom apartment." The judge also found that the father was not on the lease for the apartment, and that the apartment would not be large enough for the children. Significantly, the judge also noted that the children had never lived with the father for an extended period of time due to his frequent incarcerations.

Additionally, the judge found that the father has no steady source of income outside of worker's compensation benefits, and that the father's testimony that he had other sources of income was not credible. Moreover, the judge found that the father's current wife has no income, but pays the majority of the couple's expenses from her personal savings account. The judge also found that the couple has a negative income of approximately $1,000 each month.

Given the lack of an appropriately-sized living space for the children, the father's inexperience living with his children, and the father's precarious financial situation, the judge properly concluded that the father would be unable to provide adequate, consistent resources for his children. See Adoption of Nancy, 443 Mass. at 516.

2. The department's reunification efforts. The father next argues that the department failed to make reasonable efforts to reunify him with his children. When contemplating the termination of parental rights, the judge must determine whether the department made "reasonable efforts" to reunify the family. See G. L. c. 119, § 29C ; Adoption of Ilona, 459 Mass. 53, 60 (2011). The judge must weigh that evidence, however, alongside "[e]vidence of parents' refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs." Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005). See Adoption of Zak, 87 Mass. App. Ct. 540, 544 (2015).

Here, there was ample evidence, including the father's testimony, demonstrating that the father did not fulfill his obligation to comply with the department's service plans for reunification. The father missed several visits with his children because he failed to confirm the dates with the department's social worker, missed a foster care review meeting because he chose to go on a fishing trip, missed a meeting with the department's social worker because he chose to go to the recording studio, and missed two separate trial days without a credited excuse. Moreover, the father violated the terms of his probation in 2015, and was reincarcerated. The judge noted that the father did not comply with his service plans either while incarcerated or after his release, and failed to bring any difficulties that he had with compliance to the department's attention. The judge properly concluded that the father's inability to "maintain[ ] consistency in his own services" was predictive of his inability to consistently maintain services for the children's benefit. See Adoption of Zak, 87 Mass. App. Ct. at 544.

The father also argues that the department's service plans did not address any current parenting deficiencies. The father contends that mental health, substance abuse, and domestic violence evaluations were inappropriate because those issues did not affect him at the time that the department created the plans. As previously discussed, however, the judge found overwhelming evidence of the father's past issues with domestic violence, and noted that the father's probation violation was alcohol-related. Moreover, the department's social worker met with the father to create a service plan, and the father had an opportunity to comment or make changes to the plan, but declined to do so.

Additionally, the father argues that the department did not effectively facilitate visits with his children. The judge found that although the children refused to visit with the father beginning in December, 2017, the department still tried to convince the children to see the father. Moreover, the judge emphasized that the father did not take advantage of the opportunities that he did have to spend time with the children, and suggested that the father's unwillingness to accommodate the children's visits demonstrated an inability to "prioritize[ ] [the children's] needs over his own." As the judge noted, given the father's own lack of effort to strengthen his bonds with the children, the father's claims regarding the department's reunification efforts hold little weight. See Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001).

3. Posttermination visitation. Finally, the father contends that the judge exceeded her authority by denying the father posttermination visitation. We review a judge's decision regarding posttermination visitation for abuse of discretion. Adoption of Zander, 83 Mass. App. Ct. 363, 365-366 (2013). After finding a parent unfit, "the decision whether to grant post[termination] visits must be left to the sound discretion of the trial judge." Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). A judge's decision to order posttermination contact must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation." Adoption of Vito, 431 Mass. 550, 562 (2000).

Here, the judge specifically found that there was "no evidence to suggest that [posttermination] visits with [the] Father would be in the children's best interests and indeed the children do not wish to visit with [the] Father." Accordingly, the judge acted within her discretion by terminating the father's parental rights, and by denying posttermination visitation, given the judge's exhaustive findings regarding the father's unfitness.

Decrees affirmed.

      The judge terminated the mother's parental rights after she stipulated to unfitness, and she is not a party to this appeal.

      Although the father claims that he has not committed any new criminal offenses since 2012, as the judge noted, the father was reincarcerated for a parole violation in 2015, further extending his absence from the children's lives.

      The father suggests that the judge improperly relied on hearsay statements contained in G. L. c. 119, § 51A, reports (51A reports). The father correctly notes that 51A reports "may not be considered substantively" in a care and protection proceeding. See Care & Protection of Inga, 36 Mass. App. Ct. 660, 663 (1994). However, the record also contains 51B reports, which "may be considered for statements of fact." Id. at 664. The 51B reports in this record detail several instances of domestic violence by the father.

      Although the father claims that the department was aware that he "had completed a domestic violence program during his incarceration," that contention only appears to be supported by the father's self-reporting, rather than any documentation from the prison.

      To the extent that we do not address the parties' other contentions, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


source: Caselaw Access Project

license: Public Domain

text:
    Lance Toron HOUSTON v. Noele HOSLEY.
    18-P-279
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The father appeals from so much of the corrected judgment for custody, support, and parenting time as awarded the mother sole legal custody of the minor child. The father argues that the judge failed to give proper effect to facts admitted as a result of the mother's untimely responses to the father's requests for admissions. See Mass. R. Dom. Rel. P. 36. Because the father fails to identify any particular finding of fact that does not give proper effect to, is contradicted by, or is clearly erroneous in light of the admissions, we affirm.

Background. The mother and father had a relationship beginning in 2012 but never married. The minor child was born in 2013. In 2015, the father filed a complaint for custody, support, and parenting time. The mother filed a separate complaint seeking custody and child support.

The father served on the mother six sets of requests for admissions. The mother failed to timely serve answers to four of the six sets, and the judge deemed them admitted. In 2017, after two days of trial, the judge issued findings of fact and ordered judgment awarding sole legal custody to the mother. The father appealed.

Discussion. The father argues that the judge abused her discretion by ignoring or excluding the facts established by the judicially admitted rule 36 requests, rendering the judge's findings clearly erroneous. We disagree.

Under rule 36(b), a failure to timely respond to requests for admissions "conclusively establishe[s] the truth of those admissions." Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 395 Mass. 255, 259 (1985). See Mass. R. Dom. Rel. P. 36 (b). But "[p]aragraph (b) recognizes that '[t]he effect of the rule in a given case may be unduly harsh, and the ability of the judge to exert an ameliorating influence is essential to avoid a result in which form triumphs over substance.' " Houston v. Houston, 64 Mass. App. Ct. 529, 533 (2005), quoting Reynolds Aluminum, 395 Mass. at 260. "Normally, the judge's decision will be set aside only on a showing of an abuse of discretion." Reynolds Aluminum, 395 Mass. at 260.

Here, the judge informed the parties that the admissions did not bind the court to "decide custody by default." See Houston, 64 Mass. App. Ct. at 535 ("there may be an inherent tension between admissions by default in child custody disputes and a judge's obligation in such matters to ensure that an award of custody is in the child's best interests"). The judge stated that she would allow the mother to testify regarding facts admitted by default and that the father should be prepared to cross-examine. The judge noted that if she found the mother's testimony credible, it would be given "more weight than a defaulted admission." "The judge may ameliorate the effect of the rule when: (1) the presentation of the merits of the action will be advanced, and (2) the party obtaining the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. See rule 36(b)." Reynolds Aluminum, 395 Mass. at 260.

Because the father was relying on the admissions as the primary evidence to support his case, the judge offered him the opportunity to postpone the trial to plan accordingly; the father declined, stating that he understood the judge's instruction, and moved forward with his case. Compare Reynolds Aluminum, 395 Mass. at 261 (defendants were prejudiced by judge's failure to give timely notice that he would not treat admissions as binding). The father has not identified any prejudice to him resulting from the judge's treatment of the admissions.

In particular, the father has not identified a single finding of fact that fails to give proper effect to, is contradicted by, or is clearly erroneous in light of the admissions. "It is the appellant's burden to show that a finding is clearly erroneous." Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014). The closest the father comes is to list, in an addendum to his brief, certain admissions that he claims were "ignored" by or "excluded" from the findings of fact. The list does not identify any particular finding of fact that is clearly erroneous in light of the listed admissions, nor does it identify any issue on which additional findings of fact should have been made that would call the judgment into question. In this respect, the father's brief does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Even if the judge had erred in her treatment of the admissions (and we do not imply that she did), the father has not shown that any such errors were prejudicial.

Corrected judgment affirmed.

      Corrected findings and a corrected judgment entered on May 24, 2017, nunc pro tunc to the date of the original findings and judgment.

      The notice of appeal was filed after the denial of the father's posttrial motion to amend the findings of fact and conclusions of law and for relief from judgment. The notice of appeal did not, however, identify the order denying that motion as a subject of the appeal. See Mass. R. A. P. 3 (c), as appearing in 442 Mass. 1502 (2004) (notice of appeal "shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from"). Thus the propriety of the denial of the motion is not before us. In any event, the father's brief makes no argument regarding the motion.

      The father was a party to this 2005 divorce case.


text:
    COMMONWEALTH v. Antonio AVILEZ.
    18-P-369
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On October 16, 2000, the defendant pleaded guilty to multiple offenses, including forcible rape of a child under the age of sixteen, aggravated kidnapping, and unlawful possession of a firearm. Approximately ten years later, he filed a motion for a new trial alleging ineffective assistance of counsel that was denied. We subsequently affirmed the order denying the motion in an unpublished decision pursuant to our rule 1:28. See Commonwealth v. Avilez, 82 Mass. App. Ct. 1104 (2012), cert. denied, 133 S. Ct. 999 (2013). Thereafter, the defendant filed a second motion for a new trial, in which he relied on the same arguments he advanced in support of his first motion for a new trial. That motion also was denied and the order denying the motion was affirmed in a second unpublished decision. See Commonwealth v. Avilez, 85 Mass. App. Ct. 1115 (2014), cert. denied, 135 S. Ct. 312 (2014).

On May 4, 2015, the defendant filed a third motion for a new trial. The motion was allowed with respect to one conviction, possession of a firearm, which the Commonwealth conceded was duplicative, and was denied with respect to the remaining convictions on the ground that the issues raised by the defendant had already been litigated and determined in his first and second motions for a new trial and, therefore, the doctrine of direct estoppel prevented the defendant from obtaining another determination of his claims. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-710 (2005). The order denying the defendant's third motion for a new trial also was affirmed. See Commonwealth v. Avilez, 90 Mass. App. Ct. 1107 (2016).

The defendant filed a fourth motion for a new trial on August 15, 2017, in which he again sought to vacate his conviction of aggravated kidnapping on the ground that it is duplicative of his convictions of forcible rape of a child. The motion was summarily denied because the defendant had not submitted a supporting affidavit. See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). The defendant then filed a motion for reconsideration, requesting findings of fact and rulings of law, which was denied by a judge of the Superior Court (motion judge), who was not the plea judge or the judge who ruled on the prior motions. The motion judge denied the motion in a margin endorsement as follows:

"DENIED. Setting aside the issue of an affidavit, on the merits, the undersigned is persuaded that the 'duplicative charge' claim has been fully litigated, and is otherwise baseless, since the kidnapping charge was not used to enhance the rape charges."

We review the decision to deny a motion for a new trial to determine whether the judge committed an error of law or abused his discretion. See Commonwealth v. Loring, 463 Mass. 1012, 1013 (2012). We have reviewed the record in this case carefully and discern no error of law or abuse of discretion. We agree with the conclusion reached by the motion judge that the issue of duplicative convictions has been litigated and determined in the defendant's prior unsuccessful motions to withdraw his guilty pleas. It suffices to note that, in his third motion for a new trial the defendant claimed that his conviction of kidnapping was duplicative of the convictions of rape. That argument was rejected by the judge, and his order denying the motion for a new trial on that basis was affirmed. As such, the defendant is estopped from relitigating the issue. See Rodriguez, 443 Mass. at 709-710.

Furthermore, although it is not necessary to reach the merits of the defendant's claim, we note, as the Commonwealth has explained in its brief, that there is no legal or factual basis for the defendant's claim. The aggravating circumstances for which the enhanced sentence was imposed on the forcible rape of a child charge was the defendant's possession of a firearm, and not the fact that he had kidnapped the victim.

Orders denying fourth motion for new trial and motion for reconsideration affirmed.

      We recognize that the defendant's appeal stems from the denial of his motion for reconsideration. However, because the motion judge addressed the merits of the underlying claim as presented in the fourth motion for a new trial, in the interests of judicial economy, so do we.


text:
    Gina RUSSO v. DIRECTOR OF THE DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.
    17-P-1448
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      D'Amours Big Y.

   The plaintiff, Gina Russo, appeals from a judgment issued by a judge in the Holyoke Division of the District Court Department (District Court) affirming the decision of the board of review of the Department of Unemployment Assistance (department). The department denied Russo's claim for unemployment benefits following her discharge by the defendant, D'Amours Big Y (Big Y), for violation of Big Y's fraud prevention policies governing wire transfers. On appeal, Russo principally contends that she is entitled to unemployment benefits. We affirm.

Background. The following facts are supported by substantial evidence. Big Y's wire transfer policies prohibit employees from conducting a wire transfer based on a request made over the telephone and further require in-person payment in cash or through a debit card for all wire transfers. Big Y does not permit the use of credit cards as the source of funds for wire transfers.

Russo was a shop lift coordinator in the loss prevention department of Big Y for the nine years immediately preceding her termination. By virtue of her position in the loss prevention department and through electronic mail messages (e-mails) dating from 2015, she was aware of Big Y's wire transfer policies. Russo admitted that she understood that wire transfers could not be conducted telephonically and that individuals wishing to conduct wire transfers were required to be present in-person.

Nevertheless, in the early morning hours of January 31, 2017, Russo telephoned the safe clerk in Big Y's West Springfield store to conduct a wire transfer. She had known the safe clerk for years, and the safe clerk knew that Russo worked in the loss prevention department. In contravention of Big Y's policies, Russo asked the safe clerk to conduct a wire transfer for her even though she was not present in-person. Over the telephone, she read a credit card number to the safe clerk, which the safe clerk used to conduct the wire transfer in violation of Big Y's policies. Following an investigation, Big Y terminated Russo's employment.

After the department denied Russo's application for unemployment benefits, Russo sought an administrative appeal. Following a hearing, the review examiner (examiner) affirmed the denial of benefits on the basis that Russo was disqualified from receiving benefits pursuant to G. L. c. 151A, § 25 (e ) (2), because she was discharged for "deliberate misconduct in willful disregard of [Big Y's] interest." The department's board of review denied Russo's application for further review. Russo filed a complaint in the District Court, seeking judicial review of the department's decision. A District Court judge affirmed the decision and judgment entered for the department.

Discussion. We review the department's decision to "determine whether it was unsupported by substantial evidence, arbitrary, capricious, or otherwise based on an error of law." Lincoln Pharmacy of Milford, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass. App. Ct. 428, 431 (2009). The applicable standard of review is "highly deferential to the agency," requiring us to accord "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (quotations and citations omitted). Hotchkiss v. State Racing Comm'n, 45 Mass. App. Ct. 684, 695-696 (1998). "We may not replace the commissioner's choice between two conflicting views even though we might justifiably have made a different choice had the matter been before us in the first instance." Hanover v. Ins. Co. Commissioner of Ins., 443 Mass. 47, 50 (2004).

As set forth supra, there was substantial evidence that Russo was aware of Big Y's fraud prevention policies governing wire transfers, and that Russo nevertheless violated these policies using her position as a loss prevention employee to convince the safe clerk to conduct a wire transfer over the telephone using a credit card. Accordingly, the evidence supported the department's determination that Russo intentionally engaged in conduct she knew was contrary to Big Y's interest. See Gupta v. Deputy Director of the Div. of Employment & Training, 62 Mass. App. Ct. 579, 585 (2004).

On appeal, Russo asserts that the department's decision is arbitrary and capricious because Big Y did not discharge the safe clerk despite her role in the misconduct. This argument is unavailing because, inter alia, Russo has not shown that the safe clerk was similarly situated. To the contrary, Russo was a long-term employee in the loss prevention department of Big Y, and the evidence supports the examiner's determination that Russo used her position to convince the safe clerk to process the wire transfer Russo requested. See Smith v. Director of the Div. of Employment Sec., 384 Mass. 758, 760-761 (1981).

Russo also contends that the examiner did not allow her to submit an account statement for a 2006 wire transfer she conducted using a credit card at Big Y. The examiner permitted Russo to testify to these transactions, credited her testimony, and concluded that the documentation was unnecessary. This evidentiary decision was well within the examiner's discretion in the conduct of the hearing. See Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 845-846 (2006). We discern no error.

Judgment affirmed.

      Russo was employed by Big Y from 1996 to February, 2017, including nine years in the loss prevention department.

      Russo denied that she was aware of the Big Y policy prohibiting the use of a credit card as the source of funds for a wire transfer. The review examiner heard Russo's evidence that in 2006 she used a credit card for a wire transfer. On appeal, Russo claims the examiner did not permit her to submit her 2006 account statements. The record of the hearing shows the examiner considered and credited Russo's testimony as to her use of a credit card in 2006.

      Russo telephoned the safe clerk prior to the start of business.

      Indeed, the examiner considered the fact that the safe clerk was not discharged in concluding that Russo's benefits could not be denied on the ground that she violated a uniformly enforced policy. See G. L. c. 151A, § 25 (e ) (2).

      Nor does the fact that Russo avoided being discharged when she apparently violated Big Y's fraud prevention policies in 2006 entitle her to employment benefits.


text:
    M.M. v. Charles DOUCETTE.
    18-P-50
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Charles Doucette, appeals from an order of a District Court judge continuing a permanent abuse prevention order under G. L. c. 209A. As we previously remanded for fresh consideration whether an earlier abuse prevention order should be extended, and it does not appear that such consideration was provided, we remand for further proceedings.

On February 28, 2011, a District Court judge extended an ex parte abuse prevention order for one year (2011 order). The defendant was incarcerated at the time and did not appear. M.M. v. Doucette, 92 Mass. App. Ct. 32, 36 (2017). On February 27, 2012, the same judge made the abuse prevention order permanent. Again, the defendant was incarcerated and did not appear. Id. at 37.

The defendant appealed. We concluded that, because the defendant had notice of the 2011 hearing but failed to request to be heard, "the order was properly extended." Id. at 36. Because, however, the defendant made "a genuinely plausible representation" that he received no notice of the 2012 hearing at which the order was made permanent, we held that he should have been given a hearing on the 2012 extension of the 2011 order. Id. at 39. Accordingly, we remanded for a "hearing at which, after reasonable notice to both parties and an opportunity for them to be heard, the judge shall decide whether the order should continue permanently, or for a different period of time, or whether it should be terminated." Id.

At that hearing, the defendant filed a document entitled, "motion to vacate permanent restraining order." The motion challenged the issuance of the 2011 order as a "fraud upon the court" and pointed to newly-discovered evidence that impeached the plaintiff. The motion also insisted that "today the plaintiff can in no way produce evidence before the court to warrant the order to be extended." At the hearing, a different District Court judge patiently heard from the defendant, but told him, "what we're here for today is to see what has changed since [the earlier judge] issued the order on February 27th of 2012." After the hearing, in his "Findings and Order on Defendant's Motion to Vacate Abuse Prevention Order," the judge made factual findings, stated that he "cannot conclude that [the earlier judge's] order of February 27, 2012[,] must be vacated on the ground of inconsistencies," and denied the defendant's motion to vacate. The defendant appealed.

To prevail on a claim of fraud on the court, the defendant must "demonstrate[ ], clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter." M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 341 (2016), quoting Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 729-730 (2006). To vacate an abuse prevention order because of newly-discovered evidence, a defendant has the burden of demonstrating the existence of material newly-discovered evidence that could not have been discovered previously through the exercise of due diligence. See Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 775 (2005).

We can discern no error in the judge's conclusion that the defendant did not meet his burden in showing a fraud on the court or newly-discovered evidence requiring the vacation of the 2011 order. The newly-discovered trial testimony merely impeached the plaintiff's testimony, and "a new trial will not ordinarily be granted on the ground of newly-discovered evidence which goes only to impeach the credit of a witness at trial." Mitchell, 62 Mass. App. Ct. at 776, quoting DeLuca v. Boston Elev. Ry., 312 Mass. 495, 500 (1942). A fraud on the court requires more than "a false allegation," but rather "a deliberate scheme ... typically involving others in the court system, combined with a larger pattern of harassment." M.C.D., 90 Mass. App. Ct. at 342.

Nonetheless, in M.M., 92 Mass. App. Ct. at 39, we remanded for a hearing on whether the 2011 order should be extended. "The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of 'abuse' as defined in G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005). The defendant may not "challenge the evidence underlying the initial order," but the judge must consider "the totality of the conditions that exist at the time that the plaintiff seeks the extension." Id. at 740-741.

The record does not reflect that the judge considered the hearing that he held to be an extension hearing, that he determined that the plaintiff had met her burden, or that the judge exercised his discretion to determine the proper length of the extension. See Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009) (judge has discretion to determine length of extension).

Accordingly, we again remand for a hearing on whether to extend the 2011 abuse prevention order and for the judge to decide whether the order should continue permanently, or for a different period of time, or whether it should be terminated. The restraining order shall remain in effect until such a hearing is conducted and the issue is decided.

So ordered.

Vacated and remanded


text:
    COMMONWEALTH v. Shawn M. CRAIG.
    18-P-84
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Shawn M. Craig, appeals from his conviction of distribution of a class A drug, subsequent offense, in violation of G. L. c. 94C, § 32 (b ). We affirm.

Background. The following facts are drawn from Sergeant Edward Troy's trial testimony. On September 5, 2013, Troy was surveilling the Appleton Street area of Lowell. Around 8:30 P.M. , he observed a male, later identified as Michael Young, approach the defendant and the defendant's wife. Troy observed Young hand several bills of money to the defendant, after which the defendant counted the money, reached into the rear of his pants, removed something "very small," and handed it to Young. The exchange lasted about ten to fifteen seconds. Young then began walking towards Troy. After several steps, Young knelt down and appeared to place something in his left sock. Subsequently, Troy searched Young and asked him to remove his left shoe and sock. When Young complied, two small, clear plastic bags containing a light-brown powder fell on the ground. The powder was later identified as a mixture of heroin and caffeine. Troy seized the bags, placed Young under arrest, and circled the area looking for the defendant and his wife. He did not find them.

At trial, defense counsel conceded that the defendant was involved in a drug transaction with Young, but maintained that he was the buyer and Young was the seller. On cross-examination of Troy, defense counsel made the point that Troy did not pursue the defendant, call him back, or send anyone else after him. On redirect examination, over objection by defense counsel, the prosecutor asked Troy to explain why he focused exclusively on Young. Troy responded, "I felt that [Young] was the more important person to focus on at that time because I felt that there was more potential that he had evidence on him." Troy then explained that by evidence, he meant drugs.

Discussion. The defendant argues that Troy improperly testified to the ultimate issue of the defendant's guilt: that is, whether the defendant was the dealer or buyer in the transaction. Due to the defendant's timely objection to Troy's testimony, we review its admission for prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Prejudicial error requires a two-part analysis. Id. First, we must determine whether there was an error, and if so, was the error prejudicial. Id. "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect'; however, if we cannot find 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,' then it is prejudicial." Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

It is imperative that no witness, especially a police witness, testify "as to a defendant's guilt or innocence." Commonwealth v. Canty, 466 Mass. 535, 540 (2013), quoting Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011). On cross-examination, defense counsel inquired whether Troy took any steps to apprehend the defendant and his wife. As a result, it was not error to permit the prosecutor to ask Troy to explain why he chose to pursue Young instead of the defendant. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000) (where "[t]he defendant has inserted into the case the relevance of the police judgment and decisions; the officer must be allowed to defend that judgment"). Moreover, Troy testified where, based on his observations, he expected to find the drugs. He did not state an opinion of the defendant's guilt.

Nevertheless, even assuming error, there was no prejudice. Defense counsel conceded that a drug transaction took place, and he did not refute that the bags Troy seized from Young contained narcotics. The jury heard the rest of Troy's testimony, which described in detail the exchange between the defendant and Young, including that the money exchanged was passed from Young to the defendant. The jury also heard that three hours earlier, in the same location, the defendant engaged in brief, hand-to-hand transactions with others. Finally, Detective David Lavoie testified that hand-to-hand drug transactions are often quick exchanges where the drugs are contained in small bags and hidden in the seller's clothes.

Judgment affirmed.

      After a jury-waived trial, a Superior Court judge found the defendant guilty of the subsequent offense portion of the drug distribution charge. The Commonwealth entered a nolle prosequi as to the second indictment, conspiracy to violate a drug law in violation of G. L. c. 94C, § 40.

      At the time of the crime, Troy was a State trooper. He became a sergeant around 2014.

      Kimberly Dunlap, a forensic scientist with the State police drug identification unit also confirmed the contents of the bags seized from Young.

      Detective Lavoie also testified that the exchange may involve counting money.


text:
    COMMONWEALTH v. Russell ST. PIERRE.
    18-P-132
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation G. L. c. 90, § 24. On appeal, the defendant argues that the trial judge was biased, that testimony about the failure to complete a field sobriety test was inadmissible, and that the evidence was insufficient to support a conviction. We affirm.

Discussion. 1. Bias. The defendant contends that statements made by the judge when delivering the verdict demonstrate that the judge refused to consider impartially the defendant's exculpatory testimony. The trial judge stated that the defendant had committed perjury, a crime with which he was not charged and for which he was not tried. The statement was made, however, in the context of evaluating the credibility of the defendant. The judge considered, but did not credit, the defendant's testimony, which the judge found to be implausible and self-serving. The assessment of "the weight and credibility of the evidence" is determined by the trier of fact, in this case, the trial judge. Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016). "Although we think the judge's remark to have been highly inappropriate, we cannot say that his conduct clearly deprived the defendant of a fair trial." Commonwealth v. Coleman, 390 Mass. 797, 803 (1984).

2. Field sobriety tests. The defendant further asserts that testimony concerning his second field sobriety test should not have been admitted because it constituted improper refusal evidence.

The responding trooper, Trooper French, conducted two field sobriety tests. He first asked the defendant to perform a one-legged stand. The defendant began the test before being instructed to do so, and appeared unsteady on one leg. He put down his raised foot and informed Trooper French that he was disabled and unable to perform the test. Trooper French then ended the one-legged stand test and asked the defendant to perform the nine-step walk test. While Trooper French provided instructions and demonstrated the nine-step walk test, the defendant twice interrupted him to state, "[j]ust tell me what you want me to do and I'll do it." When he attempted the nine-step walk test, the defendant appeared unsteady, swayed with his arms out, and almost fell over. Trooper French ended the test and arrested the defendant.

The defendant maintains that his statement that he was disabled, made during his first test, coupled with his statement during his second test that he would comply with the trooper's instructions, demonstrated that he thought he was required to perform the test even though he was unable to do so on account of his stated disability. He claims that the two statements constituted a refusal to perform the second field sobriety test.

It is well established that "evidence of the refusal to perform field sobriety tests when directed or requested by the police to do so violates the privilege against self-incrimination safeguarded by art. 12" of the Massachusetts Declaration of Rights. Commonwealth v. Brown, 83 Mass. App. Ct. 772, 777 (2013). See Opinion of the Justices, 412 Mass. 1201, 1211 (1992). Evidence of a defendant's refusal to perform a field sobriety test is, accordingly, inadmissible at trial. See Commonwealth v. Healy, 452 Mass. 510, 513 (2008). However, "once a person gives consent to take a test, his physical actions in performing the test ... may be the subject of testimony at trial." Brown, supra at 778, citing Commonwealth v. Curley, 78 Mass. App. Ct. 163, 168 (2010).

The defendant did not refuse to perform the tests. He said he could not perform the first test. He consented to take the second field sobriety test, and attempted to follow the instructions he was given stating, "[j]ust tell me what you want me to do and I'll do it." The defendant claims, however, that his consent was not voluntary because he undertook the field sobriety tests on the basis of his mistaken belief that he was obligated to comply with Trooper French's requests. There is, however, no requirement that officers inform drivers that they are permitted to refuse consent. See Commonwealth v. Blais, 428 Mass. 294, 299 (1998). Thus, the defendant's consent was valid, and there was no error in admitting testimony regarding the field sobriety tests.

3. Sufficiency of the evidence. "[I]n a prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the Commonwealth must prove beyond a reasonable doubt that the defendant's consumption of alcohol diminished the defendant's ability to operate a motor vehicle safely. The Commonwealth ... must prove a diminished capacity to operate safely." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). The Commonwealth may meet its burden by providing evidence of the "classic indicia of impairment," such as testimony "that the defendant was unsteady on his feet, had bloodshot and glassy eyes, smelled of alcohol, [or] slurred his words." Commonwealth v. Jewett, 471 Mass. 624, 636 (2015). We review the sufficiency of the evidence under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

Trooper French observed the defendant get out of the car through the driver's side door and walk unsteadily, fumble with a stack of various cards for some time before producing his license, and slur his speech. The trooper noticed the defendant's "glossy eyes" and smelled a strong odor of alcohol when the defendant handed over his license. While administering the field sobriety tests, the defendant had difficulty balancing, slurred his speech, and did not follow instructions. The defendant offered competing explanations for all of this conduct, but viewed in the light most favorable to the Commonwealth, see Latimore, supra, this evidence was sufficient for a rational trier of fact to conclude that the defendant had a diminished capacity to operate a motor vehicle safely.

Judgment affirmed.

      The defendant was also charged with, and found responsible for, a civil marked lanes violation in violation of G. L. c. 89, § 4A.

      After defense counsel's closing argument, the following exchange ensued:
      The court : "All right. Thanks. Respectfully you tried a good case. Mr. St. Pierre stand up. All right. Your lawyer did a good job and then you decided to take the witness stand and quite frankly you killed yourself. I can't believe a thing you said up there. I don't believe."
      The defendant : "I apologize for that."
      The court : "You don't have to apologize for that. Quite frankly in my opinion it's perjury. For you to tell me that you heard a bang, that you work with cars and that car went completely dead and then you decided to take a [thirty mile per hour] ramp to go, I don't know where when any reasonable person would have simply just pulled over to the side of the road which either tells me again that you're lying to me or you were too drunk to figure out what to do with the car. Don't say a word.
      "All of the other responses that you gave on cross examination and even to your own lawyer just make absolutely no sense. There's nobody in this room that could have listened to that testimony and thought for one minute that you weren't doing anything but lying to try to save yourself up there. And you don't get to do that. It's a court of law. All right. For you to have five drinks, this is where I was, for you to have five drinks since eight p.m. and then get behind the wheel of a car is, and then not be able to negotiate the ramp tells me that you were impaired by alcohol, but then to go on this witness stand and try and -- I don't even know where to begin. You're guilty of that offense.
      "Where does that leave us?"
      Mr. Guilderson : "There's also a marked lanes violation, [j]udge."
      The court : "Responsible."

      In other contexts, such as in jury instructions or during sentencing, the judge's remarks suggesting that the defendant had perjured himself could constitute reversible error. See, e.g., Commonwealth v. Coleman, 390 Mass. at 810 (impermissible for judge to consider defendant's uncharged perjury during trial in sentencing); Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72-73 (1995) (improper for judge to comment on witness credibility in jury instructions).


text:
    NEW ENGLAND PATRIOTS FANS v. NATIONAL FOOTBALL LEAGUE & Others.
    18-P-269
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Roger Goodell, individually and in his capacity as commissioner of the National Football League, and Robert Kraft, individually and in his capacity as the owner of the New England Patriots.

   The plaintiffs purported to bring a class action seeking damages and injunctive relief against the defendants concerning forfeiture of the New England Patriots's first round draft choice as punishment for an incident commonly referred to as "Deflategate." After their case was dismissed, the plaintiffs sought postjudgment relief, which was denied. We affirm.

Background. The plaintiffs initiated this class action on December 23, 2016. On February 27, 2017, a Superior Court judge dismissed the complaint with prejudice for lack of standing and failure to state a claim. More than ten days after the entry of judgment, on March 10, 2017, the plaintiffs served on the defendants a motion for findings of fact and conclusions of law (postjudgment motion for findings). The plaintiffs' postjudgment motion for findings was denied on April 3, 2017. On April 12, 2017, the plaintiffs filed a notice of appeal from the February 27, 2017, judgment (first appeal), which was dismissed as untimely on May 5, 2017.

On May 15, 2017, plaintiffs filed a motion for reconsideration of the order dismissing the first appeal, which was denied on May 16, 2017. On May 25, 2017, the plaintiffs filed a notice of appeal "from [the] judgments entered against them," which is the appeal before us now. We treat this as a notice of appeal of the May 16, 2017, order denying the plaintiffs' motion for reconsideration because that is the only timely appeal that could have been taken. We affirm.

Discussion. We review the order denying the motion for reconsideration for abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." Id., quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

A notice of appeal must be filed "within thirty days of the date of the entry of the judgment appealed from." Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). In this case, the plaintiffs filed the first appeal on April 12, 2017, forty-four days after the February 27, 2017, entry of judgment. The plaintiffs argue that their first appeal nonetheless is timely because the postjudgment motion for findings tolled the deadline to file the first appeal. However, certain postjudgment motions (including motions for findings, as was filed here) only toll the appeal period when the motion is made within ten days of the entry of judgment. See Mass. R. A. P. 4 (a) ; Mass. R. Civ. P. 52 (b), as amended, 423 Mass. 1402 (1996). In this case, the postjudgment motion for findings was not made within ten days of the entry of judgment; the plaintiffs served the postjudgment motion for findings on March 10, 2017, eleven days after the entry of judgment on February 27, 2017.

On appeal, the plaintiffs do not dispute that their postjudgment motion for findings was filed more than ten days after entry of judgment. Instead, the plaintiffs argue that the judge erred in denying the motion for reconsideration because Mass. R. Civ. P. 6 (d), 365 Mass. 747 (1974), commonly known as the "mailbox rule," provided them with three additional days to serve the postjudgment motion for findings. Specifically, the plaintiffs assert that they did not receive the February 27, 2017, judgment by mail until March 2, 2017; thus, their March 10, 2017, postjudgment motion for findings was within the ten-day deadline. We disagree.

As the judge explained in a well-reasoned memorandum, the three-day extension due to service by mail does not apply to the plaintiffs' deadline for filing their postjudgment motion for findings. Rule 6 (d) provides, in pertinent part: "Whenever a party ... is required to do some act ... within a prescribed period after the service of a notice or other papers upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period." Here, however, the plaintiffs were not responding to a notice or paper served upon them by mail; thus, rule 6 (d) by its terms does not apply. See Commonwealth v. White, 429 Mass. 258, 261-262 (1999) (time period for filing notice of appeal begins to run upon entry of judgment, not upon service). See also Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972). Accordingly, we conclude that the judge did not abuse his discretion in denying the plaintiffs' motion for reconsideration. ,

To the extent the plaintiffs are arguing that their postjudgment motion for findings was a motion pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), and it was incorrectly denied, the May 25, 2017, notice of appeal does not properly raise that issue. That notice stated that it was limited to appeal of the "judgments." Even if we look past this failure, the plaintiffs' lone statement about rule 60 (b) (3) is unsupported by authority or factual analysis and does not rise to the level of reasoned appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975) ("The argument ... shall contain ... citations to the authorities, statutes and parts of the record relied on"); K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014) (court will not consider claims that do not "rise to the level of reasoned appellate argument as contemplated by [ rule 16 (a) (4) ]").

Order entered May 16, 2017, denying reconsideration, affirmed.

      The plaintiffs' postjudgment motion for findings was served on March 10, 2017, but the docket indicates that the plaintiffs filed the motion on March 30, 2017, while one of the defendants filed an opposition to the plaintiffs' postjudgment motion for findings on March 20, 2017. For purposes of this decision, we will give the plaintiffs the benefit of the earlier service date, March 10, 2017. This does not alter our analysis.

      The defendants argue that the plaintiffs' postjudgment motion for findings could not have tolled the ten-day deadline because the motion was procedurally "nonsensical" and not proper under Mass. R. Civ. P. 52 (b). Because we conclude that the postjudgment motion for findings did not toll the deadline, we need not reach this issue.

      In light of our decision, the motion, filed by two of the defendants, to strike a portion of the plaintiffs' statement of issues and to limit the issues on appeal is moot.

      The defendants request attorney's fees and costs in connection with this appeal. We deny their requests. To the extent the plaintiffs request attorney's fees for this appeal, that request is also denied.


text:
    ADOPTION OF KADIM (and a Companion Case ).
    18-P-462
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

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

   The father of Kadim (born in 2014) and Julia (born in 2016) appeals from Juvenile Court decrees terminating his parental rights to both children and leaving visitation in the discretion of the adoptive parents, the children's maternal grandparents. We affirm.

Discussion. "In determining whether to dispense with parental consent to adoption, a judge must 'evaluate whether the [parent is] able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the children.' " Adoption of Nancy, 443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass. 705, 710 (1993). See G. L. c. 210, § 3 ; Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). The judge must conduct a two-part analysis: the judge must first determine "parental unfitness by clear and convincing evidence," and "[a]fter ascertaining unfitness, the judge must determine whether ... it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. at 515. The two inquiries "are not separate and distinct, but 'reflect different degrees of emphasis on the same factors.' " Id., quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge concluded that the father's persistent problems with domestic violence, substance abuse, criminal activity, lack of stable employment, and lack of stable housing rendered him an unfit parent, and that these shortcomings would continue unabated in the future. The father contends that the judge erred by crediting the mother's testimony against him; that several of the judge's subsidiary findings are clearly erroneous, undermining her ultimate conclusion; and that the judge abused her discretion by declining to order postadoption visitation.

1. The mother's credibility. The father contends the judge erred in crediting the mother's testimony against him, particularly her accounts of domestic violence, because the mother had strong motivation to lie. Specifically, just before trial the mother agreed to an open adoption agreement with the maternal grandparents that allowed her visitation with the children; this agreement could not go into effect until the judge terminated the father's parental rights.

The judge did not ignore the father's argument, which was fully aired at trial. The attorney from the Department of Children and Families (DCF) informed the judge of the agreement, the mother testified about the agreement, and the judge discussed the agreement during a colloquy with the mother. The father's trial counsel argued in his opening statement that the mother was motivated to lie and pressed the point during cross-examination of the mother.

The judge acknowledged in her conclusions of law that "there were times Father and Mother denied any domestic violence," but concluded domestic violence was nonetheless a factor because "there were countless previous incidents" in the record. The judge's decision to credit the mother's testimony indicates that the father's argument was not persuasive. "We accord the credibility determinations of the judge who 'heard the testimony of the parties ... [and] observed their demeanor' ... the utmost deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999). The judge was not obligated to disbelieve the mother's testimony. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984).

2. Challenged findings of fact. The father claims that several of the judge's subsidiary factual findings underlying her ultimate conclusion of parental unfitness are clearly erroneous. He also contends that the judge's findings concerning domestic violence and substance abuse could not be used to establish his unfitness because the judge did not find that these behaviors adversely affected the children.

Parental unfitness "means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's ... parent. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard" (footnotes and quotation omitted). Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). "Violence of temper, indifference or vacillation of feeling toward the child, or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit." Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973).

Relevant to a determination of unfitness is the parent's inability to "keep a stable home environment for the children" and "manage financial affairs." Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). The presence of violence within a family is also "highly relevant to a judge's determination of parental unfitness and the best interests of the children." Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "[P]hysical 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." Custody of Vaughn, 422 Mass. 590, 595 (1996).

While the parent's behavior must be causally connected with a child's endangerment, the judge need not be "confronted with a maltreated child before deciding care and protection are necessary," and may consider past conduct as predictive of "the likelihood of harm to the child." Custody of Two Minors, 396 Mass. 610, 620-621 (1986).

Before terminating parental rights, the judge must "make specific and detailed findings, demonstrating that close attention has been given to the evidence." Adoption of Gregory, 434 Mass. 117, 126 (2001). The judge's subsidiary findings of fact must be supported by a preponderance of the evidence and will not be disturbed unless clearly erroneous. Id. A subsidiary finding is clearly erroneous when there is no evidence to support it, or when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

a. Domestic violence. The mother's testimony and exhibits admitted at trial amply support the judge's conclusion that the father had a history of domestic violence. Specifically, the judge cited numerous G. L. c. 119, § 51B, investigations documenting incidents of domestic violence and two G. L. c. 209A abuse prevention orders the mother obtained against the father. This evidence, along with other record evidence that the judge did not specifically mention, support the conclusion that the father had a history of violence toward the mother.

The father's domestic violence was also sufficiently connected to his parental unfitness. Although the judge's findings do not address the effects of the father's violence on the children with great specificity, the record indicates the father was violent toward the mother in front of Julia. An exhibit admitted at trial demonstrated that on separate occasions the father attempted to strangle the mother and threatened her with a knife while she was holding Julia. The father's violence toward the mother in Julia's presence supports the judge's conclusion of parental unfitness. See Opinion of the Justices, 427 Mass. 1201, 1203 (1998) ; Custody of Two Minors, 396 Mass. at 620-621 ; Adoption of Bianca, 91 Mass. App. Ct. 428, 433-434 (2017).

b. Substance abuse. The record also supports the judge's findings concerning the father's history of substance abuse. There was evidence that the father tested positive for marijuana on the first day of trial, used unprescribed Percocet for years, and used heroin to the point of overdosing. The record also contains strong evidence that the father was a heavy drinker. His criminal record includes two convictions for operating a motor vehicle under the influence of alcohol (OUI).

The father's substance abuse adversely affected his fitness as a parent. The father's OUI convictions led to the loss of his driver's license for three years, which severely impaired his ability to commute to work in the rural area in which he lived. The OUI convictions also led to his incarceration: he twice violated his probation, once by refusing a breathalyzer test and once by getting in a bar fight. The judge could properly conclude that the consequences of the father's substance abuse undermined his ability to care and provide for the children.

c. Drinking around Kadim. The father claims the judge erroneously found that the father drank beer around Kadim prior to his removal. The judge's actual finding was as follows: "Father denied drinking around {Kadim] prior to removal, but that he would drink beer once or twice a week when he was by himself. The court does not credit this testimony, in fact, the court credits Mother's testimony, the exhibits and the testimony of [a social worker]." The judge did not specifically find that the father drank in Kadim's presence. The record does support the judge's conclusion that the father drank more heavily than he admitted. We are not left with a "definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. at 799.

d. Suspension from the union. The father next challenges the judge's finding that he was suspended from the labor union he belonged to, which provided him work opportunities. The father contends the judge should have credited the testimony of the union's business manager, Ronald Holmes, that Holmes could find the father a job within a week.

The evidence supports the judge's finding. Two documents in the record indicate that the father was suspended from the union, and Holmes never testified that this was not the case. Indeed, one of the two documents is a fax that Holmes sent to an employer a few months after Julia's removal with the notation "suspended member" in the description field. The judge was not obliged to accept Holmes's testimony that he could find the father a job easily. See Care & Protection of Three Minors, 392 Mass. at 711. As the union affiliation provided him employment, the father's suspension impeded his ability to provide for the children.

e. Back rent. The father also assails the judge's finding that the father failed to use funds from his unemployment checks to pay back rent. The father further contends that the judge confused the source of these funds, conflating the unemployment income he began receiving a few months before trial with the income he had previously earned.

The judge found it "concerning" that the father was evicted for nonpayment of rent "considering Father's substantial weekly income when he was employed." While the record does not clearly distinguish among the sources of the father's income, the judge's findings make clear that what mattered was the father's decision not to pay back rent, not the precise source of the funds he could have used. Even if the judge mischaracterized the source of the funds, the record supports her finding that the father did not pay back rent when he could have. The father's failure to provide stable housing for himself, and consequently for the children, supports the judge's determination of unfitness. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. at 289.

f. Family's lack of benefit from father's employment. The father next challenges the judge's finding that "[b]y his own words the family did not benefit" from the father's employment as a construction supervisor at the Massachusetts Museum of Contemporary Art (MOCA). The father contends that the judge mischaracterized his testimony, and that he in fact provided health insurance and financial support for the mother and Julia when he was employed by MOCA.

This finding is not clearly erroneous. The judge was referring to the father's testimony that rather than pay back rent to keep his apartment, he paid bills for the "snowmobiles, dirt bikes, [and] trucks" he had "irresponsibl[y]" purchased for himself. The father does not dispute that this choice resulted in eviction. While the father provided some financial support for the mother and Julia (but not for Kadim), the judge could properly conclude that on balance the father's spending decisions resulted in the family's not benefiting from his employment.

3. Visitation decision. Finally, the father argues the judge abused her discretion by refusing to order posttermination and postadoption visitation. The father contends the judge should have ordered visitation because DCF recommended one to two visits per year, the father's prior visits went well, and the adoptive parents wrongfully prevented visitation in the past.

"[A] judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009). A judge must balance the benefit of an order of visitation with the intrusion that such an order imposes on adoptive parents, "who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass. at 64-65.

The judge did not abuse her discretion. While DCF recommended one or two visits per year, the judge was not bound by that recommendation. Moreover, the judge had valid reasons for declining to order visitation. The father's visitation was inconsistent. While the father visited Julia monthly, he canceled a recent visit so that he could attend a concert. The judge found the father's choice "is informative ... as to Father's priorities and lack of understanding of his children's needs." The father had not visited Kadim for approximately seven months before the trial. Although the father informed the court investigator that he had a "good relationship" with his children, the record does not demonstrate a strong bond between the father and the children. In contrast, the judge found the children had formed strong emotional bonds with the adoptive parents, with whom they have lived since they were each three months old -- a finding the father does not challenge.

Finally, the record does not support the father's claim that the adoptive parents wrongfully denied the father visitation. The adoptive mother ended visits with the children in her home only after the father verbally abused her, but visits continued for a time at the YMCA.

The father's evidence did not overcome the presumption that the adoptive parents would act in the children's best interests. The judge did not abuse her discretion in declining to order visitation. See Adoption of Ilona, 459 Mass. at 64-65 ; Adoption of Rico, 453 Mass. at 756.

Decrees affirmed.

      The father contends that some of these findings also suffer from the judge's acceptance of the mother's testimony, notwithstanding the mother's motive to lie. We addressed this argument in part 1, supra, and need not discuss it further.


text:
    Simon GENZER v. Yuliya ZHOGINA.
    18-P-614
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant (mother) appeals from the denial of her motion for relief from judgment filed pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). In essence, the motion argued that the judge erred in finding, apparently after a trial on the mother's complaint for contempt filed on May 22, 2015, and amended on June 4, 2015, that the "[m]other has submitted no credible evidence that [f]ather owes her funds for agreed upon extracurricular activities and those records she submitted relate to expenses for piano and swimming which [f]ather did not agree upon." We affirm.

Our review is limited to determining whether the motion judge abused his discretion in denying the rule 60 (b) motion. Adoption of Rory, 80 Mass. App. Ct. 454, 457 (2011). Here, the mother's motion, by submitting an affidavit detailing various extracurricular expenses and supposed payments made by the mother, essentially sought to have the judge undo his finding that the mother had presented no credible evidence of contempt. What relationship the information in the affidavit and its attachments has to the evidence at trial is unknown because the mother has not included any of the trial materials in the appellate record.

In any event, the mother has not shown that the judge's trial findings were clearly erroneous. Care & Protection of Martha, 407 Mass. 319, 327 (1990) ("judge's findings must be left undisturbed absent a showing that they clearly are erroneous"). "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). In addition, it is clear that the judge's findings rested upon his assessment of credibility, a matter that is not ordinarily subject to attack on a motion for relief from judgment. In short, the mother has failed to show that the judge abused his discretion in denying the rule 60 motion.

Order denying motion for relief from judgment affirmed.

      We are unable to say with any certainty what occurred below because the record on appeal is deficient in nearly all respects. For example, the mother has not included the docket sheet from the trial court, nor the transcript of the proceedings on the contempt complaint.


text:
    Timothy BURKE, Trustee, v. BUILDING INSPECTOR OF TOWN OF DENNIS & Another.
    18-P-351
    Appeals Court of Massachusetts.
    Entered: November 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the TVB Trust.

      Town of Dennis.

   The plaintiff, Timothy Burke, trustee of the TVB Trust (trust), appeals from a Superior Court judgment entered after the allowance of the defendants' motion for judgment on the pleadings. We affirm.

Background. In 2016, Burke sued the town of Dennis (town) and the town's building inspector, seeking (1) a declaratory judgment that the lot known as 23 Uncle Bill's Way (property) is buildable; (2) a determination that the property is buildable due to selective enforcement of the local bylaw in violation of the trust's and its beneficiaries' equal protection rights under the Massachusetts Declaration of Rights and the United States Constitution; and (3) damages due to the building inspector's interference with the trust's civil rights to build on the property, in violation of the United States Constitution and the laws of the Commonwealth.

On May 2, 2016, the defendants filed a motion for judgment on the pleadings. On January 16, 2018, the judge allowed the defendants' motion, after which Burke filed a timely notice of appeal from the judgment of dismissal.

Discussion. We review de novo a Superior Court judge's order allowing a motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013). "For the purposes of a rule 12 (c) motion, all of the well-pleaded factual allegations of the nonmoving party are assumed to be true." Champa v. Weston Pub. Schs., 473 Mass. 86, 90 (2015).

1. Count I -- Declaratory judgment that the property is buildable. As we conclude in our decision today in the appeal in Burke I (see note 4, supra ), Burke failed to exhaust available administrative remedies under G. L. c. 40A, §§ 8, 17 ; thus, an actual controversy does not exist and the Superior Court does not have jurisdiction to hear count I. See Wrentham v. West Wrentham Village, LLC, 451 Mass. 511, 514 (2008) ; Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20 (1995). The judge correctly ordered dismissal of count I.

2. Count III -- Massachusetts Civil Rights Act claim against the building inspector. A claim is proper under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11H, 11I, and may be brought against a public employee when the plaintiff proves that "(1) [his] exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by 'threats, intimidation or coercion.' " Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395 (1996), quoting G. L. c. 12, § 11I.

In count III Burke sought recovery under the MCRA, alleging that the building inspector interfered with his property rights by means of economic coercion. This claim is premature; thus, we need not reach the merits of Burke's allegation. As we stated above, Burke failed to pursue the administrative remedies available to him under G. L. c. 40A, §§ 8, 17. We cannot predict whether the building inspector or the town would have granted Burke's building permit application had he opted to submit one. The town may well determine the property is buildable. Without an actual decision from the building inspector or the town, it is impossible to determine whether the building inspector interfered with Burke's property rights in violation of the MCRA. Accordingly, Burke's MCRA claim is premature and was properly dismissed.

Judgment affirmed.

      Materials in the record also refer to this official's title as building commissioner. The complaint sued the building inspector in an official capacity only.

      We note that in an earlier cause of action (Burke I ), Burke sued the town and others in connection with the property. In Burke I, the judge denied Burke's motion to amend his complaint, which sought to add a declaratory judgment claim that the property was buildable and add constitutional claims against the town and its building inspector. Burke both appealed the denial (see our docket no. 17-P-1016) and commenced a new three-count complaint asserting similar claims against the town and the building inspector. That three-count complaint is at issue in this appeal.

      The defendants argue that count I is precluded by res judicata. We need not reach that argument, as we have affirmed the dismissal of count I on jurisdictional grounds.

      On appeal, Burke raised no argument regarding count II; thus, we deem it waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Burke also waived his claim in count III against the building inspector under 42 U.S.C. § 1983. Accordingly, the only remaining claim in count III is against the building inspector under the Massachusetts Civil Rights Act.

      The defendants argue that like count I, count III is precluded. As before, we do not reach the preclusion argument because we affirm the dismissal on another ground.

      We deny the defendants' request for appellate attorney's fees and double costs.


text:
    COMMONWEALTH v. Jose David BENITEZ.
    17-P-1151
    Appeals Court of Massachusetts.
    Entered: November 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Jose David Benitez, was convicted of one count of assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI) and one count of mayhem. On appeal, the defendant contends that (1) the judge erred in allowing two lay witnesses to identify the defendant from surveillance images, and (2) the convictions for ABDW-SBI and mayhem are duplicative. The Commonwealth concedes, and we agree, that the convictions are duplicative, and thus the case must be remanded for resentencing. We otherwise affirm.

Background. On the night at issue, the victim was working as a security officer at the El Corral restaurant and bar in Chelsea. Around 11:30 p.m., three men approached the front door of the establishment. The victim recognized one of them as a patron whom he had ejected from the bar earlier that evening. As they approached, the victim advised that they could not enter and asked them to "[p]lease leave." They started to walk away, but one of the three men quickly returned, raised his arm, and struck the victim with a machete. The victim blocked the machete with his left arm. The attack caused the victim to undergo lengthy surgery at Massachusetts General Hospital to reattach his arm, and caused permanent damage to his arm. The incident was captured on surveillance video, which was admitted in evidence and played for the jury at trial.

During the investigation into the attack, Chelsea police officers showed still images from the surveillance video to Elizabeth Granadeno, the former wife of one of the defendant's companions. She recognized her former husband and the defendant from the images. She identified the defendant as "David," whom she had known for many years as they came from the same village and attended the same grade school in El Salvador.

In addition, Chelsea police detectives went to the defendant's apartment in Chelsea approximately one week after the attack. There, they found a pay stub from the "Tasty Burger" restaurant, "with Mr. Benitez's name on it," in the defendant's bedroom. The detectives proceeded to the Tasty Burger in Boston, spoke with the manager, Gabriel Good, and showed him some photographs including the still images from the surveillance video. Good identified the person in the still images as "David," who had worked as a cook at Tasty Burger for two or two and one-half years. Good identified the defendant at trial as the "David" who had worked at Tasty Burger. Also at trial, the director of human resources at Tasty Burger identified the defendant as "David Benitez," a former employee at Tasty Burger.

Discussion. 1. Lay witness identification. The defendant claims that the identification opinion testimony from Granadeno and Good usurped the jurors' role as fact finder. The claim is unavailing. In determining whether a lay witness's identification of a person appearing in a photograph or video is admissible, courts consider a variety of factors including: the quality of the images; the level of familiarity of the witness with the person depicted in the video; and whether the suspect was disguised in the video or has altered his appearance since the time of the crime. Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325-326 (2000). These factors "distill to the following: 'A witness's opinion concerning the identity of a person depicted in a surveillance photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.' " Id. at 326, quoting United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984). "Put another way, 'such testimony is admissible ... when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess ....' " Pleas, supra at 326-327, quoting United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995).

Here, the factors weighed in favor of admitting Granadeno's and Good's identifications. First, the clarity of the still images is somewhat grainy. Moreover, the still images depict the defendant wearing a baseball cap, which covered the top of his hair. In addition, one image depicts the defendant's profile, while the other depicts most, but not all, of his face. The images also came from a camera facing downward toward the defendant and victim. See Pleas, 49 Mass. App. Ct. at 325, quoting Jackman, supra at 5 (lay opinion testimony may be admitted if photograph is neither "so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification"). These factors -- the quality of the images, the camera angle that captured the images, the coverage of the defendant's head, and the witnesses' intimate familiarity with the defendant -- make it more likely that they are in a better position than the jury to correctly identify the defendant from the photographs. See Pleas, supra at 325-326. Thus, the judge did not err or abuse her discretion in admitting the identifications of the defendant.

2. Duplicative convictions. The defendant also claims that his conviction of ABDW-SBI is a lesser included offense of his conviction of mayhem (second theory). The Commonwealth concedes the issue, and we agree. See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 702 (2015) ; Commonwealth v. Forbes, 86 Mass. App. Ct. 197, 202-203 (2014).

On the indictment charging the defendant with ABDW-SBI, the judgment is reversed, the verdict is set aside, and that indictment is to be dismissed. On the remaining charge, the conviction is affirmed but the matter is remanded for reconsideration of the sentence; the judge may, in her discretion, impose a new sentence. See Coutu, 88 Mass. App. Ct. at 703-704. See also Commonwealth v. Valliere, 437 Mass. 366, 371-372 (2002).

So ordered.

Reversed, verdict set aside, and indictment dismissed in part; affirmed and remanded in part.

      The video from the incident shows the defendant speaking to the victim, walking away, quickly returning, and striking the victim with the machete.

      This panel has viewed the videotape. See Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011) (appellate court is in same position as trial court in reviewing videotape and will take independent review of documentary evidence).


text:
    SOMERVILLE POLICE DEPARTMENT v. Curran C. CHUNN.
    18-P-396
    Appeals Court of Massachusetts.
    Entered: November 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Curran C. Chunn, appeals from a decision and order of the Appellate Division of the District Court Department affirming a District Court judge's findings that the defendant was responsible for two traffic citations. We affirm.

Background. On two occasions, October 1, 2015, and October 27, 2015, Somerville police Officer Robert Hickey was in the process of a motor vehicle stop when he noticed a different motor vehicle, registered to the defendant, pass by with an expired inspection sticker. On one of the occasions, Hickey was "walking back to [his] cruiser." On the other occasion, Hickey had "just exited [his] vehicle when [he] was approaching [the unrelated motor vehicle offender] that [he] had stopped at the time." On both occasions, Hickey wrote the citation on the day he observed the defendant's vehicle; Hickey "mail[ed] out those citations" for the expired inspection sticker offense to the defendant at a date or time not specified. The Commonwealth acknowledges that Hickey has a practice of mailing traffic citations for "non-speeding" traffic infractions, "unless [the infraction] rises to the level of a severe safety issue." In addition, Hickey testified that on each occasion he "could not give [the citation] to the vehicle owner." Hickey also testified that he did not attempt to signal the defendant to pull over on either date, due to "the speeds he was going." The hearing judge found that Hickey could not stop the defendant's motor vehicle at the times it passed by him.

Discussion. On appeal, the defendant argues that G. L. c. 90C, § 2, required Hickey to give the citations to the defendant "in-hand" at the time and place of the alleged violation, and that his failure to do so requires dismissal of the citations.

General Laws c. 90C, § 2, the "no-fix" law, requires police officers assigned to traffic enforcement duty to "record the occurrence of automobile law violations upon a citation" and "give a copy of the citation to the violator at the time and place of the violation." In this case, it is undisputed that the defendant did not receive the citation at the time and place of the violation. It is the police department's burden to demonstrate that one of the statute's three justified exceptions to this requirement applies. Commonwealth v. O'Leary, 480 Mass. 67, 70 (2018), citing Commonwealth v. Mullins, 367 Mass. 733, 734-735 (1975).

The police department argues that the first exception, "the violator could not have been stopped," applies in this case. See G. L. c. 90C, § 2. During the hearing, the judge agreed and found that, on both occasions, the defendant could not have been stopped. To the extent that the defendant challenges the factual finding, we review findings of fact for clear error and consider a factual finding clearly erroneous "only if 'on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.' " Davenport v. Broadhurst, 10 Mass. App. Ct. 182, 185 (1980), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). The judge did not commit clear error in finding that the defendant could not be stopped.

The defendant also challenges what the police department concedes is Hickey's general practice of mailing citations for "non-speeding" offenses. While we agree that such a practice is contrary to G. L. c. 90C, § 2, and should not be condoned, that argument is beside the point in light of the express factual finding that Hickey could not have given a copy of the citation to the violator at the time and place of the violation.

Decision and order of Appellate Division affirmed.

      The record does not indicate which series of events occurred on October 1, 2015, and which occurred on October 27, 2015.