text:
    ADOPTION OF DALILA (and two companion cases ).
    17-P-314
    Appeals Court of Massachusetts.
    Entered: February 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Peter and Adoption of Anne. The children's names are pseudonyms.

   The mother and the father of Dalila, Peter, and Anne each appeal from decrees of the Juvenile Court terminating their parental rights to the three children. We affirm.

Discussion. 1. Scope of review. "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 from 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, supra at 515. The two inquiries "are not separate and distinct, but 'reflect different degrees of emphasis on the same factors.' " Ibid., quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975).

Before terminating parental rights, the judge is required "to 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. Ibid. "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).

2. The mother's appeal. a. Current unfitness. The mother argues that the judge's finding of her unfitness was not supported by clear and convincing evidence in that none of the judge's findings concerned any current "grievous shortcomings" that would put the children's welfare at hazard. Adoption of Greta, 431 Mass. 577, 587 (2000), quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).

While a judge cannot rely on stale information as a rationale for a finding of current parental unfitness, "prior parental conduct is deemed relevant." Adoption of Jenna, 33 Mass. App. Ct. 739, 744 (1992). "The judge could properly consider past parental conduct as relevant to the issue of current parental fitness where the conduct was not too remote, especially where the evidence supported the continuing vitality of such conduct." Adoption of Larry, 434 Mass. 456, 469 (2001).

The evidence clearly and convincingly supported the judge's finding of the mother's current unfitness. The judge found that the mother repeatedly subjected the children to serious neglect and domestic abuse. See G. L. c. 210, § 3(c )(ii), (ix). The mother repeatedly exposed her children to trauma and was resistant to utilizing assistance. The children are especially sensitive to noise and fighting as a result of their earlier experiences of trauma. The two older children deeply distrust the mother (and the father) after years of continuous emotional abuse and neglect. All of the children have developed special needs and they fear returning to the mother's care. See G. L. c. 210, § 3(c )(iv), (vii).

The judge properly relied on the mother's past behavior toward the children, as its effects are still present and the mother exhibits a continuing inability to adequately address her personal issues. See Adoption of Larry, supra ("[T]he mother has not shown that the judge was clearly wrong in finding that what she calls 'stale' information was essentially still quite fresh"). Despite years of services, the mother continues to have experiences of "overexcitement" and does not recognize when her voice is raised. Despite her mental health hospitalizations in high school and "sensitiv[ity] to spirits," the mother does not believe that she has psychological needs and is resistant to receiving services. While the mother (and the father) showed some improvement in their parenting abilities after the children's removal, the children's behavior and development deteriorated with increased visitation time.

The mother may be dissatisfied with the judge's weighing of the evidence and her credibility determinations; however, "[w]e see no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). The mother's past shortcomings, in addition to her unresolved issues that render her unable to parent her children, firmly support the judge's determination of unfitness.

b. The mother's cognitive limitations. The mother contends that one particular subsidiary finding-that the absence of developmental disability services did not compromise her ability to parent-is clearly erroneous. Specifically, the mother claims that the judge ignored the clinical requirements that made her eligible for services and instead selectively relied on the mother's employment history.

The mother has not demonstrated that the judge's finding was clearly erroneous. 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 from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

In making the challenged finding, the judge considered the conflicting evidence, including the testimony of the mother's expert, Thomas F. Carr, that the mother required, yet did not receive, appropriate services; the fact that the Department of Developmental Services (DDS) accepted the mother as a client; the mother's personal, educational, mental health, and employment history; and the fact that the "[m]other has served, and continues to serve, in responsible caretaking positions, without having had specialized training addressing her alleged disability." Additionally, the mother demonstrated a capacity to utilize some of the nonspecialized services, such as home-based parenting support, that she did receive from the Department of Children and Families (DCF). In the context of the evidence as a whole, the finding was "clear ... [and] amply supported by the record," Care & Protection of Martha, 407 Mass. 319, 328 (1990), and we are not persuaded that the judge erred. See Custody of Eleanor, supra.

Alternatively, the mother contends that by failing to provide specialized services to address her cognitive limitations, DCF violated its mandate to provide reasonable efforts to preserve family integrity. See Adoption of Ilona, 459 Mass. at 61 ("Where a parent ... has cognitive or other limitations that affect the receipt of services, the department's duty to make reasonable efforts to preserve the natural family includes a requirement that the department provide services that accommodate the special needs of a parent" [emphasis supplied] ).

The judge was not bound to find that DCF failed to make reasonable efforts. The mother received years of services tailored to meet her needs. Moreover, DCF's "obligation to work with the mother was contingent upon her own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services." Adoption of Daisy, 77 Mass. App. Ct. 768, 782 (2010), quoting from Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001). The mother, however, resisted addressing her mental health issues and did not see a psychiatrist for several years. Her delay in utilizing recommended services undermines the mother's argument.

DCF surely paid insufficient attention to the mother's cognitive limitations. Although the lead social worker helped the mother apply for DDS services, the social worker did not know what services DDS might have offered and failed to follow up on the issue. However, other than criticize DCF's parenting plan for providing inadequate services and suggesting "specific programs to deal with people with developmental delays," the mother did not show what additional services she could have obtained from DDS or how they might have improved her parenting abilities more than the tailored services that DCF did offer. Moreover, even "[a] determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest." G. L. c. 119, § 29C, as appearing in St. 2008, c. 176, § 87. See Adoption of Ilona, supra. We discern no clear error or abuse of discretion in the judge's determination that the mother was unfit notwithstanding the absence of services to specifically address her alleged cognitive limitations.

c. Remaining statutory factors. The mother contends that the evidence does not support the judge's application of G. L. c. 210, § 3(c )(ix), and that the judge must have improperly relied on the children's out-of-court statements, which were admitted only for the children's state of mind, to find evidence of ongoing abuse and neglect. We disagree.

The turmoil in the parents' relationship is documented through the observations of social workers, a police officer, and the mother's own testimony. DCF removed the children from the parents' home for allegations of abuse and neglect three times, on August 13, 2011, November 16, 2011, and in October, 2012. Multiple G. L. c. 119, § 51A, reports document the repeated abuse and neglect of the children. See Adoption of Rhona, 57 Mass. App. Ct. 479, 484 (2003). The mother (and the father) consistently failed to meet the children's basic health and hygiene needs. The judge acknowledged but did not credit the parents' denials of domestic violence. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984) (credibility determinations are within judge's discretion). The evidence was sufficient for the judge to apply G. L. c. 210, § 3(c )(ix), based on repeated instances of neglect and the children's exposure to domestic violence.

The mother further contends that the judge erred in applying G. L. c. 210, § 3(c )(vii), based solely on her finding that the children had bonded with their respective caregivers. In this regard, the judge relied upon the children's "strong bonds with their foster parents that the [c]hildren wish to become permanent" as one of the reasons for terminating the mother's parental rights. "Although the bonding of a child with foster or adoptive parents is not a dispositive consideration, it is a factor that has weight in the ultimate balance." Adoption of Nicole, 40 Mass. App. Ct. 259, 262-263 (1996).

When the separation between the foster parent and the child becomes "a decisive factor, a judge would be bound in findings to describe the nature of the bonds formed, why serious psychological harm would flow from the severance of those bonds, what means to alleviate that harm had been considered, and why those means were determined to be inadequate." Adoption of Rhona, 57 Mass. App. Ct. at 492, quoting from Adoption of Katharine, 42 Mass. App. Ct. at 30-31. However, this is not a case where the judge's determination is solely based on the children's bonding with the foster parents. Rather, it was one of many factors supporting her ultimate conclusion. Compare Adoption of Rhona, supra ("The judge relies on the bond between Rhona and her foster parents as a significant basis for his determination").

The judge properly considered the children's development while living with the parents and contrasted it with the children's development after removal. See Adoption of Kimberly, 414 Mass. 526, 530-531 (1993). While the mother (and the father) "have not been able to foster a basic feeling of trust and security in the [c]hildren that is necessary for their development," each child's welfare greatly improved in the care of their foster families.

The judge found that security is essential for each of the children's welfare and development. The judge credited the testimony of the forensic evaluator that Peter could "not cope with possibility of losing his secure attachment to his foster parents." If Dalila and Anne were to be returned to the parents' care, the transition would have to be gradual, "possibly involving ... an intermediate, 'neutral,' placement." The guardian ad litem testified that, if returned to the parents' care, Dalila and Anne would need "very intensive services" for "an unspecified period of time." Given the children's elevated needs, the judge did not err in considering the psychological impact to the children of removal from their foster placements.

d. Conclusion. In considering the pattern of abuse and neglect as well as the progress the children have made since leaving the home, the judge did not abuse her discretion in finding the mother unfit and that the best interests of the children would be served by terminating the mother's parental rights.

3. The father's appeal. The father contends that he should not have been found unfit because the evidence does not clearly and convincingly establish that his parenting put the children's welfare, particularly Dalila's, at hazard. The father also argues that his plan to hire a nanny was reasonable, and the judge erred in rejecting it.

Although the father demonstrated improvement in his parenting abilities, after careful evaluation of the record and the judge's conclusions, we are satisfied that the judge did not err in finding the father unfit. Most of the factors supporting the finding of the mother's unfitness-including the inability to maintain a clean, safe home, the lack of care for the children's basic health and hygiene, and domestic violence-equally reflect on the father's shortcomings as a parent. All of the children, including Dalila, have heightened needs that the father (and the mother) are unable to meet. The father allowed the children to suffer abuse and neglect for years, and he makes no claim of cognitive limitations.

The judge was entitled to give little weight to the father's proposal to hire a nanny. The father has a strenuous work schedule. In the past, he had not been able to comply with the condition that the children not be left alone with the mother, and the judge could properly rely on this conduct to assess the father's current fitness. DCF had previously approved the hiring of a nanny as a way for the father to work around the mother's parental unfitness, but the mother's resistance thwarted the attempt. Returning the children to the father would effectively amount to returning them to the mother's care. The judge could reasonably conclude that the employment of the nanny was not a viable option and that the father had no realistic plan to care for any of the children.

The father also contends that DCF's mismanagement of the case should be a mitigating factor negating a determination of unfitness. While the delivery of services in this case was not perfect, even if the judge had considered DCF's handling of the case as a mitigating factor, which she was not required to do, it would not undermine the ultimate conclusion that the father was and would remain unfit and that terminating his parental rights was in the best interests of the children. We discern no error or abuse of discretion.

Decrees affirmed.

      All three children have been diagnosed with posttraumatic stress disorder and have substantial emotional needs. Anne also has physical disabilities, and consistency of care is extremely important for her health and development. Dalila and Peter have developmental delays and special educational needs.

      Since 2013 through the time of trial, the mother worked two hours per day as a certified home health care aide without receiving any complaints about her work performance. To become a personal care aide, the mother attended nonspecialized classes and received a certificate of completion.

      "[T]he court ... shall determine whether [DCF] or its agent, as appropriate, has made reasonable efforts prior to the placement of a child with [DCF] to prevent or eliminate the need for removal from the home." G. L. c. 119, § 29C, as appearing in St. 2008, c. 176, § 87. See Care & Protection of Walt, 478 Mass. 212, 220-221 (2017).

      DCF provided early intervention services to work with the mother in caring for Anne as an infant; an intensive home-based counsellor to come into the home two or three times per week to assist the mother with parenting skills, supervising the children, and making medical appointments; help in applying for Section 8 housing assistance and services from DDS; and a psychiatrist.

      Watertown police responded to a neighbor's report. The mother admitted to drinking six beers and had blood alcohol content of 0.158 percent. Anne had been left unattended in her carrier. Peter, then three years old, was wandering about the apartment, while Dalila, then five years old, was "hysterically crying." Officers sent Dalila to the hospital for a possible head injury. Multiple mandated reporters filed G. L. c. 119, § 51A, reports alleging physical abuse of Dalila by the mother and neglect of all three children.

      DCF social worker Laurie Winn visited the mother's home and found three year old Peter and five month old Anne home alone. The mother was absent for thirty minutes. Winn then filed a 51A report against the mother, and the children were removed from the home and placed in foster care that same day. DCF later discovered that the mother refused to work with the nanny and that the nanny had stopped working with the family.

      On one occasion police officers found the apartment in "complete disarray with various items strewn about the house including numerous soiled diapers on the floor, trash, clothing, and other pieces of furniture tipped over." On another occasion, "food was largely absent." The children had "significant dental problems," and "most of [Dalila's] top teeth had been pulled, and many of the remaining ones had been capped."

      The judge noted, and we agree, that the term "unfit" is not meant to reflect a moral judgment, but rather an assessment of a parent's ability to meet the basic needs of a particular child or children.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Anthony D. WALCOTT.
    17-P-461
    Appeals Court of Massachusetts.
    Entered: February 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of armed assault with intent to rob, assault and battery by means of a dangerous weapon, assault and battery, use of tear gas in the commission of a crime, resisting arrest, and malicious destruction of property. On appeal, he claims that there was insufficient evidence to support three of his convictions and that a substantial risk of a miscarriage of justice resulted from the admission of lay opinion testimony and from the jury instructions. We affirm.

1. Sufficient evidence. The defendant claims there was insufficient evidence to support the "dangerous weapon" elements of armed assault with intent to rob and of assault and battery by means of a dangerous weapon, and to support his conviction of the use of tear gas in the commission of a crime. We disagree.

"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' " Commonwealth v. Johnson, 91 Mass. App. Ct. 296, 308 (2017), quoting from Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999). Rather, the relevant "question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1970).

Because the statutes at issue do not define "dangerous weapon," we employ the common-law definition for our analysis. That is, "dangerous weapons include those objects that are dangerous per se-'designed and constructed to produce death or great bodily harm' and 'for the purpose of bodily assault or defense,' Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) -as well as those objects that are dangerous as used-items that are not dangerous per se but 'become dangerous weapons because they "are used in a dangerous fashion." ' " Commonwealth v. Wynton W., 459 Mass. 745, 749 (2011), quoting from Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).

Here, the weapon at issue was pepper spray, and the question is whether there was sufficient evidence that it is dangerous per se. In Commonwealth v. Lord, 55 Mass. App. Ct. 265 (2002), we held that "[w]eapons regarded as dangerous per se, such as firearms, daggers, stilettos and brass knuckles, are instrumentalities 'designed and constructed to produce death or great bodily harm,' and are classified in this manner 'because they are designed for the purpose of bodily assault or defense.' " Id. at 269, quoting from Appleby, supra. With that in mind, we focused our analysis on the design of the device and its intended purpose and "whether it [was] capable of causing death or the requisite degree of bodily harm." Lord, supra. Although the quantum of the requisite harm has enjoyed a variety of labels, at bottom, we have held that the harm must be "calculated to interfere with the health or comfort of the [victim]. Such hurt or injury need not be permanent, but must ... be more than merely transient and trifling." Id. at 269 n.7, quoting from Commonwealth v. Farrell, 322 Mass. 606, 621 (1948).

With that analysis in Lord, we held that "old style mace" was dangerous per se. Lord, supra at 269, 270. While we expressly left open the question whether pepper spray was dangerous per se, id. at 270 n.10, we now answer that question in the same manner, for many of the same reasons. Like conventional mace, a pepper spray canister is "dangerous per se because it was designed for the sole purpose of bodily assault or defense and was constructed to inflict serious bodily harm through incapacitation, and because, in these circumstances, the defendant used it in a manner consistent with its design." Id. at 269-270.

Contrary to the defendant's claim, the fact that the verdict in Lord (unlike in this case) was supported with expert testimony on the properties and physiological effects mace has on a person is of no legal significance because the evidence here was still sufficient to establish pepper spray as dangerous per se. In fact, because the evidence supported a rational conclusion that the pepper spray was designed and had an intended purpose to inflict the requisite degree of bodily harm, it was permissible for the jury to conclude it was dangerous per se. See ibid.

Similarly, the victim's testimony, which the defendant views as minimizing her injuries, does not affect our conclusion that the evidence established that pepper spray is dangerous per se. Even if the victim "did not actually suffer serious bodily injury, something we need not decide, the [pepper spray] was nonetheless inherently dangerous because of its capacity to inflict serious harm." Id. at 271 (footnote omitted), citing Appleby, 380 Mass. at 307 n.6. Indeed, "[t]he law need not wait until the instrument actually does cause serious bodily harm in order to classify the weapon as dangerous." Appleby, supra at 307.

2. Jury instructions. For the first time on appeal, the defendant claims the judge erred in his jury instruction on dangerous per se, and that he failed to instruct the jury on dangerous as used. We disagree.

Apart from his sufficiency of the evidence claim, the defendant also claims that the judge improperly removed from the jury's consideration the element of dangerousness when he instructed the jury that pepper spray was a dangerous weapon. However, in Commonwealth v. Tarrant, 367 Mass. 411 (1975), the Supreme Judicial Court held that where it appears that the "instrumentality is ... designed to produce death or serious bodily injury," the instrumentality qualifies as dangerous as a matter of law. Id. at 416. In contrast, "where the instrumentality is not per se harm-inducing it is a question of fact for the jury whether the circumstances surrounding the presence of the instrumentality suggest its latent character as dangerous." Ibid. See Appleby, 380 Mass. at 303-304. Because dangerousness per se was a question of law, the judge did not err in instructing as he did, and thus there is no risk that justice miscarried.

The defendant also claims the judge failed to instruct the jury on the required factors for them to assess whether pepper spray was dangerous as used. We disagree. First, the defendant did not request such an instruction. Second, the judge was not required to sua sponte instruct in this manner given that the jury had already been told pepper spray was dangerous per se. Third, the gravamen of the defense was that the defendant was not the assailant and the can of pepper spray found in the defendant's vicinity was not employed in the attack. In fact, the defense argued that the victim's injuries were inconsistent with someone who had been sprayed with pepper spray. Had the judge instructed on dangerous as used, it would have conflicted with the defense. See Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 464 (2004). There was neither error nor an abuse of discretion, and thus no risk that justice miscarried.

3. Opinion testimony. Also for the first time on appeal, the defendant claims that witnesses improperly provided their opinions on the meaning of the phrase "run what you got," and as a result gave an opinion as to the ultimate issue of his intent to rob. We disagree.

Here, two police officers testified that the phrase in question was meant as a demand for the person to whom it was directed to turn over his or her belongings. However, the officers' testimony was at best cumulative of what the victim herself described it meant to her, i.e., that the assailant wanted her to "give him what [she had]." It was certainly permissible for the victim to explain the manner in which the assailant attempted to rob her and its effect on her. In conjunction with the victim's testimony, both officers opined as to the meaning of a phrase that may not have been obvious to the jury. As in other instances, the witnesses in this case merely explained the significance and meaning of the evidence. See Commonwealth v. Anderson, 425 Mass. 685, 687 & n.5 (1997) ; Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 627-628 (2004). See also Commonwealth v. Henderson, 434 Mass. 155, 159-161 (2001). Neither officer opined on the defendant's guilt.

Judgments affirmed.

      The defendant, quoting from G. L. c. 269, § 10C, also claims there was insufficient evidence to support his conviction of the use of "tear gas cartridges or any device or instrument which contains a liquid ... designed to incapacitate for the purpose of committing a crime." We disagree. As we held above, pepper spray is designed to incapacitate, and the canister that the defendant used contained "CS TEAR GAS" and listed the "ACTIVE INGREDIENTS" as "CS Military Tear Gas." The claim is without merit.


text:
    COMMONWEALTH v. Paul A. MARRAMA.
    17-P-716
    Appeals Court of Massachusetts.
    Entered: February 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Paul A. Marrama, appeals from the denial of a motion for a new probation violation hearing, claiming that he was denied the effective assistance of counsel and that the judge erred in denying the motion without holding an evidentiary hearing. We affirm.

Background. The defendant was indicted on two counts of rape of a child and one count of resisting arrest. On July 16, 2012, he pleaded guilty and was sentenced as follows: three to four years in State prison for one count of rape, a concurrent thirty-day sentence to the house of correction for the resisting arrest charge, and five years' probation for the second count of rape, to be served on and after the committed sentence. The terms and conditions of probation included, among other things, that the defendant refrain from illegal drug or alcohol use. The defendant was released from State prison on July 1, 2014. Following his release, the probation department issued notices of violations of probation on three separate occasions. Only the third violation is at issue in this appeal. That notice alleged that the defendant was using opiates and had overdosed on March 4, 2015.

At the probation violation hearing, the Commonwealth presented three witnesses: the defendant's mother, his sister, and the rape victim's father. The judge found the defendant in violation of his probation, revoked the probation, and sentenced him to three to four years in State prison. The defendant filed a motion to reconsider, which was denied. In February of 2017, the defendant filed a motion for a new probation violation hearing. A different judge denied the motion without a hearing. This appeal followed.

Discussion. 1. Ineffective assistance of counsel. The defendant contends that his attorney was ineffective for (1) failing to ascertain that two witnesses at the hearing were related to the rape victim, (2) failing to cross-examine the witnesses regarding their bias, and (3) failing to properly advocate at the hearing and at sentencing.

While the defendant "is entitled to the effective assistance of counsel at a probation violation hearing whenever imprisonment may result," Commonwealth v. Pena, 462 Mass. 183, 188 (2012), he has not met his burden of proving that defense counsel's representation was constitutionally inadequate and prejudicial. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). There is no merit to the defendant's claim that defense counsel was not aware of and did not adequately research the witnesses' relationship to the victim. When the victim's father was called to the witness stand, the probation officer said in open court, "I'd like the victim's father ... to be called first." After some discussion, the probation officer said, "Your Honor, this is ... the victim's father." Defense counsel then objected, indicating he was paying close attention to the proceedings. Further, when asked what his relationship was to the defendant, the witness stated that he had been married to the defendant's sister for eight years. In addition, the other two witnesses were identified during the hearing as the defendant's sister and mother. Defense counsel's affidavit that he was unaware of the relationship of the witnesses to the victim is belied by the record.

As to the allegation concerning the failure to cross-examine the witnesses as to possible bias, this was, as the judge found, a rational, tactical decision, as it could have alienated the witnesses and made matters worse. See Commonwealth v. Kolenovic, 471 Mass. 664, 675 (2015). In fact, the testimony of both the victim's father and the defendant's sister appeared to show sympathy for the defendant and concern for his sobriety. While that strategy ultimately failed, a strategic decision does not constitute ineffective assistance of counsel because it was unsuccessful. See Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016). Moreover, such cross-examination would likely have not changed the outcome. See Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993).

Finally, the defendant claims that his counsel was ineffective because he failed to properly advocate for him during the hearing and at sentencing. Defense counsel focused on the defendant's substance use problems at sentencing. This was not a manifestly unreasonable position to take, particularly since the violation was based on a drug overdose. In ruling on the motion, the judge noted efforts undertaken by defense counsel which demonstrated his advocacy. Defense counsel also referred to the defendant's sex offender status and stated that he was "somewhat aware" of the circumstances which led to the guilty pleas, which indicate his familiarity with the case. The judge properly exercised his discretion in denying the motion for a new probation violation hearing.

2. Denial of evidentiary hearing. The defendant argues that the judge should have conducted an evidentiary hearing on his motion for a new probation violation hearing. Because the defendant did not raise a substantial issue, supported by a significant evidentiary showing, an evidentiary hearing was not required. See Commonwealth v. Scott, 467 Mass. 336, 344 (2014) ("A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a substantial issue that is supported by a substantial evidentiary showing" [quotation omitted] ). There was no error.

Order denying motion for new probation revocation hearing affirmed.

      The defendant was reprobated on the first two probation violations. The new terms ordered the defendant to enter and complete the AdCare program.

      During the defendant's sentencing, the victim's father testified that he wanted the defendant to be sober and attend "AA classes."

      These efforts included moving to sequester witnesses, arguing the lack of medical records and eyewitnesses to the overdose, and making appropriate objections.


text:
    GUARDIANSHIP OF ETTA.
    17-P-737
    Appeals Court of Massachusetts.
    Entered: February 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a decision by a judge of the Juvenile Court awarding guardianship of the child to the father's former girl friend (guardian). The mother asserts that the judge's findings do not support a determination, by clear and convincing evidence, of her unfitness and, further, that the judge erroneously declined to award the mother visitation, leaving that to the discretion of the guardian. We affirm.

1. Sufficiency of the evidence. The parties agree that when the judge made her initial findings, she indicated that these were "summary in nature" and that she would expand them if an appeal was taken; however, neither party filed a motion for additional findings. Accordingly, the dispute centers around whether the judge's summary findings are nevertheless sufficient to support the judge's determination that the mother is currently unfit and that an order of visitation would not further the child's best interests. The mother asserts they are not. She contends the judge applied the wrong evidentiary standard, relied on stale evidence, and failed to analyze how the mother could meet the child's needs. We disagree.

At the outset, we are not persuaded that the judge's failure to delineate the applicable evidentiary standard in her findings undermines them. We presume that she applied the correct legal standard. Cf. Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412 (1996) (when single justice does not state standard of review, court presumes he used correct one), and cases collected. Therefore, we turn our discussion to that standard.

One petitioning for guardianship of a child must prove the legal parent of the child is currently unfit by clear and convincing evidence. R.D. v. A.H., 454 Mass. 706, 712 (2009). The judge, in determining unfitness, must "enter specific and detailed findings demonstrating that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 801 (1993) (quotation omitted). These findings are owed deference when, as is the case here, the judge observed the witnesses testify and thereafter made determinations of credibility and fact which find support in the record. Id. at 800. Our review is for clear error or an abuse of discretion, accepting all facts found by the judge unless they are clearly erroneous. See id. at 799 ; Care & Protection of Yetta, 84 Mass. App. Ct. 691, 696 (2014).

Here, the judge found that the child suffered extreme trauma and abuse in the mother's home, mostly at the hands of the mother's boy friend. The child "had no stability in her life, and lived in extreme fear." This finding is supported by the child's uncontroverted testimony, which the judge credited, regarding the horrific instances of abuse the child suffered while in the mother's care. The mother also admitted to the abuse and to leaving the child alone with this man even after the child reported the abuse. The mother asserts this occurred years earlier and has no bearing on her current fitness. We are not persuaded.

Contrary to the mother's assertions, the judge did not improperly rely on stale evidence. See Adoption of Carla, 416 Mass. 510, 517 (1993). "[P]rior history does have prognostic value." Ibid. Evidence of past parental behavior is particularly compelling when it supports a continuing pattern of neglect. See Adoption of Larry, 434 Mass. 456, 469 (2001).

Concerning here is the mother's continuing pattern of putting her needs before the child's. See Adoption of Arthur, 34 Mass. App. Ct. 914, 915 (1993). The judge found that, despite the child's traumatic history and fear of the mother, the mother "states that [the child's] wishes are not important, and that her role as parent commands the return of her daughter to her." See ibid.

While the judge's findings are sparse, the judge found the child's testimony, which included testimony that the mother does not listen to the child, puts her own concerns before the child's, and makes the child uncomfortable, "compelling." For example, the judge found that the mother insists that the child engage in therapy with the mother because she "made some strides with therapy herself," and that such insistence disregards the child's need for "self-preservation." The judge noted that, contrary to the mother's claims, the child's refusal to attend therapy is not borne from "adolescent stubbornness" or the guardian's interference but rather is a "direct result of the fear and trauma she suffered in her mother's care."

To this end, the judge properly considered the child's "particular needs and circumstances," and "the effect on [the] child of being placed in the custody of [the mother]." Considering that "the child has suffered trauma and fear while in the custody of her parent, has attained a mature age, and has unequivocally nominated a person other than her parent to be her guardian," the judge determined that "placing [the child] in [the m]other's care would be detrimental to her welfare." In such circumstances, the judge gave due weight to the child's wishes, Adoption of Nancy, 443 Mass. 512, 518 (2005), and properly factored in the fact that the mother's parenting skills, even with respect to her other children, remain under investigation in an open protective service case in the mother's home State of South Carolina. Cf. Adoption of Salvatore, 57 Mass. App. Ct. 929, 930 (2003). We perceive no error.

2. Visitation. The mother contends that the judge abused her discretion in declining to enter an order of visitation after granting the guardianship. We disagree. Ordering visitation is within the discretion of the trial judge. Adoption of Ilona, 459 Mass. 53, 66 (2011). A visitation order is appropriate only when it is in the best interests of the child, and a judicial order, rather than merely relying on the discretion of the child's new guardian, is necessary to protect those interests. Id. at 63. Here, the judge did not abuse her discretion in leaving the visitation decision to the guardian. The child was adamant that she did not want to engage with the mother-a position the judge found to be borne of "self-preservation." Should time heal these deep wounds, the guardian, who the judge by her decision implicitly found has the child's best interests at heart, has the authority to decide if visitation is in the best interests of the child. Id. at 63-64. See G. L. c. 190B, § 5-209(a ), inserted by St. 2008, c. 521, § 9 ("A guardian of a ward has the powers and responsibilities of a parent regarding the ward's support, care, education, health and welfare. A guardian shall act at all times in the ward's best interest and exercise reasonable care, diligence and prudence"). We see no abuse of the judge's wide discretion. Adoption of Ilona, supra at 63.

Judgment affirmed.

      There was undisputed testimony that when the child was five, one of the mother's boy friends held the child at gunpoint. He laid her on the side of the bed, facing the wall with a sock in her mouth, and hit her every time she moved. The child reported the incident to the mother, and the mother left the child alone with the same man the next day; in retaliation for her telling the mother, he proceeded to hit the child repeatedly until his own mother intervened. See Care & Protection of Lilith, 61 Mass. App. Ct. 132, 140 (2004) (appellate court may look to undisputed evidence of domestic violence when assessing judge's determination of parental fitness).


text:
    George K. MORRIS, trustee, v. 24-26 MORELAND STREET, LLC.
    17-P-228
    Appeals Court of Massachusetts.
    Entered: February 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the 24-26 George Moreland Trust

   The plaintiff, George K. Morris, trustee of the 24-26 George Moreland Trust, claims title to the land known as 24-26 Moreland Street in the Roxbury section of Boston. Morris traces his purported interest through one of four competing chains of title, each of which begins after the Cole B. Realty Trust (the trust) acquired the land. After a bench trial, a Land Court judge held that Morris holds no interest in the property because a conveyance out of the trust upon which he relies was not authorized by the trust's beneficiaries. We affirm.

Background. This matter is now before a panel of this court for the second time, and we focus only on the proceedings occurring after the remand of the case. Morris claims title through the following series of grants: from Dorothy Essor as trustee of the trust to her daughter, Sandra Brown; from Sandra to Micah S. Williams; and, via a "release deed," from Williams to Morris. The trust declaration states that the trustee cannot act with respect to the trust estate "except as directed by all of the beneficiaries." The three beneficiaries of the trust, Ashley Essor, Brandon Brown, and Lincoln Brown, are all grandchildren of Dorothy. Lincoln and Brandon are Sandra's sons, and Ashley is Sandra's niece. The central issue during the remand trial was whether Ashley, Brandon, and Lincoln had authorized (or ratified) the conveyance to Sandra as required by the trust instrument.

The judge found that the grant from Dorothy to Sandra was not directed by the beneficiaries, was not subsequently ratified by them, and was, accordingly, invalid. The judge then determined that the property was effectively conveyed to 24-26 Moreland Street, LLC (Moreland), by deed dated July 17, 2014.

Discussion. It is undisputed that Dorothy's grant of the property to Sandra was made without any contemporaneous directive from Ashley, Brandon, and Lincoln-who apparently knew nothing about the conveyance at the time when it occurred, in November, 2010. Morris argues, however, that Ashley, Brandon, and Lincoln's testimony in this case (either at trial or in depositions) operates as a ratification of Dorothy's action.

In detailed and well-reasoned findings and conclusions, the judge correctly asserted that ratification by a principal of an agent's actions requires a showing that the principal had "full knowledge of all material facts." Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 529 (2008) (citation omitted). Based on his review of the evidence (including live testimony from Lincoln), the judge found that it was far from clear that Ashley, Brandon, and Lincoln possessed such full knowledge. As the judge explained, the beneficiaries appear to have paid no attention to the property at all, leaving all decisions to Sandra and Dorothy. Brandon, in particular, indicated that he had little interest in whether his mother's dealings resulted in maximum value to the beneficiaries for their interests. Furthermore, Ashley undermined the notion of ratification by testifying that she would have approved the conveyance to Sandra had she known about it, but only if "the same conditions were going to continue." Accordingly, the judge found, the beneficiaries' testimony that they "would" not have objected to the conveyance had they had the opportunity to do so did not amount to an affirmative ratification. Additionally, the judge noted, the beneficiaries' subsequent express authorization of the later conveyance to Moreland was directly contrary to Morris's ratification theory.

Having reviewed the record thoroughly, we see nothing in it that requires us to disturb the judge's determination that ratification did not occur. See ibid. ("Ratification is essentially a question of fact that will be reversed only if clearly erroneous"). Because the judge was correct that the trust retained the land after the purported conveyance from Dorothy to Sandra, he was also correct that the trust's subsequent grant to Moreland, with the express direction of the beneficiaries, validly conveyed the land.

Judgment after remand affirmed.

      Details regarding prior proceedings may be found in an unpublished memorandum and order issued by a different panel pursuant to our rule 1:28, dated June 15, 2015. See Morris v. Brown, 87 Mass. App. Ct. 1130 (2015). We commend the parties' efforts to narrow the issues presented on remand, and to avoid revisiting in this appeal those matters that have already been finally decided.

      In second and subsequent references we use first names to refer to Dorothy Essor, Sandra Brown, and other members of their family.

      Morris now relies on the release deed he obtained from Williams because Morris's original claim of title-running to him through Patricia Brown (Sandra's former sister-in-law)-has failed.

      By the time of the remand trial, no live claims remained against the original defendants, Fitzhur Brown (Sandra's former husband), Williams, and Tracey Hutson. During the pendency of the first appeal, Ashley, Brandon, and Lincoln removed Dorothy as trustee of the trust and named Sandra as trustee in her stead. With the express written direction of the beneficiaries, Sandra then conveyed the property to Moreland for $85,000 by deed dated July 17, 2014. Moreland was added as a defendant after the case was remanded to the Land Court, and was the sole remaining defendant at the time of the remand trial.

      The judge also decided that Morris could not benefit from language in the trust document stating that an instrument executed by a trustee of record "shall be conclusive evidence" that the trustee was "duly directed by the beneficiaries to execute and deliver the same." The judge held that this conclusive evidence language did not cure the defect in the conveyance from Dorothy to Sandra because Sandra had actual knowledge about whether the beneficiaries had directed the conveyance, which prevented her from relying on the deed. Moreover, Morris was not separately entitled to the benefit of the conclusive evidence provision because he had actual knowledge of the defect in the grant from Dorothy to Sandra at the time he obtained the release deed, having argued in his original case that this very defect was sufficient to defeat Williams's claim of title. In his brief, Morris does not claim any error in these findings.

      Morris takes issue with the judge's pronouncement that Moreland was a "bona fide purchaser for value." This, however, is a red herring. Because the grant from the trust to Moreland was accompanied by an express, written directive from all three beneficiaries instructing Sandra to make the sale, Moreland had no need to rely on the conclusive evidence provision in the trust instrument. Additionally, Morris's competing claim to title was ultimately found to be lacking. Accordingly, Moreland's principal's actual knowledge regarding the existence of this case or any of the facts asserted herein had no bearing on the extent to which the trust's deed to Moreland was effective to convey good title.


text:
    Andrea L. MCKNIGHT v. Benjamin P. FISHER.
    16-P-1574
    Appeals Court of Massachusetts.
    Entered: February 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this appeal from a judgment of divorce nisi (divorce judgment) and related orders entered by the Probate and Family Court, Andrea L. McKnight (wife), the former wife of Benjamin P. Fisher (husband), primarily challenges the aspects of the divorce judgment relating to legal custody of the parties' minor child, parenting time, child support, and attorney's fees. For the reasons set forth below, we vacate the portions of the divorce judgment relating to legal custody, parenting time, and attorney's fees, and remand for further proceedings consistent with this memorandum and order. The remainder of the divorce judgment is affirmed.

Background. The parties were married in August of 2005, and had one child together. In April of 2014, the wife filed a complaint for divorce in the Probate and Family Court. On August 1, 2014, following a hearing, a judge of the Probate and Family Court issued an order appointing a guardian ad litem (GAL) to investigate, evaluate, and prepare a report regarding the best interests of the parties' child in relation to custody and parenting time. On the same day, a pretrial notice and order issued indicating that the case may go to immediate trial if the judge determines that "one party, by failure to appear at the pre-trial conference or otherwise, will not present a case."

In August of 2014, the parties entered into a stipulation providing that the wife would have primary physical custody of the child, and the husband would have unsupervised parenting time every other weekend, along with dinner visits on Wednesday evenings. In December of 2014, the parties entered into a stipulation requiring the husband to pay base child support of $380 per week, along with additional child support equivalent to ten percent of his bonus income.

On August 5, 2015, the wife and her counsel appeared for the pretrial conference. The husband did not appear. The wife testified that the husband indicated he would not participate in the litigation. The judge credited the wife's testimony, found that the husband did not intend to present a case, and proceeded to an immediate trial on the wife's complaint for divorce (first trial). At the first trial, the judge heard testimony from the wife, admitted the GAL report as an exhibit, and instructed the wife to submit a proposed divorce judgment (proposed judgment). In her proposed judgment, the wife requested (1) sole legal and physical custody of the child, with supervised parenting time for the husband; (2) $399.69 per week in base child support, along with additional child support equivalent to twenty percent of the husband's bonus income; (3) a division of marital assets under which the parties would retain their respective retirement accounts, bank accounts, and liabilities; and (4) and a lump sum of $15,000 to cover her attorney's fees. The wife also filed a separate motion seeking $15,000 in attorney's fees on August 10, 2015.

On August 19, 2015, the husband filed a motion to vacate default and requested that the matter be set for trial if he and the wife were unable to "agree on custody or financial arrangements." On September 17, 2015, both parties and their counsel appeared for a hearing on the husband's motion to vacate. At the hearing, the husband indicated that the only issue in dispute was legal custody of the parties' child. On September 18, 2015, the judge issued an order (1) denying the husband's request to vacate on the basis that judgment had not yet entered in the case, and (2) allowing the husband's request for a new trial on the sole contested issue of legal custody.

In December of 2015, the wife filed a complaint for contempt, alleging that the husband was in arrears of his child support payments in the amount of $13,172.02. The contempt matter was thereafter consolidated with the second trial per the wife's request.

Both parties and their counsel appeared for the second trial, which commenced on December 16, 2015, and concluded on January 12, 2016, after three days of hearing. At the second trial, the judge heard testimony from both parties and the GAL. On April 21, 2016, the judge issued a divorce judgment, providing, in relevant part, that (1) the parties shall have joint legal custody; "however, if there is a dispute between the parties regarding the child's health, safety or welfare, including educational, medical and religious matters, ... the [w]ife shall have final authority to decide those matters"; (2) the wife shall have primary physical custody of the child; (3) the husband shall have unsupervised parenting time every other weekend and on Wednesday evenings until 8:30 P.M. ; (4) the husband shall not consume alcohol, narcotics, or nonprescribed medications at any time during his parenting time with the child or for twelve hours prior thereto; (5) the husband shall pay base child support of $380 per week, along with additional child support equivalent to fifteen percent of his bonus income; (6) the parties shall share the cost of the child's college education, "in accordance with their respective ability to pay at the time"; (7) the parties shall retain their respective retirement accounts, bank accounts, and liabilities; and (8) the parties shall be solely responsible for their respective attorney's fees.

On April 29, 2016, the wife filed a timely motion to alter and amend the divorce judgment pursuant to Mass.R.Dom.Rel.P. 59, which was denied on June 24, 2016. The present appeal by the wife followed.

Discussion. The wife principally argues that the judge (1) erred in ordering a new trial on the issue of legal custody; (2) improperly "modified" the "previously adjudicated" issues, including parenting time and child support; (3) abused his discretion in awarding joint legal custody and unsupervised parenting time to the husband; and (4) abused his discretion in denying the wife's request for attorney's fees. We address the wife's arguments in turn.

1. The new trial. The wife contends the judge improperly allowed the husband's request for new trial on the issue of legal custody. A judge may grant a new trial "on all or part of the issues for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the Commonwealth" and, upon such motion, may "take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions." Mass.R.Dom.Rel.P. 59(a). The decision whether to reopen the proceedings is within the discretion of the trial judge. Dominick v. Dominick, 18 Mass. App. Ct. 85, 90 (1984).

Here, the judge reopened the proceedings with respect to the sole contested issue of legal custody. The only evidence at the first trial pertaining to legal custody consisted of the GAL report, which was admitted as an exhibit, and the wife's testimony that she does "not have the ability to communicate with [the husband] on a consistent basis." Given the limited nature of that evidence, we think the judge's decision to allow additional evidence, including testimony from both parents and the GAL, was appropriate and necessary for the purpose of determining the child's best interests. See Rolde v. Rolde, 12 Mass. App. Ct. 398, 402-403 (1981) ("[I]n deciding issues involving custody, the overriding concern of the court must be the promotion of the best interests of the child[ ]," and "[t]he opportunity ... to observe and appraise both parents is particularly important in a case of this kind" [quotation omitted] ). Accordingly, we discern no abuse of discretion in the allowance of the husband's request for a new trial. Dominick v. Dominick, supra.

2. The "previously adjudicated" issues. The wife contends that the judge, in failing to strictly adopt the wife's proposed judgment, (1) improperly "modified" the "previously adjudicated" issues, including parenting time and child support, and (2) impermissibly considered evidence from the second trial when determining those issues. We disagree.

There is "a traditional policy against default judgments in domestic relations cases." Houston v. Houston, 64 Mass. App. Ct. 529, 535 n.10 (2005) (quotation omitted). The husband's failure to appear at the pretrial conference did not obligate the judge to adopt the wife's proposed judgment in its entirety. Indeed, such practice is generally discouraged. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003) ("We have criticized in the past wholesale adoption of findings proposed by one party to the litigation, and we do so again"). Moreover, none of the issues had, in fact, been "adjudicated" prior to the entry of the divorce judgment, as no judgment had yet entered in the divorce action. See Mass.R.Dom.Rel.P. 58(a) ("Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in [Mass.R.Dom.Rel.P.] 79 [a]").

We likewise discern no error in the judge's consideration of evidence from the second trial when deciding the issues of parenting time and child support. It is true that the judge's September 18, 2015, order limited the second trial to the sole issue of legal custody, and ordinarily, "once the issues are defined in a final pretrial order, they ought to be adhered to in the absence of some good and sufficient reason." Slade v. Slade, 43 Mass. App. Ct. 376, 378 (1997) (quotation omitted). However, a judge is permitted to consider an issue that has been tried with the "implied consent" of the parties. Mass.R.Dom.Rel.P. 15(b). Generally, when determining whether a judge may consider "evidence or ... legal or factual theories at trial that were not delineated in pretrial orders, courts have consistently focused on the elements of surprise and unfairness." Slade v. Slade, supra at 378-379. Here, we cannot say the judge's consideration of issues beyond the scope of the final pretrial order resulted in surprise or unfairness to the wife. The wife sought to consolidate her contempt action with the second trial, which resulted in extensive testimony regarding the parties' finances in connection with child support and other related matters. The wife called the GAL as a witness at the second trial and elicited testimony from her regarding the parenting plan. The wife also testified regarding the parenting plan, as did the husband. At no point did the wife object to the expanded scope of the second trial. Accordingly, it is apparent from the record that although these issues were not part of the final pretrial order, they were nevertheless tried with the implied consent of the parties. See Mass.R.Dom.Rel.P 15(b) ; National Medical Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 578-579 (1984) ("if the issue is tried by the ... implied consent of the parties and there is no prejudicial surprise, it is treated as if it had been raised in the pleadings without regard to whether the pleadings are amended to conform to the evidence"). We therefore discern no error in the judge's consideration of evidence from the second trial relating to issues beyond the scope of the September 18, 2015, order, including parenting time and child support.

3. Legal custody and parenting time. The wife contends that the judge's findings do not support the award of joint legal custody and unsupervised parenting time to the husband. We agree.

"Shared legal custody" is defined as "continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." G. L. c. 208, § 31, as amended by St. 1989, c. 689. Shared custody "requires two capable parents with some degree of respect for one another's abilities as parents, together with a willingness and ability to work together." Rolde v. Rolde, 12 Mass. App. Ct. 398, 405 (1981). Here, the judge found there to be "conflicting testimony" regarding the parties' "ability to co-parent the child effectively." The judge credited the GAL's testimony that the parties were unable to co-parent effectively due to the husband's "inappropriate conduct" and "vitriolic rages," including "name calling" and "swear[ing]" whenever the wife disagreed with him. The judge also credited the GAL's testimony that the husband "has a significant substance abuse history that interferes with his ability to communicate and co-parent." The judge credited the wife's testimony that sometimes the parties were able to communicate effectively, while at other times, it was "impossible." The judge acknowledged that the husband loves the child and "wants to retain the ability to participate in important decisions in the child's life"; however, the judge questioned whether the husband "has the ability to control his outbursts, rages and abusive behavior toward [the] [w]ife." The judge also credited the wife's testimony that the husband had been "physically and emotionally abusive to her." See G. L. c. 208, § 31A, inserted by St. 1998, c. 179, § 3 (judge shall "consider evidence of past or present abuse toward a parent," and there shall be presumption against joint custody if judge finds "that a pattern or serious incident of abuse has occurred"). In light of these findings, the judge's decision to award shared legal custody is not adequately supported. See Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998) (joint legal custody not appropriate where "the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict").

We observe a similar disconnect between the judge's subsidiary findings and his ultimate decision concerning parenting time. "In custody matters, the touchstone inquiry [is] ... what is 'best for the child.' " Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208, § 28. "When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health." G. L. c. 208, § 31. Here, the judge found that the wife was "legitimately concerned about [the] [h]usband's alcohol and/or drug consumption around the child." The judge found that the husband "minimized and diminished his substance abuse history." The judge credited the wife's testimony regarding "domestic violence" that occurred while the husband was intoxicated. The judge also credited the GAL's testimony that the husband "lacked insight into his behavior," "inappropriately introduced the child to women[,] and even allowed the child to sleep in bed with him and another woman." Despite crediting the GAL's testimony, the judge ultimately rejected the GAL's recommendation of supervised parenting time for the husband. To be sure, the judge was not required to adopt the GAL's recommendation. See Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006). However, the judge did not make any positive findings regarding the husband's ability to appropriately care for the child, nor did he appear to consider the husband's past abuse of the wife "as a factor contrary to the best interest of the child." G. L. c. 208, § 31A.

In sum, the judge's subsidiary findings, as they currently stand, do not support his ultimate determinations as to shared legal custody and unsupervised parenting time, and "[t]he factual basis upon which the judge" made each of those determinations "remains opaque." Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 142 (2009). With respect to the award of unsupervised parenting time, we acknowledge that, notwithstanding the deficiencies in the judge's findings, there is evidentiary support in the record for such an award. Accordingly, we remand so that the judge may make additional findings explaining the rationale for his decision regarding parenting time. With respect to the award of shared legal custody, both the judge's findings and the evidence in the record appear to weigh against such an award. "In some cases, we have directed that questions of custody ... be answered in a particular manner, because the evidence before us on appeal convincingly establishes that that result is correct." Id. at 143. While it is a close call, "[w]e do not believe that this is one of those cases" and therefore remand so that the judge may reconsider and redetermine the issue of legal custody. Ibid. This will require "careful re-examination of the facts" and "additional fact finding as necessary." Id. at 143-144. Moreover, in light of the judge's findings regarding the husband's past abuse of the wife, the judge shall, on remand, make the appropriate inquiry required by G. L. c. 208, § 31A, including, but not limited to, considering the abuse as a factor contrary to the child's best interests and determining whether the presumption against shared legal custody applies in this case. The judge may, in his discretion, take additional evidence regarding these issues on remand.

Attorney's fees. The wife argues that the judge abused his discretion in denying her request for $15,000 in attorney's fees without providing a basis for same. We agree.

A judge has broad discretion to award attorney's fees in a divorce case. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996) ; G. L. c. 208, § 38. "The factors a judge may consider include the amount of time required to prepare the case and pleadings, the complexity of the issues involved, the value of the marital property, and the spouse's ability to pay." DeMatteo v. DeMatteo, 436 Mass. 18, 39 (2002). See Goldman v. Roderiques, 370 Mass. 435, 437 (1976) (When ruling on a request for attorney's fees, "the basic factors of need and relative economic positions of the spouses" must be considered). In the present case, we are unable to determine whether the judge considered those factors, as he provided no rationale for his denial of the wife's request for attorney's fees. Accordingly, the issue of attorney's fees must be remanded for reconsideration by the judge, and findings explaining his decision.

Conclusion. The portions of the divorce judgment (1) granting the parties joint legal custody of the minor child, (2) ordering unsupervised parenting time for the husband, and (3) denying the wife's request for attorney's fees are vacated and remanded for further proceedings consistent with this memorandum and order. The judge may, but is not required to, take additional evidence with respect to the issues on remand. The remainder of the divorce judgment is affirmed. During the pendency of the remand, the judge shall issue temporary orders regarding legal custody and parenting time.

So ordered.

vacated in part; affirmed in part.

      The judge specifically directed the GAL to address several issues, including "the parenting abilities of each party," "[w]hich party appears to be the more appropriate custodial parent," "the appropriate level and manner of visitation for the non-custodial parent," and whether "either of the parties have any substance abuse and/or psychiatric or psychological problems and, if so, ... the extent of the impact of those problems on the minor child."

      The pretrial conference was later continued to August 5, 2015, by agreement of the parties.

      The wife requested child support in the amount of $866 paid "twice monthly," which is equivalent to $20,784 annually ($866 x 24) or $399.69 weekly ($20,784 / 52).

      Specifically, the wife sought to retain her "Wells Fargo, Roth IRA" and "Commonwealth of Massachusetts, State Retirement Fund," her individual bank accounts, and "any bank accounts, trusts, or other funds established for the benefit of herself or the minor child, ... including, without limitation, the R.H. McKnight Irrevocable Life Insurance Trust for the benefit of [the parties' child]." The wife proposed that the husband retain his Charles Schwab 401(k) retirement account and his individual bank accounts.

      On the same day, the judge issued a separate judgment on the wife's complaint for contempt (contempt judgment), finding the husband "not guilty of contempt as alleged by the [w]ife," while nevertheless concluding that the husband owed the wife $8,060 in "bonus income child support." The contempt judgment is not at issue in the present appeal.

      The wife also appeals from the denial of her motion to stay the divorce judgment. However, because the wife's brief does not contain any argument related to that issue, we decline to consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

      The judge properly treated the husband's motion to vacate as a motion for a new trial. See Snow v. Snow, 476 Mass. 425, 428 (2017) ("[T]he title or form of the [document] is not dispositive; it is to be treated in accordance with its essential substance" [quotation omitted] ).

      Contrary to the wife's assertion, the husband's request for a new trial did not have to be supported by evidence of fraud, mistake, or misrepresentation. See Mass.R.Dom.Rel.P. 59. See also Kerr v. Palmieri, 325 Mass. 554, 557-558 (1950) ("There is nothing in the argument that the grounds stated in the [rule 59 ] motion are insufficient. The motion did not need to specify any ground").

      "Proper use of the parties' proposed findings can, and often does, substantially facilitate the opinion-writing process. But that proper use should evince fact-finding by the judge, not fact-finding by proxy." Care & Protection of Olga, 57 Mass. App. Ct. at 823.

      The wife claims that the September 18, 2015, order "entered judgment on all issues except legal custody"; however, that order merely provided that judgment would enter on all of the issues, except for legal custody, based on the evidence presented at the first trial. See Creedon v. Haynes, 90 Mass. App. Ct. 717, 720 (2016) (Even where trial judge determines relief to which party is entitled and announces it on record, "there is no effective judgment" until rules 58 [a] and 79[a] have been complied with).

      As the judge explained in his order denying the wife's motion to alter and amend, "both parties repeatedly introduced financial issues throughout the trial," which prompted him to take "those matters under advisement and issue[ ] [o]rders regarding payment of child support, payment of medical and dental insurance, and payment of extracurricular expenses." The wife testified about the child's extracurricular activities and preschool tuition.

      We further note that the divorce judgment did not represent a drastic departure from the wife's proposed judgment with respect to child support. The wife sought approximately $400 per week in base child support, along with twenty percent of the husband's bonus income as additional child support. The divorce judgment required the husband to pay $380 per week in base child support (identical to the temporary child support amount agreed to by the parties), along with additional child support equivalent to fifteen percent of his bonus income.

      We review custody determinations for an abuse of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). "[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." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

      While the judge considered evidence of "past abuse" perpetrated by the husband, it is unclear whether the judge viewed it as a "serious incident" or "pattern" within the meaning of § 31A.

      We acknowledge the judge's attempt to create a safeguard by providing the wife with sole decision-making authority in the event of a "serious dispute" or communication breakdown between the parties. However, the inclusion of this safeguard emphasizes the dysfunctional nature of the parties' relationship and undermines the purpose of joint custody. See Rolde v. Rolde, 12 Mass. App. Ct. at 404 ("Joint custody is synonymous with joint decision making").

      "Upon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties." G. L. c. 208, § 28, as amended by St. 1975, c. 400, § 29.

      The GAL testified that, upon observing the husband playing with the child, their interactions were appropriate and they appeared to be well-bonded. The GAL further testified that, during the pendency of the divorce proceedings, the husband enjoyed unsupervised parenting time with the child "without incident." However, because the judge did not make any findings regarding this testimony, we are unable to discern whether it formed the basis for his decision to allow unsupervised parenting time.

      "In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child.... A probate and family court's finding, by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in ... shared legal custody ... with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that such custody award is in the best interests of the child.... If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child's best interests and provides for the safety and well-being of the child. If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child," and "may consider ... ordering visitation supervised by an appropriate third party." G. L. c. 208, § 31A.

      We briefly address the wife's arguments relating to property division and college expenses. The wife complains the judge failed to make the required findings for property division under G. L. c. 208, § 34 ; however, the parties did not present evidence regarding the § 34 factors because the issue of property division was not contested. See Putnam v. Putnam, 7 Mass. App. Ct. 672, 674 (1979) ("[W]hen parties decline to offer evidence on [the § 34 ] factors, ... a trial judge cannot be required to consider all the factors"). Moreover, to the extent the wife claims error in the property division, we note the divorce judgment divided the marital estate in nearly the same manner as requested by the wife in her proposed judgment. See Box Pond Assn. v. Energy Facilities Siting Bd., 435 Mass. 408, 422 n.14 (2001) ("One who by his conduct induces the commission of some error by the trial court, or, in other words, who has invited error, is estopped from insisting that the action of the court is erroneous" [quotation omitted] ). We similarly reject the wife's claim that the judge erred in making a premature order for the payment of college expenses. See Rosen v. Rosen, 90 Mass. App. Ct. 677, 694 (2016). Because the wife, through her proposed judgment, invited the judge to make an order regarding college expenses, she is estopped from now claiming that such order was made in error. See Box Pond Assn. v. Energy Facilities Siting Bd., supra. With respect to the wife's other arguments not addressed herein, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Salvatore BILODEAU.
    16-P-1714
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant, Salvatore Bilodeau, was convicted of two counts of rape. On appeal, among other issues, the defendant challenges the trial judge's partial allowance of the Commonwealth's motion to introduce his prior conviction for impeachment purposes. Because we conclude that the judge's ruling constituted prejudicial error, we reverse the judgments and set aside the verdicts.

Facts. The victim and the defendant met on an online dating Web site, and after communicating by telephone and text for some time, agreed to meet at the defendant's house for a first date. The two drove to pick up dinner and brought it back to the defendant's bedroom to eat. After they finished dinner, the defendant attempted to pull the victim on top of him, and she resisted. She then went to her car, saying she wanted to retrieve her anxiety medication. The defendant followed her as she retrieved her medicine and the two then returned to the defendant's room. The defendant pulled the victim onto the bed and raped her vaginally and anally as she protested. She then left and returned to her home.

The victim first disclosed the assault approximately one month later to her ex-boyfriend, by a brief text which was followed by a telephone call.

Discussion. Prior to trial, the Commonwealth sought a ruling that if the defendant were to testify at trial, he could be impeached with his prior conviction of indecent assault and battery. The defendant objected, and filed a corresponding motion to exclude. After argument, the judge ultimately ruled, at the suggestion of the Commonwealth, that the Commonwealth could impeach the defendant by introducing evidence simply that he was convicted of a felony, without noting the specific charge. The defendant argues that this ruling requires reversal.

The Commonwealth properly concedes that the judge's ruling was erroneous. We have disapproved of the practice of "papering over" the nature of prior convictions used to impeach a defendant. Commonwealth v. Ioannides, 41 Mass. App. Ct. 904, 905 (1996). In the absence of the express request of a defendant that the nature of the conviction be omitted, "a judge, with rare exceptions, should decide whether to admit the prior conviction described as to its nature or to exclude it in its entirety." Id. at 906. Here, the defendant did not so request, and the Commonwealth suggests no exception which compelled the masking of the defendant's prior conviction rather than its exclusion or admittance in full.

The defendant's objection was properly preserved, as it was renewed during trial after the close of the Commonwealth's evidence. See Commonwealth v. Crouse, 447 Mass. 558, 564 (2006). The defendant did not testify at trial but that does not preclude his challenge. Commonwealth v. Little, 453 Mass. 766, 773 (2009). Accordingly, we review to determine whether the error was prejudicial.

The case is close in that the defendant did not make an offer of proof as to the content of his testimony, and how that testimony would have aided his defense. While not automatically fatal, this failure may be construed against him on the issue of prejudice. Id. at 775 n.8. Nor has the defendant insisted that he would have testified in the absence of the ruling at issue.

Still, in a case charging a sexual assault in which the Commonwealth's case relied solely on the credibility of the victim, the admission of a felony for impeachment purposes "effectively prevented [the defendant] from [testifying]" where his "ability to testify in his own defense might have had a significant effect on the outcome of the trial." Id. at 775. In these circumstances, we cannot say the judge's error was not prejudicial, therefore we reverse.

We turn now to the defendant's argument as to first complaint, as that issue may arise on retrial. Contrary to the defendant's assertions, we see no merit to the defendant's claim that the judge abused her discretion in admitting the victim's telephone conversation with her ex-boyfriend disclosing the rape. The evidence of the telephone conversation in conjunction with the text message that preceded it did not, as the defendant argues, constitute multiple complaint evidence in violation of the first complaint doctrine. The text message and telephone call were properly admitted, as they qualified together as a "single, tightly intertwined oral and written communication." Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010).

Conclusion. We reverse the judgments and set aside the jury verdicts.

So ordered.

Reversed.

      The jury could have found the following facts at trial.

      Finally, we need not address the defendant's argument concerning the trial judge's failure to give a contemporaneous limiting instruction on the use of first complaint testimony, as it is unlikely to arise on retrial.


text:
    Denise M. CLIFFORD, personal representative, v. UNIVERSAL HEALTH SERVICES, INC., & others.
    16-P-1715
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Erin D. Clifford.

      The Arbour, Inc., doing business as Arbour Hospital, and Diego Martinucci.

   After the death of her premature twins, nineteen year old Erin Clifford was admitted to Arbour Hospital, on a conditional voluntary status, G. L. c. 123, §§ 10 and 11, in order to receive mental health treatment. On July 3, 2012, Erin asked to be discharged, and signed a so-called "3-day notice." See G. L. c. 123, § 11. On July 6, 2012, Dr. Diego Martinucci evaluated Erin, provided her with an after-care treatment plan, and discharged her. The following day, Erin died in a homeless shelter as the result of "acute mixed drug intoxication."

The plaintiff, Denise M. Clifford, Erin's aunt and the personal representative of Erin's estate, brought a wrongful death action in Superior Court, essentially alleging negligence in the discharge of Erin from Arbour Hospital. The medical malpractice tribunal determined that the plaintiff's offer of proof was insufficient. After the plaintiff failed to post the statutory bond, see G. L. c. 231, § 60B, a judge of the Superior Court dismissed the case without prejudice. We affirm.

At the tribunal stage, the plaintiff was obligated to present an offer of proof demonstrating, among other things, that Martinucci was a provider of health care as defined in G. L. c. 231, § 60B, who failed to exercise that degree of care and skill expected of "the average member of the profession practicing the specialty, taking into account the advances in the profession," and that such failure more probably than not caused the harm. Palandjian v. Foster, 446 Mass. 100, 104 (2006) (quotation omitted). See Keppler v. Tufts, 38 Mass. App. Ct. 587, 591-592 (1995) ; Goudreault v. Nine, 87 Mass. App. Ct. 304, 308 (2015). "Establishing the applicable standard of care typically requires expert testimony" from a "witness [who] has sufficient education, training, experience and familiarity with the subject matter of the testimony." Palandjian, supra at 105-106 (quotation omitted). Like the tribunal itself, we do not "examine the weight or credibility of the evidence" but instead "view the evidence contained in the offer of proof in the light most favorable to the plaintiff." Goudreault, supra at 308-309.

The plaintiff's offer of proof contained a "forensic expert evaluation" signed by "Helen M. Farrell, M.D.," identified further only as a "Forensic Psychiatrist." The evaluation was not in affidavit form, it was not on letterhead, and it did not provide any contact information. The evaluation also did not provide any information regarding Dr. Farrell's education, training, experience, practice areas, or specialties. We assume, without deciding, that the plaintiff adequately established Dr. Farrell's expertise, sufficient to allow her to provide opinion evidence, under "the 'extremely lenient' standard of establishing an expert's qualifications before a medical malpractice tribunal." Blake v. Avedikian, 412 Mass. 481, 483 (1992).

Even so, Dr. Farrell's evaluation does not establish either the applicable standard of care or either Arbour Hospital's or Martinucci's breach thereof. Although Dr. Farrell opines regarding practice standards, she does not indicate that she in fact is familiar with the standards she purports to identify. While we acknowledge that such matters need not be expressed through rote invocation of any particular "magic words" they nonetheless must be "expressed with sufficient firmness and clarity." Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 235 (2005). Dr. Farrell did not do so.

Moreover, Dr. Farrell's assertions and conclusions, particularly with respect to medical causation, appear not only to be, at least in part, without disclosed factual basis, but also fail to address critical, statutorily-mandated criteria. The record establishes that Erin voluntarily admitted herself for care under G. L. c. 123, § 10(a ). Erin demanded release on July 3, executing a § 11 three-day waiver at that time. After Erin demanded discharge, the hospital and Martinucci were required, under § 11, to discharge her by no later than July 6, as Martinucci did. Martinucci's only other option was to initiate an emergency petition for involuntary commitment. To do so, Martinucci would have had to have "reason to believe that failure to hospitalize would create a likelihood of serious harm by reason of mental illness," G. L. c. 123, § 12(a ), and "that no less restrictive alternative to hospitalization is appropriate." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 & n.8 (2008). See G. L. c. 123, § 8(a ).

Although Dr. Farrell opines that Martinucci's conduct fell below the standard of care "in terms of conducting and documenting an inadequate discharge risk assessment," Dr. Farrell does not explain how such deviation is relevant to the discharge decision as mandated by law under § 11 or that, had such adequate evaluation been conducted, it would have revealed that grounds existed under § 12(a ) for an involuntary commitment. That is, Dr. Farrell does not purport to opine that: Erin was, at the time of discharge, in fact "mentally ill" within the meaning of § 12(a ) ; no less restrictive environment than involuntary hospitalization was appropriate; or an average qualified specialist in like circumstances would have concluded at the time of discharge that the deceased was at risk "of serious harm by reason of mental illness" such that she must be involuntarily confined. Lacking such links we are left with little more than conjecture on which to conclude that Martinucci's purported failure to conduct and document more thoroughly the discharge risk assessment more probably than not was a cause of Erin's accidental drug overdose. Keppler, 38 Mass. App. Ct. at 591-592. LaFond v. Casey, 43 Mass. App. Ct. 233, 237-238 (1997).

The tribunal properly determined that the plaintiff's offer of proof was insufficient. In light of this disposition, we need not address the parties' remaining arguments.

Judgment affirmed.

      As the plaintiff and her niece share a surname, we use first names to avoid confusion.

      The complaint also contained a claim for breach of contract for medical care and a violation of G. L. c. 93A arising out of the claims of medical malpractice.