NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-538
ADOPTION OF BRENNA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees issued by a
judge of the Juvenile Court finding them unfit and terminating
their parental rights to Brenna pursuant to G. L. c. 119, § 26.
They both argue that the trial judge violated their
constitutional right to due process by deciding the case's
outcome before hearing all of the evidence. The father also
argues that the judge improperly relied on stale evidence to
support the findings of unfitness. Lastly, the mother argues
that the judge abused her discretion by declining to order
posttermination visitation with Brenna. We affirm.
Background. Brenna was born on August 23, 2020, substance
exposed to cocaine and fentanyl. She spent nine days in the
neonatal intensive care unit before being placed in a foster
home. Both the father and the mother have a history of
1 A pseudonym. substance use and addiction, which has interfered with their
ability to parent their children. After the mother tested
positive for fentanyl during her pregnancy with Brenna, the
Department of Children and Families (DCF) requested that she
participate in substance abuse treatment, which she attended,
but was terminated from due to her failure to follow through
with the treatment. The father has a substance abuse disorder
dating back prior to his incarceration in 2015 for trafficking
heroin. His drug use continued after Brenna's birth. He claims
he stopped using drugs in November or December 2020; however,
the judge did not credit the father's testimony that he could
gain and maintain sobriety without substance use treatment.
On June 4, 2021, neither the father nor the mother attended
a status conference scheduled for that day. Their lawyers
reported that they had not heard from either parent in at least
two months. On September 24, 2021, a best interest trial was
held, and again neither parent was present. Findings of
unfitness entered, and an adjudication and decree terminating
parental rights issued. The mother and the father subsequently
filed a motion for relief from judgment pursuant to Mass. R.
Civ. P. 60 (b), 365 Mass. 828 (1974), because they claimed not
to have had notice of the trial, and further claimed that
Brenna's counsel had instructed the mother and the father not to
appear for court that day because they were symptomatic for
2 COVID-19. The court allowed the motion, vacated the decrees and
findings of unfitness, and granted a new trial.
The trial took place over eight, nonconsecutive days
beginning on March 25, 2022 and concluding on September 22,
2022. On October 14, 2022, the judge found the mother and the
father unfit to parent Brenna, and found that Brenna's best
interests would best be served by a termination of parental
rights and DCF's adoption plan. Accordingly, the judge
adjudicated Brenna in need of care and protection, and ordered
decrees to issue terminating the mother's and the father's
parental rights. In her findings of fact and conclusions of
law, the judge explained that in making the unfitness
determinations, she considered, among other factors, the
mother's
"ongoing substance use disorder and the fact that it has prevented her from caring for all three of her children; her failure to avail herself of services offered by [DFC] to address her use of substances while pregnant with [Brenna] . . . [and] her pattern of declining services which would address the reasons for [Brenna]'s removal despite repeated attempts by her social worker to engage her."
With respect to the father, the judge considered, among other
factors,
"his longstanding history of substance use disorder and relapse when not in structured treatment; his substantial criminal history involving domestic violence and drug distribution . . . [and] his failure to avail himself of services offered by [DFC] to address his substance misuse
3 and history of domestic violence despite multiple prompts and referrals from his social worker."
The judge left the mother's and the father's posttermination
visitation of Brenna to the discretion of Brenna's adoptive
parents.
Discussion. 1. Judicial bias. Both parents allege that
their due process rights were violated on the grounds that the
judge was not presiding over the case with an open mind and had
determined the outcome of the trial prior to all the evidence
being presented. The father argues that the judge "hastily
scrutinized the credibility of the evidence well before the
evidence closed" and expressed that the "trial is essentially
pointless toward changing her mind." The mother argues that
"the judge had prematurely decided that it was in Child's best
interest to terminate Mother's parental rights so [Brenna] would
be free for adoption by her foster parents."
Having reviewed the complete trial transcript and read the
judge's comments in context, we conclude that most of the
judge's statements with which the parents took issue were candid
assessments by the judge of the evidence before her, and
therefore raise no concerns. Two comments, however,
characterized the strength of the case as a whole before all of
the evidence had been presented. The judge should not have said
to the parties that this was not a triable case and should not
4 have questioned why the parties had not resolved the case before
the trial. While we agree that these comments were better left
unsaid, we conclude that they did not compromise the integrity
of the trial.
The parents take issue with several remarks the judge made
at various points regarding the strength of the parents' case.
The judge's most concerning comment was that the matter before
her was "not a . . . triable case . . . [I]t's not a case that
should be getting tried. . . . I'm just not understanding how
there isn't a resolution to this case." The remaining comments
that the parents took issue with concerned the judge's
impression of each party's case and the evidence offered in
support. She stated on one occasion that the primary disputed
issue in the case was the narrow question of whether the parents
had engaged in "any substance use disorder treatment throughout
the course of this case." She went on to say that "there was
never sobriety established, and they refused to participate in
service[s] –- that's [DCF]'s –- allegation, I should say."
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-538
ADOPTION OF BRENNA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees issued by a
judge of the Juvenile Court finding them unfit and terminating
their parental rights to Brenna pursuant to G. L. c. 119, § 26.
They both argue that the trial judge violated their
constitutional right to due process by deciding the case's
outcome before hearing all of the evidence. The father also
argues that the judge improperly relied on stale evidence to
support the findings of unfitness. Lastly, the mother argues
that the judge abused her discretion by declining to order
posttermination visitation with Brenna. We affirm.
Background. Brenna was born on August 23, 2020, substance
exposed to cocaine and fentanyl. She spent nine days in the
neonatal intensive care unit before being placed in a foster
home. Both the father and the mother have a history of
1 A pseudonym. substance use and addiction, which has interfered with their
ability to parent their children. After the mother tested
positive for fentanyl during her pregnancy with Brenna, the
Department of Children and Families (DCF) requested that she
participate in substance abuse treatment, which she attended,
but was terminated from due to her failure to follow through
with the treatment. The father has a substance abuse disorder
dating back prior to his incarceration in 2015 for trafficking
heroin. His drug use continued after Brenna's birth. He claims
he stopped using drugs in November or December 2020; however,
the judge did not credit the father's testimony that he could
gain and maintain sobriety without substance use treatment.
On June 4, 2021, neither the father nor the mother attended
a status conference scheduled for that day. Their lawyers
reported that they had not heard from either parent in at least
two months. On September 24, 2021, a best interest trial was
held, and again neither parent was present. Findings of
unfitness entered, and an adjudication and decree terminating
parental rights issued. The mother and the father subsequently
filed a motion for relief from judgment pursuant to Mass. R.
Civ. P. 60 (b), 365 Mass. 828 (1974), because they claimed not
to have had notice of the trial, and further claimed that
Brenna's counsel had instructed the mother and the father not to
appear for court that day because they were symptomatic for
2 COVID-19. The court allowed the motion, vacated the decrees and
findings of unfitness, and granted a new trial.
The trial took place over eight, nonconsecutive days
beginning on March 25, 2022 and concluding on September 22,
2022. On October 14, 2022, the judge found the mother and the
father unfit to parent Brenna, and found that Brenna's best
interests would best be served by a termination of parental
rights and DCF's adoption plan. Accordingly, the judge
adjudicated Brenna in need of care and protection, and ordered
decrees to issue terminating the mother's and the father's
parental rights. In her findings of fact and conclusions of
law, the judge explained that in making the unfitness
determinations, she considered, among other factors, the
mother's
"ongoing substance use disorder and the fact that it has prevented her from caring for all three of her children; her failure to avail herself of services offered by [DFC] to address her use of substances while pregnant with [Brenna] . . . [and] her pattern of declining services which would address the reasons for [Brenna]'s removal despite repeated attempts by her social worker to engage her."
With respect to the father, the judge considered, among other
factors,
"his longstanding history of substance use disorder and relapse when not in structured treatment; his substantial criminal history involving domestic violence and drug distribution . . . [and] his failure to avail himself of services offered by [DFC] to address his substance misuse
3 and history of domestic violence despite multiple prompts and referrals from his social worker."
The judge left the mother's and the father's posttermination
visitation of Brenna to the discretion of Brenna's adoptive
parents.
Discussion. 1. Judicial bias. Both parents allege that
their due process rights were violated on the grounds that the
judge was not presiding over the case with an open mind and had
determined the outcome of the trial prior to all the evidence
being presented. The father argues that the judge "hastily
scrutinized the credibility of the evidence well before the
evidence closed" and expressed that the "trial is essentially
pointless toward changing her mind." The mother argues that
"the judge had prematurely decided that it was in Child's best
interest to terminate Mother's parental rights so [Brenna] would
be free for adoption by her foster parents."
Having reviewed the complete trial transcript and read the
judge's comments in context, we conclude that most of the
judge's statements with which the parents took issue were candid
assessments by the judge of the evidence before her, and
therefore raise no concerns. Two comments, however,
characterized the strength of the case as a whole before all of
the evidence had been presented. The judge should not have said
to the parties that this was not a triable case and should not
4 have questioned why the parties had not resolved the case before
the trial. While we agree that these comments were better left
unsaid, we conclude that they did not compromise the integrity
of the trial.
The parents take issue with several remarks the judge made
at various points regarding the strength of the parents' case.
The judge's most concerning comment was that the matter before
her was "not a . . . triable case . . . [I]t's not a case that
should be getting tried. . . . I'm just not understanding how
there isn't a resolution to this case." The remaining comments
that the parents took issue with concerned the judge's
impression of each party's case and the evidence offered in
support. She stated on one occasion that the primary disputed
issue in the case was the narrow question of whether the parents
had engaged in "any substance use disorder treatment throughout
the course of this case." She went on to say that "there was
never sobriety established, and they refused to participate in
service[s] –- that's [DCF]'s –- allegation, I should say."
On another day of trial, the judge described the case as a
"cut and dry, very simple situation where the people came in, it
was an opiate addiction case, and they were asked to do
treatment, and they didn't do treatment. . . . So I'm just
confused as to what –- why people think this is a complex case.
It just is -- not."
5 The father's counsel raised this issue at trial by way of
an oral motion requesting that the judge recuse herself from the
case. The mother's counsel orally joined the father's request
on the following day of trial.
"A judge's decision not to recuse [her]self is reviewable
for abuse of discretion." Commonwealth v. Rivera, 473 Mass.
1003, 1005 (2015). "To rise to the level of requiring
disqualification, the bias or prejudice must spring from an
extrajudicial source, and not from matters learned from
participation in the case." Fogarty v. Commonwealth, 406 Mass.
103, 111 (1989). "[A] judge who expresses preliminary views
inside the court, based upon knowledge acquired in court
proceedings, is not recusable." Adoption of Darla, 56 Mass.
App. Ct. 519, 522 (2002), quoting Goya Foods, Inc. v. Ulpiano
Unanue-Casal, 275 F.3d 124, 130 (1st Cir. 2001).
The judge's comments did not demonstrate any impermissible
bias requiring that she recuse herself from the case. See,
e.g., Adoption of Seth, 29 Mass. App. Ct. 343, 350-351 (1990).
The record does not indicate that the judge was improperly
influenced by extrajudicial factors, but that she instead was
commenting on information she had "acquired in court
proceedings." Adoption of Darla, 56 Mass. App. Ct. at 522. The
judge is permitted to do this, even if we believe that she could
have chosen her words more carefully given the high stakes of
6 the proceedings. We discern no abuse of discretion in the
judge's decision to deny the request that she recuse herself.
The mother and the father's principal argument is that the
judge's comments impaired the integrity of the proceedings
because the judge suggested that she had predetermined the
outcome of the case. The parties are entitled to present a
complete case and the judge must consider all of the presented
evidence before deciding any of the issues. Preston v. Peck,
271 Mass. 159, 163-164 (1930). A judge is obligated to refrain
from making remarks that would "giv[e] a reasonable observer
cause to wonder whether the way the judge viewed the evidence,
and the inferences she drew from it, were produced by her early
judgment rather than by a thoughtful and careful weighing of all
the evidence at the end of the trial." Adoption of Tia, 73
Mass. App. Ct. 115, 123 (2008). A judge's deviation from this
preferred practice, however, does not inherently compromise the
fairness of the trial. See Commonwealth v. Coleman, 390 Mass.
797, 802 (1984) (judge's expression of opinion on issue to be
decided does not require disqualification). We read the judge's
comments in the context of the full trial to determine whether
the judge improperly and prematurely decided any of the issues
in the case. See Adoption of Georgia, 433 Mass. 62, 65 (2000).
Here, the judge's most troubling comments were that this
was "not a case that should be getting tried" and "I'm
7 just not understanding how there isn’t a resolution to this
case." Whether or not she believed DCF had made a strong case
for seeking termination, the judge should not have characterized
the case before her as not worthy of her time. As we know the
judge is undoubtedly aware, the termination of parental rights
is one of the most important proceedings that can take place in
a court room. It is therefore especially important that judges
take great care not to give the impression that they have
prematurely decided a case's outcome.
As to the other comments the parents identified in their
briefs, we do not agree that they were improper. While we do
understand, given the significant stakes of this case, that
these remarks may have been upsetting to the mother and the
father, we also must consider the context of these comments and
what issues they referenced. The trial here took place over
eight, nonconsecutive days spanning six months. Throughout the
proceedings, the judge expressed concern about the effect the
lengthy trial timeline would have on Brenna. The judge believed
that the mother and the father were unnecessarily prolonging the
trial by offering cumulative evidence regarding issues that did
not directly address the central reasons DCF had sought
termination: the parents' difficulty maintaining sobriety and
their refusal to participate in and complete substance use
disorder treatment. The judge also explained, after the close
8 of evidence, that she had gone back through and listened again
to "most of the testimony" from the trial. This indicates that
she had not prematurely reached a decision earlier in the trial
and that her mind remained open to all of the presented
evidence. Considering the strength of DCF's case for unfitness
and termination and the context in which the judge made her
comments, we discern no abuse of discretion in the denial of the
parents' recusal motion.
2. Evidence relied on by the judge. The father argues
that the judge improperly relied on stale evidence to support
her unfitness findings and decision to terminate the father's
parental rights. The central question in an action to terminate
parental rights is whether a parent is unfit, and if so, whether
termination is in the best interests of the child. See Adoption
of Ilona, 459 Mass. 53, 59 (2011). Findings to support a
termination of parental rights must be by "clear and convincing
evidence, based on subsidiary findings proved by at least a fair
preponderance of evidence." Adoption of Darlene, 99 Mass. App.
Ct. 696, 702 (2021), quoting Adoption of Jacques, 82 Mass. App.
Ct. 601, 606 (2012). "We give substantial deference to a
judge's decision . . . 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, supra.
9 "Although 'stale information cannot be the basis for a
finding of current parental unfitness . . . [p]rior history
. . . has prognostic value.'" Adoption of Jacques, 82 Mass.
App. Ct. at 607, quoting Adoption of George, 27 Mass. App. Ct.
265, 268 (1989). The father's principal concern rests with the
judge's consideration of a prior instance of domestic violence
perpetrated by the father against his ex-girlfriend in 2014.
The judge's discussion of this incident, however, was not
limited to the event itself, but also addressed the father's
current inability "to rectify the conditions that caused harm to
his children through lack of participation in offered domestic
violence and substance use services."
The judge viewed the father's failure to engage with
services to address this incident of domestic violence in the
context of the "Father's refusal to address his substance use
disorder" and his "refusal to engage in meaningful treatment."
She found that "Father engaged in a pattern of declining to
avail himself of the services offered to remediate his parenting
deficits and facilitate a safe reunification." The judge is
permitted to consider such failure to engage in services to
support an unfitness finding. See Adoption of Willow, 433 Mass.
636, 645 (2001); Adoption of Lisette, 93 Mass. App. Ct. 284, 285
(2018). She also found that this pattern "create[d] a
substantial danger of continued neglect." Accordingly, we view
10 the judge's discussion of the father's 2014 domestic violence
incident not as improper reliance on stale evidence, but as an
important evaluation of a pattern of behavior, continuing to the
present, demonstrating father's unfitness to safely parent
Brenna.
3. Posttermination visitation. The mother claims that the
judge abused her discretion when she left the decision to
Brenna's custodian of whether posttermination and postadoption
contact with the mother would be in Brenna's best interest. She
argues that visits between the mother and Brenna went well and
that ordering visitation would have been in the best interest of
Brenna. In her decision, the judge found that Brenna's
preadoptive parents would act in Brenna's best interest when
determining to what extent postadoption visitation would be
allowed.
"The decision to order posttermination or postadoption
visits is left to the judge's discretion." Adoption of West, 97
Mass. App. Ct. 238, 247 (2020). An order of postadoption
contact is generally reserved for circumstances where the
primary "parent-child relationship in the child's life remains
with the biological parent" and other adults have not fully
assumed that role. Adoption of Vito, 431 Mass. 550, 564 (2000).
"The purpose of such contact is not to strengthen the bonds
between the child and his biological mother or father, but to
11 assist the child as [s]he negotiates, often at a very young age,
the tortuous path from one family to another." Id. at 564-565.
Here, since the time she was born, Brenna's biological
parents have not been the primary parental figures her life.
Brenna therefore will not be transitioning to a new family, but
instead will remain living with adoptive parents who have cared
for her since birth. The judge therefore acted well within her
discretion in leaving posttermination contact between the mother
and Brenna to the discretion of Brenna's adoptive parents. See
Adoption of Ilona, 459 Mass. at 66.
Decrees affirmed.
By the Court (Wolohojian, Milkey & D'Angelo, JJ. 2),
Assistant Clerk
Entered: January 11, 2024.
2 The panelists are listed in order of seniority.