Adoption of Xenos. ( 2023 )

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
22-P-595
ADOPTION OF XENOS.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial in the Juvenile Court,2 a judge determined
that the father and the mother were unfit to parent their child,
Xenos, and entered decrees terminating their parental rights.
The father and mother appealed from the decrees. The father,
who waived counsel and represented himself at trial with the
assistance of standby counsel, contends that the judge failed to
give proper attention to potential explanations for his
escalating mental health symptoms, including his demeanor and
conduct while in court, and so failed to recognize the
possibility that his unfitness was transient. He also argues
that the judge's review of an affidavit prepared by counsel for
the Department of Children and Families (department) in support
of the department's motion to substitute counsel created an
1 A pseudonym.
2 This was, in fact, the second such trial in this matter. The
first ended in a mistrial. See note 4, infra.
appearance of bias that required the judge to recuse herself
from the case.3 The mother, who does not contest the finding of
her permanent unfitness to parent Xenos, but who supported the
father's efforts to retain his parental rights to Xenos, argues
that the judge failed to take adequate steps to ensure that the
father was competent to waive counsel, and that the judge's
failure to do so cleared the way for the father to act in a way
that led the judge to be biased against the mother, as the
father's supporter. Additionally, she contends that the judge
failed adequately to address the issue of posttermination
contact between the parents and the child in her order for
visitation. After careful review of the record, we affirm.
Discussion. 1. Father's appeal. a. Duration of father's
unfitness. The father's first challenge is to the judge's
conclusion that his parental unfitness was likely to be
permanent. The judge here made the "specific and detailed
findings in support of [her] conclusion" required to
"demonstrate[e] that she [gave] the evidence close attention."
Adoption of Nancy, 443 Mass. 512, 514-515 (2005). Reviewing
those findings, we identify no clear error in them (indeed, the
father does not argue they are clearly erroneous) nor any abuse
3 In the affidavit, counsel for the department recounted
statements the father made to her outside the court room after
the trial had begun and which counsel averred required her to
withdraw from the case.
2
of discretion or other error in her ultimate conclusion that the
father was unfit. See Adoption of Ilona, 459 Mass. 53, 59
(2011). In assessing the father's fitness, the judge was
entitled to consider the father's lapses in self-control during
the trial, see Adoption of Yvonne, 99 Mass. App. Ct. 574, 580
(2021) (parent's behavior during trial relevant to parental
fitness); the escalating symptoms of mental illness he displayed
in the months preceding the trial at issue here and their impact
on his ability to act in the child's best interests, see Care &
Protection of Bruce, 44 Mass. App. Ct. 758, 764 (1998), quoting
G. L. c. 210, § 3 (c) (xii) (significance of mental illness that
interferes with parent's ability "to provide minimally
acceptable care of the child"); his history of threatening
behavior to department workers and others, see Adoption of
Yvonne, supra (parent's ability to manage anger relevant to
fitness); the parents' history of "mutual domestic violence,"
see Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021)
(evidence of domestic violence relevant to parental fitness);
and the father's unsanctioned removal of the child from school
and supervised visits, see Adoption of Varik, 95 Mass. App. Ct.
762, 767 (2019) (parent's conduct placing child at risk relevant
to parental fitness).
In considering the duration of the father's unfitness, the
judge "[was permitted to] consider [this] past conduct to
3
predict future ability and performance." Adoption of Katharine,
42 Mass. App. Ct. 25, 32-33 (1997). Where, at the time of
trial, the father was unfit and was not engaging in the steps
required to demonstrate progress toward a return to fitness, the
judge was not required to postpone a determination that was
otherwise in the child's best interests based on "a 'faint
hope'" that the father would become fit at some unknown time in
the future. Adoption of Ilona, 459 Mass. at 59, quoting
Adoption of Inez, 428 Mass. 717, 723 (1999). We discern neither
an abuse of discretion nor clear error in the judge's conclusion
that the father's unfitness was likely to be permanent.
To the extent that the father now contends that the judge
should have considered whether the worsening of the father's
mental health in the months before the trial at issue here
(second trial) was merely a temporary response to a concerning
procedural problem that arose in the course of the first trial,4
the issue was not squarely raised below, and so it is waived.
4 When the case first went to trial in 2021, the parties
understood that the trial was limited to the issue of the
parents' unfitness. During the trial, however, the parties
learned that the judge had converted the trial into a
termination of parental rights proceeding, apparently on the
grounds that she would not consider reunifying a child with
"parent[s] [who are] using drugs." The case was ultimately
mistried and the case assigned to a different judge for a new
trial on the termination of the parents' rights. Here, we
consider only the parents' appeal from aspects of the second
trial.
4
See Adoption of Bea, 97 Mass. App. Ct. 416, 430 (2020); Adoption
of Norbert, 83 Mass. App. Ct. 542, 545 (2013). See also Mayer
v. Cohen-Miles Ins. Agency, Inc., 48 Mass. App. Ct. 435, 444-445
(2000) ("although the plaintiff did object at trial, she did not
explain the basis for her objection. Thus, she did not preserve
the issue for appeal").
Even if it were not waived, however, the argument is
unavailing. While we acknowledge the likelihood that the events
of the first trial would have left the father both unhappy and
suspicious of the courts, it does not necessarily follow that
the escalation of the father's mental health that occurred here
close in time to the first trial was just a temporary response
to those events. In fact, the judge's finding that the father's
worsening symptoms were "similar in nature -- though far more
extreme -- to behaviors he exhibited in the past when using
substances" supports a different conclusion. Furthermore, the
father does not challenge the judge's findings that the father
refused to participate in the mental health evaluations required
under his action plans with the department and refused mental
health services when they were offered. In the circumstances,
the judge cannot be faulted for refusing to speculate about the
possibility of the father's improvement in the future.
b. Bias. Although the father argues that the judge abused
her discretion in denying the mother's motion to recuse herself
5
on the grounds of bias, he did not raise the issue at trial; his
claims are therefore waived.5 See Adoption of Bea, 97 Mass. App.
Ct. at 430.
2. Mother's appeal. a. Mother's challenge to father's
competency to waive counsel. As we have noted, the father
represented himself at trial, assisted by standby counsel. On
appeal, the mother argues that the judge failed to conduct an
appropriate inquiry into the father's competence to waive
counsel before the trial began, and that the father's conduct
after the department moved to substitute counsel on the second
day of trial required the judge to act sua sponte to assess the
father's competence to waive counsel.
Even assuming the mother's right to raise these issues (a
point she does not support with any legal authority), her
arguments are unavailing. As to the father's original waiver of
counsel, the mother has not provided us with any contemporaneous
record beyond a copy of the trial court's docket to show us what
the judge's considerations and inquiry were. See Chokel v.
Genzyme Corp., 449 Mass. 272, 279 (2007) (appellant obligated to
develop record). The mother likewise fails to point to any
record evidence that the facts and circumstances of the case
5 As we discuss below, however, with respect to the mother's bias
argument which was preserved, the judge acted within her
discretion and committed no error in denying the mother's
motions to recuse herself and declare a mistrial in the case.
6
raised "'bona fide doubt' as to the [father's] ability to make
an informed decision to proceed without counsel" that would have
triggered the judge's obligation to make the mid-trial inquiry
into the father's competency to waive counsel that the mother
now contends was required. Commonwealth v. Haltiwanger, 99
Mass. App. Ct. 543, 556 (2021), quoting Commonwealth v. Barnes,
399 Mass. 385, 389 (1987). In the circumstances, we do not
consider the argument further.
b. Motion for recusal and mistrial. On the second day of
trial, the department moved to substitute a new attorney in
place of the lawyer who had represented it through the first
trial day. According to an affidavit signed by the department's
original trial counsel, the substitution was necessary based on
the father's having made what she perceived to be threatening
statements to her after the first trial day about what he would
do "if [the department] tr[ied] to keep [him] away from
[Xenos]." After a nonevidentiary hearing,6 the judge allowed the
department's motion, concluding that "the matters alleged in the
[department's] affidavit" (emphasis supplied) required new
counsel to step in for the department. Based on that ruling,
the mother moved for the trial judge to recuse herself from the
6 The judge took no testimony at the motion hearing and made no
assessment of the credibility of the allegations set forth in
the department's affidavit.
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case on the grounds that she could no longer be impartial; she
also asked the judge to declare a mistrial in the case. The
judge denied the mother's motion. Reviewing the judge's ruling
for an abuse of discretion, see Fitzpatrick v. Wendy's Old
Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 517 (2021)
(mistrial); Demoulas v. Demoulas Super Mkts., Inc., 428 Mass.
543, 546 (1998) (recusal), we discern none.
As she explained on the record, the judge responded to the
mother's motion for recusal by correctly engaging in a two-step
process; first, examining her own conscience for bias, and
finding herself impartial, then asking whether, objectively,
"[her] impartiality might reasonably be questioned." DeMoulas,
428 Mass. at 546 n.6, quoting Haddad v. Gonzalez, 410 Mass. 855,
862 (1991). See Parenteau v. Jacobson, 32 Mass. App. Ct. 97,
103-104 (1992). The mother does not challenge the judge's
subjective assessment of her own impartiality and we discern no
abuse of discretion in the judge's conclusion at either the
first or second steps. As the judge pointed out, her ruling on
the department's motion to substitute turned on the department's
allegation that the father had made certain comments to counsel,
and not on any assessment of the credibility of those
allegations. We are satisfied that nothing about that
assessment would raise a reasonable concern about the judge's
impartiality, and that the judge's denial of the mother's motion
8
to recuse herself was not an abuse of discretion. See DeMoulas,
428 Mass. at 546. Given that conclusion, we are likewise
satisfied that the judge acted within her discretion in denying
the mother's motion for a mistrial premised on her claim of
judicial bias. See Fitzpatrick, 487 Mass. at 517 (abuse of
discretion standard); Elder v. Commonwealth, 385 Mass. 128, 136
(1982) (judge's impartiality was not in question "and therefore
his obligation was to deny the motion for mistrial").
3. Mother's remaining trial-related claims. The mother
has failed to show clear error in the judge's finding that at
the September 2021 pretrial conference, "Father interrupted the
Court as soon as the Court started to ask a question by saying,
'I don't understand. I don't understand,' though it was clear
to the Court that Father understood the Court's questions." See
Commonwealth v. Source One Assocs., Inc., 436 Mass. 118, 124
(2002), quoting Starr v. Fordham, 420 Mass. 178, 186 (1995)
("The inquiry is not whether we would have reached the same
result as the judge but rather whether, on the entire evidence,
we are 'left with the definite and firm conviction that a
mistake has been committed'"). We likewise reject the mother's
contention that the trial judge failed to maintain appropriate
control over the court room during the course of the trial.
Indeed, in the circumstances here, we commend the judge for her
measured approach to the challenges that arose during the course
9
of the trial; we are satisfied that her efforts ensured a fair
trial for all parties. See Commonwealth v. Rogers, 46 Mass.
App. Ct. 109, 110 (1999).
The mother's remaining arguments were not preserved below
by the mother and so were waived. See Adoption of Bea, 97 Mass.
App. Ct. at 430.
4. Posttermination contact. Although the trial judge
terminated the parents' rights to Xenos, she recognized the
existence of "a significant [and mutual] emotional relationship"
between the parents and the child.7 Determining that it was in
Xenos's best interests to maintain that relationship, the judge
ordered that "[Xenos] have access to and visitation rights with
his biological parents throughout the period of his placement in
the custody of the Commonwealth and subsequent to any
guardianship or adoption of said child." The order further
provided for visits twice each year for a minimum of one hour
per visit. "The location and time of each visit shall be at the
sole discretion of the legal guardian or adoptive parent[.]"
7 Both the mother and the father have shown love and affection
for Xenos, and none of the judge's findings suggest otherwise.
Despite the moral overtones of the statutory term "unfit," the
judge's decision was not a moral judgment. A judge may find
that a mother and father love and provide for their child to the
best of their ability, but nonetheless reach the conclusion that
the best interests of the child warrant termination of parental
rights. This is the case here.
10
The mother reads this order to address postadoption
contact, but to omit reference to posttermination contact. That
reading is incorrect. There is no requirement that the judge
express her order in any particular terms, and a plain reading
of the language used here satisfies us that the order gives the
parents both posttermination and postadoption visitation rights.
Satisfied that the order addresses the parents' rights to
visitation, we discern no abuse of discretion in the frequency
and duration of the visits as the judge ordered them.8 See
Adoption of Rico, 453 Mass. 749, 756 (2009) (standard of
review). The purpose of posttermination visitation is to ease
the child's transition into a new placement and to facilitate
his ability to bond with his preadoptive family. See Adoption
of Edgar, 67 Mass. App. Ct. 368, 371 (2006). Where Xenos had
been living with his preadoptive parent for several years by the
time of trial and had developed a strong bond with the
preadoptive parent, the judge could reasonably have concluded
that it was in his best interests to continue to promote his
relationship with the preadoptive parent as his primary source
8 We also recognize that the order establishes only the minimum
to which the parents are entitled. It does not foreclose the
possibility that the parents may agree with the department or
Xenos's preadoptive and adoptive parent(s), as appropriate, on a
more expansive schedule and does not impact Xenos's right to
petition the court for a change to that schedule. See Adoption
of Rico, 453 Mass. 749, 756 (2009).
11
of support, and to limit his contact with the biological parents
accordingly. See Adoption of Rico, supra at 757 (visitation
dictated by consideration of child's best interests).
Conclusion. The decrees terminating the parental rights of
the mother and the father to the child are affirmed. The order
for visitation is affirmed.
So ordered.
By the Court (Rubin, Henry &
Hand, JJ.9),
Clerk
Entered: May 9, 2023.
9 The panelists are listed in order of seniority.
12