ADOPTION OF LAVINIA v. << (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from a decree terminating her parental rights as to her daughter, Lavinia, the mother asserts that the judge (i) failed to apply the correct legal standard to determine the mother's unfitness, (ii) did not support the determination of unfitness with specific and detailed factual findings, and (iii) denied her a meaningful opportunity to be heard by refusing to suspend the trial when she failed to return following the lunch recess on the first day. We affirm, addressing each claim in turn.

1. Incorrect legal standard. When making a determination of a parent's unfitness, “subsidiary findings of fact must be supported by a preponderance of the evidence, with the ultimate determination of unfitness based upon clear and convincing evidence.” Adoption of Rhona, 63 Mass. App. Ct. 117, 124 (2005). The mother cites conclusion of law no. 2 in contending that the judge erroneously applied the preponderance standard to conclude that the mother was unfit. Though the mother correctly observes that the judge's conclusion expressed the mother's unfitness by reference to the preponderance of the evidence,³ in context we understand the reference instead to reiterate that the subsidiary findings of fact were adequately supported by a preponderance of the evidence.⁴ The remaining conclusions of law contain numerous correct articulations and applications of the appropriate legal standards and clearly establish that the judge's ultimate determination of the mother's unfitness was based upon clear and convincing evidence. Read in context, we agree with the Department of Children and Families (department) that, to the extent the reference in conclusion of law no. 2 may be read to recite the wrong standard for the finding of unfitness, it is properly understood as a scrivener's error.

2. Format of decision. There is likewise no merit to the mother's claim that the subsidiary findings of fact were not sufficiently “specific and detailed so as to demonstrate that close attention has been given the evidence.” Custody of Eleanor, 414 Mass. 795, 799 (1993). The mother does not challenge any particular finding, but rather points to the narrative presentation of the findings as indication that the judge merely recapitulated the evidence presented at trial. See Petition of Catholic Charitable Bureau of Archdiocese, Inc., to Dispense with Consent to Adoption, 18 Mass. App. Ct. 656, 662 n.7 (1984). However, a thorough reading of the findings of fact indicates that the judge carefully reviewed the evidence and testimony presented at trial, and expressed her findings as summaries of the evidence she found credible. Taken as a whole, it is evident that the judge was “selective of what the record contained, [and] we may safely conclude that the evidence the judge chose to summarize constituted the facts [she] found.”⁵ Id. at 662. The mother's challenge devolves to a contention that expression of the judge's findings in narrative prose, rather than numbered paragraphs, is deficient. There is, however, no such requirement concerning the form of factual findings, and the mother's argument attempts to elevate form over substance.

3. Refusal to suspend proceedings. The mother's claim that the judge erred in refusing to suspend the trial in her absence also fails. “Whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and [her] decision will be upheld absent an abuse of that discretion.” Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).⁶ The judge acted within her discretion by declining to credit the third-hand explanation for the mother's absence following the lunch recess on the first day, noting that the mother had testified in the morning and had appeared “perfectly lucid and having absolutely no medical problem.”⁷ Counsel for the mother did not present any evidence on either day of trial corroborating the explanation given for the mother's absence. See id. at 122 (judge did not abuse discretion in refusing to reschedule trial where father's request was “presented orally on the day trial was scheduled to commence and without an accompanying affidavit”). We also observe that the mother has not identified any evidence she was unable to present by reason of her absence from that portion of the trial, or any other respect in which she was unable to present any portion of her case. The judge properly exercised her discretion in deciding to proceed with trial despite the mother's failure to return.

Finally, the judge's decision to draw a negative inference from the mother's failure to fully participate in trial was not an abuse of discretion. After assessing the circumstances, the judge reasonably concluded that the mother's “failure to appear [after the recess], without an adequate explanation, was evidence that she was not making efforts to be reunited with her child[ ].” Adoption of Helga, 97 Mass. App. Ct. 521, 526 (2020). Furthermore, having determined, based on the mother's testimony at trial, that she was “alternately evasive and untruthful,” the judge was “warranted in concluding that the mother gave a false reason for her absence, permitting a reasonable inference that the true reason, whatever it was, would not bear favorably on her fitness as a parent.” Id.

Decree affirmed.

FOOTNOTES

3.   The judge stated, “It has been proven by at least a fair preponderance of evidence that both parents are unfit to care for the child and that their unfitness is extremely likely to continue into the indefinite future” (emphasis added).

4.   The judge introduced her conclusion by stating the correct legal standard:“In a care and protection proceeding, subsidiary factual findings need only be proved by a fair preponderance of the evidence, rather than by clear and convincing evidence. ‘Taken together, these facts must then prove parental unfitness, since it is the “critical inquiry,” by clear and convincing evidence.’ Care and Protection of Laura, 414 Mass. 788, 793 (1993).”

5.   We do not share the mother's concern that the findings of fact devoted an “inordinate amount of space” to reviewing the mother's prior history with the department. The judge was entitled to consider her history with the department and its prognostic value in the ultimate determination of her unfitness. See Adoption of Carla, 416 Mass. 510, 517 (1993).

6.   We decline to review this claim of error de novo, as we are satisfied that the mother was afforded a meaningful opportunity to be heard and to rebut the adverse allegations made against her. See Care & Protection of Manuel, 428 Mass. 527, 535 (1998); Custody of Two Minors, 19 Mass. App. Ct. 552, 557 (1985). The mother was present and testified on the morning of the first day of trial, and was able to present evidence and cross-examine department witnesses through her counsel in her absence. See Adoption of Jacqui, 80 Mass. App. Ct. 713, 716-719 (2011) (denial of due process resulted where father was incarcerated and representation by counsel was “cursory”).

7.   Following the lunch break, the judge inquired about the mother's presence and was informed by the court clerk that the mother's own mother had called the court and informed the clerk that the mother claimed to be on her way to the hospital after suffering a minor seizure.