J.M. v. A.Q. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case concerns the parties' custody and removal dispute over their child, born in 2007. After a three-day trial, a Probate and Family Court judge granted sole legal and physical custody to the father; permitted him to remove the child from Massachusetts to Rhode Island; established a therapeutic, supervised parenting plan for the mother; and ordered the father to have the child evaluated for risk of the psychological condition known as Pediatric Illness Falsification (PIF). On appeal, the mother challenges the decision as an abuse of discretion, an unconstitutional delegation of judicial authority, and the result of ineffective assistance of counsel. We affirm.

Background. The judge found as fact that the parents, who never married, had a difficult coparenting history, with the mother engaged in overprotective behavior regarding the child and conduct toward the father “that border[ed] on harassment and parental alienation.” In 2014, the judge appointed a licensed psychologist and trauma specialist as a guardian ad litem (GAL) to evaluate and report on custody and parenting plan issues. The GAL filed a twenty-seven page report that included her professional opinions about what parenting arrangements would serve the best interests of the child. The GAL recommended that the father be awarded sole legal and physical custody and that the child reside with the father, who lived in Rhode Island. The judge's findings and conclusions aligned with the GAL's recommendations, and judgment entered accordingly.

Discussion. 1. Abuse of discretion. The mother argues that the judge abused her discretion in granting the father custody and allowing the child's removal from Massachusetts based, in the mother's view, on the unsupported suggestion that the mother might suffer from PIF.

a. Custody. A judge “must settle custody in a manner that advances the best interests of the child[ ].” Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987). See G. L. c. 209C, § 10. We review any challenged findings of fact for clear error, and the custody determination itself for abuse of discretion. See Murphy v. Murphy, 82 Mass. App. Ct. 186, 193 (2012).

The mother does not challenge any of the judge's factual findings as being clearly erroneous, nor does she expressly challenge the judge's best-interests determination as an abuse of discretion. Rather, she argues that the judge inappropriately weighed the testimony of the father's expert witness regarding PIF. We see no abuse of discretion in this regard.

“[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.” Custody of Two Minors, 396 Mass. 610, 618 (1986). The judge gave no more weight to the expert's testimony than to the GAL's report and recommendations; the judge found both witnesses to be “credible and uncontroverted,” and to be in agreement that the child's best interests would be served by awarding sole custody to the father.¹

b. Removal. Like custody determinations, removal orders must be in the best interests of the child, and we review for an abuse of discretion. Mason v. Coleman, 447 Mass. 177, 183-184 (2006). See Smith v. McDonald, 458 Mass. 540, 546 (2010), citing G. L. c. 208, § 30. When considering removal, the judge first must evaluate “whether there is a good reason for the move, a ‘real advantage.’ ” Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). The “real advantage” test requires “a good, sincere reason” for removal, and the judge must also consider “the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Id. “[I]f the ‘real advantage’ test is satisfied, the judge must [decide] whether the move is in the best interests of the child[ ].” Altomare v. Altomare, 77 Mass. App. Ct. 601, 604 (2010).

Here, the mother does not challenge the judge's determination that all three parts of the Yannas test were met. To the extent she challenges the removal decision (like the custody decision) as too heavily based on the expert's testimony, we are not persuaded, for the reasons stated above. We see no abuse of discretion in the judge's order permitting removal of the child to Rhode Island.

2. Delegation of judicial power. The mother challenges, as an unconstitutional delegation of judicial power, the judgment's provisions that “[t]he father shall forthwith arrange for the child to be evaluated as to his risk for [PIF],” and that “[n]either party shall petition the court to modify the parenting plan until such time as the evaluation ․ is completed.” The mother argues that these provisions deny her “the right even to obtain access to the court regarding future disputes or other issues without first submitting to the [f]ather and his [chosen evaluator].” She asserts that due process prohibits a judge from “compelling a party to submit to the binding decision-making authority of [someone other than the judge] without that party's consent.” Bower v. Bournay-Bower, 469 Mass. 690, 701 (2014).³

The judgment has no such effect. The provision for the father to have the child evaluated does not grant the father and his chosen evaluator any binding decision-making authority. Rather, the judgment provides that the father, as the parent with sole legal and physical custody of the child, “shall be guided by the recommendations emanating from any such evaluation.” Unlike in Bower, the provisions here do not require the mother to submit disputes for binding resolution to any authority other than the judge. The mother here remains free, by a complaint for modification, to ask the judge directly to modify the parenting plan; the only limitation is that the mother wait until after the evaluation is completed. Contrast Bower, 469 Mass. at 701.

Although it is unclear whether the mother intends her delegation argument to apply as well to the judgment's contempt provision, we will address that issue for the sake of completeness. The judgment provides that “[c]onsistent with the child's best interests, and as the parent with sole custody, the father may from time to time modify mother's access to the child on such terms and conditions as he deems appropriate.” The judgment then states that “[n]o contempt shall lie in the first instance for father's modifying mother's access provided he does so on the basis of recommendations of the child's therapist and communicates same to mother.” Although this protects the father from contempt sanctions if he changes the mother's access through the specified process, it does not bar the mother from challenging any such change through a complaint for modification. Thus there is no delegation of judicial power to the father.

3. Ineffective assistance of counsel. The mother challenges the judge's decision as resulting from the ineffective assistance of her counsel -- in particular, counsel's (1) stipulation to the father's expert's qualifications, and (2) failure to retain her own expert. Even if we assume arguendo that the mother has a constitutional right to effective assistance of counsel in these circumstances, she has not shown, on this record, a violation of such a right.

“To succeed on an ineffectiveness claim in any case where a right to the effective assistance of counsel is recognized, the effect of counsel's serious incompetency must always be prejudicial.” Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010). Prejudice means a “reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different” (quotation and citation omitted). Id.

Here, the mother has not shown with any specificity how challenging the admissibility of the father's expert's testimony or attempting to retain her own expert would have created a reasonable probability of a different result. The trial record contains no facts at all suggesting either that the father's expert's testimony could have been successfully challenged on Daubert-Lanigan grounds ⁴ or that the mother's counsel could have located an expert whose testimony would have materially assisted the mother.⁵ The mother did not carry her burden of proving ineffective assistance.⁶

4. Attorney's fees. Lastly, the father argues that he should be awarded the attorney's fees, or a portion thereof, he has incurred in defending against this appeal. “A judge has discretion to award fees even in the absence of bad faith or frivolous claims or defenses.” Wasson v. Wasson, 81 Mass. App. Ct. 574, 582 (2012), citing G. L. c. 208, § 38. Here, while the mother's appeal borders on frivolous, the father has not persuaded us that it is in the best interests of the child or otherwise advisable to prolong and complicate this dispute further by awarding fees, and we therefore decline to do so.

Conclusion. The judgment of modification dated August 27, 2015, and entered on September 2, 2015, on the father's amended counterclaim for modification is affirmed.

So ordered.

Affirmed.

FOOTNOTES

1.   Contrary to the mother's argument on appeal, the expert did not testify, nor did the judge find or assume, that the mother suffers from PIF. Rather, the expert clarified, in response to the judge's question, that the PIF diagnosis is “used for the child,” not the adult. And, although a few of the judge's findings may have inadvertently glossed over this distinction (Finding 80 referred to a hypothetical “parent with PIF,” Finding 81 referred to a hypothetical “child whose parent displays PIF,” and Finding 82 stated that in this case the expert “observed signs of PIF in mother's repeated allegations of abuse”), the resulting judgment was clear: it ordered that the child, not the mother, be evaluated for PIF. As to the mother's argument regarding the order for evaluation, see part 2, infra.

3.   The mother also argues that the judgment is essentially a de facto temporary order because it can be changed once the PIF evaluation is completed. We are not persuaded. The possibility that the judgment can be modified, as expressly authorized by G. L. c. 209C, § 20, does not render it impermissibly nonfinal.

4.   See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).

5.   Cf. Commonwealth v. Zinser, 446 Mass. 807, 812 (2006) (“Zinser's claim is not one for which the factual basis appears indisputably on the trial record. On the contrary, his claim is of the sort requiring consideration of new facts -- at a minimum, consideration of the assertions made in the affidavit submitted by a forensic psychologist in support of Zinser's motion” [quotation omitted]).

6.   To the extent that the mother argues that the judge should have expressly engaged in a Daubert-Lanigan analysis even after the mother's counsel stipulated that the witness could testify as an expert, the mother cites no authority for that argument.