ADOPTION OF QUINTARO v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves the welfare of Quintaro, born in August of 2013. After trial, a Juvenile Court judge issued a decree that, inter alia, found the child in need of care and protection, found the mother unfit, terminated her parental rights, and approved a plan of adoption by recruitment.³ Based on an evidentiary error that the Department of Children and Families (DCF) has acknowledged, we vacate the decree and remand the case for a new trial.

The conceded error. Over the mother's objection, the judge allowed the mother's domestic violence counsellor to testify about their privileged discussions. As DCF now acknowledges, this was error, because by statute, an absolute privilege applies. See G. L. c. 233, § 20K.⁴ The mother did not waive that privilege by signing a release of information allowing the domestic violence counsellor to share information with identified DCF social workers.⁵ The question then is whether the evidentiary error warrants allowing the mother a new trial. See Adoption of Sherry, 435 Mass. 331, 336 (2001) (“we need not disturb a judgment when error did not affect the outcome”).

We agree with DCF that much of the domestic violence counsellor's testimony was largely duplicative of other evidence, e.g., with respect to the mother's aggressive affect. As the mother highlights, however, even to that extent, the testimony had some potential significance, because the domestic violence counsellor was the only outside witness to testify. In any event, there was one significant piece of evidence that only the domestic violence counsellor provided, namely, the mother's admission to her that she sometimes traded sex for assistance with meeting her basic needs. The parties dispute just how significant this revelation was to the judge's decision to find the mother unfit. As the mother points out, given the nature of this evidence, it is at least somewhat “inflammatory.” Commonwealth v. Flebotte, 417 Mass. 348, 352 (1994). At the same time, as DCF accurately points out, the judge did not dwell on the point at length, nor did she return to it in her conclusions of law. Were the other evidence of the mother's unfitness overwhelming, we would not hesitate to affirm despite the evidentiary error. However, while the other evidence certainly raised legitimate concerns about the mother's fitness, we are unable to say with confidence that the judge would have found the mother unfit and terminated her parental rights had the domestic violence counsellor's testimony properly been excluded.

DCF raised three principal types of concerns about the mother's fitness. The first was the difficulty the mother exhibited in maintaining stable housing, holding down a job, and completing her schooling. Without seeking to minimize those concerns, we note that the mother was approximately sixteen years old when she gave birth to the child, and she had just turned twenty-two when the termination trial began.

The second major concern was that the mother chronically was late in attending scheduled visitations with the child, which DCF social workers observed caused him some distress and may have caused some behavioral problems.

The third major concern was that the mother was quick to anger, and others felt threatened by her (making for difficult relations between the mother and DCF social workers). The judge expressly found that the “[m]other's temperament is volatile, and she continues to struggle with anger management at the time of trial, despite having completed multiple courses in anger management.” Most potentially concerning in this regard was some evidence that the mother's bellicose nature had erupted into incidents of actual violence on two occasions. One was an incident in which the mother allegedly slammed a door at her son's day care center causing a hand injury to a worker there. The other was an incident in which the mother allegedly had an altercation with her grandmother during which the mother drew a knife (with her grandmother and the mother's great uncle suffering some injuries in the process). It bears noting, however, that DCF's efforts to document these incidents relied on written reports that included multiple levels of hearsay and conflicting accounts of what happened. DCF presented no eyewitness testimony regarding the incidents, and the witnesses that DCF did supply provided testimony that was less than robust. For example, with respect to the incident with the mother's grandmother, a DCF social worker made it clear that she not only lacked any personal knowledge of the incident, but also that she did not even know whether it was the mother or the mother's grandmother who supposedly was wielding the knife. Perhaps because of the limited nature of the trial evidence, the judge made no findings about the mother's specific role in the incidents, referring instead to the “allegations” that were raised.⁶

None of this is to say that DCF failed to raise serious concerns about the mother's parental fitness. It did. Nevertheless, the behaviors the mother exhibited are not so obviously disqualifying that we confidently can say that the judge would have come to the same conclusions had the domestic violence counsellor's testimony been excluded.

In deciding that a remand is appropriate, we have considered the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 61 (2011) (“While courts protect the rights of parents, the parents' rights are secondary to the child's best interests and ․ the proper focus of termination proceedings is the welfare of the child” [quotation and citation omitted] ). As of the close of the trial record, DCF's adoption plan -- even if legally sufficient as DCF maintains -- was relatively unformed. See Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). It is uncontested that no preadoption resource had been identified at that time, and the child's documented behavioral issues provided some reason to question the likelihood of adoption.

Almost two years have now passed since the trial record closed. In response to an inquiry at oral argument, the child's attorney has represented that a potential adoption resource has been identified. The mother's circumstances have also changed in that the mother gave birth to a daughter directly after the trial ended and reports that she currently is raising that child. On remand, the judge will be in a position to hear evidence of the changed circumstances on both sides that may be relevant to the decision on fitness, termination, and visitation.⁷

We close with one observation. Litigation is often a blunt instrument with which to address the difficult circumstances of cases such as this. We encourage all parties to consider whether a negotiated resolution might better serve the interests of all involved, including most especially those of the child.

We vacate the decree and remand this case for a new trial.⁸

So ordered.

Vacated and remanded

FOOTNOTES

3.   The paternity of the child was not established.

4.   The statute states in pertinent part as follows:“A domestic violence victim's counselor shall not disclose ․ confidential communication without the prior written consent of the victim, except as hereinafter provided. Such confidential communication shall not be subject to discovery in any civil, legislative or administrative proceeding without the prior written consent of the victim to whom such confidential communication relates.”

5.   The Supreme Judicial Court initially granted direct appellate review of this appeal, but remanded the case to our court after DCF conceded error.

6.   It is not clear whether the judge nevertheless held such “allegations” against the mother. If so, this would have been improper. See Adoption of Chad, 94 Mass. App. Ct. 828, 841 (2019), and cases cited (“Unless such allegations were substantiated at trial, however, the mother's parental rights could not be terminated based on them”).

7.   We leave it to the judge on remand to decide how much visitation, if any, should be allowed in the interim. However, we note that to the extent that the trial judge found that no significant bond existed between the mother and the child by the conclusion of trial, that finding was clearly erroneous. We need not decide whether the trial judge abused her discretion in declining to order posttermination visitation.

8.   We recognize that the trial judge has retired and that the case therefore will need to be assigned to a new judge on remand. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 88 (1991). Relevant and material findings by the first judge that are not out of date are admissible in a new trial, although the parties and the judge are not bound by them, they carry no special evidentiary weight, and if admitted, evidence may be offered by any party as to any of the issues covered by the prior findings, either to support or contradict them. See Adoption of Paula, 420 Mass. 716, 721-722 (1995). The new judge may not simply take judicial notice of facts or evidence brought out in a prior hearing or trial. Care & Protection of Zita, 455 Mass. 272, 281-282 (2009).