CUSTODY OF TAD.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In October, 2018, a judge of the Probate and Family Court issued sua sponte care and protection orders removing Tad and his two siblings from the joint custody of their divorced parents and placing the children in the custody of the Department of Children and Families (department). See G. L. c. 119, § 23 (a) (3). After an evidentiary hearing extending across eight days, the judge found the father fit to parent Tad, and dismissed the care and protection matter as to him; having done so, the judge made a sua sponte order in the parents’ divorce action granting temporary sole legal and physical custody of Tad to the father. The mother filed a timely notice of appeal of the dismissal of the care and protection action relating to Tad. We affirm both the dismissal of the care and protection action and the judge's order granting temporary custody of Tad to the father.
Background. The following facts are not disputed. The appellant is the mother of Tad, a minor child, who was born to his mother and father while the parents were married. The mother and father were divorced by a judge of the Probate and Family Court in 2017 after signing a separation agreement that provided for shared legal and physical custody of Tad and his two siblings. Even after the divorce was final, however, the mother and the father continued to litigate issues related to custody and visitation in a divorce modification proceeding, and also engaged in litigation against each other in other courts. Additionally, reports were made to the department pursuant to G. L. c. 119, § 51A, that the father was physically and sexually abusing the children; the department became concerned, however, that the mother was improperly influencing the children's disclosures concerning the alleged abuse by the father.
Made aware of these concerns in the context of the divorce and post-divorce litigation, on October 22, 2018, the judge initiated care and protection proceedings as to Tad and each of his siblings, and, as we have noted, issued sua sponte orders placing each of the three children in the temporary custody of the department.3 See G. L. c. 119, § 23 (a) (3). In September, 2019, after a temporary custody hearing at which all parties appeared and were represented by counsel, the judge dismissed the care and protection matter as to Tad. Additionally, as part of the divorce modification proceeding, the judge issued a temporary order granting the father sole legal and physical custody of Tad.4
The mother filed a timely notice of appeal of the dismissal of the care and protection matter relating to Tad. She did not notice an appeal of the judge's temporary custody order, nor, on this record, did she seek single justice relief from that order. See E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020) (parent sought single justice relief from temporary custody order).
Discussion. Scope of appeal. Despite having noticed only her appeal from the care and protection matter, the mother's briefing also challenges the judge's decision in the divorce modification proceedings to grant custody of Tad to the father. The father points out that the mother did not take an interlocutory appeal of the temporary order and only filed a notice of appeal in the care and protection matter. See Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 410 (2007). However, as all parties have fully briefed the issues raised by the mother, and no party has claimed to have been misled by the mother's limited notice of appeal, we elect in our discretion to address the issue. Id.
Merits of appeal. Following his sua sponte decision to grant custody of Tad to the department, the judge correctly held a “72-hour hearing” to determine whether temporary custody should remain with the department pending a final custody determination. See Custody of Lori, 444 Mass. 316, 322 (2005) (evidentiary hearing required after Probate Court judge, sua sponte, removed children from parent's custody). At the hearing, the department bore the burden of demonstrating the parents’ unfitness by a “fair preponderance of the evidence” (citation omitted). Care & Protection of Robert, 408 Mass. 52, 68 (1990). The purpose of the 72-hour hearing is “to discover and correct any errors that may have occurred” in the initial removal of the children from their parents’ custody. Care & Protection of Zita, 455 Mass. 272, 276 (2009), quoting Custody of Lori, 444 Mass. at 321 (discussing emergency removal pursuant to G. L. c. 119, § 24). We review the judge's decision for clear error of law or other abuse of discretion, and defer to the judge's assessments of the weight and credibility of the evidence presented at the hearing. See Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012). As the judge correctly recognized, a finding that one or both parents was or were fit to parent Tad permitted dismissal of the care and protection proceeding as to that child. See Care & Protection of Joselito, 77 Mass. App. Ct. 28, 29-31 & n.4 (2010) (Juvenile Court judge had discretion to dismiss care and protection action after Probate Court judge granted custody of child to mother). In light of the parents’ “fundamental liberty interest in maintaining custody of their children,” Custody of Lori, supra at 320, quoting Care & Protection of Erin, 443 Mass. 567, 570 (2005), it follows that where the department fails to meet its burden of showing both parents to be unfit, custody of the children must be returned to the fit parent or parents. See Guardianship of Estelle, 70 Mass. App. Ct. 575, 580-583 (2007) (detrimental impact on child from returning custody to biological parent bears on parent's fitness, but “[s]hould it be determined that the father is fit, he would be entitled to custody [of the child]”). Cf. Adoption of Iris, 43 Mass. App. Ct. 95, 105-106 (1997) (where department failed to meet its burden of demonstrating current parental unfitness, either “additional evidence to warrant a new trial” is required or, “[i]f a new trial is unwarranted ․ a plan for the prompt reunification of the family ․ shall be devised and implemented”).
The mother's due process challenge to the dismissal of the care and protection action on the grounds that she was unaware that the hearing could have implications for custody of Tad is not convincing. Indeed, the judge was explicit that he was conducting a 72-hour hearing on the sua sponte order transferring custody of the children to the department, but that if the department failed to meet its burden of showing that “either parent [was] unfit,” the care and protection action would be dismissed and the judge would “entertain arguments under the current modification” action. It was implicit in the judge's statement that if the care and protection proceeding were dismissed, as it ultimately was, custody arrangements would have to be made for the interim between the dismissal and a final decision on the requested modification. Mindful that the judge's order in the modification case granting temporary custody to the father pending final adjudication of the mother's complaint for modification and the father's counterclaim was just that -- temporary -- we are satisfied that the judge did not deprive the mother of her due process rights. See Spenlinhauer v. Spencer Press, Inc., 81 Mass. App. Ct. 56, 65 (2011), quoting Matter of Angela, 445 Mass. 55, 62 (2005) (“Due process fundamentally requires ‘notice and the opportunity to be heard at a meaningful time and in a meaningful manner’ ”).
We are likewise unmoved by the mother's contention that the judge erred in dismissing the care and protection action as to Tad, but not as to his siblings, without an explanation of his reasoning for doing so. It is well settled that a parent may be fit to parent one child, but not another. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 457 (2018). As we discuss, infra, the judge's findings as to the father's fitness to parent Tad were adequately supported and explained.
The mother also claims that the judge, who presided over both the modification and the care and protection matters, improperly relied on evidence presented only in the modification case, and not in the care and protection proceeding, in concluding that the department had failed to demonstrate the father's unfitness. Assuming without deciding that, as the mother argues, the judge could not rely on his experience and recollections of evidence presented in the original divorce action and its subsequent modification proceedings in finding facts in the care and protection action as to Tad, see Care & Protection of Zita, 455 Mass. at 281-282 (judge erred in child's care and protection action by relying on information learned in separate care and protection action relating to child's siblings), we are satisfied that any error in this case was harmless. First, we conclude that the findings on which the judge's decision turned were supported by and based on the record in Tad's care and protection case,5 and that the result would have been the same had the judge disregarded the evidence in the earlier proceedings. Cf. Care & Protection of Isabelle, 33 Mass. App. Ct. 548, 550 (1992) (error not harmless where judge admitted findings of prior care and protection matter into evidence over objection of mother and relied upon them in later case).
As to the seven specific findings highlighted by the mother as evidence of the judge's taking improper notice of facts learned in prior proceedings involving these same parties, we conclude that in the context of the nearly 1,800 pages of transcript, even assuming that the judge erred,6 the errors did not play a role in the judge's assessment of the father's fitness to parent Tad or Tad's best interests. Cf. Care & Protection of Benjamin, 403 Mass. 24, 27–28 (1988) (error in judge's improper reliance on evidence not harmless where appellate court unable to say with confidence that evidence did not affect custody determination). To the extent the judge's statements suggest assessment of the parties’ credibility, and particularly the credibility of the mother, the evidence at the 72-hour hearing was adequate to support the judge's ultimate determination that the mother's allegations against the father, including her claims that the father abused Tad, were not credible.
Finally, we discern no abuse of discretion in the judge's determination that the department failed to demonstrate the father's unfitness by a preponderance of the evidence.7 The father testified that he did not abuse Tad; the judge credited this evidence. The judge also credited the “compelling” testimony of Dr. Michael Childs, the reunification therapist who worked with the father and Tad, that there was “no evidence in [Dr. Childs's] mind” that the father had abused Tad,8 as well as the testimony of the family's department-assigned social worker, Jeff Quigley, that Quigley had no concerns about Tad's safety with the father. By contrast, the judge discredited Tad's siblings’ accounts of the father's abuse, and credited Dr. Childs's opinion that “over time ․ [the mother] was increasingly manipulating the children to make statements against the father.” Having determined that there was no immediate danger of serious abuse or risk of harm to Tad in the father's custody, there was no longer a need for the department to retain custody of that child; the judge acted properly in dismissing the care and protection action as to Tad.
Conclusion. We affirm the judgment dismissing the care and protection action as to Tad, as well as the order dated September 6, 2019, in Case No. HS14D0214DR, granting temporary custody of Tad to the father.
3. This was the second time the judge issued such orders relating to these children. The first orders issued on June 7, 2018, and were superseded by the judge's July 19, 2018, order of temporary custody based on the parents’ agreement as part of their divorce proceeding.
4. The order did not apply to Tad's siblings.
5. For example, concerning the judge's findings about the mother's behavior, including her “inability to follow orders of [the court],” the department presented evidence from which the judge could have determined that the mother attempted to manipulate and mislead courts in both Massachusetts and New York in the course of obtaining restraining orders against the father. Additionally, the mother herself confirmed that she had been found in contempt of court orders requiring her to facilitate contact between the father and the children.
6. We note that the mother's counsel did not object to the judge's statements at the time they were made.
7. Although, at the time of the 72-hour hearing, the department contended that the father was unfit, on appeal, the department concedes that the evidence supported the judge's conclusion that he was not.
8. Or, in fact, any of the three children.
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