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ADOPTION OF WILMA v. << (2021)

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Appeals Court of Massachusetts.

ADOPTION OF WILMA (and a companion case 1).


Decided: October 22, 2021

By the Court (Rubin, Milkey & Henry, JJ.2)


These consolidated appeals involve the welfare of siblings Wilma and George, who were born in 2016 and 2018, respectively.3 After separate trials, a Juvenile Court judge issued decrees that, inter alia, found the children in need of care and protection, found the mother unfit, awarded permanent custody to the Department of Children and Families (DCF), terminated the mother's parental rights, and approved plans for the children to be adopted.4 The mother then filed a motion for a new trial applicable to both cases, alleging ineffective assistance of counsel. The trial judge denied that motion following a nonevidentiary hearing. The mother has appealed from both decrees and from the denial of her motion for a new trial. We affirm.

Background. The mother and father met in 2014 when she was eighteen years old and he was in his late forties. They married in December of 2015, one month before Wilma was born. The judge found that the father played a domineering and controlling role in the relationship and that he subjected the mother to psychological abuse.

At the heart of this case is an incident that occurred when Wilma was only twelve days old. The mother and father brought her to the hospital with a serious head injury revealed to be “a large skull fracture to the right side of [her] head” as well as “a hemorrhage inside her brain.” The father initially speculated that Wilma may have bumped her head against her bassinet, but the parents eventually settled on the theory that the head injury was caused by a vacuum extraction procedure used during Wilma's birth. At no point did either parent maintain that Wilma's head injury was caused by an accidental fall. In addition, the evidence revealed various suspicious circumstances surrounding Wilma's injuries. For example, the mother kept changing her version of the events of the day (e.g., what time she awoke), and she sent the father a text message saying, “Remember if they ask what time we noticed the bump was at 11:00.” At one point, the father reportedly told a DCF social worker that “íf [he] wanted to hurt [his newborn daughter, he] would have just smashed her against the wall.”5

At both trials, DCF's medical expert explained that Wilma's injuries could not have been caused by the vacuum extraction procedure, because such injuries would have been revealed prior to her being discharged from the hospital after her birth. He also explained that while it was possible that Wilma's injuries were caused by an accidental fall, it was “exceedingly unlikely.” In his opinion, they were far more likely caused by intentional conduct. The expert based this conclusion at least in part on the fact that Wilma also suffered a laceration to her spleen, an injury unlikely to occur in a fall, especially where the spleen injury was on her left side and the skull fracture on her right. The father did not appear at the first trial, which involved Wilma. At the subsequent trial involving George, he appeared but pleaded the Fifth Amendment to the United States Constitution when asked about Wilma's injuries.

The judge did not make any findings as to which parent directly caused Wilma's injuries. DCF's theory, which the judge accepted, was that even if Wilma's injuries were directly inflicted by the father, the mother failed to protect her newborn daughter and affirmatively neglected her. There was ample evidence to support such findings apart from the horrific injuries that Wilma suffered. For example, at a supervised visit in the hospital after Wilma had been placed in DCF's custody, the mother insisted that the father be allowed to hold Wilma even though “he was nodding off -- falling asleep while holding her.” When the social worker present intervened, the mother excused the father's behavior, saying that he was “just tired.”

DCF's concerns were not limited to fears that the children would be subjected to active abuse. For example, DCF was concerned throughout the proceedings about the parents’ ability to provide their children a secure and stable home. For most of the relevant period, the parents were essentially homeless, living at times in makeshift tents that presented significant dangers.

Even after DCF's initial intervention, its goal was reunification, and DCF prepared several action plans to try to prepare the mother for regaining custody. The mother's compliance with those plans was spotty at best, and the judge found that her “minimal service plan engagement, on the eve of trial, was insufficient to address the barriers to safe parenting.”6

Discussion. 1. Ineffectiveness of counsel. The mother's lead argument is that her trial counsel was constitutionally ineffective. To make out a claim of ineffectiveness, the mother was required to demonstrate both that the “behavior of [her] counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer,” and that the shortcomings “deprived [her] of an otherwise available substantial ground of defence.” Care & Protection of Stephen, 401 Mass. 144, 149 (1987), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Where a strategic choice is at issue, ‘[a]n attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made.’ ” Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Especially where, as here, the motion judge was the trial judge, our review of whether the judge erred in denying the mother relief from the decrees is highly deferential. Specifically, the “judge's decision will not be overturned, except upon a showing of a clear abuse of discretion.” Adoption of Yvonne, 99 Mass. App. Ct. 574, 582 (2021).7 This generally “requires a showing of extraordinary circumstances” (quotation and citation omitted). Id. at 584.

In arguing ineffectiveness, the mother focuses especially on trial counsel's handling of three experts. We address the three experts in turn.

At the outset of the case, the mother's counsel consulted with Dr. Joseph Scheller, a pediatric neurologist, regarding Wilma's head injuries. In support of the mother's motion for new trial, Dr. Scheller submitted an affidavit summarizing his conclusions on the topic. Dr. Scheller agreed with DCF's expert that Wilma's injuries were caused by trauma that she suffered after she left the hospital following her birth. Thus, Dr. Scheller's testimony would have contradicted the mother's claim that Wilma's injuries were caused by the vacuum extraction procedure -- the only potential alternative explanation that the mother had endorsed. Under these circumstances, counsel cannot be faulted for declining to make greater use of Dr. Scheller.

To be sure, Dr. Scheller's after-the-fact affidavit did go on to state his opinion that Wilma's “injuries are consistent with an accidental fall,” and he specifically questioned the conclusions that DCF's expert drew regarding Wilma's spleen injury and whether she even suffered such an injury. However, DCF's own expert acknowledged the possibility that Wilma's injuries could have been caused by an accidental fall. At best, Dr. Scheller's testimony went to the degree of likelihood that Wilma's injuries could have been caused by an accident, something that was of limited import given that the mother never claimed such an accident occurred. Especially where the only alternative explanation offered by the mother would have been contradicted by Dr. Scheller's testimony, and where the attendant circumstances provided ample reasons to reject an innocent explanation for Wilma's injuries, we discern no reversible error in counsel's declining to make greater use of Dr. Scheller.

The mother fares no better with regard to counsel's declining to make greater use of a second expert, Mary English, who performed a parenting evaluation of the mother. Specifically, the mother faults her trial counsel for not submitting the report that English prepared and for not calling English as a witness. To be clear, we agree with the mother's characterization of English's report as painting a highly favorable picture of some of her parenting abilities. However, the focus of that report was narrow and limited principally to the mother's appropriate behavior during supervised visits with the children. Evidence that was admitted at trial already portrayed the mother as skilled in that setting, and in her findings, the judge in fact credited the mother for “consistently visit[ing] Wilma during the course of the proceeding,” and for being “engaged and caring with her.”

Moreover, had counsel sought to call English as a witness, this would have opened various topics for potentially devastating cross-examination. For example, English based her favorable report in part on what the mother had told her about Wilma's injuries and the father's overall behavior. She understood that Wilma's injuries were caused by the vacuum extraction procedure, a premise that, as noted above, was demonstrably false. Based again on what the mother had told her, English understood the father to be a supportive and responsible partner, something that also was completely at odds with trial evidence. Under these circumstances, counsel cannot be faulted for not seeking to make greater use of English, and it is difficult to see how English's testimony would have provided the mother any significant benefit. This is especially true given counsel's evaluation that English would have been a “train wreck” on the stand.8

One final issue regarding English's parenting evaluation bears mention. At the first trial, aware that such a report had been prepared, the judge indicated that she was drawing a negative inference from the mother's failure to submit it. The mother argues on appeal that because it could be assumed that the judge would continue to draw such an inference in the second trial, counsel had nothing to lose by using the report during that trial. This argument is not without some force. However, the negative inference the judge drew appears to have played a minor role in her decision and the English report had little favorable to add beyond that for which the judge already was giving the mother credit. Under these circumstances, we conclude that any negligence by counsel regarding the English report is not sufficient to warrant a new trial.

Nor do we see any significant merit in the claims the mother has raised with regard to the parenting evaluation done by psychologist David Partyka. The parties stipulated to the introduction of Partyka's report without live testimony. Partyka's evaluation of whether the mother was likely to abuse or neglect her children was decidedly mixed. He provided some reason for optimism on this front, as well as some significant cautions. The nature of Partyka's conclusions raised obvious strategic questions regarding how best to approach his report and whether to call him as a witness. These challenges are reflected in the diverse nature of the ineffectiveness arguments that the mother now tries to mount. She faults counsel both for relying on Partyka (by stipulating to the admission of his report) and for not making greater use of him (by calling him as a witness). For present purposes, it suffices to say that the mother has not shown that any of the choices that counsel made with respect to Partyka were manifestly unreasonable.

The mother gains somewhat more traction in pointing to counsel's failure to submit proposed findings and rulings at the conclusion of both trials. In fact, the transcript of the second trial indicates that the mother's counsel waived closing argument because he was planning to submit proposed findings and rulings, and then ended up doing neither. For purposes of our analysis, we assume arguendo that counsel's failure to present closing argument and proposed findings and rulings at the second trial fell measurably below that of ordinary fallible counsel, thus satisfying the first prong of the familiar Saferian test.9 Saferian, 366 Mass. at 96. Nevertheless, we conclude that the mother has failed to satisfy the second prong by demonstrating sufficient prejudice to warrant a new trial. See id. In this regard, we note that the mother's counsel did provide a closing argument during the first trial in which counsel forcefully marshaled the facts in his client's favor. The second trial began only six months after the first ended, so the universe of newly generated evidence was limited. In addition, although the mother did not provide closing argument at the second trial, the father did do so, and his closing argument focused on the mother's deserving a second chance to demonstrate her parenting skills.10

In sum, although we take a somewhat dimmer view of counsel's representation of the mother than the trial judge took, any deficiencies were not of a sufficient magnitude to warrant a new trial.11 In our view, the mother has not demonstrated that there were “extraordinary circumstances” present, as would be necessary to demonstrate that the judge abused her discretion in denying the mother's motion for a new trial. Adoption of Yvonne, 99 Mass. App. Ct. at 584.

2. Merits. “While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous” (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). With one notable exception, the mother does not appear to challenge the judge's subsidiary findings, which, in any event, enjoy ample support in the record. The notable exception has to do with the judge's finding that one of the parents deliberately injured Wilma while the other did nothing to intervene or prevent such harm. We conclude that this finding was well-supported by the evidence, which was significantly stronger than that in the case on which the mother relies. See Adoption of Zoltan, 71 Mass. App. Ct. 185, 189-190 (2008). Combined with other concerns about the mother's ability to provide the children a safe and stable home, the evidence regarding the physical abuse of Wilma provided ample support for the judge's ultimate finding of unfitness.12

The mother contends that the judge erred in concluding that her unfitness would continue for the indefinite future. She maintains that the judge should have assigned more weight to the evidence of her making some positive strides, especially with regard to her efforts to end her relationship with the father.13 The mother suggests that to the extent she is not currently fit, she should have been given additional chances to demonstrate her ability to be a fit parent.

The mother is, of course, correct that “[u]nfitness does not mandate a decree of termination.” Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). However, it is unfair to leave a child in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005). As time passes, it becomes increasingly important that a child obtain a stable, safe, and nurturing home environment. While there may have been indications at the time of the second trial that the mother's most recent efforts might hold some promise, “it is only fair to the children to say, at some point, ‘enough.’ ” Id. The judge did not abuse her considerable discretion in concluding that that point had been reached in this case.14

In the end, “[w]hile 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.’ ” Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching “best interests” standard in mind, we discern no error in the judge's decision to terminate the mother's parental rights. Both children had been placed in preadoptive homes where they apparently were doing well, and both support their being adopted. Now five years old, Wilma has lived with the mother a mere twelve days of her life, and George -- now three -- not at all. The judge did not abuse her discretion in concluding that termination was warranted and adoption was in each child's best interests.

Decrees affirmed.

Order denying motion for new trial affirmed.


3.   The two cases were paired for oral argument, but the motion to consolidate them formally was denied. We now revisit the motion and allow it.

4.   The father also was found unfit and his rights were terminated as to both children. He has not appealed.

5.   The father engaged in many other concerning statements and behaviors. As but one example, he threatened to stab Wilma's foster father -- the father's nephew -- and to burn down his house. The judge's finding that the father “by all reports [was] unstable and unsafe” is well supported by the record.

6.   This finding was made after the first trial. After that trial concluded, the mother's engagement in services deteriorated. In fact, the mother “stopped engaging in all services and visits with George for a period of time.” After that, the mother “reengaged in visits and some services, but these periods [of] infrequent engagement [were] not enough to address the concerns that have been largely ignored since January of 2016.”

7.   The mother's motion for a new trial was in substance a motion for relief from judgment, and we look to the law developed under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), by analogy. See Adoption of Yvonne, 99 Mass. App. Ct. at 582.

8.   To be clear, we do not give any weight to counsel's reported statement that he did not try to utilize English's parenting report because it “contained information that was cut and pasted from another evaluation.” We discern no obvious “cutting and pasting” on the face of the report.

9.   We respectfully disagree with the judge's suggestion that failure to prepare proposed findings and rulings could not amount to ineffective assistance because the applicable rules do not require them.

10.   By this point, the father had foresworn retaining his parental rights and instead had turned to advocating for the mother not losing hers.

11.   We discern little merit in the mother's claim that trial counsel was ineffective by not adequately preparing her for trial or ensuring that she received the services she needed.

12.   As we previously have stated:“We pause to note that the mother has shown evident affection toward [the children], and none of the judge's findings negate this. Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision was not a moral judgment or a determination that the mother ․ do[es] not love the child[ren]. The inquiry instead is whether the parent[’s] deficiencies or limitations ‘place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren].’ ”Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

13.   At the first trial, the judge recognized that the mother had filed for divorce but declined to “credit [her] statements that she is actually ending her relationship with [the f]ather; in fact, she remains very much susceptible to his demands and manipulations.” By the time of the second trial, the mother was living with a new boyfriend and his family. She nevertheless still had not completed service of the divorce complaint on the father. The judge concluded that “this is further evidence of [the m]other's passive approach to ending her relationship with [the f]ather; while the divorce may end their legal relationship, she remains highly susceptible to his demands and manipulations.” In fact, the judge specifically found that “[i]f George were returned to [the m]other's care, it appears highly likely that she would have continued contact with [the f]ather, who, by all reports, is unstable and unsafe, exposing George to abuse and neglect.”

14.   To the extent that the mother argues that DCF did not make reasonable efforts to keep the family together, this argument was not raised below and therefore was waived. See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020).

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