Adoption of Nova.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-451

ADOPTION OF NOVA. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees entered by a

judge of the Juvenile Court terminating their parental rights to

their child, as well as the denial of their posttrial motions.

We affirm.

Background. Between 2016 and 2019, the mother and the

father (parents), the biological parents of Nova (child), were

licensed foster parents, approved to provide foster care by the

Department of Children and Families (department). In July 2019,

two foster children who had been placed in the parents' home

disclosed significant and serious sexual abuse, including rape,

by the father. The foster children participated in forensic

interviews and the father was subsequently arrested on a number

of charges, including six counts of aggravated rape of a child

1 A pseudonym.
with force and nine counts of indecent assault and battery on a

child under fourteen years old. The father, upon making bail,

was released with conditions prohibiting any unsupervised

contact with minors. Those charges were still pending at the

time of trial.

These disclosures motivated the filing of a report pursuant

to G. L. c. 119, § 51A (51A report), alleging sexual abuse and

neglect of the child by the father and neglect by the mother.

Following an investigation, the allegations of sexual abuse by

the father were unsupported, but the allegations of neglect by

the mother and the father were supported. The department

conducted an emergency removal of the child and filed the

underlying care and protection petition.

Less than a month later, in August 2019, a 51A report was

filed alleging sexual abuse of one of the former foster children

by the mother following that child's disclosure that the mother

touched her in her "private parts" and showed her pictures of

the mother and the father having sex. The former foster child

alleged that the mother was aware that the father had been

sexually abusing the foster children. The allegations of sexual

abuse by the mother were investigated and supported.

In September 2019, when the social worker was transporting

the child, then age four, to her first visit with the father

since she had been removed, the child asked the social worker

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whom she was going to visit. When the social worker told the

child she was going to see her parents, the child started

giggling and covered her face. She stated that she took a lot

of showers with the father, during which neither of them was

wearing any pants, and that she felt weird because she was not

wearing pants. She also stated that the father was frequently

naked and exposed his "privates and his belly," which made her

feel weird because he was not wearing any pants. The child

explained that the mother was home during the times the child

showered with the father and that sometimes she showered with

both parents. Based on those statements, the department

arranged to have the child participate in a forensic interview,

which took place the following month, in October 2019. During

the interview, the child said only that she takes showers with

"daddy" but added no detail.

In September 2020, when the child was five years old, she

participated in the first of two trauma evaluations. The

evaluation consisted of four clinical interviews. During the

second session, the child stated that the father tickled her a

lot; that she was on the bed with no clothes on and he touched

her front and back "tushie"; that he tickled her with his

fingers and that "Mommy was there and said it was okay"; that he

poked her with his finger and "did stuff to Mommy too"; and that

she and the father and the mother shower together a lot.

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During the third session, the child stated that the father

touches her in the shower and in the bed and that she had seen

him touch her half-sister too. She also stated that she did not

like it when the father asked her to touch his "pee pee." She

stated, "[I]t got real big like a cucumber." The child again

stated that the mother was there, and that the mother did not

like the father touching the mother's "tushie." She also talked

about being scared because she gets hurt and being scared that

she will get hurt. During the final session, the child again

stated that the father touched her half-sister, that he tickled

her half-sister's private parts with his fingers, and that

"mommy was there." At this point in the interview, the child

began to throw toys on the floor, made random guttural sounds,

and laughed frenetically. Throughout the sessions, the

interviewer noted that following the child's disclosures, her

"behavior was marked by increased agitation and aggression," and

that she "repeatedly expressed feeling unsafe both in words and

in symbolic play."

In late October 2020, the child participated in a second

forensic interview. During this interview, when the child was

asked about the tickling she had previously disclosed, the

child's demeanor changed. The child stated that she was worried

about her mother and father and then grabbed a pillow, stating

that she needed to hug something soft. Due to the child's

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reaction, the interview was suspended and a second session was

scheduled. During the second session, when the child was again

asked about tickling, she became quiet and would not answer any

follow up questions. She stated that her heart was running and

she did not want to talk about her family because it made her

feel shy. The interview was again terminated based on the

child's reaction.

The child participated in a second trauma evaluation

between April 2022 and July 2022. She was seven years old.

When talking about forms of touch, the child was observed to

become uncomfortable. When asked questions about "private

parts," the child stated that she did not like to talk about

that because "it made her scared, sad, and uncomfortable." She

later stated that tickling made her feel nervous and that her

father tickled her everywhere before she was placed in foster

care. The child then told the interviewer that she thought the

interviewer was going to ask her about her "tushie," pointing to

her vaginal area and anus. The child continued, stating, "I

don't want to say it. It doesn't happen now, and I don't like

that people did that to me. People don't touch private parts at

school."

During the next session, the child spontaneously stated

that no one touches her private parts now. She stated that her

mother and her father touched her private parts to clean, but

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maybe her father touched her private parts "on accident." The

interviewer attributed this statement to the child's attempt to

avoid acknowledging the reality of what had happened to her.

The child also stated that she sometimes felt unsafe and scared

when she was living with her parents. After a brief break, she

stated that she was "safe now," and that her foster parents do

not touch her private parts. Towards the end of the session,

the child had curled up in a ball and was having a difficult

time. She told the interviewer that the house she was in now

(the foster home) was "so safe."

In 2022, at a hearing on the department's motion to admit

the statements described above pursuant to G. L. c. 233, § 82

(§ 82 hearing), the judge heard testimony from the social worker

assigned to the child's case and from the clinicians who had

conducted the trauma evaluations. She considered twenty-eight

exhibits, including the written reports from the evaluations.

The social worker testified to the statements the child made to

her during the car ride to and from the child's first visit with

her father, as well as the circumstances in which the statements

were made, and the child's demeanor. The clinicians, each of

whom was qualified as an expert in sexual abuse trauma

evaluations, testified to the statements the child made and the

behavior they observed during the evaluations. The clinicians

also testified that the child's behavior was consistent with

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that of a child victim of sexual abuse. Both the mother's and

the father's trial counsel cross-examined the witnesses.

The judge credited the testimony of each witness as well as

the opinions of the clinicians. The judge found the child's

statements to be reliable, noting the multiple, consistent

statements of sexual contact, the circumstances in which the

child's initial disclosure was made, the detailed nature of the

statements, the child's behavior when making the statements and

during the interviews, as well as the child's statements

relative to her feelings about the sexual contact. The judge

ruled that the child's statements regarding sexual contact were

admissible at the termination of parental rights trial.

Following the trial, the judge found the mother and the

father unfit to parent the child, terminated their parental

rights, and approved the department's plan of adoption with the

child's current preadoptive parents. The father filed a motion

for a new trial, and the mother filed a motion for relief from

judgment and for new trial based on ineffective assistance of

counsel (posttrial motions). Those motions were denied and the

parents appealed.

Discussion. 1. Denial of posttrial motions. Parents may

seek to vacate decrees "by analogy and under the 'cogent

standard' of Mass. R. Civ. P. 60 (b)[, 365 Mass. 828 (1974)]"

(citation omitted). Adoption of Yvette (No. 1), 71 Mass. App.

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Ct. 327, 335 n.9 (2008). We review an order denying a rule 60

(b) (6) motion for "clear abuse of discretion" (citation

omitted). Adoption of Yvonne, 99 Mass. App. Ct. 574, 583-584

(2021) (discussing relevant factors in rule 60 [b] [6]

analysis). Where, as here, the "motion judge and the trial

judge were one and the same, we extend special deference."

Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 811 (2008).

a. Constructive denial of counsel (father). We are not

persuaded by the father's argument that trial counsel's alleged

failings were so egregious as to amount to the constructive

denial of counsel, thereby relieving the father of his

obligation to prove prejudice. Cf. United States v. Cronic, 466

U.S. 648, 659-660 & n. 25 (1984) (Court has "uniformly found

constitutional error without any showing of prejudice when

counsel was either totally absent, or prevented from assisting

[the client] at a critical stage of the proceeding").

Here, the father argues that counsel's "unilateral

decision" to concede his parental unfitness amounts to a

constructive denial of counsel. The record does not support his

claim. Counsel's affidavit indicates that the father directed

her to request that permanent custody of the child be granted to

the paternal grandmother, and that many strategic decisions were

8
based on this stated goal. 2 Where counsel was acting at the

father's direction, the judge did not err in concluding that a

showing of prejudice was required.

b. Ineffective assistance of counsel (both parents). To

prevail on a claim of ineffective assistance of counsel, each

parent must show that counsel's performance fell "measurably

below that which might be expected from an ordinary fallible

lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and

that they were prejudiced. See Adoption of Azziza, 77 Mass.

App. Ct. 363, 368 (2010), citing Adoption of Holly, 432 Mass.

680, 690 (2000). See also Care & Protection of Georgette, 439

Mass. 28, 33-34 & n. 7 (2003). "[W]here 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" (quotation and citation omitted).

Adoption of Azziza, supra. Deference is given to counsel's

tactical decisions. Commonwealth v. White, 409 Mass. 266, 273

(1991); Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

i. The mother's claims of ineffective assistance of

counsel. The mother argues that her counsel was ineffective in

2 This position is in keeping with the father's
representation at the September 2020 status hearing, held after
the child's goal had been changed to adoption, that he would
stipulate to permanent custody, and that it "comes down to
placement" of the child.

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failing to properly challenge the admission of the child's

statements at the § 82 hearing and failing to present positive

evidence about the visits between the mother and the child. As

to the § 82 hearing, the mother specifically faults counsel for

not engaging an expert in autism, and for failing to call the

child's previous clinicians as witnesses to contest that the

child's behavior corroborated her statements of sexual abuse.

We are not persuaded. Counsel's challenged performance cannot

be said to fall measurably below that of an ordinary fallible

lawyer where the evidence included the February 2019

neuropsychological evaluation report, which detailed the

behaviors that led to the child's diagnosis of mild autism

spectrum disorder, and the mother's counsel cross-examined the

expert witnesses about the similarity between the behaviors that

supported the child's diagnosis of autism spectrum disorder and

behaviors stemming from sexual abuse.

The mother also maintains that counsel was ineffective in

failing to present "[e]vidence of the warmth, affection, and

comfort in the mother-daughter relationship." Given the details

of the mother's positive visits with the child contained in the

court reports prepared by the department pursuant to G. L.

c. 119, § 21A and submitted in evidence, we find the mother's

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argument unpersuasive. 3 Those court reports contain similar, if

not the same, information as the dictation to which the mother

cited to support her claim, and the judge made findings

favorable to the mother in that regard.

The mother also identifies what she contends are critical

contradictions in the judge's various articulations of the

reasons for the denial of the mother's request for visitation.

Although the judge's findings on this issue are not entirely

consistent, any inconsistencies did not give rise to prejudicial

error. An order for postadoption contact must be "grounded in

the over-all best interests of the child, based on emotional

bonding and other circumstances of the actual personal

relationship of the child and the biological parent." Adoption

of Vito, 431 Mass. 550, 563, 562 (2000). Where other

circumstances, including the mother's denial of the sexual abuse

and her potential residency with the father, indicated that

visitation would not be in the child's best interests, the judge

did not abuse her discretion in declining to order any

3 The mother's argument that counsel was ineffective for
failing to request posttermination and postadoption visitation
is similarly unpersuasive, as the judge's authority to order
such visitation is "rooted in [the judge's] broad equitable
powers," which include the ability to issue a "sua sponte order
of visitation." Adoption of Odetta, 87 Mass. App. Ct. 576, 578
(2015), citing Youmans v. Ramos, 429 Mass. 774, 780-784 (1999).

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posttermination or postadoption contact. See Adoption of

Xarissa, 99 Mass. App. Ct. 610, 623-624 (2021).

Even if we concluded that counsel's performance fell

measurably below that of an ordinary fallible attorney, there

was no showing of prejudice. The mother presented no reason for

us to conclude that, had counsel consulted the experts and

presented the evidence discussed above, the outcome would have

been different. See Commonwealth v. Amirault, 424 Mass. 618,

652 (1997), quoting Strickland v. Washington, 466 U.S. 668, 693

(1984) ("not every error that conceivably could have influenced

the outcome undermines the reliability of the result of the

proceeding"). Thus, the judge did not err in denying the

mother's motion for relief from judgment and for new trial.

ii. The father's claims of ineffective assistance of

counsel. The father alleges that his trial counsel's decision

not to consult certain experts or to introduce evidence that the

father's mother had been approved as a foster placement for the

child was ineffective assistance. 4 A review of counsel's

affidavits submitted in support of the father's motion for a new

trial indicates that her decisions regarding witnesses and other

4 The father also maintains that counsel was ineffective in
failing to request "readily available first-hand evidence of the
children's interviews." We are unpersuaded. The record reveals
that the father's counsel had access to 51A and G. L. c. 119,
§ 51B reports related to the foster children's interviews.

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evidence were strategically directed toward furthering the

father's stated goal of having the child in his mother's

permanent custody. Counsel also took into account the potential

impact that challenging the father's unfitness, and specifically

the allegations of sexual abuse, would have on his pending

criminal case. Given this evidence of thoughtful consideration

and in light of the father's pending criminal charges for child

sexual assault -- for which, if convicted, he could be facing

life imprisonment -- counsel's decisions were not manifestly

unreasonable. See Adoption of Azziza, 77 Mass. App. Ct. at 368.

The father also contends that counsel was ineffective for

not permitting him to testify, citing counsel's misunderstanding

of the law regarding the father's privilege under the Fifth

Amendment to the United States Constitution. The father's

argument overlooks the fact that counsel gave this advice after

consulting with his criminal defense attorney, with whom trial

counsel consulted throughout the case and who specifically

instructed her and the father that the father should not

testify. 5

Even were we to conclude that counsel's performance was

ineffective, there was overwhelming evidence of the father's

5 We note that the father's testimony could have been used
to impeach him in his criminal trial, see Care and Protection of
M.C., 479 Mass. 246, 262 n.9 (2018).

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unfitness and, therefore, no prejudice. The father was

unavailable to parent his child due to the conditions of

pretrial release that prohibited him from having any

unsupervised contact with minors, including his own, and was

facing life imprisonment. There was no error.

iii. Lack of evidentiary hearing. We are not persuaded by

the father's argument that the judge was required to grant an

evidentiary hearing on his motion for a new trial.

"Whether to hold a hearing on a motion for a new trial is
within the judge's discretion, . . . and the judge may
'decide a motion for a new trial without an evidentiary
hearing where no substantial issue is raised by the motion
or affidavits.' . . . When the motion judge is also the
trial judge, as in this case, she may use her 'knowledge
and evaluation of the evidence at trial in determining
whether to decide the motion for a new trial without an
evidentiary hearing.' . . . We give substantial deference
to a judge's conclusion in this regard."

Commonwealth v. Morgan, 453 Mass. 54, 64 (2009). In light of

the discussion above, we see no abuse of discretion in, and

therefore no reason to disturb, the trial judge's conclusion

that the motion and affidavits raised no substantial issue

requiring an evidentiary hearing.

2. Child's statements regarding sexual abuse. A child's

out-of-court statement regarding sexual abuse is admissible

pursuant to G. L. c. 233, § 82, provided, among other things,

that the judge finds the statement reliable. Specifically, the

judge must find that the "statement was made under circumstances

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inherently demonstrating a special guarantee of reliability."

Id. A judge considers four factors when assessing the

reliability of the statements: i) "the child's capacity to

observe, remember, and give expression to that which such child

has seen, heard, or experienced"; ii) "the time, content, and

circumstances of the statement"; iii) "the existence of

corroborative evidence of the substance of the statement

regarding the abuse including either the act, the circumstances,

or the identity of the perpetrator"; and iv) "the child's

sincerity and ability to appreciate the consequences of the

statement." Id. We focus, as did the parents, on the third

factor.

We discern no error in the judge's finding that the child's

statements were reliable and therefore admissible at the trial

as substantive evidence. The judge was presented with evidence

of the child's knowledge that her father's "pee-pee" "got real

big like a cucumber" when she touched it, the circumstances of

the child's disclosures and statements, and expert testimony

that the child's behavior during the interviews was consistent

with that of a child who has been sexually abused. This was

sufficient to corroborate the child's statements. See Adoption

of Quentin, 424 Mass. 882, 889 (1997) ("observed events, coupled

with expert testimony credited by the judge . . . are some

evidence of sexual abuse that does not depend on the out-of-

15
court statements of the children"). See also Adoption of

Olivette, 79 Mass. App. Ct. 141, 150 (2011) ("sexualized

behavior or age-inappropriate knowledge of sexual matters" are

sufficient to corroborate allegations of sexual abuse).

3. Permanency plan for the child. Both the mother and the

father maintain that the judge abused her discretion in

declining to award custody of the child to her paternal

grandmother. The father views as clearly erroneous the judge's

findings that the grandmother failed to acknowledge the child's

allegations and could not independently provide a plan as to how

she would protect the child without direction from the

department. However, the father mischaracterizes those

findings. The judge found that "[t]he Department did not find

that Paternal Grandmother accepted or acknowledged the abuse

that [the child] endured by [the] Father" and that "[t]he

Department did not find that Paternal Grandmother was able to

independently provide a plan as to how she would protect the

child" without direction from the department. The parents'

arguments on this issue amount to dissatisfaction with the

weight the judge assigned certain evidence. "[T]he judge's

assessment of the weight of the evidence and the credibility of

the witnesses is entitled to deference." Custody of Eleanor,

414 Mass. 795, 799 (1993); and a judge is not obligated to

credit all evidence equally. See Care & Protection of Three

16
Minors, 392 Mass. 704, 711 (1984). There was no error or abuse

of discretion.

4. Sibling visitation. The father contends that the judge

abused her discretion in failing to order sibling visitation

between the child and her paternal half-sister, who was in her

mother's custody. General Laws, c. 119, § 26B (b), fourth par.,

permits a child in the custody of the department or a sibling of

that child to file a petition for sibling visitation. Adoption

of Flavia, 104 Mass. App. Ct. 40, 57 (2024). Because the

judge's findings are dispositive of the issue, we pass on the

question of whether the father had standing to raise it. Here,

the judge was "incredibly concerned for [the child's]

therapeutic needs" relative to her relationship with her half-

sister. This concern was supported by, among other things, the

judge's uncontested finding that father frequently used the

half-sister as a conduit to perpetrate his alleged abuse of the

foster children. Implicit in the judge's rulings is her

determination that an order of sibling visitation was not in the

child's best interests. Contrary to the father's argument, it

was not necessary to consider the best interests of the child's

half-sister once the court determined visitation would not be in

the child's best interests. See id. (a judge may order sibling

visitation only where such visitation is in "the best interests

17
of the petitioning child and each sibling with whom visitation

is sought"). The judge did not abuse her discretion in

declining to order sibling visitation.

Decrees affirmed.

Order denying posttrial
motions affirmed.

By the Court (Englander,
Hershfang & Brennan, JJ. 6),

Clerk

Entered: January 27, 2025.

6 The panelists are listed in order of seniority.

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