Adoption of Xenos.

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

22-P-595

ADOPTION OF XENOS.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Juvenile Court,2 a judge determined

that the father and the mother were unfit to parent their child,

Xenos, and entered decrees terminating their parental rights.

The father and mother appealed from the decrees. The father,

who waived counsel and represented himself at trial with the

assistance of standby counsel, contends that the judge failed to

give proper attention to potential explanations for his

escalating mental health symptoms, including his demeanor and

conduct while in court, and so failed to recognize the

possibility that his unfitness was transient. He also argues

that the judge's review of an affidavit prepared by counsel for

the Department of Children and Families (department) in support

of the department's motion to substitute counsel created an

1 A pseudonym.
2 This was, in fact, the second such trial in this matter. The
first ended in a mistrial. See note 4, infra.
appearance of bias that required the judge to recuse herself

from the case.3 The mother, who does not contest the finding of

her permanent unfitness to parent Xenos, but who supported the

father's efforts to retain his parental rights to Xenos, argues

that the judge failed to take adequate steps to ensure that the

father was competent to waive counsel, and that the judge's

failure to do so cleared the way for the father to act in a way

that led the judge to be biased against the mother, as the

father's supporter. Additionally, she contends that the judge

failed adequately to address the issue of posttermination

contact between the parents and the child in her order for

visitation. After careful review of the record, we affirm.

Discussion. 1. Father's appeal. a. Duration of father's

unfitness. The father's first challenge is to the judge's

conclusion that his parental unfitness was likely to be

permanent. The judge here made the "specific and detailed

findings in support of [her] conclusion" required to

"demonstrate[e] that she [gave] the evidence close attention."

Adoption of Nancy, 443 Mass. 512, 514-515 (2005). Reviewing

those findings, we identify no clear error in them (indeed, the

father does not argue they are clearly erroneous) nor any abuse

3 In the affidavit, counsel for the department recounted
statements the father made to her outside the court room after
the trial had begun and which counsel averred required her to
withdraw from the case.

2
of discretion or other error in her ultimate conclusion that the

father was unfit. See Adoption of Ilona, 459 Mass. 53, 59

(2011). In assessing the father's fitness, the judge was

entitled to consider the father's lapses in self-control during

the trial, see Adoption of Yvonne, 99 Mass. App. Ct. 574, 580

(2021) (parent's behavior during trial relevant to parental

fitness); the escalating symptoms of mental illness he displayed

in the months preceding the trial at issue here and their impact

on his ability to act in the child's best interests, see Care &

Protection of Bruce, 44 Mass. App. Ct. 758, 764 (1998), quoting

G. L. c. 210, § 3 (c) (xii) (significance of mental illness that

interferes with parent's ability "to provide minimally

acceptable care of the child"); his history of threatening

behavior to department workers and others, see Adoption of

Yvonne, supra (parent's ability to manage anger relevant to

fitness); the parents' history of "mutual domestic violence,"

see Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021)

(evidence of domestic violence relevant to parental fitness);

and the father's unsanctioned removal of the child from school

and supervised visits, see Adoption of Varik, 95 Mass. App. Ct.

762, 767 (2019) (parent's conduct placing child at risk relevant

to parental fitness).

In considering the duration of the father's unfitness, the

judge "[was permitted to] consider [this] past conduct to

3
predict future ability and performance." Adoption of Katharine,

42 Mass. App. Ct. 25, 32-33 (1997). Where, at the time of

trial, the father was unfit and was not engaging in the steps

required to demonstrate progress toward a return to fitness, the

judge was not required to postpone a determination that was

otherwise in the child's best interests based on "a 'faint

hope'" that the father would become fit at some unknown time in

the future. Adoption of Ilona, 459 Mass. at 59, quoting

Adoption of Inez, 428 Mass. 717, 723 (1999). We discern neither

an abuse of discretion nor clear error in the judge's conclusion

that the father's unfitness was likely to be permanent.

To the extent that the father now contends that the judge

should have considered whether the worsening of the father's

mental health in the months before the trial at issue here

(second trial) was merely a temporary response to a concerning

procedural problem that arose in the course of the first trial,4

the issue was not squarely raised below, and so it is waived.

4 When the case first went to trial in 2021, the parties
understood that the trial was limited to the issue of the
parents' unfitness. During the trial, however, the parties
learned that the judge had converted the trial into a
termination of parental rights proceeding, apparently on the
grounds that she would not consider reunifying a child with
"parent[s] [who are] using drugs." The case was ultimately
mistried and the case assigned to a different judge for a new
trial on the termination of the parents' rights. Here, we
consider only the parents' appeal from aspects of the second
trial.

4
See Adoption of Bea, 97 Mass. App. Ct. 416, 430 (2020); Adoption

of Norbert, 83 Mass. App. Ct. 542, 545 (2013). See also Mayer

v. Cohen-Miles Ins. Agency, Inc., 48 Mass. App. Ct. 435, 444-445

(2000) ("although the plaintiff did object at trial, she did not

explain the basis for her objection. Thus, she did not preserve

the issue for appeal").

Even if it were not waived, however, the argument is

unavailing. While we acknowledge the likelihood that the events

of the first trial would have left the father both unhappy and

suspicious of the courts, it does not necessarily follow that

the escalation of the father's mental health that occurred here

close in time to the first trial was just a temporary response

to those events. In fact, the judge's finding that the father's

worsening symptoms were "similar in nature -- though far more

extreme -- to behaviors he exhibited in the past when using

substances" supports a different conclusion. Furthermore, the

father does not challenge the judge's findings that the father

refused to participate in the mental health evaluations required

under his action plans with the department and refused mental

health services when they were offered. In the circumstances,

the judge cannot be faulted for refusing to speculate about the

possibility of the father's improvement in the future.

b. Bias. Although the father argues that the judge abused

her discretion in denying the mother's motion to recuse herself

5
on the grounds of bias, he did not raise the issue at trial; his

claims are therefore waived.5 See Adoption of Bea, 97 Mass. App.

Ct. at 430.

2. Mother's appeal. a. Mother's challenge to father's

competency to waive counsel. As we have noted, the father

represented himself at trial, assisted by standby counsel. On

appeal, the mother argues that the judge failed to conduct an

appropriate inquiry into the father's competence to waive

counsel before the trial began, and that the father's conduct

after the department moved to substitute counsel on the second

day of trial required the judge to act sua sponte to assess the

father's competence to waive counsel.

Even assuming the mother's right to raise these issues (a

point she does not support with any legal authority), her

arguments are unavailing. As to the father's original waiver of

counsel, the mother has not provided us with any contemporaneous

record beyond a copy of the trial court's docket to show us what

the judge's considerations and inquiry were. See Chokel v.

Genzyme Corp., 449 Mass. 272, 279 (2007) (appellant obligated to

develop record). The mother likewise fails to point to any

record evidence that the facts and circumstances of the case

5 As we discuss below, however, with respect to the mother's bias
argument which was preserved, the judge acted within her
discretion and committed no error in denying the mother's
motions to recuse herself and declare a mistrial in the case.

6
raised "'bona fide doubt' as to the [father's] ability to make

an informed decision to proceed without counsel" that would have

triggered the judge's obligation to make the mid-trial inquiry

into the father's competency to waive counsel that the mother

now contends was required. Commonwealth v. Haltiwanger, 99

Mass. App. Ct. 543, 556 (2021), quoting Commonwealth v. Barnes,

399 Mass. 385, 389 (1987). In the circumstances, we do not

consider the argument further.

b. Motion for recusal and mistrial. On the second day of

trial, the department moved to substitute a new attorney in

place of the lawyer who had represented it through the first

trial day. According to an affidavit signed by the department's

original trial counsel, the substitution was necessary based on

the father's having made what she perceived to be threatening

statements to her after the first trial day about what he would

do "if [the department] tr[ied] to keep [him] away from

[Xenos]." After a nonevidentiary hearing,6 the judge allowed the

department's motion, concluding that "the matters alleged in the

[department's] affidavit" (emphasis supplied) required new

counsel to step in for the department. Based on that ruling,

the mother moved for the trial judge to recuse herself from the

6 The judge took no testimony at the motion hearing and made no
assessment of the credibility of the allegations set forth in
the department's affidavit.

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case on the grounds that she could no longer be impartial; she

also asked the judge to declare a mistrial in the case. The

judge denied the mother's motion. Reviewing the judge's ruling

for an abuse of discretion, see Fitzpatrick v. Wendy's Old

Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 517 (2021)

(mistrial); Demoulas v. Demoulas Super Mkts., Inc., 428 Mass.

543, 546 (1998) (recusal), we discern none.

As she explained on the record, the judge responded to the

mother's motion for recusal by correctly engaging in a two-step

process; first, examining her own conscience for bias, and

finding herself impartial, then asking whether, objectively,

"[her] impartiality might reasonably be questioned." DeMoulas,

428 Mass. at 546 n.6, quoting Haddad v. Gonzalez, 410 Mass. 855,

862 (1991). See Parenteau v. Jacobson, 32 Mass. App. Ct. 97,

103-104 (1992). The mother does not challenge the judge's

subjective assessment of her own impartiality and we discern no

abuse of discretion in the judge's conclusion at either the

first or second steps. As the judge pointed out, her ruling on

the department's motion to substitute turned on the department's

allegation that the father had made certain comments to counsel,

and not on any assessment of the credibility of those

allegations. We are satisfied that nothing about that

assessment would raise a reasonable concern about the judge's

impartiality, and that the judge's denial of the mother's motion

8
to recuse herself was not an abuse of discretion. See DeMoulas,

428 Mass. at 546. Given that conclusion, we are likewise

satisfied that the judge acted within her discretion in denying

the mother's motion for a mistrial premised on her claim of

judicial bias. See Fitzpatrick, 487 Mass. at 517 (abuse of

discretion standard); Elder v. Commonwealth, 385 Mass. 128, 136

(1982) (judge's impartiality was not in question "and therefore

his obligation was to deny the motion for mistrial").

3. Mother's remaining trial-related claims. The mother

has failed to show clear error in the judge's finding that at

the September 2021 pretrial conference, "Father interrupted the

Court as soon as the Court started to ask a question by saying,

'I don't understand. I don't understand,' though it was clear

to the Court that Father understood the Court's questions." See

Commonwealth v. Source One Assocs., Inc., 436 Mass. 118, 124

(2002), quoting Starr v. Fordham, 420 Mass. 178, 186 (1995)

("The inquiry is not whether we would have reached the same

result as the judge but rather whether, on the entire evidence,

we are 'left with the definite and firm conviction that a

mistake has been committed'"). We likewise reject the mother's

contention that the trial judge failed to maintain appropriate

control over the court room during the course of the trial.

Indeed, in the circumstances here, we commend the judge for her

measured approach to the challenges that arose during the course

9
of the trial; we are satisfied that her efforts ensured a fair

trial for all parties. See Commonwealth v. Rogers, 46 Mass.

App. Ct. 109, 110 (1999).

The mother's remaining arguments were not preserved below

by the mother and so were waived. See Adoption of Bea, 97 Mass.

App. Ct. at 430.

4. Posttermination contact. Although the trial judge

terminated the parents' rights to Xenos, she recognized the

existence of "a significant [and mutual] emotional relationship"

between the parents and the child.7 Determining that it was in

Xenos's best interests to maintain that relationship, the judge

ordered that "[Xenos] have access to and visitation rights with

his biological parents throughout the period of his placement in

the custody of the Commonwealth and subsequent to any

guardianship or adoption of said child." The order further

provided for visits twice each year for a minimum of one hour

per visit. "The location and time of each visit shall be at the

sole discretion of the legal guardian or adoptive parent[.]"

7 Both the mother and the father have shown love and affection
for Xenos, and none of the judge's findings suggest otherwise.
Despite the moral overtones of the statutory term "unfit," the
judge's decision was not a moral judgment. A judge may find
that a mother and father love and provide for their child to the
best of their ability, but nonetheless reach the conclusion that
the best interests of the child warrant termination of parental
rights. This is the case here.

10
The mother reads this order to address postadoption

contact, but to omit reference to posttermination contact. That

reading is incorrect. There is no requirement that the judge

express her order in any particular terms, and a plain reading

of the language used here satisfies us that the order gives the

parents both posttermination and postadoption visitation rights.

Satisfied that the order addresses the parents' rights to

visitation, we discern no abuse of discretion in the frequency

and duration of the visits as the judge ordered them.8 See

Adoption of Rico, 453 Mass. 749, 756 (2009) (standard of

review). The purpose of posttermination visitation is to ease

the child's transition into a new placement and to facilitate

his ability to bond with his preadoptive family. See Adoption

of Edgar, 67 Mass. App. Ct. 368, 371 (2006). Where Xenos had

been living with his preadoptive parent for several years by the

time of trial and had developed a strong bond with the

preadoptive parent, the judge could reasonably have concluded

that it was in his best interests to continue to promote his

relationship with the preadoptive parent as his primary source

8 We also recognize that the order establishes only the minimum
to which the parents are entitled. It does not foreclose the
possibility that the parents may agree with the department or
Xenos's preadoptive and adoptive parent(s), as appropriate, on a
more expansive schedule and does not impact Xenos's right to
petition the court for a change to that schedule. See Adoption
of Rico, 453 Mass. 749, 756 (2009).

11
of support, and to limit his contact with the biological parents

accordingly. See Adoption of Rico, supra at 757 (visitation

dictated by consideration of child's best interests).

Conclusion. The decrees terminating the parental rights of

the mother and the father to the child are affirmed. The order

for visitation is affirmed.

So ordered.

By the Court (Rubin, Henry &
Hand, JJ.9),

Clerk

Entered: May 9, 2023.

9 The panelists are listed in order of seniority.

12