H.B. v. D.B.

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

21-P-1168

H.B.1

vs.

D.B.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

At the conclusion of a four-day trial, a judge of the

Probate and Family Court issued a final judgment of divorce

granting primary physical and sole legal custody of the parties'

minor daughter to the father, D.B. The mother, H.B., appeals,

arguing that the judge erred by (1) failing to adequately

consider evidence of domestic violence in the household and

alleged sexual abuse of the daughter by the father; (2)

declining to apply a rebuttable presumption against granting

custody to the father under G. L. c. 208, § 31A; (3) exhibiting

bias in favor of the father; (4) denying the mother's motion to

appoint new counsel for the children; and (5) allowing a nurse

who examined the daughter to testify as an expert. We affirm.

1 We use the initials for the name appearing in the complaint for
divorce.
Background. The following facts are drawn from the

findings of the Probate and Family Court judge. The parties

were married in 1999. Over the course of the marriage, the

parties had three sons and adopted a daughter. In 2012, after

the mother had a stroke, the parties' relationship began to

deteriorate. In 2014, the parties had a dispute over a $100

gift that escalated into a physical altercation in which the

father grabbed the mother. On another occasion, the mother

pointed a finger in the father's face, and the father grabbed or

twisted the mother's hand. Thereafter, the mother sought and

received an abuse prevention order, and the father did not see

the children "for a span of months."

At around the same time, the mother began to suspect that

the father was sexually abusing their daughter. In September

2014, the mother discovered that the daughter, who was seven

years old at the time, had been looking up pornography on her

tablet. The mother then took the daughter to two separate

therapists, one of whom was treating the mother. The daughter

disclosed that she had been sexually abused by the father, which

led to the filing of various G. L. c. 119, § 51A reports with

the Department of Children and Families (department). The

department investigated and ultimately concluded that the

allegations were unsupported.

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During the course of the investigation, the department

became concerned that the mother was bringing the daughter to

multiple therapists, continuing to question her regarding

alleged incidents of abuse, and continuing to subject her to

medical examinations, and as a result, the department filed a

care and protection petition. The record is not entirely clear

as to what transpired thereafter, however, there is no dispute

that the daughter has resided primarily with the father since

2016.

As noted, the parties subsequently divorced and a trial on

the issues of custody and child support was held in the Probate

and Family Court. The judge found, based on "the totality of

the circumstances," that the aforementioned incidents of

domestic violence between the parties did not constitute a

serious incident or pattern of abuse under G. L. c. 208, § 31A.

The judge generally credited the testimony of the father and not

the mother where their testimony conflicted. The judge found

that the father had developed a stable home environment for the

daughter and noted that the mother often made parenting

decisions that were not always in the daughter's best interests.

For example, the judge determined that the mother failed to

respect the daughter's privacy and did not always understand her

social and emotional needs.

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Discussion. We review custody determinations for an abuse

of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239,

245 (2015). "In custody matters, the touchstone inquiry [is]

. . . what is 'best for the child,'" and "[t]he determination of

which parent will promote a child's best interests rests within

the discretion of the judge . . . [whose] findings . . . 'must

stand unless they are plainly wrong.'" Hunter v. Rose, 463

Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834,

840, 845 (2003). While there is no "definitive list of

criteria" for the judge to consider when assessing the

children's best interests, "[certain] constants are revealed in

our [cases]," including "the need for stability," "the decision-

making capabilities of each parent to address the child's needs,

and the living arrangements and lifestyles of each parent and

how such circumstances may affect the child" (citation omitted).

El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010). See

G. L. c. 208, § 31. "The judge is afforded considerable freedom

to identify pertinent factors in assessing the welfare of the

child and weigh them as [he] sees fit." Smith v. McDonald, 458

Mass. 540, 547 (2010).

The judge must, however, "consider evidence of past or

present abuse toward a parent or child as a factor contrary to

the best interest of the child." G. L. c. 208, § 31A. A

judge's finding that a pattern or serious incident of abuse has

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occurred creates a rebuttable presumption that it is not in the

best interests of the child to be placed in sole custody, shared

legal custody, or shared physical custody with the abusive

parent. Id. See Custody of Vaughn, 422 Mass. 590, 599-600

(1996). A serious incident of abuse is

"the occurrence of one or more of the following acts
between a parent and the other parent or between a parent
and child: (a) attempting to cause or causing serious
bodily injury; (b) placing another in reasonable fear of
imminent serious bodily injury; or (c) causing another to
engage involuntarily in sexual relations by force, threat
or duress." G. L. c. 208, § 31A.

1. Evidence considered by the judge. The mother first

argues that many of the judge's findings were clearly erroneous

primarily because, she asserts, he did not consider evidence

that favored her position. Our review of the record does not

support this assertion. To begin with, the findings challenged

by the mother were based on the judge's assessment of the

credibility of the witnesses who testified at trial -- including

both parties and several doctors and mental health

professionals. As there is nothing in the record that

demonstrates those credibility determinations were "plainly

wrong," we decline to disturb them. Zaleski v. Zaleski, 469

Mass. 230, 237 (2014), quoting Felton v. Felton, 383 Mass. 232,

239 (1981). Indeed, "[i]n this situation, '[t]he opportunity

which the judge had to observe and appraise both parents is

particularly important.'" Bak v. Bak, 24 Mass. App. Ct. 608,

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616 (1987), quoting Stevens v. Stevens, 337 Mass. 625, 627

(1958).

2. Rebuttable presumption. The mother also argues that

the judge erred in declining to apply the rebuttable presumption

under G. L. c. 208, § 31A that granting custody to the father

was not in the best interests of the daughter. As stated above,

this rebuttable presumption must be applied where a judge finds

that a pattern or serious incident of abuse has occurred. See

G. L. c. 208, § 31A; Custody of Vaughn, 422 Mass. at 599-600.

In this case, the judge explicitly considered the

application of the rebuttable presumption, finding that "the

credible evidence before the [c]ourt does not demonstrate that a

serious incident or pattern of abuse occurred." The mother's

argument essentially amounts to a challenge to this finding.

Again, where the judge's finding is based largely on credibility

determinations and there is sufficient evidence to support his

conclusion, we cannot say that the judge abused his discretion.

3. Judicial bias. The mother also argues that the judge

engaged in "overzealous judicial questioning" and gave the

impression that he was advocating for the father. In support,

the mother points to two comments by the judge. First, in

response to an objection concerning the admissibility of

evidence regarding the criminal history of one of the parties'

sons, the judge stated, "[e]ven if I allowed it in, it would go

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to the issue of weight, and it would be very insignificant. If

the police interviewed him and there were no charges and no

issues -- I mean, you know, whatever happened to the concept of

innocent until proven guilty." Later, during the same exchange,

the judge stated:

"You know, let's look at this from the context of what the
issues are. The issues are current, best interests of the
children. Now granted historically I can evaluate and
assess what has gone on. Let all of us who have not had to
deal with adversities related to our children, you know,
and manage the behavior and conduct of young adults during
their adolescent, late teen and early twenty years -- you
know, this happens."

We are not persuaded that either comment was "overzealous"

or that the remarks indicate that the judge was advocating for

the father. Both comments addressed the relevance of evidence

pertaining to one of the sons. The judge simply explained that

little weight would be given to this evidence, because the issue

at trial was custody of the parties' daughter, not of their

older sons, and because the son was investigated and no charge

was brought.2 There was no error.

4. Denial of the mother's motion to appoint new counsel

for the children.3 Prior to trial, the mother filed a motion to

2 To the extent that the mother challenges the judge's
evidentiary rulings on this point, we discern no abuse of
discretion.
3 The motion concerns all the children of the parties, however,

as noted, this appeal only relates to the judge's determination
of custody as to the parties' daughter.

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appoint new counsel for the children. She alleged in her motion

that counsel for the parties' minor children was biased against

her and had a conflict of interest because he "helped found, and

is still affiliated with The Kid's Place, which has dismissed

allegations of abuse by the mother."4 There is no ruling evident

on the docket; however, the motion was implicitly denied, as new

counsel was not appointed. According to the trial transcripts

in the record, the mother did not press for a ruling before

trial commenced. We review the denial of the motion for an

abuse of discretion. See Steinert v. Steinert, 73 Mass. App.

Ct. 287, 288 (2008) (judge's decision on motion to disqualify

counsel reviewed for abuse of discretion).

On appeal, the mother has narrowed her claim slightly and

asserts that the attorney had "an interest in promoting the

legitimacy of his facility," and that this interest created a

potential conflict of interest. While it is true, as the mother

argues, that the attorney did not ask any questions of the

witnesses employed by The Kid's Place, the mother has not

articulated any basis for determining that such questioning by

4 The mother submitted an affidavit in support of the motion in
which she alleged that the attorney was involved with
establishing The Kid's Place and still supports it. There is
nothing in the record to support the mother's allegations nor
does she explain the basis for her assertions. In any event,
even if we were to assume that the mother is correct, the record
is not sufficiently developed to establish a conflict of
interest such that the attorney's disqualification was required.

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the attorney would have uncovered additional evidence of the

witnesses' biases. The witnesses were cross-examined at length

by the mother, and she does not point to any additional

favorable testimony that would have been gleaned from further

cross-examination. Accordingly, we cannot say that the judge

abused his discretion.

5. Expert testimony. At trial, the mother objected to the

testimony of Anne Hutchinson, a nurse practitioner, on the

grounds that she was providing expert testimony without having

previously been disclosed as an expert. The judge overruled the

objection but gave the mother the option of suspending the

testimony in order to question her about her qualifications.

The mother declined to do so, and now challenges the judge's

decision to allow Hutchinson to testify as an expert.

The father does not contest the fact that he failed to

disclose Hutchinson as an expert witness prior to trial.

Although the mother is correct that the father should have

disclosed Hutchinson as an expert, we cannot say that the judge

committed an abuse of discretion in allowing Hutchinson's

limited expert testimony. The mother was on notice that

Hutchinson would be called as a witness years before trial and

that she had expertise in her field of work. See Beaupre v.

Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485-486 (2000) (no

abuse of discretion where doctor allowed to testify as expert

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mid-trial; other party knew doctor would be key witness and had

opportunity to obtain substance of testimony prior to trial).

Furthermore, Hutchinson's testimony was primarily based on her

own observations, supplemented only by her expertise when

necessary to identify the differences and similarities between

the daughter's anatomy and that of other children. Therefore,

we conclude that the judge did not abuse his discretion in

allowing Hutchinson to testify about her examination of the

daughter.

Final judgment of divorce
dated September 15, 2021,
affirmed.

By the Court (Vuono, Henry &
Grant, JJ.5),

Clerk

Entered: April 24, 2023.

5 The panelists are listed in order of seniority.

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