Adoption of Brenna.

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

23-P-538

ADOPTION OF BRENNA. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees issued by a

judge of the Juvenile Court finding them unfit and terminating

their parental rights to Brenna pursuant to G. L. c. 119, § 26.

They both argue that the trial judge violated their

constitutional right to due process by deciding the case's

outcome before hearing all of the evidence. The father also

argues that the judge improperly relied on stale evidence to

support the findings of unfitness. Lastly, the mother argues

that the judge abused her discretion by declining to order

posttermination visitation with Brenna. We affirm.

Background. Brenna was born on August 23, 2020, substance

exposed to cocaine and fentanyl. She spent nine days in the

neonatal intensive care unit before being placed in a foster

home. Both the father and the mother have a history of

1 A pseudonym.
substance use and addiction, which has interfered with their

ability to parent their children. After the mother tested

positive for fentanyl during her pregnancy with Brenna, the

Department of Children and Families (DCF) requested that she

participate in substance abuse treatment, which she attended,

but was terminated from due to her failure to follow through

with the treatment. The father has a substance abuse disorder

dating back prior to his incarceration in 2015 for trafficking

heroin. His drug use continued after Brenna's birth. He claims

he stopped using drugs in November or December 2020; however,

the judge did not credit the father's testimony that he could

gain and maintain sobriety without substance use treatment.

On June 4, 2021, neither the father nor the mother attended

a status conference scheduled for that day. Their lawyers

reported that they had not heard from either parent in at least

two months. On September 24, 2021, a best interest trial was

held, and again neither parent was present. Findings of

unfitness entered, and an adjudication and decree terminating

parental rights issued. The mother and the father subsequently

filed a motion for relief from judgment pursuant to Mass. R.

Civ. P. 60 (b), 365 Mass. 828 (1974), because they claimed not

to have had notice of the trial, and further claimed that

Brenna's counsel had instructed the mother and the father not to

appear for court that day because they were symptomatic for

2
COVID-19. The court allowed the motion, vacated the decrees and

findings of unfitness, and granted a new trial.

The trial took place over eight, nonconsecutive days

beginning on March 25, 2022 and concluding on September 22,

2022. On October 14, 2022, the judge found the mother and the

father unfit to parent Brenna, and found that Brenna's best

interests would best be served by a termination of parental

rights and DCF's adoption plan. Accordingly, the judge

adjudicated Brenna in need of care and protection, and ordered

decrees to issue terminating the mother's and the father's

parental rights. In her findings of fact and conclusions of

law, the judge explained that in making the unfitness

determinations, she considered, among other factors, the

mother's

"ongoing substance use disorder and the fact that it has
prevented her from caring for all three of her children;
her failure to avail herself of services offered by [DFC]
to address her use of substances while pregnant with
[Brenna] . . . [and] her pattern of declining services
which would address the reasons for [Brenna]'s removal
despite repeated attempts by her social worker to engage
her."

With respect to the father, the judge considered, among other

factors,

"his longstanding history of substance use disorder and
relapse when not in structured treatment; his substantial
criminal history involving domestic violence and drug
distribution . . . [and] his failure to avail himself of
services offered by [DFC] to address his substance misuse

3
and history of domestic violence despite multiple prompts
and referrals from his social worker."

The judge left the mother's and the father's posttermination

visitation of Brenna to the discretion of Brenna's adoptive

parents.

Discussion. 1. Judicial bias. Both parents allege that

their due process rights were violated on the grounds that the

judge was not presiding over the case with an open mind and had

determined the outcome of the trial prior to all the evidence

being presented. The father argues that the judge "hastily

scrutinized the credibility of the evidence well before the

evidence closed" and expressed that the "trial is essentially

pointless toward changing her mind." The mother argues that

"the judge had prematurely decided that it was in Child's best

interest to terminate Mother's parental rights so [Brenna] would

be free for adoption by her foster parents."

Having reviewed the complete trial transcript and read the

judge's comments in context, we conclude that most of the

judge's statements with which the parents took issue were candid

assessments by the judge of the evidence before her, and

therefore raise no concerns. Two comments, however,

characterized the strength of the case as a whole before all of

the evidence had been presented. The judge should not have said

to the parties that this was not a triable case and should not

4
have questioned why the parties had not resolved the case before

the trial. While we agree that these comments were better left

unsaid, we conclude that they did not compromise the integrity

of the trial.

The parents take issue with several remarks the judge made

at various points regarding the strength of the parents' case.

The judge's most concerning comment was that the matter before

her was "not a . . . triable case . . . [I]t's not a case that

should be getting tried. . . . I'm just not understanding how

there isn't a resolution to this case." The remaining comments

that the parents took issue with concerned the judge's

impression of each party's case and the evidence offered in

support. She stated on one occasion that the primary disputed

issue in the case was the narrow question of whether the parents

had engaged in "any substance use disorder treatment throughout

the course of this case." She went on to say that "there was

never sobriety established, and they refused to participate in

service[s] –- that's [DCF]'s –- allegation, I should say."

On another day of trial, the judge described the case as a

"cut and dry, very simple situation where the people came in, it

was an opiate addiction case, and they were asked to do

treatment, and they didn't do treatment. . . . So I'm just

confused as to what –- why people think this is a complex case.

It just is -- not."

5
The father's counsel raised this issue at trial by way of

an oral motion requesting that the judge recuse herself from the

case. The mother's counsel orally joined the father's request

on the following day of trial.

"A judge's decision not to recuse [her]self is reviewable

for abuse of discretion." Commonwealth v. Rivera, 473 Mass.

1003, 1005 (2015). "To rise to the level of requiring

disqualification, the bias or prejudice must spring from an

extrajudicial source, and not from matters learned from

participation in the case." Fogarty v. Commonwealth, 406 Mass.

103, 111 (1989). "[A] judge who expresses preliminary views

inside the court, based upon knowledge acquired in court

proceedings, is not recusable." Adoption of Darla, 56 Mass.

App. Ct. 519, 522 (2002), quoting Goya Foods, Inc. v. Ulpiano

Unanue-Casal, 275 F.3d 124, 130 (1st Cir. 2001).

The judge's comments did not demonstrate any impermissible

bias requiring that she recuse herself from the case. See,

e.g., Adoption of Seth, 29 Mass. App. Ct. 343, 350-351 (1990).

The record does not indicate that the judge was improperly

influenced by extrajudicial factors, but that she instead was

commenting on information she had "acquired in court

proceedings." Adoption of Darla, 56 Mass. App. Ct. at 522. The

judge is permitted to do this, even if we believe that she could

have chosen her words more carefully given the high stakes of

6
the proceedings. We discern no abuse of discretion in the

judge's decision to deny the request that she recuse herself.

The mother and the father's principal argument is that the

judge's comments impaired the integrity of the proceedings

because the judge suggested that she had predetermined the

outcome of the case. The parties are entitled to present a

complete case and the judge must consider all of the presented

evidence before deciding any of the issues. Preston v. Peck,

271 Mass. 159, 163-164 (1930). A judge is obligated to refrain

from making remarks that would "giv[e] a reasonable observer

cause to wonder whether the way the judge viewed the evidence,

and the inferences she drew from it, were produced by her early

judgment rather than by a thoughtful and careful weighing of all

the evidence at the end of the trial." Adoption of Tia, 73

Mass. App. Ct. 115, 123 (2008). A judge's deviation from this

preferred practice, however, does not inherently compromise the

fairness of the trial. See Commonwealth v. Coleman, 390 Mass.

797, 802 (1984) (judge's expression of opinion on issue to be

decided does not require disqualification). We read the judge's

comments in the context of the full trial to determine whether

the judge improperly and prematurely decided any of the issues

in the case. See Adoption of Georgia, 433 Mass. 62, 65 (2000).

Here, the judge's most troubling comments were that this

was "not a case that should be getting tried" and "I'm

7
just not understanding how there isn’t a resolution to this

case." Whether or not she believed DCF had made a strong case

for seeking termination, the judge should not have characterized

the case before her as not worthy of her time. As we know the

judge is undoubtedly aware, the termination of parental rights

is one of the most important proceedings that can take place in

a court room. It is therefore especially important that judges

take great care not to give the impression that they have

prematurely decided a case's outcome.

As to the other comments the parents identified in their

briefs, we do not agree that they were improper. While we do

understand, given the significant stakes of this case, that

these remarks may have been upsetting to the mother and the

father, we also must consider the context of these comments and

what issues they referenced. The trial here took place over

eight, nonconsecutive days spanning six months. Throughout the

proceedings, the judge expressed concern about the effect the

lengthy trial timeline would have on Brenna. The judge believed

that the mother and the father were unnecessarily prolonging the

trial by offering cumulative evidence regarding issues that did

not directly address the central reasons DCF had sought

termination: the parents' difficulty maintaining sobriety and

their refusal to participate in and complete substance use

disorder treatment. The judge also explained, after the close

8
of evidence, that she had gone back through and listened again

to "most of the testimony" from the trial. This indicates that

she had not prematurely reached a decision earlier in the trial

and that her mind remained open to all of the presented

evidence. Considering the strength of DCF's case for unfitness

and termination and the context in which the judge made her

comments, we discern no abuse of discretion in the denial of the

parents' recusal motion.

2. Evidence relied on by the judge. The father argues

that the judge improperly relied on stale evidence to support

her unfitness findings and decision to terminate the father's

parental rights. The central question in an action to terminate

parental rights is whether a parent is unfit, and if so, whether

termination is in the best interests of the child. See Adoption

of Ilona, 459 Mass. 53, 59 (2011). Findings to support a

termination of parental rights must be by "clear and convincing

evidence, based on subsidiary findings proved by at least a fair

preponderance of evidence." Adoption of Darlene, 99 Mass. App.

Ct. 696, 702 (2021), quoting Adoption of Jacques, 82 Mass. App.

Ct. 601, 606 (2012). "We give substantial deference to a

judge's decision . . . and reverse only where the findings of

fact are clearly erroneous or where there is a clear error of

law or abuse of discretion." Adoption of Ilona, supra.

9
"Although 'stale information cannot be the basis for a

finding of current parental unfitness . . . [p]rior history

. . . has prognostic value.'" Adoption of Jacques, 82 Mass.

App. Ct. at 607, quoting Adoption of George, 27 Mass. App. Ct.

265, 268 (1989). The father's principal concern rests with the

judge's consideration of a prior instance of domestic violence

perpetrated by the father against his ex-girlfriend in 2014.

The judge's discussion of this incident, however, was not

limited to the event itself, but also addressed the father's

current inability "to rectify the conditions that caused harm to

his children through lack of participation in offered domestic

violence and substance use services."

The judge viewed the father's failure to engage with

services to address this incident of domestic violence in the

context of the "Father's refusal to address his substance use

disorder" and his "refusal to engage in meaningful treatment."

She found that "Father engaged in a pattern of declining to

avail himself of the services offered to remediate his parenting

deficits and facilitate a safe reunification." The judge is

permitted to consider such failure to engage in services to

support an unfitness finding. See Adoption of Willow, 433 Mass.

636, 645 (2001); Adoption of Lisette, 93 Mass. App. Ct. 284, 285

(2018). She also found that this pattern "create[d] a

substantial danger of continued neglect." Accordingly, we view

10
the judge's discussion of the father's 2014 domestic violence

incident not as improper reliance on stale evidence, but as an

important evaluation of a pattern of behavior, continuing to the

present, demonstrating father's unfitness to safely parent

Brenna.

3. Posttermination visitation. The mother claims that the

judge abused her discretion when she left the decision to

Brenna's custodian of whether posttermination and postadoption

contact with the mother would be in Brenna's best interest. She

argues that visits between the mother and Brenna went well and

that ordering visitation would have been in the best interest of

Brenna. In her decision, the judge found that Brenna's

preadoptive parents would act in Brenna's best interest when

determining to what extent postadoption visitation would be

allowed.

"The decision to order posttermination or postadoption

visits is left to the judge's discretion." Adoption of West, 97

Mass. App. Ct. 238, 247 (2020). An order of postadoption

contact is generally reserved for circumstances where the

primary "parent-child relationship in the child's life remains

with the biological parent" and other adults have not fully

assumed that role. Adoption of Vito, 431 Mass. 550, 564 (2000).

"The purpose of such contact is not to strengthen the bonds

between the child and his biological mother or father, but to

11
assist the child as [s]he negotiates, often at a very young age,

the tortuous path from one family to another." Id. at 564-565.

Here, since the time she was born, Brenna's biological

parents have not been the primary parental figures her life.

Brenna therefore will not be transitioning to a new family, but

instead will remain living with adoptive parents who have cared

for her since birth. The judge therefore acted well within her

discretion in leaving posttermination contact between the mother

and Brenna to the discretion of Brenna's adoptive parents. See

Adoption of Ilona, 459 Mass. at 66.

Decrees affirmed.

By the Court (Wolohojian,
Milkey & D'Angelo, JJ. 2),

Assistant Clerk

Entered: January 11, 2024.

2 The panelists are listed in order of seniority.

12