MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves the welfare of Ilan, a boy born in December of 2015. After trial, a Juvenile Court judge issued a decree that, inter alia, found Ilan in need of care and protection, found the mother unfit, awarded permanent custody to the Department of Children and Families (DCF), terminated the mothers parental rights, and approved a plan under which Ilan would be adopted by his foster parents (with whom he had been placed since 2017).
3
On appeal, the mother mainly claims error in the judges denying her request to continue the trial and in denying her motion for a new trial. We affirm.
Background. Especially in light of the limited nature of the mothers appeal, little would be gained by describing her well-documented parental deficiencies in detail. For present purposes, it suffices to say that she suffered from substance abuse and untreated mental illness, she was involved in multiple relationships in which there was domestic violence, and she chronically was unable to maintain a safe and stable home.
4
The mother does not directly argue that the judges subsidiary findings are clearly erroneous, or that they together fail to establish clear and convincing evidence of her unfitness. Rather, she makes various procedural arguments, mostly involving her absence from the trial. We therefore turn to the relevant details of that issue.
The termination trial originally was scheduled for March 27, 2019. Apparently because of a scheduling conflict involving Ilans attorney, the trial was rescheduled for June 14, 2019. On the rescheduled trial date, the mother did not appear despite the fact that she had been told of the trial date and lived nearby. Her counsel was present, and he expressed his belief that his client was not in attendance because she feared she would be arrested on outstanding warrants (a fear he stated was exacerbated by her being pregnant) if she appeared in court. He further represented that she needed time to pay outstanding fees necessary to clear her open warrants, and on this basis orally requested that the trial be continued again. DCFs counsel opposed the continuance and represented that a DCF social worker would testify that the mother had admitted that she intended not to appear for trial as a delay tactic (a representation that the social worker subsequently backed up through her trial testimony). Unwilling to delay the proceedings further, the judge denied the mothers request for a continuance, and the trial went forward without her.
The judge issued a decree terminating the mothers parental rights on June 28, 2019. On July 8, 2019, the mother filed a motion for new trial. The grounds for the motion were essentially the same as those argued on the pretrial motion for a continuance, namely that the trial should have been postponed in order to allow the mother time to clear her open arrest warrants. Like the motion for a continuance, the mothers motion for new trial was unaccompanied by any affidavit from her. Her counsel did submit his own affidavit in which he represented that his client contacted him on July 3, 2019, and reported to him “that she was afraid of being held [on the open warrants] due to her pregnancy and that she had testimony, which if allowed to be presented, would have contributed to, or altered the final judgment and would have allowed for findings to be altered.” The trial judge held a nonevidentiary hearing on the mothers motion for new trial on August 14, 2019. At that hearing, the mothers counsel passed along his understanding that the childs placement with the preadoptive family had been “disrupted.” The judge denied the motion on August 23, 2019. Detailed findings and rulings supporting the termination decree followed on June 3, 2020. In those findings and rulings, the judge acknowledged that Ilans placement apparently had been disrupted, but stated that this did not change her view that termination was in the childs best interests.
We review the denial of a request for a continuance for an abuse of discretion. Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002). Although the mother is correct that as of June 14, 2019, the termination trial had been postponed only once (and apparently not due to any fault of hers), we conclude that the judge did not abuse her discretion by denying the motion to continue the trial.
5
The judge did not have to accept the mothers unsubstantiated explanation for her absence, and there was a solid evidentiary basis for the judges conclusion that the mother decided not to attend the trial as a delay tactic. 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, and “it is only fair to the [child] to say, at some point, ‘enough.’ ” Id. The judge did not abuse her considerable discretion in concluding that the trial here should go forward without further delay.
6
The mother correctly draws our attention to one factual misstatement in the judges memorandum and decision denying her new trial motion; namely, that the mother had rejected the opportunity to testify telephonically at her termination trial.
7
However, mothers counsel never requested, nor did anyone else suggest, such an accommodation. We are confident that the judges minor factual misstatement was not material to her denial of the mothers motion for new trial, which, in the end, did not raise any issues that had not been previously raised in the mothers motion for a continuance. Our review of the judges denial of the new trial motion is for abuse of discretion. Adoption of Nicole, 40 Mass. App. Ct. 259, 264 (1996). We conclude that the judge acted well within her discretion in denying it.
The mothers remaining claims require little discussion. She argues that the judge had promised at trial that a termination decision would not issue until the middle of July, 2019, in part to leave her time to negotiate an open adoption agreement, but the judge inexplicably issued the termination decree earlier than promised on June 28, 2019. Our review of the portions of the trial transcript where this issue was discussed reveals some potential ambiguity. While it is possible to read the judges statements about the timing of her intended actions as fully consistent with what she eventually did, it also is possible to read them as supporting the mothers view that a termination decree was not expected until the middle of July. However, even if we were to assume that the judge issued the termination decree earlier than the mother reasonably expected, the mother has not demonstrated how this prejudiced her.
8
While it is true that the mothers counsel referenced the “disruption” of the childs placement with the preadoptive family at the hearing on the motion for new trial, the mother presented no evidence, by affidavit or otherwise, of the disruption. In any event, the judge acknowledged the apparent disruption in the childs placement in her findings and rulings, and she explained that this would not have changed her view that termination of the mothers rights was warranted. In these circumstances, the judge did not abuse her discretion in declining to reopen the trial record to reexamine what was in Ilans best interests.
9
In the end, “[w]hile courts protect the rights of parents, ‘the parents rights are secondary to the childs 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 the overarching “best interests” standard in mind, we discern no error in the challenged rulings, and we therefore affirm.
Decree affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
3
. The father voluntarily surrendered his rights.
4
. As we previously have stated:“We pause to note that the mother has shown evident affection toward [the child], and none of the judges findings negate this. Despite the moral overtones of the statutory term ‘unfit,’ the judges decision was not a moral judgment or a determination that the mother ․ do[es] not love the child. The inquiry instead is whether the parent[s] deficiencies or limitations ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ ”Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
5
. In reaching that conclusion, we pass over whether any concerns held by the mother that she would have been taken into custody due to her failure to pay would have been reasonable. Cf. Commonwealth v. Gomes, 407 Mass. 206, 212 (1990). We additionally pass over whether avoiding a valid arrest warrant could be a legitimate excuse for not appearing at the termination trial.
6
. We additionally note that the evidence of the mothers unfitness was overwhelming. Furthermore, the mothers counsel made no proffer at trial about what testimony the mother could have offered to counter DCFs claims against her. Nor is any proffer made in the new trial motion. In fact, the only reference to any potential prejudice is a general statement in counsels affidavit to the effect that the mother “had testimony, which if allowed to be presented, would have contributed to, or altered the final judgment and would have allowed for findings to be altered.” That statement is not sufficient to demonstrate prejudice. We acknowledge that at the hearing on the motion for new trial, counsel made more specific representations. For example, counsel maintained that his client could have presented evidence “as to her fitness, compliance, and bonding with this child.” However, even if these representations had been credited by the judge, we are confident that the outcome of the trial would have been the same.
7
. The issue of telephonic participation came up only in the context of the judges offering to host a telephone colloquy on an open adoption agreement (should the parties reach one). We note that at the hearing on the motion for new trial, counsel for DCF and Ilan incorrectly represented that the judge offered at the termination trial to allow the mother to testify telephonically.
8
. At most, any prejudice would have been limited to potential impact on the mothers ability to negotiate a favorable open adoption agreement. It is far from clear that any such harm could be considered legally cognizable, and, in any event, it is difficult to imagine that the mother would have succeeded through negotiation in securing better posttermination visitation that she received from the judge. Finally, we note that because the placement with the preadoptive parents was disrupted, any issues regarding a potential open adoption agreement with them are now moot.
9
. Although we do not rely on this, we note that at the panels request for an update, Ilans attorney represented at oral argument that his client was now placed with different preadoptive parents.