MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of a Juvenile Court judge that terminated the fathers parental rights to the child, who was two years old at the time of trial.
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The father was incarcerated from the time the child was six months old until the time of trial, and had little involvement in the childs life prior to his incarceration. He also has a significant record of domestic violence and violent behavior, including with the childs mother. The father now argues that he is entitled to a new trial (1) because he received ineffective assistance from his initial attorney, who was appointed when care and protection proceedings began, but who was replaced eleven months prior to the termination trial, and (2) because the Department of Children and Families (DCF) did not make reasonable efforts to reunify the father with the child. We affirm.
Background. The mother and the father began dating in 2016. During their relationship the father abused the mother,
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including causing multiple wounds that required stitches, ripping the mothers earlobes, breaking her kneecap, and fracturing her ribs. The father also tied the mother to a deck post and left her outside for eight hours, and attempted to hit her with a hammer. Notably, the father fractured the mothers ribs by kicking her when she was two months pregnant with the child.
The child was born in July of 2017, shortly after his parents ended their relationship. A few days after the child was born, the father briefly visited the mother and the child in the hospital, at which time he denied that he was the childs father. The father was not listed on the childs birth certificate.
The day after the childs birth, a mandated reporter filed a G. L. c. 119, § 51A report (51A report) alleging that the mother neglected the child due, among other things, to the mothers marijuana use and lack of prenatal care. DCF substantiated the allegations, and a DCF social worker reached out to the father within two weeks of the 51A report. During their conversation, the father told the social worker that he questioned whether he was the childs father. Approximately one week after the childs birth, the father obtained results from a private deoxyribonucleic (DNA) test indicating that he was in fact the childs biological father.
The father initially had weekly three-hour visits with the child, facilitated by the paternal grandmother. After about a month, however, the father ceased regularly participating in these visits. Around this time, another DCF social worker met with the father, and advised him to go to court to establish paternity of the child. The father responded that he “was not interested in doing so.” Following this conversation, DCF referred the father to counseling services, but he never engaged with those services.
On November 24, 2017, DCF received another 51A report regarding the child, alleging that the child had been feverish for several days and the mother had failed to take the child to the hospital. When the child was brought to the hospital (by someone other than the mother), the child had unstable vital signs, tested positive for exposure to cocaine, and was diagnosed with a respiratory virus. DCF assumed emergency custody of the child.
The night of the childs removal, emergency workers and police went to the fathers last known residence and left a letter asking him to contact DCF. The next day, DCF also tried to call the father, but his phone number was not working. One week after the childs removal, in early December 2017, DCF succeeded in contacting the father. During this conversation the father said he was “uninterested in being involved” because he was going to jail soon, but that the paternal grandmother would like to be involved in the childs life.
The father was incarcerated from January 21, 2018, until the time of trial for charges related to his assaults of the mother and other women. Beginning in January 2018, DCF tried to locate the father, but the paternal grandmother initially refused to disclose his location to DCF, and did not do so until March 2018. DCF was unable to provide services or visits to the father while he was incarcerated, because he was in New Hampshire. In October 2018, after the father was transferred to a Massachusetts correctional facility, and after he established paternity, DCF began bringing the child for monthly visits with the father in jail.
Meanwhile, the initial attorney was appointed as the fathers counsel on November 28, 2017, a few days after the childs removal. At the time of her appointment, the initial attorney understood that the father was in jail but did not know where. She first made an effort to locate the father on January 23, 2018. Two days later, the initial attorney spoke with the paternal grandmother, who told her the father was in jail in Rockingham, New Hampshire, and gave the initial attorney an incorrect phone number. Thereafter, the initial attorney confirmed that there was an inmate at the Rockingham facility with the same name and age as the father.
For the next five months, from January 2018 until June 2018, the initial attorney did not directly contact the father. Instead, the initial attorney repeatedly e-mailed the paternal grandmother, but received no response. The father testified at trial that he received the initial attorneys phone number from the paternal grandmother in March or April of 2018, and called the initial attorney, but there was no answer.
On June 21, 2018, the judge held a care and protection hearing to determine who should have custody of the child. Two days prior to the hearing, the initial attorney called the New Hampshire jail and spoke with the father for the first time. The initial attorney represented the father at the care and protection hearing, at which the judge granted the father additional time to establish paternity. The judge found the child in need of care and protection and awarded custody to DCF.
Following the care and protection hearing, the initial attorney advised the father that to continue participating in the case, he needed to formally establish paternity by November 2018. A month later, the initial attorney filed a motion to withdraw as counsel, citing a breakdown in the attorney-client relationship. Her motion was allowed on August 8, 2018, and new counsel was appointed. While represented by new counsel, the father established paternity in October 2018.
The termination trial occurred from July 2019 through February 2020. Following trial, the judge entered a decree terminating the fathers parental rights.
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The judge cited several considerations that supported her decision, including that the father had a serious history of domestic violence and generally violent behavior that the father had not addressed, and that the father did not have a “strong bond” with the child. The judge also found that DCF made reasonable efforts to reunify the father and the child. Although the father argued at trial that he received ineffective assistance of counsel from his initial attorney, the judge declined to address the initial attorneys performance in that context.
The father subsequently filed a motion for a new trial, reasserting that his initial attorney had provided ineffective assistance of counsel. The motion for new trial materials included an affidavit from the initial attorney, which described her efforts to locate and communicate with the father, as set forth herein. After a hearing, the motion judge (who was also the trial judge) denied the fathers motion, finding that he received effective assistance of counsel and noting that the father “had the benefit of zealous representation at trial.” This appeal followed.
Discussion. 1. Ineffective assistance of counsel. To prevail on an ineffective assistance claim, the father was required to show first that counsels behavior fell “measurably below that which might be expected from an ordinary fallible lawyer,” and second that counsels failures were prejudicial. Care & Protection of Georgette, 439 Mass. 28, 33 & n.7 (2003), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the father argues that because his initial attorney failed to contact him for several months, this delayed the father from conclusively establishing his paternity, and prevented the father from developing a better bond with the child. And, the father argues, each of these failures ultimately counted against him in the judges decision to terminate his rights. The judge rejected these arguments when she denied the fathers motion for a new trial.
“We review the denial of a motion for new trial for an abuse of discretion.” Adoption of Raissa, 93 Mass. App. Ct. 447, 455 (2018). We discern no abuse of discretion here, because the fathers claims of prejudice are not borne out by the facts. To begin, we acknowledge that the initial attorney perhaps could have made more diligent efforts to contact the father -- there was effectively a five-month delay between when she identified the fathers location and when she finally made contact. Furthermore, during those five months, the initial attorney only reached out to the paternal grandmother and did not attempt to contact the father directly at the jail.
Nevertheless, even assuming the initial attorneys performance was substandard, the record here does not support the fathers arguments as to harm. First, the record belies the contention that, but for the initial attorneys delay, the father would have sought to establish paternity and to bond with the child earlier. Rather, the judge found that the father was told prior to his incarceration that he needed to go to court to establish paternity, but that the father chose not to and instead denied paternity.
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The judge also found that the father did not make an effort to bond with the child, including during the six months prior to his incarceration. The father, therefore, had chosen to be uninvolved in his childs life before the initial attorney was appointed.
Second, the father in fact had an opportunity to be heard, represented by zealous counsel, during the termination trial. The initial attorney did not represent the father during the termination trial. Rather, the fathers new (trial) counsel was appointed by the court nearly a year prior to the commencement of trial; the father does not dispute that his trial counsel was effective, and “acknowledges that he eventually got his proverbial ‘day in court’ once his new attorney took over the case.” We are not persuaded that the initial attorneys actions in delaying her contact with the father, over a year prior to trial, had a material prejudicial impact on the results of the fathers termination proceeding. Cf. Adoption of Donald, 44 Mass. App. Ct. 857, 860 (1998) (“once a judge allows a petition to terminate parental rights ․ this action renders moot the care and protection proceeding”).
Finally, we are not persuaded that the father was prejudiced where the evidence of his unfitness was overwhelming. Adoption of Holly, 432 Mass. 680, 690 (2000). The judges detailed findings and conclusions of law indicate that she terminated the fathers parental rights due to the fathers lack of a bond with the child and the fathers significant history of violence, and in particular, domestic violence.
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The judge made findings regarding eight separate incidents where the father abused the mother, and noted that four women had obtained restraining orders against him. Based on these findings, the judge also concluded that the father would continue to be abusive if awarded custody of the child. Our law recognizes that domestic violence is “intolerable” and inflicts a “distinctly grievous kind of harm.” Custody of Vaughn, 422 Mass. 590, 595 (1996). In the face of the above findings, the fathers argument that his delay in adjudicating paternity played a significant role in the judges termination decision is without merit.
2. Reasonable efforts. The father also argues that DCF did not make reasonable efforts to reunify the father and the child. Again, we disagree.
When terminating parental rights, the judge is required to determine whether DCF made reasonable efforts “to prevent or eliminate the need for removal from the home,” and we defer to the judges findings unless clearly erroneous. Adoption of Ilona, 459 Mass. 53, 61-62 (2011), quoting G. L. c. 119, § 29C. Here, the judge found that DCF made reasonable efforts to reunify the father and the child. This finding has ample support in the record. DCF consistently attempted to contact the father throughout this case, including when the child was initially removed from the mothers care. DCF referred the father to services and advised him that he should adjudicate paternity prior to his incarceration, but the father did not do so and instead, indicated disinterest. Due to the fathers lack of communication with DCF, DCF could not ascertain the fathers whereabouts from December of 2017 through May of 2018. Once DCF located the father, DCF facilitated the fathers visits with the child in jail. As the judge found, the fathers own “failure to communicate with the Department thwarted all of the reasonable efforts made by DCF.” We accordingly discern no error in the judges reasonable efforts finding.
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Decree affirmed.
FOOTNOTES
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. The father also appeals from the judges denial of his motion for a new trial.
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. Four women -- including the mother -- have obtained abuse prevention orders against the father.
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. The judge did not terminate the mothers parental rights, and directed DCF to pursue reunification between the mother and the child.
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. Moreover, as the judge noted, the father himself had DNA testing performed on the child. He knew he was the biological father (or at least was highly likely to be the father), but nevertheless had very limited involvement in the childs life prior to his incarceration.
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. On appeal, the father does not challenge the judges factual findings regarding the fathers domestic violence or his lack of a bond with the child.
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. We note that even if the judge had found that DCF did not make reasonable efforts, that would not have precluded the judge “from making any appropriate order conducive to the childs best interest.” G. L. c. 119, § 29C.