MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a two-day trial, a judge of the Probate and Family Court found Wills father (father) unfit and appointed Wills maternal grandfather (grandfather) as the childs guardian. The father appeals from the judges orders denying his motion for a new trial based on ineffective assistance of counsel and motion for reconsideration pursuant to Mass. R. Civ. P. 60 (b) (4) and (6), 365 Mass. 828 (1974). We affirm.
Background. We summarize the judges findings of fact, which find ample support in the record, reserving some facts for discussion below. The father met Wills mother (mother) at a sober home in 2012, and by 2013, they were married and living together. Will was born in 2014. The grandfather supported Will and his parents financially. In September 2015, the Department of Children and Families (DCF) responded to Wills parents’ apartment after the father overdosed on heroin while Will was in the home. DCF removed Will and placed him with his maternal grandparents, to whom a Juvenile Court judge transferred custody in February 2016. Wills mother moved in with her parents and Will and continued to live there after a Juvenile Court judge returned custody of Will to the mother. The mother maintained custody of Will until her death in March 2019. Four days after the mothers death, the grandfather filed a petition for guardianship of Will in the Probate and Family Court. The father stipulated to a temporary order granting the grandfather guardianship of Will, and this order was extended several times before trial.
Following Wills removal in 2015, the father twice sought treatment for his substance use disorder, first by entering a sober home, and then, in June 2016, by seeking medication-assisted treatment through a program at Duffy Health Center (Duffy). In April 2017, the father was discharged from Duffys program after testing positive for nonprescribed substances. In August 2017, the father violated the terms of his probation by failing to appear for a drug screen and, as a result, was in jail for a few weeks. After his release, the father reengaged with Duffys services. The father was prescribed amphetamines, but he did not take this medication consistently; he also occasionally tested positive for amphetamines when they were not prescribed. In addition, the father sometimes tested positive for benzodiazepines and marijuana, neither of which were prescribed to him, and negative for his prescribed suboxone and gabapentin. The father smokes marijuana regularly.
In July 2019, the father tested positive for benzodiazepines, despite his claims of sobriety. That same month, the father exhibited paranoid behavior on three different occasions. A judge reduced the fathers parenting time because he had cancelled sixteen out of forty-five visits in the preceding months. In August 2019, the father failed to complete a program meant to assist him with medications. In addition, while it is not clear what day this occurred, the father once called the grandfather to arrange a visit with Will, but the father was unsure what day it was and had “slurred speech.”
The father acknowledged that the grandfather provided most of the food, clothing, and shelter for Will since his birth. The father was homeless beginning in 2016 and, at the time of trial, was unemployed and relied on government assistance; despite this, his bank records showed that from October 2019 to the time of trial he had the financial ability to pay child support, yet he declined to do so based upon his disagreement with the Court Order requiring such payments. The father used his Federal stimulus payment to purchase a television, an Xbox video game console, and related equipment.
Although the father testified that he has not consumed alcohol in two years, his bank statements from March 2019 to the time of trial showed more than ninety transactions at a liquor store and numerous transactions at pubs and bars.
From March 2019 to the time of trial, the father provided food to Will only three times during visits at the fathers apartment and rarely had food available in his apartment. For the five years preceding trial that Will lived with his grandparents, the father never singlehandedly cared for Will overnight. Will did not express that he missed his father and did not ask to visit with him; sometimes, Will resisted attending parenting time with the father. Despite expressing a desire to spend more time with Will, the father attended only one of Wills numerous extracurricular activities from 2018 to 2019.
Will has thrived in the grandfathers care. Will was six years old and still lived with the grandfather at the time of trial, which was held on September 22 and October 1 of 2020. The grandfather testified that he intended to make efforts to ensure that Will maintains a relationship with his father.
Discussion. The father contends that his counsel was ineffective because she did not call two potentially beneficial witnesses at trial, took no action to protect the fathers privileged communications with his health care providers, and failed to object to hearsay and opinion in his DCF and health records. Effective counsel, the father argues, would have prevented admission and the judges consideration of (1) the fact that the father overdosed on heroin in December 2015 and (2) the fathers health records containing his clinicians’ notes, including communications with the father, and expressions of concern regarding substance use, behavior, engagement in treatment, what people in the community observed regarding his behavior, psychological symptoms, and drug screen results. The father argues that the judges admission of this evidence prejudiced him. We are not persuaded.
To prevail on his motion for a new trial, the father was required to show first that “ ‘behavior of counsel [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). “[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ ” Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
Even if the fathers counsel was ineffective – which we assume for the sake of discussion, but do not decide -- the father cannot establish that counsels failures were prejudicial in light of the overwhelming evidence of unfitness. See Adoption of Holly, 432 Mass. 680, 690 (2000). Even putting aside all evidence that the father contends was erroneously admitted, there is still overwhelming evidence of the fathers unfitness in his own testimony, his drug test results, bank statements revealing alcohol use (which the father denied), and the grandfathers testimony. This unchallenged evidence amply supports the judges findings that the father had a long history of substance misuse and mental health issues, which were ongoing; had little experience caring for Will; had difficulty maintaining employment; was unable to provide financially for Will; lacked insight into the effects his substance use had on his ability to care for Will; had demonstrated inconsistent parenting; and did not always provide Will with food.
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In the face of the above findings, the fathers argument that he was prejudiced by counsels failure to call two potentially beneficial witnesses at trial and by the admission of certain evidence cannot prevail. Therefore, we discern no abuse of direction in the judges denial of the fathers motion for a new trial.
The father also sought reconsideration of the judges denial of his motion for a new trial; we “review the judges denial of a motion for reconsideration only for an abuse of discretion.” Merchants Ins. Group v. Spicer, 88 Mass. App. Ct. 262, 271 (2015), citing Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312-313 (2009). In his motion for reconsideration, the father argued that the court could grant him relief under rules 60 (b) (4) and (6) and that the judge had authority to allow the motion. The judge acknowledged his authority, noted that he considered and then rejected the fathers arguments on the merits, and denied the motion. In light of the factual record above, the judge did not abuse his discretion.
We affirm the judges orders denying the fathers motions for a new trial and reconsideration.
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Orders dated July 22, 2021, and July 30, 2021, affirmed.
FOOTNOTES
3
. The father did not appeal the guardianship decree.
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. We note that the father is not without recourse. The judge did not terminate his parental rights, and the father can file a petition for removal of the guardian pursuant to G. L. c. 190B, § 5-212.