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19-P-238                                              Appeals Court

                  CARE AND PROTECTION OF YARRICK. 1


                No. 19-P-238.     November 12, 2019.


Minor, Care and protection. Parent and Child, Care and
     protection of minor. Practice, Civil, Care and protection
     proceeding, Findings by judge.


     In this consolidated appeal, Yarrick's noncustodial father
challenges (1) an adjudication finding him unfit and the child
to be in need of care and protection, and (2) a subsequent order
specifically finding that the father remained unfit, but
nonetheless dismissing the care and protection petition and
returning the child to the mother's care. The father contends,
and the Department of Children and Families (department) agrees,
that the original determination of the father's unfitness was
infected by procedural due process irregularities and that the
judge's attempt to imbue the finding of continued unfitness with
preclusive effect is invalid. The mother and child ask us to
affirm both findings of the father's unfitness. Concluding that
the finding of continued unfitness was not integrally related to
the dismissal of the care and protection petition, we vacate the
aspect of the judge's order of dismissal purporting to give that
finding preclusive effect. We dismiss the appeal from the
original finding of unfitness.

     The department initiated care and protection proceedings on
behalf of the child in August 2015, when he was nine months old.
See G. L. c. 119, § 24. At that time the mother was the
custodial parent and the father, who had no involvement in
raising the child, had not yet established paternity. The court
granted the department temporary custody. A one-day trial on

     1   A pseudonym.
                                                                   2


the merits was held on July 10, 2017. The father was neither
present nor represented by counsel. 2 After the mother stipulated
to her present inability to care for the child and the social
worker assigned to the case testified about her own interactions
with the father, the judge found both parents unfit and entered
an order committing the child to the department's custody. The
judge subsequently appointed new counsel for the father, who
filed a timely notice of appeal. The father later established
paternity.

     A review and redetermination hearing was scheduled for
September 17, 2018. The department, satisfied that the mother
had complied with her service plans and was able to care for the
child, sought to dismiss the care and protection petition. The
father was not present but was represented by counsel. The
father's counsel opposed the department's motion to dismiss and,
noting that the father was not represented or present at the
hearing in which he was originally found unfit, asked to
continue the matter for an updated court investigation and
renewed hearing on the father's fitness. The judge decided to
proceed with the hearing as scheduled. At the conclusion of the
hearing, where again only the social worker testified, the judge
concluded that the mother was currently fit and that the father
remained unfit. The judge granted custody to the mother. The
judge declined to dismiss the petition at that time, however,
taking the final disposition under advisement. A docket entry
dated September 17, 2018, states, "Court issues order father
remains unfit, under advisement whether to dismiss." The father
filed a notice of appeal on October 1, 2018. 3


     2 The father's first court-appointed attorney moved to
withdraw, citing "[a] complete breakdown in communication" with
the father, and her motion was allowed at an ex parte hearing;
the judge refused to appoint another attorney until the father
appeared in court. Whether the father received notice of the
result of the withdrawal motion is questionable. There is no
evidence that he had actual notice of the July 10, 2017, trial.

     3 The father's notice of appeal from the finding that he
remained unfit preceded the entry of the order of dismissal. We
exercise our discretion to treat the father's appeal from the
order of dismissal, purporting to give preclusive effect to the
finding of continued unfitness, as properly before us, as none
of the parties objected to the timing of the notice of appeal
and because the judge addressed, and the parties fully briefed,
the merits. See ZVI Constr. Co. v. Levy, 90 Mass. App. Ct. 412,
                                                                   3



     On October 12, 2018, the judge issued "Ultimate Findings,
Orders on Motion for Review and Redetermination, and Order of
Dismissal," memorializing the above findings and dismissing the
petition. The judge noted that the dismissal rendered future
proceedings regarding the child's custody outside of the
Juvenile Court's purview. However, in a section of the order
entitled "Vitality of Unfitness Findings in Future Proceedings,"
the judge, citing Care & Protection of Joselito, 77 Mass. App.
Ct. 28 (2010), wrote, "Here, the dismissal of the care and
protection petition is integrally related to the finding of
current fitness regarding Mother and the finding of continued
unfitness of Father" (emphasis added). "[I]t follows," the
judge reasoned, that "the future evidentiary value of those
findings survive and those findings may be admissible if
relevant in future proceedings." The judge made similar
statements in written findings of fact issued on January 25,
2019, nunc pro tunc to October 12, 2018.

     In Care & Protection of Joselito, 77 Mass. App. Ct. at 29-
30, while child custody proceedings between the father and the
mother were pending in the Probate and Family Court, the
department initiated care and protection proceedings in the
Juvenile Court. A Juvenile Court judge found the father unfit
and awarded temporary custody to the mother. When the Probate
and Family Court judge entered final judgment granting physical
custody to the mother, the Juvenile Court judge dismissed the
care and protection petition. In this posture, we dismissed the
father's appeal from the care and protection proceedings,
concluding that "[a]lthough the case is not moot," the Juvenile
Court judge's finding of the father's unfitness was "an
interlocutory finding from which no appeal lies." Id. at 29.
Because the finding of unfitness was not "integrally related" to
the dismissal, the finding was implicitly vacated and would not
be admissible in any future proceedings. Id. at 32-33.

     The fact that the custody determination underlying the
dismissal of the care and protection petition here was made by
the same judge in the same proceeding, whereas the custody
determination in Care & Protection of Joselito was made by a
different judge in a separate proceeding, does not make the
interlocutory finding of the father's unfitness here any more
relevant to the ultimate disposition. For the same reasons that
we dismissed the father's appeal in Care & Protection of


418 (2016); Hodge v. Klug, 33 Mass. App. Ct. 746, 750-751
(1992).
                                                                  4


Joselito, we dismiss the father's current appeal from the
original finding of unfitness.

     However, the judge clearly intended for his subsequent
finding of the father's continued unfitness to have future
effect and, in an attempt to distinguish Care & Protection of
Joselito, announced that that finding was "integrally related"
to the dismissal. It was not. The finding of the mother's
fitness was integrally related to the disposition, as the
dismissal necessarily rested on the finding that the child was
no longer in need of care and protection and could be returned
to her. The finding of the father's continued unfitness was
unnecessary to the disposition. As in Care & Protection of
Joselito, the father's parental rights were not terminated. The
petition could have been dismissed without a trial, and without
making any findings concerning the noncustodial father's
fitness. "While the factual circumstances that underlie the
findings may be presented in future applications, given the
circumstances of this case, the Juvenile Court judge's finding
of [the father's] parental unfitness can have no further
evidentiary value and would not be admissible." Care &
Protection of Joselito, 77 Mass. App. Ct. at 32-33. See Care &
Protection of Torrence, 454 Mass. 1010, 1010 (2009).

     Accordingly, so much of the order dismissing the petition
as purported to make a finding of the father's continued
unfitness is vacated. The dismissal of the petition is affirmed
in all other respects. The father's appeal from his
adjudication of unfitness dated July 10, 2017, is dismissed.

                                   So ordered.


     Michael S. Penta for the father.
     Steven A. Ciulla for the child.
     Marianna Jisun Yang for the mother.
     Brian Pariser, Assistant Attorney General, for Department
of Children and Families, was present but did not argue.
