Appealing trial court judgments based upon erroneous findings.

Robert J McCarthy Jr

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Appeals Lawyer

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Posted over 2 years ago. 1 helpful vote

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Whenever a judge makes an adjudication finding a parent unfit or issues a decision terminating parental rights in Massachusetts, that judge must issue findings. These findings are basically important portions of testimony from the trial, documentary evidence or the judge’s interpretation evidence at trial. Findings provide proof that a judge carefully listened to the evidence that was presented at trial and read all the documentary evidence that was submitted into evidence by the parties at trial. The findings form the basis of the judge’s decision on whether or not to find a parent unfit and form the basis of whether to terminate parental rights.

Frequently the judge’s findings are challenged on appeal. Challenging findings may help an appeal if the challenged findings are such that if the finding were thrown out of evidence the case against the parent could not stand. Showing that the challenged finding should be thrown out of evidence is sometimes difficult as each individual finding need only be proven by a fair preponderance of the evidence. Although each individual finding need only be proven by a fair preponderance of the evidence, all the findings taken together the facts must demonstrate parental unfitness by clear and convincing evidence.Care and Protection of Laura, 414 Mass. 788, 793 (1993). Clear and convincing evidence is a higher form of proof than a fair preponderance of evidence. The findings supporting a determination to dispense with parental consent to adoption will not be disturbed on appeal absent a showing that the judge abused his discretion or that the findings are clearly erroneous and such error is dispositive of the outcome of the case.Adoption of Gregory, 434 Mass. 117, 128 (2001). A finding is clearly erroneous only if there is no evidence to support it, or if, although there is evidence to support the reviewing court reviewing the entire evidence is left with a definite and firm conviction that a mistake has been committed. Custody of Eleanor, 414 Mass. 795, 799 (1993).

Substantial deference is given to the trial judge's assessment of the weight of the evidence and the credibility of the witnesses in determining whether to dispense with parental consent to adoption. Gregoryat 128. Where each finding is adequately supported in the record and the judge reviewed the documentary evidence and listened to the witnesses testify, he is in the best position to assess the credibility of witnesses as well as the credibility of any party's allegations. Eleanorat 799-800. It is sometimes difficult to overturn a decision finding a parent unfit or a decision terminating parental rights based upon the findings, but nevertheless this avenue of appeal should be explored.

Disclaimer: None of the information or materials posted above is intended to constitute legal advice. Viewing this outline does not constitute an attorney client relationship. Local counsel should always be consulted before contemplating any legal action. The above information is general in nature and should not be undertaken without the express advice of an attorney of your choosing.

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Rob McCarthy is an attorney licensed to practice law in the Commonwealth of Massachusetts, before the military courts of the United States, before the United States Court of Military Appeals and before the federal district court of Massachusetts. Beside being an attorney, he a social media entrepreneur and strategist who served the United States as a U.S. Marine Corps Officer and as a candidate for the U.S. Congress.

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