Written by attorney Robert J McCarthy Jr

Objections Should Be Made At Trial To Preserve Issues On Appeal

On April 25, 2013 a three judge panel of the Massachusetts Appeals Court decided a case called Adoption of Norbert. The Norbert case is one of the few care and protection/ termination of parental rights cases issued by the Massachusetts Appeals Court where a judge on the panel issued a dissenting opinion. A dissenting opinion is where one judge expresses disagreement with the majority opinion of the court.

The mother in the Norbert case appealed from a decision of a Massachusetts Juvenile Court terminating her parental rights as to her son and daughter. In her appeal the mother argued that the termination of her parental rights should be vacated for two reasons: (1) The mother claimed that the judge was biased and (2) The mother claimed that her right to due process was violated by the judge's extensive questioning of her and other witnesses throughout the trial. The mother’s attorney, to the detriment of the mother, did not challenge any of the Juvenile Court’s findings, including the ultimate finding of the mother’s parental unfitness.

The unchallenged findings showed that the mother suffered from mental health issues and lacked insight into her parenting deficiencies. When the children were in the mother's custody, they were exposed to domestic violence. According to the findings, the mother often acted inappropriately. The findings allege that on one occasion the mother invited a stranger whom she met on a telephone date line into her home for a sexual encounter while the children were present. Visits with the children were also a problem for the mother. At one point, it is alleged that the mother did not see one of her children for eight months.

In her appeal the mother states that the Juvenile Court judge erred by not excusing himself from presiding over the trial. She also asserts that the judge interfered with the conduct of the trial by participating, almost to the exclusion of the attorneys representing the parties, in examination of the witnesses. As the attorney for the mother at trial did not raise objections to the two issues that the mother raised on appeal, the Appeals Court technically did not have to consider the issues. Issues not raised in the trial court are usually not addressed on appeal absent exceptional circumstances. Adoption of Mary, 414 Mass. 705, 712 (1993).

The Appeals Court in Norbert nevertheless decided to address mother’s issues given the serious nature of the case coupled with due process concern: “...[W]e believe that it is appropriate to consider the issue even though the claim is untimely." Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002). Ultimately the Appeals Court held that the mother failed to show any bias stemming from the recusal issue.

Next the mother argued that she was denied impartial justice when the judge extensively examined the witnesses. The judge asked over 1, 000 questions at trial as compared to the approximately 725 questions asked by counsel for the Department of Children and Families, the mother, and the children combined. As in the recusal issue, the appellate decision indicates that the mother's attorney did not object to the judge's questioning. Although it may make some attorneys uncomfortable, objections must be made at the trial to preserve issues on Appeal. The majority of the court in Norbert felt that lack of an objection by counsel was particularly significant. However, despite the Juvenile Court judge’s extensive questioning of witnesses, and despite the seeming unfairness of such a situation, that the Appeals Court held that the mother was not unduly harmed by the actions of the judge. The majority felt that the issue was whether the outcome of the trial would have been different had the judge not intervened. Since the Appeals Court in Norbert felt that there was overwhelming evidence of mother’s unfitness, then, they reasoned, it did not really matter that the judge extensively questioned the witnesses to the detriment of the mother. The dissent disagreed with the majority’s analysis.

The dissenting justice wrote that he could not join the majority's conclusion that this mother was supplied with impartial justice. It was particularly important for the judge to conduct the hearing on the termination of parental rights paying scrupulous attention to providing her with a fair trial wrote the dissenting justice. The Juvenile Court’s questions to the witnesses were described by the dissenter as effective cross-examination by a skillful adversary. Noting the Juvenile Court judge’s seeming aggressiveness, the dissenting justice believed that a failure to object to the judge's questions, or to the manner in which he conducted the trial, was not the same as a failure to object to the questions of an opposing counsel. In conclusion, the dissenting justice could not agree to uphold the decision of the Juvenile Court terminating the mother’s parental rights writing: “this mother was entitled to a fair trial, with representation by counsel and an opportunity to present her side of the story. On this record, I cannot say that she received one. And, under all of the circumstances, I cannot agree to uphold the termination of her parental rights simply on the ground that a fair trial might produce the same result."

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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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