Commonwealth v. Molina (Lawyers Weekly No. 10-016-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11329 COMMONWEALTH vs. ALEXANDER MOLINA. Bristol. October 7, 2013. ‑ January 29, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Constitutional Law, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Admissions and confessions, Voluntariness of statement. Indictments found and returned in the Superior Court Department on July 21, 2005. A pretrial motion to suppress evidence was heard by David A. McLaughlin, J., and the cases were tried before Richard T. Moses, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David Keighley for the defendant. David J. Gold, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. Following a jury trial in the Superior Court, the defendant, Alexander Molina, was convicted of murder in the second degree, unlawful possession of a firearm while not at work or at home, and discharge of a firearm within five hundred feet of a building. The defendant appealed, and the Appeals Court affirmed the convictions. See Commonwealth v. Molina, 81 Mass. App. Ct. 855 (2012). We granted the defendant’s application for further appellate review, limited to issues concerning the admissibility of statements that the defendant made to the police during an interview conducted at the New Bedford police station on March 30, 2005. For the reasons set forth below, we affirm. 1. Background. The facts of the case are summarized in the Appeals Court’s decision, see Molina, 81 Mass. App. Ct. at 856-857; we describe them briefly here. The victim, James Gauoette, was shot to death at around 5 P.M. on March 30, 2005, near the intersection of Ruth and Salisbury Streets in New Bedford. Three eyewitnesses, who were present near that intersection, testified at trial and provided details about their observations of the shooter. Two of the three testified that the shooter wore a mustard-colored or yellow shirt, and two of the three also stated that soon after the shooting, they observed the shooter in a brown jogging suit or brown sweatshirt. At trial, two of the three witnesses identified the defendant as the shooter. At approximately 10 P.M. on the same day, the police prepared to tow a bluish-green Mazda Protegé automobile that was within the environs of the crime scene. The […]
Smith v. Masterlaz (Lawyers Weekly No. 10-014-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11039 KERRI L. SMITH vs. STEVEN MASTALERZ. January 28, 2014. Civil Harassment. Harassment Prevention. Protective Order. Moot Question. Practice, Civil, Appeal, Moot case, Findings by judge. The defendant, Steven Mastalerz, seeks review of harassment prevention orders issued against him pursuant to G. L. c. 258E.[1] The defendant filed his appeal in the Appeals Court prior to our decision in O’Brien v. Borowski, 461 Mass. 415 (2012). The Appeals Court dismissed his appeal as moot because the harassment prevention order had expired. Lawrence v. Gauthier, 82 Mass. App. Ct. 904 (2012). The defendant then filed a petition seeking relief pursuant to G. L. c. 211, § 3, in the county court, and a single justice denied his petition without prejudice on August 17, 2011. Based on our conclusion in Seney v. Morhy, ante (2014), the defendant’s appeal should not have been dismissed as moot. We also conclude that there was insufficient evidence for the issuance of harassment prevention orders against the defendant. Although the record is not entirely clear, it appears that the plaintiff sought protection because on November 1, 2010, several months after the defendant moved out of the apartment he and the plaintiff shared with other roommates, the defendant drove past her while she unpacked her vehicle at the front of her home, stopped a few houses away on that street, turned around, drove past her again, and a few seconds later drove by the home again. At the hearing on November 19, 2010, the judge found enough evidence to extend the initial order, stating that “the evidence was sufficient to show that there was more than one incident and there were at least three in terms of the cars passing by, and that [the plaintiff remains] in fear of continued harassment.” Even if we were to conclude the defendant’s conduct constituted one act of harassing conduct, we disagree with the judge that driving by the plaintiff constituted three separate acts of harassment. In the circumstances here, where there was no evidence refuting the defendant’s claim that he lived down the street from the plaintiff, we conclude that driving by the plaintiff’s home within a very short period of time was one continuous act. Moreover, the judge made no explicit findings, and the record does not permit us to infer, that the defendant’s driving […]
Seney v. Morhy (Lawyers Weekly No. 10-015-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11399 KENNETH J. SENEY vs. DAWN MORHY. Bristol. November 4, 2013. ‑ January 28, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ. Civil Harassment. Harassment Prevention. Moot Question. Practice, Civil, Appeal, Moot case, Findings by judge. Protective Order. Complaint for protection from harassment filed in the Taunton Division of the District Court Department on April 19, 2011. The case was heard by Gregory L. Phillips, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Sharon L. Sullivan-Puccini for the defendant. IRELAND, C.J. We granted the defendant’s application for further appellate review to determine whether appeals of expired harassment protection orders issued pursuant to G. L. c. 258E should be dismissed as moot. Because we conclude that appeals of such orders should be reviewed on their merits even if the orders have expired during the pendency of the appeal, and that, here, insufficient evidence supported the issuance of a harassment prevention order against the defendant, we remand the case to the District Court for entry of an order vacating the order. Background and procedure. In April, 2011, the defendant, Dawn Morhy, and the plaintiff, Kenneth J. Seney, applied for harassment prevention orders against each other. Their requests for orders arose from disputes concerning a little league baseball team for which the defendant’s son played. The plaintiff was an assistant coach of the team at the time. The subject of this appeal is the harassment prevention order against the defendant. A District Court judge held hearings on April 19 and 22, 2011, during which the head and assistant coaches of the baseball team testified about the defendant’s actions. The plaintiff testified to three incidents in which he claimed he had been harassed by the defendant. First, the plaintiff learned that, in a telephone conversation with the head coach of the team, the defendant threatened to “punch [the plaintiff] in the face” and “break both of [his] knees” if he acted in a certain way toward her son, remarks which caused the plaintiff to fear that the defendant would physically injure him. Second, the plaintiff stated that he felt threatened when the defendant sent an electronic mail message to the head coach stating she would talk to other parents […]
School Committee of Marshfield v. Marshfield Education Association (Lawyers Weekly No. 11-007-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1737 Appeals Court SCHOOL COMMITTEE OF MARSHFIELD vs. MARSHFIELD EDUCATION ASSOCIATION. No. 12‑P‑1737. Plymouth. October 8, 2013. ‑ January 28, 2014. Present: Kafker, Vuono, & Carhart, JJ. Contract, School teacher, Collective bargaining contract, Arbitration. Public Employment, Collective bargaining, Termination. School and School Committee, Collective bargaining, Termination of employment, Arbitration, Waiver. Labor, Public employment, Collective bargaining, Arbitration. Arbitration, School committee, Collective bargaining, Authority of arbitrator, Award. Waiver. License. Public Policy. Civil action commenced in the Superior Court Department on October 14, 2010. The case was heard by Robert C. Cosgrove, J., on motions for summary judgment. James A. Toomey (Tami L. Fay with him) for the plaintiff. John M. Becker for the defendant. Stephen J. Finnegan, for Massachusetts Association of School Committees, Inc., amicus curiae, submitted a brief. Michael J. Long, for Massachusetts Association of School Superintendents, amicus curiae, submitted a brief. KAFKER, J. Review of the arbitration award here requires us to examine the teacher licensing and termination provisions in the Education Reform Act of 1994, St. 1993, c. 71, as well as various provisions in a collective bargaining agreement, and explain their interrelationship. Gerard O’Sullivan was employed as a teacher by the Marshfield public school district (district) for almost eight years. O’Sullivan was terminated in 2008 when the school committee of Marshfield (school committee) took the position that his employment automatically ended by operation of law when his teaching license was not renewed by the Commissioner of Education (commissioner) and the commissioner denied the district superintendent’s request for a waiver of the license requirement. The school committee took no steps to terminate O’Sullivan in accordance with the terms of his teaching contract and the collective bargaining agreement (CBA) between the school committee and the Marshfield Education Association (association), to which O’Sullivan belonged. Nor did the school committee follow the teacher termination process set out in G. L. c. 71, § 42. Rather, the school committee asserted that without a license or waiver, O’Sullivan ceased to be employed as a matter of law, and as a result, was not entitled to any rights afforded a professional teacher under § 42, or under the CBA, including the one-year unpaid leave of absence O’Sullivan had requested so that he could fulfil the requirements necessary for licensure. Thereafter the association, “pursuant to the parties’ collective bargaining agreement,” […]
Categories: News Tags: 1100714, Association, Committee, Education, Lawyers, Marshfield, school, Weekly
Commonwealth v. Almonte (Lawyers Weekly No. 11-006-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑901 Appeals Court COMMONWEALTH vs. LUCAS H. ALMONTE. No. 12‑P‑901. Essex. February 11, 2013. ‑ January 27, 2014. Present: Trainor, Katzmann, & Sikora, JJ. Alien. Practice, Criminal, Plea, Assistance of counsel, Affidavit, Findings by judge. Constitutional Law, Plea, Assistance of counsel. Complaint received and sworn to in the Lawrence Division of the District Court Department on April 11, 2005. A motion to withdraw pleas of guilty and vacate convictions, filed on January 20, 2012, was considered by Matthew J. Nestor, J. Philip A. Mallard, Assistant District Attorney, for the Commonwealth. Murat Erkan (Matthew Bingham with him) for the defendant. SIKORA, J. In 2005, a District Court judge accepted pleas of guilt by the defendant to two counts of assault and battery. In 2012, the judge allowed the defendant’s motion to vacate the convictions. The defendant contended that the pleas had resulted from the ineffective assistance of counsel because his attorney had failed to advise him of the exposure to deportation created by the pleas as required by Padilla v. Kentucky, 559 U.S. 356 (2010) (Padilla). The Commonwealth appealed upon the ground that the judge’s failure to conduct an evidentiary hearing and to provide supporting findings of fact and reasoning constituted an abuse of discretion and error of law. We agree. We now vacate the order and remand the case for further action. Background. 1. Defendant’s guilty pleas. The Commonwealth charged the defendant with assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b) (count one); and assault and battery on a child causing injury, G. L. c. 265, § 13J(b) (count two). The charges arose from allegations that the defendant had physically abused his nine year old daughter. The parties engaged in plea discussions and made recommendations to the judge for disposition. The “Tender of Plea” form, otherwise known as the “green sheet,” shows that the defendant accepted the following disposition: (1) on count one, a finding of guilty and a sentence of one year of confinement, suspended for two years, upon certain probationary terms; and (2) on count two, a finding of guilty and a sentence of one year of confinement concurrent with the first sentence, also suspended for two years, but with no additional probationary terms. The green sheet includes the following information concerning the potential deportation consequences […]
Guardianship of L.H. (Lawyers Weekly No. 11-005-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1510 Appeals Court GUARDIANSHIP OF L.H. No. 11‑P‑1510. Middlesex. September 18, 2012. ‑ January 24, 2014. Present: Berry, Brown, & Agnes, JJ. Incompetent Person, Consent to medical treatment. Guardian, Incompetent person, Consent to medical treatment. Probate Court, Guardian, Incompetent person. Practice, Civil, Guardianship proceeding, Assistance of counsel. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Petition for guardianship filed in the Middlesex Division of the Probate and Family Court Department on November 30, 2009. The case was heard by Peter C. DiGangi, J., and a motion to reinstate Rogers authority was considered by him. Laura A. Sanford for the ward. Miriam H. Ruttenberg, Phillip Kassel, Richard M. Glassman, Hillary J. Dunn, Thomas P. Murphy, & Robert D. Fleischner, for Mental Health Legal Advisors Committee & others, amici curiae, submitted a brief. BERRY, J. This case involves two substituted judgment proceedings on petitions filed, following the precedent of Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489 (1983), and cases decided in its wake, in respect to the administration of antipsychotic medications to L.H. L.H. appeals from a decree and findings of the Probate and Family Court that she was not competent to make medical decisions and would benefit from a proposed treatment plan to use the antipsychotic drug Risperdal, and that she would consent to use of that drug were she competent. L.H. also appeals from the judge’s subsequent allowance of a motion to reinstate and to modify the treatment plan to allow for the administration by injection of Risperdal. The two appeals were consolidated here. L.H. argues on appeal that there was insufficient evidence that the administration of antipsychotic medication was appropriate. In addition, L.H. argues that her trial counsel rendered ineffective assistance. We affirm. For the reasons addressed in part 2, we conclude that the evidence in these substituted judgment proceedings and the probate judge’s findings established by a preponderance that L.H. was in need of treatment with antipsychotic drugs. See G. L. c. 190B, § 5-306A. See generally Guardianship of Erma, 459 Mass. 801, 802 n.2 (2011) (discussing substituted judgment in context of involuntary administration of antipsychotic drugs). For the reasons addressed in part 3, we decline to reach the ineffective assistance of counsel claims in these direct appeals. First, […]
Commonwealth v. Fontaine (Lawyers Weekly No. 11-004-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1113 Appeals Court COMMONWEALTH vs. YVES C. FONTAINE. No. 12‑P‑1113. Suffolk. April 2, 2013. ‑ January 21, 2014. Present: Vuono, Carhart, & Agnes, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Warrant, Affidavit. Search and Seizure, Warrant, Affidavit, Probable cause, Motor vehicle, Inevitable discovery. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Motor Vehicle. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on December 14, 2010. Following transfer to the Central Division of the Boston Municipal Court Department, a pretrial motion to suppress evidence was heard by Sally A. Kelly, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Dana Alan Curhan (Joshua D. Werner with him) for the defendant. AGNES, J. This is an interlocutory appeal by the Commonwealth from the allowance of the defendant’s motion to suppress a firearm and ammunition seized by officers of the Boston police department from a motor vehicle pursuant to a search warrant. The motion judge concluded that the affidavit submitted in support of the warrant failed to establish probable cause. For the reasons that follow, we reverse. Background. The warrant in question was issued on the basis of an affidavit prepared by Boston police Detective James R. Sheehan. It informed the magistrate of the following facts. On December 9, 2010, at approximately 8:30 P.M., two officers of the Boston police department pulled over the defendant’s vehicle after observing several traffic violations in the vicinity of Blue Hill Avenue and Wellington Hill Street in Mattapan. The defendant was driving the vehicle and Jason Bly was sitting in the front passenger seat. As the officers approached the vehicle, they saw the defendant lean towards the passenger side dashboard and return to an upright position. The defendant denied making this movement when the officers questioned him about it. Upon approaching the vehicle, the driver- and passenger-side windows of the car were open. The officers noticed an “overwhelming scent” of unburnt marijuana that was “pervasive” throughout the interior of the vehicle. The officers observed a small plastic bag […]
Commonwealth v. Keo (Lawyers Weekly No. 10-013-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10949 COMMONWEALTH vs. KEVIN KEO. Essex. September 10, 2013. ‑ January 21, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Homicide. Constitutional Law, Assistance of counsel, Sentence, Cruel and unusual punishment, Parole. Due Process of Law, Assistance of counsel, Sentence, Parole. Evidence, Joint venturer, State of mind. Joint Enterprise. Accessory and Principal. Parole. Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor, Sentence, Parole. Indictment found and returned in the Superior Court Department on December 28, 2007. The case was tried before David A. Lowy, J., and a motion for a new trial, filed on December 28, 2011, was heard by him. Leslie W. O’Brien for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for the District Attorney for the Plymouth District, amicus curiae, submitted a brief. IRELAND, C.J. On November 1, 2007, the victim in this case was shot and killed outside a restaurant in Lynn after being involved in an altercation with four young men, one of whom was Kevin Keo (defendant).[1] The defendant was indicted on a charge of murder in the first degree, and at a jury trial, the Commonwealth proceeded against him on a theory of deliberate premeditation based on his knowing participation in the crime, alone (as the shooter), or with others, with the requisite intent for murder.[2] See Commonwealth v. Zanetti, 454 Mass. 449, 466-468 (2009). The jury convicted the defendant of murder in the first degree. While his appeal was pending in this court, he filed a motion for a new trial that we remanded to the Superior Court. That motion, as subsequently amended, was denied, as was the defendant’s request for an evidentiary hearing. The defendant’s appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. Represented by new counsel on appeal, the defendant asserts error in the denial of his new trial motion on the grounds that: (1) his trial counsel rendered constitutionally deficient assistance by failing to obtain a full transcript of a witness’s testimony from another trial (involving Bonrad Sok [Sok], see note 2, supra) for impeachment purposes, and (2) the trial judge erroneously admitted state of mind […]
Categories: News Tags: 1001314, Commonwealth, Lawyers, Weekly
Martin v. Simmons Properties, LLC (Lawyers Weekly No. 10-012-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11325 CLIFFORD J. MARTIN vs. SIMMONS PROPERTIES, LLC. Suffolk. September 9, 2013. ‑ January 16, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ. Real Property, Registered land: easement, Easement, Certificate of title, Deed, Drain. Easement. Deed. Way, Private: extent. Drain. Civil action commenced in the Land Court Department on August 3, 2007. The case was heard by Gordon H. Piper, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Clifford J. Martin, pro se. Joseph P. Mingolla for the defendant. Martin J. Newhouse & John Pagliaro, for New England Legal Foundation & another, amici curiae, submitted a brief. Diane C. Tillotson, for Real Estate Bar for Massachusetts & another, amici curiae, submitted a brief. LENK, J. In this case involving registered land, we consider, among other things, the effect of a reduction by the owner of the servient estate in the dimensions of an easement created for the purpose of permitting the easement holder access to a lot which otherwise has no direct access from a public way. We must determine whether the dimensions of such an easement, defined by reference to a Land Court plan, may be modified by the servient land holder so long as the purposes for which the easement was created are not frustrated, and the utility of the easement is not lessened. We conclude that there is no meaningful distinction for purposes of such an analysis between an easement on recorded land and an easement on registered land held pursuant to a Land Court certificate of title. Confirming and expounding upon our adoption of the Restatement (Third) of Property (Servitudes) § 4.8(3) (2000) (Restatement) in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004) (M.P.M. Builders), we affirm the decision of the Land Court judge that the width of the easement properly may be reduced as the defendant has done here, since the plaintiff does not dispute that at all times he has been able to use the remaining unobstructed portion of the easement for the purpose of travel to and from his parcel. 1. Background and prior proceedings. We recite the facts based on the detailed findings of the trial judge. For the most part, the facts are undisputed. […]
Care and Protection of Yetta (Lawyers Weekly No. 11-003-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1540 Appeals Court CARE AND PROTECTION OF YETTA.[1] No. 12‑P‑1540. Middlesex. April 10, 2013. ‑ January 16, 2014. Present: Trainor, Graham, & Wolohojian, JJ. Parent and Child, Care and protection of minor, Custody of minor. Minor, Care and protection, Custody. Practice, Civil, Care and protection proceeding, Findings by judge. Petition filed in the Middlesex County Division of the Juvenile Court Department on January 12, 2010. The case was heard by Kenneth J. King, J. David J. Cohen, Committee for Public Counsel Services, for the father. Diana S. Spanos for the mother. Jocelyn Thomsen for the children. Brian R. Pariser for Department of Children and Families. GRAHAM, J. The Department of Children and Families (department) filed a petition under G. L. c. 119, § 24, alleging that five children, Eve, Yetta, Sam, Deborah, and Ted, were in need of care and protection. The petition was based on the testimony of the eldest child, Eve, that she had been sexually abused by her step-father (father). After an eight-day trial in the Juvenile Court, the judge found that the department had failed to prove that the father had sexually abused any of the children but concluded, nonetheless, that the children were in need of care and protection. Pursuant to G. L. c. 119, § 26, the judge committed Eve to the custody of the department, but permitted the other four children (children) to remain in the custody of the parents, subject to certain enumerated conditions. On appeal, the father, mother, and children argue that the evidence and the judge’s subsidiary findings do not adequately support a finding of parental unfitness; that the judge exceeded his authority by imposing conditions on the parents’ custody of the children without an explicit finding that the parents were unfit; and that certain findings made by the judge are clearly erroneous. We agree that the findings are insufficient to support a conclusion that the parents are unfit and, accordingly, vacate the judgment and order. Background. The mother is the biological parent of six children: Gail (born in 1990, who was an adult at the time the petition was filed); Eve (born in 1996); Yetta (born in 2000); Sam (born in 2004); Deborah (born in 2006); and Ted (born in 2010). The father is the biological parent of Sam, Deborah, […]