COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS.

PROBATE & FAMILY COURT Docket # 99P 5181 GM ) ) ) ) )

In Re: Guardianship of Zachary Tringali

OPPOSITION TO MOTION IN LIMINE

Now comes Leisha Tringali, party to this case, request this Court deny the Motion in Limine to bar all evidence to defendant¶s fitness prior to judgment of December 5, 2003. As reasons therefore, Plaintiff states: 1. The ongoing conflict between Matthew Tringali and Peter Tringali inside and outside the home posed a continual threat to Zachary and should be taken into consideration. Failure to protect Zachary by exposing the child to first-hand and second hand abuse and domestic violence is not in the best interest of Zachary. The ³best interests´ standards set out in Massachusetts General Law Chap...ter 210, Section 3, is a flexible one, which requires the court to ³focus on the various factors unique to the particular individual for whom it must act.´ Custody of a Minor, 5 Mass. App. Ct. 741 at 749 (1997 ). ³The specialized needs of a particular child when combined with the deficiencies of a parent¶s ( guardian ) character, temperament, capacity or conduct may clearly establish unfitness.´ Adoption of Carlos, 31 Mass. App. Ct. 233 at 243.

2. The past unfitness may be considered to show an on-going pattern of neglect or misconduct and thus to establish current unfitness. Petitions of Catholic Charitable Bureau of the archdiocese of Boston, Inc. to Dispense with Consent of Adoption, 395 Mass. 180 (1985 )

3. The Court may consider the fact that a child suffering from post traumatic stress disorder as a result of abuse when considering the fitness or unfitness of the guardian and the child¶s best interest. See Adoption of Gregory, 23 Mass App. Ct. 948 at 956 (1986). Also see Adoption of George, id at 269. 4. Care & Protection of Robert, 408 Mass. 52, 63, 556 N.E.2d 993 (1990) (³reasonable cause´ serves a ³threshold function´ and means ³known or suspected instances of child abuse and neglect´). 5. The principle of judicial deference to agency judgments on factual issues does not require reviewing court to abdicate its responsibility, pursuant to the State Administrative Procedure Act, to review the sufficiency of the factual record. M.G.L.A. c. 30A, § 14(7)(c,e, f).

6. The rationale for judicial deference ceases to apply where the reviewing court concludes that the agency has failed to adhere to its own statutory mandate and regulatory framework by making a decision without sufficient evidentiary support, and in such cases, the reviewing court is required by the State Administrative Procedure Act to correct the agency's judgment by means of the court's own. M.G.L.A. c. 30A, § 14(7). The court may affirm the decision of the agency, or remand the matter for further proceedings before the agency; or the court may set aside or modify the decision, or compel any action unlawfully withheld or unreasonably delayed, if it... determines that the substantial rights of any party may have been prejudiced because the agency decision is² (c) Based upon an error of law; or (e) Unsupported by substantial evidence; or (f) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (6) of this section, in those instances where the court is constitutionally required to make independent findings of fact; 8. Plaintiff¶s argument that the defendant's continued pattern and practice shows his unwillingness to secure a safe environment for Zachary and is a factor tending to support its conclusion that Zachary is at ³substantial risk´ of physical harm

Signed under pains and penalties of perjury

____________________________________________________

Leisha Tringali

Date: November ___, 2010

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