A BOOK WRITTEN BY MY SON

Diego's Guardiana Paperback – by Michael Avner (Author)

ENFORCING RESTRICTIVE COVENANT IN COMMERCIAL NON-EMPLOYMENT AGREEMENT

TWITCHELL TECH. PRODS., LLC v. MECHOSHADE SYS., LLC, 2024 NY Slip Op 1744 - NY: Appellate Div., 2nd Dept. 2024:

"This appeal requires us to analyze the factors to consider when evaluating whether a restrictive covenant in an ordinary commercial contract is enforceable. Although there is a dearth of New York state case law on this issue, we agree with those courts that have analyzed these types of covenants under a rule of reason, considering (1) whether the covenant protects a legitimate business interest; (2) the reasonableness of the geographic scope and temporal duration; and (3) the degree of hardship upon the party against whom the covenant is enforced.

This appeal also requires us to consider whether courts have the power to sever and grant partial enforcement of overly broad restrictive covenants in ordinary commercial contracts. Because the Court of Appeals has held that courts have such power with regard to overly broad restrictive covenants in employment agreements (see BDO Seidman v Hirshberg, 93 NY2d 382, 395), we similarly hold that courts have the power to sever and grant partial enforcement of overly broad restrictive covenants in ordinary commercial contracts and may do so under the appropriate circumstances.

I. Factual and Procedural Background

This appeal relates to the motion of the plaintiff, Twitchell Technical Products, LLC (hereinafter Twitchell), pursuant to CPLR 3211(a) to dismiss the counterclaims of the defendant, Mechoshade Systems, LLC (hereinafter Mechoshade). We accept the following facts as alleged in Mechoshade's counterclaims as true for purposes of this CPLR 3211(a) motion (see Leon v Martinez, 84 NY2d 83, 87).

Mechoshade has manufactured solar roller shades for approximately 50 years. One of the challenges associated with manufacturing solar roller shades is procuring fabrics that can be repeatedly rolled up and down without damaging the fabric, and to that end, Mechoshade committed its own resources to developing fabrics for use in solar roller shades. In the late 1970s, Mechoshade approached Twitchell about manufacturing fabric for Mechoshade's solar roller shades. At that time, Twitchell had never manufactured fabric for solar roller shades, but it had manufactured fabrics for other purposes and owned commercial looms, as well as other necessary equipment. Mechoshade and Twitchell agreed to co-develop fabric for solar roller shades. Mechoshade invested its time and money, including in excess of $100,000, to help Twitchell develop fabrics of different colors, weaves, and densities. Among other things, Mechoshade funded a university study to analyze the different types of weaves, colors, and densities that could be used with various kinds of glazing. This study resulted in certain developments, which are still incorporated in a large portion of Mechoshade's products today and from which Twitchell also benefitted. In addition, through various marketing and advertising initiatives, Mechoshade built and promoted the solar roller shade market.

After operating pursuant to a "handshake" agreement for a number of years, Twitchell and Mechoshade, both represented by attorneys, negotiated two nearly identical distribution agreements (hereinafter the agreements), one governing North America (hereinafter the North America agreement) and the other governing the rest of the world. Pursuant to the agreements, which were entered into on June 1, 1989, Twitchell agreed to manufacture fabric for Mechoshade on an exclusive basis for use in Mechoshade's solar roller shades. Section 1 of the North America agreement provided that Twitchell appointed Mechoshade as its sole distributor of Twitchell's products in the Window Shading Product Line. In connection therewith, Twitchell granted Mechoshade the right to promote and sell throughout North America the Window Shading Product Line, and Twitchell granted Mechoshade certain rights to use certain trademarks and logos. The Window Shading Product Line was defined as

"[o]perable and fixed interior shading, exterior vertical window shading, and greenhouse shading for use with glazed windows, greenhouses and skylights for the contract, commercial, institutional, residential and hospitality markets. The Window Shading Product Line shall not include shading for operable or fixed exterior awnings, or products made for any use in cars or trucks or for use as exterior fixed screening (collectively, the `Non-Competing Industries')."

Section 2.2 of the North America agreement provided that the "`[p]atterns, colors, weaves and textures individually or in combination, which are designed, developed and produced by . . . [Twitchell] for . . . [Mechoshade] pursuant to this Agreement shall be exclusive designs for . . . [Mechoshade].'"

Section 11.1 of the agreements contained identical restrictive covenants (hereinafter the restrictive covenants) that provided that in the event of termination of the agreement,

"all weaves, patterns, designs and colors produced by [Twitchell] for [Mechoshade] for the Window Shading Product Line shall remain the exclusive designs of [Mechoshade] and shall not be sold to dealers, manufacturers or distributors in the window shading market; provided, however, that [Twitchell] shall be free to produce and sell new and different designs, weaves, patterns and colors for distribution into the window shading market but shall not offer for sale to the window shading market slightly modified fabrics which are substantially similar to [Mechoshade's] exclusive fabrics."

After more than 30 years of working together, in 2018, Mechoshade informed Twitchell that it was terminating the agreements, effective May 31, 2019. By letter dated July 30, 2020, Mechoshade "reminded" Twitchell of its contractual obligations in the restrictive covenants in the agreements.

By summons and complaint, Twitchell commenced this action seeking a declaration that the restrictive covenants in the agreements are "invalid, unlawful and unenforceable, and that Twitchell is not restricted in its manufacture or sale of fabric, or in its component elements of weaves, patterns, designs, colors, or otherwise." As exhibits to the complaint, Twitchell attached, among other things, a copy of the North America agreement, as well as printouts from Mechoshade's website, and printouts from websites of two of Mechoshade's alleged competitors, who are not parties to this action.

Mechoshade interposed an answer with counterclaims. The first counterclaim sought a declaration that (1) the agreements, "in relevant part, remain in full force and effect"; (2) the restrictive covenants contained in the agreements are "enforceable, in whole or in part"; and (3) "Twitchell is precluded from selling the fabrics it actually manufactured for [Mechoshade] in the Window Shading Product Line or any fabrics that are `substantially similar' thereto to other dealers, manufacturers or distributors in the window shading market." The second counterclaim sought a permanent injunction.

Twitchell did not interpose a reply to the counterclaims. Instead, Twitchell moved pursuant to CPLR 3211(a)(1) and (7) to dismiss Mechoshade's counterclaims, contending that Mechoshade's counterclaims failed to plead facts supporting that the restrictive covenants in the agreements were enforceable and that Twitchell's documentary evidence established that the restrictive covenants were unenforceable. Mechoshade opposed the motion, contending that Twitchell relied upon materials that did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and that Mechoshade sufficiently alleged that the restrictive covenants were valid and enforceable in their entirety. Mechoshade also contended that even if the Supreme Court were to ultimately determine that the restrictive covenants were overly broad, the court's power to sever and partially enforce overly broad restrictive covenants warranted denial of Twitchell's motion to dismiss the counterclaims.

In an order entered June 29, 2021, the Supreme Court denied Twitchell's motion. Twitchell appeals. Because Twitchell failed to meet its burden on this motion pursuant to CPLR 3211(a), we affirm.

II. CPLR 3211(a)(1)

A motion to dismiss a counterclaim pursuant to CPLR 3211(a)(1) on the ground that it is barred by documentary evidence may be granted only if the documentary evidence utterly refutes the defendant's factual allegations, "conclusively establishing a defense [to the counterclaim] as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). Thus, on this motion to dismiss the counterclaims, Twitchell bears the burden of demonstrating that the proffered documentary evidence conclusively refutes Mechoshade's factual allegations (see Kolchins v Evolution Mkts., Inc., 31 NY3d 100, 106).

"[N]ot all printed materials constitute documentary evidence under CPLR 3211(a)(1)" (Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808). "[T]o be considered documentary, evidence must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86 [internal quotation marks omitted]; see Minchala v 829 Jefferson, LLC, 177 AD3d 866, 867). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are `essentially undeniable,' would qualify as `documentary evidence' in the proper case" (Fontanetta v John Doe 1, 73 AD3d at 84-85; see Minchala v 829 Jefferson, LLC, 177 AD3d at 867).

Here, contrary to Twitchell's contention, the printouts from Mechoshade's website, as well as the printouts from the alleged nonparty competitors' websites, which were attached to the complaint, do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see MJ Lilly Assoc., LLC v Ovis Creative, LLC, 221 AD3d 805, 806; Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1328; Guido v Orange Regional Med. Ctr., 102 AD3d 828, 830; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997). Although we acknowledge that printouts from websites may constitute documentary evidence under certain circumstances, in this case, the contents of the website printouts do not so qualify, as they can be controverted by other evidence (see MJ Lilly Assoc., LLC v Ovis Creative, LLC, 221 AD3d at 806; Guido v Orange Regional Med. Ctr., 102 AD3d at 830; Springer v Almontaser, 75 AD3d 539, 540).

By contrast, the North America agreement, which was attached to the complaint, is documentary evidence (see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63; Bonavita v Government Empls. Ins. Co., 185 AD3d 892, 894). Nevertheless, for the reasons set forth below, we hold that the North America agreement does not utterly refute Mechoshade's factual allegations or conclusively establish a defense to the counterclaims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326).

III. CPLR 3211(a)(7)

On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7), a court "must accept as true the facts as alleged" in the counterclaim, accord the defendant "the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d at 63 [internal quotation marks omitted]; see Indymac Venture, LLC v Nagessar, 121 AD3d 945, 946). "Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the [pleader] has a cause of action, not whether the [pleader] has stated one, and unless it has been shown that a material fact claimed by the [pleader] to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Bonavita v Government Empls. Ins. Co., 185 AD3d at 893 [internal quotation marks omitted]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

A motion pursuant to CPLR 3211(a)(7) to dismiss a counterclaim for a declaratory judgment prior to the service of a reply thereto presents for consideration only the issue of whether the counterclaim for declaratory relief is set forth, not the question of whether the defendant is entitled to a favorable declaration (see Ciaccio v Wright-Ciaccio, 211 AD3d 900, 901; Indymac Venture, LLC v Nagessar, 121 AD3d at 946). Thus, where a counterclaim is sufficient to invoke the court's power to render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy, a motion pursuant to CPLR 3211(a)(7) to dismiss that counterclaim should be denied (see Ciaccio v Wright-Ciaccio, 211 AD3d at 901-902; Minovici v Belkin BV, 109 AD3d 520, 524). However, upon a motion to dismiss a counterclaim for failure to state a cause of action, a court may reach the merits of a properly pleaded counterclaim for a declaratory judgment where no questions of fact are presented by the controversy see Ciaccio v Wright-Ciaccio, 211 AD3d at 902). Under such circumstances, the motion to dismiss the counterclaim for failure to state a cause of action should be treated as one seeking a declaration in the plaintiff's favor and treated accordingly (see id.; Mutual Aid Assn. of the Paid Fire Dept. of the City of Yonkers, N.Y., Inc. v City of Yonkers, 199 AD3d 815, 818).

In this case, however, many questions of fact remain to be determined (see Guthart v Nassau County, 178 AD3d 777, 779). Thus, for the reasons set forth below, the Supreme Court properly declined to treat Twitchell's motion as a motion for a declaration in its favor at this procedural juncture.

IV. Covenants Not to Compete in Ordinary Commercial Contracts

"Under New York law, the enforceability of a restrictive covenant depends in part upon the nature of the underlying contract" (DAR & Assoc., Inc. v Uniforce Servs., Inc., 37 F Supp 2d 192, 196 [ED NY 1999]). "Restrictive covenants may be enforceable in three types of contacts: (a) contracts for the sale of a business, (b) employment contracts, and (c) ordinary commercial contracts" (Steelite Intl. U.S.A., Inc. v McManus, 2021 WL 1648025, *5, 2021 US Dist LEXIS 80528, *11 [SD NY, Apr. 27, 2021, No. 21-CV-2645 (LAK)]; see DAR & Assoc., Inc. v Uniforce Servs., Inc., 37 F Supp 2d at 196-197; Baker's Aid, a Div. of M. Raubvogel Co., Inc. v Hussmann Foodservice Co., 730 F Supp 1209, 1214 [EDNY 1990]). Restrictive covenants in contracts for the sale of a business, which involve the transfer of goodwill, are enforceable because "a buyer of a business should be permitted to restrict [its] seller's freedom of trade so as to prevent the latter from recapturing and utilizing, by . . . competition, the good will of the very business which [it] transferred for value" (Purchasing Assoc. v Weitz, 13 NY2d 267, 271; see DAR & Assoc., Inc. v Uniforce Servs., Inc., 37 F Supp 2d at 196). By contrast, with employment agreements, as "the element of good will, or its transfer, is not involved and since there are powerful considerations of public policy which militate against sanctioning the loss of a [person's] livelihood, the courts have generally displayed a much stricter attitude with respect to covenants of this type" (Purchasing Assoc. v Weitz, 13 NY2d at 272). In the context of employment agreements, the Court of Appeals holds that a covenant not to compete is reasonable only if it: "(1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public" (BDO Seidman v Hirshberg, 93 NY2d at 388-389).

The parties agree that this case falls into the third category, restrictive covenants in ordinary commercial contracts. As has been recognized by other courts, "New York law does not contain a large body of guidance on the assessment of covenants not to compete" within ordinary commercial contracts (Crye Precision LLC v Bennettsville Print., 755 Fed Appx 34, 37 [2d Cir 2018]). However, we agree with those courts that have analyzed "these types of covenants under a simple rule of reason, balancing the competing public policies in favor of robust competition and freedom to contract" (DAR & Assoc., Inc. v Uniforce Servs., Inc., 37 F Supp 2d at 197; see Express Frgt. Sys. Inc. v YMB Enters. Inc., 623 F Supp 3d 39, 51 [ED NY 2022]; Baker's Aid, a Div. of M. Raubvogel Co., Inc. v Hussmann Foodservice Co., 730 F Supp at 1214; see also Hodge v Sloan, 107 NY 244, 249-250).

Under this rule of reason, courts should consider: "(1) whether the covenant protects a legitimate business interest; (2) the reasonableness of the covenant with respect to geographic scope and temporal duration; and (3) the degree of hardship upon the party against whom the covenant is enforced" (Express Frgt. Sys. Inc. v YMB Enters. Inc., 623 F Supp 3d at 51 [internal quotation marks omitted]; see Steelite Intl. U.S.A., Inc. v McManus, 2021 WL 1648025, *7, 2021 US Dist LEXIS 80528, *16; see also Dynamic Med. Communications v Norwest Trade Printers, 257 AD2d 524, 525). Although this simple rule of reason analysis is similar to the factors examined in the context of employment contracts (see BDO Seidman v Hirshberg, 93 NY2d at 388), in cases involving restrictive covenants in ordinary commercial contacts, courts should accord more deference to parties' freedom to contract (see Express Frgt. Sys. Inc. v YMB Enters. Inc., 623 F Supp 3d at 51; Steelite Intl. U.S.A., Inc. v McManus, 2021 WL 1648025, *7, 2021 US Dist LEXIS 80528, *16; Mathias v Jacobs, 167 F Supp 2d 606, 612 [SD NY 2001]). Further, "[t]he application of these factors depends entirely on the totality of circumstances" (Express Frgt. Sys. Inc. v YMB Enters. Inc., 623 F Supp 3d at 51 [internal quotation marks omitted]; Crye Precision LLC v Duro Textiles, LLC, 2016 WL 1629343, *5, 2016 US Dist LEXIS 54201, *14 [SD NY Apr. 22, 2016, No. 15cv1681 (DLC)] [internal quotation marks omitted], affd 689 Fed Appx 104 [2d Cir 2017]; see Greenwich Mills Co. v Barrie House Coffee Co., 91 AD2d 398, 401).

Turning to the application of the three factors to this case, we discuss Mechoshade's alleged legitimate business interest first, followed by the alleged degree of hardship upon Twitchell, the party against whom the covenant would be enforced, and then discuss the alleged reasonableness of the covenant's geographic scope and temporal duration.

A. Legitimate Business Interest

Regarding the first factor, for purposes of this CPLR 3211(a) motion, Twitchell has failed to establish that the restrictive covenants in the agreements do not protect Mechoshade's legitimate business interest in preventing unfair competition. "Unfair competition is the misappropriation for commercial advantage of a benefit or property right belonging to another. While it originally was confined to cases of palming off another's goods as one's own, over the years the concept of unfair competition has expanded to encompass a variety of commercial situations" (Marcraft Recreation Corp. v Frances Devlin Co., Inc., 459 F Supp 195, 198 [SD NY 1978] [citations and internal quotation marks omitted]). Nevertheless, the basic question is whether the acts complained of are fair or unfair (see Cigogne, Inc. v Luxury Trading Corp., 13 AD2d 928, 929; Advance 2000, Inc. v Harwick, 2019 WL 6725977, *7, 2019 US Dist LEXIS 213326, *18 [WD NY, Dec. 11, 2019, No. 16-CV-1037S]). "This is necessarily a fact-intensive inquiry," which is not appropriate for a CPLR 3211(a) motion (Advance 2000, Inc. v Harwick, 2019 WL 6725977, *7, 2019 US Dist LEXIS 213326, * 18; see Capitaland Heating & Cooling v Capitol Refrig. Co., 134 AD2d 721, 722).

Here, Mechoshade has alleged that it invested its own time, skill, and money in developing fabrics with Twitchell, which pursuant to the agreements, were to "remain the exclusive designs" of Mechoshade, even after the expiration of the agreements. Mechoshade further alleged that the restrictive covenants were included in the agreements to protect its investments in the fabrics in the event Twitchell and Mechoshade ever terminated the agreements. Contrary to Twitchell's contention, for purposes of withstanding this CPLR 3211(a) motion, Mechoshade has sufficiently alleged that it may have a legitimate business interest in the fabrics, even though it only allegedly co-developed them (see Cole Steel Equip. Co. v Art-Lloyd Metal Prods. Corp., 1 AD2d 148, 150; Baker's Aid, a Div. of M. Raubvogel Co., Inc. v Hussmann Foodservice Co., 730 F Supp at 1215 [ED NY 1990]; Marcraft Recreation Corp. v Frances Devlin Co., Inc., 459 F Supp at 198).

Twitchell further contends that Mechoshade's alleged investment in co-developing the fabrics constituted past consideration, which cannot support a contract. However, this issue is raised for the first time on appeal and does not involve a pure question of law, as the issue of adequate consideration for a contract is generally a question of fact (see Daniel Goldreyer, Ltd. v Van de Wetering, 217 AD2d 434, 438). Thus, we do not consider that argument for purposes of this appeal.

Moreover, in light of the procedural posture of this case (see CPLR 3211[a][1], [7]) and the insufficient record, it is premature to determine that the color, style, and design of the allegedly co-developed fabrics are too generic for Mechoshade to have a legitimate business interest in protecting them or that the allegedly co-developed fabrics do not vary in any meaningful way from those offered by competitors. There has been no discovery in this case, no expert testimony or affidavits, or even testimony or affidavits from a person with personal knowledge of the facts. Instead, Twitchell relies upon the printouts from Mechoshade's website and websites from two alleged nonparty competitors, which were attached to the complaint, and invites the court to make a comparison. However, as discussed above, those printouts are not documentary evidence for purposes of CPLR 3211(a)(1). Moreover, as to whether the counterclaims were subject to dismissal pursuant to CPLR 3211(a)(7), these uncertified printouts, some of which contain images purportedly of some of the subject fabrics and some of which contain images purportedly of nonparty competitors' fabrics, do not constitute the sort of evidentiary material that can indisputably demonstrate that the material facts as alleged in the counterclaims are not facts at all and that no significant dispute exists regarding them (see Guggenheimer v Ginzburg, 43 NY2d at 275; cf. Woss, LLC v 218 Eckford, LLC, 102 AD3d 860, 862).

Accordingly, although we may reach a different determination on a more fully developed record, for purposes of this motion pursuant to CPLR 3211(a), we cannot say that Mechoshade lacks a legitimate business interest in proscribing the unfair competition that may result from Twitchell's sale of fabrics that Twitchell co-developed with Mechoshade to Mechoshade's competitors (see Cole Steel Equip. Co. v Art-Lloyd Metal Prods. Corp., 1 AD2d at 150; Marcraft Recreation Corp. v Frances Devlin Co., Inc., 459 F Supp at 198; see also Baker's Aid, a Div. of M. Raubvogel Co., Inc. v Hussmann Foodservice Co., 730 F Supp at 1215).

Nevertheless, Twitchell contends that even if Mechoshade may have a legitimate business interest with respect to the allegedly co-developed fabrics, Mechoshade does not have a legitimate business interest in preventing Twitchell from selling "new and different designs, weaves, patterns and colors" that were "slightly modified fabrics which are substantially similar to [Mechoshade's] exclusive fabrics" to Mechoshade's competitors, and the inclusion of this language renders the restrictive covenants vague, overly broad, and unreasonable on their face. Twitchell contends that enforcing this language would have the effect of impermissibly prohibiting Twitchell from selling any fabrics at all in the window shade market and that Mechoshade's competitors already sell fabrics that are "substantially similar to" the allegedly co-developed fabrics.

However, for the reasons set forth above, we cannot determine from this record the extent to which Mechoshade's alleged competitors sell fabrics that are "substantially similar" to the allegedly co-developed fabrics. Nor can we determine the extent to which Twitchell would be prohibited from competing at all in the window shade market (see generally Supply Chain Prods., LLC v NCR Corp., 2023 WL 2712503, *10, 2023 US Dist LEXIS 55683, *29 [SD NY, Mar. 30, 2023, No. 19-CV-11376 (ALC) (JLC)] ["A covenant may not merely insulate a party from competition" (internal quotation marks omitted)]. Moreover, although the phrases "slightly modified" and "substantially similar" are not defined in the agreements, we cannot say on this record that this language is necessarily so vague as to render the restrictive covenants overly broad on their face. As Mechoshade correctly points out, courts have been able to interpret and enforce the phrase "substantially similar" in non-compete covenants in contracts (see Brintec Corp. v Akzo, N.V., 129 AD2d 447).

Accordingly, at this procedural juncture, Twitchell's reliance upon Crye Precision LLC v Duro Textiles, LLC (689 Fed Appx 104) and Crye Precision LLC v Bennettsville Print. (755 Fed Appx 34) is misplaced. In these two related cases, the same plaintiffs alleged that each of the defendants breached the terms of their separate agreements to license the plaintiffs' camouflage pattern (see Crye Precision LLC v Bennettsville Print., 755 Fed Appx at 37; Crye Precision LLC v Duro Textiles, LLC, 689 Fed Appx at 106). In Crye Precision LLC v Bennettsville Print. (775 Fed Appx at 37), the license agreement prohibited the defendant, Bennettsville Printing Works, from making any patterns that were "confusingly similar" to the plaintiffs' pattern (internal quotation marks omitted). In Crye Precision LLC v Duro Textiles, LLC (689 Fed Appx at 106), the license agreement prohibited the defendant, Duro Textiles, LLC, from making "any products that [were] similar to" the plaintiffs' pattern (internal quotation marks omitted). In both cases, the Second Circuit held that these provisions were overly broad (see Crye Precision LLC v Bennettsville Print., 755 Fed Appx at 37; Crye Precision LLC v Duro Textiles, LLC, 689 Fed Appx at 106).

However, as Mechoshade correctly points out, Crye Precision LLC v Bennettsville Print. (755 Fed Appx 34) and Crye Precision LLC v Duro Textiles, LLC (689 Fed Appx 104) were decided upon motions for summary judgment, under the Federal Rules of Civil Procedure. As such, the standard for deciding the motions in those cases was considerably less favorable to the nonmoving parties than the standard applicable for this CPLR 3211(a) motion (compare Anderson v Liberty Lobby, Inc., 477 US 242, 257, with EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d 1180, 1181). Additionally, these cases clearly had more factually developed records than the instant case (see Crye Precision LLC v Duro Textiles, LLC, 689 Fed Appx at 106 [citing to expert opinion]).

Thus, in this case, although we acknowledge that the inclusion of "slightly modified fabrics which are substantially similar to [Mechoshade's] exclusive fabrics" in the restrictive covenants may render the restrictive covenants overly broad, on this record, such a determination is premature (see generally Brintec Corp. v Akzo, N.V., 129 AD2d at 448; cf. Crye Precision LLC v Bennettsville Print., 755 Fed Appx at 37; Crye Precision LLC v Duro Textiles, LLC, 689 Fed Appx at 106).

B. Degree of Hardship

Similarly, as to the degree of hardship upon Twitchell, the party against whom the covenant would be enforced, it is not possible to make this determination on this CPLR 3211(a) motion. On their face, the restrictive covenants allow Twitchell to develop new and different designs, weaves, patterns, and colors for distribution within the "window shading market," provided that the fabrics are not "slightly modified fabrics which are substantially similar" to the allegedly co-developed fabrics. In addition, the restrictive covenants also allow Twitchell to sell fabrics covered by the restrictive covenants outside "the window shading market," and the counterclaims allege that Twitchell does sell fabrics outside of the window shading market. As with other aspects of the restrictive covenants, the determination as to the extent to which Twitchell would be harmed by the enforcement of the restrictive covenants must await a more developed record.

C. Reasonableness of Geographic Scope and Temporal Duration

In general, the reasonableness of a covenant not to compete with respect to geographic scope and temporal duration depends upon the facts of each case (see generally Karpinski v Ingrasci, 28 NY2d 45, 49). A covenant not to compete is not necessarily unenforceable merely because it lacks a temporal limitation (see id. at 50; Greenwich Mills Co. v Barrie House Coffee Co., 91 AD2d at 401). Likewise, a covenant not to compete is not necessarily unenforceable merely because it lacks a geographic restriction (see Doelker, Inc. v Kestly, 87 AD2d 763, 764; Cole Steel Equip. Co. v Art-Lloyd Metal Prods. Corp., 1 AD2d 148; SD Protection, Inc. v Del Rio, 498 F Supp 2d 576, 585 [ED NY 2007]).

In this case, however, the restrictive covenants in the agreements lack both geographic and temporal limitations, ostensibly applying indefinitely throughout the world. Under these circumstances, we agree with Twitchell that the unlimited geographic scope combined with the lack of any temporal limitation renders the restrictive covenants overly broad on their face (see Trans-Continental Credit & Collection Corp. v Foti, 270 AD2d 250, 251; Crye Precision LLC v Bennettsville Print., 2017 WL 4325817, *8, 2017 US Dist LEXIS 159072, *21-22 [ED NY Sept. 27, 2017, No. 15-cv-00221 (FB) (RER)], affd 755 Fed Appx 34).

V. The Court's Power to Sever and Grant Partial Enforcement of Overly Broad Restrictive Covenants in Ordinary Commercial Contracts

Nevertheless, as described above, Mechoshade's first counterclaim sought a declaration that the restrictive covenants contained in the agreements are "enforceable, in whole or in part" (emphasis added). On appeal, as it did before the Supreme Court, Mechoshade contends that courts have the power to sever and grant partial enforcement of an overly broad restrictive covenant in an ordinary commercial contract, and it further contends, that the court's power to do so here warrants denial of Twitchell's motion pursuant to CPLR 3211(a). Twitchell, by contrast, contends that the restrictive covenants are not capable of partial enforcement because every aspect of the restrictive covenants is overly broad. On this record, we hold that such a determination is premature and that Twitchell has failed to establish for purposes of its motion pursuant to CPLR 3211(a) that the restrictive covenants are not capable of partial enforcement.

In the context of overly broad restrictive covenants in employment agreements, the Court of Appeals has held that courts possess the power to sever and grant partial enforcement (see Brown & Brown, Inc. v Johnson, 25 NY3d 364, 371; BDO Seidman v Hirshberg, 93 NY2d at 395; Karpinski v Ingrasci, 28 NY2d at 53; see also Trans-Continental Credit & Collection Corp. v Foti, 270 AD2d at 251; Greenwich Mills Co. v Barrie House Coffee Co., 91 AD2d at 401). Where

"the unenforceable portion is not an essential part of the agreed exchange, a court should conduct a case specific analysis, focusing on the conduct of the employer in imposing the terms of the agreement. Under this approach, if the employer demonstrates an absence of overreaching, coercive use of dominant bargaining power, or other anti-competitive misconduct, but has in good faith sought to protect a legitimate business interest, consistent with reasonable standards of fair dealing, partial enforcement may be justified" (BDO Seidman v Hirshberg, 93 NY2d at 394 [citation omitted]; see Brown & Brown, Inc. v Johnson, 25 NY3d at 371).

Relying upon Court of Appeals precedent from cases involving restrictive covenants in employment agreements, which necessarily require a more rigorous examination than restrictive covenants in ordinary commercial agreements, federal courts applying New York law have recognized the power of courts to sever and grant partial enforcement of restrictive covenants in cases involving ordinary commercial agreements (see Crye Precision LLC v Duro Textiles, LLC, 689 Fed Appx at 107; Baker's Aid, a Div. of M. Raubvogel Co., Inc. v Hussmann Foodservice Co., 730 F Supp at 1214, 1216).

We likewise hold that overly broad restrictive covenants in ordinary commercial agreements may be capable of partial enforcement to the extent necessary to protect a legitimate business interest. However, as with restrictive covenants in employment agreements, "severance of the impermissible portions from the valid portions in order to uphold the covenant to the extent that it is reasonable is not always justified by the circumstances of the particular case" (Greenwich Mills Co. v Barrie House Coffee Co., 91 AD2d at 401; see Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 500; Crye Precision LLC v Bennettsville Print., 755 Fed Appx at 38; Crye Precision LLC v Duro Textiles, LLC, 689 Fed Appx at 107).

Moreover, as with overly broad restrictive covenants in employment agreements, in order to determine whether an overly broad restrictive covenant in an ordinary commercial agreement is capable of partial enforcement, courts should conduct a case specific analysis, which likely requires a more developed record than is available at this stage of the litigation (see BDO Seidman v Hirshberg, 93 NY2d at 394).

Similar to the determination as to whether to grant partial enforcement of an employment agreement, with ordinary commercial contracts, courts should consider whether the unenforceable portion is an essential part of the agreement, whether there was overreaching, whether there was the coercive use of dominant bargaining power, whether there was other anticompetitive misconduct, or whether there was other evidence of bad faith in the inclusion of the restrictive covenant (see Brown & Brown, Inc. v Johnson, 25 NY3d at 371; BDO Seidman v Hirshberg, 93 NY2d at 394).

Here, assuming the facts of the counterclaims to be true for purposes of this CPLR 3211(a) motion, both Twitchell and Mechoshade were sophisticated business entities at the time they entered into the agreements, both parties were represented by attorneys, and the agreements were part of a negotiated arm's-length transaction. There is no allegation that Mechoshade engaged in overreaching or used coercive dominant bargaining power to obtain the restrictive covenants. In any event, this issue would likely be a factual inquiry that could not be resolved on a CPLR 3211(a) motion (see generally Brown & Brown, Inc. v Johnson, 25 NY3d at 372). Moreover, it is not apparent from the face of the agreements that the unlimited temporal duration and geographic scope of the restrictive covenants were essential to the agreements. That determination must await a more fully developed record.

We emphasize that we find only that the unlimited geographic scope combined with the lack of any temporal limitation in the restrictive covenants renders them overly broad on their face (see Trans-Contintental Credit & Collection Corp. v Foti, 270 AD2d at 251). We do not opine as to whether both the geographic scope and temporal duration would need to be limited in order to render the restrictive covenants reasonable or whether either the geographic scope or the temporal duration would need to be limited in order to render the restrictive covenants reasonable. Indeed, we also do not opine as to whether other portions of the restrictive covenants would need to be severed or limited in order to render the restrictive covenants reasonable.

Although the Supreme Court may eventually conclude that the restrictive covenants at issue here cannot be partially enforced without impermissibly rewriting the agreements for the parties (see Crye Precision LLC v Bennettsville Print., 755 Fed Appx at 38), such a determination must await a more developed record (see generally Brown & Brown, Inc. v Johnson, 25 NY3d at 372; Greystone Funding Corp. v Kutner, 121 AD3d 581, 583-584; cf. Crye Precision LLC v Bennettsville Print., 755 Fed Appx at 38). We express no opinion on the merits of such an argument. However, at this very early stage of the action, without any discovery, it is inappropriate to hold that the restrictive covenants are not capable of partial enforcement (see Brown & Brown, Inc. v Johnson, 25 NY3d at 372).

VI. Conclusion

Accordingly, as there are disputed factual issues, the Supreme Court properly declined to treat Twitchell's motion as a motion for a declaration in its favor and properly denied that branch of Twitchell's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaim for a declaratory judgment. Further, the court properly denied that branch of Twitchell's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaim for a permanent injunction, as the documentary evidence did not utterly refute the allegations in the counterclaim or establish a defense to the counterclaim as a matter of law (see id. § 3211[a][1]), nor did Twitchell demonstrate that Mechoshade does not have a cause of action on the counterclaim (see id. § 3211[a][7]; Guggenheimer v Ginzburg, 43 NY2d at 275).

In light of the foregoing, the order is affirmed.

MILLER, GENOVESI and DOWLING, JJ., concur.

ORDERED that the order is affirmed, with costs."

CHILD WELFARE - SIBLING VISITATION RIGHTS

IN RE ADOPTION OF FLAVIA, Mass: Appeals Court 2023:

"In this consolidated appeal, we affirm Juvenile Court decrees terminating the mother's and the father's parental rights to their twin daughters, Flavia and Helen, but we vacate an order denying postdecree motions filed by the twins and their older half-brother, Mark (a pseudonym). The motions cited G. L. c. 119, § 26B (b), and requested an order for sibling visitation.^[2] Because we conclude that an order should have entered, we remand the matter for further proceedings.

Background. 1. Facts. The Department of Children and Families (department) became involved with the family in 2014, after the mother committed an assault and battery on Mark, then five years old. Diagnosed with trauma and a variety of behavioral and emotional disorders, Mark "require[d] a high level of care and supervision" to manage behaviors such as fire setting, self-harm, and aggressiveness toward animals; behaviors that the judge found resulted from the way the parents cared for Mark and increased after the twins' birth in 2015.^[3] In 2016, Mark was placed in a residential treatment center (residential center) due to his inability to be safe in a less restrictive setting, and the department filed a care and protection petition on his behalf pursuant to G. L. c. 119, § 24. At the residential center, Mark continued to struggle with emotional regulation, impulsivity, lack of personal boundaries, and enuresis. In 2017, Mark was committed to the department's custody. In February 2019, the department transitioned him home to live with the parents and the twins.

Seven reports in as many months were then filed with the department pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of all three children due to the parents' substance use and failure to engage with services for Mark. On investigation pursuant to G. L. c. 119, § 51B, the department learned that the parents had not followed recommendations for managing Mark's behaviors at home, such as establishing rules and consequences and implementing behavior charts. Instead, without consulting a doctor, the mother gave Mark a "vape pen" containing cannabidiol oil and had Mark smoke it "to help with his behaviors." Then twenty-nine years old, the mother reported poor liver function and regularly drank beer during meetings with in-home support workers, but she denied alcohol use, while the father, then thirty-one years old and addicted to Adderall after being prescribed it in 2016 for a childhood diagnosis of attention deficit hyperactivity disorder (ADHD), said in June 2019 that he bought Adderall "off the street and used it . . ., as it helped with his ADHD," but in July, he "denied any medications or diagnosis."

In September 2019, the mother reported that the father relapsed, and the department also learned that the parents had failed to seek immediate medical attention for Mark's broken arm after Mark hit a moving car while riding his scooter near a busy road. All three children were removed from the home, and the department filed a second petition pursuant to G. L. c. 119, § 24, this one naming Flavia and Helen. The petitions were consolidated, and by the time of trial, eleven year old Mark was living at the residential center where he had lived for periods totaling over five years. Flavia and Helen were six years old and living in the same foster home where they had been for two years, with a family that was prepared to adopt them. Both twins suffered from enuresis not caused by physical concerns, were diagnosed with unspecified trauma and stressor-related disorders, and received weekly therapy. Helen was additionally diagnosed with posttraumatic stress disorder with dissociative features and had developmental delays and emotional disabilities that "require[d] significant interventions."

2. Trial. Trial took place on thirteen nonconsecutive days between May of 2021 and 2022. On the eighth day, before the department introduced documentary evidence, the father moved for a directed verdict as to the twins. In response, the department reported that it had no more witnesses because the foster mother was not available that day to testify about each twin's functioning and needs. A discussion ensued wherein the judge questioned the sufficiency of the evidence as to Flavia and Helen. The judge made the following comments: "I need more than what I have to make a determination," and "I need to know more about the girls' functioning. That's what I'm telling you." She asked whether the department would introduce reports for each twin that she knew had been, or were being, prepared, and she said, "[T]here's a bunch of information in [the reports] that I feel that I need in order to make a determination for these girls." The judge concluded that portion of the discussion by stating, "I leave it to you to conference how the evidence is going to get in. . . . [P]erhaps, the [d]epartment is going to call, like, the foster parent."

Later, the judge suggested that counsel for the parents and children "have a conversation" about their permanency plans — all three children returning home — in light of testimony that, the judge said, "raised real concerns for me about the legal viability" of that plan. A social worker had testified that Mark struggled at the residential center "with sexualized behaviors, impulsivity, limit setting, following directions, and respecting personal boundaries." The judge commented, "[I]f I credit that testimony . . . it creates a difficult situation wherein, if [Mark] goes home, the girls can't go home; or if the girls go home, [Mark] can't go home."

The evidence closed in March 2022, after the foster mother testified and after Mark's twelfth birthday. Two months later, in court, the judge announced her decisions regarding the parents' fitness and each child's best interests without mentioning posttermination or postadoption visitation, for the parents or for Mark, with the twins. All three children were adjudged in need of care and protection and committed to the department's custody. The parents were found unfit, but termination of the mother's rights was not found to be in Mark's best interests, "given his strong position against adoption" and high level of need. See G. L. c. 210, § 2 (child's written consent to adoption required if child is "above the age of twelve").

As to Flavia and Helen, the judge expressed her view that "[f]or [Mark] to have any future, it's going to mean that the parents have to pour all of their attention towards reunification with him" and give him "all of the family's efforts," leaving an inadequate amount of time and attention for what she described as each twin's "significant needs as a result of the ongoing issues in regards to the parents' fitness." Although she "recognize[d] that there ha[d] been some progress" by the parents in addressing their "ongoing issues," the judge considered that "when [she] reviewed the record, it was replete with instances of obfuscation and deception"; the father relapsed during trial; and there was a risk that the parents had not really changed After "po[ring] over" the exhibits, listening to the testimony, and reviewing her notes, the judge made "a very, very difficult decision" that freeing Flavia and Helen for adoption by their foster parents was in each twin's best interests. Decrees entered accordingly. See G. L. c. 119, § 26 (b) (4); G. L. c. 210, § 3. As to Mark, a judgment entered committing him to the department's permanent custody, and his placement in the residential center continued, see G. L. c. 119, § 26 (b) (2) (iii) — a judgment from which neither he nor the mother appealed.

3. Appeals and postdecree motions. One week after the decrees entered, the parents and the twins filed a joint notice of appeal from the decrees. On the same day, the parents and the twins also filed a "joint motion for orders regarding post-termination and post-adoption contact," seeking specific orders for posttermination and postadoption visitation, for the parents and for Mark, with the twins. The judge did not expressly discuss the joint motion for visitation in her September 2022 findings of fact, conclusions of law, and rationale, wherein she expanded on her reasoning after trial in 450 findings of fact and forty conclusions of law. The judge provided for parent-child visitation with the twins to be "held at the discretion of the [d]epartment and then the adoptive parents, who will determine the frequency, length, location, and manner of such visitation," and sibling visitation between the twins and Mark "as often as the adoptive resource is able to accommodate" until after adoption, at which time "sibling visitation will be left to the sound discretion of the adoptive parents."

The following month, the judge allowed the mother's request for a ruling on the joint motion for specific orders and entered an order, nunc pro tunc to May 19, 2022, the date the motion was filed, that posttermination and postadoption visitation with the twins "will be addressed with the [t]rial evidence." In other words, the judge denied the joint motion for orders more specific than the provisions contained in the findings of fact, conclusions of law, and rationale. No one appealed from this decision.

In November 2022 and January 2023, Mark, Flavia, and Helen jointly filed a motion and a supplemental motion "to reconsider" that identified the judge's decision, as specified in her findings of fact and conclusions of law, to leave sibling visitation to the discretion of the department and adoptive parents (children's motions). Supported by exhibits, the children's motions (1) cited G. L. c. 119, § 26B (b); (2) asserted that the department had reduced sibling visits to an insufficient level and requested an order mandating a specific number of in-person visits plus weekly virtual contact; and (3) requested an evidentiary hearing. The department opposed the motions and argued that reconsideration was neither timely nor warranted. At a hearing on February 1, 2023, the judge received offers of proof that the department had reduced sibling visitation by one-half, no sibling visits had been or were then scheduled to occur, and the children wanted to see each other every week if not more. Reasoning that there was no new evidence and that she had not made an error in her "interpretation of the law . . . that [she could] leave it in the sound discretion of the foster parent if [she] believe[s] that, yes, it's in the best interest of the children," the judge denied the children's motions from the bench. All three children appealed.

Discussion. 1. Parental rights. "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). The concepts of parental fitness and a child's best interests "are not separate and distinct but, instead, are `cognate and connected steps' that `reflect different degrees of emphasis on the same factors'" (citation omitted). Adoption of Ulrich, 94 Mass. App. Ct. 668, 675 (2019).

"Where there is clear and convincing evidence that the parent is unfit and likely to remain so, we give substantial deference to the trial judge's decision regarding the child's best interests and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion. A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. An abuse of discretion exists where the decision amounts to a clear error of judgment [in weighing the relevant factors, such] that [the decision] falls outside the range of reasonable alternatives." (Quotations and citations omitted.)

Adoption of Xarissa, 99 Mass. App. Ct. 610, 615-616 (2021).

The mother, the father, and the twins challenge the sufficiency of the evidence to support the decrees and join in each other's arguments that the judge made several errors. The parties allege that the judge relied on stale evidence and clearly erroneous findings about Mark's history, needs, and "sexualized behaviors," the mother's alcohol use disorder, and the twins' needs and each parent's ability to meet them;^[4] weighed evidence relating to Mark too heavily and pitted his return home against that of the twins; did not make sufficiently individualized findings about Flavia and Helen or support the decision permanently to separate Mark from the twins with findings that such action was in each child's best interests; and deprived the parents of due process of law by her comments on the eighth day of trial.

Indeed, many of the parties' challenges "amount to no more than a disagreement with the judge's weighing of the evidence and credibility determinations regarding the witnesses," Adoption of Don, 435 Mass. 158, 166 (2001), but "our task is not to decide whether we, presented with the same facts, would have made the same decision," Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "We do not sit as a trial court to review de novo the evidence presented by the parties." Adoption of Paula, 420 Mass. 716, 730 (1995). Our review is limited to determining (1) whether the judge erred in concluding, based on subsidiary findings proved by a preponderance of evidence, that there was clear and convincing evidence that the parents were currently unfit to parent each twin and likely to remain so, and (2) whether the judge's conclusion that it was in each twin's best interests to terminate the legal relation between the parents and child was infected by clearly erroneous findings of fact or any clear error of law or abuse of discretion. See Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017), and cases cited.

"A judge whose order will have the effect of irreversibly terminating the legal parent-child relationship must focus on the present circumstances of the parent and the child, taking into account recent positive gains (if any), and, in appropriate cases, the likelihood of future improvement, in a parent's ability to care for the child who is the subject of the petition." Adoption of Paula, 420 Mass. at 731. Here, the parents experienced housing instability that was relevant to their fitness to care for the twins.^[5] See Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581 (2021), and cases cited. Also relevant was the parents' failure at every home where they lived with the twins to supervise them properly, maintain a safe and stable environment, or obtain consistent therapeutic services required for the children to thrive. See Adoption of Ulrich, 94 Mass. App. Ct. at 676 (judge may rely on patterns of past conduct to assess parent's future performance and ability). Although the parents engaged in services, their work did not ameliorate the concerns that brought the twins into the department's care, see id. at 677, as they were unable to keep a home clean for any significant period, see Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016), and unable to supervise the twins or Mark closely enough to prevent injuries, including substantial ones,^[6] see Bezio v. Patenaude, 381 Mass. 563, 579 (1980) (finding of unfitness "must be predicated upon parental behavior which adversely affects the child").

The parents also struggled with substance use that "was a factor contributing to established neglect" of all three children and therefore relevant. Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). The judge found that evidence of the mother's alcohol use disorder was not stale based largely on the parents' minimizations of the issue and lack of acknowledgment at trial,^[7] but she also discussed what she called "substituted behaviors" by the mother, in findings the mother challenges as clearly erroneous. To the extent that we agree, erroneous findings about drinking soda and gambling do not detract from the judge's ultimate conclusions, because it is clear to us from the larger picture painted by the findings that the judge's concern was not that the mother struggled with addiction. See Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997) (addiction by itself does not necessarily translate into unfitness). It was that the mother's inability to recognize the severity of the issue, combined with each twin's significant needs requiring recognition and appreciation for the appropriate response, created a risk to Flavia and Helen that the mother would not promptly recognize if, when, or how the twins might need support.^[8] This was not based on stale evidence or clearly erroneous findings.

Even after three years of engagement in substance use services that included monthly injections to curb cravings — a period equaling one-half of the twins' lives — the mother's sobriety was still "in its infancy." Until July 2021, when the mother "stated that after testifying [on two previous dates] she realized that she is an alcoholic and had begun attending Alcoholics Anonymous," the mother would only say that she had "a problem with drinking." While we commend the mother for her acknowledgment, neither she nor the father demonstrated such understanding or appreciation for "the complex emotional and physical needs of" Flavia and Helen. Adoption of Paula, 420 Mass. at 730. The parents were not aware of either twin's diagnoses or work in therapy; neither expressed what services or supports they would want Flavia or Helen to engage in were they returned home; and they "could articulate no realistic plan for meeting" the needs of either twin or both twins together. Id. Thus, the supported findings "place this case within the line of authority holding that, although a parent's shortcomings, viewed in isolation, would not preclude his or her meeting the law's somewhat undemanding standard of parental unfitness, they nevertheless do so when viewed against the more complex and attention-consuming needs of a child who has been impaired in his development by early neglect." Adoption of Oliver, 28 Mass. App. Ct. 620, 625 (1990).

Similarly, the parents' significant history of domestic violence was not stale even though the relationship had improved by the time of trial, because in their testimony both parents denied and minimized the abuse and its effects on all three children.^[9] The judge found that the twins were clearly affected by the violence because, on removal, Flavia was physically assaultive and verbally dominating to Helen and showed her no empathy, while Helen "was dysregulated, could dissociate, and [also] exhibited some aggressive behaviors." Solidly based in the evidence, the judge's findings did not overstate Flavia's or Helen's issues or needs, which the judge did not have to be an expert to infer were, at least in part, a result of the parents' caregiving. "It is well established that exposure to domestic violence works a `distinctly grievous kind of harm' on children" that can include imperiling their physical safety and psychological development. Adoption of Talik, 92 Mass. App. Ct. at 374, quoting Custody of Vaughn, 422 Mass. 590, 595 (1996). See Adoption of Yvonne, 99 Mass. App. Ct. at 578, and cases cited. This remains true even if the issues were also attributable, in part, to the twins' removal from the home, as the parents maintain.

The parents' pattern of minimizing responsibility for incidents resulting in harm to all three children, their inability to recognize the effects of the violence on the twins, and their limited understanding of their roles in causing (1) trauma in the family, or (2) all three children to be removed in September 2019,^[10] were "compelling evidence for a finding of parental unfitness." Adoption of Talik, 92 Mass. App. Ct. at 374. Against this evidence the judge weighed the recent improvements. She found that the parents' dishonesty "at various junctures regarding issues of critical importance," such as substance use, violence in the home, and significant mental health concerns into which the parents also demonstrated minimal insight and a lack of transparency,^[11] combined with their present inability to articulate how they would deal with intrarelationship strife differently or better if any or all the children were returned to their care, "creates a likelihood that old patterns of abusive and unhealthy behavior may recur" and harm the twins. See Adoption of Luc, 484 Mass. 139, 146 & n.17 (2020) (parent's mental illness relevant if there is nexus to child's neglect). This was not a risk to which the judge was required to expose the twins. See Adoption of Katharine, 42 Mass. App. Ct. at 32. The "constellation of factors" at play here amply supports the judge's assessment that the mother and the father had not fully addressed their deficiencies to the degree that they would not recur were the twins placed back with them, such that neither parent was or soon would be able to provide Flavia and Helen with a safe, stable home with responsible caretakers dedicated to their safety and well-being. Adoption of Yvonne, 99 Mass. App. Ct. at 582, quoting Adoption of Greta, 431 Mass. 577, 588 (2000).

The foster parents provided their full attention to Flavia and Helen, advocated for them, recognized when extra supports were required, and provided an environment in which each twin's specialized needs were met on a consistent basis. Consequently, after two years in the "stability and security" of that home, Flavia and Helen "made great strides in overcoming their past trauma, understanding their behaviors, and forming connections."^[12] Both twins had also formed a strong secondary attachment to the foster family that, the bonding expert testified, "allowed [Flavia and Helen] to stay resilient . . . in the face of some really difficult situations." It was the judge's sole province to weigh the secondary bond and the twins' "extraordinary progress" in foster care, and we see no error of law or abuse of discretion in her choice to weigh that evidence heavily. Adoption of Ilona, 459 Mass. 53, 62 (2011). See Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203 (2003). "Here we have a case where the [twins] are finally in [a] stable situation[]." Adoption of Nancy, 443 Mass. 512, 517 (2005). The judge's finding that removing Flavia and Helen from the foster home would cause severe psychological and emotional harm did not require any manipulation of the expert's testimony; the expert opined that each twin would experience such a removal as a loss, and "it would be important for them to have the supports to negotiate that loss." Neither the mother nor the father, however, demonstrated an understanding of the harm that either twin would experience if the placement were disrupted, had the initiative and insight to seek out services for Flavia or Helen, or exhibited the ability to explain to providers why the twins might need services.

As there was clear and convincing evidence to support a conclusion that termination of parental rights was in the best interests of the twins together or as individuals, the judge's findings on these issues were sufficient. See Adoption of Nancy, 443 Mass. at 516; Adoption of Garret, 92 Mass. App. Ct. 664, 675 n.20 (2018). We do not agree that the findings reflect a disproportionate focus on Mark or that the judge treated the twins as a unit. After making seventy-five findings specifically about Mark, thirty-four findings about Flavia, and fifty-two findings about Helen, the judge approved of the department's permanency plans for the twins in part because the "[f]oster parents have already demonstrated their commitment to addressing each child's unique needs." The judge also "ha[d] no doubt" that the foster parents would "treat [Flavia] and [Helen] as individuals despite the fact that they are twins."

We do agree that the judge's focus on Mark's so-called "sexualized behaviors" at the residential center was misplaced due to a lack of a nexus to the twins,^[13] but once again we conclude that reversal is not required, because the rest of the "findings are amply specific and detailed to support the judge's determination." Adoption of Cadence, 81 Mass. App. Ct. 162, 168-169 (2012). As demonstrated by their omission from our discussion, the findings to which the parties cite are not necessary to the judge's decision. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). Taken as a whole, the judge's analysis reflects appropriate consideration of Mark's history and needs as factors among many bearing on the parents' current and future fitness and the best interests of Flavia and Helen. See Adoption of Luc, 484 Mass. at 145. For the judge, it was the parents' patterns of behavior, not Mark's, that put the twins "at serious risk of peril" if all three children were returned, because she thought it unlikely that the parents would be vigilant about accessing services on behalf of the twins while also doing so for Mark. Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). Having carefully reviewed the record, "[w]e see no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

Our decision is not changed by information that, in April 2023, while this appeal was pending, a motion by the department to return custody of Mark to the mother was allowed after hearing, and the care and protection petition naming Mark was dismissed. The judge praised the parents for their "demonstrable progress toward being able to address [Mark's] behavioral issues," and so do we. Although we cannot ascertain the reasons from the docket sheet, it is reasonable to think that the department sought to return custody, because after trial the parents had gained the enhanced understanding of trauma and its impact on development that the judge thought necessary to properly care for Mark. When she was making the decisions at issue in this appeal, however, the judge was required "to focus on the present." Adoption of Ramona, 61 Mass. App. Ct. 260, 264 (2004). At that time, each parent "demonstrated a current deficiency in this area." Both "acknowledged that they do not know what [Mark]'s diagnoses are" and were not "prepared with the skills needed to be able to supervise [Mark] were he to return home," despite eight years of engaging with the department and Mark's providers. They were not entitled to an indefinite opportunity to reform. See Adoption of Cadence, 81 Mass. App. Ct. at 166. See also Adoption of Ilona, 459 Mass. at 60 ("childhood is fleeting"). Considering the record "replete with instances in which the parents demonstrate progress and then regress at the expense of the children," the judge decided on balance that the parents were not then, and would not soon be, in a position if all three children were returned home to ensure each attended appointments and services on time, or to provide the heightened level of supervision that is required to protect the children. As to the twins, Mark's reunification with the mother does not undermine this analysis.

We are not persuaded by the parties' claim that G. L. c. 119, § 26B (b), creates a presumption that siblings should be placed together, such that specific findings that it was in each child's best interests were required before the twins could permanently be separated from Mark.^[14] In pertinent part, § 26B (b) provides:

"The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings . . . if the children or their siblings are separated through adoption or . . . placements in foster care.

"The court or the department shall determine, at the time of the initial placements wherein children and their siblings are separated through placements in foster, pre-adoptive or adoptive care, that sibling visitation rights be implemented through a schedule of visitations or supervised visitations. . . ."

Rather than presume they are to be placed together, the statute protects the rights of siblings who "are separated." The rights protected by G. L. c. 119, § 29B (b), relate to "visitation with siblings," not permanent placements, which are governed by a statute that does not mention siblings. As required by G. L. c. 119, § 26 (b), the judge considered the factors enumerated in G. L. c. 210, § 3 (c), and found factors (ii), (iv), (vi), (vii), (viii), and (xii) applicable to Flavia and Helen. See Adoption of Cadence, 81 Mass. App. Ct. at 167. Then she considered the applicable factors along with the department's permanency plans for Flavia and Helen and found that the plans represented the best ones for each twin's "future stability and success." This was not outside the range of reasonable alternatives where, at the time of trial, Mark lived in the residential home and was not "discharge ready." Obviously, the twins could not permanently be placed with him there. There was no evidence that placing Mark with the twins in their preadoptive home was an option, and the judge found it was not in the twins' best interests to be placed with the parents, for all the reasons we have discussed.

The parties' final claim is that the parents were deprived of impartial justice by the judge's comments on the eighth day of trial, because the comments tipped the scale in the department's favor and reflected bias and prejudgment. Again, we are not persuaded. The department had not yet rested when the judge asked about further evidence, and her comments did not reflect bias when taken in context. In addition to the examples we gave supra, the judge also remarked, "[I]t's not about the [d]epartment not meeting its burden; it's about the cognate and connected issue of what a child's needs are and the parental capacities to meet those needs"; "[M]ind you, I haven't looked at the documentary evidence"; and "I'm not pre-judging the case." The challenged remarks were "issue-spotting alerts," not the sort of premature "weighted assessments of the evidence" that are not permitted, and a close reading of the transcript does not support that the parents were denied due process of law. Adoption of Tia, 73 Mass. App. Ct. 115, 121 (2008). See Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013).

2. Posttermination and postadoption visitation with the twins. The parents and the twins challenge the judge's initial decisions to leave postdecree visitation to the discretion of the department and the adoptive parents. All five parties fault the judge for not entering an order on the postdecree sibling visitation motions on February 1, 2023. We review the judge's initial decisions for an abuse of discretion. See Adoption of Xarissa, 99 Mass. App. Ct. at 623-624 (parent-child contact); Adoption of Garret, 92 Mass. App. Ct. at 680-681 (sibling contact). The February 1, 2023 order was based on the judge's interpretation of G. L. c. 119, § 26B (b), which we review de novo. See Adoption of Daphne, 484 Mass. 421, 424 (2020).

a. For the parents. Before mandating posttermination and postadoption visitation between a child and parent whose rights have been terminated, a judge must find both that visitation would be in the child's best interests and that those interests will not be adequately served by the preadoptive or adoptive parent's discretion. See Adoption of Cadence, 81 Mass. App. Ct. at 168. Absent (1) a reason to question the presumption that preadoptive and adoptive parents will act in a child's interest in evaluating whether such visitation is in the child's best interests now and in the future, or (2) a compelling reason requiring that an order be entered to protect the best interests of a child, judges have discretion to leave decisions about parent-child visitation to the sound judgment of the department and preadoptive or adoptive parents. See Adoption of Ilona, 459 Mass. at 66.

Here, the judge considered whether posttermination and postadoption visitation with the parents was in each twin's best interests and concluded that it was, because Flavia and Helen both had a primary attachment to the parents. The judge then considered the foster mother's testimony that her family "would have an open-door relationship with [the] [p]arents, allowing them to see the twins and facilitating contact, including visits, phone calls, and FaceTime, as long as this was in the best interests of all parties involved." "[C]onfident that the foster parents will heed the advice of clinicians and other professionals and be conscientious of the twins' trauma histories and other behavioral and medical issues as they continue to care for the girls," the judge concluded that a specific order for parent-child visitation was not necessary to protect either twin's best interests. Her conclusion was not outside the range of reasonable alternatives.

b. For Mark. In support of her initial orders for sibling visitation, the judge found that the foster parents "have demonstrated an understanding of the importance of the twins' connection to [Mark] and have consistently supported the visitation," which prior to the COVID-19 pandemic consisted of biweekly supervised visits by the twins with Mark and both parents. During and after the pandemic, Mark, Flavia, and Helen had weekly virtual contact with just each other. Mark looked forward to visits with the twins, asked about them frequently, and spoke about them affectionately. He was described as "very, very nurturing to his sisters." Flavia and Helen would like to visit with Mark more often, and their permanency plans recommended "frequent and meaningful contact" with him. The judge found that "it is in [Flavia] and [Helen]'s best interests to continue to have sibling visitation with [Mark]."

Explaining her decision to leave the form and frequency of such visits in the discretion of the department and then the twins' adoptive parents, the judge said, "I have . . . a preadoptive [parent] that I have heard from who I feel confident in her judgment in regarding being able to assess what is in the best interest of the [twins], and that she respects the sibling attachments and bond that they have . . . . I've left it in her sound discretion because I believe that, going forward, she will be in the best position to evaluate what is . . . in the girls' best interest." On this record, we cannot say the judge made a clear error in weighing the factors relevant to the decision such that her initial sibling visitation order falls outside the range of reasonable alternatives. See Adoption of Garret, 92 Mass. App. Ct. at 680-681.

The children's motions, filed in November 2022 and January 2023, stand on different footing. While we appreciate that the judge approached the children's motions as ones to reconsider her initial decisions, because that is what the parties asked her to do, substantively, they were "petition[s] for sibling visitation" under G. L. c. 119, § 26B (b), fourth par., and should have been treated as such. See Care & Protection of Rashida, 488 Mass. 217, 233 (2021), S.C., 489 Mass. 128 (2022), and cases cited (label attached to motion not dispositive). The judge should have considered not whether there were grounds to revisit her initial decisions, but whether sibling visitation was currently reasonable and practical and in the best interests of the petitioning child and "of the minor siblings with whom visitation is sought." Care & Protection of Jamison, 467 Mass. 269, 277 n.20 (2014). See G. L. c. 119, § 26B (b), first par. If the judge concluded that it was, then she should have entered an order.

It is a general rule of statutory construction "that the use of the term `shall' imports a mandatory or imperative obligation." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 785 (2008). The rule "is at its strongest when the protection of rights is involved." Commonwealth v. Cook, 426 Mass. 174, 181 (1997). Previously, sibling visitation was governed by a provision of the general care and protection statute that read, in part, "The court shall, whenever reasonable and practical, and based upon a determination of the best interests of the child, ensure that [State-separated siblings] have access to, and visitation rights with, such siblings." G. L. c. 119, § 26 (5), inserted by St. 1997, c. 43, § 99. We said this language meant that a judge must decide whether and if so how sibling visitation is to occur, and then provide a schedule and conditions of visitation, and on further appellate review, the Supreme Judicial Court "agree[d] that the judge should have specified in an order or orders whether sibling visitation would be in [the subject child]'s best interests; if so, visitation with which siblings; and, if so, the form of visitation (in person contact or otherwise), and the schedule of such visitation." Adoption of Rico, 453 Mass. 749, 753 n.12 (2009), citing Adoption of Rico, 72 Mass. App. Ct. 214, 220-221 (2008).

General Laws c. 119, § 26 (5), was replaced while further appellate review in Adoption of Rico was pending, with a separate section, c. 119, § 26B (b), first par., that twice contains the word "shall" and includes mechanisms for enforcement. See St. 2008, c. 176, § 84. Now, a child in foster care (or the sibling of a child voluntarily placed in foster care) who is "denied visitation rights by the department . . . may appeal through the department's fair hearing process" and then file a petition for review of any decision in the Probate and Family Court, whereupon "[t]hat child or sibling shall have the right to court review by trial de novo." G. L. c. 119, § 26B (b), third par. "For children in the custody of the department," the child or a sibling "may file a petition for sibling visitation in the court committing the child to the custody of the department." G. L. c. 119, § 26B (b), fourth par. If sibling visitation is "reasonable and practical" and in "the best interests of the child," then the court "shall . . . ensure that [the child] shall have access to and visitation with siblings." G. L. c. 119, § 26B (b), first par.

These provisions reflect even more strongly a legislative determination that, where siblings who have been permanently separated through no fault of their own "are dissatisfied with the state of visitation" and seek relief under G. L. c. 119, § 26B (b), Adoption of Garret, 92 Mass. App. Ct. at 680 n.25, the judge must "specif[y] in an order or orders whether sibling visitation would be in" the best interests of the petitioning child and each sibling with whom visitation is sought "and, if so, the form of visitation (in person contact or otherwise), and the schedule of such visitation." Adoption of Rico, 453 Mass. at 753 n.12. See id. at 757 n.16; Adoption of Zander, 83 Mass. App. Ct. 363, 367 (2013). As the court stated in Adoption of Rico, supra at 756-757, "The additional, but highly significant, value of a court order" in this context is that it "provides clarity and, perhaps more importantly, gives the child a present sense of security about [their] ability to maintain contact and a relationship with a person who has been shown to be critical to [them]"; it provides "protection to the child that is absent if the judge leaves all visitation matters up to the department and future adoptive parents." Although in that case the court was discussing parent-child visitation, which differs from sibling visitation in material respects, its reasoning also applies here. Whereas the department has an independent obligation under the statute to ensure sibling visitation, adoptive parents are not so obligated. See Adoption of Garret, supra at 679-681; Adoption of Zander, supra.

While the statute does not expressly state whether a de novo trial may be had on a petition filed pursuant to G. L. c. 119, § 26B (b), fourth par., it is clear to us as a result of the change in circumstances, specifically Mark's reunification with the parents, that further evidence will be required before the judge can enter an appropriate order under G. L. c. 119, § 26B (b). See Adoption of Rico, 453 Mass. at 758 ("current context is critical" to assessing child's best interests). For these reasons, the children's motions, filed in November 2022 and January 2023, are remanded for evidentiary hearing and entry of an order. In the interim, the judge should consider whether a temporary order for sibling visitation is reasonable, practical, and in the current best interests of Mark, Flavia, and Helen. See G. L. c. 119, § 26B (b), first par.

Conclusion. The decrees terminating the mother's and father's parental rights are affirmed. The order entered February 1, 2023, denying the children's motions, is vacated, and the matter is remanded for consideration of those motions consistent with this opinion.

So ordered.

[1] Adoption of Helen. The children's names are pseudonyms.

[2] Our use herein of the word "visitation" is not meant to exclude virtual contact, which the children also sought.

[3] We refer to the father of Flavia and Helen as "the father" throughout our decision. Although the father is not Mark's biological father, he is the only father figure that Mark has known. Mark's biological father stipulated to the termination of his parental rights.

[4] In particular, the parties maintain that the judge overstated the needs of each twin and unreasonably inferred that those needs were, at least in part, a result of the parents' caregiving; erroneously found that removal from the foster home would cause each twin "severe psychological and emotional harm"; and weighed the bond between each twin and the foster family too heavily and manipulated the testimony of the bonding expert to reach the conclusions she wanted.

[5] The parents moved seven times in the four years between the twins' birth and their removal and again the week before trial began.

[6] In 2017, the parents failed to notice Helen playing near an industrial dryer at the mother's place of work. Helen's shirt became lodged in the dryer's moving gears, pulling in her arm and resulting in injuries requiring multiple surgeries to reattach her thumb and repair damage to her skin. Throughout 2018, when Mark returned to the residential center after off-site visits with the parents, he frequently had minor injuries. In 2019, Mark collided with a car and broke his arm at a time when the father claimed to have been watching him, and then the parents failed to take him to the hospital until the next day. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) ("Where a parent is ineffective in obtaining medical care for a child, causing neglect of the child, it is relevant to finding of unfitness").

[7] For example, the judge found that the mother did not testify credibly when she claimed to store her prescribed Adderall elsewhere to prevent tempting the father, who by then had relapsed, and that she failed to testify credibly or consistently about how much alcohol she consumed at various times throughout the case. The judge likewise "did not credit Father's testimony regarding his and Mother's use of alcohol."

[8] Flavia "requires supervision to ensure she is not aggressive or overpowering in peer interactions," while Helen "needs consistent redirection and supervision, as she has hygiene, dissociation, and learning difficulties that require skilled caregivers to monitor." Helen also becomes emotionally dysregulated when correction is used, "even just verbal correction or instruction. . . . Even when a correction was given by the foster parents in a whisper, [Helen] would sometimes appear to dissociate. . . . Any kind of physical touch, even a gentle rub on the back, would trigger an aggressive response, usually punching or kicking."

[9] The father frequently perpetrated abuse on the mother while some or all the children were present and was arrested multiple times for assaulting the mother, who at one point obtained an abuse prevention order against him.

[10] The mother testified that there was no reason for the removal.

[11] The mother denied and minimized diagnoses for which she was prescribed and took medication and made claims about storing her Adderall that the judge did not credit; the father also lied about medications, testifying that he was taking them as prescribed when he had stopped taking them without consulting his psychiatrist. In addition, while trial was ongoing, the father slept through a scheduled parent-child visit before presenting to a social worker as agitated, anxious, and incoherent — "conclusive evidence" for the judge that the father had "not developed an appreciation for the severity of his mental health conditions or an adequate understanding of how to manage them or his sobriety effectively."

[12] Flavia's "aggression [wa]s minimal, and she no longer ha[d] frequent enuretic episodes," while Helen was "able to self-regulate and reengage more quickly after a dissociative episode."

[13] None of the behaviors cited by the judge was directed at the twins or any other young girl or demonstrated after August or September of 2021. Although the judge found that Mark "needs to be touching someone when speaking to them or will try to put his hands on someone when he is talking to them" and that he "exhibited this behavior with the twins during visits as well," she did not find, and there was no suggestion, that the behavior was sexual or negatively affected either twin. To the contrary, the judge found that Mark tried to help Helen when she exhibited dysregulated behavior during visits, and there was testimony that "physical reassurance" helped Helen manage transitions.

[14] The parties also cite to 110 Code Mass. Regs. § 7.101 (2009), in support of this argument, but we do not address the regulatory claim, because it was not raised below. The joint motion for orders stated that "110 [Code Mass. Regs.] § 7.210 provides that [the department] will provide necessary services to families post-adoption," but this contention is not pressed on appeal."