Opinion
20-P-1412
06-30-2021
ADOPTION OF KATHLEEN.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The father appeals from a decree terminating his parental rights to his daughter, Kathleen. The father contends the judge's factual findings regarding his mental health and its impact on his ability to parent the child were clearly erroneous. He also challenges the judge's decision declining to order postadoption visitation. We affirm.
The mother consented to termination of her parental rights and is not a party to this appeal.
Background.
We summarize the facts as found by the judge, supplemented by evidence from the record that is consistent with those findings. We address the claimed deficiencies in the evidence in our discussion. See Adoption of Luc, 484 Mass. 139, 141 (2020) .
The father was born in 1968. Throughout his life he has experienced serious trauma. At the age of eight he was sexually assaulted by an unknown adult male. At twenty, he enlisted in the United States Navy and served for eight years, including a tour of duty with operation Desert Storm from 1990 to 1992. During his tour, the father saw a mine explode and damage a ship similar to his own. He had understandable difficulty working below the ship's water line thereafter and coped by drinking and smoking marijuana. He tested positive for marijuana twice and was given an "other than honorable" discharge from the Navy in 1992. He was diagnosed with posttraumatic stress disorder (PTSD), anxiety, depression, and a sleep disorder.
While he was deployed, his twin daughters were born; he coparented them with his former partner when he returned. The father married in 1994 and had three sons with his wife, with whom he lived until 2008. He then worked as a truck driver and then a certified nursing assistant. At the time of trial, he was unemployed but received subsidized housing and medical assistance as a result of service-related disabilities, including PTSD, anxiety, depression, and tinnitus. At the time of trial he had secured a two-bedroom apartment and had furnished one bedroom for the child.
In March 2017, the father pleaded guilty to two counts of indecent assault and battery on a person over the age of fourteen. The convictions stemmed from an incident in August 2015, when the father met the adult victim at a food festival near the father's apartment. The victim needed to use the restroom and the father offered to allow her to use the bathroom in his apartment. The victim reported that the father sexually assaulted her by forcing her to engage in sexual intercourse. The father was arrested and initially denied sexual contact. He later admitted to sexual contact, but insisted it was consensual. He was sentenced to 430 days in the house of correction and four years of probation. At the time of the termination trial, he was registered as a level two sex offender. He was compliant with probation conditions, although the probation officer was concerned that the father had not taken responsibility for his actions. See G. L. c. 6, § 178K.
The facts underlying the convictions are recited in Dr. Laurie Guidry's psychosexual evaluation and report. The father did not object to this document describing the charges, but subsequently told treating professionals that the victim was a "disgruntled woman."
The father met Kathleen's mother in November 2017. The mother learned she was pregnant in December 2017. By that time the relationship had ended; the mother "took off," but returned the next day. The father knew that the mother was pregnant and brought her clothes, food, and necessities, and assisted her in applying for benefits. The father also suspected the mother of substance use.
The judge found that the father knew the mother lacked stable housing but did not assist in helping her get other housing. We do not rely on this finding, as there was evidence that she had left the father and had another partner at that time.
On February 15, 2018 the mother sought an abuse prevention order against the father. The mother's affidavit filed with the application for an abuse prevention order stated that the father went to visit the mother, where he began to drink, and he was asked by one of the mother's roommates to leave. The father and the roommate argued. The father eventually left only to return later and physically attack the mother. The father testified at the termination trial that the mother and her roommates tried to rob him, and he defended himself. An abuse prevention order against the father expired in March of 2018 and criminal charges against him were eventually dismissed.
The father was present at the hospital when the mother went into labor in July of 2018, and he was prepared to take the child home. The father also began the process to obtain a Probate and Family Court order regarding custody. The mother indicated she intended to give the father custody of the child. However, hospital employees knew the mother had a history of marijuana and cocaine use. The child and the mother, who gave an alias at the hospital, both tested positive for cocaine.
A report pursuant to G. L. c. 119, § 51A, was filed alleging neglect by both parents. The Department of Children and Families (department) determined that allegations of neglect were supported as to the mother, but the department did not place Kathleen with the father pending investigation of his criminal history. Instead, Kathleen was placed in foster care with the adoptive family of her older half-sister.
The mother has a lengthy history with the department and lost custody of two children prior to Kathleen's birth.
A family action plan was prepared in August 2018, approximately one month after the child was born. At that time the father obtained, at the department's request, an abuse prevention order against the mother, although the factual basis of the order is not in the record. He was in compliance with his action plan and attended the majority of weekly visits.
There were some instances in which the father did not confirm his attendance to a visit in time or confirmed but then failed to arrive.
The department set an initial goal of reunification of the child with the father. The goal of reunification was supported at a May 10, 2019 foster care review. In the interim, at his counsel's request, the father completed a psychosexual evaluation with Dr. Laurie Guidry in April 2019. Dr. Guidry concluded that father's risk of sexual reoffense was within the average range of 3.9 percent and manageable with continued therapeutic treatment. Based on this evaluation, the judge found that the father was a low risk of sexual offense against the child.
However, Dr. Guidry also described the father as having "issues with his temper, ... a lot of hostility under the surface ... a lot of . . . grievance thinking, is angry at a lot of people." She opined that he had suffered from PTSD since he was a child, that the childhood trauma and PTSD were exacerbated by his experiences in the Navy, and that the trauma had gone largely untreated. Based on Dr. Guidry's report and her testimony, the judge found that the father (1) "demonstrates deficits in his ability to form warm, constructive relationships with women," and was "demeaning in his attitude towards his female victim and his estranged ex-wife"; (2) "demonstrates hostility when confronted with information that does not match his worldview, which serves as an insurmountable barrier to effective engagement in treatment"; (3) suffered from a personality disorder which "is different from other disorders in that it is associated with long term, interpersonal dynamics that shape how one forms (or is unable to form) relationships"; and (4) "has not taken advantage of mental health services sufficiently to address the [PTSD] and related reactivity which prevent him from fully engaging in any kind of treatment." The judge credited Dr. Guidry's observation that the father "can't effectively navigate his interpersonal relationships. You can get medication for . . . depression, but you can't take [medication] for this."
After receipt of Dr. Guidry's report, the department provided the parents with an updated family action plan on July 2, 2019 in which the goal for Kathleen was changed to adoption. The action plan included additional tasks for the father, based on Dr. Guidry's evaluation, aimed at addressing his PTSD, depression, sobriety, and anger. The action plan included a requirement that the father participate in therapy to address these mental health issues and to develop parenting skills.
The father did not engage in the recommended therapy. A psychologist from the Veterans Administration (VA) reported that the father had not engaged in weekly therapy there, was not in treatment, and attended a walk-in clinic only sporadically. The VA psychologist stated that the father disclosed that he had periods of uncontrolled anger and rage, was "unable to tolerate more than the most superficial human contact," and that he was opposed to the notion that he needed to manage his anger. Clinical and forensic psychologist David Partyka, who performed a psychological and parenting evaluation at counsel's request, testified that visits to the VA walk-in clinic were not sufficient to meet the father's mental health needs, and that weekly long-term individual and group therapy were needed. Dr. Guidry concurred. The judge credited this testimony, noting that the father walked out of a foster care review when asked for information about his participation in therapy. On a different occasion he argued with the foster mother in the court house. The judge also stated that the "[f]ather's behavior during testimony further highlighted these concerns."
Dr. Partyka's evaluation concluded that the father was at low risk for child maltreatment.
Trial took place over three days in December 2019 and January 2020. On August 13, 2020, the judge found the father unfit and terminated his parental rights. The judge also determined that the department's plan for adoption by the current foster parents was in the best interests of Kathleen. This appeal followed.
Discussion.
1. Termination of parental rights.
To terminate parental rights, "the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's 'best interests will be served by terminating the legal relation between parent and child.'" Adoption of Luc, 484 Mass. at 144, quoting Adoption of Ilona, 459 Mass. 53, 59 (2011) . "A finding of unfitness must be supported by 'clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of the evidence.'" Adoption of Talik, 92 Mass.App.Ct. 367, 370 (2017), quoting Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). "We give substantial deference to the judge's decision to terminate parental rights . . . ." Adoption of Yvonne, 99 Mass.App.Ct. 574, 577 (2021), quoting Adoption of Talik, supra.
The father contends that the judge made errors in her factual findings regarding his mental health and its nexus to his ability to parent the child. He acknowledges that he suffers from PTSD, depression, and anxiety, but maintains that the evidence at trial did not support a finding that these conditions rendered him unfit. He claims he takes medication to manage the symptoms and has actively participated in treatment.
Many of the father's arguments touch on the degree to which the judge's decision focuses on evidence detrimental to him and allegedly ignores positive opinions as to his ability to manage his mental health issues. "We defer to a judge's assessment of the weight of the evidence and the credibility of the witnesses." Adoption of Larry, 434 Mass. 456, 462 (2001). See Adoption of Jacob, 99 Mass.App.Ct. 258, 266 (2021).
"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.'" Adoption of Talik, 92 Mass.App.Ct. at 370, quoting Custody of Eleanor, 414 Mass. 795, 799 (1993) . The judge made factual findings, well supported by the record, that the father experienced deep-seated anger that interfered with his ability to control his temper or forge interpersonal relationships. The father was evaluated by two mental health professionals and was seen at the VA clinic. All professionals involved agreed that in order to address the impact of trauma and PTSD, he needed to participate in weekly therapy; medication alone would not address his behavior. He had not done so.
In addition, the judge adopted the portions of Dr. Guidry's report that stated the father "has significant difficulty admitting to personal shortcomings and will minimize and deny personal weaknesses, flaws, and/or problems." This finding was also supported by the VA psychologist, who highlighted the inconsistencies between the father's self-report to Dr. Guidry in 2019 and his description of far more serious problems to the VA in 2017. Dr. David Partyka similarly testified that, in completing a psychological evaluation, the father attempted to "portray himself in a positive light, basically denying any common human foibles," which made the results uninterpretable. While this may be common in parents dealing with custody issues, it is also a pattern in the father's behavior that the judge determined was tied to his inability to undergo comprehensive mental health treatment.
The father also contends that there was insufficient evidence to support the judge's finding that he demonstrates anxiety and hostility toward women. Dr. Guidry stated that the father "does appear to exhibit deficits in his ability to form warm, constructive relationships with women. He was demeaning in his attitude toward his victim and his ex-wife. He presented an attitude that suggested women were not be trusted."
The department contends on appeal that there was a pattern of domestic violence and violence against women. The judge did not make a finding of a pattern of domestic violence, an understandable omission given the paucity of evidence provided by the department regarding a pattern. There was no plea colloquy or police report in the record regarding the indecent assault and battery convictions. The record includes an affidavit in support of the abuse prevention order and criminal charges sought by the mother. Despite the fact that the treating professionals referenced police reports, no police reports regarding the incident were introduced at trial. Nor is there any record regarding the abuse prevention order sought by the father against the mother. Likewise, the department argues that the father was arrested in an incident of domestic violence in Alabama, but the department failed to introduce a police report regarding the arrest. Domestic violence places a child at risk and is a basis, in and of itself, for termination of parental rights. See Custody of Vaughn, 422 Mass. 590, 599-600 (1996). Such a claim must be proven, however. Here the allegations regarding an incident in Alabama are just that -allegations without evidentiary support. Where, as here, there are serious allegations of domestic abuse, it is incumbent on the department to provide the judge with a record from which she may find facts. See id.
More generally, the record supports the judge's finding that the father had substantial difficulty managing his anger in stressful situations. "A parent's behavior during trial and [his] ability to manage anger are relevant to parental fitness." Adoption of Yvonne, 99 Mass.App.Ct. at 580. See Adoption of Ulr_ich, 94 Mass.App.Ct. 668, 676 (2019) . In addition to the psychological testimony summarized above, the department social worker assigned to the case testified that the father walked out of a foster care review in one instance and, in another, argued with the foster mother at the court house. There was additional testimony that the father expressed frustration and asked to end a visit with Kathleen early because she was fussy and crying.
The father also contends that the department failed to demonstrate a nexus between his mental health diagnoses and his ability to parent. "'[P]arental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare 'much at hazard.'" Adoption of Jacob, 99 Mass.App.Ct. 258, 262 (2021), quoting Adoption of Katharine, 42 Mass.App.Ct. 25, 28 (1997) . When determining an individual's ability to parent, "'[m]ental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs' (emphasis added)." Adoption of Luc, 484 Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9 (1989).
The judge determined that the father's untreated mental health issues would put Kathleen at risk for abuse or neglect. Here, the father was diagnosed with PTSD, depression, and anxiety and met the criteria for personality disorder, not otherwise specified, mixed with paranoid features. Despite his claims that he attended therapy groups, he did not receive the kind of consistent therapy necessary to treat those aspects of his diagnoses that could not be resolved by medication. See generally Adoption of Bea, 97 Mass.App.Ct. 416, 429 (2020).
Rather, the evidence presented at trial was that the mental health services he did receive "in no way constitute[d] treatment." "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60.
Throughout his testimony, the father consistently denied that he experienced any of the problems identified by Dr. Guidry, or that he needed the additional treatment requested by the department and recommended by Dr. Guidry and Dr. Partyka.
From these findings, the judge made a predictive determination that the father's untreated mental health issues would result in his minimizing the child's needs when they did not align with his own and would place the child at risk. "[T]he State's interest in protecting children from suffering harm at the hands of their parents may properly be preventive as well as remedial." Custody of a Minor (No. 2), 378 Mass. 712, 714 (1979). See Adoption of Jacob, 99 Mass.App.Ct. at 262, quoting Adoption of Katharine, 42 Mass.App.Ct. at 32-33 ("In ascertaining parental fitness, the judge 'may consider past conduct to predict future ability and performance'"). The judge's ultimate determination of the father's unfitness was well supported and based on "a constellation of facts that point[] to termination as being in the best interests of the child." Adoption of Yvonne, 99 Mass.App. Ct at 582, quoting Adoption of Greta, 431 Mass. 577, 588 (2000).
2. Postadoption visitation.
The father states that he has a bond with Kathleen and it is not in her best interests to terminate parental rights without a postadoption visitation order. "The decision whether to grant posttermination visitation is within the judge's sound discretion." Adoption of Virgil, 93 Mass.App.Ct. 298, 306 (2018), quoting Adoption of Cecily, 83 Mass.App.Ct. 719, 727-728 (2013). The judge did not find any significant bond between Kathleen and the father. See Adoption of Ilona, 459 Mass. at 63-64. The child had lived in the preadoptive home since birth.
"[O]nce a preadoptive family has been identified, a judge must balance the benefit to the child of an order of visitation . . . with the intrusion that an order imposes on the right of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass. at 64-65. The judge recognized that the child had formed strong bonds with her preadoptive family, which includes her biological half-sister, and found no significant bond with the father. Thus, it fell within the judge's sound discretion whether to order postadoption visitation. See Adoption of Vito, 431 Mass. 550, 563 (2000).
Decree affirmed.
The panelists are listed in order of seniority.