Opinion
20-P-1376
08-23-2021
ADOPTION OF TONY. [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 23.0
The mother appeals from the decree terminating her parental rights, arguing that (1) the department failed to show a change in circumstance between the first trial, when the judge found her unfit but did not terminate her parental rights, and the second trial; (2) the judge erred by inferring a bond between the child and the preadoptive mother; and (3) the judge erred by deeming adequate the Department of Children and Families' (DCF) efforts to provide the mother with visitation. We affirm.
Background.
a. The first trial.
After a trial on September 25, 2018, the judge found that while "there is a sufficient basis for the termination of parental rights of mother at this time, . . . the court does not find that such termination . . . is in the best interest[s] of [Tony] at this time." See Adoption of Carlos, 413 Mass. 339, 350 (1992). The mother does not dispute that she was unfit at that time. The judge granted custody of Tony to DCF, with visitation for the mother. At the time, DCF's plan for Tony was reunification with his father.
b. The second trial.
On December 4, 2018, DCF filed a motion for review and redetermination, seeking the termination of the mother's and father's parental rights to Tony. On June 6, 2019, the father stipulated to the termination of his parental rights. The mother conceded that she was still unfit at the time of the second trial in September 2019. At that time, Tony was four years old. On October 7, 2019, after the second trial, the judge found that the mother remained unfit and terminated her parental rights. We recite the facts as found by the judge.
Between June 2018 and November 7, 2018, the mother did not visit with Tony. During that time, DCF reduced the frequency of visits to once per month. In November 2018, after visiting with the mother, Tony woke up screaming and wet the bed. In December of 2018, Tony did not attend visitation with the mother because he refused to get in the car with a newly assigned social worker, whom he had never met. The judge also found that the mother "would frequently have difficulty controlling the behaviors of the child[] at the visits" and had "difficulty setting limits and structure." On one occasion, Tony became "very distraught" during visitation with the mother and only settled down after the mother had left. On multiple occasions in January and February of 2019, Tony yelled and screamed following visitation with the mother and in February of 2019, after visitation with the mother, Tony cut his face with a razor. In February of 2019, the mother violated her probation by testing positive for methamphetamines. The judge found that the mother was incarcerated for 176 days between the first and second trials and that the mother did not use the time between the trials to "ameliorate her unparental traits."
In March of 2019, Tony "began to act up" at visitation and would not respond to the mother's efforts to calm him. While the mother was incarcerated between March and April 2019 and during the summer of 2019, she had no visitation, which the judge found to be in violation of DCF regulations. During the June 2019 visit, Tony also displayed behavioral issues, the mother was unable to calm him, and the preadoptive mother was asked to speak with Tony through a video call.
When the preadoptive mother attempted to discuss his biological parents with Tony, he acted out and refused to look at photographs of the mother and father. The judge found that Tony and the preadoptive family have a "strong connection" and that Tony is "well integrated" into that family.
Discussion.
We review the termination of parental rights for abuse of discretion or clear error. See Adoption of Hugo, 428 Mass. 219, 225, cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1998). As a preliminary matter, the mother argues that where DCF seeks review and redetermination after a parent has been found unfit, DCF "bears an initial burden to produce some credible evidence that circumstances have changed since the initial determination." Care &Protection of Erin, 443 Mass. 567, 568 (2005). DCF disagrees. We pass over the issue as DCF proved a change in circumstances here.
The evidence at the second trial demonstrated, as the mother concedes, that she was still unfit at that time. She continued to struggle with substance use disorder, was periodically incarcerated, and failed to meet most of the expectations set forth in the family action plan. See Care & Protection of Erin, 443 Mass. at 568. The judge had provided the mother with more than an additional year to address her challenges and this furnished an additional year of evidence that the mother was unlikely to remedy her continued unfitness. In addition, by the time of the second trial, reunification with the father was no longer a possibility; the father stipulated to his own unfitness and his rights were terminated. Meanwhile, Tony was placed in the preadoptive home only a few weeks before the first trial. By the time of the second trial, there was sufficient evidence to support the judge's finding that DCF's plan for adoption by the preadoptive mother was in Tony's best interests. Thus there was ample evidence of a change in circumstances.
The mother also argues that the judge committed an abuse of discretion by inferring that Tony was bonded with the preadoptive family. Assuming without deciding that the standard of review is abuse of discretion, on the record before us, the judge did not abuse his discretion by drawing this inference. There was evidence, as set forth above, that visitation with the mother caused Tony to be distressed and to act out and that when Tony became upset during visitation with the mother in June of 2019, the mother could not calm him and the preadoptive mother had to be called to do so. On the record before us, the judge's conclusion that Tony's behavior reflected a bond between him and the preadoptive mother did not "fall[] outside the range of reasonable alternatives" and was therefore not an abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In any event, the child's bond with the preadoptive mother was mentioned in only one of the judge's fifty-eight conclusions of law and was a minor point in comparison to the undisputed evidence that the mother was unfit to parent the child.
Any argument that this finding was clearly erroneous fails on this record. See Custody of Eleanor, 414 Mass. 795, 799 (1993) ("finding is clearly erroneous when there is no evidence to support it").
While the mother perfunctorily argues that an expert opinion was necessary on the topic of Tony's bonds with the mother and the preadoptive mother, as the mother concedes in her brief, expert testimony on this issue is not a requirement. See Adoption of Daniel, 58 Mass.App.Ct. 195, 202-203 (2003).
We decline to take up the mother's argument that the judge gave this factor too much weight, as "the judge's assessment of . . . the weight of the evidence is entitled to deference" on appeal. Adoption of Elena, 446 Mass. 24, 31 (2006), citing Custody of Two Minors, 396 Mass. 610, 618 (1986).
2. Adequate visitation.
The mother also argues that the judge erred by "minimizing DCF's failure to provide [her] with adequate visits with the child" and that this failure to provide visitation contributed to a bond forming between Tony and the preadoptive mother. However, given that many visits were missed because of the mother's incarceration and at least once because of Tony's refusal to go, we cannot conclude that the judge erred. The judge's decision also indicates that he did not weigh the visitation in his analysis, finding that "the failure of [DCF to provide] visitation does not alter the results reached in th[is] decision." Furthermore, given the difficulties with the visitation that did occur, we are unable to conclude that DCF's failure to provide additional visitation prejudiced the mother. The mother was adjudicated unfit in 2018 and conceded her ongoing unfitness in 2019. Even were we to assume that DCF could have provided additional visitation, "[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011) . Ultimately, the mother's argument on appeal is no more than a disagreement with the judge's weighing of the evidence presented at trial, which we decline to disturb. See Adoption of Don, 435 Mass. 158, 166 (2001).
Decree affirmed.
The panelists are listed in order of seniority.