Opinion
15-P-35
11-20-2015
ADOPTION OF GILDA (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A judge of the Juvenile Court found the mother unfit to parent Gilda and Charlotte, and terminated her parental rights. See G. L. c. 119, § 26. The mother appeals, contending that the trial judge effectively shifted the burden of proof to her, and that for this reason the judge's findings and conclusions regarding parental unfitness were not supported by clear and convincing evidence. The mother also challenges the judge's decision declining to award visitation. We affirm.
Before trial, Gilda's father stipulated to his unfitness and to an adjudication that Gilda was a child in need of care and protection. Charlotte's father stipulated to a finding of his unfitness and to the termination of his parental rights, and entered into an open adoption agreement. The fathers do not appear in this appeal.
Discussion. "When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "The finding of parental unfitness by clear and convincing evidence is the 'critical inquiry.' Adoption of Peggy, 436 Mass. 690, 701, cert. denied sub nom. S.T. v. Massachusetts Dept. of Social Servs., 537 U.S. 1020 (2002)." Adoption of Nancy, 443 Mass. 512, 515 (2005). "Subsidiary findings must be established by a fair preponderance of the evidence . . . ." Adoption of Elena, supra at 30-31. "Where, as here, the judge determines that the mother currently is unfit to parent her children, and where termination of parental rights is sought, the judge then 'must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.'" Id. at 31, quoting from Adoption of Nancy, supra.
The mother does not dispute the evidentiary basis of any of the judge's seventy-three detailed findings of fact. The Department of Children and Families (DCF) had removed Gilda from the home three times and Charlotte (who is younger and was not born at the time of the first removal) two times by the time of trial. Gilda was sexually and physically abused by Charlotte's father. Charlotte was physically abused by her father. At the time of the abuse, Charlotte's father was either living in or regularly visiting the home. The mother told Gilda to lie about the sexual abuse and to accuse Gilda's own father, who was no longer in the home. Although it is now undisputed that Charlotte's father physically and sexually abused Gilda, the mother accused Gilda of lying about the abuse, repeatedly denied that Charlotte's father abused Gilda, and generally failed to appreciate the effects of the abuse on the children. Finally, the judge determined that the mother was not capable of taking adequate steps to protect the children and "is unable to alter her behavior to further the best interests of the children."
At trial, the mother continued to deny the physical abuse by Charlotte's father.
The mother now argues that since the most recent removal she has not permitted Charlotte's father in the house, and that the judge, in effect, shifted the burden of proof to her to prove "that [Charlotte's father] was 100% out of her house and her life." The burden to prove parental unfitness lies with DCF, not the parent. Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998); Care & Protection of Ian, 46 Mass. App. Ct. 615, 619 (1999). Nothing in the record indicates that the judge shifted the burden to the mother.
The judge was entitled to look to past patterns of behavior in assessing the mother's credibility and the likelihood of future abuse. In assessing parental fitness, "the State interest in protecting neglected children may properly be preventive as well as remedial." Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979). Accordingly, "an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child." Id. at 883.
The judge made several factual findings that the mother was not to be credited regarding her ongoing relationship with Charlotte's father. These findings include the following. The relationship between the mother and Charlotte's father dated to April of 2006. In addition to the present petition, there were two previous reports of abuse and neglect involving physical abuse of Gilda by Charlotte's father. Both times the children were removed, placed in foster care, and subsequently returned; both times the mother took Charlotte's father back into the home. The first report, alleging physical abuse of Gilda, was filed in August of 2006. The mother admitted at trial that she misled social workers by telling them that Charlotte's father was out of the home. A new report was filed pursuant to G. L. c. 119, § 51A (51A report), and the children were again removed in 2009. At this juncture, Charlotte's father returned to the home to care for the mother. Although the children were returned and the mother ultimately sought an abuse prevention order against Charlotte's father, an emergency investigation was initiated in December of 2010, when reports were received that he was back in the home. Gilda testified, and the judge credited her testimony, that Charlotte's father had in fact returned to the home at this time and hid in the closet when the DCF social worker visited. Even after a third petition was filed in 2011 alleging sexual abuse of Gilda, the mother continued to deny that Charlotte's father was in the house, while the children reported that he was there. The mother also continued to deny as recently as 2014 that he had abused Gilda.
The judge found the mother was not credible on the subject of her relationship with Charlotte's father. "[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Two Minors, 396 Mass. 610, 618 (1986). This credibility determination resulted in factual findings adverse to the mother, but did not shift the burden of proof to her.
In addition to the historical pattern of reengagement with Charlotte's father, there was evidence of recent contact with him. The judge found that the mother "at the very least [continues] to have contact with [Charlotte's father], and would welcome him into her home if he were to come to her door." The mother testified that when Charlotte's father was out of the house he still came over for meals from time to time, and that she would not deny anyone a meal. Even after the third petition, the mother continued to act as his representative payee for his Federal Supplemental Security Income benefits. The children reported to the guardian ad litem that the mother and Charlotte's father remained "Facebook" friends.
There was overwhelming evidence of the damage to Gilda as a result of the mother's inability to separate from Charlotte's father and the mother's inability to appreciate the damage inflicted by him. Gilda has been hospitalized, expressed both suicidal and homicidal thoughts, has been in therapy for a number of years, and has lived in other group therapeutic environments, all in an effort to ready her for adoption. Charlotte has no bond with the mother and is in a preadoptive home. DCF satisfied its burden to prove unfitness by clear and convincing evidence. The judge's conclusion that the mother was unable to protect the children from threats to their safety and well-being was fully supported in the record.
Visitation. The judge's finding that posttermination visitation was not in the best interests of the children was supported by clear and convincing evidence. See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The judge found that Gilda did not want to see the mother and that visitation would pose an additional burden on Gilda at a time when she had been unable to sustain living in a home setting, was participating in in-patient psychiatric care and receiving ongoing therapy, and was not yet able to transition to a home-based setting. As noted above, the judge further found that there was no bond between the mother and Charlotte. In effect, the judge's disposition leaves the question of any further contact with the mother to the judgment of any future adoptive placement. This decision was not an abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 64 (2011); Adoption of Lenore, 55 Mass. App. Ct. 275, 284 (2002).
After Gilda refused to see the mother, the mother refused to visit her for six months.
Decrees affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 20, 2015.