Opinion
16-P-635
03-02-2017
ADOPTION OF WALDEN (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Juvenile Court, the father appeals from decrees finding him unfit to assume parental responsibility, terminating his parental rights, and dispensing with the need for his consent to the adoption of the children. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. The father contends that the judge relied on stale information and failed to find him unfit by clear and convincing evidence. We affirm.
The mother did not challenge the termination of her parental rights and, thus, is not involved in this appeal.
Parents have a "fundamental liberty interest ... in the care, custody, and management of their child[ren]." Santosky v. Kramer , 455 U.S. 745, 753 (1982). "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona , 459 Mass. 53, 59 (2011). The question is not "whether the parent is a good one, let alone an ideal one"; the question, instead, is whether the parent places the children at "serious risk of peril from abuse, neglect, or other activity harmful to the child[ren]." Care & Protection of Bruce , 44 Mass. App. Ct. 758, 761 (1998).
"When reviewing a decision to terminate parental rights, [the reviewing court] must determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Elena , 446 Mass. 24, 30 (2006). In analyzing whether a parent is unfit, the trial judge is required "to make specific and detailed findings, demonstrating that close attention has been given the evidence." Adoption of Gregory , 434 Mass. 117, 126 (2001). The judge's factual findings will not be overturned unless they are clearly erroneous. Adoption of Zak , 87 Mass. App. Ct. 540, 542 (2015). In addition, we give deference to the judge's credibility determinations and assessment of the weight of the evidence. Adoption of Elena , 446 Mass. at 31.
In this case, demonstrating his close consideration of the evidence and the factors listed in G. L. c. 210, § 3(c ), the judge made 213 "specific and detailed" factual findings. Adoption of Gregory , 434 Mass. at 126. The judge based these findings on the testimony of the father, two Department of Children and Families (DCF) social workers, and the children's foster mother, in addition to forty-three documentary exhibits. The father contends the judge relied on stale information pertaining to the father's violent or aggressive behavior, his conduct during visitation with the children, and his interactions with DCF workers. We disagree.
The father correctly states that "stale information cannot be a basis for a determination of current parental unfitness." Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption , 18 Mass. App. Ct. 120, 126 (1984). However, his further assertion, that there is no evidence of his engaging in aggressive or angry conduct after 2013, is contradicted by the record. There was evidence that he threatened the grandmother of one of his other children in May, 2014. The judge could properly consider, as he did, this and other "evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness." Adoption of Paula , 420 Mass. 716, 729 (1995).
That child is not involved in these proceedings.
Even though the father's most recent criminal conviction was for conduct that occurred two years before the trial, the judge was permitted to take into account how the father's lengthy criminal history and record of violence, including convictions of assault, assault and battery, threating to commit a crime, threatening to do bodily harm, malicious destruction of property, and violation of a restraining order, and the issuance of several restraining orders from five different women (including the children's mother), "bear [ ] on [his] fitness." Care & Protection of Frank , 409 Mass. 492, 495 (1991). Here, the father minimized his history of domestic violence, and he elected to not fully comply with the service plan's recommendation for addressing this history. Where there was ample evidence of the father physically assaulting the mother in the presence of the children, the record also supported the judge's finding of a nexus between the father's history of domestic violence, his denial of such history, and its harm to the children. See Adoption of Gillian , 63 Mass. App. Ct. 398, 404 n.6 (2005) ("Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children"). "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Adoption of Vaughn , 422 Mass. 590, 599 (1996). As such, expert testimony about the risk of harm or the impact of visitation on a child is not always necessary. See Adoption of Daniel , 58 Mass. App. Ct. 195, 203 (2003).
Similarly, the father's assertion that the judge improperly considered stale evidence pertaining to the father's interactions with DCF workers lacks merit. "[A] judge may rely upon a parent's prior pattern of behavior in determining parental unfitness," Adoption of Ramona , 61 Mass. App. Ct. 260, 264 (2004) ; therefore the judge did not err by making and considering factual findings about the father's interactions with DCF workers in 2010 and 2013.
The father was "partially compliant with his service plan" from November of 2014 until August of 2015. He attended four individual therapy sessions, completed a Nurturing Father's group program in January of 2015, and completed three anger management group sessions. "[T]he judge was entitled to consider the evidence of [the father's] recent improvements within the context of [his] earlier and continuing deficits." Adoption of Jacques , 82 Mass. App. Ct. 601, 608 (2012).
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The father also challenges, as stale and clearly erroneous, the judge's findings regarding his supervised visits with the children. In support of his position the father correctly points out that the judge mistakenly wrote that an incident in which he failed to comfort one of the children after the child had tripped and cut his head occurred during a November of 2014 visit, when this incident actually took place in November of 2013, prior to the father's participation in the Nurturing Father's group. See note 5, supra . This error, however, appears to be no more than a scrivener's mistake, as the correct date is included in the judge's findings of fact. In any event, even after the father completed the Nurturing Father's program, there remained concern over his visits with the children because of inappropriate comments the father made to the children during a later visit.
We also see no merit to the father's assertion that the judge erroneously characterized the father's style of play with the children during the visits as "not healthy." Even if we were to assume without deciding that the judge lacked a basis to find the play style unhealthy, these visits were clearly not the deciding factor in his finding of unfitness, as the judge, nevertheless, determined that semiannual posttermination visitation with the father served the children's best interests. The judge based his decision on a variety of supported factors, including the fact that the father's lack of "insight into the issues involving his children" made him unfit to assume parental responsibility.
There is likewise no merit to the father's challenge to the judge's finding that the father did not have stable housing. This is not a situation in which the lack of stable housing was the sole basis for the determination of unfitness. Contrast Adoption of Linus , 73 Mass. App. Ct. 815, 821 (2009). Rather, the judge considered that, in addition to the father's lack of insight, he had no plan for care of the children. While the father testified that his mother could move out of her apartment to make room for him and the children to live there, his proposal still showed that he had no set plan in place. Moreover, the judge was not required to credit the father's testimony.
In sum, the judge considered the father's pattern of committing domestic violence, his lack of insight, his refusal to engage in services, his untreated mental health condition, his conduct during supervised visitation, his uncooperative interactions with DCF workers, his lack of stable housing or a viable plan for stable housing, and the fact that he had never previously engaged in the caretaking of the children, including when he resided with them and their mother. These findings, taken together, present clear and convincing evidence of the father's unfitness, and we discern no abuse of discretion or error of law.
Decrees affirmed .