Opinion
16-P-665
03-13-2017
ADOPTION OF CARLITO (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following trial in the Juvenile Court, the judge found the mother unfit to care for her twins, Carlito and Stephen, and that termination of her parental rights was in the children's best interests. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. On appeal, the mother contends that the trial judge erred by (1) finding her unfit due to her failure to comply with her service plan, with which she claims she is in "substantial compliance"; (2) making no findings regarding whether a bond existed between the children and their preadoptive foster parents; and (3) failing to make subsidiary findings regarding whether the children's best interests would be served by postadoption visitation with the mother. We affirm.
Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the child. The question for the judge is "whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.' " Adoption of Olivette , 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce , 44 Mass. App. Ct. 758, 761 (1998).
The father has not appealed from the termination of his parental rights.
Background . 1. The parties . The mother was born in 1992 and was twenty-three years old at the time of trial. She herself was in the custody of the Department of Children and Families (DCF) beginning in 2007 and remained involved with DCF as a young adult under a voluntary arrangement. The mother began a serious relationship with the father when she was eighteen years old; he was twenty. Though they were never married, they lived together until some time after the children were removed from their care. They are no longer together.
The children were born in July, 2011. They have been in DCF custody since January, 2013. Since June, 2014, they have resided together with their preadoptive parents. They are comfortable and happy in their preadoptive home and have been taught rules and learned manners. They enjoy reading books and playing ball.
2. DCF involvement . The mother's and father's relationship can be fairly described as tumultuous. Since October, 2012, there have been multiple violent incidents that necessitated the involvement of both the police and DCF. One such incident occurred in January, 2013, when an argument turned into a physical altercation that ended with the father putting the mother's head through a glass window. The police were called and the father was arrested; the children were upstairs in the home when this occurred. This is representative of the violent verbal and physical altercations that occurred between the mother and father, often in the presence of the children.
The judge found other incidents of violence occurred in October, 2012 (mother and father were yelling at each other in their kitchen; mother brandished a kitchen knife while yelling and cut father on the chin); September, 2013 (mother and father were arguing in a car while father was driving; father stopped the car and forcibly dragged mother out); and again some time in 2013 (mother and father's argument became physical and mother bit father's hand while trying to get away from him, breaking the skin and leaving a scar). There was also a video posted to YouTube in which the mother can be seen kicking the father repeatedly in the genitals, apparently as punishment for the father going to a strip club. The children can be heard crying in the background of the video.
It was after this fight, which left their home in "shambles," that DCF sought and received emergency custody of the children. See G. L. c. 119, § 24. The children lived in a foster home until June, 2014, when they were moved to their preadoptive home. DCF provided the mother and father with service plans designed to address their issues. The mother's plan included domestic violence classes, anger management classes, therapy sessions, parenting classes, a substance abuse evaluation, and a psychological evaluation. As of the date of trial in January, 2015, the only task the mother had completed was an anger management program. She had engaged in therapy sessions for three weeks, but stopped going because she felt she did not need therapy. Her visits with the children during this period were sporadic; in the eight months before trial she only visited them three times, despite being provided bus vouchers to cover the cost of traveling to the DCF office. After a trial that was held in January and March, 2015, the Juvenile Court judge issued decrees terminating the mother's and father's parental rights and dispensing with the need for their consent to adoption.
In addition, the mother testified that she began a psychological evaluation one week before the trial, but no evidence was presented to support this. She provided a letter that was entered in evidence stating that she had completed a substance abuse assessment, but the judge did not make any findings regarding the assessment.
Discussion . We review the decision of the trial judge to determine whether there was any abuse of discretion or error of law. Adoption of Hugo , 428 Mass. 219, 225 (1998). We review findings of fact under the familiar "clearly erroneous" standard. See Adoption of Adam , 23 Mass. App. Ct. 922, 924 (1986) ; Adoption of Jacques , 82 Mass. App. Ct. 601, 606-607 (2012). In doing so, we grant substantial deference to the judge's decision, because a "judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment [regarding fitness]." Guardianship of Estelle , 70 Mass. App. Ct. 575, 579 (2007).
1. Unfitness and termination . "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques , supra at 606. "The standard for parental unfitness and the standard for termination are not separate and distinct, but 'reflect different degrees of emphasis on the same factors.' " Adoption of Nancy , 443 Mass. 512, 515 (2005), quoting from Petition of the Home for Little Wanderers to Dispense with Consent to Adoption , 367 Mass. 631, 641 (1975).
The term "unfitness" signifies something more than a standard by which we measure the limits of acceptable parental conduct; it is a standard that we use to measure the circumstances within a family as those circumstances affect the child's welfare. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption , 383 Mass. 573, 590 (1981). It requires careful consideration, reflecting the unique facts present in each case, of the capacity of the parents to care for the child. See Freeman v. Chaplic , 388 Mass. 398, 405 (1983). Parents have a natural right to the custody of their children, which will only be abrogated when parents are found to have displayed "grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption , supra at 646. See Adoption of Katharine , 42 Mass. App. Ct. 25, 28 (1997).
The mother maintains that she should not have been found unfit because the judge's finding that she failed to complete the majority of her service plan tasks was not supported by the evidence. We discern no error. Contrary to the mother's assertion, the judge considered multiple factors, only one of which was the mother's failure to complete her service plan tasks. "Evidence such as the failure of the parents to keep a stable home environment for the children, the refusal of the parents to maintain service plans, visitation schedules, and counseling programs designed to strengthen the family unit are relevant to the determination of unfitness." Petitions of Dept. of Social Servs. to Dispense with Consent to Adoption , 399 Mass. 279, 289 (1987). See G. L. c. 210, § 3(c ). Furthermore, "no one factor is determinative and the judge should weigh all the evidence." Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption , supra at 290. In this case, the judge also considered the mother's history with DCF involving incidents of domestic violence since 2012; the serious harm inflicted on children who are exposed to domestic violence; her criminal record and incarceration while the children were in DCF custody; DCF's concerns with her use of alcohol; her unstable housing situation; and her failure to consistently visit the children. These are all relevant considerations when determining present and future unfitness. See Care & Protection of Frank , 409 Mass. 492, 494 (1991) ; Custody of Vaughn , 422 Mass. 590, 595 (1996) ; Guardianship of a Minor , 1 Mass. App. Ct. 392, 396 (1973) ; G. L. c. 210, § 3(c ).
The judge's findings are detailed, thorough, and show that he gave the evidence his close attention. See Adoption of Cadence , 81 Mass. App. Ct. 162, 168-169 (2012). The mother's argument that some of those findings were not supported by the evidence is belied by the record and is largely based on the fact that the mother views the evidence differently from the judge. When, as in this case, the judge makes findings of fact based on his assessment of the weight of the evidence and credibility of the witnesses, we must accept them absent clear error, that is, unless based on the evidence in its entirety we are left with the "firm conviction that a mistake has been committed." Custody of Eleanor , 414 Mass. 795, 799 (1993) (quotation omitted). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Care & Protection of Olga , 57 Mass. App. Ct. 821, 824 n.3 (2003), quoting from Anderson v. Bessemer City , 470 U.S. 564, 573-574 (1985). The judge is not required to view the evidence from the mother's perspective. See Care & Protection of Three Minors , 392 Mass. 704, 711 (1984).
We also find no merit to the mother's claim that the judge's finding that the mother failed to complete her service plan tasks was erroneous. She bases this claim on her testimony that she enrolled in two of the assigned tasks in the week prior to trial, as well as her claim on appeal that she worked with a family support worker in lieu of parenting classes. However, she concedes on appeal that, at the time of trial, the only task she had fully completed was anger management training. The judge's findings are not clearly erroneous, and taken together, support the conclusion, based on clear and convincing evidence, that the mother is currently unfit to care for the children. See Care & Protection of Stephen , 401 Mass. 144, 151 (1987).
Finally, the mother does not appear to dispute the finding that she is currently unfit, but instead argues that her unfitness is temporary; she only needs additional time to complete her service plan tasks, and thus the termination was premature. As support, she points to her testimony that at the time of trial she was enrolled in a parenting class and waiting to be enrolled in a domestic violence class. However, at trial she made no attempt to explain why, despite having been assigned service plan tasks nearly two years previously, she had yet to complete the majority of the tasks. While consideration of the reasonable likelihood that a parent's unfitness at the time of trial may only be temporary is appropriate, such a prediction must rely "upon credible evidence rather than mere hypothesis or faint hope." Adoption of Serge , 52 Mass. App. Ct. 1, 7 (2001) (quotation omitted). See Adoption of Carlos , 413 Mass. 339, 350 (1992). It has now been over two and one-half years since the children were placed in their preadoptive home. At some point, the court must say "enough," and act in the best interests of the children. Adoption of Carlos , 31 Mass. App. Ct. 233, 242 (1991), S .C . 413 Mass. 339. See Adoption of Ilona , 459 Mass. 53, 60 (2011) ("Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period"). Therefore, there was no error in the judge's findings of current and future unfitness.
The mother claims on appeal that her work schedule interfered with her completing her tasks. However, at trial, she testified that she did not think she needed those services.
After a finding of unfitness, the judge 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." Adoption of Nancy , 443 Mass. 512, 515 (2005). The mother argues that, contrary to the judge's findings, she is in substantial compliance with her service plan, and that she has since left the father, so the potential for future violent episodes has been eliminated. To support this argument, she relies on her own trial testimony that she had completed anger management and some therapy, and was enrolled in parenting classes and on a waiting list for a domestic violence class. The judge rejected this argument, finding that she did not complete her service plan tasks and that "[b]ased on this, there is a reasonable expectation that mother and father will not be able to provide proper care for the children." See Care & Protection of Stephen , 401 Mass. at 152 ("[T]he judge may consider a past pattern of parental conduct for its prognostic value in determining current parental unfitness"). Thus, the finding that the mother would not be in a position to care for the children in the foreseeable future was not clearly erroneous. See Adoption of Inez , 428 Mass. 717, 723 (1999) (predictions must be more than hypothetical and must be supported by credible evidence).
This claim is not supported by the record. The mother's own testimony reveals that in July, 2014, she was involved in a physical altercation with her then-boy friend, a different man than the father, where they were both arrested. Notably, this was after the mother completed her anger management training.
The rejection of the mother's testimony is especially reasonable considering her own statement that she has previously lied under oath.
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2. Bond between children and preadoptive parents . The mother argues that the judge erred by failing to make findings with respect to the children's bonds with their preadoptive parents and that there was no evidence of such bonding. There was evidence of the children's bonds with the preadoptive parents before the judge and no evidence to the contrary. The judge found that based on their young age and the duration of placement, the children would suffer if removed from the preadoptive home. Where the children's bonds with the preadoptive family were not a decisive factor in the fitness inquiry, the judge did not need to make detailed findings regarding the bonds. See Adoption of Daniel , 58 Mass. App. Ct. 195, 202-203 (2003).
3. Postadoption visitation . The mother claims that the judge erred in declining to order postadoption visitation, instead leaving such visits to the discretion of the children's legal custodians. Once it is determined that a parent is unfit and parental rights are terminated, the trial judge has the discretion to decide whether or not to grant postadoption visitation. Adoption of John , 53 Mass. App. Ct. 431, 439 (2001). However, that discretion is not unlimited; the decision must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation." Adoption of Vito , 431 Mass. 550, 562 (2000).
Here, we agree with the trial judge that the mother does not have a relationship with either child that rises to the level of a significant, positive, and healthy bond that would further the child's best interests. As noted above, the children have been in DCF custody for more than two-thirds of their lives. During visits with the mother, they often became aggressive, biting, hitting, and kicking one another. This difficult behavior would continue after the visits ended; it often took days to return to their normal routine. During one such visit, the mother asked the children "if they knew her." These findings indicate that the judge properly considered the mother's relationship with the children and determined that it was in their best interests to leave visitation to the discretion of their custodian. We discern no abuse of discretion in the judge's refusal to grant the mother postadoption visitation with the children.
Decrees affirmed .