Opinion
16-P-1129
03-29-2017
ADOPTION OF DESIREE (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, a Juvenile Court judge concluded that the children were in need of care and protection, and that their father was unfit to parent them. Decrees entered terminating the father's parental rights. On appeal, the father argues that (1) the judge made erroneous factual findings that do not support a finding of unfitness; (2) the Department of Children and Families (DCF) failed to make reasonable efforts to reunify the father and the children; and (3) the judge abused her discretion in failing to order posttermination visitation. We affirm.
Background . We summarize the relevant facts, which have ample support in the record. The children, ages six and four at the time of the trial, have been in the custody of the DCF since 2013, when their mother led police on a high speed chase with both children in the vehicle. At the time, the father was serving a four-year prison sentence for possession of crack cocaine. The father has a long criminal record that dates back over twenty-five years. He has been incarcerated off and on during that time. When not incarcerated, he sold drugs to support his own drug use.
In January, 2016, the mother stipulated to the termination of her parental rights, subject to an agreement for postadoption visitation. She is not a party to this appeal.
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Based on expert testimony, the judge concluded that the father has extremely low cognitive functioning, is emotionally immature, and is unaware of his own limitations. The expert opined that the father "is not capable of meeting the children's needs and providing for their safety" and that "due to [his] cognitive disabilities, it is unlikely that he would be able to make much progress and get to a level where he could independently parent [the children]."
Although the father had regular supervised visits with the children after his release from prison, during those visits the children did not appear to understand they were visiting their biological father. When the children needed something during their visits with the father, they did not turn to him, but left the room in search of others. The father ignored their basic needs, and failed to address negative behaviors and safety issues.
The children have made significant progress in their preadoptive home. The preadoptive parents have addressed their medical and dental care, educational delays, and speech problems. The children are engaged in a number of activities, are doing well in school, and are described as active and bright. The children have adjusted positively to a routine and stable home life, and appear to be more outgoing. They have developed a significant attachment to their preadoptive parents.
Discussion . 1. The father's unfitness . The central question in a case to terminate parental rights is whether the parent is unfit and termination is in the best interests of the children. See Adoption of Ilona , 459 Mass. 53, 59 (2011). Such a finding must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques , 82 Mass. App. Ct. 601, 606 (2012). See Adoption of Mary , 414 Mass. 705, 710-711 (1993). "We give substantial deference to a judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Ilona , supra . Here, as summarized above, the judge made comprehensive findings of fact and conclusions of law detailing the factors supporting her decision. After a careful review of the record, we conclude that the judge's subsidiary findings of fact were supported by a preponderance of the evidence, and that there was no error of law or abuse of discretion in her conclusion of unfitness.
The father challenges the conclusion that he is unfit to parent, arguing that the judge failed to consider his compliance with DCF's service plans and his ability to provide for the children. We disagree. The judge's findings reflect that she examined the service plans and the father's performance carefully. Despite the father's partial compliance, however, he did not develop the skills and independence necessary to parent the children safely. See Adoption of Paula , 420 Mass. 716, 729-730 (1995). He lacked the skills to manage a household, he failed to meet the children's needs during visitation, and he remained financially and emotionally dependent on the mother and her family. Moreover, he "could articulate no realistic plan for meeting [the children's] needs" and did not "appear ... ready to resume full responsibility for [the children]." Id . at 730. Accordingly, we conclude the finding of unfitness was supported by clear and convincing evidence.
2. Reunification . The father also argues that DCF's efforts to reunify him with the children were insufficient. "Before seeking to terminate parental rights, [DCF] must make reasonable efforts aimed at restoring the child to the care of the natural parents." Ilona , 459 Mass. at 60 (quotation omitted). That duty should take into account a parent's cognitive limitations when providing services. See id . at 61 ; 110 Code Mass. Regs. §§ 1.08, 1.09 (2008).
The father argues that DCF failed to offer him adequate services to assist with his cognitive disability. It is well established that a parent must raise a claim of inadequate services in a timely manner. By failing to raise this claim in the trial court, the father waived it. See Adoption of Gregory , 434 Mass. 117, 124 (2001) ; Adoption of Daisy , 77 Mass. App. Ct. 768, 781 (2010), S .C ., 460 Mass. 72 (2011). Even assuming that DCF failed to make reasonable efforts to assist the father, a question we need not reach, "a trial judge must still rule in the child's best interests." Ilona , supra at 61. On the record before us, we are not persuaded that reunification would have been in the children's best interests.
4. Postadoption visitation . The judge concluded that court-ordered postadoption visitation was not in the children's best interests. Nevertheless, in light of her confidence in the preadoptive parents' ability to determine the children's best interests over time, the judge ordered that any postadoption contact between the father and the children should be in the discretion of the adoptive parents. The father argues that postadoption visitation between the father and the children should have been ordered.
We review the judge's order for abuse of discretion. Adoption of Lenore , 55 Mass. App. Ct. 275, 283 (2002). "An order for postadoption visitation is not warranted in the absence of a finding that a significant bond exists between the child and a biological parent and 'that continued contact is currently in the best interests of the child.' " Adoption of John , 53 Mass. App. Ct. 431, 439 (2001), quoting from Adoption of Vito , 431 Mass. 550, 563-564 (2000). Here, the record does not support a finding of a significant bond between the father and the children. The judge concluded that "[t]he girls have no bond with [the father] and show no connection to him during the monthly visits." We discern no abuse of discretion in this conclusion.
Decrees affirmed .