Opinion
16-P-1655
04-20-2017
ADOPTION OF ELIZABETH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Probate and Family Court, the mother appeals from a decree declaring her unfit to parent Elizabeth and terminating her parental rights. On appeal, she claims the judge erred in approving the adoption plan as Elizabeth was placed in a violent preadoptive home, and that the evidence did not support a finding of parental unfitness. We affirm.
The father stipulated to the termination of his parental rights, and is not involved in this appeal.
1. Elizabeth's placement. The mother asserts that Elizabeth was exposed to ongoing domestic violence in the preadoptive home, which had a harmful impact on her, and that the judge failed to address this issue in approving the adoption plan. We disagree. We review the approval of an adoption plan for an abuse of discretion or clear error of law, affording substantial deference to the judge's decision. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom., Hugo P. v. George P., 526 U.S. 1034 (1999).
The mother's contention regarding the domestic violence in the preadoptive home rests solely on a mischaracterization of the preadoptive parents' relationship with an older son, who also has special needs. The older son suffers from "reactive attachment disorder" and the preadoptive parents often have to manage his severe emotional and physical behaviors, sometimes by restraining him. This is not abusive behavior or domestic violence. Contrast Adoption of Zak, 87 Mass. App. Ct. 540, 542-543 (2015). Elizabeth was also never found to be a part of any of the incidents.
In addition, the judge did not fail to address this issue in her analysis. Rather, she made specific findings addressing the behavioral history of the older son, and the resulting G. L. c. 119, § 51A, reports (51A reports) filed against the preadoptive parents, most of which were "screened out" for no credible allegations of abuse. The preadoptive parents are experienced in parenting children with special needs, and Elizabeth has made great progress in her speech and behavior as a result of living with them. The judge found that Elizabeth has a high level of attachment to the preadoptive parents, and that if she were removed from them there would be a likelihood of severe harm.
The investigations into the remaining 51A reports did not result in findings of abuse or neglect by the preadoptive parents.
As a whole, the record shows that the preadoptive parents and household have been a positive influence in Elizabeth's life, that she has made great strides while in their care, and that she has a strong, positive attachment with the preadoptive family. There was no error in approving the adoption plan, and it serves Elizabeth's best interests.
At argument, as part of her challenge to the adoption plan, the mother's counsel claimed that Elizabeth had suicidal ideations, was obsessed with death, cemeteries, and hospitals, and expressed the need to go to jail, or to die, among other behaviors. However, the adoption plan report also states that at the counseling session in which these behaviors arose, Elizabeth calmed down when the preadoptive mother joined the session.
2. Parental fitness. The mother also contends that the judge's conclusion as to her fitness to parent Elizabeth was not proven by clear and convincing evidence, warranting a reversal of the decree. We disagree.
"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption ofMary, 414 Mass. 705, 711 (1993). In terminating parental rights, the Department of Children and Families (DCF) must demonstrate, by clear and convincing evidence, that the parent is unfit; only then may the judge commit the child to the custody of DCF, so long as the termination is also in the child's best interests. See Adoption of Ramona, 61 Mass. App. Ct. 260, 265 (2004) ; Adoption of Zoltan, 71 Mass. App. Ct. 185, 187 (2008).
As the result of a five-day trial, the judge determined, in great detail, that Elizabeth was in need of care and protection, and that the mother was unfit to parent. In her forty-two pages of findings and conclusions, the judge explicitly stated:
"This Court after careful consideration of all of the evidence, finds there is clear and convincing evidence of long-standing issues of domestic violence, erratic and unsafe behaviors,[ ] poor parenting, lack of insight as to the need to engage professionals in self-care, an inability to comprehend the special needs of [Elizabeth], and an inability to engage other professionals in the care of [Elizabeth]. The Court further finds that the child has a clear bond with her substitute caretakers and that irreparable harm would befall [Elizabeth] if she were removed from their care. As such, I find mother unable to parent the minor child [Elizabeth]."
Specifically, the judge noted an incident in which the mother assaulted the father in DCF's parking lot after a visit with Elizabeth, in front of DCF staff. The mother ran to the father, attempted to kick him, and fell to the ground. She then got up and swung and spit at him. When explaining what happened, the mother stated that the incident was "blown out of proportion," and dismissed it as "horseplay."
The judge also noted that "the quality of ... visitations [between the mother and Elizabeth] has not been healthy or beneficial to the child." The judge further noted the multiple attempts, to no avail, to get the mother to interact with, and learn from, services provided by DCF in order to assist the mother in learning how to properly care for Elizabeth. Specifically, the judge found that "[d]espite the services of a parent aid, despite the offer of assistance from the substitute caretaker in the form of a log book, despite the ability to be in regular contact with the child's collateral resources, four years into [DCF's] custody, the mother struggles constantly with basic concepts of how to visit safely and appropriately without harm to the child."
The mother cites certain visits or exhibits to prove parental fitness in dispute of the judge's findings. The challenged findings include the mother's inability to feed Elizabeth properly, her negative behaviors during visits, her episodes of domestic violence, her refusal to use the "log book," her insufficient preparation for visits, her lack of use of early intervention services, her history of mental illness, her struggle with parenting concepts, and Elizabeth's bond with the preadoptive parents. However, there was sufficient evidence to warrant the specific findings of the judge pertaining to each challenge. The mother's arguments "amount to no more than dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). The judge's finding that the mother is unfit to parent Elizabeth and that termination of the mother's parental rights is in Elizabeth's best interests was supported by clear and convincing evidence.
The mother filed a motion to reinstate visitation pending the appeal from the decree terminating her parental rights. The judge denied that motion. The mother's appeal from the order denying the motion to reinstate visitation was consolidated with the appeal from the decree. We see no error in the judge's denial of the motion. See Adoption of Helen, 429 Mass. 856, 864-865 (1999).
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Decree affirmed.
Order denying motion to reinstate visitation affirmed.