Opinion
14-P-178
11-12-2014
ADOPTION OF ALISON (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After an eight-day trial, a Juvenile Court judge found the mother and father unfit to parent their children, terminated their parental rights, and approved the Department of Children and Families' (DCF) adoption plan. See G. L. c. 210, § 3. The mother appeals, arguing that: (1) termination of her parental rights was not in the children's best interests; (2) termination was unnecessary as the preadoptive parents and the mother share a strong relationship; and (3) the judge abused his discretion in leaving postadoption contact to the discretion of the adoptive parents. We affirm.
The father did not file a brief and is not a party to this appeal.
DCF has identified the maternal grandparents as the postadoption resource for both children.
1. Standard of review. We review a judge's decision to terminate parental rights for abuse of discretion or other clear error of law. Adoption of Ilona, 459 Mass. 53, 59 (2011). "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 the evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Where there is evidence that a parent's unfitness is not temporary, the judge may properly determine that the child's welfare would be best served by ending all legal relations between parent and child." Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012). "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Adoption of Jacques, supra at 606-607.
2. Background. We summarize the relevant facts as found by the judge, who issued comprehensive, detailed findings of fact and conclusions of law. The parents have two children, ages four and two at the time the judge issued his findings. Throughout the children's lives, the mother has been the victim of recurring incidents of domestic violence at the hands of the father. The mother would often call the police and then temporarily stay with the children at the home of the maternal grandparents. After each episode, however, the mother returned to live with the father.
DCF became involved with the family and supported two G. L. c. 119, § 51A reports (51A reports) for neglect against the parties. After the second 51A report, the mother left the children with the maternal grandparents. DCF filed a care and protection petition as a result of the incident and the children remained in the custody of the maternal grandparents as foster children.
Both children have behavioral and medical issues. Since living exclusively with their maternal grandparents, both children have experienced improvements in their respective conditions and are now in ongoing treatment with medical and behavioral specialists.
3. Termination. The mother argues that terminating her parental rights was not in the children's best interests because any unfitness was temporary. She contends that she now understands the role domestic violence played in her family and that she has separated from the father. The judge was entitled to discredit this testimony. See Adoption of Quentin, 424 Mass. 882, 886 (1997). The record is replete with examples of the mother recanting, minimizing, and denying reports of domestic violence. There was also ample evidence to support the judge's finding that the parents' relationship had not ended, and the judge was entitled to discredit both parents' claims to the contrary. The judge was likewise entitled to conclude that the mother's refusal to acknowledge past abuse, together with her refusal to terminate her relationship with the father, placed the children in danger of being further exposed to domestic violence should they be returned to her care. See Adoption of Lorna, 46 Mass. App. Ct. 134, 140-141 (1999).
The evidence also supported the judge's finding that the mother had unaddressed mental health issues and was never in full compliance with her DCF service plan tasks. In addition, although she received Social Security Disability Income based on her mental health, depression, anxiety, and a learning disability, she refused to accept treatment related to her mental health issues.
The mother cancelled three home visits and failed to appear for two scheduled visits.
"A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. 24, 33 (2006). Here, the judge carefully weighed all of the evidence as set forth in his detailed findings and did not abuse his discretion in determining that termination is in the children's best interests, as the mother's unfitness is not likely to be temporary.
The mother nevertheless argues that since her parents are the proposed adoptive parents, termination of her parental rights was unnecessary. She suggests a guardianship would have been sufficient to protect the children's best interests. A trial judge's determination that adoption is in a child's best interests is entitled to substantial deference and will not be reversed in the absence of an abuse of discretion. Adoption of Inez, 428 Mass. 717, 720 (1999). The judge's explicit findings indicate the mother's deficiencies were not likely to be resolved over time and the children deserved permanency and stability. The mother's reliance on Adoption of Nancy, 443 Mass. 512 (2005), is misplaced. The judge found here, as in Nancy, supra at 517, that the children had already waited an extensive period of time for the mother to overcome her shortcomings.
Without termination, the mother would be entitled to seek a review and redetermination of the children's placement every six months until the children turn eighteen, respectively. See G. L. c. 119, § 26. Such a result would deny the children the permanency and stability the judge found they needed.
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4. Visitation. The mother argues that the judge abused his discretion in allowing DCF and the adoptive parents to determine visitation between the mother and the children. She also contends that a prior visitation order was impermissibly changed without explanation. "The decision whether to grant posttermination visitation is within the judge's sound discretion." Adoption of Cecily, 83 Mass. App. Ct. 719, 727-728 (2012). The judge issued his "Findings of Fact and Conclusions of Law and Order" on November 22, 2013, nunc pro tunc to August 7, 2013 (November order). The judge declined to order posttermination or postadoption visitation in the November order, "leaving such decisions to [DCF] and the preadoptive family." The November order contained a two-page introduction, ninety separate findings of fact, and twenty-eight conclusions of law, which were further amplified by additional findings of fact, including a finding that there was no bond between the mother and the children. The November order is reflective of a detailed and thoughtful analysis conducted after careful review and consideration of both the facts and the law.
Prior to entry of the November order, the judge issued an "Adjudication, Commitment Order, and Order to Issue . . . Decrees" on August 7, 2013 (August order). The August order provided for supervised visitation for the mother "not less than once every four months . . . for a total of three per year." While we agree that the better practice would have been for the judge to explicitly detail the reasons for the change from the August order to the November order, it is implicit in the judge's subsidiary findings that in the absence of the existence of a bond between the mother and the children, a specific visitation plan was not in the children's best interests.
Decrees affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 12, 2014.