Opinion
20-P-555
05-12-2021
ADOPTION OF BRIDGET (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Juvenile Court found the father unfit to parent Bridget and Julia and terminated his parental rights. The father appeals, arguing that the judge's determination of unfitness is not supported by clear and convincing evidence, including that the judge relied on improper factors, that the judge erred by speculating about his future unavailability, and that the judge erroneously discounted the father's completion of most of his service plan. We affirm.
The children's mother was found unfit and her parental rights terminated in the same proceedings. The mother does not appeal.
Background. On February 8, 2018, while the father was incarcerated, the Department of Children and Families (department) received a G. L. c. 119, § 51A, report of neglect of the children and filed this care and protection action. After a temporary custody hearing, both children were placed in department custody. At the time of trial, Bridget was nearly ten years old and Julia was six years old.
The facts are taken from the judge's findings, which the father does not challenge.
The father is a level two sex offender. He was convicted of numerous counts of open and gross lewdness and lascivious behavior and one count of intimidating a witness after exposing himself to and masturbating in front of women in a public area. The father admitted to doing so more than ten times over the span of a year but gave inconsistent testimony about the actual number of incidents. The father described many of these incidents as "consensual," stated that he "perceived it to be welcome" to some of the women, and said that he "did not know it was wrong." The father was sentenced to eighteen months in the house of correction, served thirteen, and on his release was required to register as a level two sex offender. The father has had no specific sex offender treatment. He did not see his exhibitionism as wrong and did not express remorse until after he spoke with a psychosexual evaluator. Though the father would have sole custody, he testified that he was unaware of the conditions imposed on him as a level two sex offender, including whether he would be able to go to schools or playgrounds.
The father was previously charged with assault and battery on two separate women, both of whom he was dating at the time of the charges. Both women subsequently obtained G. L. c. 209A orders against the father. One of the women was the children's mother.
The father's criminal record was sealed and he failed to voluntarily disclose this "for a significant amount of time" prior to trial. At trial, the father testified that he had been on probation for at least one of these assault and battery charges.
Between March 2016 and March 2018, the father did not see the children. Beginning in March 2018, when he was released from the house of correction, he visited the children once a month until June 2018, when his visits were increased to twice per month. In August 2018, the department suspended visitation after an incident in which juice spilled on the father's possessions during a visit and he responded by throwing away a bag, a board game, and a blanket; becoming "annoyed and frustrated"; and "lash[ing] out" at the department social worker who was supervising the visit. The father's visitation resumed in November or December of 2018 but ended again in March of 2019.
The department assigned the father an action plan to improve his parenting skills. The father did complete several courses within the plan but failed to "meaningfully participate," "cherry picked from which tasks he wants to complete, ... delayed completing others, and ... misrepresented completion of at least one." The judge found that even the parenting classes that the father completed while incarcerated did not improve his parenting skills, a finding exemplified by the father's behavior during the spilled juice incident. While the father was participating in therapy at the time of the trial, as required by his action plan, the department was unable to verify the qualifications of his therapist or the father's progress and the father was unable to articulate his therapy goals. The father also failed to create a childcare provider schedule or even identify potential caregivers. He did not provide the department with evidence that he had completed an assigned parenting class and he failed to comply with the requirement that he not allow the mother to see the children. The father would allow the mother to stay in his home despite the department instructing him not to due to her active alcoholism, failure to comply with department services, abandonment of the children, and possible danger to the children.
At the time of trial, the father owned his own home and had steady employment working at night at a restaurant. However, he "was barely able to articulate reasonable ideas of who could watch the children while he worked." The judge found that the father had inconsistent sleep patterns and sometimes went days without sleep. She did not credit his testimony that he would be able to adapt if he obtained custody of the children.
When the children lived with the father prior to his incarceration, he failed to notice that Julia could not see out of one of her eyes, which caused her to fall frequently, and he failed to have her evaluated for this issue. At trial, the father still did not know the name of the condition, despite the fact that Julia needed -- and had -- surgery to correct the issue. The father did not know the pediatricians or dentists the children saw prior to the care and protection action. The father did not think either he or the children would need any services in the future, if he had custody.
During the pendency of this matter, the father continued to display inappropriate behavior toward women. He told the psychosexual evaluator repeatedly that "he thought she was pretty" and did not think it was inappropriate for him to say so. He did not show any insight about why that might make the evaluator uncomfortable, saying that he "cannot control how people feel." When a department social worker visited his home in July of 2018, the father "attempted to physically demonstrate" to her "the domestic violence incidents" between the father and mother and showed the social worker "sexualized dance videos of himself." The judge found this behavior "particularly problematic ... [when] raising two girls."
On July 17, 2019, after trial, the judge found the children in need of care and protection and found that the children's best interests were served by terminating the father's parental rights.
Discussion. 1. Clear and convincing evidence supporting unfitness. In determining whether to terminate a parent's rights, a judge must evaluate whether there is clear and convincing evidence that the parent is unfit and, if the parent is found to be unfit, whether terminating the legal relationship between parent and child would serve the child's best interests. See Adoption of Nancy, 443 Mass. 512, 514 (2005). To determine whether termination of parental rights best serves the child's interests, "the court shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c ).
"While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous" (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). When there is clear and convincing evidence of unfitness, whether termination of parental rights is in the child's best interests is a discretionary decision. "[T]he ‘judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.’ " Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986), quoting Custody of Two Minors, 396 Mass. 610, 618 (1986). There is an abuse of discretion only where "the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The father contends that the evidence is not clear and convincing that he is unfit. We disagree. The judge properly considered the father's criminal history of sexually offending against women, his lack of understanding of or remorse for his sexually offending behavior, and his lack of insight into the effects of his behavior on the children as evidence of his unfitness to parent the girls. The father's failure to comply with his service plan and other requirements was also a relevant and concerning factor. Furthermore, not only had the father failed to provide Julia with necessary medical care, he had not even noticed that she needed such care. The judge therefore determined that the father was unable to provide a stable environment for the children.
At one point the judge did misstate the standard when she wrote that it "has been proven by at least a fair preponderance of the evidence that Father is unfit to care for the children." However, considering the judge's decision in its entirety, she stated the standard correctly several times; we conclude that the judge applied the correct standard.
The father contends the judge erred by considering his partial completion of the service plan. The father's partial compliance with the service plan bears on whether he is fit to parent. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("Evidence of parents' refusal to cooperate with the department, including failure to maintain service plans ... is relevant to the determination of unfitness"). The judge therefore did not err by considering this factor. The father acknowledges that he did not complete every task and the judge's findings demonstrate that she credited the father for the efforts he made. None of the judge's findings on the extent of the father's participation were clearly erroneous and, as stated above, her assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.
The father's "sleep schedule" and failure to attempt to learn about his obligations as a level two sex offender were proper considerations that contributed to the clear and convincing evidence of his unfitness. Rather than improperly using either as evidence of the father's lifestyle, as he contends on appeal, the judge properly considered both as evidence of the father's lack of preparation and planning for having custody of the children. Adoption of Elena, 446 Mass. at 31 (2006), quoting G. L. c. 210, § 3 (c ) ("the court shall consider the ... readiness of the child's parents ... to assume parental responsibility"). The father's failure to appreciate the risks posed to the children by exposure to the mother due to her active alcoholism and failure to comply with the department's instructions to not allow her to contact the children provides further support to the judge's determination of unfitness.
The issue is not, as the father contends, that he is not a legal expert in this area.
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The judge's findings are adequately supported by the record and her determination that the father is unfit is supported by clear and convincing evidence.
2. Future unavailability. The father argues that the judge erred by speculating about his future unavailability based on his likelihood of recidivism. The judge mentioned the father's "above average" risk of recidivism multiple times in her findings. However, the finding that the father was unfit was not premised on the risk that the father would reoffend and deprive the children of a stable home. The concern was that the father was unfit because he was not rehabilitated, had a history of domestic violence, and exhibited hostility and sexism towards women, all factors that presented a risk to the children currently and in the future. Even if the judge committed error in considering the father's recidivism risk, we conclude that any error was not prejudicial given the strength of the evidence of the father's unfitness. See Care & Protection of Frank, 409 Mass. 492, 499 (1991).
Decrees affirmed.