Opinion
14-P-612
01-12-2015
ADOPTION OF DARCELLA (and two companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father and mother appeal from decrees entered in Juvenile Court terminating their parental rights and declining to order posttermination/postadoption visitation. The two younger children, Amy and Judy, appeal from the termination of the father's parental rights. The father also appeals from the denial of his "motion to alter or amend judgment." We affirm.
The father is not the biological father of the oldest child, Darcella. The judge found that the person identified by the mother as Darcella's biological father is dead, and is not listed on Darcella's birth certificate. The judge terminated the parental rights of "any unknown, unnamed father" of Darcella. Our use of "father" in this decision refers to the father of Amy and Judy. Our use of "paternal grandmother" refers to the father's mother.
Background. The following facts are taken from the record and from the judge's comprehensive and detailed findings.
The father and mother met in December, 2008. The mother has a history of substance abuse and the father has a history of domestic violence. The mother had one child (Darcella, born in 2004) when she met the father. The parents' four-year relationship was marked by continuous verbal, emotional, and physical abuse. In one twelve-month period, the police responded to the home eighteen times. The mother and father obtained numerous restraining orders against each other, and would take turns throwing the other out of the house during arguments (Darcella would leave the house with the mother).
The Department of Children and Families (DCF) first became involved with the family in February, 2009. Police responding to the residence filed a G. L. c. 119, § 51A, report (51A report) alleging neglect of Darcella by the father and mother, who had engaged in a domestic dispute while Darcella was in the room. Allegations of neglect were supported.
Amy was born in December, 2009. Judy was born in April, 2011. Both children tested positive for methadone at birth. Judy additionally tested positive for opiates. All three children were removed after an incident which occurred at the hospital shortly after Judy's birth. The father was holding Judy when he said that it was the mother's fault Judy was experiencing withdrawal. The mother slapped the father across the face in front of the other children and hospital staff.
On May 5, 2011, DCF filed a petition pursuant to G. L. c. 119, § 24, alleging that all three children were in need of care and protection. At that point, DCF had received eight 51A reports on the family in a two-year period. Seven were supported. Temporary custody was awarded to the paternal grandmother. On May 11, 2011, the parents waived their right to a temporary custody hearing and a placement hearing took place before the same judge who presided at trial. Following testimony by the paternal grandmother and arguments by counsel, all three children were placed with the paternal grandmother. The mother and father visited the children twice at the paternal grandmother's home, however, home visits were terminated after the father verbally assaulted the paternal grandmother. Thereafter, visits took place at a visitation center.
The judge could "allow the child[ren] to be placed in the care of some suitable person" pending hearing on the merits of the G. L. c. 119, § 24, petition. G. L. c. 119, § 25, amended by St. 2008, c. 176, § 84. The father requested that the children be placed with the paternal grandmother. The mother and the children agreed.
The mother had several relapses over the course of 2011-2012. She did not engage in the services set forth in her service plan, and she did not visit the children after September, 2011. The father sporadically engaged in services throughout DCF's involvement in the case. Although his visits with the children were relatively consistent, Darcella stopped attending visits with the father in or around December, 2011, "because he was mean and she was scared." In January, 2012, the father and mother again reunited, despite provisions in their respective service plans requiring them to stay apart. Both parents lied to DCF regarding their relationship. On March 8, 2012, both parents stipulated that the children were in need of care and protection. Temporary custody in the paternal grandmother was continued. Around this time, the goal of the parents' service plans was changed to permanency through adoption.
Upon the parents' stipulation, the judge could transfer temporary legal custody to "any person . . . who, after study by a probation officer or other person or agency designated by the court, is found by the court to be qualified to give care to the child." G. L. c. 119, § 26(b)(2)(i).
In or around August, 2012, the father dragged the mother out of a drug house in Lawrence. The father brought the mother to a motel in New Hampshire, where they spent a few days using drugs before the father was arrested. ,
The mother had an active restraining order against the father.
The judge did not credit the father's testimony that he neither purchased nor used drugs during this episode.
In September, 2012, all parties filed motions for review and redetermination. Trial began on January 10, 2013, and continued over the course of thirteen days. The mother admitted during the trial that she had used cocaine on January 1, 2013. The judge made 438 findings of fact and concluded that the father and mother were unfit with respect to all three children; "that said unfitness is likely to continue into the indefinite future to a near certitude"; that the children's best interests would be served by terminating the mother's and father's parental rights; and "that the adoption plan prepared and propounded by [DCF] serves the best interests of the subject children." The judge committed the children to the permanent custody of the paternal grandmother, dispensed with the need for notice of or consent to adoption, and "decline[d] to order post-termination/post-adoption visitation, leaving such decisions to the Department and the preadoptive family."
"A review and redetermination proceeding is a readjudication of the custody order under G. L. c. 119, § 26." Care & Protection of Erin, 443 Mass. 567, 571 (2005).
In January, 2014, the father moved to alter or amend the posttermination/postadoption visitation order. The father asked that the order be amended to leave "such decisions" to the paternal grandmother. After hearing argument, the judge stated that he had "specifically considered the various scenarios" for the children's placement that had been proposed during the course of the trial, and that he was "fully aware that [the paternal grandmother] is the pre-adoptive placement" when he ordered that visitation be in the discretion of DCF "and the preadoptive family." The judge thought that "everybody's pretty much on board and in agreement that [the paternal grandmother] will be the adoptive -- is the adoptive placement, and will ultimately go through with the adoption." The judge "worded [the ruling] carefully only because of the possibility, however remote, that [the paternal grandmother] will not be the adoptive resource for the child[ren]."
Discussion. 1. Termination of parental rights. Upon finding after the review and redetermination hearing that the children continued to be in need of care and protection, the judge could dispense with the need for notice or the parents' consent to adoption. G. L. c. 119, § 26(b)(4), amended by St. 2008, c. 176, § 84. "In determining whether such an order should be made, the standards set forth in [G. L. c. 210, § 3] . . . shall be applied." Ibid. The judge "must 'evaluate whether the [parent is] able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the children.'" Adoption of Nancy, 443 Mass. 512, 514 (2005), quoting from Adoption of Mary, 414 Mass. 705, 710 (1993). He must "articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that [he] has given the evidence close attention." Id. at 514-515. "We review the judge's findings with substantial deference," and "none of the findings will be disturbed unless clearly erroneous." Ibid.
The judge in this case made 438 findings of fact. "We need not review all of the parents' shortcomings and misdeeds set forth in detail in the judge's findings." Adoption of Gillian, 63 Mass. App. Ct. 398, 404 (2005). It is sufficient to say that "[t]he father's hostile and intimidating conduct toward the mother and the children, his acts of violence, and his other shortcomings have resulted in an inability to acknowledge and address the physical, emotional, and behavioral problems and the anxiety of the children." Id. at 404-405. "The mother lacks the parenting skills necessary to protect the children from abuse," id. at 405, and has "failed to maintain significant and meaningful contact with [the children] when they were placed in the department's care, failed to utilize services offered by the department, and failed to accept responsibility for the trauma the children had suffered." Adoption of Willow, 433 Mass. 636, 645 (2001). "The record is replete with clear and convincing evidence after [thirteen] days of trial that both parents are 'unfit to further the welfare and the best interests of the [children],'" Care & Protection of Valerie, 403 Mass. 317, 318 (1988), quoting from Care & Protection of Stephen, 401 Mass. 144, 150 (1987), and "the judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3(c)." Adoption of Nancy, supra at 516. We have "no doubt that the judge's termination order was based on [his] assessment of the over-all damage that the [parents'] noncompliance had wrought on the girls' lives, and [his] determination that they should be protected from the uncertainty of repeated litigation and their [parents'] destructive behavior in the future." Id. at 519. "[B]y no means can the judge's decision be said to be clearly erroneous." Id. at 516.
Contrary to the father's arguments, the judge did consider the father's recent, positive improvements. However, "[e]ven where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, 459 Mass. 53, 59-60 (2011).
2. Sufficiency of adoption plan. Amy, Judy, and the parents argue error in the judge's termination of parental rights absent a written adoption plan. However, this action was commenced pursuant to G. L. c. 119, § 24, and not G. L. c. 210, § 3; therefore, there was no requirement that DCF submit a detailed adoption plan to the court. Care & Protection of Three Minors, 392 Mass. 704, 717 (1984). DCF did not need to file a permanency plan pursuant to G. L. c. 119, § 29B, because the children were not placed in the custody of the department. Rather, the judge dispensed with the need for notice or consent to adoption pursuant to G. L. c. 119, § 26(b)(4), after adjudicating the children in need of care and protection.
Even if DCF had brought the petition as one pursuant to G. L. 210, § 3, "[a] fully developed adoption plan, while preferable, is not an essential element of proof" under that statute. Adoption of Paula, 420 Mass. 716, 722 n.7 (1995).
While it would have been preferable for DCF to have prepared a written adoption plan for the judge to review, "the department could not do more than outline in general terms its plans for the children" pending the outcome of the G. L. c. 119, § 24, petitions. Adoption of Paula, 420 Mass. 716, 722 n.7 (1995). In any event, an "adoption plan need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement 'so that the judge may properly evaluate the suitability of the department's proposal.'" Adoption of Willow, supra at 652, quoting from Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). See Care & Protection of Three Minors, supra (adoption plan "must provide sufficiently specific and detailed information with respect to the prospective adoptive parents and their family environment so that the judge may properly evaluate the suitability of the department's proposal"); Adoption of Stuart, 39 Mass. App. Ct. 380, 393 (1995) (an adoption plan must "have content and substance enough to permit the court meaningfully to evaluate and consider . . . what [DCF] proposes to do for the child by way of adoption").
Here, the paternal grandmother testified at the placement hearing regarding the size and layout of her home, her and her partner's financial status, her and her partner's willingness to adopt the children, the proximity of her home to the children's doctors and schools, the furniture she has or could provide for the children, and her ability to add the children to her employer-sponsored health insurance plan. The paternal grandmother was asked about her and her partner's criminal histories, and the judge ordered CORI's to verify the information. The paternal grandmother testified to caring for Amy as an infant experiencing withdrawal, including giving her medication and taking her to doctor's appointments, and stated that she was prepared to provide the same support and care for Judy. The children had their own dresser at the paternal grandmother's house even before they were placed there, because she "always keeps clothes for them." The paternal grandmother testified at trial that she would like to adopt all three children if the judge terminated the parents' rights, and that she would allow visits with the parents if it was in the children's best interests. DCF's goal for the family changed to permanency through adoption after the children had been living with the paternal grandmother for eleven months, at the same time the parents stipulated that the children were in need of care and protection. Contrast Adoption of Stuart, supra (error to dispense with parental consent to adoption where there was no written adoption plan, no preadoptive homes had been identified, and social worker was "unable to testify as to what type of home would be suitable for each of the children"). "Stability in the life of a child is important," Adoption of Willow, supra at 647, and the record shows that the most stability these children have known is in the paternal grandmother's care.
The father, mother, Amy, and Judy claim that the paternal grandmother equivocated in her testimony between adoption and guardianship. It was for the judge to weigh and interpret that testimony. See Care & Protection of Three Minors, supra at 711.
Even if DCF had a duty to file an adoption plan and failed to do so, "a trial judge must still rule in the child's best interest." Adoption of Ilona, 459 Mass. 53, 61 (2011). There was no error in the judge's decision that adoption by the paternal grandmother was in the children's best interests; Darcella goes to the paternal grandmother for comfort, and, as counsel for the father aptly argued during the placement hearing, the paternal grandmother "has an extensive history and relationship with [the children]." It is clear from the record that the judge carefully considered the paternal grandmother's suitability as an adoptive resource, along with other options for the children's placement, and we will not disturb his conclusion that adoption by the paternal grandmother is in the children's best interests.
For example, the judge heard testimony regarding the ability and interest of the maternal grandmother and the mother's aunt, who is Darcella's godmother, in taking custody of Darcella.
3. Posttermination/postadoption visitation. Both parents object to the judge's refusal to order posttermination/postadoption visitation. While the judge found that continued contact with the father would be in the best interests of Amy and Judy, "the best interest of the child does not by itself answer the question whether an order of visitation should enter." Adoption of Ilona, supra at 64. The "judge must balance the benefit to the child of an order of visitation that will provide assurance that the child will be able to maintain contact with a biological parent, with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest." Id. at 64-65. The judge, in his discretion, "should issue an order of visitation only if such an order, on balance, is necessary to protect the child's best interest." Id. at 65.
No such order was necessary in this case. The purpose of posttermination and postadoption visitation "is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Adoption of Vito, supra at 564-565. The paternal grandmother repeatedly stated that she would (and does) allow visitation with the father and mother if it is in the best interests of the children, and there was no reason for the judge "to question the presumption that [the paternal grandmother] will act in [the children's] best interest in evaluating -- now and in the future -- whether continued contact" with the parents is beneficial. Adoption of Ilona, supra at 66. The judge did not abuse his discretion in leaving the issue of visitation to the sound judgment of a loving adoptive grandparent "who will be in the best position to gauge whether such visits continue to serve [the children's] best interest." Ibid.
4. Remaining issues. a. There was no error in the judge's conclusion that the father is not the de facto parent of Darcella. The evidence does not "allow a conclusion that his participation in [Darcella]'s life was of a loving or nurturing nature, or even that it was beneficial to the child." Care & Protection of Sharlene, 445 Mass. 756, 767 (2006).
b. In his decision, the judge awarded permanent custody of the children to the paternal grandmother. The judge also "decline[d] to order post-termination/post-adoption visitation, leaving such decisions to [DCF] and the preadoptive family." The father filed a "motion to alter or amend judgment" on the basis that DCF should not be involved in deciding visitation issues if the paternal grandmother had sole custody of the children. In denying the motion, the judge explained that he intended that DCF continue to be involved until the children were adopted in light of the history of conflict between the father and the paternal grandmother, and in case the paternal grandmother did not end up adopting the children. We see no abuse of discretion.
Decrees affirmed.
Order denying motion to alter or amend judgment affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 12, 2015