Opinion
11-P-292
09-23-2011
ADOPTION OF JERMAINE (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
The father was found to be unfit to parent the twins who are the subject of this case, and that their best interest would be served by terminating the father's parental rights. G. L. c. 119, § 26. G. L. c. 210, § 3. The father raises two issues on appeal. First, he argues that there was no nexus between his shortcomings as a parent and harm to the children and, therefore, his parental rights should not have been terminated. Second, he argues that the trial judge improperly participated in the questioning of witnesses during the trial. For the reasons set out below, we affirm.
Because the father challenges only the nexus between his shortcomings and the well-being of his children, we do not repeat here the detailed findings of the judge. In summary, the clear and convincing evidence showed (and the judge found) that the father had a difficult childhood during which he was the victim of physical and sexual abuse. His adult life has been characterized by instability and includes a history of short-termed relationships, housing, and employment. He has difficulty controlling his emotions and cannot effectively harness his anger. He has a history of substance abuse, as well as a criminal history. He has self-reported mental health issues, including anxiety, that have not been consistently treated. He has been the subject of multiple restraining orders as a result of alleged domestic violence against the mothers of his children. He is also abusive outside the domestic arena, making threats to Department of Children and Families (department) workers and to others concerned with the welfare of the children. He is not truthful, and does not cooperate with those who are involved with (and concerned about) the children's well-being, including medical personnel, department employees, and the court. He has not complied with or fulfilled his service plans. He does not acknowledge his shortcomings, nor does he demonstrate a willingness to address them.
As noted above, the father does not so much challenge the judge's findings concerning his weaknesses, but rather argues that the judge found no nexus between those shortcomings and harm to the children. To the contrary, the judge made numerous findings concerning how the father's issues affect the children and would continue to affect them were they to be returned to his care. For example, the judge found that the father's cavalier attitude towards drug use demonstrated his inability to safeguard the children from harmful and illegal activities were they to be returned to his care. Similarly, the judge concluded that the father's inability to control his anger interfered with what was required for his children's medical care. Likewise, the judge found that the father's unstable housing situation included incidents of altercations that were violent enough to cause physical damage, posing direct risks to the children were they to be returned to his care. The judge also found that the father's inability to control his anger (which included anger directed toward his son) 'poses a continuing risk to the children.' The judge further found, 'Father is vulnerable to surges of unrestrained anger when he feels he is misjudged or viewed unfavorably by others. The Court cites this, in part, as one (though not the only) obstacle to Father's future parenting of the children, as he will have to work with both the children and their caregivers, such as medical providers and educators, as well as for the risks posed to the children for becoming targets of this unrestrained anger.' Similarly, the judge found that the lack of attachment between the children and the father (who had never been the primary or long-standing caregiver) posed risks to the children, who have special medical and developmental needs. Finally, we note that the children's positive development since they have been taken into department custody is some reflection that the father's (as well as the mother's) caretaking did not serve the children well.
Before terminating parental rights, pursuant to G. L. c. 210, § 3, there must be 'clear and convincing evidence that the parent is currently unfit to further the child's best interest.' Adoption of Carlos, 413 Mass. 339, 348 (1992). (1990). The inquiry is whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.' Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). 'Subsidiary findings must be established by a fair preponderance of the evidence and will not be disturbed unless clearly erroneous.' Adoption of Elena, 446 Mass. 24, 30-31 (2006) (citations omitted). We accord deference to a judge's assessment of the credibility of witnesses and the weight of the evidence. Id. at 31.
We reject the father's contention that there was insufficient evidence of a nexus between his shortcomings and harm to the children. The evidence amply warranted the judge's conclusion that the father is fundamentally unable (or unwilling) to appreciate how his violent behavior, uncontrolled anger, and other shortcomings pose risks to the children. 'Harm,' in this context, does not require 'the department to wait until neglect has already run its course to the point of producing a physical or emotional injury.' Lindsay v. Department of Social Servs., 439 Mass. 789, 795 (2003).
The father's second argument is that the judge undertook to question witnesses to such an extent that he relieved the department of its burden of proof. We disagree. Most of the judge's questioning was confined to follow-up questions aimed at eliciting more details concerning hard facts such as when or where an event occurred, or the sequence or chronology of events. In several instances, the judge prefaced his questions by noting that he was asking for clarification. However, as the father correctly states, at times the questioning went into substantive areas that would have been best left to the department's attorney to develop in the first instance. For example, the judge elicited opinions from the psychologist, as well as inquired into the bases for those opinions, on her own initiative before the department's attorney had inquired into those topics. We recognize that a judge, who in these types of cases is the fact-finder, is entitled to question witnesses in order to obtain clarification or eliminate confusion. Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990). See Commonwealth v. Festa, 369 Mass. 419, 422-423 (1976); Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996). We also note that a judge, particularly in termination cases, is not required to remain in the dark about factual matters that she deems essential in order to render a decision. That said, the judge must be cautious about stepping in too far too soon -- particularly where the testimony that is elicited may become the basis for the judge's ruling on the merits of the case. Examination in the first instance is best left to the parties' attorneys, and the judge should defer questioning the witnesses until such examination appears necessary.
That said, we discern no prejudice here from the judge's questioning and it appears that all of the testimony elicited by the judge would have been admitted had the questioning been done by the department's attorney instead.
For the reasons set forth above, the decree of the Juvenile Court is affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),