Opinion
20-P-591
02-02-2021
ADOPTION OF MARGARET (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a trial in the Juvenile Court, the mother and the father of the two children were found to be unfit to assume their parental responsibilities, and it was found to be in the children's best interests to terminate the mother's and the father's parental rights. The mother, the father, and both children appealed from the decrees, arguing that the trial judge abused her discretion in ordering termination of the mother's and the father's parental rights. We affirm.
The mother also separately argues that the Department of Children and Families (DCF) failed to reasonably accommodate her after her stroke, such that the termination of her parental rights constitutes an abuse of discretion. However, the American with Disabilities Act may not be raised as a defense in proceedings to terminate parental rights. See Adoption of Gregory, 434 Mass. 117, 120 (2001). Nonetheless, while the trial judge recognized that DCF was slow to respond to the mother's needs when she relocated to a family shelter in 2016, particularly with health insurance, the communication issue with the mother was a problem in providing services. The testimony of two DCF social workers demonstrated that the mother's physical condition was not an issue in rendering services, but rather the primary barrier for reunification was the mother's unwillingness to acknowledge domestic violence in her marital relationship. The mother living with her abuser prevented DCF from providing the in-home services that she sought. Furthermore, the record shows that multiple reasonable accommodation meetings were held, in which the mother was represented by counsel, and DCF provided her with assistance for travel funds and other expenses, as well as informed her of programs that had wheelchair accessible facilities where she could receive domestic violence services. Ultimately, the trial judge's findings that DCF provided reasonable accommodations to the mother are not clearly erroneous, as the mother claims on appeal.
Discussion. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). Ultimately, "[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id.
On appeal, the mother, the father, and the children claim that termination of parental rights was not in the best interests of the children. Specifically, they argue that the children's wishes to return to the custody of their parents, coupled with the lack of clear adoption plans from the Department of Children and Families (DCF), render the judge's order for termination of parental rights an abuse of discretion. We disagree.
Here, the record contains extensive evidence for the judge to find the mother and the father unfit to assume their parental responsibilities over the children. This evidence begins with incidents of domestic violence between the mother and the father. For example, in 2016, the father accused the mother of cheating on him with another person, and as a result, the father hit her over the head with a trash bag, threw her into a large toy motorcycle, and hit her in the face. Both children witnessed the abuse within the family, and such domestic violence went largely untreated. The mere fact that the domestic violence incident occurred a few years before trial, in 2016, does not diminish its harmful effects, as argued by the father. See Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015) ("It is well documented that witnessing domestic violence . . . has a profound impact on children" [citation omitted]). The mother has also never fully committed to leaving the father, and at the time of trial had reunited with her abuser. This likely renders her unable to protect the children from further abuse. See Adoption of Stuart, 39 Mass. App. Ct. 380, 390-391 (1995) ("A mother's termination of her relationship with [an] abuser or her refusal to do so . . . bears on the mother's ability to protect her children from further abuse").
The mother has also stated that every time the father would drop her off at work, he would punch her in her leg while they were in the car.
The judge found that both the mother and the father do not understand the impact that the domestic violence and family separation has had on the children, specifically Adam.
Moreover, as properly found by the judge, the record exhibits a consistent, prior pattern of parental neglect, which bears negatively on their ability to assume parental responsibilities. See G. L. c. 210, § 3 (c) (xiv). The lack of effort by both the mother and the father has created an unreasonable risk of harm towards both children. Such neglect and lack of effort has allowed Margaret to run and go missing on numerous occasions. Often while on the run, Margaret was sexually exploited by numerous older males, as she would have sex in exchange for a place to stay and meals to survive. At the age of eleven, Margaret had gone missing for several days, and upon her return, stated that she was held against her will, forced to engage in acts of sexual intercourse, and was supplied with drugs by two young males. Despite such acts of abuse, the father continued to deny that he and the mother needed to participate in services, and refused to take responsibility for his neglect of Margaret.
One of the two young males stated that the father "gave him his blessing to be with [Margaret] as long as he took care of her." The young male was six years older than Margaret at the time of the incident.
The father has also denied being violent towards the mother, and has refused to take responsibility for the neglect of Adam as well.
The pattern of neglect also has negatively impacted Adam, who has struggled with his behavior at times and has been impacted by the unaddressed domestic violence in the family. In particular, Adam exhibited inappropriate sexualized behavior at the age of six, threw tantrums when he did not get his way, and suffered from health issues, including having almost no teeth on his upper jaw, as his baby teeth were decayed and needed to be pulled out.
While living with the mother and the father, a cockroach was discovered in Adam's ear, as the family's apartment was said to be in poor living condition.
Moreover, the mother and the father have not provided a safe and stable home for the children. The father's former apartment, where Margaret often used to run away to, was in deplorable condition and was infested with cockroaches. More concerning, however, is the fact that more recently, in April 2019, a man was stabbed inside the mother's and the father's apartment during a drunken altercation. The father admits that he has allowed dangerous men to reside in the apartment, including a man who brought a firearm into the apartment and was associated with gang members.
At bottom, the mother's and the father's "grievous shortcomings or handicaps" have put the children's welfare "much at hazard." See Adoption of Rhona, 57 Mass. App. Ct. 479, 483 (2003). Accordingly, the judge did not abuse her discretion in finding the parents unfit to assume their parental responsibility.
In addition, the mother, the father, and the children claim that despite the determination of parental unfitness, it is not in the children's best interests to terminate all parental rights. In particular, they claim the lack of a fully developed adoption plan from DCF renders the judge's termination of parental rights an abuse of discretion. We disagree.
"In determining whether the best interests of the children will be served by a termination decree, a judge must consider both the ability, fitness and readiness of the children's parents to assume parental responsibility, and the adoption plan proposed by the department." Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). As noted by the judge, "[t]he children need and deserve permanency, safety, and security, which neither parent can provide." "The evidence clearly and convincingly demonstrates that [the m]other and [the f]ather will be unable to parent the children. Their shortcomings will likely continue undiminished in the future with a harmful effect on [the children]." While the children have a significant emotional connection with their parents, the judge properly determined that it was in the children's best interests to end all legal relations between them and their parents, given the mother's and the father's continued deficiencies.
The judge stated that while the children undoubtedly love their parents, at some point it is only fair to say "enough."
Furthermore, while DCF was awaiting adoption assessments for both children, the judge would have "continued oversight" over the adoption plans for each child. Although DCF's proposed adoption plans were not entirely developed, DCF has identified adoption by recruitment as the plan for both children, and has committed to recruiting families willing and able to meet each child's substantial needs. Despite the stated concerns as to the detail of DCF's adoption plans, those concerns do not necessitate a reversal of the judge's orders terminating parental rights, nor would such reversals be in the best interests of the children. See Adoption of Stuart, 39 Mass. App. Ct. at 393 (G. L. c. 210, § 3, does not require fully developed adoption plan, only enough "content and substance" to permit judge to meaningfully evaluate and consider what is being proposed).
Margaret was fourteen years old at the time of trial, and concerns have been expressed over her ability to decline adoption. See G. L. c. 210, § 2 (consent of child over age of twelve required for adoption). While we appreciate such concerns, we reiterate that once parental unfitness is established, the central focus becomes the best interests of the child. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). Although a child's wishes certainly are entitled to weight in custody proceedings, they are not outcome determinative. See Adoption of Nancy, 443 Mass. 512, 518 (2005).
Ultimately, "[i]t is in the bests interests of [Margaret and Adam] to have 'parents' who can and who will, on a consistent, long-term basis, assume all parental responsibilities and who can provide [the children] with the stable and continuous care and nurturing [they] need[] and will continue to need as [children]." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990). Given the extensive neglect suffered by the children at the hands of the mother and the father, coupled with DCF's plan for adoption by recruitment for both children, we discern no abuse of discretion, nor any error of law, in the judge's decision to terminate the parental rights of both the mother and the father.
Decrees affirmed.
By the Court (Meade, Milkey & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 2, 2021.