Opinion
14-P-918
02-20-2015
ADOPTION OF RAPHAEL.
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 appeals from a decree of the Juvenile Court terminating his parental rights. Both parents appeal from the rejection of their proposed plan to place the child in the guardianship of the maternal grandmother.
Unfitness. There is no error in the judge's finding of parental unfitness. The mother does not appeal the judge's finding of her unfitness. The father challenges only one of the judge's conclusions, which otherwise clearly and convincingly demonstrate the father's parental unfitness. The father's unfitness is based on recurring and continuing incarcerations, long-standing criminal involvement, chronic issues with anger management, drug use and domestic violence, unavailability to care for the child, and an unrealistic plan to care for the child after the father is released from incarceration.
The father challenges the conclusion that the father has not received anger management treatment because it contradicts the judge's finding that the father participated in an anger management program in jail. Even discounting the judge's conclusion about the father's anger management treatment, there is sufficient evidence to support the finding of unfitness.
The judge concluded that the father's criminal activity and resulting incarcerations have left him unavailable, and when considered with his other shortcomings, unfit to parent the child. Adoption of Nicole, 40 Mass. App. Ct. 259, 263 (1996).
The judge also found that the father's unresolved issue with impulsive behavior posed a potential risk to the child. Additionally the father has a long history of drug abuse that has adversely affected the child, and which poses a risk to him in the future.
The judge also determined that the father has a long history of domestic violence. The father's former wife had requested several restraining orders against him and the mother had stated that she experienced domestic violence in all of her relationships, apparently including her relationship with the father. The judge concluded that the father remains a risk to abuse any future partner.
The judge is entitled to rely on the father's past conduct when determining his current and future fitness. See Adoption of Diane, 400 Mass. 196, 204 (1987); Adoption of Mario, 43 Mass. App. Ct. 767, 773 (1997).
A fit parent is one with the "character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). There was no error in the judge's finding of the father's unfitness.
We note that the father's unfitness was not determined exclusively by his unavailability, but on a number of other significantly contributing factors. His reliance on Petition of Boston Children's Serv. Assn. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 566 (1985), is misplaced. There, the mother's unfitness was based entirely and exclusively on her unavailability because of incarceration.
Placement of the child. Generally, the primary issue before the judge when considering placement is the child's best interests. Adoption of Hugo, 428 Mass. 219, 225-226 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). The judge must consider the adoption plan proposed by the Department of Children and Families as well as any parental nomination of caretakers. See id. at 226 & n.9; Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). The judge must assess both plans evenly and with no preference to either. The sole consideration is the best interests of the child. Adoption of Hugo, supra at 226 nn. 8 & 9.
Here, the judge's findings clearly demonstrate that he fairly considered the parents' nomination of guardianship with the maternal grandmother. The judge considered the fact that the maternal grandmother did not want to adopt the child. The judge found that the maternal grandparents have a history of domestic violence and that the maternal grandfather has a history of alcohol abuse. In addition, the judge found that the maternal grandmother had not visited with the child since he was about nine months old and had not been persistent in her requests to visit the child.
The judge determined that the child "has formed a strong, positive bond with his foster family" and that "[r]emoving [him] from his preadoptive home and returning him to months of uncertainty with a caretaker he does not know, whose goal is to unite him with one of his parents when and if one of them becomes ready, is an unacceptable delay in permanency for [the child]." There was no error or abuse of discretion in the judge's finding that it is in the child's best interests to be adopted by his current foster family.
Decrees affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 20, 2015.