Opinion
11-P-563
09-28-2011
ADOPTION OF STEVE.
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.
A pseudonym.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father of the child, born in July, 2005, appeals from the January 14, 2010, decision of a judge of the Juvenile Court dispensing with the need for consent to adoption pursuant to G. L. c. 119, § 26(b)(4), and G. L. c. 210, § 3. The father asserts that the judge committed clear error in several of his findings of fact and conclusions of law and that he failed to consider adequately the father's proposal of his mother (grandmother) as an adoptive placement. We affirm.
The mother is not a party to this appeal, having previously stipulated to an open adoption.
Background. On March 31, 2008, an order issued granting temporary custody of the child to the Department of Children & Families (DCF), pursuant to G. L. c. 119, § 24. Subsequently, DCF filed a notice of intent on December 5, 2008, seeking to dispense with the father's parental consent to adoption. A trial on the merits was held on December 16, 2009. On January 14, 2010, the judge dispensed with parental consent to adoption and awarded custody of the child to DCF. On May 14, 2010, the judge issued findings of fact and conclusions of law and reaffirmed his conclusion that the father was an unfit parent.
Sufficiency of evidence of unfitness. '[A] judge must find, by clear and convincing evidence, that the parent is currently unfit to further the welfare and best interests of the child' before terminating parental rights. Adoption of Kimberly, 414 Mass. 526, 528-529 (1993). See G. L. c. 210, § 3. 'Generally, no one factor is determinative and the judge should weigh all the evidence.' Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987) (footnote omitted). 'The judgment must analyze the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment.' Adoption of Carlos, 413 Mass. 339, 348 (1992).
Here, the evidence clearly and convincingly supports the judge's finding of unfitness of the father to care for the child. The judge heard testimony from the father, the paternal grandmother, and others, and issued a decision containing eighty-one factual findings supporting the determination of parental unfitness. In accordance with G. L. c. 210, § 3, the judge considered the fourteen factors indicating unfitness and determined that at least seven were applicable. While the judge made some minor factual errors, they do not materially affect his conclusion of unfitness.
The father has a lengthy criminal history. He has eight convictions, including drug offenses and violent crimes. Restraining orders have been issued against him for domestic abuse. At the time of trial, the father was on probation for possession of a class D substance and possession of a firearm without a permit.
To this point, the father has not played a major role in the child's life. The child has never lived with the father for more than a few weeks. The father had four visits with the child, two of which were terminated, one at twenty and the other at forty minutes, from January to March, 2009. After visits with the father, the child's behavior would become very aggressive, including biting and growling, and at one point, throwing the foster family's dog down the stairs. The father then agreed to suspend visits in part because of the child's behavioral problems, and did not meet again with DCF until August, 2009. The father missed numerous visits later that year because his driver's license had been suspended. Nor has he ever provided day-to-day care for his other five children. The father, at the time of trial, was unemployed and without adequate housing.
The father additionally failed to cooperate fully with DCF or take advantage of the resources offered to him. Indeed, he concealed the child from a DCF social worker who was attempting to conduct a wellness visit in March, 2008, only producing the child in response to a court order awarding temporary custody to DCF. The father did not even partially comply with DCF's service plans until October, 2009, when he completed a psychological evaluation, but then did not enter therapy as required.
In short, the judge had ample evidence from which to conclude that the father is an unfit parent for the child. He made findings of fact that are supported by the record and sufficient to demonstrate clearly and convincingly that the father's parental rights should be terminated. The limited factual errors made by the judge were not material.
Consideration of the paternal grandmother. The father argues that the judge abdicated his responsibility to consider adequately the father's proffered plan to have the paternal grandmother care for the child, as opposed to the adoptive placement proposed by DCF. Where DCF and the parent have offered separate plans for the future of a child, the judge must carefully evaluate both to determine which, if either, is in the best interests of the child. See Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). The plan proposed by the parent does not receive any artificial weight. See Adoption of Hugo, 428 Mass. 219, 225-226 (1998). The judge found that the child is thriving and has formed a strong bond with his preadoptive family. The preadoptive family also includes the child's half-brother. The father proposed that the child be placed with his paternal grandmother. However, the judge found that the grandmother had not returned telephone calls from a DCF social worker or otherwise cooperated with DCF. At the two meetings that she did attend with DCF, the grandmother was not an active participant.
In light of conflicting testimony by the grandmother that she was never contacted by DCF, this finding represents a credibility determination to which we defer, as it is not clearly erroneous. See R.D. v. A.H., 454 Mass. 706, 718- 719 (2009).
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The grandmother testified at trial that she had an extra room for the child and she could provide him with food and clothing, but that she did not want the father living with her because he is too old and because she lives in subsidized housing. She also stated that she had not seen the child in one and one-half years and that she was not aware of his special needs. During that period, the child was undergoing weekly therapy for numerous behavioral problems. Although the judge did not reference this testimony in his ruling, that omission does not affect his finding that DCF's adoption plan was in the best interests of the child.
Decree affirmed.
By the Court (Kafker, Green & Grainger, JJ.),