Opinion
11-P-320
11-23-2011
ADOPTION OF VERNA.
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
This case is on appeal from a decree terminating the parental rights of the father pursuant to G. L. c. 210, § 3. The father alleges that (1) the trial judge's finding of unfitness was not supported by clear and convincing evidence; and (2) it was not in the child's best interests to terminate his parental rights.
The mother stipulated to the termination of her parental rights and is not involved in this appeal.
Upon review of the briefs and record appendix, we conclude nothing has been made to appear that warrants us to conclude that the termination of the father's parental rights was error. General Laws c. 210, § 3, requires that (1) there be clear and convincing evidence the parent is unfit; and (2) termination of parental rights serves the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 514-515 (2005); Adoption of Katharine, 42 Mass. App. Ct. 25, 27 (1997).
The judge issued a lengthy and comprehensive decision, which included 332 findings of fact and forty-six conclusions of law. The judge credited Verna's testimony (she was twelve years old at the time of the trial) that her father verbally and physically abused her, as often as four times a week. Notably, the father admitted to physically disciplining his children with his hands and various objects. 'Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases.' Custody of Eleanor, 414 Mass. 795, 800 (1993), quoting from Stone v. Essex County Newspapers, Inc., 367 Mass. 869, 871 (1975). There is no dispute that violence occurred in the father's care. Additionally, Verna testified to being afraid of the father.
The father's claim that the judge, in making her findings, improperly relied on stale evidence of past unfitness and did not give appropriate weight to recent efforts to improve his parenting skills misses the mark. 'The judge [may] properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness.' Adoption of Diane, 400 Mass. 196, 204 (1987). See Custody of Vaughn, 422 Mass. 590, 599 (1996) (exposure to domestic violence 'has a profound impact on children '). '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). In 2009, the father was charged with two counts of assault and battery by means of a dangerous weapon. Although the charges were still pending, the judge appropriately relied on this behavior as demonstrating the father's propensity for violence. The judge also credited Verna's testimony that she witnessed domestic violence between the father and his girlfriend on two separate occasions. In sum, the father's contention that there is a lack of proof of unfitness by clear and convincing evidence is unavailing.
The father also argues that the termination of his parental rights is not in the child's best interests and that the judge abused her discretion when she 'ignored, omitted or discounted positive evidence of the father's visitation and interaction with [Verna].' See and compare Adoption of Paula, 420 Mass. 716, 731 (1995) (judge was bound to consider recent positive gains, along with evidence of a likelihood of genuine improvement in the parent's situation). 'Error of law apparent on the record, such as the failure of a judge's findings to support the judge's action or findings that have no support in the evidence, would constitute an abuse of discretion.' Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000). The reviewing court must give deference to the trial judge's assessment of the weight of the evidence and the credibility of the witnesses. Custody of Eleanor, 414 Mass. at 799.
In the present case, there is no indication that the judge exceeded her discretion when weighing the evidence. See Custody of Zia, 50 Mass. App. Ct. 237, 245 (2000). The judge's 'voluminous findings demonstrate consideration of myriad factors and circumstances relevant to the child's best interests.' Id. at 244. Here, the record shows that the father repeatedly failed to comply with the majority of his service plans. The judge acknowledged the father's efforts but ultimately concluded that his participation was inconsistent. The judge also found credible evidence that attributed Verna's psychological and emotional trauma to the father. There was sufficient evidence to find that it would be in Verna's best interests to terminate the father's parental rights.
It is well-documented that the father was absent and tardy on a number of occasions, both for meetings with Verna and with the Department of Children and Families (DCF). As a preventive measure, DCF required the father to appear thirty minutes before scheduled visits with Verna. 'Refusal to cooperate with the department . . . is relevant to the determination of unfitness.' Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).
Verna was diagnosed with posttraumatic stress disorder and reactive attachment disorder.
Decree affirmed.
By the Court (Grasso, Brown & Kantrowitz, JJ.)