Opinion
No. 14–P–1901.
11-23-2015
ADOPTION OF XENO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this proceeding pursuant to G.L. c. 119, § 26, the father appeals from a decree entered by a Juvenile Court judge terminating the father's parental rights with respect to the child and limiting posttermination contact between the father and the child to one supervised visit per year. We affirm.
The mother stipulated to the termination of her parental rights and is not involved in this appeal.
Background. Following a trial on the merits, the judge made 204 findings of fact and thirty-four conclusions of law. We summarize the judge's findings, which the father does not challenge.
The child was born in April, 2007, and is diagnosed with Lowes Syndrome. Lowes Syndrome is a chromosomal deficit that causes metabolism malfunctions and developmental delays. The child is severely disabled, and requires constant care. He takes supplements for his kidneys, muscles, and bones; he has received food, and currently receives medication, through a feeding tube; he has had surgery on his cataracts and wears contact lenses that need to be changed frequently; he cannot walk and must be carried; his communication skills are limited to noises that he makes and some pointing; and he is small, seeming much younger than his seven years of age. The child requires a caregiver who is consistent and whose expectations of him are realistic, because he has no emotional or cognitive resources to deal with anxiety. The child's care requires cooperation with and coordination of all of his medical needs, appointments, and specialists, and his caregiver “will also need a high level [of] skill, education and information regarding his complex care as he grows.”
The child takes seven medications on a daily basis.
At the time of the trial, the child was seven years old, but had the appearance of a four year old and the mental development of a two year old.
The child sees twelve medical doctors on a regular basis.
The father was born in 1956 and was fifty-seven years old at the time of trial. In 1978, the father joined the United States Navy, and in 1980, he was discharged for medical reasons. After his release, the father heard voices and was diagnosed with a mild case of affective disorder. He applied for and receives benefits from the Veteran's Administration for a 100 percent service-related disability. The father has been psychiatrically hospitalized five times since 1980, and although he had taken prescription medications in the past, he was not taking any at the time of trial. The father was not receiving individual counseling at the time of trial and, while admitting that he had a mental health diagnosis, he claimed that he had gotten significantly better and that his mental health problems do not infringe on his ability to parent the child.
The Department of Children and Families (DCF) first became involved with the family in August, 2009. Between August and December, 2009, DCF received several reports alleging neglect of the child by the parents, including incidents of domestic violence between the father and the mother. On December 7, 2009, DCF took custody of the child after a medical provider discovered that the child had unexplained bruising and a fractured rib. The child was placed in a preadoptive foster home, where he has lived for almost five years.
At the time of trial, the father and the mother were divorced.
After removal, the father consistently visited with the child and received training in the child's care. However, he “struggled with the sanitary issues” while feeding the child “and repeatedly needed to be redirected.” The father “became argumentative and confrontational when he was redirected,” he “needed prompting and redirection on several occasions in order to change the child's diaper,” and, during one visit when he attempted to change the child's diaper and the child cried, the father told the child that he was being “ridiculous and frankly unattractive.” The father has threatened two DCF social workers; he is not allowed at the child's school because of his behavior; he has been asked to leave a doctor's office during an appointment for the child because of his behavior; and he becomes very frustrated when he is unable to soothe the child. When he became frustrated during visits with the child, the father “would pick up his belongings and leave the visit early.”
The judge found that, during one visit, the father was preparing to provide medication and food to the child through the feeding tube. “He began by taking the implements out of the bag and putting them on the floor.” This gave the social worker “grave concerns about Father's ability to maintain a sterile environment, which is critical in feeding through the [feeding] tube.”
That visit “ended with the Father yelling at the social worker, [the child] crying, and the police escorting the Father out of the building.”
The judge found that the father “has longstanding, unresolved mental health issues” and that he “has refused to cooperate with all attempts by [DCF] to verify his participation and progress [in treatment].” The judge further found that the father's “temperament and demeanor with care providers, DCF employees, school personnel and [the child's] medical care providers has been deplorable,” and that “over the course of the last four years [the father] ha[d] repeatedly demonstrated an inability to comprehend [the child's] many medical, physical and social limitations.” After finding that the child “is an extremely medically needy child” and that the father's “demeanor with DCF and on the witness stand during trial caused his mental stability to be in question,” the judge concluded that “[i]t is apparent that this Father can not [sic] now, and will not ever, be able to work cooperatively with [the child's] many care providers and therefore will be unable to meet [the child's] particular needs.”
Discussion. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). “The standard for parental unfitness and the standard for termination are not separate and distinct.... After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Nancy, 443 Mass. 512, 515 (2005). The judge's findings will not be “disturbed unless clearly erroneous,” and we review his ultimate conclusions “with substantial deference, recognizing [the judge's] discretion to evaluate a witness's credibility and to weigh the evidence.” Ibid.
The judge's unchallenged findings in this case are solidly grounded in the evidence, and amply support his ultimate conclusion that the father is unfit to care for the child. The judge found that the child “is an extremely medically needy child” requiring “around the clock attention and care,” and he credited expert testimony that the child “is at high risk because of the high level of care that he requires.” The judge considered evidence of the father's “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), and found that the father “has demonstrated a complete inability to feed, medicate and care for [the child].” We see no error in this conclusion, and “[w]e are satisfied that the judge properly focused on the adverse effects that parental behavior had on this parent's ability to provide for [the child's] welfare and best interests, and not on the [father]'s mental illness.” Adoption of Eduardo, 57 Mass.App.Ct. 278, 282 (2003). It is well-established that “[t]he specialized needs of a particular child when combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness,” Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. 120, 125 (1984), and there was no “credible evidence supporting a reasonable likelihood that the [father] will become fit” in light of his refusal to cooperate with DCF or to engage in services. Adoption of Ilona, 459 Mass. 53, 59 (2011). See Adoption of Rhona, 63 Mass.App.Ct. 117, 126 (2005) (“Evidence of parents' refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness”). The judge's “specific and detailed findings in support of [the] conclusion that termination is appropriate demonstrat[e] that [he gave] the evidence close attention,” Adoption of Nancy, supra at 514–515, and “we conclude that the judge did not abuse his discretion or commit a clear error of law in determining that the [father] is unfit, that [his] condition is not temporary, and that termination of [his] rights is in [the child's] best interests.” Adoption of Jacques, 82 Mass.App.Ct. at 609.
The judge found that the father “has fallen asleep while supervising [the child] at a visit, failed to maintain sanitary conditions when attempting to feed [the child], and has repeatedly become frustrated when instructed, corrected or redirected.” He further found that “Father's complete lack of understanding of [the child] is evidenced by his spending time during a visit discussing the dangers of smoking cigarettes with [the child]. It should be blatantly apparent to Father that cigarette smoking is beyond [the child's] level of understanding and will never be an issue.”
The father argues that termination was inappropriate because there was no evidence that he could not care for the child with the help of the same level of services available to the foster family. However, the judge found that DCF referred the father to a family support worker who would help him learn to manipulate the feeding apparatus and put in the child's contact lenses; “[a]n intake was conducted at Father's home in order for him to receive family support services”; the father “needed to sign releases so the worker could determine what services were needed”; and “Father refused to sign the releases” so a “[f]amily support worker was never put in place.” The father refused to sign releases regarding his past mental health treatment, and refused to participate in a parenting psychological evaluation as requested by DCF. Thus, to the extent that the father “failed to make use of the services offered to strengthen and then reunify h[is] family and denied h[is] mental health needs by refusing both evaluation and treatment, [he] cannot successfully argue that D[CF]'s reasonable efforts failed to accommodate properly h[is] mental health needs or to strengthen h[is] family.” Adoption of Eduardo, supra at 282.
Nor was there error in the judge's postadoption visitation order. “Where, as here, the child has formed strong, nurturing bonds with his preadoptive family, and there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption contact would usually be unwarranted.” Adoption of Vito, 431 Mass. 550, 563 (2000). Nevertheless, the judge considered “that Father genuinely loves his child and wants to be with him,” and that the “foster mother indicated that she wants [the child] to know his biological parents and would continue to communicate with them in [the child's] best interests.” We cannot say that his order allowing for one supervised visit per year between the father and the child constituted an abuse of discretion.
Decree affirmed.