Opinion
14-P-472
11-03-2014
ADOPTION OF YANCY (and one companion case).
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 involves the welfare of two children to whom we shall refer as Susan and Yancy. At the time of trial (May of 2013), the children were four and five years old, respectively. A Juvenile Court judge issued decrees that, inter alia, found the children in need of care and protection as to the mother, found the mother unfit, and terminated her parental rights. In the same proceeding, the judge found the father fit and awarded him permanent custody. On the mother's appeal, we affirm.
As an initial matter, we note the limited nature of the mother's appeal. She does not challenge the judge's determination of her current unfitness. In light of this, little would be served by detailing the nature of that unfitness. For present purposes, it suffices to note that the mother's unfitness relates to serious mental illness, substance abuse, domestic violence, and a lengthy criminal record including a conviction -- among many others -- for stabbing the father in front of the children.
We pause to note that despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother does not love the children. The inquiry instead is whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Of course, as we have recognized, "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). However, the judge specifically concluded that the mother's "unfitness is likely to continue into the indefinite future to a near certitude." The mother has made only a nominal effort to challenge that finding, and, in any event, the finding enjoys ample support in the record evidence. In addition, we note that this is not a case where a parent's rights were terminated in order to free up the children for adoption. Rather, the mother's rights were terminated in order to prevent the ongoing harm that she was causing them. Indeed, the judge expressly barred all posttermination contact between the mother and the children (except to the extent there were "further court hearings, compelling factual changes, and specific factual findings that it would be in the best interests of Yancy and Susan to have contact").
The primary focus of the mother's appeal has to do with the judge's conclusions regarding the father. At trial, the mother opposed the return of the children to the father, favoring instead that they be placed with her own mother and stepfather (together, the maternal grandparents). The children consistently have opposed the mother's preferred placement and instead supported custody being granted to the father. The position taken by the Department of Children and Families (DCF) has evolved considerably since these proceedings were initiated. After DCF obtained temporary custody, the agency for a period supported reunification of the children with the father in recognition of the strides the father appeared to be making. In fact, DCF temporarily returned the children to his care. However, in great part because of its concerns regarding the father's seeming inability to break off his toxic relationship with the mother, DCF had regained temporary physical custody by the time of trial. At trial, DCF took the position that both parents' rights should be terminated, with the children then to be placed with the maternal grandparents (consistent with the mother's position).
In a thorough and thoughtful decision, the judge rejected DCF's and the mother's position regarding the father after concluding that -- by the time of trial -- the father had terminated his relationship with the mother and otherwise had taken sufficient steps to make himself a better parent. Notably, the judge recognized the father's shortcomings, including his own role as perpetrator in some of the domestic violence and the "poor judgment" he had shown in the past. In fact, the judge specifically noted that "[g]iven Father's history, there is a greater than nominal risk of future domestic violence." However, the judge concluded that "if Father stays on his current course of addressing his issues, the risk is at an acceptable level."
It bears noting that the judge also had evident concern about the proposed placement of the children with the maternal grandparents in Tennessee (even though the judge fully accepted the fitness of the maternal grandparents as adoption resources). In testimony that the judge expressly credited, the mother testified that if the children were placed with the maternal grandparents, she would follow them to Tennessee to live near them.
The bulk of the mother's brief appears to challenge the judge's findings and rulings regarding the father's fitness. In sum, the mother contends that while the judge recognized ongoing concerns about the father's fitness, she inappropriately minimized those concerns.
Although DCF supported termination of the father's rights at trial, after further consideration, it now affirmatively has embraced the judge's conclusions to the contrary. In addition, DCF now argues -- joined by the father and the children -- that the mother has no standing to challenge the father's fitness. In fact, DCF makes a variety of standing arguments.
Citing Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013), DCF argues that the mother cannot challenge the father's fitness because her own rights were terminated (notwithstanding that Adoption of Malik arose in a different procedural context). In addition, DCF argues more generally -- relying on a one-sentence footnote that does not mention standing -- that one parent has no standing to challenge another parent's fitness. See Adoption of Paula, 420 Mass. 716, 723 n.8 (1995). At the same time, DCF recognizes that a parent in fact has a statutory right to petition for termination of another parent's rights, see G. L. c. 119, § 24, but suggests that the mother waived any such rights here by not separately filing her own termination petition.
--------
At oral argument, the mother switched tacks. In the face of DCF's arguments that she lacks standing to challenge the judge's conclusion that the father was fit, the mother expressly disavowed making any such challenge. Nevertheless, she continued to argue that the judge's treatment of the issues related to the father's fitness still somehow went to whether the mother's rights should have been terminated. Viewed in its best light, the mother's argument appears to be that ongoing concerns about the father's fitness militate in favor of a wait and see approach in which the mother retained her rights to challenge where the children were placed.
To be sure, as the judge herself expressly recognized at length, the evidence raised some ongoing concerns about the father's fitness. Notwithstanding the terminology of the father being given "permanent" custody, all parties recognize that DCF retains authority to pursue a new care and protection petition if posttrial circumstances warrant it. In effect, the mother seeks to retain the ability to initiate her own petition to terminate the father's rights (see G. L. c. 119, § 24) or to participate in termination proceedings filed by DCF. In the end, "[w]hile courts protect the rights of parents, 'the parents' rights are secondary to the child's best interests and . . . the proper focus of termination proceedings is the welfare of the child.'" Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting from Adoption of Gregory, 434 Mass. 117, 121 (2001). With that standard in mind, we conclude that the judge acted well within her discretion in fully terminating the mother's parental rights under the circumstances of this case.
In light of the mother's narrowing the issues on appeal, no further discussion is necessary. However, for the sake of completeness, we add two additional points. First, even if the mother were continuing to challenge the judge's conclusions regarding the father's current fitness, we would discern no merit to such arguments. Of course, the trial judge "who hears the evidence, observes the parties, and is most familiar with the circumstances [is] in the best position to make the judgment" about parental fitness. Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). Our review of the judge's decision reveals that she carefully considered the evidence before her and the relevant statutory interests. The mother is unable to show that any of the judge's subsidiary factual findings are clearly erroneous. Instead, she is left to quibble with how the judge phrased certain findings, the absence of express discussion of every factual point, and the precise weight that the judge assigned to particular evidence. No error has been shown.
Second, nothing in this memorandum and order should be read as endorsing DCF's arguments on standing. We need not reach those issues both because the mother has disavowed challenging the judge's conclusions regarding the father's fitness and because our resolution of the standing issues in any event would not change the outcome. See Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 (2013), citing Boston Gas Co. v. Department of Pub. Utils., 368 Mass. 780, 805 (1975).
Decrees affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 3, 2014.