Opinion
20-P-430
12-03-2020
ADOPTION OF ZAKIRA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a five-day trial, a judge of the Juvenile Court issued a decree dispensing with the mother's consent to the adoption of her child, Zakira. On appeal, the mother challenges the judge's decision, arguing error in the termination of her parental rights, the acceptance of the kinship adoption plan of the Department of Children and Families (department) over the mother's competing proposal, and the judge's mandate for three annual visits between the mother and the child. Finally, the mother argues that the trial judge erroneously granted the department's motion "for review and redetermination" less than six months after the adjudication of permanent custody, in violation of G. L. c. 119, § 26 (c), and that the judge failed to find "a change in circumstance" necessary for such review. We affirm.
The mother also has an older biological son who is not the subject of this appeal.
Background. The child was born in 2015. Following the child's birth, a series of five reports pursuant to G. L. c. 119, § 51A, were filed, variously alleging abuse and neglect of the child. On February 13, 2018, the department removed the child from the mother's care and was granted temporary custody; mother waived her right to a temporary custody hearing. Soon after obtaining custody, the department placed the child with her maternal aunt, where she remained for over one year, until the maternal aunt withdrew as a resource for the child.
The facts are taken from the judge's findings, which the mother does not challenge as erroneous, and from the Juvenile Court's docket. We reserve additional factual detail for our discussion of the mother's various claims, as relevant.
The child's father passed away in March 2018.
On July 26, 2018, the mother stipulated to her unfitness to parent the child; the child was found to be in need of care and protection, was placed in the permanent custody of the department, and remained placed with the maternal aunt. On November 14, 2018, the department filed a motion for a "[r]eview and [r]edetermination" (motion), "seeking an order dispensing with the parental consent to the adoption of the . . . child." The judge allowed the motion and, on November 20, 2018, issued a trial order. The trial began on February 27, 2019; at its conclusion, the judge terminated the mother's parental rights and approved the department's plan for the child's adoption by the child's paternal aunt and uncle, with whom the child was placed in May 2019. The judge subsequently issued comprehensive and thoughtful written findings and conclusions of law. This appeal followed.
Discussion. Parental unfitness. "Termination of parental rights may occur only after a judge determines that a parent is unfit and that termination is in the child's best interest," Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013), and must be based on clear and convincing evidence, Adoption of Nancy, 443 Mass. 512, 515 (2005). See, e.g., Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 700 (1984) (requiring finding of clear and convincing evidence that mother unfit to provide for best interests of child). We review the trial judge's decision for an abuse of discretion or clear error of law, see Adoption of Elena, 446 Mass. 24, 30 (2006), citing Adoption of Hugo, 248 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), mindful that "the [trial] judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference," Adoption of Elena, supra.
The mother argues the judge erred in concluding that the mother was permanently unfit to parent the child. Specifically, the mother argues that the judge improperly held her to an "ideal parent" standard and failed to consider the gains the mother made in her parenting ability during pendency of the case. See Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018) ("parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard" [quotation and citation omitted]); Adoption of Zoltan, 71 Mass. App. Ct. 185, 188 (2008) (determination of parental fitness turns not on whether parent is "good" or "ideal," but on whether parent demonstrates "grievous shortcomings" that put child's welfare at risk [citations omitted]).
We discern no abuse of discretion or other error in the judge's determination that the mother was unfit to parent the child, and was likely to remain so. The judge's findings, which the mother does not challenge, document the mother's history of insecure housing; ongoing domestic violence involving the mother, which in the past had occurred sometimes in the child's presence and which she generally minimized; the mother's anger issues and sporadically treated mental illness; the mother's ongoing reliance on drugs and alcohol; and the mother's resistance to consistent treatment plans. Given those findings, we discern no abuse of discretion in the judge's determination that the mother was permanently unfit to parent the child. See Adoption of Luc, 484 Mass. 139, 147 (2020) ("the mother's unwillingness to adhere to [the department's] service plan, which required her to obtain treatment for her mental health challenges and substance use disorder, is 'relevant to the determination of unfitness'" [citation omitted]); Adoption of Elena, 446 Mass. at 32 (with respect to domestic violence, "children . . . [are] no less victims from having witnessed the abuse as opposed to being an intended recipient"); Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (noting importance of stable housing and of parents' adherence to service plans and counseling programs). See also Adoption of Nancy, 443 Mass. at 517 ("Stability in the lives of children is important"); Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) (noting importance of stable home environment).
We are unpersuaded by the mother's argument that the judge failed to give appropriate consideration to the mother's efforts to improve her parenting skills. To the contrary, the judge detailed instances in which the mother attended her therapy and domestic violence sessions, noted when the mother attended visits with the child, and described testimony by the mother that contested some of her positive drug screens. The judge concluded, however, that the mother failed to benefit from the services provided to the extent required to render her fit to parent the child. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (judge "not obliged to believe that the parenting skills of [either parent] had improved simply because of their recent cooperation with the department"). Again, we discern no abuse of discretion in this determination.
2. Adoption plans. At trial, the mother and the department proposed differing permanency plans for the child; the mother supported a plan for adoption by the maternal grandfather and his wife, and the department supported adoption by the child's paternal aunt and uncle, who were serving as her foster parents since May 2019. The mother argues that the trial judge abused her discretion in weighing and comparing evidence of the financial situations of each of the proposed adoptive families. See Adoption of Hugo, 428 Mass. at 225 (abuse of discretion standard). See also G. L. c. 210, § 3 (c).
The judge's findings on the proposed plans included observations that, inter alia, the maternal grandfather did not have a stable marital relationship or steady income and demonstrated an inability to set appropriate boundaries with the mother in regard to her visitation with the child. By contrast, the judge found that the paternal aunt and uncle had the ability to provide a stable home and income for the child, had experience raising children, and demonstrated a willingness to continue to have the mother be an appropriate part of the child's life. "It is axiomatic that a judge is obliged in a permanency hearing in which alternative plans for adoption are submitted to evaluate the competing plans and to determine which placement serves the best interests of the child." Adoption of Malik, 84 Mass. App. Ct. at 439. Cf. Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001) (remanded due to lack of meaningful evaluation of proposed adoption plans). The findings amply support our conclusion that the judge did indeed "demonstrate that close attention ha[d] been given [to] the evidence" in its entirety, Adoption of Lars, 46 Mass. App. Ct. 30, 31 (1998), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993), and not merely based on the prospective adoptive parents' relative financial situations. We discern no error in the judge's even-handed assessment of the evidence concerning the competing adoption plans. See Adoption of Odetta, 87 Mass. App. Ct. 576, 577-578 (2015) (trial judge's ruling on competing adoption plans entitled to substantial deference). See also G. L. c. 210, § 3 (c).
3. Postadoption visits. Having approved the department's adoption plan for the child, the judge ordered a minimum of three postadoption visits per year between the mother and the child, with additional contact left to the discretion of the adoptive parents. The mother argues the judge's decision was arbitrary and thus an abuse of discretion. See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013).
In deciding whether and how to grant postadoption visitation, a judge's discretion must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances." Adoption of John, 53 Mass. App. Ct. 431, 439 (2001), quoting Adoption of Vito, 431 Mass. 550, 562 (2000). Here, the judge acknowledged the existence of a significant emotional relationship between the mother and the child, and that maintaining the relationship between them was beneficial to the child and in her best interest. See Adoption of Vito, supra at 553 ("a judge may order limited postadoption contact, including visitation, between a child and a biological parent where such contact is currently in the best interests of the child"). We discern no abuse of discretion in the judge's determination that the child's interests would be best served by establishing a minimum number of annual visits, without limiting the potential for more contact if the adoptive parents agreed. See Adoption of Ilona, 459 Mass. 53, 64-65 (2011) (benefit to child must be balanced "with the intrusion that [a visitation] order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in the[] child's best interest"). Cf. Adoption of Oren, 96 Mass. App. Ct. 842, 849 (2020) (remand where judge "made no findings whether postadoption visitation would be in the best interests of the child").
4. Review and redetermination hearing. Finally, we address the mother's argument that her due process rights were violated by the judge's acting on the department's motion for a review and redetermination, made less than six months after the "adjudication of permanent custody" to the department. See G. L. c. 119, § 26 (c) ("the department or the parents . . . may petition the court not more than once every 6 months for a review and redetermination of the current needs of [the] child"). The mother did not raise this issue below; accordingly, it has been waived. See Adoption of Willow, 433 Mass. 636, 651 (2001).
Even if the issue were not waived, however, we are not persuaded by the mother's argument. We agree with the department that its filing, while denominated as a motion for review and redetermination of the earlier permanent custody order, was, in fact, recognized and treated by both the parties and the judge as a request for trial on the question of termination of the mother's parental rights. The mother did not argue otherwise before the trial judge; on appeal, she does not argue that she was not on notice that the trial would be for termination. Where, as here, the mother was aware of the purpose of the hearing, was represented by counsel, and argued against termination, she was not deprived of her due process rights, nor was the procedure fundamentally unfair. See Matter of G.P., 473 Mass. 112, 121 (2015) ("due process protections require 'notice and opportunity for a hearing appropriate to the nature of the case'" [citation omitted]).
We find support for our conclusion in the department's affidavit, incorporated by reference into the motion, detailing the department's request for an "order dispensing with the parental consent to the adoption of the subject child and . . . terminating the rights of [the mother]."
The six month waiting period specified in G. L. c. 119, § 26 (c), applies only to requests for review and redetermination; it is not a barrier to a request by the department for trial on termination of parental rights.
Given our conclusion that the motion, however titled, was effectively a request for trial, we do not reach the question whether a ruling on a motion for review and redetermination would have been premature if filed and heard on the schedule of the motion and the trial in this case.
Decree affirmed.
By the Court (Green, C.J., Ditkoff & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 3, 2020.