Opinion
15-P-1523
04-21-2016
ADOPTION OF TILDA (and two companion cases).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The mother appeals from decrees entered by a Juvenile Court judge terminating her parental rights with respect to her three youngest children, Tilda, Beth, and Charlie. See G. L. c. 119, § 26; G. L. c. 210, § 3. The mother also appeals from the judge's decision not to order posttermination/postadoption visitation. We affirm.
The judge also terminated the parental rights of the father, who did not file a brief despite having filed a notice of appeal. The mother's two older children were previously removed from her care.
Termination of parental rights. The mother argues that the termination decision was not supported by clear and convincing evidence. A decision to terminate parental rights involves, first, a finding that the parent is unfit, and second, that it would be in the child's best interests to end all legal relations between the parent and the child. See Adoption of Kimberly, 414 Mass. 526, 528 (1993); Adoption of Mary, 414 Mass. 705, 710 (1993); Adoption of Nancy, 443 Mass. 512, 515 (2005). In performing this analysis, the trial judge is required "to make specific and detailed findings, demonstrating that close attention has been given the evidence." Adoption of Gregory, 434 Mass. 117, 126 (2001). Subsidiary findings must be supported by a preponderance of the evidence, and they will not be disturbed on appeal unless they are clearly erroneous. Ibid. On appeal, "[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).
The judge based her ultimate decision to terminate the mother's parental rights on the mother's inability to make any progress in addressing her serious deficiencies as a parent, despite six years of the Department of Children and Families' (DCF's) interventions and provision of services. The mother argues that the judge focused exclusively on her shortcomings as a parent and failed to take into account the mother's "consistent concern for the well-being and safety" of the children.
The judge found that the mother suffered from unaddressed mental health issues, including anxiety and depression, frequently engaged in violent and aggressive behavior, and had an extensive criminal record. Most significantly, the judge found an unabated history of domestic violence between the mother and the father from the outset of their relationship in 2008, through the birth of five children, and continuing even while the trial in this matter was ongoing in January, 2015. On the other side of the coin, the judge noted that visits with the children had gone well since June, 2013, and that Tilda "runs to Mother" when she is scared. Simultaneously, however, the mother was involved in altercations with women at the shelters and programs she attended, one incident requiring police intervention, as well as several incidents involving the father.
The judge also found that the mother had a long history of substance abuse, although this factor did not figure into the judge's ultimate conclusions.
Specifically, the judge found, "When there is a loud knock at the door, [Tilda] runs to Mother as she is scared of Father due to witnessing them fighting." The mother relies on this finding as evidence of her ability to care for her daughter, arguing in her brief that "[e]ven in times of tumult it was Mother that [Tilda] would run to for consolation." She also argues that this was the judge's only "specific finding" regarding the adverse effects of domestic violence on the children.
"[I]n weighing the question whether parental rights are to be irrevocably terminated, it is appropriate for a judge to consider whether, on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary." Adoption of Carlos, 413 Mass. 339, 350 (1992). The judge concluded, to the contrary, "Her ability to stay away from Father, to refrain from criminal activity, and to stop exposing herself to domestic violence has persisted for six years . . . and will certainly continue into the indefinite future." The judge's determination in this regard was not clearly erroneous or an abuse of discretion. We cannot conclude that "the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation marks and citation omitted).
The judge made sufficiently detailed findings with respect to the mother's inability to address her serious domestic violence problem and its effect on her future ability to parent the children. Domestic violence of any household member affects all other members of a household and must be considered in determining the best interests of a child. See Custody of Vaughn, 422 Mass. 590, 595 (1996). The judge made factual findings, well supported by the record, of specific instances of violence throughout the parents' relationship and their failure to address the problem notwithstanding DCF's having made available relevant programs and services, and notwithstanding the fact that such violence previously resulted in the removal of their two older children. "[P]hysical force within the family is both intolerable and too readily tolerated, and . . . a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Ibid. The court in Custody of Vaughn was concerned that judges making child custody decisions will minimize the significance of domestic violence. Id. at 599. The judge here properly took into account the parents' history of domestic violence, Tilda's fear of the father, and the mother's failure to gain any insight into the effect of domestic violence on her children.
The judge concluded, "The chronic conditions of domestic violence, chaos, aggression, and lack of stability have significant adverse effects within this family. Mother reported that when there is a loud knock on the door, [Tilda] runs to her for fear it is Father. Despite this, Mother continues to remain in contact with Father. While this trial was ongoing, a domestic violence incident occurred demonstrating that Mother and Father will continue to endanger their children were they returned to their custody rendering them incapable of assuming parental responsibility."
Contrary to the mother's argument, "the judge gave due consideration to the question whether the mother's unfitness was temporary." Adoption of Elena, 446 Mass. 24, 31 (2006). See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 126-127 (2002). "There was ample evidence that the children would suffer if returned to the custody of their mother." Adoption of Elena, supra at 31-32.
Postadoption visitation. The judge acknowledged that "Mother appears to love her children very much, and her children appear to love her very much." The judge also noted that, after some early difficulties, visits with the children have gone well. Nonetheless, the judge declined to order posttermination/postadoption visitation.
Despite the overtones of the statutory term "unfitness," neither the judge's decision, nor our affirmance of the decrees, is a moral judgment on the mother or a determination that she does not love her children.
Because postadoption visitation orders interfere with the adoptive parents' right to raise their children, such orders "may be justified only in limited circumstances." Adoption of Vito, 431 Mass. 550, 563 (2000). "A necessary condition is a finding, supported by the evidence, that continued contact is currently in the best interests of the child." Id. at 564. "The purpose of such contact is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Id. at 564-565. Thus, the judge must balance any significant, existing bonds with the biological parents against any bonds that have formed with the preadoptive parents. See Adoption of Ilona, 459 Mass. at 63-64. In reviewing this determination, "our task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused [her] discretion or committed a clear error of law." Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
The judge found that Tilda and Beth had developed a bond with their preadoptive mother and call her "mom." (DCF had not identified a preadoptive home for Charlie, as his first foster family did not wish to make the arrangement permanent.) The judge further found, "Although Mother has consistently visited her children and they enjoy time with their Mother, her inability to control her anger with social workers, Father, and members of the community creates grave concern if this Court were to grant post-termination/post-adoption visitation." Accordingly, the judge concluded that visitation was not in the best interests of the children. Because the "necessary condition" that "continued contact is currently in the best interests of the child[ren]" is not present, Adoption of Vito, supra at 564, we discern no error in the denial of posttermination/postadoption visitation.
Decrees affirmed.
By the Court (Cypher, Katzmann & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 21, 2016.