Opinion
14-P-91
03-13-2015
CARE AND PROTECTION OF VINCE (and one companion case).
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 and one of her children, Vince, appeal from the Juvenile Court judge's determination that the mother is unfit to parent the children. The mother asserts abuse of discretion based on insufficiency of the evidence, violation of the requirements of G. L. c. 119, § 24(a)-(d), and failure by the Department of Families and Children (department) to provide an appropriate service plan. Vince asserts insufficiency of the evidence and also seeks to assert error on behalf of the mother, alleging a deprivation of her constitutional right to a fair trial. We affirm.
The children have different fathers. Vince's father stipulated to the judge's finding of his unfitness and the order granting custody of Vince to the Department of Children and Families. Adam's father was found "currently fit, able and available to further the best interest or welfare of" Adam, and was granted custody of Adam. Neither father is involved in this appeal.
Background. Vince was born in 1999; Adam was born in 2005. The judge found the following: Prior to the initiation of this matter in 2012, the department had been involved with the mother on numerous occasions as a result of allegations of abuse and neglect of the mother's two oldest children and Vince. At the time of trial, the mother was unemployed and receiving disability benefits due to a diagnosis of legal blindness in one eye. The mother began receiving disability benefits in 2008. At the time of trial the mother did not have a valid driver's license, although she owned a car and continued to drive despite her disability.
The mother's two oldest children are not involved in these proceedings.
A review of the evidence supports a determination that the mother is unfit. Among the most serious, the judge found Adam reported that the mother had physically abused him including hitting him with a belt, and hitting him in the leg, hand and face. In an interview in 2012 with the assigned social worker, the mother acknowledged using a belt to punish both children. The judge found that the mother did not consider this behavior abusive. The judge also found that between 1993 and 2011, the mother was the subject of approximately thirty criminal complaints or indictments; ten of these, including charges for assault and battery, violation of a restraining order, contributing to the delinquency of a minor, receiving stolen property and operating a motor vehicle while her license was suspended, resulted in convictions.
The judge found as well that the mother was sporadic in her visitation after custody of the children was transferred to the department, that she was uncooperative and combative with the department, that she vilified and assaulted Adam's father in front of both children, and that both children's well-being and behavior improved markedly after the mother was deprived of custody. We refer to additional evidence and the procedural background as they are pertinent to our consideration of the issues on appeal.
Specifically the judge found that when Adam's father went to the mother's home to collect some clothes for Adam, "the mother told the father that his (the father's) girlfriend had better not be with her son and if she finds that his girlfriend is at the father's home, then she would 'shoot [him], kill [him], and fuck [him] up.' The mother then slapped the father across the face, in the presence of the children. The father then took Adam by the hand to leave and started going down the staircase out of the apartment. The mother followed behind them, punching the father. At the door, the mother grabbed Adam and pulled him back, shutting the door. The father then went to the Quincy Police station to report the incident and obtain assistance."
Discussion. Sufficiency. The mother asserts that the evidence on which the judge relied in arriving at a determination of unfitness fails to support a finding of unfitness at the time of trial, because the latest complaint of wrongdoing was made in 2011. "A judge's findings must be left undisturbed absent a showing that they are clearly erroneous." Care & Protection of Rebecca, 419 Mass. 67, 81-82 (1994) (quotation omitted). "A finding is clearly erroneous when there is no evidence to support it or when . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. 795, 799 (1993) (quotation omitted).
The judge made eighty-five findings, all of which are well supported by the record. These findings point to an inability by the mother to control her temper and govern her behavior, resulting in violent outbursts and assaults inflicted on one of the fathers and on the children. The mother's criminal history and the restraining orders obtained against her by members of her own family are undisputed and speak for themselves. The findings also point to neglect of the children and interference in the department's efforts to help her provide a suitable environment for child rearing. The mother went so far as to impede a police investigation when Vince's whereabouts could not be established for a two-week period.
The mother's argument with respect to sufficiency is essentially that all of the evidence on which the judge relied is outdated, and cannot be the basis of a determination of current unfitness. We disagree. The judge, who held the initial care and protection proceeding in March of 2012, was fully entitled to infer that the behavior in question, documented to have occurred up to and in 2011, would continue. See Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) ("[S]tale information cannot be the basis for a finding of current parental unfitness. . . . Prior history, however, has prognostic value"). The mother herself admitted that her behavior was consistent with her belief in the efficacy of physical punishment, a form of parenting to which she had been subjected in her own childhood. Her strong and active resistance to parenting services was coupled with an indifference to contact with the children, whom she had not visited for the four-month period leading up to the trial. See Adoption of Ramon, 41 Mass. App. Ct. 709, 717-718 (1996); Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001). The evidence was sufficient to support the judge's ultimate finding of parental unfitness.
Departmental services. The mother also claims reversible error in the department's alleged failure to provide adequate services. As she did not raise this issue with specificity at the time "the parenting plan [was] adopted" or when she "receiv[ed] those services, or shortly thereafter," the department argues she has waived the issue for purposes of appeal. See Adoption of Gregory, 434 Mass. 117, 124 (2001). She did however make a generalized complaint in the Juvenile Court. We need not address the argument of waiver because the mother's assertion is unavailing on this record.
The mother filed motions in the Juvenile Court asserting that the department "failed to service the family with no reasonable efforts," and "failed to have a consistent service plan in place so that all goals were understood for all family," and "has not complied with any reasonable effort to work with mother."
The evidence demonstrates that the mother did not take advantage of reasonable services offered by the department by sometimes failing to participate entirely, being habitually tardy, acting inappropriately at meetings and essentially disregarding the requirements of her service plan. We also do not agree with the contention that the judge's consideration of the mother's failure to use the services provided to her resulted in an inappropriate burden shift at trial. The department retained, and satisfied, its burden to demonstrate the provision of appropriate services and the mother's failure to avail herself of them.
General Laws c. 119, § 24. The mother claims that the judge abused her discretion because the statutory prerequisite for a care and protection petition was not met in this case. Specifically she asserts that the department failed to "petition under oath" that any of the four conditions of the first paragraph of G. L. c. 119, § 24, as amended by St. 2008, c. 176, § 84, were present. The mother did not raise this issue at trial. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995); Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997).
These conditions are "that the child: (a) is without necessary and proper physical or educational care and discipline; (b) is growing up under conditions or circumstances damaging to the child's sound character development; (c) lacks proper attention of the parent, guardian with care and custody or custodian; or (d) has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention." The petition filed on behalf of Vince states these four conditions as grounds for the petition. Adam's petition is not reproduced in the record appendix.
We note that had she done so, the evidence presented by the department at trial would easily have allowed it to remedy any defect with a properly executed petition. In any event, were we to address this issue, we would note that determinations based on such petitions are subsumed in the final entry of judgment and are therefore not subject to judicial review. See Care & Protection of Robert, 408 Mass. 52, 68 n.8 (1990); Adoption of Roni, 56 Mass. App. Ct. 52, 58 (2002).
Recusal. Vince asserts on appeal that the mother was deprived of her constitutional due process right to a fair trial by judicial bias. It is well-settled that there is ordinarily no right to "claim standing . . . to vindicate the constitutional rights of some third party." Slama v. Attorney Gen., 384 Mass. 620, 624 (1981), quoting from Barrows v. Jackson, 346 U.S. 249, 255 (1953). "Representative standing is generally limited to cases in which it is difficult or impossible for the actual rightholders to assert their claims." Ibid. Here the mother, as well as her standby counsel, had abundant opportunity and plentiful motivation to raise a claim of bias and move for the judge to recuse herself, yet did not do so.
Were we to consider this claim it would not avail the child or the mother. Though not required to do so, Davis v. Tabachnick, 425 Mass. 1010 (1997), the judge provided the mother with significant leniency in the imposition of procedural and evidentiary requirements. The judge also accommodated the mother's claims of legal blindness and hearing impairment to the extent that they were credible under the circumstances.
Judgments affirmed.
By the Court (Green, Grainger & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 13, 2015.