Opinion
14-P-240
12-16-2014
CUSTODY OF JARVIS (and two companion cases).
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
These are consolidated appeals from decrees and orders entered by a judge of the Juvenile Court (1) terminating the parental rights of (i) the mother with regard to her son, Jarvis, and (ii) the mother, and the father of Sarah and Amanda (together, the girls), see G. L. c. 210, § 3, and (2) denying the maternal grandfather's petition for guardianship of the three children, which is the plan favored by the mother and the girls' father. The mother and the girls' father challenge the adequacy and correctness of the judge's findings and conclusions as to their respective parental fitness and the denial of the maternal grandfather's guardianship plan. The Juvenile Court judge issued detailed findings of fact and rulings of law in support of her decrees in the termination case and in support of her orders in the guardianship matter. We conclude that the judge's findings and rulings find ample support in the record, and discern no merit in the claims of error. We therefore affirm the decrees terminating the parental rights of the mother and the parental rights of the girls' father, and denying the guardianship petitions of the maternal grandfather.
Originally, the judge also terminated the parental rights of Jarvis's father, but the judge later vacated that decree after allowing the father's motion for reconsideration. Jarvis's father has not appealed. See Adoption of Willow, 433 Mass. 636, 645 (2001) (court may terminate the parental rights of only one parent). Jarvis is not being adopted, but is remaining in the custody of the maternal grandmother. Jarvis's father is allowed to visit with him. The maternal grandfather and grandmother are divorced, and the maternal grandfather has remarried.
It is important to note several things with respect to the positions of the parties. Jarvis's father appears in this action as an appellee. He admits that he is not currently in a position to take custody of Jarvis. Further, Jarvis's father has expressed support of placement of Jarvis with his maternal grandmother as guardian. While Jarvis was initially adverse to the judge's decision, he now asks this court to affirm the trial judge's decision in all respects, and to permit him to remain in the guardianship of his maternal grandmother. The girls initially appealed the termination of the mother's parental rights, but they have since moved to withdraw their appeal. We have allowed that motion.
Contrary to the girls' father's assertions on appeal regarding his potential recovery and the guardianship plan, according to the judge, the girls' father "has been offered services for many years and refused to participate. His claim that he only has access to limited services during his current incarceration is tempered by his uncooperative behavior prior to his arrest. He has not utilized the services he has been offered, as a prison inmate or as a citizen, and a substantial danger of abuse or neglect to all three children continues to exist."
Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the child. The question for the judge is "whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Background. We summarize the salient facts based on the judge's findings. The children, Jarvis (born in November, 2000), Sarah (born in June, 2007), and Amanda (born in January, 2009), all share the same mother. Between 2008 and 2013, four care and protection cases were filed against this family, and all three children were in and out of foster care numerous times during that period. Each time they were returned to the mother's custody, they were very soon thereafter returned to foster care. On July 16, 2013, the judge found the mother unfit to parent all three children, and the girls' father unfit to parent Sarah and Amanda.
Initially, Jarvis's father's parental rights also were terminated, but that decision was reconsidered by the judge. See note 2, supra.
1. Mother. The mother has a substantial history of substance abuse, primarily related to alcohol addiction. In 2002, DCF also supported allegations of neglect by the mother due to lack of supervision of the children. The judge found that the mother has a significant criminal history centered around substance abuse-related charges involving alcohol and illegal drugs. Finally, the judge made findings relating to the mother's long history of unaddressed mental health issues.
The mother has cared for her children on numerous occasions while intoxicated. In October, 2001, an investigation by the Department of Children and Families (DCF) supported allegations of neglect by the mother due to her alcohol abuse while caring for Jarvis. On another occasion, she was arrested for operating a motor vehicle while under the influence of alcohol while her children were in the car with her. She was often drunk while she was pregnant, giving birth to Amanda in January, 2009, while intoxicated. She attended numerous alcohol dependence and recovery programs without success.
The mother left Jarvis, then two years old, alone with the mother's eleven year old sibling while she went out. A police officer visiting a neighbor on unrelated business found the baby unsupervised and climbing down an apartment building stairway from the third floor. The baby could have fallen through one of many wide gaps in the stairway railing. In fact, the children were most recently removed from the mother's custody on February 9, 2012, after she left them alone all evening and did not return until the early morning hours of the following day.
The mother has been convicted of a number of offenses, including assault and battery on a child with injury, operating under the influence and operating recklessly (including child endangerment), resisting arrest, and possession with intent to distribute (for which she was incarcerated in 2001). The judge discredited the mother's testimony that she has never used illegal drugs.
The mother was hospitalized a number of times because of her mental health problems. She has been suicidal on more than one occasion. She has been diagnosed with depression, substance-induced mood disorder, alcohol dependence, borderline personality disorder, bipolar disorder not otherwise specified, anxiety, and manic depression. She was specifically instructed to abstain from alcohol, marijuana, cocaine, or other street drugs, to attend AA meetings and get a sponsor, and to take a variety of prescribed medications to help manage her conditions.
In addition to the mother's troubling behaviors related to her substance abuse and mental health problems, all three children have witnessed or been the victims of significant domestic violence. Jarvis, especially, has witnessed domestic violence perpetrated by the girls' father against Jarvis's mother and sisters. Jarvis also witnessed the mother hitting his sisters on multiple occasions at the mother's home, at her aunt's home, and most specifically at the maternal grandfather's home in 2012 in an incident that caused significant injury. Sarah also witnessed an incident in June of 2011, that likely involved both the mother and the girls' father assaulting each other, and that resulted in the mother's arrest. Sarah has been the target of the mother's assaults herself, and was once injured on her face and upper torso with bruises and abrasions.
The mother has a history of domestic violence in her own relationships. She obtained multiple G. L. c. 209A abuse prevention orders against the fathers of her children: one against Jarvis's father from February, 2001, through February, 2002, and three against the girls' father, two in 2009, and one in 2011. The girlfriend of the girls' father once obtained a restraining order against the mother.
The Juvenile Court judge inferred a link between Sarah's experiences with domestic violence in the mother's custody and Sarah's own violent behavior. The record demonstrates that all three children have suffered a distinctly grievous kind of harm as spectators and victims of physical abuse within the family.
2. Jarvis's father. Although we need not consider the judge's ruling with regard to Jarvis's father, see note 3, supra, the judge properly considered the mother's relationship with him and the fact that she thereby exposed her children to an atmosphere of domestic violence.
Jarvis's father has a long criminal history related to possession and sale of illegal drugs, including crack cocaine, gun-related crimes, assaults and batteries (some involving weapons), destruction of property, and trespassing. He has not been present in Jarvis's life except for a few meetings over the past twelve years He only began monthly visits with Jarvis a few months before trial. Additionally, the mother's relationship with Jarvis's father was filled with severe incidents of domestic violence. They separated shortly after Jarvis was born, when his father punched the mother while she held Jarvis. Jarvis's father was subsequently arrested and incarcerated for assault and battery.
3. The girls' father. The girls' father also has a long criminal history related to the possession and sale of illegal drugs including crack cocaine, gun charges, and assaults and batteries (some involving weapons). He is currently serving a sentence for a gun-related charge. Jarvis and the girls witnessed severe domestic violence on numerous occasions when the girls' father assaulted the mother.
The mother and the girls' father met and began dating in 2000. The trial judge was without exact information as to when the mother and the girls' father married. Throughout the marriage, the girls' father has been incarcerated for long periods of time, totaling about seven out of eleven years.
Jarvis witnessed some violent assaults, and when he attempted to intervene, he was injured. He watched the girls' father violently assault the mother during both of the mother's pregnancies. Sarah was also present on multiple occasions when the girls' father assaulted the mother. In August of 2008, Sarah witnessed him swing the mother by her hair and punch her in the face repeatedly. Soon after, in October, 2008, a similar incident occurred where he hit the mother, and she was found on the floor, pregnant and intoxicated. In the fall of 2009 the children witnesses the girls' father hit the mother and pull her hair. They also likely witnessed an October, 2009, incident resulting in the mother's hospitalization.
4. Custody. The children were initially placed in foster care, and were later transferred to the custody of the maternal grandfather and his wife in April of 2012. On June 22, 2012, the mother visited this home and consumed alcohol to the level of intoxication with the maternal grandfather's wife, whom she considers her "best friend." After becoming intoxicated during her visit that evening, the mother struck Sarah across the face, leaving a large bruise, and also injuring her upper torso. Jarvis, hearing his sister screaming, entered the room and told the mother to stop. The mother then injured Jarvis. The mother was arrested after the incident and pleaded guilty to assault and battery on a child causing injury. She was sentenced to three years' probation.
DCF filed allegations of abuse and neglect against the mother, and filed allegations of neglect against the maternal grandfather and his wife. Physical custody of Jarvis was transferred to the maternal grandmother. The girls were placed in foster care.
In July, 2012, DCF's initial goal for all three children was adoption, but Jarvis was not agreeable to the adoption plan. Since living with the maternal grandmother, Jarvis has done well in school, improved his grades, and maintained perfect school attendance. He gets along well with the maternal grandmother's fourteen year old daughter, who also lives in the home. Jarvis visits with his sisters and the mother once per month, and DCF has no substantial complaints regarding those visits. In the fall of 2012, Jarvis began visitation with his father. Jarvis's father had not seen Jarvis since 2007, before his last period of incarceration. Jarvis's father had not attempted any contact in that interval.
Sarah displays behavioral issues at school and in foster placements. In February, 2013, Sarah punched her foster father and made fists at her foster mother. That foster family asked that Sarah no longer be placed in their home. Her sister, Amanda, has also spent much of her life in foster care. She was born premature and underweight and failed to meet development milestones. She was also behind in her vaccinations as a result of the mother's repeated failures to make doctor's appointments. Amanda had delayed speech at age two, for which she received early intervention services. At the time of trial, she was living with a foster family, and had progressed enough to be discharged from early intervention services. DCF's goal for both girls is an appropriate adoptive placement where they can live together, with an individual or a couple who can devote the necessary resources to their needs.
Discussion. Pursuant to G. L. c. 119, § 26, a child may be removed from a parent's custody and the parent's rights to the child may be terminated, if the judge finds by clear and convincing evidence that (1) the parent is currently unfit to provide for the welfare of the child, and (2) it is in the best interests of the child to end all legal relations between parent and child. See, e.g., Adoption of Mary, 414 Mass. 705, 710 (1993); Adoption of Nancy, 443 Mass. 512, 515 (2005); Adoption of Elena, 446 Mass. 24, 30-31 (2006). The trial judge, "who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment" as to parental fitness. Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). On appeal, the trial judge's findings will not be disturbed unless clearly erroneous. See Adoption of Carla, 416 Mass. 510, 517 (1993); Adoption of Quentin, 424 Mass. 882, 886 (1997).
There is ample evidence to support the judge's findings. With regard to the mother, the evidence of her neglect is strong as a result of her severe and untreated mental health and substance abuse problems. See, e.g., Adoption of Mary, supra at 710-711; Adoption of Nancy, supra at 515-516; Adoption of Elena, supra. The mother claims that the judge made numerous findings that were both erroneous and based on stale evidence, and that there is a basis for the belief that she will be fit to parent these children in the near future. The record belies these claims. For example, in the three and one-half years between when the children were first removed from the mother's custody and when they were removed for the final time, the children spent approximately twenty-one months in DCF's custody. Furthermore, the judge did not credit the mother's testimony that she had remained sober since June, 2012. The judge also found that the mother has not taken full responsibility for her actions, and has not gained insight as to the ways in which her behavior has affected her children. Finally, with regard to the service plans, the judge observed that the mother did not participate "sufficiently in tasks," leaving "a reasonable expectation" that she would not be able to provide proper care "within a reasonable time." These findings demonstrate that the judge focused on the totality of the circumstances, including events as they developed just prior to trial. Finally, "[b]ecause childhood is fleeting, a parent's unfitness is not temporary if [as the judge found] it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. 53, 60 (2011). The mother's arguments reduce to a disagreement with the judge's assessment of the weight and credibility of the evidence, which is not a proper subject for appellate judicial review. See Adoption of Don, 435 Mass. 158, 166-167 (2001).
The judge's extensive findings and rulings were set forth in eighty-nine written paragraphs in which she concluded that factors ii, iv, vi, viii, ix, xii, and xiv set forth in G. L. c. 210, § 3, applied to this case.
Additionally, the violent conduct of the girls' father in the presence of the children is significant and exposed the children to the risk of severe injury. The judge did not abuse her discretion in terminating his parental rights to the girls and declining to adopt his guardianship preferences. See, e.g., Adoption of Mary, supra; Adoption of Nancy, supra; Adoption of Elena, supra.
Order denying petitions for guardianship affirmed.
Decrees affirmed.
By the Court (Green, Rubin & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 16, 2014.