Opinion
16-P-1485
06-15-2017
ADOPTION OF IVY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Juvenile Court judge found that Ivy's parents were unfit to parent her and issued decrees dispensing with their rights to consent to her adoption. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. Both parents claim that the judge made erroneous factual findings. In addition, the father claims that (1) he was denied his right to an interpreter, (2) the judge erred in finding that the Department of Children and Families (DCF) made reasonable efforts to reunify him with Ivy, and (3) the judge abused her discretion by not ordering regular posttermination visitation. We affirm.
Background. DCF first became aware of Ivy's family in January, 2012, when a report was filed pursuant to G. L. c. 119, § 51A (51A report), following an incident between the mother and father in the presence of Ivy; DCF "did not initiate any activity in response to this [51A] report." Three more 51A reports were filed in March, July, and August, 2013, after the police responded to arguments between the mother and the father. On the last of these occasions, the mother was observed pulling a screaming Ivy into the building. Slapping sounds were heard and the screaming intensified. The officers observed a mark on Ivy's right arm, which Ivy and the father reported came from the mother striking Ivy with a belt. The mother was arrested and eventually pleaded guilty to assault and battery on Ivy.
DCF screened out the 51A report filed in July, 2013.
After the mother's arrest, DCF arranged for the father, a native of Kenya, to care for Ivy. In November, 2013, staff at Ivy's day care facility reported concerns about the father's poor supervision of Ivy and possible alcohol abuse. DCF staff met with the father at his apartment and observed an empty vodka bottle. The father admitted to drinking the night before.
In December, 2013, the father failed to answer the door or telephone when Ivy was returned home after school. In January, 2014, the police responded to a report that the father was disoriented and "violently banging on the door of someone else's apartment thinking it was his own." In February, 2014, the police found four year old Ivy alone in the lobby of the apartment building at 7:00 P.M. ; Ivy told the officers, "I can't wake up my Daddy." When the police arrived at the father's apartment, he had just woken up and smelled of alcohol. The following day, DCF removed Ivy from the father's care and placed her in foster care.
Following Ivy's removal, the father made efforts to maintain sobriety. He participated in substance abuse treatment, submitted to breathalyzer tests, and attended relapse prevention and parenting recovery groups. The father and Ivy had successful visits. In November, 2014, Ivy was returned to the father's care.
After two months, the father relapsed. Ivy was removed and again placed with a foster family. The father resumed substance abuse treatment groups and supervised visits with Ivy. By the time of trial the father was unemployed. He was no longer attending substance abuse treatment program meetings and had stopped meeting with his therapist.
Following the mother's arrest, she completed domestic abuse, violence intervention, and parenting programs. She also continued her individual therapy and psychiatric care. The mother was inconsistent in attending visits with Ivy. The judge found that "the mother's ... interactions with [Ivy] ... were tenuous at best and she continually demonstrated limited parental capacity and minimal absorption of what she had been taught in her parenting classes." The mother's visits were also marked by confrontations with DCF staff. On one occasion, the mother was removed from the visitation room by the police. In December, 2015, the mother was homeless and resided in a shelter. At the time of trial in January, 2016, DCF did not know where she was living.
Ivy resided with her preadoptive family for twenty months prior to trial. She made significant progress there. Ivy was healthy and had no special education needs. However, six months after the trial, Ivy's preadoptive family elected not to pursue her adoption due to the special needs of their autistic biological daughter.
Discussion. The central questions in a case to terminate parental rights are whether the parent is unfit and whether termination is in the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 59 (2011). Such findings must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). See Adoption of Mary, 414 Mass. 705, 710-711 (1993). "We give substantial deference to a judge's decision ... 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, supra.
1. The father's appeal. a. Failure to provide an interpreter. The father claims that the judge should have appointed an interpreter for him at the March, 2015, care and protection hearing even though he did not request one. General Laws c. 221C, § 2, inserted by St. 1986, c. 627, § 2, provides that "[a] non-English speaker ... shall have a right to the assistance of a qualified interpreter...." A "non-English speaker" is defined as "a person who cannot speak or understand, or has difficulty in speaking or understanding, the English language, because he uses only or primarily a spoken language other than English." G. L. c. 221C, § 1, inserted by St. 1986, c. 627, § 2. Trial judges are "granted wide discretion in determining whether an interpreter is necessary." United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973), cert. denied, 416 U.S. 907 (1974). See Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729, 733-736 (2006).
Here, the record belies the father's claim that he qualified as a non-English speaker. He had lived in the United States for fourteen years. He attended an English speaking vocational school in the United States and obtained a license in heat, ventilation, and air conditioning. His extensive interactions with DCF social workers over the preceding two years had all been in English. During the colloquy at the care and protection hearing the father answered questions with more than yes or no answers and affirmed that he understood the stipulation. This affirmation was confirmed by his attorney's statement that she also believed the father understood the stipulation. In these circumstances, the judge did not abuse her discretion in failing to appoint, sua sponte, an interpreter at the care and protection hearing.
Nine months later, on the day the termination trial was to begin, the father, for the first time, requested an interpreter. His request was granted, the trial was rescheduled, and a Swahili interpreter was present throughout the rescheduled trial. We do not interpret the judge's allowance of a request for an interpreter as a finding that the father was a non-English speaker. From the record before us, it appears that the father spoke and understood English. However, even if he qualified as a non-English speaker, we are not persuaded that he was prejudiced by the absence of an interpreter at the care and protection hearing. The stipulation signed at that time was not admitted as an exhibit at trial, and the judge's findings did not rely on the stipulation. Moreover, at the termination trial, while represented by counsel and assisted by an interpreter, the father had the opportunity to fully litigate his fitness as a parent and the termination of his parental rights. Thus, under the circumstances, any potential prejudice from the absence of an interpreter at the care and protection hearing was cured by the presence of an interpreter at the termination trial.
b. Reunification. "Before seeking to terminate parental rights, [DCF] must make reasonable efforts aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. at 60 (quotation omitted). To do so, DCF must "match services with needs, and the trial judge must be vigilant to ensure that it does so." Adoption of Lenore, 55 Mass. App. Ct. 275, 279 n.3 (2002). The father claims that the judge erred in determining that DCF's reunification efforts were reasonable because "DCF failed to provide culturally competent services" and failed to address concerns about the father's mental health. We are not persuaded.
Although the father was born in Kenya and English is his second language, he never requested services in any language other than English. "It is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). See Adoption of Gregory, 434 Mass. 117, 124 (2001). Nothing in the record indicates that the father would have benefited from different services or services in a different language. Notwithstanding DCF's obligation to provide "culturally sensitive" services, 110 Code Mass. Regs. § 1.06 (2008), "a trial judge must still rule in the child's best interest[s]." Adoption of Ilona, supra at 61. Here, the judge's focus on the father's fitness and Ivy's best interests was appropriate.
Moreover, the evidence does not support the father's claim that DCF overlooked physical and mental health issues that impaired his ability to care for Ivy. Although the service plans called for such treatment, the father failed to follow through. We cannot say that DCF's efforts were unreasonable where the father failed to fulfil his obligations, "including seeking and utilizing appropriate services." Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001).
c. Visitation. The father assigns error to the judge's decision to leave visitation to the discretion of Ivy's adoptive parents. We disagree. An order for posttermination or postadoption visits between a parent and a child "must be left to the sound discretion of the trial judge." Adoption of John, 53 Mass. App. Ct. 431, 439 (2001).
"In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?"
Adoption of Ilona, supra at 63. The judge answered the first question in the affirmative, finding that "[Ivy] currently has a significant, existing bond and emotional attachment with her father" and ordered that "[Ivy] shall be entitled to enjoy supervised visitation with her father." However, the judge concluded that an order for regular visitation was not necessary to protect Ivy's best interests. Rather, visitation was left to the discretion of Ivy's adoptive parents.
Because an order of visitation imposes an "intrusion ... on the rights of the adoptive parents, ... [a] judge should issue an order of visitation only if such an order, on balance, is necessary to protect the child's best interest." Id. at 64-65. At the time of the trial, Ivy was placed with a preadoptive family who wanted Ivy "to have a good relationship with her biological parents" and were "amenable to future contact between [Ivy] and each of her birth parents in whatever form ... would benefit [Ivy]."
However, after trial, Ivy's preadoptive placement fell through. While the absence of a preadoptive family is a factor that weighs in favor of entering a visitation order, see Adoption of Rico, 453 Mass. 749, 753-754 (2009), it is clear that the judge concluded that termination was in Ivy's best interests even if her preadoptive family was unable to adopt her. Moreover, the visitation order is "provisional" and "subject to review in light of the ongoing assessments of [Ivy's] best interests during subsequent permanency hearings." Id. at 758 & n.17. In these circumstances, we discern no abuse of discretion in the visitation order.
d. Alternative adoption plan. Before terminating a parent's rights, "[p]ursuant to G. L. c. 210, § 3(c ), in addition to considering the issue of parental unfitness, the judge must consider the adoption plan proposed by [DCF]." Adoption of Dora, 52 Mass. App. Ct. 472, 474 (2001). The father does not challenge the judge's rejection of the plan proposed by the parents or the approval of DCF's plan for Ivy's preadoptive family to adopt her. Cf. id. at 475-476. Rather, the father challenges the "generic language" of DCF's alternative plan to recruit an adoptive family, in the event that the preadoptive family was unable to adopt Ivy. Here, where the judge explicitly recognized the possibility of adoption by recruitment, where the change in circumstances followed the entry of the decree, and where there is no new evidence related to Ivy's best interests, we decline to disturb the decree.
2. The mother's appeal. The mother contends that the findings regarding her physical abuse of Ivy were not supported by the evidence. Specifically, the mother argues that the evidence was insufficient to support the findings that (1) she "physically abused the child on numerous occasions"; (2) she "yelled and screamed at [Ivy]"; and (3) her "anger at the child and her physical abuse of the child caused neighbors to contact the police on more than one occasion." The findings are entitled to substantial deference in recognition of the fact that the "trial judge [had the] opportunity to evaluate witness testimony and weigh the evidence." Care & Protection of Jamison, 467 Mass. 269, 280 (2014).
The mother does not challenge the following findings. She has a history of violence and an inability to control her aggression and temper. The father told the police "that the mother had been hitting the child with a belt and that she had hit [Ivy] in the past." Her relationship with the father was marked by domestic violence, resulting in the police responding to their home on multiple occasions. Thus, there was sufficient evidence to support the finding that the mother "physically abused the child on numerous occasions" and "yelled and screamed at [Ivy]."
Ivy informed the court investigator that the mother struck her "lots of times."
There was also ample support for the finding that the police were called to the mother's apartment. At a minimum, the record reflects that, between March and August, 2013, three 51A reports were filed by the police after responding to the mother's apartment while the father and Ivy were present. On at least one of those occasions, the police were called as a result of the mother's anger directed at Ivy. The record is also replete with instances of the mother's angry outbursts at others in Ivy's presence.
Taken together the judge's findings support the conclusion that the mother is unfit to parent Ivy. Adoption of Helen, 429 Mass. 856, 860 (1999). The mother missed multiple visits with Ivy. When she attended visitation, her actions belied her ability to act as a responsible parent: she did not consistently engage with Ivy; she lacked self-control and awareness of Ivy's needs; and she "lack[ed] genuine warmth, affection and enjoyment." Based on all of the evidence, we discern no error in the conclusion that the mother was unfit to assume parental responsibility for Ivy's care.
Decrees affirmed.