Opinion
16-P-1612
07-13-2017
ADOPTION OF KAY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree of the Juvenile Court, finding him unfit and terminating his parental rights to the child, Kay. He argues that he was deprived of a full and fair trial; that portions of the mother's uncorroborated testimony regarding domestic violence were credited improperly; and that the judge erred in failing to order posttermination and postadoption visitation. We affirm.
The mother's parental rights also were terminated, but she does not appeal that decree; she supports the child being adopted by the maternal grandmother.
Background. The judge found the following facts and the father does not challenge any particular finding. Kay was born prematurely in May, 2014, and tested positive for oxycodone and barbiturates at birth. Experiencing withdrawal symptoms after birth, she remained in the hospital for twelve days. While she was in the hospital, the Department of Children and Families (department) filed this petition, and Kay was placed with the maternal grandmother when she was discharged from the hospital. Kay remains in the maternal grandmother's care, as does her older sister; it is the department's plan to have the maternal grandmother adopt Kay. After overcoming her initial medical condition and some slight developmental delays that were resolved through early intervention services, Kay is now a healthy and happy girl. She was seventeen months old at the time of trial.
The maternal grandmother has custody of the older sister by a temporary guardianship through the Probate and Family Court. The father is also the biological father of the older sister, who is not involved in these proceedings.
The father is originally from Vancouver, Washington. During his childhood, he lived in Paraguay and Bolivia with his parents, eventually settling in Maine, where he graduated from high school. He has attended some college, but has not earned a degree. The father was approximately thirty-three years old at the time of trial. He has worked as a carpenter and landscaper; in 2015, he was an apprentice electrician, but lost his job because he frequently missed work. At trial, he testified that he was not steadily employed due to his many court obligations and limited access to transportation. The father receives a monthly income of approximately $1,000 from a multifamily rental property he owns in Maine, which the paternal grandfather maintains, collecting monthly rent from the tenants and then depositing the funds into the father's bank account.
In September, 2014, the father was convicted in Maine of operating a motor vehicle while under the influence and lost his driver's license for three years.
The father has a lengthy criminal record in both Massachusetts and Maine, spanning from 2007 to 2014, and including convictions of a firearm violation, drug offenses, three separate charges of operating a motor vehicle while under the influence of alcohol (OUI), and violation of a restraining order. At the time of trial he was on probation for his 2013 OUI conviction, had charges pending in one court for violating a restraining order, and faced new charges in another court for violating the maternal grandmother's order pursuant to G. L. c. 209A.
The father met the mother in 2011 when they worked together. Early in their relationship the mother felt that the father was a "gentleman." Over the course of their relationship, however, the father became controlling and abusive toward the mother, both verbally and physically. The first day the mother appeared at the trial in this case, she was incarcerated and brought to court pursuant to a writ of habeas corpus ad testificandum. During that court appearance, the mother was evasive and claimed not to remember incidents of domestic violence by the father. She appeared at trial a few weeks later for a second day of testimony, after she was released from jail. At that time, the mother was "significantly more forthcoming" about her abusive relationship with the father.
The judge did not credit the father's testimony that he has never abused the mother, or been physically violent toward her, and did credit the mother's second day testimony that, during the last two years of her relationship with the father, he was violent with her many times, punching her, hitting her with his hands, and kicking her; she lost consciousness on two separate occasions in 2014 as a result of the father's beating her. She often did not seek medical attention because she did not want to have to explain her injuries. However, the police were called on many occasions for reports of domestic violence between the parents. Both the father's family and the mother's family disapproved of the tumultuous relationship. The father's family refused to help him financially as long as he was still in a relationship with the mother. At the time of trial, the parents testified that they were no longer in a romantic relationship, but each stated that he or she would stay in touch with the other, despite mutual restraining orders.
The mother testified that, in January, 2014, she received medical treatment after the father punched her in the face and neck, causing bruises on her face, marks on her arms, and permanent hearing loss due to a perforated ear drum. The judge credited this testimony.
Although the father consistently denied that he has a substance abuse problem, he has been "superficially" involved in efforts to achieve and maintain sobriety. He has lived in a sober house, producing negative urine screens, and had in the past received a monthly injection of Vivitrol to help deter his alcohol cravings. The father also denied any mental illness diagnosis, but reported symptoms consistent with anxiety and depression. He was taking prescribed medication at the time of trial to treat anxiety and various stomach problems. The judge did not credit the father's testimony that he had no substance abuse problem and concluded that, because of his denial that he has a substance abuse problem, the father is unlikely to pursue more "substantive treatment."
The father also may have been taking Vivitrol injections at the time of trial.
Other than weekly visits with Kay, the father has not been compliant with his service plan. Although initially cooperative in providing releases for providers, in October, 2015, the father revoked all releases following a dispute with the social worker and thereafter refused to sign new releases, including one for his new doctor. The father has failed to provide information to the department regarding the property he owns in Maine, or to verify his current driver's license status and current employment. His participation in individual therapy has been inconsistent and, because he has not signed releases, the department is uncertain whether the father reengaged with therapy after stopping regular appointments in April, 2015, with one additional appointment in September, 2015. The judge found this failure particularly concerning given the father's "self-reported emotional distress."
The father's service plan required him to complete a parenting class or document having taken one previously; participate in weekly supervised visits with the child and demonstrate competent care at the visits; attend and complete a batterers' intervention program; verify and maintain sobriety (from alcohol); engage in individual therapy; provide releases to the department for service providers; attend court dates and relevant meetings, including meeting regularly with the department social worker; and keep the department apprised of any changes in address and household members. The plan was amended to include requirements that the father apply for health insurance; keep the social worker informed of his relationship with the mother, his intention to change the restraining order he had against the mother, and abide by the restraining order the mother had against him; and to reflect that he had previously completed a parenting program.
The father has not undergone the required psychological evaluation, blaming his therapist for not completing it. He also has not participated in a substance abuse evaluation (again blaming his therapist), nor has he consistently provided documentation verifying his sobriety. Although the father attended twenty of the forty sessions of a batterers' intervention program in Malden, he failed to complete it, claiming he could not afford the cost. In addition, despite being given $100 (by the paternal grandmother) to complete the intake for another program, he did not follow through, telling the social worker that he did not understand why he should participate in such a program "so far into these proceedings." The father disapproves of Kay's placement with or adoption by the maternal grandmother, and harbors animosity toward her; the judge did not credit the father's testimony that, if custody of Kay were returned to him, he would allow a continued relationship with the maternal grandmother.
The father also refused to attend a free program in Jamaica Plain, claiming difficulty with transportation.
Discussion. Full and fair trial. The father argues for the first time on appeal that certain comments that the judge made at sidebar, immediately before the father's redirect examination, were an indication that the judge, improperly and prematurely, had assessed the father's claims while the trial was ongoing. He further claims that the judge's words at the trial closely resemble those contained in the findings issued after trial, underscoring his argument. Because the father did not object at trial to the judge's challenged statements, he did not preserve his argument for appeal. See Care & Protection ofAmalie, 69 Mass. App. Ct. 813, 821 (2007).
The judge stated, with only counsel present:
"Now, I am not going to shut down anybody's case, and I will make no decision until I hear all of the evidence.... That being said, is there anyone in this room that thinks that we're going to have any evidentially important information come out of this guy [the father]? ... What I'm telling you is I'm just giving you a synopsis of where I stand based upon what I have heard, so far. You know frankly I would really like to go away for the 4th of July without having [the father] on the stand."
The judge went on to state:
"[W]ith respect to Father, we have a guy, who, he has contradicted himself multiple times. He has at this point anyway not really accepted any responsibility for why this case is before the court. He tends to blame everybody else for his problems. He has no substance abuse issues by the way even though he just took a Vivitrol shot and he's had 3 OUI's on his record. With respect to his testimony itself, the fact that he talks, you know, tends to not remember what he testified to as to yesterday or even in the afternoon, he doesn't remember what he said in the morning, it's—and that he won't answer a question—I know that one. But the bottom line is his credibility at this point is also somewhat suspect. That being said, [counsel for the department], I know that you want to try to point out some inconsistencies in this testimony. I would ask that you keep it brief because ... this guy is not going to give you a straight answer and nothing is gonna come out it other than you getting frustrated, and me getting frustrated trying to get him to answer a question and keep you guys in your seats."
The judge later stated, "let's try to get really to the point, and I am gonna do my best to get him [the father] to answer questions which I have been somewhat unsuccessful at so far."
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In any event, the trial in this matter was held over twelve nonconsecutive days, involving the testimony of nine witnesses, including five days of the father's direct and cross-examination testimony before the challenged statements. During his testimony, the father appeared to have tremendous difficulty understanding the questions asked, and answering the questions directly. He often rambled and the judge intervened on several occasions, attempting "to control father's ramblings while other witnesses were testifying."
The judge's challenged statements were made during a discussion with counsel and there was no objection. The transcript indicates that the father was not present at the time. The statements might have been better phrased. However, it is apparent from the record that, at the time, the judge was attempting to gauge the remaining time needed to complete the trial, encouraging counsel to ask the father pointed questions to enable the father more easily to understand the questions posed and to avoid unnecessarily prolonging his redirect and recross examinations. Clearly, the father, effectively represented by counsel, was provided sufficient opportunity to present his claims by way of his lengthy testimony, and the testimony of the two other witnesses presented on his behalf. See id. at 820-821.
Any perception of a premature assessment of the evidence is contradicted by the judge's specific and detailed findings and conclusions demonstrating, as required, that close attention was given to all of the evidence presented at trial. See Adoption of Nancy, 443 Mass. 512, 516 (2005). As noted, the father does not challenge specifically any of the eighty-nine findings of fact. Our review of the record indicates that the judge's subsidiary findings were supported by a preponderance of the evidence and certainly were not clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799 (1993). The evidence proved "clearly and convincingly that the [father is] currently unfit to provide for the welfare and best interests of [Kay]." Adoption of Quentin, 424 Mass. 882, 886 (1997).
In cases such as these, which may result in the extreme step of severing the parent-child relationship, fairness, including the appearance of fairness, is paramount. This is especially true when an alleged "premature assessment carries through into the final judgment, in the process giving a reasonable observer cause to wonder whether the way the judge viewed the evidence, and the inferences [he] drew from it, were produced by [his] early judgment rather than by a thoughtful and careful weighing of all the evidence at the end of the trial." Adoption of Tia, 73 Mass. App. Ct. 115, 123 (2008). In this case, however, we are satisfied that the trial was fair; the evidence supported the careful and unchallenged findings and the findings supported the result.
Domestic violence testimony. The father next claims that the judge committed reversible error when selectively crediting the mother's testimony regarding domestic violence in her relationship with the father. This argument also fails. The judge's unchallenged findings are supported by the evidence, which showed that the relationship between the father and the mother was riddled with domestic violence.
Contrary to the father's argument, the judge did find that the mother sometimes became volatile and angry when abusing drugs. However, the judge did not credit the father's testimony that he had never been physically violent with the mother, but credited instead, as he may, the mother's second day of testimony regarding the violence she suffered at the father's hands. As the fact finder, "the judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference." Adoption of Elena, 446 Mass. 24, 31 (2006). Moreover, because domestic violence within a family is relevant to a determination of parental unfitness, the judge was permitted to consider the father's conduct during the relationship on the issue of Kay's best interests, and we defer to that finding. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139-142 (2004).
Posttermination and postadoption visitation. A judge has the equitable authority "to order visitation between a child and a parent whose parental rights have been terminated, where such visitation is in the child's best interest." Adoption of Ilona, 459 Mass. 53, 63 (2011). However, a posttermination and postadoption visitation order is unwarranted where "the child has formed strong, nurturing bonds with [her] pre-adoptive family, and there is little or no evidence of a significant, existing bond with the biological parent." Adoption of Vito, 431 Mass. 550, 563 (2000). Such is the case here.
Kay has been in the care of the maternal grandmother (the preadoptive parent) for essentially her entire life; this is the only home that she has ever known and, not surprisingly, she has a strong bond with the maternal grandmother. She has never lived with her father, nor has she been in his unsupervised care for any length of time. The judge's findings acknowledge the father's essentially consistent weekly visits with Kay, his appropriateness during the visits, and the inquiries he made at visits about her development. There is no doubt that the father loves Kay. However, that fact is not our only consideration in determining what is best for her. The judge here concluded that no evidence was presented, other than the successful visits, establishing a significant bond between the father and Kay, "or that irreparable harm might befall [Kay] if this court does not order post-termination/post-adoption visitation with father. Given the child's young age and the hostility father demonstrated towards maternal grandmother, the court [could] not find that a continuation of limited contact between [Kay] and her father [was] currently in [Kay]'s best interest."
"The purpose of [postadoption and posttermination] contact is not to strengthen the bonds between the child and [her] biological mother or father, but to assist the child as [she] negotiates, often at a very young age, the tortuous path from one family to another." Id. at 564-565. Given Kay's strong bond with the maternal grandmother, and lack of a significant bond with the father (in addition to the hostility he harbors for the maternal grandmother), we are satisfied that the judge did not abuse his discretion in declining to order posttermination and postadoption visitation.
Decree affirmed.