Opinion
16-P-1671
07-25-2017
ADOPTION OF RAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree issued by a judge of the Juvenile Court terminating his parental rights to his son, Rand, placing the child into the care of the Department of Children and Families (DCF), and approving a plan for adoption of the child. The father argues (1) that the judge's findings are insufficient to establish the father's unfitness by clear and convincing evidence; and (2) that the judge erred by failing to adequately consider the DCF adoption plan when determining the best interests of the child. We affirm.
The mother stipulated that she is currently unfit to parent the child and agreed to the adoption plan. She consented to the termination of her parental rights and is not involved in this appeal.
Termination decision. The father argues that the judge's findings are insufficient to establish his unfitness by clear and convincing evidence. He claims that the findings are too sparse and lack the requisite specificity to reach the ultimate conclusion to terminate his parental rights.
"To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). General Laws c. 210, § 3(c ), provides a nonexhaustive list of factors to be weighed in determining the fitness of a parent.
On review of a judge's decision to terminate parental rights, we give substantial deference to the trial 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, 459 Mass. 53, 59 (2011). "A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, 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), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).
Here, there was an abundance of evidence warranting the conclusion that the father was unfit to parent the child and would remain unfit in the future. First, the father's history of excessive alcohol consumption supports the judge's determination that the father is unfit. Although excessive alcohol consumption by a parent, without more, is not necessarily dispositive of unfitness, see Care & Protection of Frank, 409 Mass. 492, 494 (1991), in this case the examples detailed in the judge's findings demonstrate the link between the father's alcohol use, his inability to engage in meaningful treatment of his problem, and consequent harm to the child. Notably, the father arrived to one of the few scheduled visits with the child that the father actually attended with a noticeable odor of alcohol. A social worker was compelled to end the visit because she was "overc[o]me with the smell of alcohol" upon meeting the father, who was holding the child on his lap. The father testified that the night before the visit he consumed thirty beers and drank one-quarter to one-half a bottle of "moonshine."
The father's excessive alcohol consumption exacerbates his violent outbursts, which have resulted in multiple arrests. On one occasion when the father was intoxicated, he threw the child's car seat and stroller into a river, and then, in an attempt to strike the mother, the father hit the child in the face. The evidence at trial revealed numerous incidents further supporting the judge's finding that the father has "violent tendencies mixed with his serious issues surrounding alcohol." The father (1) tried to kick in an elderly, handicapped woman's car door and then attempted to light the car on fire; (2) was charged with malicious destruction of property after being caught slashing the tires of his neighbor's car; (3) referred to a neighbor by a racial slur; (4) destroyed a trash can and a stop sign at his apartment complex; (5) destroyed a baby's crib in the mother's apartment; and (6) destroyed his own car with a baseball bat after he and the mother had a verbal argument about the child.
Second, the judge found that the father did not comply with the DCF service plan, failed to follow through consistently on scheduled supervised visits with the child, failed to complete a domestic violence prevention program, and failed to adhere to court-ordered probation. The father also was not available for a home visit by a social worker that had been scheduled so that the father could show he had a suitable living space for the child. "Evidence such as the failure of the parents to keep a stable home environment for the children, the refusal of the parents to maintain service plans, visitation schedules, and counseling programs designed to strength the family unit are relevant to the determination of unfitness." Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (father's lack of cooperation with DCF was "relevant to the determination of unfitness").
Sobriety when interacting with the child was a requirement of the father's DCF service plan.
Third, the judge found that the father's attempts to address his excessive alcohol consumption at the eve of trial were unlikely to continue and that his excessive alcohol consumption was reasonably likely to continue for a prolonged and indeterminate period of time. In this regard, the father acknowledged that he was still drinking heavily in the days leading up to the trial and had not attended Alcoholics Anonymous meetings in the months leading up to trial. The father's contradictory and minimalizing accounts of his alcohol use—for example, the father claimed to have drunk alcohol only once in December at the beginning of the month, and then six days later admitted that he had been drinking in excess of twelve beers a day most days of the week throughout much of December—amply supported the judge's skepticism about the chances of success of the father's belated efforts to address the underlying issue. See Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012) ("[G]iven the father's long-standing patterns of drug abuse, absence from [the child's] life, and incarceration for criminal conduct, the judge reasonably concluded that his unfitness would continue into the future, and therefore would support the termination of his rights as being in [the child's] best interests"). See also Adoption of Nancy, 443 Mass. 512, 516 (2005) (parent's "inability or unwillingness to attend alcohol treatment programs" supported finding of unfitness).
The judge found that the child had been in DCF's care for the past twenty-four months and there was no reasonable expectation that the father would be able to provide proper care if the child was returned to his custody. All of the father's shortcomings, considered together, show by clear and convincing evidence that the father was unfit, that his unfitness was likely to continue into the foreseeable future, and that termination of his parental rights was in the child's best interests. See Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979). We discern no abuse of discretion.
DCF adoption plan. The father argues that the case should be remanded because the judge failed to consider the adoption plan proffered by DCF. See Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001). We disagree.
The father waived his right to challenge the DCF adoption plan. At trial, during direct examination of a social worker assigned to the case, the father's counsel stated that it would be helpful to have a copy of the social worker's preadoptive placement home study. DCF maintained its earlier position taken with the mother and did not make the preadoption plan available to the father, instead relying on its G.L.c. 210 plan. The father neither objected nor pressed any concerns about the adoption plan, other than his opposition to termination of his parental rights. Therefore, "[his] belated challenge to the plan is not properly before the court." Care & Protection of Valerie, 403 Mass. 317, 319 (1988).
DCF had previously stated to the mother's counsel that it would not turn over the home study without a court order and very specific limitations on who would be able to view the study.
In any event, it is evident that the judge implicitly considered the DCF adoption plan. The judge heard testimony about the child's well-being at the preadoptive home, the family unit make-up, and the preadoptive parents' willingness to adopt the child as well as his two older half-sisters. Although a more detailed consideration in the judge's findings may have been beneficial, see Adoption of Dora, supra at 474-475, reversal is not warranted solely on this ground. "The adoption plan need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement ‘so that the judge may properly evaluate the suitability of the department's proposal.’ " Adoption of Willow, 433 Mass. 636, 652–653 (2001), quoting from Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). Under the circumstances of this case, the judge's consideration of the DCF adoption plan was adequate. There was no abuse of discretion or error of law.
The sisters are not a part of this proceeding.
Decree affirmed.