Opinion
11-P-1422
05-02-2012
ADOPTION OF TYRIK.
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
A Probate and Family Court judge issued a decree terminating the father's parental rights to his child, dismissing his paternity action, and declaring the child's preadoptive parents to be the child's de facto parents. We affirm.
Background. The child's mother, an American, met the child's father, a resident of Dominica, when she was attending medical school in Dominica. She became pregnant and the two planned to marry and raise the child together. The father abandoned the mother three days before the planned wedding, when the mother was eight months pregnant. Afterwards, the father did not contact the mother, inquire about her pregnancy, or wish to be notified when the child was born. The child was born in Massachusetts on January 27, 2007, and his mother voluntarily surrendered him to the care and custody of LDS Services (LDS), a licensed adoption agency, on February 1, 2007. On that same date, LDS placed the child with his preadoptive parents, with whom he still resides today. The child's father never consented to the adoption.
The father has made little effort to make contact with the child. He was denied a visa to the United States in 2006, and has not reapplied. He claims that his indigency prevents him from obtaining a visa. It appears, however, that an indigent person may obtain a visa under certain circumstances, options that he never took advantage of or extensively explored.
His claim of indigency rings somewhat hollow given that he works full time as a landscaper, lives rent free in a house he and his wife apparently own, and his wife works full time as a high school teacher.
The father appeals, claiming a number of issues, the most significant of which is the insufficiency of the evidence, to which we now turn.
Discussion. To dispense with parental consent to adoption, the judge must determine whether the parent is 'currently fit to further the welfare and best interests of the child.' Adoption of Frederick, 405 Mass. 1, 4 (1989), quoting from Bezio v. Patenaude, 381 Mass. 563, 576 (1980). '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). In order to grant a petition that terminates a biological parent's legal rights, 'the judge must find by clear and convincing evidence that [the] parent is presently unfit to provide for the welfare and best interests of the child.' Id. at 710.
General Law c. 210, § 3(c), sets forth fourteen factors to be considered by the judge in determining parental unfitness with regard to termination of parental rights cases. Those factors include 'the lengthy absence of a parent,' G. L. c. 210, § 3(c)(vii), and 'the willful failure to visit the child.' G. L. c. 210, § 3(c)(x).
We discern no error on the part of the trial judge. The child has lived with his preadoptive family since he was a few days old and has formed a strong attachment with them. He has never met his biological father, never seen a picture of him, and has never spoken to him. The father has never established a relationship with the child, nor has he ever seriously attempted to establish a relationship with him. Removing the child from his preadoptive family and placing him with a person he has never met would likely cause serious psychological harm, an issue the father has failed to adequately recognize. In these circumstances, the special needs of the child, if he were to be removed, are substantial, which the father barely acknowledges.
In addition, there was sufficient evidence to show that the father has wilfully failed to visit the child. After the child was placed with his preadoptive parents, the father did not contact LDS to offer support and did not request to contact or see the child. He never requested pictures of the child or sought to be allowed to send pictures of himself to the child. He never asked about the child's health and development. Since February 1, 2008, the child's father has failed to communicate with the child's preadoptive parents except for an initial electronic mail (email) on June 1, 2008, a Christmas gift sent in December, 2008, an email on May 10, 2009, and a telephone conference on May 31, 2009.
Given all of these factors, we cannot say that the judge erred in terminating the father's parental rights.
Conclusion. Given the father's wilful failure to involve himself in the life of the child, with whom he has no bond whatsoever, and no appreciation of the disruption the child would suffer if he were to be removed from the only 'parents' he has known since birth, the conclusion rendered by the trial judge is amply supported.
We need not dwell on the father's other arguments, all of which were considered and determined to be without merit for substantially the reasons in the briefs of the appellees.
Decree affirmed.
By the Court (Rapoza, C.J., Kantrowitz & Kafker, JJ.),