Opinion
No. 15–P–1591.
06-23-2016
ADOPTION OF UMAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial, a Juvenile Court judge found the mother and the father unfit to parent the child, terminated each of their parental rights, and approved the adoption plan of the Department of Children and Families (DCF). See G.L. c. 119, § 26 ; G.L. c. 210, § 3. The mother and the father appeal, arguing that because any unfitness was temporary, the terminations were premature. The mother also claims that her trial counsel was ineffective, and the father claims that the judge abused his discretion in declining to order posttermination or postadoption visitation. We affirm.
1. Background. The mother and the father are the parents of Umar, born in May, 2014. DCF filed a care and protection petition seeking custody of the child when he was eleven days old. See G.L. c. 119, § 24. DCF was awarded temporary custody and the child has remained in DCF custody throughout the proceedings. Neither parent appeared for the trial. The judge took evidence and left the matter open for one week to allow the parents to appear, present a case, or recall any witnesses for further cross-examination. Neither parent appeared or presented any additional evidence. The judge found that each parent was unfit, terminated their parental rights, and approved DCF's plan for adoption.
2. The parents' unfitness. “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). As it is within the purview of the judge to weigh the evidence, assess the credibility of witnesses, and, accordingly, make findings of fact, the judge's subsidiary findings will remain undisturbed unless shown to be clearly erroneous. See Adoption of Nancy, 443 Mass. 512, 515 (2005). Here, the judge issued comprehensive findings of fact and conclusions of law detailing the myriad of factors supporting his decision.
The mother has a history with DCF beginning in 2000. The mother has three other children, none of whom are in her care. The youngest of those three suffers from fetal alcohol syndrome and has multiple medical issues. When pregnant with Umar, the mother did not receive prenatal care until almost five months into the pregnancy, and then did not follow medical advice, including a suggestion that she be hospitalized. Umar was born eight weeks premature and had physical conditions that caused concern that he may also suffer from fetal alcohol syndrome. “The specialized needs of a particular child when combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness.” Care & Protection of Amalie, 69 Mass.App.Ct. 813, 818 (2007), quoting from Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. 120, 125 (1984).
The mother also suffered a miscarriage due to neonatal distress in 2012.
He had mild microcephaly, slight hypertelorism, a thin upper lip, syndactyly, Mongolian spots, hypospadias, and hydronephrosis.
DCF created service plans for both parents, which neither signed. The mother met with DCF sporadically, but not monthly as requested. The father failed to maintain contact with DCF. The parents failed to meet with the court investigator. “Evidence of parents' refusal to cooperate with [DCF], including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness.” Adoption of Rhona, 63 Mass.App.Ct. 117, 126 (2005).
The service plan provided that the mother was to complete substance abuse treatment and therapy. She began that process but was discharged from a program for inconsistent attendance. DCF also recommended that the mother participate in a domestic violence program. She did so, but only many months after it was first recommended. The father similarly did not comply with any of his identified tasks, most notably a batterer's intervention program. Substance abuse and violence within a family are both relevant to a judge's determination of parental unfitness. See Adoption of Hugo, 428 Mass. 219, 221 n. 4 (1998) ; Adoption of Gillian, 63 Mass.App.Ct. 398, 404 n. 6 (2005).
The father did complete a twelve-week outpatient substance abuse program, but there was no evidence of aftercare or ongoing therapy.
The mother's housing throughout the proceedings was unstable. When Umar was born, the parties were living together in a shelter. The parents' placement at the shelter was jeopardized when the police were called due to an altercation between the parents. Although the mother was permitted to remain at the shelter, she chose to leave to be with the father. See Care & Protection of Three Minors, 392 Mass. 704, 713 & n. 11 (1994) (inability to provide clean, healthy, and stable home was appropriate factor in finding parent unfit).
The judge's findings in this regard are unrelated to the mother's poverty, despite her assertions to the contrary. The record reveals that the mother's frequent moves were largely caused by her own poor judgment, rather than her financial situation.
Neither parent was consistent in visits with Umar. The mother last saw him in October of 2014. Among other things, indifference toward a child may constitute unfitness. Guardianship of a Minor, 1 Mass.App.Ct. 392, 396 (1973). See Adoption of Darla, 56 Mass.App.Ct. 519, 522 (2002) (failure to visit child was relevant to unfitness).
Both parents have significant criminal records. The mother's record has fifty entries, including drug crimes and crimes of violence. At the time of trial, there was an outstanding warrant for the mother. The father's record dates back over twenty years and includes crimes of violence and drug crimes. He was incarcerated for domestic assault and battery charges on the mother and was also periodically incarcerated during these proceedings. See Adoption of Nicole, 40 Mass.App.Ct. 259, 262–263 (1996) ; Care & Protection of Quinn, 54 Mass.App.Ct. 117, 125–126 (2002).
The findings of unfitness and decisions to terminate each parent's rights are based on an aggregate of factors, all amply supported by the record.
Both parents argue that their current unfitness would have been temporary if DCF had provided services. This argument was not raised in the trial court and is therefore waived. See Adoption of Mary, 414 Mass. 705, 712 (1993).
3. Ineffective assistance of counsel. The mother, who did not appear at trial, contends that her attorney was ineffective. This claim is raised for the first time on appeal, and, notably absent from the record is an affidavit from trial counsel. As in the criminal context, the preferred method for parents raising a claim of ineffective assistance of counsel is through a motion for new trial. See Care & Protection of Stephen, 401 Mass. 144, 150 (1987) ; Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). A challenge “made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002).
Notwithstanding these procedural defects, the mother's claim fails under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974). First, the mother has failed to show that trial counsel's performance was deficient. Trial counsel's failure to request a continuance did not constitute ineffective assistance because such a request had no merit and likely would have been denied. Counsel is not ineffective for failing to file a motion with little likelihood of success. Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). The mother also overlooks the judge's decision to keep the evidence open for one week to allow her to appear and present her case. The mother's complaints that trial counsel failed to object to certain evidentiary rulings are also unavailing. Second, no prejudice has been shown, and, in light of the overwhelming evidence of the mother's unfitness, it is unlikely that she would have otherwise prevailed. See Care & Protection of Georgette, 439 Mass. 28, 34–35 (2003).
4. Posttermination and postadoption visitation. The father claims that it was error to deny his request for posttermination contact with Umar. Upon a finding of unfitness, a judge has broad discretion to determine what is in the child's best interests with respect to visitation with biological family members. Adoption of Rico, 453 Mass. 749, 756 (2009). The father failed to maintain a relationship with Umar. He was inconsistent with his visits and did not show up for visits scheduled at his request. An order for posttermination or postadoption contact between a biological parent and a child must be based solely on the child's interests, and not on any right of the parent. Adoption of Terrence, 57 Mass.App.Ct. 832, 839 (2003). Here, where there was no personal relationship between the father and Umar, the judge did not abuse his discretion in declining to order visitation.
Decrees affirmed.