Opinion
11-P-600
11-18-2011
ADOPTION OF UNIQUA.
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
The father appeals from a decree of the Juvenile Court terminating his parental rights and dispensing with the need for parental consent to the adoption of his daughter. See G. L. c. 210, § 3. He argues the finding of his unfitness as a parent is not supported by clear and convincing evidence. He also argues that the Department of Children and Families (department) erred in relying on conclusions of its expert, James Kenney, and in preventing visitation without a court order. We affirm.
Before terminating parental rights, the judge must conclude by clear and convincing evidence that the parent is 'unfit' to provide for the welfare and best interests of the child. Adoption of Nancy, 443 Mass. 512, 515 (2005). If the parent is unfit, then the judge 'must determine whether . . . the child's best interests will be served by terminating the legal relation between parent and child.' Adoption of Ilona, 459 Mass. 53, 59 (2011). We give deference to a judge's 'assessment of the weight of the evidence and the credibility of the witnesses' and will leave the judge's findings 'undisturbed absent a showing that they are clearly erroneous.' Custody of Eleanor, 414 Mass. 795, 799 (1993). See Petition of the Dept. of Social Servs. To Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986); Adoption of Kimberly, 414 Mass. 526, 529 (1993).
We disagree with the father that there was a lack of clear and convincing evidence to support the ultimate finding of unfitness and determine that no 'mistake has been committed.' Custody of Eleanor, supra, quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). The judge set out 119 findings of fact and fifty-four conclusions of law. 'Each finding was adequately supported in the record.' Ibid. There was evidence that the father, fourteen months before he stepped forward to assert paternity, knew that the department had removed the child from the mother's custody. There was evidence that he knew what type of conditions she was living in prior to the department obtaining custody; he had a history of restraining orders against him from his previous girlfriends and children; three of his other daughters had been removed from his custody by the department; he had a history of blackouts which lasted anywhere from two to five minutes; he had anger management issues; and he was living in an unsanitary apartment, with individuals the names of whom he refused to provide to the department for CORI purposes, and that contained weapons within the reach of a small child. Furthermore, the father had given no indication of any solid plans to raise the child in the event she was placed with him. 'Taken together, these findings . . . prove clearly and convincingly that the [father is] . . . unfit to provide for the welfare and best interests of [the child].' Adoption of Quentin, 424 Mass. 882, 886 (1997).
The father also argues that the department abused its discretion when prohibiting visitation because it did not obtain a court order, and it used a sexual offender assessment that was later found by the judge to be unreliable. The department should have obtained a court order before eliminating visitation between the father and the child. See Custody of a Minor (No. 2), 392 Mass. 719, 725-726 (1984); G. L. c. 119, § 35. See also Adoption of Vito, 431 Mass. 550, 554 n.9 (2000). We do not agree, however, that the use of the sexual offender assessment so tainted the department's approach that it raises doubt that unfitness was supported by clear and convincing evidence. The father argues that because he was not allowed visitation, he had no opportunity to establish how well he could parent the child. The judge found that the department's decision to deny visitation was not arbitrary or capricious. Even though the department relied on Kenney's sexual offender assessment to deny visitation and to create a service plan, its decision was also based on other factors that the father could have eliminated or improved upon in order to facilitate visitation. For example, the father did not improve his living space, nor did he attend a majority of the seminars and programs within his service plan in an effort to demonstrate to the department that he was willing to do what was necessary to obtain visitation with the child. The department's obligation to work with the father was 'contingent upon [his] own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services.' Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001). In the end, the department should have obtained a court order prior to eliminating visitation. 'The proper focus of termination proceedings is the welfare of the child.' Adoption of Gregory, 434 Mass. 117, 121 (2001).
It should be noted that although the judge accepted James Kenney as an expert witness, the judge did not rely on Kenney's faulty assessment when determining the father was unfit.
The judge's findings taken together, prove clearly and convincingly that the father is currently unfit and that termination is in the best interest of the child. See Adoption of Quentin, supra.
There was also ample evidence presented at trial that the child is thriving in her current preadoptive placement, where she has been since June of 2007 with her younger sister.
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Decree affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),