Opinion
11-P-1075
12-14-2011
CARE AND PROTECTION OF YEYGEMIA (and two companion cases ).
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
On appeal from an adjudication that Yeygemia is in need of care and protection, and that also assigned guardianship of Yeygemia to the maternal aunt and continued guardianship of Sarah in the maternal aunt, the father makes two arguments. First, he argues that the finding that he is unfit was not supported by clear and convincing evidence. Second, he argues that the trial judge abused her discretion when she failed to enter an order for visitation between the father and his children. We affirm.
Unfitness. The father argues that the Department of Children and Families (DCF) failed to prove his parental unfitness by clear and convincing evidence. We disagree, since the evidence at trial supported the judge's subsidiary findings of fact that the father had unresolved substance abuse issues, had failed to obtain stable and appropriate housing, and had failed to comply with the service plan prescribed by DCF.
In care and protection cases, subsidiary factual findings need only be supported by a 'preponderance of the evidence,' as long as 'taken together,' they demonstrate parental unfitness 'by clear and convincing evidence.' Care & Protection of Laura, 414 Mass. 788, 793 (1993). See Adoption of Quentin, 424 Mass. 882, 886 (1997). There is a common law presumption in favor of keeping children with their biological parents, Petition of the Dept. of Pub. Welfare to Dispense With Consent to Adoption, 383 Mass. 573, 587 (1981), but guardianship may be awarded to someone other than the parent when the evidence 'clearly and convincingly demonstrate[s] the [parent's] unfitness to further the best interests of his child.' Guardianship of Yushiko, 50 Mass. App. Ct. 157, 161 (2000).
Here, the children's mother stipulated in 2009 that she was unfit as to Yeygemia and that Yeygemia was in need of care and protection. It appears that the mother had already acquiesced to the maternal aunt having guardianship of Sarah. The mother is not involved in this appeal.
A number of factors can contribute to a finding of unfitness, including '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). Drug use alone is not enough to establish parental unfitness; substandard care of the children is required. Adoption of Katharine, 42 Mass. App. Ct. 25, 33-34 (1997). Where drug use contributes to a parent's inability to provide appropriate care for the child, however, it is enough to support a finding of unfitness. Ibid.
The judge in the present case did not credit the father's testimony that he had housing other than the Soldier On program (a residential substance abuse treatment program), and found that he had 'failed to maintain his sobriety and a consistent residence in order to provide a safe and stable environment for his children.' The judge was entitled not to credit the father's testimony regarding his housing and his progress in recovering from his substance abuse issues. Assessing the credibility of witnesses is within the judge's province. Custody of Eleanor, 414 Mass. 795, 799-800 (1993). See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984) ('[i]t is within the judge's discretion to evaluate the credibility of witnesses'). The father's ongoing substance abuse issues and his failure to secure appropriate housing furnished sufficient grounds to support a finding of unfitness.
The judge was also entitled to consider as a factor the father's failure to comply with various aspects of his DCF-prescribed service plans. See Custody of Michel, 28 Mass. App. Ct. 260, 270 (1990).
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Visitation order. The father and the children argue that the judge erred in failing to order visitation. At the time of trial, the maternal aunt indicated an intention to provide for visits between the father and his children 'once or twice a week,' for 'however long he wants to be with the girls.' Neither the father nor children cite any authority requiring the judge to issue a specific order requiring visitation in these circumstances. Rather, whether to issue such an order is squarely within the judge's discretion. See Guardianship of Estelle, 70 Mass. App. Ct. 575, 583 n.6 (2007) (noting that the 'judge, of course, would have discretion to provide for reasonable visitation by the father [which the uncle and aunt have never refused in any event]'). We will not conclude that a trial judge abused her discretion unless 'no conscientious judge, acting intelligently, could honestly have' reached such a decision. Care & Protection of Georgette, 54 Mass. App. Ct. 778, 787 (2002).
The children's argument that visitation rights should not be terminated unless visits would 'harm the child or the public welfare' is inapposite. Nothing in the judge's order purports to terminate or otherwise limit the father's visitation rights. The father's residual parental rights remain undisturbed, even after losing custody of his children and having a guardian appointed for them. Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 573 (2009) ('In the context of a care and protection case that does not result in the termination of parental rights, even if the plan is for a guardianship, the parents retain residual rights'). Among these residual parental rights are both visitation and the right to petition the court for a 'review and redetermination' of the child's needs. 'Biological parents are entitled to visitation with their child so long as the visits are not harmful to 'the welfare of the child and the public interest." Adoption of Rhona, 57 Mass. App. Ct. 479, 488 (2003), quoting from G. L. c. 119, § 35. See Custody of a Minor (No. 2), 392 Mass. 719, 726 (1984). A child's parents 'may petition the court not more than once every 6 months for a review and redetermination of the current needs of such child whose case has come before the court.' G. L. c. 119, § 26(c), as amended by St. 2008, c. 176, § 84.
In light of the fact that the father currently experiences no impediment to visitation, and has a continuing right to seek a visitation order from the court if such impediment arises, we see no reason to disturb the judge's decision.
In CP09S0087, the judgment is affirmed.
In GU08S0069, the order denying the father's petition to remove guardian is affirmed.
In GU10S0013, the decree is affirmed.
By the Court (Green, Sikora & Wolohojian, JJ.),