Opinion
No. 15–P–1327.
06-02-2016
ADOPTION OF YOLANDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree of the Juvenile Court terminating her parental rights as to her daughter, Yolanda, and dispensing with her right to consent to Yolanda's adoption. The mother contends that the Department of Children and Families (DCF) failed to introduce clear and convincing evidence to support the entry of a termination decree, and that the trial judge failed to consider the mandatory factors for parental unfitness under G.L. c. 210, § 3(c ). She also argues that the judge erroneously determined that her guardianship plan would not be in the best interests of the child, and erroneously denied her discovery request for information about the preadoptive parents. We affirm.
At the commencement of the trial, Yolanda's father stipulated to his unfitness, “orally surrendered or terminated his right to further notice of proceedings regarding Yolanda,” and withdrew his objection to the Department of Children and Families' plan of adoption for Yolanda.
Background. Yolanda was born in December, 2012. At birth, Yolanda suffered from withdrawal symptoms due to the mother's use of THC and methadone while she was pregnant, and was treated with morphine for several days. DCF obtained custody of Yolanda on December 31, 2012, and placed her in her current preadoptive home on January 10, 2013. The mother stipulated that she was unavailable to parent the child, and thus was not seeking custody. However, the mother supported a plan for guardianship by the child's maternal grandmother and great-grandmother. The mother did not concede that it was in Yolanda's best interests to terminate her parental rights. A two-day trial was held in Juvenile Court. On December 16, 2014, the judge determined that the mother is currently unfit to assume parental responsibility for Yolanda; that said unfitness is likely to continue into the indefinite future to a near certitude; and that the best interests of Yolanda would be best served by a termination of the mother's parental rights. The mother filed a timely notice of appeal.
Discussion. a. Standard of review. “Termination of parental rights may occur only after a judge determines that a parent is unfit and that termination is in the child's best interest .” Adoption of Malik, 84 Mass.App.Ct. 436, 438 (2013). “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). “The standard for parental unfitness and the standard for termination are not separate and distinct, but reflect different degrees of emphasis on the same factors.” Adoption of Nancy, 443 Mass. 512, 515 (2005) (quotation omitted). Accordingly, we look to the judge's findings.
When reviewing the judge's findings, we apply the following principles:
“The judge's findings must be left undisturbed absent a showing that they are clearly erroneous. Moreover, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference. In care and protection proceedings, subsidiary evidentiary findings of fact only need to be proven by a fair preponderance of the evidence. When all of these subsidiary facts are taken together, they must establish parental unfitness by clear and convincing evidence. Parental unfitness must be proven by clear and convincing evidence in both care and protection cases and in proceedings to dispense with consent to adoption under G.L. c. 210, § 3.”
Adoption of Warren, 44 Mass.App.Ct. 620, 625 (1998) (citations and quotations omitted).
b. Sufficiency of evidence and findings. General Laws c. 210, § 3(c), as amended by St.1999, c. 3, § 17, enumerates fourteen nonexclusive factors that a judge “shall consider, without limitation,” in making a determination of parental unfitness. See Adoption of Daniel, 58 Mass.App.Ct. 195, 201 (2003). The mother argues that the judge ignored this clear statutory requirement, thus rendering the decision invalid. She further argues that DCF did not present clear and convincing evidence of her unfitness. We disagree.
The judge's twenty-seven pages of findings reveal, inter alia, the mother's longstanding and ongoing history of substance abuse “that she has failed to successfully address”; substance abuse during her pregnancy with Yolanda; history of mental illness; repeated history of threatening and abusive behavior to her immediate family members including the father, the grandmother, and the great-grandmother; consistent failure to avail herself of DCF-provided opportunities to develop a relationship with Yolanda; and threatening behavior toward DCF social workers during the pendency of this case. Furthermore, the judge found that the mother had lived with a level three sex offender, pill addicts, and crack users, and has had relationships marred by physical altercations and domestic violence. The judge concluded that Yolanda “does not have a significant relationship with her mother that would rise to the level of a significant bond.” The judge also found that the grandmother is afraid of the mother, does not have a clear understanding of the mother's substance abuse issues, and did not demonstrate that she has the current capacity to set limits with the mother were she (the grandmother) to become Yolanda's guardian. The grandmother believes that the mother was traumatized, and has not received the help that she needs. The judge's subsidiary findings of fact are supported in the record, and satisfy the applicable preponderance of the evidence standard. See Adoption of Daniel, supra (finding adequate proof of parental unfitness and declining to engage in “a factor-by-factor analysis of the judge's conclusions and the mother's objections thereto, many of which ... constitute mere disagreement with the judge's credibility determinations or the weight the judge gave to certain evidence”).
The judge found that in 2004, the mother “became addicted to narcotic medication and ate Percocet and OxyContin, in her words, ‘like candy.’ Mother has used heroin on a few occasions with her uncle and cousins when she could not obtain pills. Mother has also used Ecstasy and has described it as her ‘love.’ “ At birth, Yolanda suffered from withdrawal symptoms due to the mother's use of THC and methadone while she was pregnant. There was evidence that on the first day of the trial, the mother tested positive for marijuana.
The record also reflects that the mother failed to provide requested information to DCF regarding drug screens and proof of mental health and substance abuse treatment.
The mother was psychiatrically hospitalized in 2011, and has been diagnosed with PTSD, ADHD, and anxiety.
For example, on March 25, 2014, the father went to his car and found, pinned to his windshield, a picture of the mother pointing what appeared to be a gun toward the camera. Additionally, the mother has verbally threatened to stab the father, post personal pictures to his friends on Facebook, and “ruin him.”
The judge found that the mother “has been physically abusive to [the great-grandmother] and has left scars and bruises on her body.” The great-grandmother and the mother “were estranged for a long time and just recently began talking again.”
The judge found that the mother missed a majority of visits with Yolanda and missed a majority of office visits with the DCF social worker for various purported reasons, including: she was ill; she was pregnant; she lacked transportation or money for the bus; and walking in the winter was not healthy for her. She also canceled visits because she did not want to walk in the rain.
In addition to threatening a social worker, in February of 2014, the mother had, on her computer screen, a picture of the DCF adoption unit supervisor with her son, which she had copied from Facebook.
Moreover, the judge's subsidiary findings and the trial record support her ultimate findings, by clear and convincing evidence, that the mother “is currently unfit to assume parental responsibility for [Yolanda],” that “said unfitness is likely to continue into the indefinite future to a near certitude,” that “the best interest of [Yolanda] would be best served by a termination of parental rights of [the mother],” and that the plan of adoption propounded by DCF serves the best interests of Yolanda. While the judge should have related her specific findings to the enumerated factors under G.L. c. 210, § 3(c ), with particularity, there is no requirement that the judge delineate each and every factor in a pro forma manner. See Adoption of Larry, 434 Mass. 456, 470 (2001). Our review of the entire record satisfies us that the judge focused on the critical portions of the evidence, and made accurate findings thereon. There was clear and convincing evidence to support the judge's conclusions, including the determination that the mother's unfitness is likely to continue into the indefinite future to a near certitude. See Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998) (judge “could use past conduct, medical history, and present events to predict future ability and performance as a parent”). See also Commonwealth v. Colon, 33 Mass.App.Ct. 304, 308 (1992) (“[I]t is presumed that the judge as trier of fact applies correct legal principles”).
Despite our conclusion, we reiterate that “[o]rdinarily a judge should both reference the statutory requirements and explain their impact.” Custody of Kali, 439 Mass. 834, 845 (2003). This approach further clarifies the careful and thorough analysis that should be performed by a judge when such important rights are at stake, which promotes confidence and trust in the judicial system.
Similarly, the judge did not abuse her discretion in approving DCF's adoption plan. The judge had ample evidence to conclude that DCF's plan was in the best interests of the child, who at the time of trial, had been residing with her preadoptive family almost her entire life. See Adoption of Frederick, 405 Mass. 1, 7 (1989) (separation between parent and child among factors judge may take into consideration). The judge found the preadoptive home to be a calm environment with a family prepared to make a lifetime commitment to Yolanda. DCF had no concerns regarding the care and well-being of Yolanda in the care of the preadoptive parents. By contrast, the judge's detailed findings regarding the guardianship plan involving the grandmother and great-grandmother as guardians, the details of which need not be restated here, painted a far different picture. The evidence supported the judge's findings that the grandmother did not have the current capacity to set limits with the mother and that “the only basis for [the grandmother's and the great-grandmother's] petition is the apparent inevitability of this Court finding Mother unable to parent and the possibility that the child Yolanda will be adopted outside the family.”
c. Discovery of home finder file. The mother claims that the judge deprived her “of her due process right to effective assistance of counsel” by denying her motion to compel the production of the DCF “home finder records” regarding the preadoptive parents. We disagree. The judge properly held a hearing on the mother's motion to compel production of documents, and balanced the mother's request with confidentiality concerns and the public interest in protecting the privacy of the preadoptive parents. The judge determined that the request was a “fishing expedition” to attack the appropriateness of the DCF plan for the child, that “[t]here has been no threshold showing by affidavit or sworn testimony that there is something contained within the home finding records that would warrant a release of the records,” and, ultimately, that the records were neither relevant nor necessary to the mother's presentation of her case. We discern no abuse of discretion in the judge's thoughtful findings and order. See Cardone v. Boston Regional Med. Center, Inc., 60 Mass.App.Ct. 179, 191 (2003), quoting from Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987) (“The conduct and scope of discovery is within the sound discretion of the judge”).
Although not specifically stated in the judge's findings, the mother's history of threatening and abusive behavior, evident in the trial record, further weighed in favor of the judge's decision. See notes 6, 7, and 9, supra.
The judge also determined that DCF, through its regulations, maintains home finder records separately from the social service file that the mother is entitled to receive. Compare 102 Code Mass. Regs. § 5.13(3) (1998) (regulations governing record keeping requirements for foster and adoptive parent records) with 102 Code Mass. Regs. § 5.13(2) (1998) (regulations governing record keeping requirements for children's records). The judge also concluded that the home finder records were confidential and privileged under 102 Code Mass. Regs. § 5.13(1)(e) (1998), and protected under G.L. c. 210, §§ 5C, 5D, and 6C. Where we conclude that the judge properly exercised her discretion in denying the motion to compel, we decline to address the judge's rulings as to privilege and confidentiality.
Decree affirmed.