Opinion
14-P-379
04-07-2015
ADOPTION OF ALDEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father of the child, Alden, appeals from a Juvenile Court decree terminating the father's parental rights (as well as those of Alden's mother), approving a plan for Alden's adoption, and ordering that both the father and the mother may have limited posttermination and postadoption visitation with Alden. For the following reasons, we affirm.
The mother has not appealed.
The order for postadoption visitation is subject to final approval by the judge presiding over any petition for adoption
B a c k ground. Alden was born in May, 2010. At the time of his birth, the father was present but did not acknowledge paternity. He nevertheless held himself out as Alden's father until February, 2011, when he refused to participate in any service plans until paternity was established. In September, 2011, after paternity testing, he was adjudicated Alden's father.
The child was three years old at the time of trial and would now be approximately five years old.
When Alden was born, testing revealed that he had been exposed to marijuana; however, he did not come into the custody of the Department of Children and Families (department) until he was eight months old, at which time he was placed in foster care. The reasons for removal were that he had no stable housing, and was suffering from nutritional and medical neglect. Furthermore, prior to removal, Alden was directly exposed to domestic violence perpetrated by the father on the mother. Such domestic violence continued after Alden was removed. At trial, the father denied that any incidents of domestic violence were harmful to the child.
The mother reported that, in one incident, the father dragged her across the room with Alden in her arms.
In one episode, the father was arrested for assault and battery on the mother. The father also was the subject of two restraining orders obtained by his former wife.
Alden exhibited numerous health issues and troubling behaviors when first placed in foster care. However, in April, 2012, he was placed in a preadoptive home where he has since remained and made great strides. By the time of trial, he was reported to be thriving and meeting all developmental milestones.
On May 21, 2012, both parents stipulated that they were unfit, that Alden was in need of care and protection, that the department would have permanent custody of Alden until further order of the court, and that there was sufficient evidence to support the termination of their parental rights, as of that time. In order to provide them with the opportunity to demonstrate improvement, the stipulation provided that no further steps would be taken toward termination for six months. See Adoption of Carlos, 413 Mass. 339, 350-351 (1992).
Thereafter, the father was provided with a service plan that was designed, among other things, to address his history of domestic violence, ongoing concerns about drug use, and his prolonged inability to maintain a stable home. Seven months later, on December 10, 2012, trial commenced and continued intermittently until April 5, 2013. The evidence later was reopened to obtain updated evidence from a court investigator, and the decree entered on June 10, 2013.
Discussion. The judge was well-entitled to conclude that, in the intervening period since his stipulation, the father had shown no substantial, material improvement in the circumstances that led to the abuse and neglect of Alden. During this interval, the father failed to comply with his service plan in critical respects. He missed three required drug screens, he failed to commence individual therapy by the time of trial, and, during a mandatory psychological evaluation, he did not disclose his history of domestic violence with the mother and misrepresented that he was receiving individual therapy. Most significantly, the father made no progress relative to obtaining employment or making realistic plans for caring for Alden.
At the time of trial, the father had been unemployed for the past ten years without explanation. He did not receive public benefits, and, although he claimed to have been supported by his family, there was ample support in the record for the judge's skepticism that this was the case. The father testified that if Alden were returned to his care, he would obtain employment, and that his sixteen year old child from another marriage would provide child care even though she was a full-time student. Alternatively, the father suggested that an unknown woman named "Felicia" (whose last name the father did not know) could be the child care provider. On this implausible and impractical state of affairs, the judge was entitled to conclude that the father remained incapable of assuming parental responsibility for Alden. See Adoption of Paula, 420 Mass. 716, 731 (1995).
The father challenges eight of the judge's extensive findings of fact. Because the challenged findings are largely the product of the judge's weighing of the evidence and credibility determinations regarding witnesses, we will not disturb them. See Adoption of Don, 435 Mass. 158, 166 (2001). There is an inaccuracy in finding no. 75. The judge wrote that "[f]ather maintained that his family sends him upwards of $2500.00 per month on which to live," while the transcript reveals that the father stated that his family had given him about $2,500 over three months. However, this discrepancy is "not central to the ultimate conclusion of unfitness." Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). The judge explicitly discredited any of the testimony of the father and his family that the father was receiving money in this fashion.
Insofar as the father argues that termination of his parental rights was not in the best interests of Alden, we discern no abuse of discretion on the part of the judge. See Adoption of Ilona, 459 Mass. 53, 59 (2011). Given the father's lack of improvement between his stipulation and trial, as well as the department's original reasons for removing the child from his care, it was reasonable for the judge to assume that the father's unfitness was "reasonably likely to continue for a prolonged or indeterminate period," id. at 60, and that Alden should be freed for adoption by the preadoptive parents.
Decree affirmed.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 7, 2015.