Opinion
15-P-883
02-23-2016
ADOPTION OF DAVID (and a companion case).
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 mother appeals from decrees terminating her parental rights with respect to her sons, David and Peter, and dispensing with the need for her consent to their adoption. David appeals from the termination of the mother's parental rights as to him. The father of Peter appeals from the decree terminating his parental rights with respect to Peter. All three argue that evidence of parental unfitness was insufficient, and the mother and David argue that the judge failed properly to consider the mother's participation in parenting classes, her sobriety, and her maintenance of stable housing. We affirm.
David's father's parental rights were also terminated. He did not participate in the proceedings in the Juvenile Court and is not a party to this appeal.
Discussion. Following a nine-day trial which took place over the course of eight months, the judge made 292 findings of fact and twenty-one conclusions of law. We need not recount her findings, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). "Almost without exception, the [parties'] claims of error in these findings take issue with the judge's assessment of credibility and the weight of the evidence, to which we accord substantial deference." Adoption of Peggy, 436 Mass. 690, 702 (2001), cert. denied sub nom. S.T. v. Massachusetts Dept. of Social Servs., 537 U.S. 1020 (2002). "Only if there is clear error will we disturb [her] findings." Adoption of Arnold, 50 Mass. app Ct. 743, 750 (2001). Upon our review of 1,566 pages of transcripts and 600 pages of appendices, "[w]e see no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
The lengthy delay in resolution of this case "[i]s regrettable," Adoption of Don, 435 Mass. 158, 170 (2001), especially in light of these children's need for permanency. However, "[t]hroughout the trial, the judge showed a consistent concern with the need to expedite these proceedings," id. at 170 n.17, and we applaud her efforts.
The judge found that both boys witnessed domestic violence between the mother and Peter's father. "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Adoption of Vaughn, 422 Mass. 590, 599 (1996). The judge found that David and Peter "are each, at times, aggressive to an alarming degree," David "has some trouble regulating his behaviors and emotions[,] [h]e distrusts adults and their intentions," and "[h]e also has a high level of anxiety," while Peter "has aggressive behaviors and a need for structure above and beyond most children." Yet, Peter's father does not believe that his actions affected the boys and he "has not complied with [the] domestic violence treatment recommendations" made by the Department of Children and Families (DCF). Although David has "beg[u]n to develop a hard shell to protect against disappointment" as a result of his many placements and removals, he again had to be removed from the mother's care because she began a relationship with Michael (a pseudonym), who has a history of violence, and the mother was dishonest about it with DCF. She revoked her permission for DCF to speak to her service providers about her progress when she learned that DCF was asking about her relationship with Michael, and the judge found that "[h]er lack of truthfulness over her relationship . . . appears to be at play in her decision making." The mother's and Peter's father's lack of cooperation with DCF was "relevant to the determination of unfitness," Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005), and "[t]he judge properly could deduce [from Peter's father's denial of any impact and from the mother's involvement with Michael] that [they] had little comprehension of abuse and its effects, and would be unable to protect [the] children in the future." Adoption of Paula, 420 Mass. 716, 729 (1995). See Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005) ("Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children"). "Prior history . . . has prognostic value," Adoption of George, 27 Mass. App. Ct. 265, 268 (1989), and "[t]he judge did not have to wait for [further] injury to the children before concluding that [the mother and Peter's father] were unfit." Adoption of Inez, 428 Mass. 717, 721 (1999). "On this record, we see no error in the judge's finding [that] a pattern of violence and verbally abusive behavior . . . affected the children adversely," Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015), or in her conclusion that neither parent had "truly changed."
Specifically, the mother and Peter's father would yell and fist fight, and David witnessed one incident wherein Peter's father held scissors to the mother's throat.
"The effects of abuse on the child include, but are not limited to, 'the child is afraid of the abusive parent; the child is having problems with his or her performance at school; the child has exhibited regressive behavior; the child has problems with peer or family relationships; the child has been experiencing nightmares and sleep disturbances; the child has frightening memories from witnessing the abuse[;] the child exhibited extreme distress at the time of the incident from witnessing the abuse; or, the child has exhibited hostile or aggressive behavior toward others.'" K.A. v. T.R., 86 Mass. App. Ct. 554, 560 n.13 (2014), quoting from Commentary to § 12:05A of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (2014). See Probate and Family Court Form CJ-D 121 (2000) (listing same effects).
"[T]he record indicates [and the judge found] that the mother has considerable love for her children and they for her." Care & Protection of Three Minors, 392 Mass. 704, 712 (1984). However, "it also demonstrates a lack of [understanding and insight] on her part." Ibid. Although David has developed a "hard shell" and Peter attaches too quickly to foster parents and is "at high risk of having more problems with attachment" in the future because of his many placements and removals, the mother refuses to end or disclose more information about her relationship with Michael so that the boys might be returned to her care. Instead, she became pregnant with Michael's child; failed to tell the boys of her pregnancy even when, during a visit, David asked her why she was so "fat"; and "failed to anticipate the hurt that [the boys] might feel in learning that she had a new baby." David's behavior deteriorated significantly after that visit, to the point where, by the time the baby was born, he had to be removed from his preadoptive home. "[T]he mother was unable to handle both children [at visits], despite good intentions," Custody of Two Minors, 396 Mass. 610, 614 (1986), and, although she "had cooperated with many of the services offered by the department and other providers[,] [a]t no point . . . did it appear that she was near ready to resume full responsibility for her [sons], who were required, to their detriment, to remain in the limbo of foster care." Adoption of Paula, supra at 730. Peter's father chose to be incarcerated rather than comply with the terms of his probation after the DCF case had been pending for three years and "while the boys struggled in foster care," and this also meant that he was not in compliance with his service plan. The father "could not articulate a specific plan to meet [Peter's] needs," and the mother could not "formulate any realistic plan" by which she could care for a newborn and two emotionally and behaviorally challenged children. Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).
The mother's plan, that Michael would care for the children while she is working, is not realistic in light of his inability to drive. Newborn babies have many doctor's appointments, and David and Peter each see therapists and specialists regularly. There was no evidence that these services are within walking distance of the mother's and Michael's home. Additionally, Michael has physical disabilities, including an injured knee, which might make it difficult for him to manage the boys' physically aggressive behavior. The mother could not articulate a plan for protecting the newborn from Peter's physical aggression other than not letting them be alone together; she could not say whether David would be aggressive with the newborn; and she offered no insight into how she would manage the children's transition into her home when Peter had never met Michael and David knew Michael as the "mystery man" who had precipitated his removal once again from the mother's custody.
Whether parents are fit is a function of the childrens' needs, Petition of Boston Children's Serv. Assn. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 566, 567 (1985), and these children have serious emotional and developmental needs. The mother clearly does not understand or appreciate those needs, and Peter's father could not identify them. "[T]he judge [wa]s not required to grant the [mother and Peter's father] an indefinite opportunity for reform," Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012), and her findings support her ultimate conclusion that the mother's and Peter's father's "character[s], temperament[s], conduct, and capacity to provide for the child[ren] in the same context with the child[ren]'s particular needs, affections, and age[s]" justify termination of their respective parental rights. Adoption of Mary, 414 Mass. 705, 711 (1993). It is clear from the record that the mother's and Peter's father's "inability to understand, empathize with, and appropriately respond to [the boys'] emotional and psychological needs, combined with their inability to follow professional recommendations and utilize services for themselves . . ., created a continuing risk of harm to [David and Peter]," Adoption of Rhona, 63 Mass. App. Ct at 129, and "[w]e agree with the trial judge that there is clear and convincing evidence that the [mother and Peter's father have] grievous shortcomings or handicaps that would put the child[ren]'s welfare in the [respective] famil[ies'] milieu much at hazard and that [they are] currently unfit to care for [their respective] children." Care & Protection of Three Minors, 392 Mass. at 712 (quotation omitted).
He did, however, poignantly observe that "[Peter] needs love and affection."
Decrees affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.