Opinion
15-P-886
02-29-2016
ADOPTION OF ENOCH (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
After a trial, a judge of the Probate and Family Court found the parents of two children unfit and terminated their parental rights. The mother appeals, arguing that her parental rights were terminated in error. She concedes that she is not currently capable of assuming physical custody of the children, but disputes the conclusion that their best interests will be served by terminating her parental rights. The children also appeal the termination as not in their best interests. In addition, the mother and the children together argue that the judge abused her discretion in denying their joint motion for relief from judgment. We affirm.
The father did not challenge the final decrees and, thus, is not part of this appeal.
At the time of trial, Enoch was eleven years old, and Amy was nine years old.
Termination of parental rights. The mother argues that the termination of her parental rights was unjustified, and not supported by clear and convincing evidence. In her view, although she is not able to assume physical custody of the children, she is able to take responsibility for certain parental roles. In addition, she contends that, because of the close bond she shares with her children, and the fact that the Department of Children and Families (department) does not have a viable permanency plan for them, termination is not in the children's best interests.
"To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "This involves a consideration of not only 'the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment,' but also the permanency plan proposed by the department." Adoption of Thea, 78 Mass. App Ct. 818, 823 (2011), quoting from Adoption of Carlos, 413 Mass. 339, 348 (1992).
The parental unfitness standard and the best interests of the child standard are not "separate and distinct, but reflect different degrees of emphasis on the same factors." Adoption of Nancy, 443 Mass. 512, 515-516 (2005) (quotation omitted). In addition, the special needs of the children and the ability of the mother to address those needs are considered in determining termination. See Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986). "A judge's authority to enter an order dispensing with the need for a parent's consent [applies] not only to a child's adoption, but 'to any legal proceeding affecting a child's custody, guardianship or other disposition.'" Adoption of Gillian, 63 Mass. App. Ct. 398, 406 (2005), quoting from Adoption of Willow, 433 Mass. 636, 645 (2001).
Here, the judge determined, based on more than 300 detailed findings of fact, that, in evaluating both the strengths and weaknesses of the mother as a parent, combined with the specialized needs of the children, the evidence supported a termination of her parental rights. The judge made it clear that her decision to terminate parental rights was based on her findings that both parents emotionally and physically abused the children, and continuously exposed them to ongoing domestic violence despite intervention services provided by the department. Both parents disciplined the children with physical force, and each parent frequently yelled and screamed "at the children to the point where the children would become terrified." Overall, the mother made no significant effort to prevent her children from being exposed to domestic violence, and was "emotionally and physically abusive toward the children." When the father became intoxicated and enraged (which happened frequently), instead of protecting the children from him, the mother would retreat and hide, leaving the children defenseless. "Both children continue to be haunted by their memories of this."
The mother disciplined the children by spanking them, hitting them with a belt over their clothes, and putting soap in their mouths.
In addition, the mother has been inconsistent in complying with the department service plan. During the service plan period December 10, 2012, to June 10, 2013, shortly before the trial began, the mother revoked signed releases, stopped attending mandated dialectical behavior therapy (DBT), and "continued to engage in verbal altercations with others and display inappropriate behaviors towards the children." During the service plan period May 24, 2013, to November 24, 2013, the mother was unable to "regulate her emotions," dropped out of DBT and failed to participate in a required psychological evaluation; this period coincided with the trial, which was held over seven days in September, 2013. The judge acknowledged that the mother had been actively participating in therapy for approximately seventeen years (including at the time of trial), but concluded that, despite this long-term treatment, the mother "has demonstrated a continuing inability to control her emotions, and she often becomes volatile, including in the presence of the children." Based on the judge's specific and detailed findings, we are satisfied that she gave close attention to the evidence, and that these subsidiary findings are supported by a preponderance of the evidence. See Nancy, supra at 514-515.
On October 17, 2012, Amy was sua sponte placed in department custody after the mother asserted, in an emotional outburst in court, that she would not pick up Amy from school and that Amy should be put in the custody of the department.
The mother challenges several of the judge's findings as clearly erroneous. However, even if we were to agree, the many remaining findings provide ample support for the judge's determination of unfitness and conclusion that termination of the mother's rights is in the children's best interests. We likewise reject the mother's argument that, although she currently does not have the ability to take physical custody of the children, she is capable of maintaining other parental responsibilities that would make termination unwarranted. That is not the standard by which the appropriateness of termination is measured. See Jacques, 82 Mass. App. Ct. at 606-607. In these circumstances, there was no error in terminating the mother's parental rights. See Adoption of Gregory, 434 Mass. 117, 121 (2001).
Joint rule 60(b) motion. The mother and children jointly contend that the judge should have allowed their Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), motion and vacated the decrees. They argue that the department has no definite placement plan for the children and that the decrees provide neither stability nor permanency for the children. Although at trial both children favored terminating parental rights, they now wish to live with their mother and note that she is making therapeutic progress. As a result, they assert, termination of parental rights is not in their best interests. These arguments are not persuasive.
Although the Massachusetts Rules of Civil Procedure do not apply to proceedings to dispense with consent to adoption, rule 60(b) is used in these cases by analogy for determining the standard for postjudgment motions. See Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011). Relief sought under rule 60(b) should be granted only on a showing of extraordinary circumstances, and the judge's denial of such a motion "is one within [her] extensive discretion and is entitled to great deference by an appellate court." Care & Protection of Georgette, 54 Mass. App. Ct. 778, 787-788 (2002).
First, a rule 60(b) motion is not the appropriate mechanism to address any lack of progress by the department in implementing the permanency plan for the children; the proper procedure is to address the issue at the permanency hearing mandated by G. L. c. 119, § 29B. See Adoption of Nate, 69 Mass. App. Ct. 371, 375 (2007). Second, a fully developed adoption plan is not necessary at the time the termination decree is entered, especially if termination is based on unresolved deficiencies in the parent's ability to parent. See Adoption of Scott, 59 Mass. App. Ct. 274, 278 (2003). Contrast Adoption of Cesar, 67 Mass. App. Ct. 708, 715 (2006) ("determination that termination would serve the child's bests interests appears to have rested more on the preferability of an available adoptive placement and on the child's wishes than on continuing unresolved deficiencies in the mother's parenting abilities").
Third, the judge found that, although the mother has been engaged in therapy for approximately seventeen years, "there is no reasonable expectation that she will, in the foreseeable future, become an effective or appropriate parent to these children with very difficult special needs." The judge also found that, although the mother "has made progress with regulating her emotions through therapy, [she] continues to be highly reactive to stressful situations and is, at times, volatile." Neither the mother nor the children offer evidence to dispute these findings. Finally, although the children are now old enough to have their wishes heard and considered, "their views . . . are neither decisive, nor outcome determinative." Nancy, supra at 518 (citation omitted).
Based on the foregoing, we conclude that the mother and the children have failed to satisfy their heavy burden and, thus, there is no reason to disturb the judge's denial of the rule 60(b) motion.
Posttermination/postadoption visitation. The children have raised the issue, and the mother adopts their argument, that the judge failed to order posttermination and/or postadoption visitation. However, because this issue is currently pending before the judge, we decline to address it in this appeal.
The department's motion to file a supplemental appendix is allowed.
Decrees affirmed.
Order denying joint motion for relief from judgment affirmed.
By the Court (Hanlon, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 29, 2016.