Opinion
15-P-277
02-18-2016
ADOPTION OF BLAINE (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 the final judgment and decrees that found her unfit to parent her children, Blaine and Cooper (collectively, the children), and terminated her parental rights. She contends that the judge erred for three reasons. First, the mother argues that the Department of Children and Families (DCF) did not prove, by clear and convincing evidence, that the mother is unfit and her parental rights should be terminated. Second, the mother maintains that the judge erred by not providing detailed and comprehensive findings regarding the effects of domestic violence on either of the children. Third, the mother argues that the judge erred by failing to address the issue of visitation in his findings of fact and conclusions of law. We affirm.
The father is not a party to this appeal.
On April 9, 2013, DCF filed a care and protection petition under G. L. c. 119, § 24, seeking custody of Blaine. Five days after Cooper was born, in November, 2013, DCF filed a petition under G. L. c. 119, § 24, seeking custody of him. Both petitions proceeded to trial on October 3, 2014. At the conclusion of trial, the judge found the children to be in need of care and protection, committed the children to DCF's custody, and terminated both parents' rights pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.
The mother and the father failed to appear at trial.
Discussion. A. The mother's unfitness by clear and convincing evidence. "Parental unfitness, as developed in the case law, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent. Rather, the idea of 'parental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare 'much at hazard.'" Adoption of Rhona, 57 Mass. App. Ct. 479, 483 (2003), quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). "[T]he central judgment does not concern the [parents'] merits or demerits, but whether, in all the circumstances (including consideration of those merits or demerits), [they have] the capacity to act as . . . fit parent[s]." Adoption of Nicole, 40 Mass. App. Ct. 259, 262 (1996).
The judge, in proceedings terminating parental rights, "must make specific and detailed findings demonstrating that close attention [was] given to the evidence." Adoption of Quentin, 424 Mass. 882, 886 (1997). These findings must show by "clear and convincing evidence that the parent is currently unfit to further the child's best interest." Adoption of Carlos, 413 Mass. 339, 348 (1992). Subsidiary findings in support of the determination of fitness must "be proved by a fair preponderance of the evidence," Care & Protection of Laura, 414 Mass. 788, 793 (1993), and are not disturbed unless clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993). "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Ibid., quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).
The judge properly terminated the mother's parental rights after a showing of parental unfitness by clear and convincing evidence. The judge considered the fourteen required statutory factors set forth in G. L. c. 210, § 3, and found that six of those factors, (ii), (iii), (v), (viii), (x), and (xii), applied. Domestic violence was one of the primary reasons for termination of parental rights. See Custody of Vaughn, 422 Mass. 590, 595 (1996) ("[P]hysical force within the family is both intolerable and too readily tolerated, and . . . that a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm"). The evidence revealed numerous instances that exposed Blaine to domestic abuse. In one instance, Blaine suffered a hematoma, after being pushed into a wall by the father, and went to the hospital. Although Cooper has never experienced the domestic abuse firsthand, he would face the same risks of domestic abuse that Blaine would if he was returned to the custody of the mother. The mother was also unable to provide safe and stable housing and refused to accept help from DCF when they located housing at a domestic violence shelter for her and Blaine prior to Cooper's birth. The mother "admitted that she had no interest in going to a domestic violence shelter because doing so would interfere with her working things out with Father, which she fully intended to do, and that she was not planning to go to any domestic violence groups." The mother insufficiently addressed and tended to her mental health issues which contributed to the dysfunctional family unit. Finally, the mother was inconsistent with her visits with the children, ceased communication with DCF, and failed to attend the trial. The mother also failed to consistently participate or engage in services offered by DCF. Based on all the evidence presented at trial, the judge did not err in finding, by clear and convincing evidence, that the mother was not a fit parent of the children and that termination of her parental rights was in the children's best interests. See Adoption of Zak, 87 Mass. App. Ct. 540, 541-545 (2015) (parental rights terminated where there was pattern of domestic violence and failure to engage in services offered by DCF).
At the time of trial, the mother's whereabouts were entirely unknown.
We acknowledge that the record indicates that the mother was subjected to severe trauma during her own childhood, including sexual abuse by her own father. We are not insensitive to the lasting impact that such trauma has had on the mother and on her ability to parent her own children. We also acknowledge, however, that this history cannot and should not be used to excuse or justify the mother's behavior, as an adult, that threatened the safety of her children. DCF, from the beginning, agreed to allow the children to remain with her if she agreed to engage in services to address domestic violence and mental issues, and to seek a G. L. c. 209A abuse prevention order against the father.
The mother's reply brief asserts that the mother is not being properly treated independently of the father, who is not a party to this appeal. However, the judge found the mother's unfitness by clear and convincing evidence for the reasons set forth in section A, supra, independently of the determination of the father's unfitness.
B. Effects of domestic violence on the children. The mother argues that the judge did not establish a "nexus" between the domestic abuse and the effects it had on the children. We disagree. The judge specifically outlined numerous instances of domestic abuse that occurred. One of these instances caused Blaine to go to the hospital and another caused him to cry when the police came to the residence with firearms drawn. The judge also found that Blaine witnessed other incidents of domestic abuse even though the mother stated he was always in another room when it occurred. "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Custody of Vaughn, 422 Mass. at 599. Although Cooper was not yet born during this time, it would be an unjustifiable risk to place him with the mother, who had no inclination to address the issue of domestic violence and showed no possibility of becoming fit in the near future. See Adoption of Katharine, 42 Mass. App. Ct. at 32 ("[N]either agencies responsible for the welfare of children nor judges sitting on these sorts of custodial questions need to wait for inevitable disaster to happen"). On this record, "we see no error in the judge's finding of a pattern of violence and verbally abusive behavior that affected the children adversely." Adoption of Zak, 87 Mass. App. Ct. at 543.
C. Postadoption contact. The mother argues that the judge erred by failing to address the issue of postadoption visitation. To determine whether posttermination and postadoption visitation is appropriate, the judge applies the best interests of the child standard. Adoption of Rico, 453 Mass. 749, 758 (2009). When determining the best interests of the child, the conclusion should be "based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not the rights of the biological parent nor the legal consequences of their natural relationship." Adoption of Vito, 431 Mass. 550, 562 (2000). The judge adequately considered the issue and appropriately concluded that posttermination and postadoption visits were not in the children's best interests. There was no error.
The judge stated:
"There is no evidence of a significant bond between Mother, Father, and the children. While [Blaine] had a difficult time transitioning to his foster home at first, by all reports he is doing very well there. He does not ask about Mother or Father, and has adjusted well in his home. [Cooper] has been in the foster home since he was five days old, and his foster parents are the only caretakers he has ever known. Since Mother and Father stopped visiting with the children and have not seen them for months, I decline to order post-termination or post-adoption contact for Mother or Father."
Decrees affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 18, 2016.