Opinion
15-P-1317
03-28-2016
ADOPTION OF GARETH (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
This appeal involves the welfare of two children to whom we shall refer as Gareth (born June, 2003), and Amy (born June, 2007). After trial, a Juvenile Court judge issued decrees that found the children in need of care and protection, found the mother unfit, granted permanent custody to the Department of Children and Families (DCF), and terminated the mother's parental rights. Joined by Amy, the mother has appealed the termination of her parental rights. Gareth supports termination and therefore has joined DCF in supporting the decrees. We affirm.
The judge also determined the father unfit and terminated his parental rights. He has not appealed.
The principal focus of the appeal has to do with the unusual trajectory of this case. On October 10, 2014, following a sixteen-day trial spread over five months, the judge issued a decision that determined the mother currently unfit but declined to terminate her rights. In that decision (the October 10, 2014, decision), the judge also determined that the adoption plan developed by DCF was not in the best interests of the children at that time and ordered DCF to "proceed with planning, which shall include reunification with Mother." Formal findings and rulings were to follow.
However, based on an incident involving the mother that occurred on September 14, 2014 (during which the mother, while inebriated, attacked her disabled sister and got into a mêlée with responding police officers during which one officer was injured), DCF moved posttrial to reopen the proceedings and to stay its obligation to pursue reunification. The judge conducted a hearing on October 28, 2014, at which the parties orally stipulated to various facts set forth in documentary evidence related to the incident (the police report and the disposition of the criminal charges that resulted). Then, on December 17, 2014, the judge issued a new decision that terminated the mother's rights. Detailed findings of fact and rulings of law followed on February 18, 2015.
The mother and Amy argue that the judge should not have reopened the trial record following his October 10, 2014, decision, at least in the manner in which he did. They argue that the "truncated" and "irregular" hearing regarding the new incident violated the mother's due process rights and was otherwise improper. We have previously recognized that the trial record in these types of actions can be reopened when circumstances warrant it. See Adoption of Cesar, 67 Mass. App. Ct. 708, 715-716 (2006). Given the seriousness of the new incident and the overriding importance of determining the best interests of children based on current circumstances, the judge committed no abuse of discretion or other error of law in reopening the proceedings here.
That leaves the question of the propriety of the particular procedures the judge employed here. Although the reliance on stipulations regarding the new incident was unusual, our review of the transcript of the October 28, 2014, hearing confirms DCF's and Gareth's view that the mother and Amy specifically agreed to that procedure. To be sure, toward the start of the hearing, comments made by counsel for the mother and Amy can be taken as stating that they were willing to stipulate regarding the posttrial incident only for purposes of DCF's request to stay its reunification obligations (and that they were seeking to preserve an argument that a full evidentiary hearing should be held at a later date if the question of termination were reopened). However, during the course of the hearing, the following became clear: that DCF was pressing for termination based on the new incident, that the judge was reopening the trial record for that purpose, and that this was the parties' opportunity to present evidence regarding the new allegations. At that point, after the mother received an additional opportunity to confer with her counsel, she and Amy renewed their willingness to enter into the oral stipulations. The mother and Amy have waived any objections to the process that was employed. Adoption of Willow, 433 Mass. 636, 651-652 (2001). Our conclusion is not inconsistent with Adoption of Parker, 77 Mass. App. Ct. 619, 620-623 (2010). In that case, a termination of parental rights case was "tried" on offers of proof even though there were material facts in contest. Id. at 621. In the case before us, the mother and Amy even now are not contesting the raw facts regarding the posttrial incident, and they are unable to articulate what rights unfairly were forfeited by the stipulations. Adoption of Parker is further distinguishable in that the judge here had taken extensive testimony over sixteen days of trial preceding the hearing to reopen the evidence. Contrast id. at 622 (expressing incredulity that entire trial consisted of "documents and offers of proof from counsel with no oral testimony").
As Gareth points out in his brief, there were sound strategic reasons to avoid live testimony regarding the incident.
We further note that the judge made it clear that he would rely on the parties' "proffers" only to the extent that opposing counsel stipulated to the relevant facts asserted in those proffers. Any allegation that the judge relied on mere "proffers" is not accurate. Finally, we note that suggestions that the judge strong-armed the parties into entering into stipulations are belied by the hearing transcript. Any encouragement the judge gave to the stipulation process was mild, and from all that appears before us, the judge remained ready, willing, and able to go forward with a standard evidentiary hearing if the parties wanted one.
The mother and Amy also make various substantive attacks on the judge's findings and rulings, although here again many of these arguments relate to the judge's having switched course. For example, they argue that with the judge initially having concluded that termination was not warranted, the "isolated" posttrial incident could not have tipped the scales, or at least the judge did not adequately explain how it did. We disagree. It is evident from the trial record and findings that the judge initially determined that termination was not warranted (despite the mother's current unfitness), because of hopeful signs that the mother had begun to turn her life around by the time the trial had concluded. Those hopes were dashed by the mother's drunken, unprovoked attack on her sister just seventeen days after the trial had concluded. As Gareth aptly put it in his brief: "While mother commendably maintained relative stability during the three months preceding trial and during the five months of trial, once the spotlight of trial was removed, the very limitations that rendered her unfit -- domestic violence, substance abuse, and unstable living conditions -- surged to the fore."
Nor do we discern merit in the other substantive attacks on the judge's comprehensive findings and rulings. Those findings well document the mother's longstanding problems with substance abuse, mental health issues, domestic violence (both as victim and perpetrator), and lack of adequate housing. Little would be served by repeating further details of the judge's findings regarding the mother's unfitness (especially where the mother and Amy do not challenge the judge's finding that the mother is currently unfit).
As the mother points out, the judge noted in one of his rulings that factor xii (relating to substance abuse and mental illness, G. L. c. 210, § 3[xii]) "does not apply in this case." This plainly was written in error since the judge's concerns about the mother's continuing substance abuse and mental health issues are specifically discussed elsewhere throughout his findings and rulings.
We recognize that the mother's current ability to secure housing in part may turn on her obtaining custody, and that the judge specifically found that DCF recently did not provide the mother assistance in securing housing. However, it remains true that the mother's current housing predicament is in great part due to her being evicted from public housing because of multiple violations of the housing authority's policies and to her losing the ability to stay at her sister's home because of the posttrial incident.
As we have often observed, "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). The termination question turns on "whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. 512, 515 (2005). For the reasons set forth below, we discern no error in the judge's finding that termination was in the children's best interests.
In asserting that the judge erred in terminating the mother's rights, the mother and Amy challenge some of the judge's subsidiary findings as clearly erroneous. See Adoption of Paula, 420 Mass. 716, 729 (1995) ("a judge's findings will be disturbed only if they are clearly erroneous"). Some of these claims could best be characterized as immaterial "quibbles." See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (discounting minor discrepancies in facts found that are "not central to the ultimate conclusion of unfitness"). Other claims of erroneous fact finding are that the judge failed to give the mother adequate credit for characteristics she exhibited at trial. For example, even though the mother for many years was unsuccessful in curbing domestic violence at the hands of the father, she claims that the judge erred in finding that she minimized the severity of domestic violence because at trial she "acknowledged the domestic violence and testified intelligently about the actual and possible impacts on the children." Putting aside the fact that the judge had no obligation to credit the mother's testimony, he in fact did recognize that the mother exhibited many positive parental qualities. These included not only the evident love and affection she displayed toward her children, but also specifically "learn[ing] that witnessing domestic violence can cause children to have [posttraumatic stress disorder], anxiety, depression, and other illnesses." In the end, the judge determined that despite her best efforts, the mother has not been able to succeed to the point of providing her children a safe, stable, and nurturing environment, that her unfitness to parent the children was likely to continue for the indefinite future, and that termination was in the children's best interests. We discern no clear error in the material facts supporting those ultimate conclusions.
For example, the mother argues that the judge's finding that she was "addicted to" heroin and cocaine in 2013 is clearly erroneous, because although there was ample evidence that she was addicted to heroin and used cocaine during that time period, there was no evidence that she was "addicted to" cocaine.
See Custody of Two Minors, 396 Mass. 610, 618 (1986) (determinations of credibility are for trial judge to make). It bears noting that the judge specifically found that the mother had not told the truth on numerous occasions.
Many of the mother's efforts to show clear error involve taking isolated statements made by the judge out of context. For example, based on evidence that she "had been attending therapy consistently for the entire year preceding trial," the mother takes issue with the statement in one of the conclusions of law that "[s]he has also refused to follow several of [DCF's] service plans . . . such as . . . participating regularly in individual therapy and domestic violence counseling." The judge's just-quoted language is accurate with regard to earlier points in time. In his findings, the judge expressly recognized that the mother regularly had begun to attend therapy by the time of trial. He also recognized that
"[w]hile Mother has maintained many of her service requirements, she has not consistently benefited from such services such that she is able to properly understand the impact that her and [the father's] relationship and cycle of violence has had on the children or care for the children on a consistent basis."
The inquiry regarding unfitness is whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother does not love her children.
In sum, we conclude that the judge's decision to terminate was well supported. Ultimately, "[w]hile courts protect the rights of parents, 'the parents' rights are secondary to the child's best interests and . . . the proper focus of termination proceedings is the welfare of the child.'" Adoption of Ilona, 459 Mass. 53, 61 (2011) (ellipsis in original), quoting from Adoption of Gregory, 434 Mass. 117, 121 (2001). Both children present significant special needs, and both now enjoy stable, long term, preadoptive placements in which they appear to be thriving. Where the mother "has had ample opportunity to achieve fitness as a parent but has failed to follow through, it is only fair to the children to say, at some point, 'enough.'" Adoption of Nancy, 443 Mass. at 517.
It bears noting that the judge ordered continuing visitation between the mother and children, as well as visitation between the children.
Decrees affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2016.