Opinion
14-P-1371
05-21-2015
ADOPTION OF LOUISE (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
Following a trial in the Juvenile Court, the mother and father appeal from decrees finding them unfit to parent, terminating their parental rights, and dispensing with the need for their consent to the adoption of their two children. See G. L. c. 119, § 29, and G. L. c. 210, § 3. We affirm.
Jurisdiction under G. L. c. 209B regarding Louise. The father challenges the court's exercise of jurisdiction over the proceedings as to Louise. See G. L. c. 209B, § 2(a). Jurisdiction over child custody proceedings possibly involving the jurisdictional claims of other States is determined according to G. L. c. 209B. Custody of Brandon, 407 Mass. 1, 8 (1990). Although the judge did not conduct a hearing or make written findings on this question, he was not required to do so where there was no suggestion that Ohio or any other State was seeking to claim jurisdiction in the proceeding. See Umina v. Malbica, 27 Mass. App. Ct. 351, 356 (1989). In any event, where jurisdiction is challenged, we must resolve the question regardless of the procedural posture in which it is raised. See Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 99-100 (2011). The father testified four separate times during the termination trial that he and Louise stayed in Massachusetts for a minimum of six months between September, 2011, and March, 2012. They then returned to Ohio approximately two weeks before these proceedings commenced. Because Louise, who accompanied her father at all times, was in Massachusetts for six consecutive months during the six-month period preceding the commencement of care and protection proceedings, Massachusetts was her home State during the statutory period. Accordingly, jurisdiction lies in Massachusetts. See G. L. c. 209B, § 2(a)(1).
The mother adopts this position in her reply brief. Neither parent challenges the court's jurisdiction as to Jack.
Given our conclusion that jurisdiction is proper, we need not discuss the father's alternative argument for why Massachusetts lacks jurisdiction, i.e., that Ohio had not expressly declined to exercise jurisdiction. See G. L. c. 209B, § 2(a)(4).
The father's unfitness to parent Louise. The father accepts that he was unfit to parent Jack, but claims the determination of his unfitness to parent Louise was not supported by clear and convincing evidence. We disagree. Several of the judge's findings specifically discuss the father's (and mother's) failure to concern themselves with Louise's anemia and respiratory issues or take her for emergency medical care when it was necessary. In addition, the judge detailed both parents' neglectful decision to leave Jack with an unqualified caregiver (Beth), and their refusal to accept parenting and daycare services provided by the Department of Children and Families (department) or even communicate with the department at any level. Moreover, after Louise was removed in April, 2012, the father visited his daughter on only one occasion during the one and one-half years leading up to trial. These facts are probative of the father's unfitness to parent Louise. Even though Louise was not left to Beth's guardianship as Jack was, the judge was not required to "wait until [he was] confronted with a maltreated child before deciding that care and protection [were] necessary." Custody of Two Minors, 396 Mass. 610, 620 (1986).
A pseudonym. Four of the mother's other children were also entrusted to Beth despite clear indications she was unsuitable to act as their guardian. See note 6, infra. Those four children are not involved in these proceedings.
These findings belie the father's assertion that no evidence existed that he had neglected Louise.
We also reject the father's contention that the November, 2013, finding that he was unfit was based on "stale evidence" from an unfitness hearing conducted six months prior, in May, 2013. To the extent the judge relied on evidence from the May hearing at the November termination trial, that evidence was admitted without objection, and the judge specifically found that in the intervening six months, "[n]othing has changed" regarding either parent's unfitness. That finding is not clearly erroneous, see Custody of Two Minors, 396 Mass. at 618, and along with the other facts discussed, it clearly and convincingly establishes the father's unfitness as of the date of trial. See Custody of Eleanor, 414 Mass. 795, 802 (1993).
Termination of parental rights. Both parents claim that the judge abused his discretion or committed an error of law in terminating their parental rights. The father challenges the conclusion that termination of his parental rights was in the best interests of the children. While the parental unfitness test is not exactly the same as the best interests of the child test, there is considerable overlap in the analysis and essentially the same factors apply. See Care & Protection of Three Minors, 392 Mass. 704, 711-714 (1984). In light of the father's numerous shortcomings, already fully discussed above, the judge was well within his discretion to conclude that the children's best interests required termination of the father's parental rights. See ibid.
For her part, the mother claims the judge's findings supporting the termination of her parental rights are too sparse. We disagree. The mother stipulated to her unfitness in May, 2013, and considering the mother's continued failure to visit her children or engage in services, the judge found that "nothing ha[d] changed" by the time of the termination trial in November. This was sufficient to establish the mother's unfitness as of the date of the termination trial. We also reject the mother's contention that the judge should have explicitly linked each statutory factor under G. L. c. 210, § 3, to enumerated facts. Although the judge did not do so, "the judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3(c)." Adoption of Nancy, 443 Mass. 512, 516 (2005). For that reason, as well as for the other reasons already discussed, the judge properly concluded that the mother's "breathtaking indifference to [her] children" and her total abdication of responsibility for them and their care warranted termination of her parental rights. See Custody of Eleanor, supra at 799.
In addition, the mother claims that the judge's findings were based in part on her alleged poverty. There is nothing anywhere in the record to support this assertion. See Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006). The mother also claims she reasonably relied on the department's tacit approval of Beth becoming the guardian of five of the mother's six children before she relinquished any responsibility for them and returned to Ohio. Even if the mother did lack knowledge of Beth's unsuitability, all the other evidence of the mother's unfitness was strong. Finally, the mother claims that a report filed by the Ohio Office of Child Services was improperly admitted for its truth at trial. That evidence was admitted only to "set the stage," and was cumulative of other evidence which was admitted for all purposes. In any event, the effect of the challenged evidence on the judge's decision was limited to a single statement that several of the mother's other children -- not Louise or Jack -- had missed at least eighty days of school in the 2011-2012 school year. Any error was harmless.
Decrees affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 21, 2015.