Opinion
14-P-1256
07-21-2015
ADOPTION OF LARRY (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 entered by a Juvenile Court judge (1) terminating her parental rights with regard to her two children, and (2) declining to enter a visitation order. The mother does not challenge the judge's finding of parental unfitness, but only disputes the judge's decision to terminate her parental rights and approve the adoption of the children by the maternal grandparents. We conclude that the judge's detailed findings of fact and rulings of law are supported by the evidentiary record, and discern no error. We therefore affirm the decrees terminating the parental rights of the mother and the judge's decision not to enter an order of visitation.
The father stipulated to the termination of his parental rights and is not involved in these proceedings.
The finding of unfitness and termination of parental rights does not of course reflect on the mother's love for the children.
Background. We summarize the salient facts based on the judge's findings. The children, Larry and Amy, were born in July, 2008, and May, 2010, respectively. The mother first became involved with the Department of Children and Families (DCF) on August 10, 2010, when a G. L. c. 119, § 51A, report (51A report) was filed, alleging an incident of domestic violence had occurred in front of the children. That 51A report was supported.
It was reported that in the presence of the children the mother "came at the father with a knife," and that when the father's sister intervened, trying to wrestle the knife away from the mother, the mother proceeded to kick the sister and hit her several times in the head with her sneakers. She also banged the sister's head into the cement. There were concerns that the children were in the mother's car when a brick was thrown through its rear window during the incident. The mother did not deny these allegations.
1. The mother's criminal history. The mother has a record of criminal convictions in both Massachusetts and New Hampshire. She served a sentence of incarceration for assault and battery in September of 2009. As a result of the incident of domestic violence outlined above, she served another sentence of incarceration for three charges of assault and battery by means of a dangerous weapon. The mother also had a restraining order issued against her in August, 2010. She was arrested for theft and wilful concealment of a theft in Salem, New Hampshire, on June 17, 2012, and defaulted when summoned on that charge. In August, 2012, the mother also served a sentence of incarceration for breaking her roommate's telephone. Finally, in December, 2012, the mother was sentenced to a term of imprisonment in State prison followed by a five-year probationary term (to be served from and after her sentence of incarceration) for convictions related to child endangerment, misleading a police investigation, and assault and battery. The terms of the mother's probation restrict her contact with children under the age of twelve, including her own children.
These criminal convictions stemmed from an incident, described below, which resulted in the filing of multiple 51A reports alleging neglect of Amy.
2. Involvement with DCF. Four 51A reports were filed in addition to the one filed on August 10, 2010, all of which were supported after investigation. A 51A report was filed based on an August 8, 2010, incident, alleging that the children's father went to the mother's home and threw a brick through an automobile occupied by the mother and the children, and that glass fell on the children on impact. A second 51A report was filed on June 10, 2011, alleging neglect of Amy, one year old at the time, by the mother. The mandated reporter, the children's doctor, was concerned because the mother had missed multiple appointments for Amy. She was also concerned because Amy's shoulder was "bruised and her shoulder bone may be out of the socket." The mother refused to take Amy to the emergency room out of fear that the hospital "would file a report on her." A third 51A report was filed later the same day wherein the reporter indicated that the mother had brought Amy to Lawrence General Hospital, stating that she found Amy injured after Larry removed Amy from her crib. Amy had bruises on her left arm and forehead, and her shoulder was visibly dislocated. The reporter indicated that the mother's explanation of what happened to Amy was not consistent with the child's injuries. The examining physician at Lawrence General Hospital documented in Amy's chart: "presentation of multiple fractures of the upper left extremity with suspected child abuse." The next day, after Amy was transferred to Children's Hospital, a doctor determined that Amy had a total of twelve fractures. Another doctor noted that "[the] fractures [were] too numerous to have occurred with a simple household fall." It was of that doctor's opinion that Amy "was subject to significant violence." A final 51A report was filed, alleging physical abuse of Amy by an unknown person. The mandated reporter indicated that Amy was brought to the hospital on June 10, 2011, as a result of events that the mother claimed had transpired the previous night. The reporter stated that the child's injury was not consistent with the mother's story. DCF workers went to Children's Hospital and took custody of Amy and Larry.
X-rays revealed that Amy had a "comminuted fracture of the prox humerus, a clavicle fracture, a fractured radius and an ulna fracture."
A child abuse/neglect investigation was conducted as a result of these four 51A reports. The investigator discovered that the mother's boy friend as of June, 2011, was being prosecuted in another criminal matter for having shaken his own daughter, and that there was an outstanding warrant for his arrest. A detective informed the investigator that the mother had informed him that she left the children with her brother from 11:00 A.M. to 2:00 P.M. on the day Amy sustained her injuries. The mother admitted to the investigator that she had made a major error in judgment by leaving her children with the boy friend.
The mother knew of the outstanding charges against the boy friend. The mother also stated that she lied about when the incident with Amy occurred. The mother had been with the boy friend for approximately one month as of June 10, 2011. The mother admitted that the boy friend stayed overnight at her home and that he was in her home from June 3, 2011, to June 10, 2011, the day she brought Amy to the hospital. DCF received information from the District Attorney's office indicating that the boy friend was in custody and that he admitted to being at the mother's home at the time of the incident.
3. Noncompliance with service plans. The judge was warranted in finding that contrary to the requirements of her service plans, the mother did not complete anger management counseling; did not have stable housing between June, 2011, and her incarceration; was not forthcoming about her romantic relationships; did not have stable employment; and did not complete a psychological evaluation.
4. Circumstances of the children. The children were placed in a kinship placement with their maternal grandfather and his wife (grandparents) on December 29, 2011. The judge found that the grandparents are open to contact between the mother and the children and believe such contact to be in the children's best interests. The grandparents have been able to meet all of the children's needs.
Discussion. 1. Termination of parental rights. "When reviewing a decision to terminate parental rights, [the court] must determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). The trial judge "who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment" as to parental fitness. Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). On appeal, the trial judge's findings will not be disturbed unless clearly erroneous. See Adoption of Carla, 416 Mass. 510, 517 (1993); Adoption of Quentin, 424 Mass. 882, 886 (1997).
The mother did not testify at trial, choosing instead to rely on her privilege against self-incrimination. The judge was warranted in drawing an adverse inference against her. See Adoption of Cecily, 83 Mass. App. Ct. 719, 727 (2013).
The mother claims that because she and the children shared a strong bond and because a guardianship with the grandparents would have satisfied DCF's interest in protecting the children and providing them permanency, the judge abused his discretion in terminating her parental rights. The existence of a strong bond between parent and child, however, does not preclude the termination of parental rights. Rather, in view of the evidence of parental unfitness, the question for the judge was whether it was in the best interests of the children to end all legal relations between them and the mother. See, e.g., Adoption of Elena, supra at 31. In addition to the substantial evidence of parental unfitness described above, the mother was also unable to address her shortcomings as a parent after the removal of the children from her care. Specifically, she failed to follow DCF service plans, did not complete an anger management program, did not have stable employment before her incarceration, did not complete a DCF psychological evaluation, and did not maintain stable housing. Furthermore, only days after the children were removed from her custody, the mother admitted to being in a relationship with a man who put her life at risk, demonstrating her unwillingness or inability to learn from past detrimental behavior that put the lives of her children at risk.
"Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. 53, 60 (2011). Here the judge was warranted in concluding that the mother's unfitness is likely to continue into the indefinite future.
The judge's extensive findings and rulings are set forth in 120 paragraphs in which he concludes that factors set forth in G. L. c. 210, § 3(c)(ii), (v), (vi), and (vii), apply to this case.
Once the judge reached the conclusion that the children's best interests would be served by terminating the mother's parental rights, there was no reason to consider the alternative option of a guardianship, which would be appropriate only if the mother's parental rights were not terminated. In arriving at his conclusion that termination best served the children's interests, the judge implicitly and necessarily considered and rejected the alternative possibility of a guardianship placement. There was no abuse of discretion. See, e.g., Adoption of Mary, 414 Mass. 705, 710711 (1993); Adoption of Nancy, 443 Mass. 512, 514516 (2005); Adoption of Elena, supra at 3033.
2. Visitation. The mother also claims that the judge improperly relied on the terms of a criminal sentence in which the mother was required to abide by conditions of probation forbidding unsupervised contact with young children. The judge had authority to take judicial notice of a criminal court's orders. See Jackson v. Longcope, 394 Mass. 577, 580 n.2 (1985) ("It is proper . . . to recognize those facts of which a judge may take judicial notice, including criminal cases involving a party"); Commonwealth v. Fallon, 53 Mass. App. Ct. 473, 475 (2002) (taking judicial notice of fact of prior conviction); Ryan v. Hughes-Ortiz, 81 Mass. App. Ct. 90, 95 n.8 (2012) (taking judicial notice of fact of prior conviction).
There is no basis for the mother's argument that the judge has the authority to modify the conditions of probation imposed against the mother by the Superior Court in a prior criminal case. Only the sentencing judge or a court responsible for supervising the offender is authorized to modify the conditions of probation. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 844 (2007). In any case, the judge made it clear that the mother's incarceration and probation conditions were not decisive in his determination that she was unfit and that termination of parental rights was in the best interests of the children. The judge's decision not to enter an order of visitation, but to leave the issue to the discretion of the grandparents was not erroneous. See Adoption of Ilona, supra at 66 (finding no error where judge declined to order visitation in light of "warm and nurturing" adoptive parents' willingness to continue contact with biological parent). Moreover, the mother's probation conditions do not impose any restrictions on the frequency or duration of potential visits between the mother and the children, but only require that such visits be supervised.
Where the conditions of a parent's probation order restrict that parent's contact with children and may thus have an impact on a judge's decision whether to enter an order of visitation with regard to that parent, the appropriate course of action is to raise the issue with the judge who imposed those conditions of probation.
Decrees affirmed.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 21, 2015.