Opinion
No. 12–P–1887.
2013-07-11
ADOPTION OF EZRA.
By the Court (VUONO, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree issued by a judge in the Juvenile Court terminating his parental rights with regard to his son, Ezra. See G.L. c. 210, § 3. The father asserts on appeal that the trial judge (1) failed to find by clear and convincing evidence that he is unfit to parent Ezra; (2) violated the father's due process rights by disrupting his trial presentation; and (3) abused his discretion by not considering the father's alternative adoption plan. We affirm.
Background. The evidence presented at trial permitted the judge to find the following facts. Ezra was born in November, 2008. The Department of Children and Families' (DCF) first involvement with Ezra occurred on or about May 20, 2009, after the filing of a report pursuant to G.L. c. 119, § 51A. The report alleged neglect on the part of his mother.
At the time of the report, the father was serving a house of correction sentence for an assault and battery on a police officer. On May 21, 2009, a Juvenile Court judge placed Ezra in the custody of DCF. A few weeks later, when Ezra was approximately six months old, he entered the home of Mr. and Mrs. Smith,
The mother's parental rights were terminated on February 3, 2010, and are not at issue in this appeal.
his foster, and now preadoptive, family; he has been with them ever since.
A pseudonym.
The father has never had custody of Ezra. The judge found several parental deficits on the part of the father. The judge noted the father's low cognitive capacity. His intelligence quotient (IQ) is either 65 or 72.
DCF briefly returned Ezra to his mother for a ten-day period from September 25 to October 6, 2009.
He is nearly illiterate. The father also has a history of substance abuse, which includes a previous cocaine addiction. He has a continuing habit of smoking marijuana, and told a court psychologist that he does not plan to stop. Based on expert testimony, the judge found that the father's marijuana use contributes to his depression and may alter his judgment and limit his ability to supervise Ezra. The father's incarceration history includes sentences of (a) twelve months for assault and battery in 1995; (b) eighteen months in 2001 for probation violation; (c) six months in 2009 for assault and battery on a police officer; and (d) three months in August, 2011, for possession of a class D substance with intent to distribute.
The parties cite differing expert testimony with respect to the father's IQ. Nevertheless, the judge noted that the differences in the two doctors' testimony was insignificant. The judge wrote that “Father has below average to borderline intellectual functioning which negatively affects his parenting capacity.”
The father's incarceration for possession with intent to distribute occurred during the service plan period.
The father has not maintained employment, largely as a result of his criminal record and drug use; he has not established a stable residence. He proposed that his father gain custody of Ezra; however the paternal grandfather has made no effort to pursue custody.
Finally, Ezra has special needs. He has been diagnosed with autism, which causes behavioral struggles, especially impulsive tantrums. Ezra is asthmatic, he has tracheomalacia, and he uses an inhaler and two different nebulizers. His asthma has caused hospitalization on multiple occasions. The judge determined that the father was unfit and unable to meet Ezra's special needs. As a result, the judge terminated the father's parental rights.
Analysis. 1. Father's unfitness. A decision to terminate parental rights calls for a two-step analysis. See G.L. c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). First, the judge must find, by clear and convincing evidence, that the parent is unfit. Adoption of Nancy, supra at 514–515. Second, a judge must determine whether the termination of parental rights serves the best interests of the child. Id. at 515. The judge's findings will remain undisturbed unless they are clearly erroneous. Ibid.
The father argues that the judge's finding of unfitness lacked the support of clear and convincing evidence. We disagree. Ample evidence in the record supports the judge's determination. The judge relied appropriately on the statutory criteria of G.L. c. 210, § 3 ( c ).
The statutory factors relied upon by the judge were G.L. c. 210, § 3( c )(ii), (v)-(viii), and (xii).
Ezra's mother neglected him; the father has shown no capacity to remedy the circumstances of neglect. See G.L. c. 210, § 3 ( c )(ii). In particular, the father was in jail at the time of the filing of the § 51A report against the mother. He has since continued to use marijuana, engage in criminal behavior, and refuse to comply with drug testing. Care & Protection of Frank, 409 Mass. 492, 494–495 (1991) (judge's determination of unfitness may include consideration of prior convictions). The evidence permitted the judge to find that custody with the father would “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).
At the time of the judge's ruling, Ezra was less than three years old and had been in DCF custody for most of his life. See G.L. c. 210, § 3( c )(v). Ezra now maintains a strong bond with his foster (now preadoptive) family, the Smiths. See G.L. c. 210, § 3( c )(vii). He calls his foster parents “mommy” and “poppy.” DCF introduced expert testimony indicating that removal of Ezra from the Smiths' home could have a “devastating” impact on him. See and compare Adoption of Nicole, 40 Mass.App.Ct. 259, 262–263 (1996) (“Although the bonding of a child with foster or adoptive parents is not a dispositive consideration, it is a factor that has weight in the ultimate balance”).
The father has also failed generally to use DCF-offered services. See G.L. c. 210, § 3( c )(v). He used some services. He engaged in therapy, generally attended visits, and attempted to seek employment. However, he continued his marijuana use and he voiced his intention to persist. The father smoked cigarettes close in time to his visits, an activity problematic for his asthmatic son. He also failed to submit to drug screens. See Adoption of Mario, 43 Mass.App.Ct. 767, 774 (1997) (parent's refusal to cooperate with DCF is evidence of unfitness). These deficiencies undermine the father's argument on appeal that he could benefit from support services available to him if he gained custody of Ezra. Overall, the judge concluded that the father's continued drug use and failure to stop his criminal behavior demonstrated a lack of effort. See G.L. c. 210, § 3( c )(viii).
In particular, Ezra's special needs require parenting skills beyond the father's capacity. See G.L. c. 210, § 3( c )(vii); Adoption of Paula, 420 Mass. 716, 730 (1995) (termination proper after mother was offered services but showed no understanding of children's complex needs). His cognitive limitations reduce his ability to care for Ezra. Adoption of Ilona, 459 Mass. 53, 62 (2011) (considering cognitive limitations as part of overall determination of unfitness). While he accurately argues that the severity of Ezra's autism may be subject to change, the evidence supports the judge's finding and conclusion that autism is a complex, life-long disorder. The judge determined that the father's “poor coping skills and limited insight limit his abilities to attach to any child, but even more so with an autistic child.”
While not the sole determinative factor, Ezra's autism magnifies the father's parental shortcomings.
The judge found also that “Father lacks the ability to manage day-to-day stresses of parenting an autistic child and his skills are limited even for an average child.”
The father argues also that the judge ignored his parenting history with his daughter. This argument is without merit. As part of the judge's August 10, 2011, order in support of Ezra's commitment to DCF custody, he included a finding about the father's daughter. Despite some visitation with the father in the summer, his daughter, born in 1997, is not in the father's full-time care or custody. In any event, this marginal parenting history does not overcome the other evidence of the father's deficiencies.
The father's limitations combine to support the judge's conclusion that his unfitness is indefinite so that he would be unlikely to provide minimally acceptable care to Ezra. See G.L. c. 210, § 3 ( c )(xii). As we have previously stated, “[t]he specialized needs of a particular child when combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness.” Care & Protection of Amalie, 69 Mass.App.Ct. 813, 818 (2007), quoting from Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. 120, 125 (1984). The judge's termination of the father's parental rights was free of error.
2. Father's due process right to a fair trial. Before the State can terminate parental rights, “it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, 455 U .S. 745, 753–754 (1982). Judges conducting termination proceedings must therefore maintain “not only fairness but also the appearance of fairness.” Adoption of Tia, 73 Mass.App.Ct. 115, 122 (2008).
Here, the father claims that the judge acted with partiality by interrupting his cross-examination of the expert witnesses. The father is correct that the judge interrupted, on numerous occasions, the defendant's cross-examinations. The number of interruptions became exceptional and risked the appearance of partiality. However, several factors weigh against the imputation of bias and unfairness. First, the trial did not involve a jury or the impression upon a jury of one-sided judicial questioning. Second, the judge's questions generally sought clarification from expert witnesses, and not preferred answers. As the fact finder, the judge was entitled to pursue greater clarity and definiteness so long as he did so with neutrality.
The father's ability to pursue his theories also illustrates the absence of harm from the judge's questions. For example, the judge challenged the experts' assessments relating to (i) the severity and pervasiveness of Ezra's autism; (ii) the bonding of Ezra to his foster parents; (iii) the effects of postadoption contact; (iv) the cognitive abilities of the father; and (v) the capability of the father to provide care to Ezra.
As a result, the judge's interruptions did not deny the father the “opportunity to rebut adverse allegations of unfitness.” Adoption of Rory, 80 Mass.App.Ct. 454, 458 (2011), quoting from Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 185 (2010).
The father concludes that the judge's interruptions (a) “effectively nullified [his] opportunity to challenge [the experts'] testimony” and (b) “prevented [him] from soliciting testimony that could be used [on appeal].” However, the father does not specify such lost challenges or testimony.
Next, the father contends that the judge asked the expert witness to opine about the “ultimate issue.” The challenged questions asked (a) whether the father could meet the needs of Ezra; (b) whether the father's depression affected his ability to nurture Ezra; and (c) whether the father had established a strong positive bond with Ezra.
Generally, “[a]n expert witness may give testimony ‘on matters within the witness's field of expertise ... whenever it will aid the [fact finder] in reaching a decision, even if the expert's opinion touches on the ultimate issues that the [fact finder] must decide.’ “ Puopolo v. Honda Motor Co., 41 Mass.App.Ct. 96, 98 (1996), quoting from Simon v. Solomon, 385 Mass. 91, 105 (1982). “The admission of expert testimony is ‘largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law.’ “ Adoption of Hugo, 428 Mass. 219, 232 (1998), quoting from Commonwealth v. Pikul, 400 Mass. 550, 553 (1987) (addressing admissibility of licensed clinical social worker's testimony).
Here, the judge's inquiries did not call for an expert to opine on an ultimate issue. The ultimate issues are whether the father is unfit and, if so, whether termination of parental rights serves Ezra's best interests. G.L. c. 210, § 3. The experts' answers were evidence of unfitness. As a result, the experts' testimony merely “touch[ed]” on the ultimate issues. See Puopolo v. Honda Motor Co., supra. The judge's admission of the challenged expert testimony did not constitute an abuse of discretion.
The record does not indicate an abdication of the judge's nondelegable fact-finding duty to any expert witness.
3. Proposed plan for placement with paternal grandfather. When a trial judge determines the proper placement plan for a child, he must conduct “an ‘even handed’ assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan.” Adoption of Hugo, supra at 226 n. 8. However, no plan receives “special weight.” Ibid. The relevant inquiry concerns the best interests of the child. See id. at 226; G.L. c. 210, § 3( c ).
Here, the father's proposal for Ezra's paternal grandfather to receive custody was untenable. The judge found that the paternal grandfather (a) never applied for custody; (b) never visited Ezra; (c) never came to trial to testify; and (d) refused to submit to either fingerprinting or a background check by DCF. That pattern of inaction eliminated placement with the grandfather as a realistic alternative. The judge properly determined the best interests of Ezra.
The trial judge permitted some posttermination connection between the father and Ezra. He ordered the adoptive family to send the father an annual report of Ezra's progress. The father was also allowed to mail Ezra an annual letter, which the adoptive parents could screen before Ezra read it.
Decree affirmed.