Opinion
15-P-1394
04-15-2016
ADOPTION OF IDRIS.
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
After trial, the judge found the mother and the father unfit to parent their son, Idris, and terminated their parental rights. The judge expressly provided for posttermination and postadoption visitation every other month so that Idris could maintain contact with both parents. On appeal, the father claims the judge abused her discretion by not considering his fitness independent from the mother's and by relying on stale evidence in finding him unfit and terminating his parental rights. We affirm.
The mother filed a motion to dismiss her appeal pursuant to Mass.R.A.P. 29(a), 365 Mass. 877 (1974), which was allowed by this court, and her appeal was dismissed with prejudice.
The father argues that the judge abused her discretion in primarily assessing his fitness as a coparent, and not considering his abilities to care for the child as a single parent. He maintains that he provided ample evidence that he has separated from the mother and in light of that is fit to parent the child on his own. We disagree. A parent is unfit when he or she has "grievous shortcomings or handicaps that put the children's welfare much at hazard." Adoption of Greta, 431 Mass. 577, 587 (2000) (quotation omitted). The judge made sound, detailed findings based on both the father's continuing inability to separate himself from the mother and his lack of appreciation for the serious and continuing dangers to which he and the mother exposed the child. See Adoption of Don, 435 Mass. 158, 165 (2001) (requiring detailed and specific findings of fact). Nothing in the record suggests that the judge abused her discretion or erred in these findings. See Adoption of Kimberly, 414 Mass. 526, 528-529 (1993).
Although the father engaged in the majority of tasks required in his parenting plan and acknowledged that he should or would separate from the mother, the judge properly and necessarily considered his relationship with the mother in assessing its effect on his fitness. Bezio v. Patenaude, 381 Mass. 563, 574 (1980) (considering how parents interact as couple in evaluating fitness and care of child). Despite numerous assertions from the father that he would, should, or did separate from the mother, the judge did not credit the mother's or the father's assertions that they had indeed separated. On appeal, the father maintains that he did not repeatedly fail to separate from the mother, as the judge found, but instead only first declared his intention to leave the mother in November, 2013. Regardless of when he intended to leave the mother, by not separating from her earlier and continuing to see her even after intending to end their relationship, he exhibited the kind of poor judgment the judge considered relevant in evaluating the father's fitness. See Adoption of Carla, 416 Mass. 510, 517 n.7 (1993) (judge may rely on "prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct" in finding current unfitness [quotation omitted]). Given the father's demonstrated reluctance to leave the mother, the judge did not err in finding the father's parenting and fitness inexorably tied to the mother's and evaluating their fitness as coparents. See Custody of Eleanor, 414 Mass. 795, 799 (1993) (findings not clearly erroneous where "each finding was adequately supported in the record").
Specifically, the judge relied on testimony from a social worker assigned to complete a comprehensive assessment of the family that, during an unannounced home visit in January, 2014, -- months after the father declared his "intention" to separate from the mother -- the mother was at the father's apartment and appeared to have stayed overnight. Based on this testimony, and other similar testimony that the mother often answered the father's cell phone when the social worker called, the judge properly found that the father had failed to separate from the mother.
The judge primarily relied on an incident where the child ingested the mother's Suboxone to demonstrate the extreme risk to the child if he were to remain in either parent's care. Even if the pills did not belong to the father, his insistence that the incident could have happened to any family suggests his failure to appreciate the serious risk posed to the child. For example, when the father was asked how he could have prevented the incident, he merely suggested the pills should have been placed in a higher location where the child could not easily reach them. The judge also credited testimony from a social worker working with the parents that the father exhibited poor judgment and had enabled the mother's substance abuse by transporting her to buy drugs in the middle of the night.
Furthermore, the judge's findings do indicate separate analysis regarding the father's ability to parent the child independent of the mother. In fact, the judge credited various testimony and reports specifically recognizing the father's loving and caring nature toward the child, as well as his cooperation with the Department of Children and Families (DCF) and his compliance with parts of his service plan. She was within her discretion, however, in crediting evidence regarding the child's Suboxone hospitalization and the father's continuing relationship with the mother to conclude that, despite these positive efforts, the father failed to make significant progress toward improving his judgment. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) ("The judge was not obliged to believe that the parenting skills of the mother or the father had improved simply because of their recent cooperation with the department, or that their good intentions eliminated risk of future abuse"). Although these findings relate to the mother and her drug abuse, they also demonstrate the father's independent failure to appreciate the risks associated with the child's exposure to substance abuse and his unwillingness or inability to rectify the issues that make him unfit to parent the child now and very likely in the future. See Adoption of Carlos, 413 Mass. 339, 350 (1992).
The father contends that the judge erroneously relied on stale evidence in finding him currently unfit. Specifically, he cites the judge's reliance on the mother's and the father's "highly relevant" criminal charges stemming from the child's ingestion of Suboxone in 2010. While this incident -- and another also related to the mother's drug abuse -- occurred in years prior to the trial, the judge here appropriately relied on patterns of neglect and prior incidents for their prognostic value. See Adoption of Carla, 416 Mass. at 517 n.7. Although the incidents occurred as many as five years ago, the judge did not and need not "wait for the inevitable disaster to happen." Adoption of Rhona, 57 Mass. App. Ct. 479, 485 (2003) (quotation omitted). The judge did not err in relying these highly relevant incidents.
In addition to the Suboxone incident described above, DCF reports detailed an incident where the child urinated on himself while waiting for the bathroom, which was occupied by the mother and her friends. The child described the mother "putting poisonous needles in her arms and wiping them off" and demonstrated how she used the needles.
Although many of these incidents primarily resulted from the mother's drug addiction, the mother's shortcomings as a parent necessarily affect the father's parenting. The judge credited testimony and made proper findings that the father's passivity and lack of vigilance when parenting the child -- specifically, allowing the child to wander into the streets during supervised visits -- posed a continuing risk to him.
As a final matter, the father argues that the judge abused her discretion in concluding that it was in the child's best interests to terminate the father's parental rights. We disagree. The parental fitness and best interests tests are not mutually exclusive and consider the same factors in differing degrees. See id. at 490. The judge's findings prove clearly and convincingly that the father was currently unfit and that such unfitness "was likely to continue into the future to a near certitude." The child's interest in stability, coupled with the father's unfitness, support the judge's decision to terminate his parental rights. See Adoption of Hugo, 428 Mass. 219, 228-229 (1998). Not only do the extensive findings of fact and conclusions of law demonstrate the judge's careful consideration of the relevant fitness factors, but they also support the adoption plan proposed by DCF. See Adoption of Dora, 52 Mass. App Ct. 472, 474 (2001) ("[I]n addition to considering the issue of parental unfitness, the judge must consider the adoption plan proposed by [DCF] before terminating parental rights"). The judge further acknowledged the positive aspects of the father's relationship with the child and the child's bond with the father by expressly providing for posttermination and postadoption visitation between the child and parents.
The judge found that the proposed plan represented the best interests of the child. DCF's plan was for the child to be adopted by the maternal grandmother, and if she ultimately was not approved, DCF's plan was for adoption by recruitment.
Decree affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 15, 2016.