Opinion
No. 13–P–110.
2013-07-18
ADOPTION OF INDIA (and two companion cases ).
By the Court (BERRY, WOLOHOJIAN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a lengthy trial before a judge in the Juvenile Court, the parents were found to be unfit,
their parental rights were terminated, and the plan proposed by the Department of Children and Families (DCF) to place the children in an identified adoptive home was approved. See G.L. c. 119, § 26; G.L. c. 210, § 3. The mother and father both appeal, arguing essentially that the judge's conclusions of parental unfitness were not supported by clear and convincing evidence. We affirm.
Four children were named in the petition seeking to dispense with parental consent to adoption: Stephen (a pseudonym), born in January, 1996; India, born in July, 2002; Melanie, born in September, 2006; and Sara, born in August, 2008. Stephen is not a subject of this appeal.
Background.
In 2003, DCF became involved with the family due to allegations that the mother and father were abusing substances. Both parents tested positive for cocaine; they did not cooperate with DCF and declined services. In late 2004 and early 2005, DCF intervened again based on supported allegations that the children
This background “includes facts found by the judge and uncontested evidence supportive of those findings.” Adoption of Lorna, 46 Mass.App.Ct. 134, 135 (1999). See Care & Protection of Elaine, 54 Mass.App.Ct. 266, 272–273 (2002). Our summary only scratches the surface of the family's extensive history with DCF, which is detailed in the trial judge's thorough findings of fact.
were missing school and the mother went to a school meeting under the influence of some substance. Later in 2005, allegations that the mother was neglecting Stephen and Sara were supported by a DCF investigation. At the time, the mother was residing with the children in a garage without heat, hot water, or a bathroom.
Melanie and Sara were not yet born.
In October, 2006, additional allegations of neglect were supported based on the mother's failure to arrange for after-school care for Stephen. Two months later, DCF filed a care and protection petition after the mother tested positive for cocaine and attributed her test result to the fact that she handled cocaine when packaging it for sale. After the children were adjudicated in need of care and protection, DCF attempted to reunify the family. However, by late 2007, new neglect allegations based on housing code violations were supported by a DCF investigation, and in early 2008, additional allegations of improper supervision of the children were also supported. In June of 2009, a serious incident of domestic violence triggered yet another DCF intervention. The mother obtained an abuse prevention order against the father, attesting that he had punched her in the head, called her profane names, burned her with a cigarette, and threatened to kill her.
Around this time, the father was in jail for several months before pleading guilty to criminal charges related to home contracting projects.
DCF filed a care and protection petition (which led to this case) after the mother reversed course and tried to terminate the abuse prevention order. Between 2009 and 2011, DCF implemented service plans with various tasks for both the mother and father, usually with a goal of reunifying the family. However, in June of 2011, DCF changed the goal to adoption when it became clear that the parents were not making meaningful changes in their behavior. Specifically, DCF staff saw the mother and father together on two occasions, despite the father's agreement to stay away from the mother.
The father testified that India, Melanie, and Sara were present in the home during the violence, and India also gave a statement to police about the incident.
The volatility in the parents' relationship was evident at trial, requiring a delay in the proceedings so that the mother could obtain another abuse prevention order. In addition, although both the mother and father denied their own substance abuse, they each reported that the other had recently used illegal drugs. As the trial judge correctly summarized:
“This family has been involved with [DCF], on and off, since 2003—for the entirety of [Melanie's] and [Sara's] lives and for most of [India's] life. At the same time, Father has been incarcerated repeatedly, for much of the period from 2005 to the present. All of the children, [Stephen] and [India] especially, have been removed from the home and returned a startling number of times. The net result is that the parents, particularly Father, have only lived with the children intermittently since 2005. Throughout this period, the same issues have recurred: domestic violence and conflict, drug abuse or misuse, and inadequate supervision and living conditions.”
Discussion. “When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law.” Adoption of Elena, 446 Mass. 24, 30 (2006). “[T]he ultimate determination that a parent is currently unfit to further the welfare and best interests of children must be based on evidence that is clear and convincing.” Adoption of Daniel, 58 Mass.App.Ct. 195, 201 (2003). “Subsidiary findings must be established by a fair preponderance of the evidence, and will not be disturbed unless clearly erroneous. In this field it is neither possible nor desirable to make decisions with precision, and much must be left to the trial judge's experience and judgment; therefore, the judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference. Where, as here, the judge determines that [a parent] currently is unfit to parent [the] children, and where termination of parental rights is sought, the judge then must determine 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 Elena, 446 Mass. at 30–31 (internal quotations and citations omitted).
The mother and father challenge certain of the judge's subsidiary findings of fact, but none of the challenged findings is erroneous.
With regard to the judge's ultimate conclusion of unfitness, the mother and father frame their arguments in different ways,
The father argues that finding 98 is erroneous, but we view it as a fair understanding of the father's testimony. The father also argues that findings 99 and 100 are erroneous, but it was permissible for the judge to draw inferences regarding the father's empathy for the children based on his inability to recognize the mother's flaws and his failure to appreciate the number of times his children had been removed from the home. See Adoption of Daniel, 58 Mass.App.Ct. at 203 (judge may draw inferences from trial testimony). The mother argues that finding 113 is erroneous, but the record supports the judge's finding that the parents' relationship had long been volatile and chaotic.
but both essentially argue that the evidence was insufficient. Having reviewed all the testimony and exhibits, we are certain that the judge carefully analyzed the evidence and rested his conclusions on the overall dysfunction and instability that plagued this family.
“Nothing is gained by a factor-by-factor analysis of the judge's conclusions and the [parents'] objections thereto, many of which ... constitute mere disagreement with the judge's credibility determinations or the weight the judge gave to certain evidence.” Adoption of Daniel, 58 Mass.App.Ct. at 201.
Both parents argue that the judge impermissibly relied on stale evidence, but they misapprehend the role that history played in the judge's analysis. “[P]rior parental conduct is deemed relevant in assessing the parent's capacity and ability to care for the child.” Adoption of Jenna, 33 Mass.App.Ct. 739, 744 (1992).
The father fails to appreciate that his parental rights were not terminated simply because of “harmless” encounters between him and the mother, but rather because DCF's long history with the family revealed chronic dysfunction.
The father also discounts the judge's conclusion that he failed to complete a batterer's program due to a lack of effort, arguing instead that he could not afford the program. However, to accept this argument, we would have to override the judge's credibility determinations and second guess his weighing of the evidence.
As the judge explained, “Over the span of years, the issues of living conditions, improper supervision, substance abuse and a volatile relationship between Mother and Father have recurred multiple times.”
See Adoption of Stuart, 39 Mass.App.Ct. 380, 382 (1995) (“[D]eference is to be accorded the trial judge's assessment of the credibility of witnesses and the weight of the evidence”).
The judge found: “Father testified that the only reason he has not finished the MOVE program is economic limitations.... The Court does not credit this because Father has missed a number of meetings of these programs leading to his dismissal from them.”
The mother argues that there is no demonstrated “nexus” between the parents' shortcomings and any detriment to the children. She also argues that the judge simply relied on the number of DCF interventions instead of focusing on any specific parental behavior. The response to both of these arguments is the same. “Stability in the lives of children is important, particularly in a case that has continued for a long period of time.” Adoption of Nancy, 443 Mass. 512, 517 (2005). As the trial judge concluded, the children have suffered above all from the chronic instability and volatility caused by their parents.
Decrees affirmed.