Opinion
15-P-1229 15-P-1230
05-03-2016
ADOPTION OF JACOBY (and three companion cases).
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
These are two related appeals from decrees by a judge of the Juvenile Court terminating the mother's parental rights to her three oldest children (15-P-1229), and to her youngest child (15-P-1230). The mother appeals from the termination of her rights to all four children as well as from orders relating to posttermination placement and visitation. The underlying facts are not disputed and generally relate to all four of the children; we identify those particular circumstances that the judge found to differ between or among the children in our consideration of the issues.
The mother and father surrendered their parental rights to Kevin, their fourth child, who was born in 2011, and he is not part of these appeals.
As the underlying facts are largely identical, this memorandum and order is issued for both cases.
The children, aged thirteen, eleven, seven and two at the time of the decrees, have both parents in common. The basis for the termination of the mother's rights was the judge's finding of "a cycle of domestic violence" that began when she was pregnant with the oldest child, and that the mother described as "physical, emotional and sexual." We summarize the judge's extensive findings of fact, based on the evidence, that relate to the instability, violence, and abuse in the parents' relationship:
The eldest child, Jacoby, testified that when he was about six years old (in 2006), his father held a knife to his throat. The mother and father had been arguing and "got into a huge fight." He said that the mother was present when the father held the knife to him, and the mother told the father to stop. In another incident that Jacoby recalled with particularity, the father hit him in the face and gave him a black eye. He testified further that the mother would also play rough (punch him in the arm and "mess around") and hurt him as well. The mother corroborated that sometimes, she would not intervene on behalf of the children when the father was being mean, as she felt it would make it worse for them.
The second child, Meg, testified that when she lived with the mother and father, she and her siblings were "hurt." She stated that both parents hit her and that the mother hit her and the father cheered the mother on. She recalled that on one occasion, the mother hit the third child, Allen, leaving him with a red mark on his face. She recalled that while the father was in jail, Steve (a pseudonym), a temporary boy friend of the mother's, was at their house. She recalled that Steve hurt her, and on one occasion, stabbed Allen in the hand with a fork at the table. She also remembered the father calling her and her brother names ("retarded," "faggot," "stupid"), that the father called her "slut" and "whore," and that the mother did nothing to stop it. When asked to explain her understanding of why the father went to jail, she said that her parents were in a fight. She said the mother hurt the father, then the father got a knife and held it to "me and [Jacoby's] throat." She also had a specific memory of being told by both parents to lie about Jacoby's black eye in early 2012.
The judge noted that no other witness testified that the father held the knife to Meg's throat but observed that "at a minimum, [Meg] has a memory of an extremely traumatic event involving a knife, which posed a threat to her and brother's safety."
Finally, the judge noted that during additional trial testimony taken in August, 2014, Meg disclosed that she was sexually abused by the father on numerous occasions during the short period of time she lived with both parents. The father admitted some of the sexual abuse to police.
The mother testified that she met the father in late 1999 and that she became pregnant by him within approximately one month. He was verbally abusive to her during the pregnancy and both verbally and physically assaultive after she gave birth. In 2001, the father was abusing alcohol and "partying." He continued to be physically and verbally abusive to the mother, causing her to leave him and return to her parents' home. In 2002, when the mother and the father resumed their relationship, the father continued to be physically and verbally abusive, which included "slapping, grabbing, pushing, [and] yelling".
In 2004, the father robbed the mother at knifepoint in the children's presence. Shortly thereafter he went to jail, apparently as a result of the incident. The father was released from jail in October, 2006, whereupon the mother and father immediately resumed their relationship. The first time that the father punched the mother with a closed fist came shortly after their reunion. In November, 2006, according to the mother, the father brutally attacked her, and he was again incarcerated.
The November 2006 attack involved a confrontation that also included a next door neighbor, Nancy (a pseudonym), who was alleged by the children to have been seen kissing the father. The father broke a television set and a telephone at Nancy's house. Thereafter the mother and father fought in the street outside both houses; the father then moved the mother into their own house (with the children) whereupon he "smashed" her head on the basement door. This was the second time, at a minimum, that the father had put the mother's life in jeopardy.
Nancy has also suffered physical and sexual abuse from the father when they were neighbors. She denied any voluntary participation in sexual relations with the father.
On or about February, 2012, following the removal of the older children from the parents' custody by the Department of Children and Families (DCF), the father once again seriously assaulted and strangled the mother. Yet again, in about late January or early February of 2013, a few days before the father and the mother were due to go to court for trial (for the February 2012 assault upon the mother), the father assaulted the mother by punching her in her throat and breaking her nose. The father was, again, charged with assault and battery.
In the context of this overwhelming evidence of household instability and violence, the mother makes several arguments on appeal. She asserts that the judge abused her discretion by determining that the mother's continuing relationship with the father was not in the best interests of the children. On this record we discern no abuse of discretion.
Next, the mother argues that the judge abused her discretion by awarding physical custody of the three oldest children to the foster mother, Nancy, who herself has a history of being abused by the father. The judge credited evidence of a material and indeed dispositive difference between the mother and Nancy, namely that Nancy was fearful of the father and, unlike the mother, had no history of repeatedly subjecting herself to abuse at his hands for at least a decade. In addition, the abuse suffered by the children was dramatically greater when they resided with both parents, notwithstanding that Nancy also had a relationship with the father, the nature of which is ambiguous. Although the father is incarcerated and likely to remain so for approximately a decade, the evidence established that the mother subjected herself and the children to another abusive relationship when the father was incarcerated. We note as well that, unlike the three older children, the youngest child, Luke, has never resided with either parent; he was placed in foster care shortly after his birth. These findings, and especially the contrast with the mother's repeated reunifications with the father after his increasingly violent and abusive behavior, refute the mother's argument that the judge's decree was "internally contradictory, illogical, and fatally idiosyncratic."
The mother also argues that the judge abused her discretion by not giving the mother an opportunity to "correct a condition or weakness that currently disables [her] from serving . . . her child[ren]'s best interests." Adoption of Carlos, 413 Mass. 339, 350 (1992). The record supports the determination made by the judge after balancing the evidence for and against termination of the mother's parental rights. In tandem with the significant harm inflicted on the childrens' interests by the parents' household environment, the judge noted that no "credible evidence" existed to support a conclusion "there [wa]s a reasonable likelihood that the [mother]'s unfitness at the time of trial . . . [was] temporary." Ibid.
The judge declined to approve DCF's plan for adoption of the three oldest children by Nancy because the plan "does not serve the best interests of the children at this time." In lieu of adoption, the judge provided for "permanent custody of the [three] children to [Nancy]" subject to certain conditions. The mother mischaracterizes the custodial arrangement ordered by the judge for the oldest children as indefinite foster care; to the contrary, a kinship placement is a permanent outcome provided for by State and Federal law. See G. L. c. 119, § 29B(a)(iv), as amended by St. 2010, c. 359, § 21 (allowing approval of a plan where "the child will be placed in permanent care with relatives"); 42 U.S.C. § 675(5)(c) (2012) (providing for placement "with a fit and willing relative"). The judge determined that the kinship placement was in the best interests of the three children. She focused on the significant bonds established between Nancy and the three older children, and was particularly sensitive to the trauma likely to attend the removal of the children from her home. We perceive no abuse of discretion in her decision.
Although Nancy is not related by blood to the children, the judge acknowledged her as kin. This is consonant with DCF policy, which defines "kin" in relevant part as a "significant other adult to whom the child and/or parents ascribe the role of family." We find no error in the designation. See DCF Permanency Planning Policy, Achieving Permanency through Care with Kin at 49 (July 1, 2013).
There was also no error in the judge's finding that no bond existed between the mother and Luke, as he had never lived with the mother. The mother has not contested that finding. Accordingly, the judge did not err in declining to award the mother posttermination visitation with Luke and allowing the adoptive parents to determine if posttermination or postadoption visitation would be appropriate. See Adoption of Vito, 431 Mass. 550, 563 (2000).
Finally, the mother assigns error in the timing of the judge's determinations. The judge terminated the mother's rights before taking up the issue of the children's best interests. This, at least initially, was error. See Adoption of Dora, 52 Mass. App. Ct. 472, 473-475 (2001). However, the judge reopened the proceedings and allowed the mother to participate in the formulation of plans for the children. Whether we characterize this as curing the error or rendering it nonprejudicial, the result is the same. To the extent that a final termination of rights would have deprived the mother of any standing to participate in subsequent proceedings, see Adoption of Douglas, 473 Mass. 1024, 1025-1026 (2016), the mother's participation in those proceedings belies the assertion of premature termination. In this case, the mother was afforded a full opportunity to object to DCF's proposed plans, and to propose alternatives.
We are satisfied that "[f]indings on this aspect of [the] case [regarding alternative placement considerations] . . . demonstrate that [the children's] best interests have been adequately considered." Care & Protection of Three Minors, 392 Mass 704, 716 (1984).
Decrees affirmed.
By the Court (Grainger, Sullivan & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 3, 2016.