Opinion
15-P-913
12-29-2015
ADOPTION OF LEAH.
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 father appeals from a decree terminating his parental rights to Leah entered by a judge of the Juvenile Court. See G. L. c. 119, § 26; G. L. c. 210, § 3. He argues that (1) the decree terminating his parental rights was not based on clear and convincing evidence, (2) it was not in Leah's best interests to terminate his parental rights, and (3) the judge abused her discretion in refusing to order posttermination visitation. We affirm.
The mother stipulated to the termination of her parental rights and she is not involved in this appeal.
The judge made a total of 113 findings of fact based on three days of testimony from thirteen witnesses and the introduction of forty-four exhibits. The judge considered evidence from both first-hand observations of Department of Children and Families (DCF) staff, family members, and police officers, and also reports containing statements by third parties including social workers, Leah's mother, and Leah's relatives. We focus on the findings relevant to the issues raised on appeal, and on the findings pertaining to the best interests of Leah.
The judge heard testimony from the father, the paternal aunts and the paternal grandmother, two Brockton police officers, the father's employer and coworker, three Department of Children and Families (DCF) social workers and one intake screener, and the father's expert who conducted a parenting assessment.
Among the exhibits introduced are four G. L. c. 119, § 51A, reports ("solely to set the stage"), multiple DCF service plans, police records, the mother's and father's criminal offender record information reports, and reports from the court investigator, DCF, and the father's expert.
"Case work documents and court investigator reports prepared by [DCF] staff in the course of their work" bear the indicia of reliability and any hearsay contained within is admissible. Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 185 (2010) (quotation omitted).
History of incarceration. The judge's findings include the following: The father has an extensive criminal history, which includes eighty-nine arraignments that span more than twenty years from his eighteenth birthday up to the present. His criminal history is reflective of his substance abuse and much of it involves behavior that was threatening, abusive, and violent. He has been incarcerated on multiple occasions, with sentences extending from three months to two and one-half years. More importantly, he was absent from the majority of Leah's first two years of life due to incarceration; Leah lived mostly with the mother during that period. Around the time of trial, he had four open charges stemming from two events.
History of substance abuse. The judge found that the father has consistently abused drugs, including cocaine and heroin, since his late teens. His criminal history includes multiple drug offenses involving Class A, B, and C substances and two convictions for operating under the influence. He has attended many treatment programs without much success.
During his relationship with Leah's mother, they abused drugs together. Both continued to use drugs after the mother became pregnant with Leah. The father claims to have stopped using heroin and opiates after Leah's birth, but family members observed behavior consistent with substance abuse during the pendency of these proceedings.
These statements were made to Julia Montminy, an expert hired by the father's counsel to conduct a parenting assessment. They were discredited by the judge.
At one point after the birth of Leah, the paternal grandmother reported to the court investigator that the father was using substances again, "so she revoked his bail." "[She] had bailed him to be with his little girl, but it was not safe."
History of volatility. The judge found that the father has a history of domestic violence both with the mother and other family members. The mother described the father as abusive, controlling, and frequently angry. Police were involved in multiple instances. The mother was granted a restraining order against the father in February of 2012. Leah's maternal grandmother reported to the court investigator that the mother was often bruised and suffered broken teeth during her relationship with the father. The mother remained affected by the father's behavior even after their relationship had terminated. The judge further found that the father's own family was aware of the abusive nature of his relationship with the mother. Leah's paternal grandmother described the father's relationship with the mother as "problematic" and one of Leah's paternal aunts acknowledged that the father had a history of domestic violence.
In one instance, the police responded to a domestic violence call in April of 2010 where the father was charged with assault and battery after he had grabbed the mother's hair and slammed her face into a mattress. In September of 2011, another altercation occurred in Leah's presence where the mother was arrested after the father called the police.
In June of 2014, the mother and the father were conversing outside of the courthouse. A DCF social worker observed the mother visibly upset, crying and shaking.
The father continues to have issues of domestic violence with his own family members. In September of 2014, an episode occurred at the paternal grandmother's house while the father was residing there. The paternal grandmother confronted the father after becoming suspicious that he had relapsed into drug use. The father became "enraged," smashing "his television on the ground and threaten[ing] that he had access to 'guns' and could cause a 'blood bath.'" Leah's paternal aunt, the then foster parent, reported the incident to DCF and obtained a restraining order against the father. After this event, the paternal aunt rescinded her interest in adopting Leah in the event the father's rights were terminated, fearing that the father would never change and continue to bring "drama" into her and Leah's life.
This was not the first restraining order family members had obtained against the father. One prior restraining order granted to the paternal grandmother was the result of an altercation in 2007 where the police showed up at the senior park where the paternal grandmother then resided. The paternal grandmother claimed the senior park required her to get the restraining order to continue living there for the peace of mind of the other residents. Another restraining order had previously been granted to the paternal grandmother in 2003.
She also expressed concern for her two sons, who "have had enough of their uncle's traumas."
The father was unwilling to address these issues with DCF. The DCF supervisor attempted, without success, to discuss anger management issues with the father and demonstrate the importance of interacting civilly with others in Leah's presence.
The father's criminal history also includes several crimes of violence and civil disobedience, such as disorderly conduct, disturbing the peace, resisting arrest, malicious destruction of property and threats, and assault and battery by means of a dangerous weapon.
This last charge was the result of the father stabbing the mother's ex-boyfriend with a knife in April of 2011. Although the father was not charged with any new offenses thereafter until October of 2014, a period of three and one-half years, he was imprisoned for all but one year of that period, until October of 2013.
Service plan compliance. Comprehensive service plans were in place for the father from October 12, 2011, to March 15, 2013. After being released from incarceration in November of 2011, the father refused to cooperate with DCF, participate in an assessment, and engage in services. He continued his abusive relationship with the mother, harassing her at a women's shelter. The father was again incarcerated later that month and remained incarcerated until October of 2013, a total of twenty months. While incarcerated, he completed several programs, including a sixteen-week violence prevention program and responsible fatherhood program.
This service plan was not tailored to the father's incarceration status; as a result, DCF did not formally rate the father due to his incomplete service plan.
One such incident involved the father's banging on the shelter windows, alarming the other residents.
On September 5, 2013, the father and mother entered into their first stipulation that there was sufficient evidence, based upon facts set forth in evidence, that they lacked the ability, fitness, and readiness to receive custody of Leah, and that clear and convincing evidence existed to adjudicate Leah in need of care and protection and to commit Leah into DCF's custody.
The father made the same stipulation on July 1, 2014.
After the father's release from jail in October of 2013, he resided at the paternal grandmother's house, worked odd jobs, and collected food stamps. He began participating in DCF services but continued to antagonize DCF staff, requiring a DCF supervisor to become personally involved with the case. During telephone conversations with DCF staff, the father would swear and abruptly terminate the conversation by hanging up.
The DCF supervisor had approximately thirty telephone conversations and ten meetings with the father. The judge found that this level of involvement was unusual as this DCF supervisor handled hundreds of cases and she rarely became as involved in a case as she was with the father in this case.
Although the father participated in DCF services, the judge found he made little progress in addressing his history of domestic violence and substance abuse. The father has consistently denied his history of domestic abuse, claiming the mother fabricated the abuse. He has continued to reject the need for counseling and treatment, referring to a batterer's intervention course as a "bullshit class."
The judge discredited the father's statements to Julia Montminy, an expert hired by the father's counsel to conduct a parenting assessment. According to Montminy, the father reported that he had benefited from the batterer's intervention course and that he had learned to walk away from difficult situations. The judge found these statements to be self-serving and contradicted by the father's continuing adversarial behavior towards DCF employees. The father also made several statements to Montminy minimizing his violent history. The judge found that the father made inconsistent remarks during the same time period to the court investigator about his situation. The father continued to minimize his violent history and drug use, claiming that he did not need substance abuse meetings or treatment plans.
The father stated that violence with the mother was "not a daily problem," and that after the birth of Leah, violence was "nothing like the level there was before." He further claimed that Leah had never witnessed the violence.
In January of 2014, the father was given a new service plan, which he refused to sign. In March of 2014, he obtained stable employment as a construction worker. The father began showing improvement in participation of his DCF service tasks, and continued to attend a variety of services and classes despite claiming them unnecessary. He received positive feedback in his progress reports from those service providers. However, the father's therapist found that while the father was progressing, he still "has a ways to go." During this time, the father continued to be combative towards DCF.
The employer spoke highly of the father's skill at carpentry.
In her April of 2014 report, Montminy concluded that the father "does not have a proven track record or longevity to assure the court or his daughter that he will continue to succeed" and needed "at least several more months of sobriety and stability" before proving his capability to parent. Montminy also cautioned against the father's immediate reunification with Leah.
Despite his participation in the service plan, the father has continued to display a combative attitude towards anyone restricting access to Leah. The father continues to act inappropriately towards DCF staff; he was seen videotaping a DCF supervisor placing Leah into her car after a visit. He made statements that he would hire a private investigator to monitor the social workers involved with Leah. He later displayed his knowledge of personal information of DCF staff. On November 18, 2014, the DCF supervisor obtained a temporary harassment prevention order against the father.
Meanwhile, the altercation in September of 2014 described above occurred at the paternal grandmother's house. Even more alarming to the judge was the father's arrest on October 9, 2014, for disorderly conduct, disturbing the peace, and resisting arrest.
Two Brockton police officers responded to a call in the early morning for a disturbance. When they questioned the father, he made evasive remarks. The father refused to keep his hands in sight. After one officer advised the father he would be pat frisked, the father took a fighting stance by clenching his hands and raising his arms. The father pushed one officer and took a swing at him, then ran off. After chasing the father, the other officer tasered him, and then placed him under arrest. Both officers observed the father was acting a "little hyper," "like he was high on something."
During trial, the father continued to display his argumentative disposition, and again minimized the significance of his history of substance abuse and domestic violence. During his testimony, he stated: "I don't believe the Court -- the DCF department is even remotely right. And you guys are just fabricating this whole shit against me." The judge found that the father refused, and continues to refuse, to acknowledge his behavior and take responsibility for his actions.
Relationship with Leah. The judge acknowledged that the father's visits with Leah have been consistent and that he adequately prepared for those visits. As a result, DCF increased the duration and frequency of his visitation privileges and allowed for supervised community visits. However, the judge also found that despite the father's direct relationship with Leah, he was unable to comprehend the impact of his behavior towards others on Leah.
Of the fourteen factors set forth in G. L. c. 210, § 3(c), the judge found that four were applicable to this case. Specifically, the judge noted that the father's relationship with his family and the mother is fraught with domestic violence and he has refused to utilize DCF services in a beneficial manner. G. L. c. 210, § 3(c)(ii), (v), (vi). Despite the father's growing bond with Leah and his genuine desire to care for her, he continues to engage in the behavior and lifestyle he has maintained for the past twenty years. G. L. c. 210, § 3(c)(viii).
The judge also noted that while he made no specific finding of fact as to whether the father's substance abuse is likely to continue for a prolonged indeterminate period, see G. L. c. 210, § 3(c)(xi), he was troubled by the father's history of substance abuse and recent indications of relapse.
The record provides clear and convincing support for the judge's conclusion that the father is unfit to assume parental responsibility, especially given the father's repeated refusal to acknowledge and sincerely address his issues, and that termination of the father's parental rights is in Leah's best interests.
We conclude as well that the judge did not abuse her discretion in declining to order posttermination visitation. "[A] judge should apply the same standard to visitation rights as he does to a permanent custody decision." Adoption of Helen, 429 Mass. 856, 862-863 (1999). The record shows that the father continues to have difficulty controlling his temper and staying out of trouble with the law. He has repeatedly displayed anger and inappropriate behavior towards anyone restricting his access to Leah, be it family members or DCF staff. Posttermination visitation would provide a continuing stimulus for the father's previously demonstrated behavior. We agree with the judge's conclusion that "[Leah] is entitled to predictability, stability, and permanency and a life free of the strife and controversy her father would most assuredly bring."
Despite the pejorative overtones of the statutory term "unfit," the judge's decision is not a moral judgment; nor is it a determination that the father does not love the child. The question for the judge is "whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Conclusion. In sum, the record demonstrates that the judge was careful and conscientious in weighing the factors relevant to the decision, and that her exercise of discretion is fully entitled to the deference imposed by our standard of review. See Adoption of Hugo, 428 Mass. 219, 224-225 (1998), cert. denied sub. nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See also Custody of Eleanor, 414 Mass. 795, 799 (1993).
Decree affirmed.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/_________
Clerk Entered: December 29, 2015.