Opinion
No. 13–P–215.
2013-09-24
ADOPTION OF MARGARET.
By the Court (GRASSO, GRAHAM & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial on a care and protection petition filed by the Department of Children and Families in May, 2011, a judge of the Juvenile Court adjudicated the biological mother and father unfit to parent Margaret and terminated their parental rights pursuant to G.L. c. 210, § 3. Both the mother and father filed notices of appeal in the trial court. In this court the father claims, among other things, that the judge's subsidiary findings do not adequately support the conclusions that he is currently unfit to parent the child and that termination of his parental rights is in the child's best interests.
The mother did not file a notice of appeal in this court.
Background. The father's first involvement with the department was in January of 2009 in connection with a report pursuant to G.L. c. 119 § 51A, alleging that, following difficulties with the mother, the father had left home with the child who was clad only in a diaper. In the process, he threatened a neighbor with a knife after the neighbor expressed concern about the child's lack of proper clothing. The report was supported for neglect, and the father later was found guilty of the charge of assault by means of a dangerous weapon and given a nine month suspended sentence. The father's rocky relationship with the mother continued, and, on May 23, 2011, the father obtained temporary custody of the child from a Probate and Family Court judge with conditions. His custody of the child was short lived. On June 8, 2011, the father returned the child to the department via a voluntary placement agreement. The child was found to be unclean, with a cut on her nose, blood stains on her pants, and head lice. In addition, she suffered from severe tooth decay and required dental surgery on several teeth.
Since her return, the child has remained in the custody of the department. On June 13, 2011, she began living in her current foster home which consists of a stay at home mother, a father, and the couple's three biological children, aged six through ten. At the time of trial, she was in good health, bright, articulate, attending preschool, and bonded with her foster family.
Discussion. a. Standard of review. “Parents enjoy a fundamental liberty interest in the care, custody, and management of their children, an interest that does not simply extinguish when if they are less than model caretakers.” Adoption of Zoltan, 71 Mass.App.Ct. 185, 187. In order to justify the extraordinary exercise of State power declaring a parent unfit to care for a child, the department must prove by “clear and convincing evidence that a parent is currently unfit to further the child's best interest[s].” Adoption of Katharine, 42 Mass.App.Ct. 25, 27 (1997). “Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases.” Custody of Eleanor, 414 Mass. 795, 800 (1993), quoting from Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975).
In determining parental unfitness, the issue is not “whether the parent is a good one, let alone an ideal one; rather, the inquiry is whether the parent is so bad as to 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). Moreover, “[a]ppellate review in custody appeals is not done to assess the evidence de novo, but rather to determine whether the judge's findings were clearly erroneous and whether they proved parental unfitness by clear and convincing evidence.” Custody of Eleanor, supra at 802.
b. Determination of parental unfitness. The father argues that the judge's subsidiary findings of fact and the evidence do not adequately support her ultimate conclusions by the requisite standard of clear and convincing proof. We disagree. It is evident from the judge's findings that the determination of parental unfitness was based on a combination of factors which, collectively, constituted “grievous shortcomings or handicaps [placing] the child's welfare much at hazard.” Adoption of Katharine, supra at 28.
The judge, in her conclusions of law, set forth the fourteen statutory factors of G.L. c. 210, § 3( c ), and appropriate principles from Massachusetts appellate cases. Her conclusion that the father was unfit was based upon her findings that the father neglected the child while she was in his care; admitted he was unable to provide proper care for the child at the time of the hearing; and had a history of substance abuse which interfered with his daily life and which he had not adequately addressed; lacked stable housing; failed to permit department investigators to perform visits where he lived; and failed to comply or cooperate with the department service plan, e.g., his failure to complete a parenting class, or to visit the child while she was in the custody of the department.
Taken as a whole, the judge's findings, which are substantiated by the evidence, support her conclusion that the father is currently unfit to parent the child and that termination of his parental rights was in the child's best interests. The judge was not required to wait for some unspecified time in the future when the father would be able to take care of the child. See Adoption of Inez, 428 Mass. 717, 724 (1999).
c. Child's attachment to the preadoptive family. The father argues that the judge's conclusion of law did not comport with the applicable law regarding bonding as a basis to terminate his parental rights, but instead used the impermissible standard of which caretaker might be better for the child. He notes, properly, that where bonding is a decisive factor in terminating parental rights, “a judge would be bound in findings to describe the nature of the bonds formed, why serious psychological harm would flow from the severance of those bonds, what means to alleviate that harm had been considered, and why those means were determined to be inadequate.” Adoption of Katharine, 42 Mass.App. Ct at 30. While the child's bonding with her foster parents must be considered, it cannot be the determining factor in deciding parental unfitness. Adoption of Nicole, 40 Mass.App.Ct. 259, 263 (1996). Adoption of Rhona, 57 Mass. 479, 491–493 (2003).
Quite simply, the bonding issue was not a decisive factor in this case.
d. Best interests of the child. Finally, we find no merit in the father's argument that the judge made no findings regarding the nature of the child's best interests. “After ascertaining unfitness, the judge must determine whether that unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Nancy, 443 Mass. 512, 515 (2005). “That involves a consideration of not only the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment, but also the permanency plan proposed by the Department .” Adoption of Thea, 78 Mass.App.Ct. 818, 823 (2011) (internal citations omitted).
The judge carefully determined that the father was unfit to care for the child, and that the department's plan for the child's continued placement with her preadoptive family, where she was thriving, would serve her best interests. There was no error.
Decree affirmed.