Opinion
No. 16–P–187.
09-29-2016
ADOPTION OF EVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree entered in the Juvenile Court finding that the Department of Children and Families' (department's) adoption plan for his daughter, Eva, rather than the father's own adoption plan, serves Eva's best interests. We affirm.
Background. Prior to trial on the department's care and protection petition, the father and the mother stipulated to present unfitness as parents. During the course of the four-day trial, the mother stipulated to termination of her parental rights, having entered into an open adoption agreement with Eva's foster parents, who are also her preadoptive parents. Following trial, the judge terminated the father's parental rights and further determined that the department's adoption plan, for Eva to be adopted by the foster parents, was in Eva's best interests. The father appeals only from the judge's decision regarding the adoption plan, contending that the judge did not give fair consideration to his familial adoption proposal.
Although the father does not appeal from the termination of his parental rights, he may nonetheless appeal from the adoption decision made in the same proceeding. See Adoption of Rico, 453 Mass. 749, 757 n. 16 (2009) ; Adoption of Douglas, 473 Mass. 1024, 1029 (2016).
We summarize the judge's findings of fact that relate to the two competing adoption plans. Eva was born in March, 2014. Days after Eva's birth, the department received reports of neglect, and placed Eva in the care of the foster parents, where she has lived ever since. One week later, the mother obtained a G.L. c. 209A restraining order prohibiting the father from having any contact with her or Eva. The order, still active, expires in April, 2017.
The father has a history of drug and alcohol use. He also has an extensive criminal record of drug and violent offenses, as well as multiple restraining orders obtained by previous girl friends and the mothers of his other children. In May, 2014, the paternal aunt (aunt) applied to be the primary caretaker of Eva, with the paternal grandmother (grandmother) as secondary caretaker. The aunt lived in Massachusetts, while the grandmother lived in New Hampshire. At the time, the aunt had an open case with the department, and her placement resource application was denied. The grandmother then expressed her interest in adopting Eva. In addition to the aunt's open case, the Interstate Compact on Placement of Children process and the paternal grandfather's (grandfather) criminal record delayed the grandmother's application for custody of Eva.
By October, 2014, the department was considering the grandmother as a placement resource for Eva. Although the grandmother was actively involved in the placement process and had regular monthly visits with Eva, the grandfather saw Eva only once. The grandmother had a suitable bedroom for Eva in her three-bedroom home in New Hampshire, although it was not yet set up. The grandmother often takes care of the aunt's daughter, as well as a paternal uncle's three children. In addition, the grandmother takes care of another paternal uncle's children occasionally. Both paternal uncles have significant criminal records, including violent crimes and crimes involving firearms, as well as multiple restraining orders.
The grandmother testified that the grandfather had seen Eva two or three times, but the department's social worker testified that he saw Eva just once. The judge credited the social worker's testimony.
The father regularly visits the grandmother's home. According to the grandmother, the father understood that if Eva were in her custody, he would not be allowed to visit without the department's permission. However, the father testified that if he or the grandmother were awarded custody of Eva, he would live with the grandmother and help raise Eva.
With respect to the foster parents, the judge found that Eva “is thriving in foster care and has a strong bond with her foster family .” They own a three-bedroom home with a yard, have two adopted sons (both age five), a foster daughter (age three), and many rescue animals; Eva interacts well with all of them. Both foster parents have flexible jobs, allowing them to work from home; they both attended every trial date, foster care review, and meeting with the department. Eva calls her foster parents “Mama” and “Dada.” When the grandmother arrives to visit, Eva “shakes her head no. She is excited when her foster parents return at the end of the visit and has never cried upon leaving her grandmother.”
Discussion. In the case of a proposed adoption plan, “[t]he judge's obligation to ‘consider’ a plan involves much more than simply examining it. The judge must perform a ‘careful evaluation of the suitability’ of the plan and must ‘meaningfully ... evaluate’ what is proposed to be done for the child.” Adoption of Dora, 52 Mass.App.Ct. 472, 475 (2001), quoting from Adoption of Lars, 46 Mass.App.Ct. 30, 31 (1998), S.C., 431 Mass. 1151 (2000). A judge's determination of custody must be based on the best interests of the child, after an “even handed” assessment of the evidence. Adoption of Hugo, 428 Mass. 219, 225, 226 n. 8 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). A judge's findings are entitled to substantial deference, and we will not disturb those findings unless they are clearly erroneous. Adoption of Cadence, 81 Mass.App.Ct. 162, 166 (2012). “In addition, we defer to the judge's determinations regarding the best interests of the child, and reverse only where there is a clear error of law or abuse of discretion.” Ibid.
After careful evaluation of the record and the judge's conclusions, we are satisfied that the judge did not abuse his discretion in adopting the department's placement plan over the father's plan. “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives .” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir.2008). The father contends that the judge failed to carefully weigh the evidence, and merely adopted the department's testimony and recommendations; however, our review of the record as a whole supports the judge's findings and conclusions.
The evidence supports the judge's legitimate concern that the father and his siblings, all of whom have had significant interactions with the criminal justice system, the department, or both, might have contact with Eva if she were placed with the grandmother. Although the father testified that he had not been to the grandmother's house in “maybe two or three months,” he also testified about many connections with the grandmother and other family members. For example, he testified that he had seen the grandmother three weeks before his testimony, and he gave the grandmother's telephone number and home address to the department as his contact information. He also testified that he lives with the aunt two to three days each week. This testimony supports the judge's concern that the grandmother would be unable to keep the father away from her home if she were awarded custody.
The judge's finding that the aunt has an open case with the department, while somewhat stale, is not clearly erroneous. “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ “ Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). Although the father testified that the aunt was not involved with the department, and the grandmother testified that she was not aware that the aunt ever had a case with the department, a department social worker testified that the aunt had an open case at the time she applied to be the primary caretaker for Eva. Giving deference to the judge's assessment of the weight of the evidence and credibility of the witnesses, we cannot state with “firm conviction” that the aunt did not have an open case with the department at the time of trial. Custody of Eleanor, supra (citation omitted).
The father accurately observes that both the grandmother and the foster parents offered similar housing situations, and that both the grandmother and the foster parents were responsible for the care of several children in addition to Eva. Notwithstanding these similarities, we disagree that the judge's treatment of the competing plans was unbalanced or unfair. In his findings and rulings, the judge explicitly recognized his obligation to make an even handed assessment of all the facts surrounding the competing plans and not to give deference to the department's plan. The father's arguments “simply reflect dissatisfaction with the judge's ‘weighing of the evidence and his credibility determinations.’ “ Adoption of Hugo, 428 Mass. at 224, quoting from Adoption of Quentin, 424 Mass. 882, 886 n. 3 (1977). “[T]he judge must assess the alternatives and, if both pass muster, choose which plan is in the child's best interests, however difficult that choice may be.” Adoption of Dora, 52 Mass.App.Ct. at 475. On appeal, “our task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused his discretion,” Adoption of Hugo, supra at 225, or made findings that were clearly erroneous. Adoption of Cadence, 81 Mass.App.Ct. at 166. We conclude that he did neither.
Decree affirmed.