Opinion
20-P-651
01-07-2021
ADOPTION OF HEIDI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a trial in the Juvenile Court, a judge found the father unfit to parent the child, terminated his parental rights, approved the Department of Children and Families' (department) plan of adoption by the child's current foster parents, and declined to order posttermination visitation. On appeal, the father contends that the judge abused her discretion in terminating his parental rights because many of the judge's factual findings were clearly erroneous and because the judge ignored evidence of the father's recent positive gains. He also contends that the judge abused her discretion in approving the department's adoption plan and declining to order posttermination visitation. We affirm.
The judge terminated the mother's parental rights after she stipulated to unfitness, and she is not a party to this appeal.
Background. We summarize the judge's findings of fact, which are supported by the record evidence in the case. In December 2015, the child was born premature and substance exposed. She spent approximately one month in the hospital for medical care to address withdrawal symptoms. Shortly after her birth, a mandated reporter filed a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of the child by the mother, and the department obtained temporary custody of the child. She remained in department custody for the following thirteen months, returning to the mother's care in February 2017. Although the care and protection petition was eventually dismissed in June 2017, the department kept its clinical case open in order to follow up with the mother. During this time, the father was incarcerated and his identity was unknown to the department.
When the father was released from jail in or around June 2017, he moved in with the mother and the child, living with them for approximately two to three months. The family's social worker conducted two home visits during this time and reported that the house was dirty, a window was broken, and the child's bedroom smelled like spoiled milk. The parents fought while they were living together, sometimes physically, and sometimes in front of the child. In September 2017, the father left the home, after an argument with the mother, because he was overwhelmed by the responsibility of caring for the child.
The department was not aware that the father was living with the mother and the child until September 2017.
Two days after the father left, he was arrested on charges of armed robbery and assault and battery by means of a dangerous weapon. He subsequently was convicted of these charges, as well as possession of a large capacity firearm, and received a four to six year State prison sentence, which he is currently serving. The mother was also arrested on charges arising out of the same incident. A 51A report was filed on the same day of the incident, alleging neglect of the child by the mother and the father. The next day the department filed a care and protection petition and obtained temporary custody of the child, placing her with her current preadoptive foster family, where she has lived ever since. The child was over three and one-half years old when the Juvenile Court decree terminating the father's parental rights issued.
The mother was detained upon a finding of dangerousness, pursuant to G. L. c. 276, § 58A, and released from jail in February 2018.
Discussion. 1. Termination of parental rights. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Id. at 606-607.
"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). The father concedes that his incarceration makes him currently "unavailable" to parent the child. He argues instead that, stripped of the judge's erroneous findings, there was insufficient evidence to support the finding of future unfitness, and the subsequent termination of his parental rights. The father does not challenge specific findings of fact, but argues generally that the judge failed to consider his compliance with his action plan and cooperation with the social worker, his improved mental health, and his care for the child.
The father also assigns error to the judge's finding that he may be eligible for release from prison on or about November 2023. He argues that his accumulated "good time" would make him eligible for parole in 2020. However, the only evidence presented at trial regarding the amount of "good time" that the father had accrued was his own testimony, which the judge was not required to credit. Moreover, the decision whether to grant parole is at the discretion of the parole board. See Commonwealth v. Amirault, 415 Mass. 112, 116 (1993), citing Lanier v. Massachusetts Parole Bd., 396 Mass. 1018, 1018 (1986).
"Because termination of a parent's rights is an 'extreme step,' a judge must decide both whether the parent is currently unfit and whether, 'on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary'" (citations omitted). Adoption of Ilona, 459 Mass. 53, 59 (2011). In determining whether parental unfitness is temporary, "[a] judge may properly be guided by evidence demonstrating reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests," Adoption of Carlos, 413 Mass. 339, 350 (1992), but a judge may not make this determination based on a "faint hope" that the parent may become fit in the future. Adoption of Inez, 428 Mass. 717, 723 (1999).
The father first argues that the judge failed to properly consider evidence of the benefit that he received from participation in services while he was incarcerated, as well his overall compliance with the department's action plan. "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60. Although there was evidence that the father, while incarcerated, participated in programs offered by the prison facility, these programs were primarily aimed at reforming criminal behavior rather than improving as a parent. The judge's finding that the father was motivated to participate in these programs in order to receive "good time" was well supported by the record. Additionally, the father was placed in disciplinary segregation multiple times, violating the action plan's requirement to refrain from engaging in illegal activity. The father's claims of error amount essentially to a disagreement with the judge's assessment of credibility and the weight of the evidence, "to which we accord substantial deference." Adoption of Peggy, 436 Mass. 690, 702 (2002).
The father also contends that the judge ignored evidence of his improved mental health, and thus erred in finding that his history of mental illness was predictive of his future ability to care for the child. We disagree that the absence of a mental health crisis within a period of about one year is conclusive evidence of parental fitness. The judge found that the father had threatened to attempt, or had in fact attempted, suicide on at least three occasions. After every incident, the father was offered mental health treatment -- either medication, counseling, or a combination thereof. The judge did not err in finding that the father's significant and long-standing mental health problems were unlikely to abate when presented with evidence of previous unsuccessful treatments. Mental health is relevant to the unfitness determination "once a nexus has been established between the illness and diminished parenting ability," Adoption of Saul, 60 Mass. App. Ct. 546, 554 n.11 (2004), and here the judge properly weighed the father's history of reoccurring suicidal ideations in finding that it was unlikely the father would be able to assume parental responsibility and to provide a safe and stable home environment for the child when he was released from prison.
Nor did the judge improperly ignore favorable evidence that pointed to the father's relationship with the child while he was her caretaker. Contrary to the father's assertion, the judge's findings demonstrate careful attention to the father's ability to care for the child's needs during the short time in which he lived with her, as well as to their relationship after he was incarcerated. The judge found that the father and the mother "planned to be a family," and that he moved in with the mother and the child as soon as he was released from jail in or about June 2017. Although the judge's findings do not reflect the social worker's testimony that the father seemed to care for the child in a "gentle" and "nurturing" manner, that absence does not lead us to conclude that the judge did not make a fair assessment of the evidence as a whole. See Adoption of Jacques, 82 Mass. App. Ct. at 608 (judge acts within permitted discretion in considering evidence of parent's successes "within the context of [parent's] earlier and continuing deficits"). Within the time period that the father was caring for the child, the social worker observed that the apartment was dirty and a window was broken. Both parents testified to incidents of domestic violence. Most concerning, however, was the unsecured, loaded firearm discovered in the apartment, in a location easily accessible to a child, just after the father's arrest.
The firearm was discovered in a search executed by the police pursuant to a search warrant. The police also discovered that the top hinges of the apartment's front door were unscrewed causing the door to fall once unlocked and that there were feces on the floor of the kitchen.
We similarly see no error in the judge's assessment of the father's relationship with the child after he was arrested. Although the father visited consistently with the child once he was sentenced and transferred to State prison, the judge properly did not take these visits as a sign that he would fulfill future parental obligations. She noted that "the responsibility was on the social worker to bring [the child] to the facility for each visit" and that "[i]t is unknown whether visits would occur with such consistency if the responsibility were on [the f]ather." Given that the parent-child visits were unable to occur during the approximately nine months the father was in pretrial detention (because he failed to assign anyone to be approved by the department as a visiting resource), we disagree that the judge's conclusion was "speculati[ve]."
The social worker was unable to coordinate parent-child visits during this time because of the department's policy against sending social workers to this particular facility.
Finally, we are unpersuaded by the father's argument that the judge "exaggerated [the f]ather's criminal history while speculating as to his future ability to avoid incarceration." To the extent it impacts on parental fitness, consideration of a parent's criminal history is "germane" in care and protection proceedings. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002). The father has been incarcerated for the majority of the child's young life. He has an extensive criminal history of violent offenses and has been affiliated with a gang since about 2014. At the time of his most recent arrest and incarceration, he had been out of jail for about three months. See Custody of Two Minors, 396 Mass. 610, 621 (1986) ("The court is permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness"). The judge properly considered the father's criminal history, and her findings demonstrate a sufficient link between that history and his inability to provide adequate care for the child. We agree with the judge that the child "needs, and deserves, stability" and see no abuse of discretion in her conclusion that the father's pattern of criminal behavior is "a strong indicator that his unfitness and unavailability will continue undiminished into the indefinite future." See Adoption of Ilona, 459 Mass. at 60 ("Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period").
Although the father's juvenile records were admitted in evidence without objection, and are noted in the judge's findings, the judge did not appear to give weight to them in her conclusions of law.
Additionally, the judge considered the fourteen factors specified in G. L. c. 210, § 3, and properly found eight applicable to this matter.
2. Assessment of plans. The father next contends that the judge abused her discretion in choosing the department's plan for adoption by the foster parents, instead of granting the paternal grandmother permanent custody or guardianship. He argues, essentially, that evidence of his recent positive gains and his nomination of a kinship placement made termination of parental rights premature. As we already have reviewed the judge's determination that termination of the father's parental rights was in the best interests of the child, we limit the following discussion to the judge's evaluation of two proposed posttermination plans.
The father argues that the department's policy of preferring kinship placements weighs in favor of permanent custody or guardianship with the paternal grandmother. See Department of Children and Families, Family Resource Policy #2006-01 (July 8, 2008). Contrary to his argument, the Supreme Judicial Court has stated that the central question in awarding custody is the best interests of the child. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See also Adoption of Zak, 87 Mass. App. Ct. 540, 545 (2015) ("A biological and/or cultural match between child and caretaker is a desirable aim; but it is a single factor among many. It cannot be permitted to generate a placement decision that is not otherwise in the child's best interests" [citation omitted]). This proposition is reflected in the department's Family Resource Policy.
"A plan proposed by a parent is not entitled to any artificial weight as opposed to alternative plans." Adoption of Oren, 96 Mass. App. Ct. 842, 847 (2020), quoting Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2002). "When the choice is between two caretakers, each of whom seeks to be the substitute for the child's biological parents, a judge may consider a wide range of permissible evidence in determining which placement will serve the child's best interests." Adoption of Hugo, 428 Mass. 219, 228 n.17 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). We review the judge's choice between two proposed plans for an abuse of discretion. See Adoption of Hugo, supra at 224.
Here, the judge considered the father's proposed plan of guardianship with the paternal grandmother, and made detailed findings. The judge acknowledged that visits between the child and the paternal grandmother are successful and that the child "appears to enjoy the visits." However, these visits did not commence until February 2019, and by the close of trial, the child had spent a total of only six hours with her paternal grandmother. There was additional countervailing evidence against placement with the paternal grandmother. The paternal grandmother has a history of involvement with the department and a criminal record. Also, the paternal grandmother is currently the guardian of two young boys, both of whom have behavioral issues for which they receive services, and she herself suffers from health concerns. They live in a two-bedroom apartment that the paternal grandmother struggles to keep organized. The judge concluded that although the paternal grandmother's "desire to assume custody of [the child] is sincere, she is currently overwhelmed with the care of the two young boys that she is guardian of" and she does not have "the capacity to consistently address [the child's] needs and thus placement with her would not be in [the child's] best interests."
By contrast, the preadoptive foster parents have cared for the child since September 2017. They are able to "provide her with comfort and security, and engage her in activities to help her physical, social, and emotional development." The adoption social worker testified to the strong relationship between the child, her foster parents, and her foster siblings. The judge also found that the child is "thriving," and indeed, since her arrival at the preadoptive home, she made such progress so as to no longer need early intervention services. The record supports the finding that the department's proposed plan for adoption by the preadoptive parents offers the child "long term safety and stability." We discern no abuse of discretion in the judge's determination that the department's proposed plan was in the best interests of the child. See Adoption of Oren, 96 Mass. App. Ct. at 847-848.
3. Posttermination visitation. Finally, the judge did not abuse her discretion in declining to order posttermination visitation between the father and the child. "The decision whether to grant posttermination visitation is within the judge's sound discretion," Adoption of Virgil, 93 Mass. App. Ct. 298, 307 (2018), quoting Adoption of Cecily, 83 Mass. App. Ct. 719, 727-728 (2013), and is authorized "where such visitation is in the child's best interest[s]." Adoption of Oren, 96 Mass. App. Ct. at 848, quoting Adoption of Ilona, 459 Mass. at 63. This determination is based on two inquires: "First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?" Adoption of Oren, supra, quoting Adoption of Ilona, supra. See Adoption of Cadence, 81 Mass. App. Ct. 162, 168 (2012) ("an order mandating postadoption visitation requires both a conclusion that visitation would be in the child's best interests and that those interests will not be adequately served by the adoptive parent's discretion").
The judge found that the father's almost complete absence from the child's life had prevented any significant bond from forming between the two, and that although the department had provided the father visits with the child while incarcerated, these visits had not created an emotional bond. The judge recognized the strong bond that the child had formed with her preadoptive foster family and the overwhelming evidence of her progress since being placed with this family. See Adoption of Ilona, 459 Mass. at 64, quoting Adoption of Vito, 453 Mass. 550, 563 (2000) (judge may consider "whether the child 'has formed strong, nurturing bonds' with [preadoptive] family"). Moreover, evidence that the preadoptive parents facilitated visits between the child and the maternal grandmother, and that they planned for postadoption contact with the mother, supported the conclusion that the preadoptive parents would act in the best interests of the child in making decisions regarding visitation. See Adoption of Ilona, supra at 64-65 (adoptive parents entitled to presumption that they will act in child's best interests). Accordingly, we see no abuse of discretion in declining to order posttermination visitation.
Decree affirmed.
By the Court (Rubin, Singh & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 7, 2021