Opinion
11-P-53
10-03-2011
ADOPTION OF IDA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a consolidated appeal from (1) a decree terminating the father's parental rights and (2) an order denying the father's motion for new trial. The father contends that the determination of parental unfitness rests upon erroneous factual findings that the child bonded with her preadoptive parents and the father wilfully missed visits with the child. The father also argues that the judge erred in failing to order postadoption visitation. On appeal from the denial of his new trial motion, the father asserts that the judge erred in reconstructing the record, leaving an inadequate basis for presenting his appellate claims. We discern no error that warrants reversal in either instance.
The mother stipulated to the termination of her parental rights and is not involved in these proceedings.
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1. Termination of parental rights. In assessing whether termination of parental rights is appropriate, a judge must examine parental fitness and then determine whether the child's best interests require severing legal relations between parent and child. See Adoption of Nancy, 443 Mass. 512, 515 (2005). A finding of parental unfitness by clear and convincing evidence is the 'critical inquiry.' Adoption of Peggy, 436 Mass. 690, 701, cert. denied sub nom. S.T. v. Massachusetts Dept. of Social Servs., 537 U.S. 1020 (2002). To determine a parent's fitness, a judge must consider statutory factors including whether a parent's incarceration will deprive the child of a stable home, whether the parent has a substance abuse problem likely to preclude him from providing an acceptable level of care, whether any member of the immediate family has been abused or neglected, whether the child has formed a strong bond with a substitute caretaker in the parent's absence, and whether the parent has wilfully failed to visit the child. G. L. c. 210, § 3. No single factor is determinative. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987).
Here, the judge's factual findings establish by clear and convincing evidence that the father is unfit and that it is in the child's best interests to dispense with his consent to her adoption. The father's unfitness arises from his chronic and consistent unavailability to parent the child due to repeated incarcerations, his long-standing and unaddressed heroin addiction, his lack of experience as to what parenting requires (including his failure to care for, or parent, any of his other children), his unrealistic view as to what parenting entails, his lack of insight into the needs of the child, his proclivity to domestic violence and lack of awareness as to its harmful effects, and his inability to utilize the services available to address his deficiencies on a consistent basis.
The judge did not, as the father asserts, rely solely on the fact of incarceration in determining unfitness. The father's extensive record of incarceration was but one of the many factors that the judge properly considered. See Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ('unavailability of the parent to provide day to day care for the child, including for reasons of incarceration, was relevant evidence of unfitness').
We reject the contention that the determination of unfitness rests on the erroneous factual findings that the child bonded with her substitute caretakers and the father wilfully declined to visit her. Although evidence of bonding was scant, the available evidence permitted the judge to draw the inference that the child had developed a strong positive bond with the foster parents. Moreover, bonding was not a decisive, or even an important, factor in the overall determination. Viewed in the abstract, we agree that the judge's subsidiary finding that the father wilfully missed visitation with the child overstates the case. Viewed together with the judge's detailed findings regarding the substantial limitations upon visitation owing to the father's incarceration in various State prisons, the challenged finding amounts to little more than a claim that the judge erroneously blamed the father for missing visits in circumstances that he could not control. In any event, these findings were not determinative of the father's unfitness. See Adoption of Sherry, 435 Mass. 331, 336 (2001) ('we need not disturb a judgment when error did not affect the outcome'); Adoption of Rhona, 57 Mass. App. Ct. 479, 492 (2002). The judge's detailed factual findings demonstrate a thorough understanding of the entire picture and establish the father's unfitness by clear and convincing evidence.
There is no merit to the contention that the judge erred in declining to order postadoption visitation. A judge has discretion to order postadoption visitation if he concludes that it is in the child's best interests. See Adoption of Ilona, 459 Mass. 53, 63 (2011). Visitation is not deemed to be in the child's best interests unless there is a significant bond between child and parent. Id. at 63-64. Here, the father conceded that he had no pre-existing bond with his daughter. He was in prison when she was born, and his only contact with her was in the course of monthly prison visits, many of which involved no contact. There was no evidence of the bond that is a requisite to an order of postadoption visitation.
2. The new trial motion. The fact that a portion of a trial transcript is unavailable 'does not warrant a new trial unless the trial proceedings cannot be reconstructed sufficiently to present the defendant's claims.' Commonwealth v. Harris, 376 Mass. 74, 78 (1978). When a transcript is unavailable, an appellant has the opportunity to file a statement of proceedings to the trial judge 'for settlement and approval.' Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979).
The contention that a new trial is necessary because an exact transcript of the father's trial testimony is unavailable fails for the reason, if no other, that the father had ample opportunity to participate in the reconstruction of an acceptable record but declined to do so. Moreover, the father failed to allege any specific facts or statements that were left out of the reconstruction or were reported inaccurately. Finally, and most significantly, he has neglected to suggest how he has been prejudiced by the record as reconstructed.
Decree affirmed.
Order denying new trial affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),