Opinion
No. 16–P–77.
11-01-2016
ADOPTION OF ILANA (and three companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the mother of Ilana, John, Elizabeth, and Brian and the father of Elizabeth had stipulated to their current unfitness as parents, a Juvenile Court judge held a best interests trial and terminated their parental rights. See G.L. c. 119, § 26 ; G.L. c. 210, § 3. The mother and Elizabeth's father appeal from the termination of their respective parental rights. All of the children, except for John, appeal from the termination of the mother's parental rights. We affirm.
Although the father of Ilana and John was represented by counsel at trial, he did not personally appear and he does not appeal from the termination of his parental rights. The putative father of Brian, whose paternity has never been established, did not participate in the trial in any way.
The mother and Elizabeth's father executed stipulations of unfitness on February 7, 2013, and orders adjudicating them unfit and granting permanent custody of all four children to the Department of Children and Families were entered on March 8, 2013. See G.L. c. 119, § 26. Trial on the termination of their parental rights commenced in March, 2014, and concluded in March, 2015.
Background. This case centers around Elizabeth's father's violence against John, who is not his biological son, and the mother's failure to protect John from Elizabeth's father. In 2005, Elizabeth's father was convicted on three charges of assault and battery upon John. He served a two-year jail sentence and later, upon violations of the conditions of probation, served an additional eighteen months. Meanwhile, the mother was twice convicted on charges of permitting injury to and reckless endangerment of John, once in 2005 and again in 2010, due to Elizabeth's father's violent conduct. Nonetheless, the mother and Elizabeth's father continue to deny or minimize his conduct, at times blaming Ilana or John's clumsiness for his injuries.
This case arises from the fourth care and protection petition that the Department of Children and Families (department) has brought with respect to this family. The department filed its first care and protection petition in 2005, after Elizabeth's father's first attack on John. Ilana, John, and Elizabeth were all placed in the department's custody while the petition was pending (Brian was not yet born), and were later returned to the mother's care. The children were removed again in 2008, after another incident involving Elizabeth's father and John. In its third petition, filed in 2010, the department alleged neglect of the children, who were coming to school unwashed, wearing filthy clothing, and exhibiting behavioral issues. The mother also refused necessary early intervention services for Brian, day care for Elizabeth and Brian, and counselling or parenting classes for herself. In addition, the mother was seen swearing at the children in public and swinging her hands at them inside her van; she admitted to slapping Elizabeth on the leg.
The department commenced the current petition in 2012, based on concerns that Elizabeth's father was once again physically abusing John. When placed in the department's custody, “the children were all observed to be very dirty with dirt encrusted on every visible inch of their bodies. The children had dirt and glue in their hair .... They had a strong odor of old urine about them, they were covered with bug bites, [and] their shoes were stained with yellow liquid.” Ilana had head lice in her ankle-length hair. The mother's home was filthy, reeked of urine from the mother's six cats, and was in a state of disrepair.
By the end of 2012, the mother had worked with the department to improve the condition of her home, and reunification of the children with the mother remained the department's goal. This goal was conditioned on the mother's severing all ties with Elizabeth's father. In June, 2013, however, department personnel on two separate occasions observed Elizabeth's father getting into the mother's car outside of the department's office. At this point, the department abandoned the goal of reunification.
Discussion. A decision to terminate parental rights involves, first, a finding that the parent is unfit, and second, that it would be in the child's best interests to end all legal relations between the parent and the child. See Adoption of Mary, 414 Mass. 705, 710 (1993) ; Adoption of Nancy, 443 Mass. 512, 515 (2005). “The two steps are not separate and distinct, but ‘reflect different degrees of emphasis on the same factors.’ “ Adoption of Cesar, 67 Mass.App.Ct. 708, 712–713 (2006), quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975).
In performing this analysis, the trial judge is required “to make specific and detailed findings, demonstrating that close attention has been given the evidence.” Adoption of Gregory, 434 Mass. 117, 126 (2001). Subsidiary findings must be supported by a preponderance of the evidence, and they will not be disturbed on appeal unless they are clearly erroneous. See Care & Protection of Vick, 89 Mass.App.Ct. 704, 706 (2016). “Taken together, these finding must then prove clearly and convincingly that the [parent is] currently unfit to provide for the welfare and best interests of [the child].” Ibid., quoting from Adoption of Quentin, 424 Mass. 882, 886 (1997). “We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Ilona, 459 Mass. 53, 59 (2011).
The mother's appeal. The mother denies that she had contact with Elizabeth's father in June, 2013. She argues that the injuries Elizabeth's father inflicted on John in 2005 do not demonstrate current unfitness, that the injuries he later caused to John were not serious, and that, even if she continued to have contact with Elizabeth's father in June, 2013, there were no allegations that they remained in contact in 2014 or 2015. She further contends that her continued contact with Elizabeth's father does not show that she is unfit, but only that she is not a “model parent.”
The record amply supports the judge's findings that the mother continued to have contact with Elizabeth's father in June, 2013, and that she denied or minimized the extent to which such contact endangered John. “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). “It is within the judge's discretion to evaluate the credibility of witnesses and to make his findings of fact accordingly.” Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). Moreover, “[t]he judge is free to rely on a parent's ‘prior patterns of neglect and misconduct in determining her current unfitness,’ Adoption of Mario, 43 Mass.App.Ct. 767, 773 (1997), and may also take into account the child's condition while living with his mother as contrasted with his development after removal from her care.” Adoption of Terrence, 57 Mass.App.Ct. 832, 835 (2003). The record demonstrates, clearly and convincingly, that the mother's relationship with Elizabeth's father exposes John to grave danger. The judge did not err or abuse his discretion in terminating the mother's parental rights with respect to John.
The judge did not find, and the evidence does not demonstrate, that Elizabeth's father's violence toward John has resulted in physical harm to the other children. See Adoption of Cesar, 67 Mass.App.Ct. at 712 (“A parent may be fit to raise one child and unfit to raise another, in circumstances where the needs of the two children differ”). Nonetheless, the judge properly considered the other children's exposure to repeated domestic violence, and the mother's inability to protect John from it, in determining whether to terminate the mother's rights as to them. See Custody of Vaughn, 422 Mass. 590, 595 (1996) ; Adoption of Lorna, 46 Mass.App.Ct. 134, 139–141 (1999).
The mother also challenges the judge's finding that she often had difficulty controlling the children during her visits with them, specifically taking issue with the judge's conclusion that the visits “tormented” John. Again, the evidence at trial supports the judge's credibility determinations and findings that the mother was frequently unable to manage the visits. A parent mentor who oversaw the mother's visits since November, 2013, described them as “chaotic.” The mother failed to supervise and monitor the children, did not enforce rules or boundaries, and was unable to control temper tantrums. John in particular seemed “invisible” to his mother and was “isolated a lot by himself alone.” The judge could reasonably infer that the mother's failure to acknowledge John, coupled with the years of physical abuse he had suffered, amounted to “torment”; we are not “left with the definite and firm conviction that a mistake has been committed.” Custody of Eleanor, supra (quotation omitted). Moreover, the judge permissibly relied on these findings in concluding that the mother was unfit to assume parental responsibility. See Adoption of Frederick, 405 Mass. 1, 9 (1989) (judge properly considered mother's “inability to engage the child on a consistent basis in play or conversation,” mother's inability to “focus on more than one child at a time,” and that mother “could not set appropriate limits to control the child's behavior”).
The judge acknowledged the mother's laudable efforts, with the department's assistance, to improve the condition and cleanliness of her apartment. Nonetheless, the judge was warranted in concluding from his detailed and specific findings—the mother's unwillingness to protect John from Elizabeth's father; the lack of parenting skills exhibited at the visits; the repeated issues of the children's poor hygiene; the mother's lengthy history of intervention by the department, including her lack of cooperation with department service plans and her failure to take advantage of services offered for herself or her children such as counseling, a food pantry, financial planning assistance, and day care; her financial irresponsibility; and her lack of candor at trial—that the mother's unfitness “is likely to continue to the foreseeable future to a near certainty.” In short, “[t]here was ample evidence that the children would suffer if returned to the custody of their mother.” Adoption of Elena, 446 Mass. 24, 31–32 (2006).
“When a parent's living situation has changed, a judge nonetheless properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness.” Adoption of Paula, 420 Mass. 716, 729 (1995).
The mother was unable to keep up with rent or utilities, and at one point set up an account with the cable company in Elizabeth's name. The judge recognized that poverty is not a basis to deprive parents of custody; rather, he emphasized the mother's “failure to address those concerns through the services that have been offered.”
Children's appeal. The children, other than John, have all expressed a desire to be reunited with their mother. The judge considered the children's expressed desires and gave them appropriate weight. “The child's wishes, however, are neither decisive nor outcome dispositive, and must be considered against the backdrop of the mother's unfitness.” Care & Protection of Vick, 89 Mass.App.Ct. at 710 (citation omitted). With respect to Ilana in particular, the judge noted that adoption is not a likely result given her age and preference to stay with the mother, but nonetheless concluded that it was in her best interests to terminate the mother's parental rights “so that all alternative plans can be explored to help her.” In the end, “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 or committed a clear error of law.” Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v.. George P., 526 U.S. 1034 (1999). He did neither.
Elizabeth's father's appeal. Elizabeth's father's primary contention on appeal is that the judge erred in preferring the department's plan of adoption by recruitment for Elizabeth over his suggested plan of adoption by the paternal grandmother. 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). 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. at 226 n. 8. 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.
Elizabeth's father also summarily states that the evidence before the judge did not establish clearly and convincingly that termination of his parental rights was required. He offers no support for this bare assertion other than to state that “Mother was making progress and the Child wished to go home.” We have carefully reviewed the judge's findings and conclusions and are satisfied that the judge did not abuse his discretion in terminating Elizabeth's father's parental rights.
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. The judge considered the paternal grandmother's attributes, including her familial relationship with Elizabeth, and deficiencies, including her health issues and her refusal to acknowledge Elizabeth's father's violence toward John. Ultimately, he found the department's plan of adoption by recruitment to be the preferred plan. “A fully developed adoption plan, while preferable, is not an essential element of proof [for termination of parental rights].” Adoption of Paula, 420 Mass. 716, 722 n. 7 (1995). “The judge's determination that the plan of adoption submitted by the department was in the child's best interest presents ‘a classic example of a discretionary decision’ to which we accord substantial deference.” Adoption of Peggy, 436 Mass. 690, 705 (2002), quoting from Adoption of Hugo, supra, at 225.
Timing of petition. According to the judge's findings and conclusions, on April 10, 2013, just one month after the judge entered orders finding the parents unfit and the children in need of care and protection, the department “filed a Motion for Review and Re–Determination, serving notice of its intent therein to seek termination of parental rights. The Motion to restore the matter to the trial list was allowed on May 1, 2013, it being further noted that the court ordered that the best interest trial could not be conducted until six months had passed from the stipulation/adjudication date.” The docket entries do not reflect any of the above activity (with the possible exception of a docket entry dated May 1, 2013, reflecting “Objection filed by [the mother]”). Neither the department's motion nor the mother's objection has been included in the record materials filed in connection with this appeal.
During the pendency of a care and protection petition, the department, a parent, or a person with legal custody of a child “may petition the court not more than once every six months for a review and redetermination of the current needs of such child whose case has come before the court.” G.L. c. 119, § 26(c ), as appearing in St.2008, c. 176, § 84. Assuming that the department filed such a petition on April 10, 2013, and further assuming that the mother properly preserved her objection to the timing of the department's petition, we discern no harm or due process violation. To the extent the mother objected, on May 1, 2013, to the timing of the petition, the judge apparently sustained the objection and ordered that the hearing be delayed until six months had elapsed. In fact, the trial did not commence until March, 2014, a full year after the orders adjudicating the parents unfit and granting permanent custody of the children to the department. The mother and Elizabeth's father had notice, an opportunity to be heard, and ample time to prepare. Any failure to observe the strictures of the statute was harmless beyond a reasonable doubt.
We further note that a petition to terminate parental rights under G.L. c. 210, § 3, is not subject to the six-month time frame established for “review and redetermination of the current needs of such child” under G.L. c. 119, § 26. In the context of § 26, “current needs” relates to the placement of the child rather than the legal rights of the parents.