Opinion
20-P-1220
06-29-2021
ADOPTION OF INDIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree terminating his parental rights to his daughter, Indira, and approving the adoption plan proposed by the Department of Children and Families (department). In addition, the Juvenile Court judge declined to order postadoption visitation between the father and the child, instead leaving the decision to the child's adoptive parents. On appeal, the father claims that (1) the evidence of his unfitness was insufficient, and (2) the judge abused her discretion by failing to order postadoption visitation. We affirm.
The mother's parental rights were also terminated. She is not a party to this appeal.
The father also claims that the judge abused her discretion by terminating his parental rights without considering relevant factors. We disagree for the reasons set forth herein.
Discussion. 1. Evidence of unfitness. The father first contends that the evidence did not clearly and convincingly support the judge's finding of unfitness. Specifically, he avers that (1) concerns about his angry temperament toward department workers and the mother did not bear on his ability to parent the child, and (2) certain action plan tasks that he failed to complete were not tailored to a particular parenting deficiency. We are not persuaded.
The judge's decision contains 136 findings of fact. We discuss the findings relevant to the disposition of this appeal as necessary in our discussion.
"In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). The decision to terminate parental rights involves the consideration of numerous factors, including "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). "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, supra. "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" (quotation and citation omitted). Adoption of Larry, 434 Mass. 456, 462 (2001).
With respect to the father's temperament, the judge found, and the record supports, the following facts. The father left angry, insulting, and threatening voice mail messages for department staff and the child's foster mother. The father was aggressive and used profanity and, in one instance, threatened a social worker. During another phone call with a social worker, he told the worker "not to play with fire" before disconnecting the call. The father became agitated with department workers when he was reminded that it was time to end visits with the child. The child exhibited nightmares and other signs of anxiety following visits with the father, and she received in-home therapy to help her manage her emotions. Finally, the father's outbursts periodically resulted in the early termination of foster care review meetings with the department and foster family.
Although the department did not express concern for the child's safety during her visits with the father, his temperament and conduct toward the department and foster family were properly considered by the judge as among several factors relevant to determining his fitness. See Adoption of Mary, 414 Mass. at 711. In that respect, Care & Protection of Yetta, 84 Mass. App. Ct. 691 (2014), upon which the father relies for the proposition that his temperament must directly impact the child to be considered in the fitness calculus, is distinguishable. That case does not stand for the broad proposition the father suggests. There, although the father's "loud angry tone," id. at 694, did not negatively impact his ability to parent the children, other reasons, such as the fact that the children were not harmed by "the parents' lax supervision" and conflicting findings made by the judge, led the court to reverse the judgment finding the children in need of care and protection and placing them in the custody of the department. Id. at 697-698. The father's temperament and conduct were proper considerations here. See Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973) ("Violence of temper, indifference or vacillation of feeling toward the child, or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness").
Next, we turn to the father's assertion that his failure to complete certain action plan tasks should not have been accorded any weight because they were not tailored to a particular parenting deficiency. The family action plan contained the following relevant tasks for the father: (1) attend weekly parenting classes, (2) complete a psychological evaluation, and (3) attend a weekly batterer's intervention group. He did not complete any of these tasks. The father "testified that his experience as an uncle was akin to parenting experience," but the judge found that he "failed to demonstrate any insight or appreciation into the responsibilities of taking care of [the child]." Additionally, the judge did not credit the father's testimony that he was unaware of the department's task requiring the completion of a mental health evaluation. And, when asked at trial whether he would undergo a mental health evaluation to retain parental rights to the child, the father responded in the negative. The final task challenged by the father was the need to attend a weekly batterer's intervention group. This task was recommended by the department due to the volatile relationship between the father and the mother. The record contains numerous reports generated by the Boston Police Department as a result of incidents between the mother and father that began around the time of the child's birth in December 2012.
The father does not challenge the judge's findings that he failed to complete these tasks.
The father and the mother terminated their relationship following the father's arrest in May 2012. As a result of the arrest, the father was charged with, and eventually acquitted of, assault and battery.
We do not agree that the judge should have disregarded the father's failure to complete these tasks in light of the record before her. The "failure to follow service plan tasks ... may be relevant to determining parental unfitness." Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006). Compare Adoption of Zoltan, 71 Mass. App. Ct. 185, 192 (2008) ("failure to comply with the department's service plan is less important where the tasks in the plan are not closely related to any clearly identified parental deficiencies"). Here, on review of the record, it is apparent that the challenged tasks were related to parenting issues identified by the department as a result of its experiences with the father. The record is replete with evidence of the father's contentious relationships with the department and the mother. Aside from visits with the child, the record reveals that the father objected to every action plan task. The father's willful failure to complete his action plan tasks, among other factors, was properly considered by the judge in assessing his parental fitness. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("Evidence of parents' refusal to cooperated with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness").
The father also admitted at trial that the child was exposed to verbal arguments between himself and the mother.
The father also claims, for what appears to be the first time on appeal, that his failure to obtain stable housing was as a result of the department's unwillingness to assist him in that endeavor. Even if this claim is not waived, see Adoption of West, 97 Mass. App. Ct. 238, 242 (2020), we note that the judge's concerns with respect to the father's housing, which was obtained just two weeks prior to trial and involved the sharing of a home with another adult male, were well supported by the record. Judges may consider the lack of appropriate housing as part of the fitness evaluation. See Adoption of Vito, 431 Mass. 550, 555 (2000). Also unavailing is the father's claim that the judge failed to consider whether the department's allegedly inadequate effort to assist the father with housing meant that the father's unfitness might only be temporary. The judge expressly concluded that, "[e]ven assuming that [the f]ather obtained stable housing in the future, this would not render him fit," in light of his other, likely permanent, parenting deficiencies.
In sum, the father's arguments on appeal attempt to cast aside findings that directly and cumulatively affected his fitness to parent the child. We conclude that the judge properly found, "by clear and convincing evidence, that the [father] is unfit and that the child's best interests will be served by terminating the legal relation between [the father] and child" (quotation omitted). Adoption of Luc, 484 Mass. 139, 144 (2020).
2. Postadoption visitation. Finally, the father claims that the judge abused her discretion by failing to order postadoption visitation, which went against the department's recommendation and was not in the child's best interests. We disagree.
The department recommended two postadoption visits per year at a supervised visitation center unless or until the adoptive parents felt that such site was no longer necessary. The preadoptive family expressed a willingness to pay for one-half of the costs associated with the visitation center. The judge noted that the relationship between the father and the preadoptive mother, who is the father's sister, was presently "contentious." She also found that the preadoptive mother was willing to allow contact between the father and child. Ultimately, the judge declined to order postadoption visitation, relying on the preadoptive family's willingness "to participate in an open adoption agreement and to take on [fifty percent] of the cost of a visitation center" as an indication that they would "take into account the ever-changing needs of the child to facilitate visitation when it is appropriate, safe, and in the best interests of the child."
A two-part inquiry informs a judge's decision to order visitation: "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 Ilona, 459 Mass. at 63. Adoptive parents "are entitled to the same presumption they will act in the best interest of the child in making decisions regarding the child, including decisions about visitation." Id. at 64. We review a decision regarding postadoption visitation for abuse of discretion. See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013).
Here, the judge did not abuse her discretion by concluding that a specific order of postadoption visitation was unnecessary to protect the child's best interests. Although the judge acknowledged that visits between the father and child were "appropriate and ... not a cause for concern," there was also evidence that the child was "very comfortable" and well cared for by her preadoptive family. While the judge also made findings that highlighted the strength of the father's and child's relationship during their visits, there was evidence that the preadoptive mother was willing to allow contact between the father and child as long as the father behaved appropriately. "The judge may properly decline to order visitation when the adoptive parent's discretion to make decisions regarding contact will adequately serve the child's best interests." Adoption of Cadence, 81 Mass. App. Ct. 162, 168 (2012). Given that the judge had the benefit of observing the witnesses firsthand, we cannot say that the judge's decision to leave postadoption visitation to the adoptive family constituted "a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See also Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986) ("There is no error of law amounting to an abuse of discretion simply because a reviewing court might have reached a different result").
Decree affirmed.