Opinion
19-P-427
12-03-2019
ADOPTION OF JOAQUIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Juvenile Court, a judge found the father unfit to parent his son Joaquin and terminated his parental rights. The judge also (1) denied a coguardianship petition that was filed by the paternal grandmother (grandmother) and the paternal aunt (aunt), and (2) approved the adoption plan proposed by the Department of Children and Families (department). The father appeals, arguing that termination was premature because the department did not exercise reasonable efforts to reunify him with Joaquin. He also claims error in the judge's decisions to approve the department's adoption plan and not to enter a specific order for posttermination and postadoption visitation. We affirm.
The mother stipulated to her unfitness and to the termination of her parental rights on the second day of trial and is not a party to this appeal.
Background. Trial in this case took place over the course of seven nonconsecutive days between June and September, 2017. The judge heard testimony from several witnesses, considered 300 pages of exhibits, and made 256 detailed findings of fact which have ample support in the record. Because the father does not challenge these findings or the judge's ultimate conclusion of unfitness, we summarize only the pertinent facts.
Neither the mother nor the father testified. The judge drew a negative inference from the father's failure to attend parts of the trial and to testify.
The father had been involved with the department for at least two years before Joaquin was born in February 2016. The father and mother's older son, Adam, was removed from the parents' custody immediately following his birth in 2014, and a separate care and protection proceeding involving Adam culminated in a decree terminating the father's parental rights. The tasks on the father's service plan in Adam's case did not change when Joaquin was born, and the father was required to engage in the same services to regain custody of Joaquin. The father engaged in some services on an inconsistent basis. He visited with Joaquin only once between January 2017, when the goal for Joaquin was changed to adoption, and September 26, 2017, when the trial ended.
A pseudonym.
In addition to Joaquin and Adam, the father has a child from a previous relationship, who was also removed from his custody. Brian, born in 2007, resided in fourteen foster homes before the grandmother and the aunt petitioned to be his coguardians. A different Juvenile Court judge allowed the petition in 2015, following a trial at which the grandmother testified that she planned to enroll Brian in public school. The grandmother and aunt did not enroll Brian, however, and did not obtain approval of a home school plan. Consequently, three reports were filed pursuant to G. L. c. 119, § 51A, alleging educational neglect of Brian. It was not until November 2016 that the grandmother obtained approval of her home school plan. She and Brian have lived in several different residences since 2015, with the aunt residing with them on an inconsistent basis.
A pseudonym.
The grandmother and aunt petitioned for guardianship after the department denied the grandmother's application to be a foster placement/kinship resource.
The judge found this delay to be neglect.
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Joaquin has resided with the preadoptive parents since he was nineteen days old. He has bonded with them, thrived in their home, and would experience trauma if he was removed from their custody. The preadoptive parents have transported Joaquin to every scheduled parent-child visit, and, if they are allowed to adopt Joaquin, they are "willing to continue visits between [Joaquin] and Father with a predetermined schedule and additional contact if appropriate."
Discussion. 1. Reasonable efforts. The father claims that the department failed to make reasonable efforts to reunite him with Joaquin. See Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). See also Adoption of Ilona, 459 Mass. 53, 60 (2011) ("Before seeking to terminate parental rights, the department must make ‘reasonable efforts’ aimed at restoring the child to the care of the natural parents" [citation omitted] ). "It is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of Daisy, 77 Mass. App. Ct. at 781. The father did not raise this claim in a timely manner, and it is therefore waived. Even if the claim was not waived, it lacks merit. The department's obligation to make reasonable efforts "was contingent upon the [father]'s fulfillment of [his] own parental responsibilities," which included obtaining stable housing and refraining from illegal activity. Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). The father did not have stable housing after May 2016, and two criminal cases involving possession of heroin were pending against him at the time of trial. Moreover, the father had two years in connection with Adam's case to benefit from the same services that would have helped him regain custody of Joaquin. At no point was the father ready to resume full responsibility for Joaquin, despite his occasional engagement in these services. See Adoption of Paula, 420 Mass. 716, 730 (1995). Thus, even if trial counsel was ineffective for failing to raise the reasonable efforts claim, that failure did not deprive the father "of an otherwise available, substantial ground of defence." Care & Protection of Stephen, 401 Mass. 144, 149 (1987), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
2. Adoption plan. "In determining the best interests of the child, the judge must consider, among other things, ‘the plan proposed by the department.’ " Adoption of Varik, 95 Mass. App. Ct. 762, 770 (2019), quoting G. L. c. 210, § 3 (c ). Here, the judge considered the department's plan that Joaquin be adopted by the preadoptive parents, with whom he has lived since birth and in whose care he has flourished. The judge considered Joaquin's bond with them and the trauma he would experience if removed from their care. Conversely, the judge considered the grandmother's and the aunt's lack of stable housing, commitment to these proceedings, and their level of interest in being guardians. He also considered their prior neglect of Brian. The judge did not abuse his discretion when he decided that Joaquin's interests would best be served by adoption rather than the proposed guardianship. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (judge's decision constitutes abuse of discretion where 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" [quotations and citations omitted] ).
3. Visitation order. The father's final argument, that the judge abused his discretion in declining to issue a specific order for posttermination and postadoption visitation, ignores the judge's explicit finding that ordering such contact is not in Joaquin's best interests because the father and Joaquin do not share an emotional bond. Where, as here, such finding is supported by the record, "[a]n order for postadoption visitation is not warranted." Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). See Adoption of Vito, 431 Mass. 550, 563-564 (2000). The father's general concern that the preadoptive parents will not keep themselves abreast of his whereabouts is insufficient to overcome the presumption that they will act in Joaquin's best interests when making decisions about visitation. Adoption of Ilona, 459 Mass. at 64. Indeed, the father makes no such claim regarding that presumption.
Decree affirmed.