Opinion
No. 15–P–1546.
12-08-2016
ADOPTION OF LACHLAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a finding of parental unfitness and a decree terminating his parental rights to the child entered by a judge of the Juvenile Court. See G.L. c. 119, § 26 ; G.L. c. 210, § 3. He asserts that many of the findings of fact were unsupported by the evidence and that the evidence clearly and convincingly demonstrated he was fit at the time of trial to assume custody of the child. For the following reasons, we affirm.
The mother is deceased.
The judge made a total of eighty-two findings of fact based on multiple days of testimony by eight witnesses and forty-five exhibits. The evidence consisted both of firsthand observations by the Department of Children and Families (department) personnel and reports containing statements by third parties including social workers and the child's foster mother, who is also the child's preadoptive mother. We focus on the findings relevant to the issues raised on appeal, and on the findings pertaining to the best interests of the child.
The trial took place over nine days between November of 2014 and March of 2015.
The judge heard testimony from the father, Amanda Manning (the father's fiancée), Dr. Steven Shapse (licensed psychologist), Kristina–Britt Carlson Scoglio (Department of Children and Families [department] social worker), Robin Russell (paternal grandmother), Jade Mason (foster mother and maternal aunt), Jenelle Walsh (adoption social worker), and Cruz Diroche (department investigator).
The exhibits consisted of G.L. c. 119, §§ 51A and 51B, reports, service plans prepared by the department, assessments conducted by the department, a report prepared by the independent court investigator, police reports, the father's criminal offender record information, restraining orders filed against the father, and photographs.
Hearsay statements contained in such reports are admissible if they "bear the indicia of reliability." Brantley v. Hampden Div. of the Probate & Family Ct. Dept., 457 Mass. 172, 185 (2010). "Case work documents and court investigator reports prepared by department staff in the course of their work" bear such indicia. Ibid. (quotation omitted).
1. Findings of fact. The father first claims that the judge erred in finding the foster mother had never been involved with the department and did not have a criminal record. These findings were not error. The foster mother's involvement with the department was limited to her filing a petition for her son requesting department assistance. The department's involvement was not due to any lapse in the foster mother's parenting skills. With regard to her criminal record, it was limited to a charge of trespass when she was sixteen years old. The record supports the judge's findings.
The father next claims that the judge erred in finding that the father did not telephone the department investigator until one day after the mother's death. This was not clearly erroneous; the social worker testified that the father telephoned the day after.
Where there is conflicting evidence, "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 (1993).
The father also asserts error in the finding that he was unable appropriately to address the child's trauma caused by the mother's death. The judge's findings regarding the father's history of domestic abuse and his tendency to minimize his actions and the potential effects of trauma on the child were supported by the record. The judge heard evidence that the father consistently physically and emotionally abused women close to him, and that despite completing a forty-week program on domestic violence, did not consider himself a batterer. The father continued to insist that the child only required a parent, rather than therapy, despite the child's beginning to react emotionally to the mother's death. Given the level and frequency of domestic abuse supported by the record, the judge concluded the father was not likely to "remedy the conditions that caused the Department to maintain custody of the child." The record supports the judge's finding that the father has a "lack of understanding as to the possible deleterious effects of domestic violence upon his child." See Custody of Vaughn, 422 Mass. 590, 595 (1996) ("a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm").
At the time of trial, the child was three years old.
The father objects to the judge's finding of a bond between the child and his foster mother because no expert testimony was submitted to support such a bond. However, expert testimony is not required for the judge to make a finding that a bond existed. See Adoption of Daniel, 58 Mass.App.Ct. 195, 202–203 (2003). Other evidence, including the long-term healthy relationship between the child and the foster mother, was sufficient for the judge to conclude a bond existed. See id. at 203.
The father further claims that the judge erred in discrediting portions of his testimony. The judge was not required to credit the father's testimony and we defer to "the judge's assessment of the weight of the evidence and the credibility of the witnesses." Adoption of Quentin, 424 Mass. 882, 886 (1997). The father also claims that the judge relied on evidence referencing the father's "attempted suicide" that was excluded by a ruling made during trial. However, the ruling applied only to police reports which referenced the suicide attempt; it was not a blanket prohibition on all references to the underlying event. The judge did not err in making a finding of fact relating to the father's suicide attempt.
Finally, the father claims that the department failed to provide him essential services necessary to reunite him with the child. "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. 768, 781 (2010). The father cannot now raise this issue for the first time on appeal. See Adoption of Gregory, 434 Mass. 117, 124–125 (2001).
However, even were the father's claims properly before us, he has no grounds for relief. The department's "obligation to work with the [father] was contingent upon [his] own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services." Daisy, supra at 782 (quotation omitted).
2. Sufficiency of the evidence. The father claims that the evidence clearly and convincingly demonstrated that he was fit at the time of trial to assume custody of the child. The judge's findings and conclusions "must be left undisturbed absent a showing that they are clearly erroneous." Custody of Eleanor, 414 Mass. 795, 799 (1996). Here, the findings relating to the father's fitness and the child's best interests are not clearly erroneous.
a. History of domestic abuse. The judge found that the father has had a tumultuous relationship with not only the mother, but also with other women in his life. Prior to meeting the mother, the father was in a relationship with another woman. During that relationship, multiple violent incidents occurred in the presence of other children. The father defied a G.L. c. 209A (209A) abuse prevention order and lived with the woman and their daughter until 2010.
The father met the mother in 2010, and she gave birth to the child in October of 2011. The father and the mother lived together intermittently until November of 2012. For most of that time, the mother had an active 209A abuse prevention order against the father. The police responded to approximately eight domestic disputes between the father and the mother, including one incident during which an officer overheard the father on a telephone call with the mother stating that he would "put a bullet in [the mother's] head." The father was arrested for aggravated assault and battery of the mother on October 28, 2012. Despite this history, the father minimized the incidents, claiming that he and the mother "had fights and arguments just like any other couple." The judge discredited the father's statement that the end of his relationship with the mother was due to her jealousy over his new girl friend.
In total, five different women have filed 209A abuse prevention complaints against the father. The earliest was filed in 1996, when the father was still a juvenile. The second was filed in 2001 and the third was filed in 2007. The fourth was filed by the mother in 2011, which resulted in a one-year order. The fifth complaint was filed on August 21, 2013, by the foster mother on behalf of herself and the child.
The father introduced testimony of a court-qualified expert, Dr. Steven Shapse, who concluded based on his assessments that the father did not have an abnormal propensity for violence. The judge discredited the results of the assessments and Dr. Shapse's testimony as three of the five assessments relied heavily on the father's self-reporting. The judge also determined that the father minimized his history of violent behavior to Dr. Shapse.
Despite completing a batterer's program, the father was involved in a domestic incident in July of 2014 with his current fiancée. The judge credited the police report of that incident which indicated that the father and his fiancée were arguing. The judge concluded that the batterer's program had provided the father little insight into his behavior, and there was little indication that the father would stop engaging in his abusive behavior.
b. Criminal history. The judge found that the father has an extensive criminal record that dates back to 1996 when he was a juvenile. In 1998, he was committed as a youthful offender to the Department of Youth Services. From 2001, when his adult criminal record began, to 2007, he was charged with multiple crimes, resulting in two periods of incarceration. "Since 2008, [he] has been charged with five counts of violation of the Abuse Prevention Act, one count of intimidation, one count of trespass, and three counts of assault and battery.... [He] was found guilty of one count of violation of the Abuse Prevention Act and was sentenced to eighteen months, ninety days at the house of corrections, with the balance suspended." After 2008, he was charged multiple times but the charges were ultimately dismissed.
c. Service plan compliance. The judge found that the father was not compliant with department service plans. The department prepared a plan for the period of August 19, 2013, to August 20, 2014, with the goal of permanency for the child through reunification with the father but the father failed to sign the plan. He also failed to sign a service plan that covered the period of June 9, 2014, to December 9, 2014. He never fully complied with any of the service plans.
The father has not completed a fatherhood program or engaged in therapy. He completed a course on domestic violence but felt he did not need the program since he denied he engaged in domestic violence. Because the father lives part of the time in New Hampshire with his fiancée, the department offered to file an application with New Hampshire to study the father as a placement resource and to qualify him for services but the father failed to provide the proof of address needed to complete the application.
After incidents with police intervention indicated that the father had been drinking alcohol, the department became concerned that the father may be abusing alcohol. Despite being tasked with completing a substance abuse evaluation, the father arrived at a foster care review smelling of alcohol. He denied having a problem with alcohol. The judge concluded that the father has not demonstrated an ability to participate with the service plans and engage meaningfully in services.
d. Relationship with the child. At the time of trial, the father was not a consistent presence in the child's life. After the relationship between the father and the mother ended in November of 2012, the father saw the child a couple of times a week until March of 2013. From then on, he admitted to not visiting the child until the mother's death in August of 2013.
After the mother's death, the father resumed visitation with the child. His visits were suspended in early 2014 due to inconsistent contact. After visitation was reinstated, he visited on a fairly regular basis. He was often late, but generally showed up. His behavior was generally appropriate during visits.
The judge concluded that the father did not grasp the effects of the mother's death on the child. The child was present at the time of the mother's death, and only began verbalizing the experience shortly before trial. The child is currently in therapy, and the father does not support the child continuing such therapy. The father also minimized the effects of domestic violence on the child, claiming the child was not present during any of the incidents. The judge concluded that the father does not appreciate the potential side effects of the mother's death and domestic violence on the child.
The judge also found that the father believed he did not need to attend a fatherhood program or undergo therapy. When the father was given the opportunity to consult the child's pediatrician and early intervention workers, he did not do so and did not maintain contact with either in an appreciable way. The father testified that he believed the child only needs a father. The judge concluded that the father was unable to comprehend the child's need for therapeutic services thereby placing the child at risk for unresolved trauma.
3. General Laws c. 210, § 3(c), factors. The judge concluded that nine of the factors enumerated in G.L. c. 210, § 3(c), applied in part or in whole to this case. Specifically, the following factors led the judge to conclude that termination of the father's parental rights is in the child's best interests: (1) the father's failure to utilize services in a manner that would "effect[ ] a substantial and material or permanent change in the circumstances which led to [the child's] abuse or neglect," the father's failure to cooperate with the department, and the father's minimization of his long history of domestic violence and his failure to appreciate the potential effects of that on the child going forward. G.L. c. 210, § 3(c )(ii), (iii), (v), (vi), (viii), (x), (xi), (xii). The judge also determined that the child has developed a "strong, positive bond with his substitute caretaker." G.L. c. 210, § 3(c )(vii). The record provides clear and convincing evidence in support of the judge's conclusion that the father was unfit at the time of trial to assume custody of the child and that termination of the father's parental rights was in the child's best interests.
4. Conclusion. The judge was careful and conscientious in weighing the factors relevant to the decision. "The best interests of a child is a question that presents the trial judge with a classic example of a discretionary decision, ... [and] our attitude toward a trial judge's decision in a custody appeal is one of substantial deference." Adoption of Hugo, 428 Mass. 219, 224–225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999) (quotation omitted). See Custody of Eleanor, 414 Mass. at 799.
Decree affirmed.