Opinion
19-P-415
12-06-2019
ADOPTION OF NATALIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Juvenile Court, the judge entered a decree finding the father unfit to parent the child and terminating his parental rights. The judge granted the Department of Children and Families (department) permanent custody of the child and approved the department's plan to place the child in the maternal grandmother's permanent guardianship. On appeal, the father claims the evidence did not clearly and convincingly establish parental unfitness and challenges the sufficiency of the judge's findings. He also challenges the guardianship plan proposed by the department. We affirm.
The mother stipulated to the termination of her parental rights and open guardianship by the maternal grandmother.
The father also claims that his trial counsel provided ineffective assistance. We "strongly disfavor" claims of ineffective assistance of counsel raised for the first time on direct appeal. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). We see no "exceptional circumstances" to justify consideration of the issue here. Care & Protection of Stephen, 401 Mass. 144, 150 (1987).
1. Unfitness and termination of parental rights. The father claims that the judge did not prove unfitness by clear and convincing evidence. Specifically, he claims that the judge improperly credited his "stale" history of incarceration and prior termination of parental rights with respect to his older child. He also claims that the judge improperly credited the mother's testimony that he was residing with his former drug dealer during trial. We disagree.
A decision to terminate parental rights calls for a two-step analysis. See G. L. c. 210, § 3 ; Adoption of Nancy, 443 Mass. 512, 515 (2005). "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012).
Here, the findings of fact and conclusions of law are "specific and detailed so as to demonstrat[e] that close attention has been given the evidence." Care & Protection of Martha, 407 Mass. 319, 327 (1990), quoting Care & Protection of Stephen, 401 Mass. 144, 151 (1987). The father's challenges to the termination of his parental rights stem from his dissatisfaction with "the judge's assessment of the weight of the evidence and the credibility of the witnesses," which is entitled to deference. Custody of Eleanor, 414 Mass. 795, 799 (1993). We see no abuse of discretion or error of law. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
The father has an extensive criminal history. He had ninety-two criminal charges between 1991 and 2016. These charges included drug offenses as well as violent offenses. Intermittently, the father was incarcerated for a total of seven years. In 1998, the father's parental rights as to his older child were terminated due to the father's substance abuse, domestic violence, and drug dealing. Although "isolated problems in the past or stale information cannot be a basis for determination of current parental unfitness," Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 126 (1984), the father's criminal history is not so isolated as to lack "prognostic value." Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). It was within the judge's discretion to determine the weight he would give to the father's criminal history and the prior finding of parental unfitness, and his decision is entitled to deference. See Custody of Eleanor, 414 Mass. at 799.
Indeed, the father had abused drugs during the department's involvement in this case. The father was tasked with remaining substance free and participating in substance abuse programs. The father did not comply with these tasks and tested positive for cocaine and cannabis.
Moreover, the father's criminal past and prior termination of parental rights were not the judge's main considerations when determining unfitness in this case. The judge also emphasized the father's continuous prioritization of the mother's needs over the child's, which in turn exposed the child to a dysfunctional and violent relationship between the parents. The father was instructed to have no contact with the mother due to the mother's mental health and substance abuse issues. He did not comply with this task and continued to see the mother, even allowing her to stay at his apartment and visit the child. Although most of the violence was initiated by the mother, the father continued to expose the child to it. During one incident, in the child's presence, the father struck the mother in the face during an altercation and fled the scene.
The child seemed to internalize the violence between the father and the mother, commenting, "daddy was mean" and that "daddy hurt mommy."
The father also failed to maintain stable housing and was inconsistent in complying with his service plan tasks when he had custody of the child. The father's apartment was described as a "pigsty," with the floor covered with cigarette butts, dirty clothes, and dirty dishes. A neighbor reported that when the father left the child with her, the child was wearing wet, dirty clothes and smelled of alcohol. The father did not provide evidence of employment, did not engage in services, and did not attend all of the court hearings related to this case despite a requirement to do so. After the child was removed from the father's custody, the father was inconsistent in his visits with the child and, at one point, did not visit the child for more than a year. Furthermore, the judge was permitted to credit the mother's testimony that the father lived with his former drug dealer during trial. See Custody of Eleanor, 414 Mass. at 799.
The father was tasked with engaging in seven to ten "NA/AA meetings per week," engaging in domestic violence awareness groups, and completing a batterer's assessment. He did not comply with those tasks or did not confirm that he did so.
In sum, the judge's determination that the father was unfit was supported by clear and convincing evidence. The father's challenges merely stem from his dissatisfaction with the way the judge weighed the evidence. See Adoption of Gregory, 434 Mass. 117, 128 n.6 (2001). The judge made detailed and thorough findings supported by the record in determining that termination was in the child's best interests. See Adoption of Greta, 431 Mass. 577, 587-588 (2000). Even if certain findings were erroneous, "the judge's overall conclusion of parental unfitness is fully supported by the record." Adoption of Helen, 429 Mass. 856, 860 (1999).
2. Guardianship plan. The father also challenges the guardianship plan proposed by the department. He claims that the judge did not consider the history of domestic violence, substance abuse, and physical and sexual abuse in the proposed guardian's home, or whether the child had bonded with the proposed guardian, and that therefore the plan is not in the child's best interests. We disagree.
We review the judge's decision to approve the department's guardianship plan for abuse of discretion. See Adoption of Hugo, 428 Mass. at 225. The central question is whether the guardianship plan is in the child's best interests. Id. An "adoption plan need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement" so the judge can evaluate its suitability. Adoption of Willow, 433 Mass. 636, 652 (2001).
Under the department's proposed plan, the maternal grandmother would become the child's permanent guardian. Although the judge did make negative findings about the maternal grandmother's prior situation, the maternal grandmother is now divorced from the person who was the main impetus of those findings. See note 7, supra. In contrast, many findings suggest the suitability of the maternal grandmother's home and support the conclusion that placing the child in the maternal grandmother's home is in the child's best interests. The maternal grandmother is a licensed kinship foster parent. The child had been living with the maternal grandmother for over two years, along with her younger half-sister, and was doing well. See Care & Protection of Three Minors, 392 Mass. 704, 715 (1984) ("It has also been our policy to keep children within the natural family whenever possible"). The child is receiving therapy to process the domestic violence she was exposed to. The judge's findings reflect a sufficient evaluation of the department's plan. See Adoption of Gabrielle, 39 Mass. App. Ct. 484, 488 (1995). There was no abuse of discretion.
The judge found that the mother had been physically and sexually abused by the maternal grandmother's former husband, that there had been domestic violence between the maternal grandmother and her former husband, and that the maternal grandmother had a history of substance abuse.
The half-sister is not involved in this appeal.
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Decree affirmed.