Opinion
11-P-693
11-08-2011
ADOPTION OF TESS (and five companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Juvenile Court adjudicated six minor children, Tess, Aza, Mia, Cyrus, Gena, and Hana, in need of care and protection and dispensed with their parents' consent to adoption. The judge ordered that the children have posttermination visitation with the mother, and ruled that any posttermination contact with the children's fathers be left to the discretion of their caretakers. Initially, the mother, the father, Tess, Aza, Mia, and Cyrus appealed. Subsequently, Mia changed her position and has filed a brief reflecting that change. For the reasons set forth below, we affirm.
The children at issue have the same biological mother but two different fathers. Mia, Cyrus, Gena, and Hana have the same father, who is a party to this appeal, and all references to the 'father' are to him. Tess and Aza have the same father, who is not a party to this appeal.
Procedural history. Based upon substantiated allegations of neglect, the Department of Children and Families (department) began these care and protection proceedings in June, 2006. In January, 2007, the children were placed in foster care, due to concerns about lack of food and bedding in their home, rashes on their bodies, and medical neglect. Later, the department received allegations of sexual and physical abuse by the father. In November, 2007, the mother and father stipulated that the children were in need of care and protection. In May, 2008, the department moved for review and redetermination and sought to terminate the parents' rights. A seven-day trial held intermittently from October, 2009, to January, 2010, resulted in the decrees at issue here.
Discussion. We review the judge's decision under familiar standards. Before terminating parental rights, the judge must find by clear and convincing evidence that the parent is currently 'unfit' to provide for the welfare and best interests of the children. Adoption of Nancy, 443 Mass. 512, 515 (2005). The judge's subsidiary findings must be supported by a fair preponderance of the evidence. Adoption of Quentin, 424 Mass. 882, 886 (1997). Despite the moral overtones of the statutory term 'unfit,' the judge's decision is not a moral judgment; nor is it a determination that the parent does not love the child. The question for the judge is 'whether the parent's deficiencies .place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren]." Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). If the parent is found to be unfit, the judge must determine whether the child's best interests will be served by terminating the legal relationship. Adoption of Ilona, 459 Mass. 53, 59 (2011). On appeal, the judge's findings are entitled to substantial deference, and will not be disturbed unless shown to be clearly erroneous. Adoption of Elena, 446 Mass. 24, 30-31 (2006).
1. The mother's arguments. a. Unfitness. The mother claims that certain findings are clearly erroneous, and, hence, the department failed to meet its burden of proving unfitness by clear and convincing evidence. In particular, the mother challenges findings that she did not request custody of Tess, Aza, and Cyrus at the time of trial, did not adequately address sexual abuse, and did not have sufficient housing for the children. We are unpersuaded that the findings are clearly erroneous; however, even stripping them from consideration, there remain copious findings to support the judge's decision.
Among other things, the judge found, and the record demonstrates, that the mother neglected her children when they were in her care; the children were exposed to domestic violence; some of the children were sexually and physically abused by the father; the children had special physical, developmental, and emotional needs; the mother did not have an adequate plan or support system for returning the children home; and the mother did not consistently engage in treatment or take full advantage of resources offered by the department.
Contrary to arguments made by the mother and the three children contesting the decrees, these findings are adequate to support the ultimate conclusion of the mother's unfitness. In determining unfitness, the judge may take into account the 'parent's character, temperament, conduct, and capacity to provide for the [children] in the same context with [each] child's particular needs, affectations, and age.' Adoption of Don, 435 Mass. 158, 165 (2001), quoting from Adoption of Mary, 414 Mass. 705, 711 (1993). The judge also 'may consider past conduct to predict future ability and performance.' Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997).
Here, the judge found previous neglect by the mother and determined that she was unable to meet the children's particular needs. Three of the children have asthma, and Hana requires a nebulizer four times a day. Tess, Mia, and Cyrus have exhibited sexually reactive behaviors. Mia was hospitalized in 2007 for displaying dissociative and sexually reactive behaviors. Cyrus also was hospitalized in 2007 after reporting hearing voices and exhibiting aggressive and sexually reactive behaviors. Tess suffers from anxiety; Aza, Mia, and Cyrus suffer from posttraumatic stress disorder; and Cyrus has been diagnosed with attention deficit disorder. Four of the children have developmental delays, and all of the children receive some form of therapy.
The judge was warranted in finding and concluding that the mother, despite having engaged in services provided by the department, had not utilized and benefitted from them sufficiently to be able to provide adequate parenting to such challenging children. Although the mother commendably made efforts to comply with her service plan, the judge nevertheless was free to conclude that the children would be placed in peril if returned to her custody.
b. Permanency plan. The mother and children contesting the decrees contend that termination of the mother's parental rights was not in the best interests of the children, because, to the extent that guardianships would be put in place, they could be implemented without termination, so as to allow for ongoing review and redetermination. It is clear, however, that parental rights may be terminated even when doing so is not a prerequisite to the implementation of the permanency plan. See Adoption of Nancy, 443 Mass. 512 at 518.
All of the children currently reside in specialized DARE foster homes. Tess's foster family is willing to provide guardianship for her, and Aza's foster parents are willing to adopt or provide guardianship. The department's goal for Hana and Gena is adoption by their current foster mother. The department hopes to stabilize Cyrus and then seek an adoptive home for him, and is currently seeking an adoptive home for Mia.
The judge was not unmindful of the mother's relationship and bond with her children, as reflected by his order for posttermination and postadoption visits, to occur no fewer than three times per calendar year. However, he reasonably could conclude that the mother was likely to remain unfit in the indefinite future and that termination would provide the children with necessary stability. See Adoption of Willow, 433 Mass. 636, 647 (2001).
2. The father's arguments. The father contends that the judge failed to give him credit for attempts to comply with his service plan, and that the judge should not have drawn a negative inference against him for his absence at the hearing because the department ceased providing vouchers for his bus fare. With limited exception, however, the father was not in compliance with his service plan, and the judge properly could so find. Among other things, the father failed to provide releases to the department to confirm his participation in services, and was physically abusive to the mother. The judge expressed concern that the father physically and sexually abused the children, and noted that Mia, Cyrus, Gena, and Hana exhibited severe anxiety, aggressive behavior, and emotional distress before and after visits with the father. See Adoption of Quentin, 424 Mass. at 888.
With regard to the father's transportation argument, the judge was free to discredit the father's claim that he could not afford the bus fare to come to court. In any event, even without the negative inference drawn by the judge, there was ample evidence to find that the father was unfit and that termination of his parental rights was in the best interests of the children.
3. The children's arguments. The three children contesting the decrees raise substantially the same arguments as the mother. For the reasons stated above, we conclude that the judge's findings prove by clear and convincing evidence that the mother and father are unfit and that the best interests of the children would be served by terminating their parental rights.
Decrees affirmed.
By the Court (Berry, Cohen & Sikora, JJ.),