Opinion
No. 12–P–1372.
2013-05-7
ADOPTION OF VAN (and two companion cases ).
By the Court (COHEN, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Juvenile Court adjudicated four minor children in need of care and protection and dispensed with the need for parental consent to their adoption. Their mother appeals from the disposition as to three of the children: Van, Brian, and Emma (the children). She claims that the judge's ultimate findings are not supported by clear and convincing evidence, and that it was an abuse of discretion for the judge not to order that she have posttermination visitation with the children. The children also appeal from the judgment insofar as the judge did not order posttermination visitation with their mother. We affirm the decree terminating the mother's parental rights, but remand for further findings with respect to the issue of posttermination contact. Termination. 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 her child. Adoption of Don, 435 Mass. 158, 164–165 (2001). If the parent is found to be unfit, the judge must then determine whether the child's best interests will be served by terminating the legal relationship. Adoption of Nancy, 443 Mass. 512, 515 (2005). Adoption of Ilona, 459 Mass. 53, 59 (2011). The judge's subsidiary findings must be supported by a fair preponderance of the evidence. Adoption of Quentin, 424 Mass. 882, 886 (1997). Those findings are entitled to substantial deference, and will not be disturbed unless clearly erroneous. Adoption of Elena, 446 Mass. 24, 30–31 (2006).
At the time of trial, the children were eleven, eight, and five years old, respectively. They are now thirteen, ten, and seven.
The status of the mother's fourth child, Karl, is not at issue. As to him, the mother stipulated to the termination of her parental rights and does not seek visitation.
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 at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ “ Adoption of Olivette, 79 Mass.App.Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
Here, the judge's copious factual findings have not been meaningfully challenged on appeal. The judge found that the children had been exposed to repeated incidents of serious domestic violence between the mother and her partners, and that the mother failed to recognize the effects of this exposure on her children. The judge also found that the mother had significant, long-standing mental health issues that prevented her from providing minimally acceptable care to the children, and that, despite her participation in some services and counseling, she had not made appreciable gains.
The few findings questioned by the mother are either fairly drawn from the evidence or immaterial and harmless.
In addition, the judge found that the mother's severe neglect and abuse of her fourth child, Karl, presented a risk of future harm to the other children. While a parent may be unfit to bring up one child but fit to bring up another, see Adoption of Warren, 44 Mass.App.Ct. 620, 626 (1988), the judge was well-entitled to rely upon the mother's treatment of Karl for what it revealed about her lack of judgment as a parent and her obliviousness to its likely impact upon both him and his siblings. Finally, the judge also could consider that the children did not support a return to their mother's custody, even though they desired continued contact with her.
Karl, a special needs child who has significant medical and behavioral issues, was discovered locked in a hot attic room in abhorrent conditions. As a result, the mother was charged with and pleaded guilty to assault and battery on a child with injury, and served four and one-half months at the Massachusetts Correctional Institution at Framingham.
Posttermination contact. A judge has the discretion and equitable authority to order visitation between a child and a parent whose parental rights have been terminated, where visitation is in the child's best interest. Adoption of Ilona, 459 Mass. 53, 63 (2011). Posttermination contact, including visitation, may be particularly appropriate where no preadoptive parent has been identified, and the principal parent-child relationship in the child's life remains with the parent whose rights have been terminated. Adoption of Vito, 431 Mass. 550, 563–564 (2000). See Adoption of Rico, 453 Mass. 749, 754–756 (2009); Adoption of Ilona, supra at 63–65; Adoption of Terrence, 57 Mass.App.Ct. 832, 839 (2003).
“When a trial judge decides not to order visitation ... [the judge] is not required to make extensive findings if [the judge] already has made specific and detailed findings regarding the child's best interests and the determination of parental unfitness” (emphasis added). Adoption of John, 53 Mass.App.Ct. 431, 439 (2001). However, this presupposes that the factual issues bearing on visitation have, in fact, been addressed adequately in the context of the judge's decision on termination.
Here, the judge recited the applicable standards in paragraph 28 of her conclusions of law, and stated in paragraph XV of the adjudications, commitments, and orders to issue decrees, that she had “determined it is not in these children's best interests to order posttermination or postadoption contact with ... the [m]other.” However, the salient issues—whether the children have a significant bond with the mother, and whether it is in the children's best interests to continue to have contact with her where they currently are not in preadoptive settings—were not specifically addressed in the judge's subsidiary findings. Given the children's ages, their affirmative request for continued visits with the mother, and the impermanent nature of their current placements, we think that additional findings were warranted.
Conclusion. This matter is remanded to the Juvenile Court for further consideration of the question of posttermination contact. In all other respects, the decrees are affirmed.
The judge may conduct such additional proceedings as she deems necessary to become informed of the current situations of the mother and the children.
So ordered.