Opinion
19-P-1298
08-07-2020
ADOPTION OF VITALY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this case involving competing adoption plans, the mother appeals from a decree issued by a judge of the Juvenile Court finding that the adoption plan put forward by the Department of Children and Families (DCF) served the best interests of the child, Vitaly. The mother's proposed plan was adoption by the maternal grandmother (grandmother). The mother argues that the judge ignored relevant evidence and wrongly discounted the grandmother as a viable placement option because the grandmother relied on governmental assistance for support. We affirm.
The father did not appeal from the termination of his parental rights or the approval of DCF's adoption plan.
Background. DCF filed a care and protection petition for the child (born in October 2011) on May 19, 2014, and received permanent custody on June 16, 2015, following the mother's stipulation that she was unfit. On April 10, 2018, the mother stipulated to the termination of her parental rights, and the child was placed with a preadoptive family on April 19, 2018. On May 14, 2018, the mother filed a motion for new trial so the judge could consider her proposal that the child be adopted by the grandmother. The judge allowed the motion, and on May 17, 2018, the judge held a trial to determine which adoption plan, DCF's or the mother's, was in the child's best interests.,
She was granted three visits per year with the child.
At trial, the mother acknowledged under oath that she remained unfit and that termination of her parental rights was in the best interests of the child.
The original care and protection petition included Vitaly's younger sister (whom we will call Sara); Sara was placed in the same preadoptive home as Vitaly. In his findings of fact and conclusions of law, the judge stated that on December 21, 2018, after the trial ended and he had issued a decision approving DCF's adoption plan for both children, Sara died while in the custody of the preadoptive parents, and that DCF had removed Vitaly from that home. The judge noted that there were no motions "to reopen the evidence or to seek any further modifications of the determinations made," and that the only additional evidence before him was Sara's death certificate. He further stated that his "findings [were] based, as they can only be, on evidence presented at trial." Our decision pertains only to Vitaly.
We summarize the judge's findings based on the evidence before him regarding the competing adoption plans. The mother's plan was for the child to be adopted by the grandmother. The grandmother had initially approached DCF to be a placement for the child in 2015. During DCF's evaluation of the grandmother, she denied having a criminal record despite having been arraigned on 127 criminal charges between 1982 and 2017. The grandmother also denied having any previous encounter with DCF despite a G. L. c. 119, § 51A, report having been filed regarding the grandmother's parenting of the mother. At the time of the trial, the grandmother lived in public housing in a two-bedroom apartment. In order for the child to live with her, the grandmother would need her public housing authority to approve the arrangement. In the five years before trial, police responded to the grandmother's home five times; two involved a domestic dispute between the grandmother and her former boyfriend. Additionally, the grandmother's driver's license was suspended. When the grandmother had participated in supervised visits with the child, her behavior was described as appropriate and beneficial to the child. Nonetheless, she had no articulable plan for meeting the child's day care, schooling, or financial needs.
She had been incarcerated on several of those charges.
Notably, the judge found that the mother and the child had sometimes stayed with the grandmother, and that the grandmother "failed to protect [the child] from the neglectful environment that continued while the [child was] in Mother's care."
DCF proposed that the child be placed with an identified African-American family that had a son close in age to the child. The preadoptive mother held a bachelor's degree in Sociology and Africana Studies and had experience in child- related fields, including foster care and adoption work. The preadoptive father was pursuing an associate's degree. The family lived in a three-bedroom condominium in western Massachusetts, in a special community specifically focused on children who were adopted or in foster care. The community had special programs offering treatment and counseling, as well as before and after school programs. The family also had close extended family members living nearby.
The family met the child at an adoption event. The initial meetings between the family and the child went well, so much so that he was reluctant to leave after the first visit to the family's home. As mentioned supra, the child moved into the preadoptive family's home on April 19, 2018, and was happy at the time of trial. The preadoptive family supported visitation between the child and the mother and grandmother. Notably, the preadoptive mother testified to an extensive knowledge of the child's needs and the family's efforts to address them.
For example, the child was behind in school so she worked with him on flash cards to improve his learning.
DCF's plan for the child was adoption by the identified preadoptive family; "[i]n the event that placement is not able to be made with this identified family [DCF] [will] resume recruitment for [the child]." The judge ultimately found that DCF's adoption plan to place the child with the identified preadoptive family or "recruitment of an appropriate home serves the best interests" of the child.
The judge described DCF's plan as "seeking a two-parent adoptive resource, with a similar cultural background, if possible, for [the child]. [DCF] believed that [the child] would benefit from having a strong male role-model in the home."
Discussion. In proceedings regarding a determination as to the most suitable adoption plan, "the judge must consider the adoption plan proposed by [DCF}" and "also must consider parental nominations of caretakers." Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). When presented with more than one potential adoption plan, a judge's central responsibility is to choose the plan that serves the best interests of the child, Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034 (1999), by meaningfully evaluating what each plan offers the child. See Adoption of Dora, supra at 475. DCF's plan need not be "fully developed," Adoption of Paula, 420 Mass. 716, 722 n.7 (1995), but it must lend itself to substantive consideration. See Adoption of Stuart, 39 Mass. App. Ct. 380, 393 (1995). We review the judge's choice between the two nominated plans for an abuse of discretion. See Adoption of Hugo, supra.
Here, there was no abuse of discretion as the judge's findings "reflect careful evaluation" of both plans. Adoption of Lars, 46 Mass. App. Ct. 30, 31 (1998). The preadoptive parents presented a detailed, robust plan for the child's success based upon his individual characteristics and the unique support system offered by the family. Neither of the preadoptive parents had criminal records nor prior DCF involvement, and there was significant evidence that bonding between the child and the preadoptive family had taken place. In contrast, the grandmother failed to present any cohesive plan for the child's routine care; as of the time of trial, she "had made minimal efforts to plan for {the child's] potential placement with her." Because the grandmother was "intertwined" with the mother, she "failed to protect [the child] from the neglectful environment that continued while [the child was] in Mother's care and the grandmother failed to properly protect [the child] from the harmful effects of Mother's behavior." There was no indication that the grandmother would be less "intertwined" with the mother if the grandmother had custody of the child. Furthermore, the grandmother's statements regarding an inability to remember five police encounters in the past five years were found to be "not at all credible." See Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007) ("The judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment"). The judge did not abuse his discretion in determining that DCF's proposed plan was in the best interests of the child.
We note that the preadoptive family shared a cultural background with the child and lived in a community that was designed to care for adopted children. The family also had a network of extended family members in the area committed to supporting the preadoptive parents.
Additionally, we see no indication that the judge wrongly "penalized" the grandmother for receiving public aid. Instead, the judge appears to have sensibly considered the fact that the grandmother had not yet sought the necessary approval for the child to live with her in her public housing apartment. See Adoption of Hugo, 428 Mass. at 227 ("judge appropriately considered the personal, educational, psychological, and other support available to each prospective parent to address [the child's] needs"). More broadly, there is no merit to the contention that the judge failed to consider all the evidence.
The judge stated in his findings that "there were never any motions or requests to reopen the evidence." The mother points out that she filed a motion to reopen the evidence supported by a District Court docket sheet that showed that the grandmother's 2017 criminal charges had been dismissed. The judge allowed the motion to reopen and accepted the docket sheet in evidence. The mother argues on appeal that the judge's statement indicates that he erroneously failed to consider the docket sheet when he made his findings. In our view, the judge's statement appears to be a reference to Sara's death during the pendency of the proceedings. See note 5, supra. However, even if that was not the case, no reversible error occurred because the dismissal of the grandmother's pending charges would not alter the judge's concerns about her lengthy, decades-long criminal record and seemingly untruthful answers regarding the same.
Decree affirmed.
By the Court (Vuono, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 7, 2020.