Opinion
11-P-502
10-25-2011
ADOPTION OF WOODROW.
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 Juvenile Court judge issued a decree terminating the parental rights of the father to his child and approved the adoption plan offered by the Department of Children and Families (department) which places the child with his foster parents. On appeal, the father contends that the evidence was insufficient to support the judge's order terminating his parental rights and that the judge abused her discretion by (a) denying his motion for postadoption visitation and (b) failing to give due consideration to his proposed adoption plan. We affirm.
Discussion. An order to terminate parental rights requires a judge to find a parent unfit to take on the duties and responsibilities necessary to care for a child by clear and convincing evidence. See Adoption of Paula, 420 Mass. 716, 731 (1995). '[T]he idea of 'parental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare 'much at hazard" (footnotes omitted). Adoption of Katherine, 42 Mass. App. Ct. 25, 28 (1997), quoting from Petition of the New England Home for Little Wanderers to Dispense With Consent to Adoption, 367 Mass. 631, 646 (1975). In determining unfitness, a judge must conclude that the parent will '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, 781 (1998).
If parental unfitness is established, a judge must then determine whether the child's best interests would be better served if all legal ties between the unfit parent and the child were severed. Adoption of Nancy, 443 Mass. 512, 515 (2005).
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. 14, 30-31 (2006).
1. Sufficiency of the evidence. General Laws c. 210, § 3(c), enumerates fourteen factors that the judge must consider in determining parental unfitness. Adoption of Daniel, 58 Mass. App. Ct. 195, 201 (2003). The judge made findings under six of the statutory factors, (eight of the factors were inapplicable to the father). The father argues that the judge's finding that eight of the statutory factors were inapplicable implies that the evidence was insufficient. In addition, he claims that the evidence did not substantiate the judge's findings under three of the remaining six statutory factors, thus making these findings 'clearly erroneous.' Adoption of Gregory, 434 Mass. 117, 126 (2001). We are not persuaded.
In making a determination of parental unfitness under G. L. c. 210, § 3(c), the judge is not to base his or her decision on any one of the statutory factors, but rather is to 'weigh all the evidence.' Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). The judge should engage in an 'even-handed assessment of all the relevant facts.' Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 261 (1978). Thus, the judge's conclusion that eight factors were inapplicable does not, by itself, suggest that the evidence was insufficient. Rather, it simply indicates that the judge applied the evidence presented at trial to the appropriate statutory factors. See Adoption of Daniel, 58 Mass. App. Ct. at 201.
We also reject the father's claim that the judge's findings were clearly erroneous. The findings, supported in the record, were that the father had not complied with the service plan requiring him to seek treatment for his history of domestic violence, enroll in anger management classes, and attend parenting classes. In addition, the judge found that the father, who lacked permanent housing, was presently unable to provide housing for his child because he was unemployed, had a history of instability in housing and employment, acknowledges that the child feels abandoned, failed to notify the department of his court proceedings, and minimized or failed to recognize his own short comings, e.g., domestic violence (including restraining orders by women) and lack of parenting skills and their import on the child. Finally, the judge determined, on the basis of expert testimony presented at trial, that the child has special needs that the father is incapable of addressing and has formed strong bonds with his foster parents.
While the father disagrees with some of the judge's conclusions and subsidiary findings, he has made no showing that they are unsupported by the evidence. See Adoption of Gregory, 434 Mass. at 126. Rather, the crux of his argument seems to be that the judge failed to consider his good faith attempts to comply with the service plan. Although there may be some merit to the father's claim that he made attempts to comply with the service plan, the record provides adequate evidence to support the judge's findings. The findings, therefore, were not clearly erroneous.
The father argues that, after returning to Massachusetts from a Florida jail, he had only six months to comply with the service plan and that, at the time of trial, he was on the waiting list for all of the services in the plan. He further contends that the judge failed to credit his testimony that he would be starting work shortly and, therefore, able to provide a home for the child, if necessary. Finally, the father asserts that the judge erroneously credited the expert testimony regarding the child's bond with his foster parents, which testimony, he claims, was equivocal. Appellate courts, however, give deference to a trial judge's determination of credibility and of the weight given to the evidence. Adoption of Elena, 446 Mass. at 31.
2. Postadoption visitation. We next address the father's claim that the judge erred by failing to provide for postadoption visitation. In cases where a family is ready to adopt a child, postadoption visitation by the preadoptive parents should be ordered when necessary to protect the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 63 (2011). The judge may properly decline to order visitation when the adoptive parents' discretion to make decisions regarding contact will adequately serve the child's best interests. See id. at 64-65. Thus, an order mandating postadoption visitation requires both a conclusion that visitation would be in the child's best interests and that those interests will not be adequately served by the adoptive parents' discretion. See ibid.
The father argues that the judge abused her discretion in denying his motion for postadoption visitation by ignoring evidence of his bond with the child. He relies on language from Adoption of Vito, 431 Mass. 550, 563 (2000), which explains that an order for postadoption visitation 'may be warranted where the evidence readily points to significant, existing bonds between the child and a biological parent, such that a court order abruptly disrupting that relationship would run counter to the child's best interests.'
Here, the judge did not find that such strong bonds were established. Moreover, even where such bonds exist, the judge still must determine whether visitation is in the best interests of the child. See Adoption of Ilona, 459 Mass. at 64-65. The judge determined that ordering postadoption visitation would be adverse to the child's best interests on the basis of expert psychological testimony that the child was very anxious about contact with his biological father and needed time to establish a sense of security with his adoptive family. And where postadoption visitation would be adverse to the best interests of the child, the judge should not order it. See ibid. Thus, the judge did not abuse her discretion is denying father's motion for postadoption visitation.
3. The adoption plan. When confronted with competing adoption plans, the judge should approve the plan that is most consistent with the best interests of the child. See Adoption of Hugo, 428 Mass. 219, 226 (1998). The judge should accord no special deference to any particular plan, whether offered by a parent or the department. See Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001). Rather, 'the judge must assess the alternatives and, if both pass muster, choose which plan is in the child's best interests, however difficult that choice may be.' Ibid. In other words, the judge is required to 'meaningfully . . . evaluate' the competing plans. Ibid., quoting from Adoption of Lars, 46 Mass. App. Ct. 30, 31 (1998), S. C., 431 Mass. 1151 (2000).
We reject the father's argument that the judge abused her discretion by failing to give due consideration to the father's proposed adoption plan. The record is clear that the judge 'meaningfully evaluated' the competing adoption plans, and concluded that the department's plan was most consistent with the child's best interests. The judge found that the child's aunt likely lacked the ability to meet the child's special psychological needs. Moreover, the judge noted that the child's aunt had been the subject of supported department allegations that she neglected her own children. By contrast, the judge found that the child's foster parents provided a stable, loving home and were capable of meeting his psychological needs. After evaluating the plans, the judge concluded that the department's plan was most consistent with the child's best interests. There was no error.
Decree affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),