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In re Adoption of Xara

Appeals Court of Massachusetts.
Jun 26, 2012
82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)

Opinion

No. 12–P–77.

2012-06-26

ADOPTION OF XARA (and two companion cases ).


By the Court (VUONO, SIKORA & FECTEAU, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Both parents appeal from the decrees of a judge of the Juvenile Court awarding the Department of Children and Families (DCF) permanent custody, terminating their parental rights, and dispensing with their right to consent to adoption of their three children. On appeal, the mother and father challenge the fairness of the proceedings and specifically contend the judge engaged in a biased assessment of the evidence, disregarded testimony favorable to each parent, and made a series of erroneous evidentiary rulings adverse to the mother's position at trial. They additionally claim that DCF failed to make “reasonable efforts” to support the mother's efforts to achieve reunification with her children. We affirm.

At the time of trial, the mother was thirty-three years old, and the mother of three children, Xara, age eleven; Robert, age eight; and Mark, age four. When she met the father in 1999, she had been abusing alcohol for some time; the father was abusing certain prescription drugs.

Both parents continued to abuse various substances, including opiates, heroine, and cocaine, use of which at various times escalated to a daily habit. Throughout their early childhood, the children were exposed to the parents' drug abuse, verbal abuse, continual housing instability, and prolonged absences due to involvement in the criminal justice system. Notably the father was arrested and incarcerated in 2007, 2008, and 2010, twice while the children were in the joint care of the mother and father. Although the mother took steps to become sober and a stable parenting figure at various times throughout the last decade, remaining sober for nine months in 2008, albeit mainly at the behest of DCF and in an effort to comply with the various DCF service plans, the intermittent presence of the father and his drug habits continually triggered a relapse in her own drug abuse. During a period of time ranging from the birth of the oldest child in 2000, up until DCF removed the children from the family home on January 29, 2009, DCF was involved with the family on numerous occasions. On January 29, 2009, DCF filed a petition in Juvenile Court alleging the children were in need of care and protection, and temporary custody was granted to DCF. In September, 2009, DCF changed its goal from reunification to adoption and amended its petition to seek termination of parental rights. On June 24, 2010, both the mother and father stipulated to their parental unfitness at that time and to permanent custody of the children by DCF. After a multiday trial in March, 2011, the judge issued her decision on May 3, 2011, finding both parents to be unfit, and accordingly terminating their parental rights and committing the children to the permanent custody of DCF. The mother and father filed timely appeals.

The record states that the mother began abusing alcohol at the age of sixteen, and was diagnosed with alcoholism at the age of nineteen. The father began using alcohol and marijuana at the age of fifteen.

The scope of this appeal is narrow. Neither the mother nor father challenge as clearly erroneous the subsidiary findings of fact made by the judge, which collectively document the chronic neglect of the three children. Rather, their primary contention on appeal is that the trial was conducted unfairly by the judge, who provided a biased assessment and acted in a partisan fashion in finding the facts underlying her termination decrees.

Discussion. In reviewing a decision to terminate parental rights, we determine “whether the trial judge abused [her] discretion or committed a clear error of law.” Adoption of Elena, 446 Mass. 24, 30 (2006). “In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child.” Adoption of Ilona, 459 Mass. 53, 59 (2011). The judge is charged with “weigh[ing] the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary.” Id. at 59–60.

Here, while parental fitness remained necessary for determination at trial, it was not seriously at issue. The mother and father stipulated to their unfitness prior to the commencement of trial, and there was ample evidence that such unfitness continued up to and during the trial.

Consequently, the judge's findings of fact and ultimate conclusion of parental unfitness were well supported. We also conclude that the judge did not abuse her discretion in deciding that it was in the best interests of the children to terminate the parental rights of the mother and father, a decision that is also supported by the record evidence and is otherwise without legal error. The judge made 160 separate findings of fact detailing an eight-year period in which the parties engaged in “an emotionally abusive and financially controlling substance-abuse filled relationship, characterized by consistent drug use and constant fighting, which often took place in front of [the] children,” and documented significant traumatic effects on all three children.

While “[u]nfitness does not mandate a decree of termination,” Adoption of Imelda, 72 Mass.App.Ct. 354, 360 (2008), a finding of unfitness satisfies the first prong of the two-part test for determining the propriety of termination of parental rights.

As these factual findings well demonstrate, the children exhibited various behavioral and emotional issues, including verbal and physical abuse toward others, aggression, and self-destructive threats as a result of the tumultuous relationship and habitual drug abuse of the mother and father.

Contrary to the assertions made by the mother and father in their respective briefs, the judge credited both positive facts and negative facts about the mother and her behavior as it related to her children, but ultimately concluded that termination was in the best interests of the children.

The judge properly deduced from the testimony elicited at trial, namely the repeated failures of the mother to complete the DCF service plans, notwithstanding substantial steps she attempted toward sobriety and stability on numerous occasions, that the father was a catalyst for the mother's substance abuse and detrimental behavior, and that, after nine years, the mother cannot successfully separate from the father. The judge can “rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness.” Adoption of Kimberly, 414 Mass. 526, 529 (1993). Considering their history, the judge properly concluded that their parental unfitness is not temporary and that a continuation of a legal relationship between the children and the parents was not in their best interests.

For example, the judge found that while the children resided with the mother and father, the father had Robert urinate in a cup to be used in the father's drug testing, and that, postremoval, Robert has experienced problems with urination.

With particular regard to the various allegations by the mother and father that the judge demonstrated partisanship because of her exclusion of evidence that, if admitted, would have been favorable to the mother's position at trial, or discrediting of evidence of a positive nature in favor of the mother, these allegations are without merit. We note that a judge presiding over a care and protection proceeding may only rely on facts properly admitted in evidence. Care & Protection of Zita, 455 Mass. 272, 279–280 (2009). See G.L. c. 119, § 21A.

Her findings, which include credibility determinations that are entitled to deference, show attention to all of the evidence. As previously noted, the judge is charged with weighing the evidence.

Specifically, with regard to the contention that the judge improperly considered the parents' income tax returns, we must assume that a judge who acts as both a finder of fact and adjudicator of law properly instructs herself on the rules of evidence, including that hearsay testimony admitted for a limited purpose will be considered only for that purpose.

The mother and father aver further that the judge abused her discretion in finding that DCF had made reasonable efforts to support the family without the need for removal of the children from their home, and that it acted reasonably in changing the goal from reunification to adoption. The parents' specific complaint is that DCF was not reasonable in refusing to allow the children to reside with their mother in a domestic violence and substance abuse shelter, per the mother's request, in the spring of 2010. In response, DCF points to a history of its efforts to support the family since it first became involved with the family, prior to changing its goal to adoption in September of 2009. Finding that DCF properly exercised its discretion in denying the mother's request to reunify with her children in 2010, after a series of failed attempts at reunification, the judge was neither plainly wrong nor abused her discretion.

After permanent custody was awarded, DCF had virtually sole discretion related to the “normal incidents of custody,” and to make decisions concerning the residential placement of the children. See Care & Protection of Isaac, 419 Mass. 602, 609 (1995).

While “there is no doubt that D[CF] is required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties,” the focus remains on the ability “of the parent to provide parental care and on the child's best interests.” Adoption of Lenore, 55 Mass.App.Ct. 275, 278 (2002). Where efforts toward reunification are the subject of an appeal, a decision that reunification was not attainable will be reversed only upon a showing of clear error. See id. at 279.

We note that no “abuse of discretion” challenge was made by the parents regarding postcustodial, pretrial placement decisions of DCF. See Care & Protection of Isaac, supra at 610.

Here, the judge noted in her extensive findings of fact that DCF made various referrals for the mother to obtain therapy, drug screens, shelter, and government assistance information during the tenure of its involvement, very few of which the mother followed through with to successful completion. With regard to the mother's request to have her children reside with her in a supervised, confidential, domestic violence shelter in New Bedford, DCF was well within its discretion to deny this request. The mother did not request this placement until April, 2010, over a year after the children had been removed from the home and placed in DCF's custody. Moreover, as the judge found, this request came at a time when the mother's parenting abilities were still unsatisfactory, given the extent of her addiction. In light of the continued instability of the mother and father as well as the long history of DCF involvement when the parents maintained full custody of the children, we conclude the judge did not abuse her discretion in finding that the parents had not made reasonable efforts to comply with the services offered by DCF, and did not err in concluding that the parents were not in a position to alleviate the instability.

“We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Ilona, 459 Mass. at 59. We discern no such error or abuse of discretion here.

Consequently, we affirm the decrees.

So ordered.


Summaries of

In re Adoption of Xara

Appeals Court of Massachusetts.
Jun 26, 2012
82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)
Case details for

In re Adoption of Xara

Case Details

Full title:ADOPTION OF XARA (and two companion cases ).

Court:Appeals Court of Massachusetts.

Date published: Jun 26, 2012

Citations

82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)
969 N.E.2d 749