Opinion
19-P-185
10-08-2019
ADOPTION OF XIMENEZ (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following trial in the Juvenile Court, a judge found the mother and the father unfit to care for their children, Ximenez and Joan, and terminated their parental rights. The judge placed the children in the permanent custody of the Department of Children and Families (department) and approved the permanency plan proposed by the department for adoption of the children by the maternal great aunt. On appeal, the mother and the father claim that the judge erred in terminating their parental rights.
1. Unfitness and termination of parental rights. The mother claims that the judge's ultimate finding of unfitness was not supported by clear and convincing evidence. The father contends that several of the judge's factual findings are clearly erroneous. He further argues that the judge abused his discretion and erred in determining that it was in the best interests of the children to terminate his parental rights. We disagree and affirm the decrees.
A decision to terminate parental rights involves a two-step analysis. See G. L. c. 210, § 3 ; Adoption of Nancy, 443 Mass. 512, 515 (2005). "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012).
These tests "are not separate and distinct but cognate and connected." Petition of New England Home for Little Wanderers, 367 Mass. 631, 641 (1975).
"When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "[A] judge's discretionary decision constitutes an abuse of discretion" only where "the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (quotations and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Subsidiary findings of fact are sustained unless "clearly erroneous." Adoption of Quentin, 424 Mass. 882, 886 (1997). These are very deferential standards. "A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Adoption of Abby, 62 Mass. App. Ct. 816, 824 (2005), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).
The mother contends that the evidence was insufficient to conclude that her history of drug use and failure to engage in services to address her drug use, mental health, and domestic violence issues affected her parenting. The mother further contends that the judge improperly weighed this evidence in determining unfitness. This is not so. The record is replete with evidence that the mother was unfit and that her unfitness was not temporary. The judge's findings of fact and conclusions of law are "specific and detailed so as to ‘demonstrat[e] that close attention has been given the evidence.’ " Care & Protection of Martha, 407 Mass. 319, 327 (1990), quoting Care & Protection of Stephen, 401 Mass 144, 151 (1987).
Although substance use, without more, does not translate to unfitness per se, see Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997), it is undisputed that Joan tested positive for marijuana and cocaine at birth, and this caused her to suffer withdrawal symptoms and tremors. The mother also prematurely ended a weekend visit with the children at Grace House to use heroin, and left that program shortly thereafter. The mother did not provide information to the department demonstrating that she had sought further treatment to address her substance use issues.
This case commenced as a result of a G. L. c. 119, § 51A, report filed after Joan's birth. The report alleged that the mother only attended two prenatal appointments prior to Joan's birth and admitted to using cocaine and marijuana shortly before giving birth.
Although the mother's service plan tasked her with engaging in services to address concerns about a history of domestic violence in the home and her mental health, the mother did not engage in those services. As a result of a police response to an altercation between the mother and the father, the mother was tasked with attending the New England Learning Center for Women in Transition to learn about domestic violence and ways to increase her safety. The mother never complied with this task. The judge was best situated to evaluate the weight of these facts in determining unfitness, and we see no clear error or abuse of discretion.
The father disputes that there was sufficient evidence to establish that he engaged in domestic violence against the mother, and claims the judge's finding was clearly erroneous. However, the record supports the judge's finding that domestic violence existed in the relationship. The mother reported not only that the father engaged in domestic violence in a previous relationship, but she also disclosed to her social worker that domestic violence had occurred in her own relationship with the father. The police responded to a domestic disturbance between the mother and the father, and the mother's attorney requested that the department discuss with the mother how to leave the father safely. The father also has an extensive criminal history, including an assault and battery conviction. Although the father was tasked with participating in the MOVE program for batterers, he failed to do so.
The mother contends that the department put on a "minimalist case." We disagree. Both the mother and the father neglected to visit the children on a regular basis in the year and one-half after the children were removed from their care, and the judge was permitted to consider this failure to visit in determining unfitness. See G. L. c. 210, § 3 (c ) (x). Furthermore, both parents failed to communicate with the department or engage in their respective service plan tasks. The mother did not keep the department informed of her current address and telephone number, which further hindered the department's ability to schedule meetings and provide services. The father had similar communication issues and demonstrated aggressive behavior, including referring to the children as his "property" and refusing to allow the department to conduct a welfare check on Ximenez. The judge properly considered the parents' refusal to cooperate with the department in his determination. See Adoption of Carla, 416 Mass. 510, 519 (1993).
The mother has waived her claim that the department did not engage in reasonable efforts to reunify the children with her. The mother had the opportunity to raise this claim in an administrative fair hearing or grievance hearing. See 110 Code Mass. Regs. §§ 10.08, 10.38 (2014). Because she did not do so, she cannot raise the issue for the first time on appeal. See Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011) (limiting appellate review "to those [alleged deficiencies in services] which the mother properly raised below"). Nevertheless, for the reasons stated above, we think that the department did in fact make appropriate efforts to work with the mother and the father.
The parents expressed that they had difficulty attending visitation appointments due to the distance between their home in Springfield and the department's Greenfield area office. While this may be true, the parents also missed visits prior to moving to Springfield. Between June 1, 2017, and the end of the trial, the parents confirmed that they would attend thirteen out of fifteen visits offered, but they actually only attended three.
Contrary to the father's assertion, the judge's findings are not internally inconsistent. The father's aggressive behavior toward the department staff and his lack of communication with the department created barriers that hindered the department in aiding the family.
The mother also challenges the judge's denial of counsel's oral motion to continue the trial to allow her to complete an inpatient detox program, claiming that the denial violated her due process rights. We disagree. The decision to continue a judicial proceeding is "entrusted to the sound discretion of the judge" and will be upheld absent an abuse of discretion. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002). The trial had already begun; the judge was not required to entertain the final efforts of the parents to show they were willing to comply with the department's service plan tasks.
Similarly, both parents contest the judge's decision to draw a negative inference from their lack of attendance at the trial. But the negative inference was not drawn due to the mother's participation in the detox program for which she sought a continuance, because her failure to attend the trial happened well after the program would have concluded. We also do not share the mother's reading of Adoption of Nadia, 42 Mass. App. Ct. 304, 307-308 (1997). The decision in that case does not demand that negative inferences be drawn with specificity. There, we concluded that the judge properly drew a negative inference from a parent's refusal to testify where the department presented a case adverse to the parent's interests. Id. Although we stated that "no inference may be drawn from a parent's failure to testify until ‘a case adverse to the interests of the party affected is presented so that failure of a party to testify would be a fair subject of comment,’ " we did not create a requirement for a judge to describe with particularity the reason for, or the weight given, the negative inference drawn. Id., quoting Custody of Two Minors, 396 Mass. 610, 616 (1986). Accordingly, the judge was permitted to draw a negative inference from the parents' absence from court given the gravity of the hearings, the parents' failure to cooperate with the department, and their failure to engage in services.
Both of the parents appeared on the first day of trial. However, neither testified on that day and they did not attend the remaining four days. The father argues that the judge cannot draw a negative inference because he appeared on the first day. We disagree. Given that the father did not testify, or attend the majority of the trial, the judge was permitted to draw a negative inference. See Adoption of Nadia, 42 Mass. App. Ct. 304, 307 (1997).
Finally, the father takes issue with the judge's consideration of the children's bond with the maternal great aunt, who is the preadoptive parent, pursuant to G. L. c. 210, § 3 (c ) (vii). This factor requires the judge to consider whether a child has formed a "strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child's life," and "removal of the child from the caretaker would likely cause serious psychological harm to the child." Id. At the time of trial, Joan had lived with the maternal great aunt for almost the entirety of her young life, and Ximenez had lived with the maternal great aunt for one-half of his. Both children refer to her as "mom." Although no scientific evidence was introduced demonstrating the strength or nature of the children's bond to the maternal great aunt, this was not required for the judge to infer that bonding had occurred. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003). There was no error.
In sum, the judge's ultimate determination that the mother and father were unfit was supported by clear and convincing evidence. The judge's subsidiary findings were supported by the record, and any additional claims of error are without merit.
Decrees affirmed.