Opinion
19-P-1545
10-07-2020
ADOPTION OF ZEBEDIAH.
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
The father of Zebediah appeals from a decree entered by a judge of the Juvenile Court finding him currently unfit to parent the child, terminating his parental rights, and dispensing with his consent to adoption. The father contends that (1) his rights to due process were violated because the Department of Children and Families (department) failed to make reasonable efforts to provide him with adequate services and visitation, (2) the judge relied on stale information to conclude that the father was unfit, (3) the judge abused his discretion by declining to order postadoption visitation between the father and Zebediah, and (4) the judge abused his discretion by failing to consider postadoption visitation between Zebediah and the father's older child, Zebediah's half-sibling, whom we shall call John. We affirm.
The mother's parental rights were also terminated after she signed a stipulation for judgment and an open adoption agreement. She is not involved in this appeal.
Discussion. 1. Due process and reasonable efforts. While "[p]arents have a constitutionally protected interest in maintaining a relationship with their children," Adoption of Simone, 427 Mass. 34, 39 (1998), this interest is not absolute. See Adoption of Eleanor, 414 Mass. 795, 801 (1993). Parental rights may be terminated upon a finding by clear and convincing evidence that a parent is unfit and that termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 515 (2005). Due process requires that a parent receive notice of termination proceedings and be afforded "an opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Adoption of Simone, supra at 39, quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
Although he suffered no due process violations during the course of the proceedings themselves, the father contends that the department violated his due process rights by failing to make adequate efforts to foster a bond between Zebediah and the father and between Zebediah and John. To be sure, the department is statutorily "required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties." Adoption of West, 97 Mass. App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). Even when a parent is incarcerated, the department's regulations require it "to make all reasonable efforts to work in cooperation with incarcerated parents to promote a healthy relationship with their children, and to avoid permanent separation," which includes "regular visitation at the correctional facility" where the parent is incarcerated. 110 Code Mass. Regs. § 1.10 (2008). However, the department's duty is contingent upon parents' fulfillment of their parental responsibilities. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). The judge must certify that the department has made reasonable efforts at various stages of care and protection proceedings. See G. L. c. 119, § 29C; Adoption of West, supra at 242. The judge's reasonable efforts determination will stand unless clearly erroneous. See Adoption of Ilona, 459 Mass. 53, 62 (2011).
The father's "reasonable efforts" claims falter for two reasons. First, the father's complaints about the department's provision of services, raised for the first time on appeal, are untimely. Parents must timely challenge the adequacy of the department's services. See Adoption of Gregory, 434 Mass. 117, 124 (2001). "A parent cannot raise a claim of inadequate services for the first time on appeal." Adoption of West, 97 Mass. App. Ct. at 242. The father did not avail himself of the "many avenues available to raise a claim of inadequate services," id., thus failing to "put the department . . . on notice of [his] current claim" that its efforts may be inadequate. Id. at 243.
Second, even if the father's complaints had been timely, the judge's unfitness and best interests determinations would stand. Although the department had no direct contact with the father since March 2015 because of no-contact orders barring communication between the father and department employees -- an order also barred the father from contacting Zebediah -- the department maintained regular contact with the father's counsel. The department has created multiple service plans for the father since the initiation of the proceedings, with terms including signing releases, completing an anger management program, undergoing a mental health evaluation, attending parenting classes, and receiving domestic violence services.
The department's service plans covering the period of the father's incarceration did not include tasks for the father, noting only that a no-contact order prevented contact between the father and the department. Service plans prior to the no-contact order listed tasks for the father, and the father had an active service plan at the time of trial.
Given the no-contact orders, the department did not arrange for visitation between the father and Zebediah for more than two years while the father was incarcerated. However, the father did not seek visitation while he was incarcerated. The judge found that the inaction of all parties in this regard was "inexcusable." Arrangements for visitation were not made until July 2017, upon motion by the father's counsel, and visitation did not begin until February 2018.
The record shows that the father, for his part, did not complete his service plan tasks during the course of these proceedings. He failed to sign releases to the department, which inhibited the department's ability to make referrals for services. This also prevented the department from obtaining information about services the father may have been engaging in. The father testified at trial that he had made recent attempts to address his anger by attending an anger management group, and to complete a mental health evaluation by attending a group meeting. At the time of trial, however, the father testified that he was not enrolled in a domestic violence class. The judge found, and the record supports the conclusion, that the father's "sporadic but unmeaningful efforts" to comply with the terms of the department's service plans had been negligible. Throughout his testimony, the father denied responsibility for, and the existence of, problematic aspects of his life.
The father argues that the no-contact orders did not excuse the department's inaction because they "would have only been applicable if Father were out in the community." However, nothing in the orders themselves, or in the law, supports this assertion. See Callahan v. Callahan, 85 Mass. App. Ct. 369, 373 (2014) (incarceration does not obviate need for protective orders).
Of the judge's 130 findings of fact, the father challenges only no. 67, in which the judge found that a complaint issued against the father in Malden District Court charging him with threatening to commit a crime and witness intimidation, that the father was arraigned on August 21, 2015, that the father was released from custody that day on personal recognizance with the condition that he stay away from and have no contact with department employees, and that these charges were nol prossed in November 2015. The father contends that this finding is erroneous because it assumes he was "in the community." However, the judge's other findings demonstrate the judge's understanding that the father remained incarcerated.
Even if the judge had found that the department failed to make reasonable efforts in this case, the judge must still determine what is in the child's best interests. See Care & Protection of Walt, 478 Mass. 212, 228 (2017); Adoption of Ilona, 459 Mass. at 61. We discern no error or abuse of discretion in the judge's unfitness and best interests determinations.
2. Unfitness and termination of parental rights. Parental rights may be terminated, first, upon a judge's "specific and detailed findings" that prove parental unfitness by clear and convincing evidence, Adoption of Eleanor, 414 Mass. at 801, and, second, upon a finding that termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. at 515. Determinations of parental fitness must take into account "a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). The judge must also consider applicable statutory factors under G. L. c. 210, § 3 (c).
When reviewing such determinations, "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. at 799. The judge's finding of unfitness will stand unless there is an abuse of discretion or a clear error of law. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
The father contends that the judge relied on stale information in finding that the father was unfit and that the father's unfitness would continue for the foreseeable future. A judge "may consider past conduct to predict future ability and performance," Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997), but may not rely on "stale" information. See Adoption of Rhona, 57 Mass. App. Ct. 479, 485 (2003) (concluding that trial judge erroneously relied on evidence of mother's drug use from almost four years before findings were issued while ignoring more recent evidence of mother's sobriety). In addition, the judge may properly take into account "prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Custody of Two Minors, 396 Mass. 610, 621 (1986).
The judge made extensive findings of fact, which are amply supported by the record, in concluding that the father was unfit to parent Zebediah and that termination of the father's parental rights was in Zebediah's best interests. The level of detail in the judge's findings demonstrates that the judge carefully weighed the evidence in the record. Moreover, the judge made required findings under the applicable factors of G. L. c. 210, § 3 (c). The judge properly considered the father's ongoing conduct and pattern of parental neglect. Given the father's neglect of Zebediah in the face of Zebediah's mother's substance use; his pattern of violent and threatening behavior, including domestic violence against John's mother and Zebediah's mother; his failure to consistently engage in services; and his continued denial of the problems in his life affecting his ability to parent Zebediah, the judge's finding that the father was unfit, and that his unfitness was not merely a temporary condition, was not an abuse of discretion.
3. Postadoption parental visitation. In the ordinary course, decisions about a child's posttermination or postadoption visitation are left to the sole discretion of the department or the adoptive parents. See Adoption of Rico, 453 Mass. 749, 756 (2009). However, a judge has broad authority to order postadoption visitation. See id.; Adoption of Vito, 431 Mass. 550, 560-561 (2000). "The touchstone is limited postadoption contact when there is a compelling reason for the judge to conclude that contact with a biological parent is currently in the best interests of the child." Adoption of Vito, supra at 561 n.21. The judge's decision concerning postadoption visitation will be upheld unless there was an abuse of discretion. See Adoption of Lenore, 55 Mass. App. Ct. at 283; Adoption of Nicole, 40 Mass. App. Ct. 259, 264 (1996).
Both the father and Zebediah challenged the judge's decision on postadoption visitation in their briefs. Zebediah, however, did not file a notice of appeal and instead sought leave from this court to be heard on the issue; the department opposed the request. Prior to oral argument, Zebediah withdrew his request to advocate for postadoption visitation in this court and is instead pursuing the issue in the Juvenile Court. We address only the contentions raised in the father's brief.
"[A] judicial order for postadoption contact 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 the relationship would run counter to the child's best interests." Adoption of Vito, 431 Mass. at 563, citing Youmans v. Ramos, 429 Mass. 774, 785-786 (1999). Where there is little or no evidence of a significant, existing bond between a child and parent, and there are no other compelling reasons for concluding that postadoption visitation is in the child's best interests, it is within the judge's discretion not to order visitation. See Adoption of Ilona, 459 Mass. at 66; Adoption of Vito, supra at 553.
In this case, there was little evidence to suggest that the father and Zebediah had a significant bond. The father argues that the department "did nothing to foster, strengthen, or maintain" his relationship with Zebediah and thus is to blame for the absence of a significant bond between them. And, indeed, the record shows that visitation between the father and Zebediah went smoothly when visitation was finally arranged. The father argues that the judge abused his discretion by failing to order postadoption visitation where the father's relationship with the child has begun to develop, and the child has begun to show affection toward the father.
This is not to say that the father does not love and care deeply for his child. "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[]." Adoption of Lisette, 93 Mass. App. Ct. 284, 285 n.2 (2018).
However, the judge concluded that there was an insufficient bond between the father and Zebediah. The judge found that Zebediah has formed a strong bond with his substitute caretakers, the foster family with whom he is placed and who have already adopted his two half-siblings. The judge also determined that given the father's past violent and threatening conduct, postadoption visitation would potentially risk exposing the child and his future adoptive family to harm. Based on these findings, which are supported by the record, the judge did not abuse his discretion by declining to enter an order for postadoption visitation.
Zebediah's father is not the father of these two half-siblings.
4. Postadoption sibling visitation. Under G. L. c. 119, § 26B (b), the court or the department must, "whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings in other foster or pre-adoptive homes or in the homes of parents or extended family members" while in department custody. The question of sibling visitation is distinct from that of parental visitation. See Adoption of Zander, 83 Mass. App. Ct. 363, 367 (2013), citing Adoption of Rico, 453 Mass. at 753 n.12. Section 26B (b) applies to sibling visitation "where intervention by the Commonwealth has precipitated the separation of those siblings." Care & Protection of Jamison, 467 Mass. 269, 278 (2014).
Here, the judge had no obligation to consider sibling visitation between Zebediah and the father's older son, John. The purpose of G. L. c. 119, § 26B (b), is to promote sibling visitation where State intervention has separated siblings. See Care & Protection of Jamison, 467 Mass. at 278-279. The underlying petition for care and protection in this case did not determine the custody of John, nor did it result in the separation of Zebediah and John. In fact, there is no evidence in the record to suggest that Zebediah has ever met John. Because Zebediah and John were not separated as a result of State intervention, the statute does not apply.
Decree affirmed.
By the Court (Blake, Massing & Neyman, JJ.),
/s/
Clerk Entered: October 7, 2020.