Opinion
No. 13–P–519.
2013-10-8
ADOPTION OF ORA.
By the Court (COHEN, KATZMANN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals the judge's ultimate finding of unfitness in this proceeding in which the mother's parental rights were terminated pursuant to G.L. c. 119, § 26, and G.L. c. 210, § 3.
The mother also appeals from the denial of her posttrial motions to reopen the evidence, and the denial of her motion for reconsideration of the denial of those motions. She argues that she was denied a full and fair hearing, the judge abused her discretion by approving an insufficient adoption plan, and the judge erred by failing to conduct an evidentiary hearing on the mother's changed circumstances after the mother's parental rights were terminated. For the reasons stated below, we affirm.
The father has not appealed from the termination of his parental rights.
Background. 1. Procedural history. The Department of Children and Families (department) was given temporary custody of the child on November 22, 2010, when the child was four and one-half months old. The mother missed several hearings due to incarceration; she first appeared in court for a scheduled event on April 7, 2011. The case was continued for trial several times until November 8, 2011, when the department filed its notice of intent to request termination of parental rights. Neither the mother nor the father were present for the trial. The judge found the mother and father unfit to care for and protect the child, and committed the child to the permanent custody of the department.
The case was continued to December 15, 2011, for a hearing on the adoption plans for the child. Neither the mother nor the father were present. The department's adoption plan was filed and approved by the judge. The judge terminated the parental rights of the mother and father.
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. The question for the judge is “whether the parent's deficiencies ‘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, 761 (1998).
2. Essential facts. We draw these facts from the judge's findings, which are well supported by the evidence and are not challenged on appeal.
The mother was sixteen years old when she gave birth to the child in July, 2010. During the several months before the department acquired temporary custody of the child, the mother established a pattern of leaving the child with others for extended periods of time. The mother, who was living with the maternal grandmother, used marijuana daily and was neither employed nor in school.
In the judge's extensive findings and rulings, she concluded that factors i, ii, iii, v, vi, viii, ix, x, xi, and xii of G.L. c. 210, § 3, were present and applicable to this case. More particularly, the judge found that the child was abandoned; the mother has not maintained significant and meaningful contact with the child during the previous six months; the child was in the department's custody for at least six of the last twelve months; the mother failed to provide proper care or custody for the child; the mother lacked effort to remedy conditions which create a risk of harm to the child; there was a wilful failure to visit or support the child while not in the mother's custody; and the mother's drug use was likely to continue for a prolonged indeterminate period.
On or about October 26, 2010, a report was filed with the department alleging neglect of the child, who was three months old at the time. On November 16, 2010, the mother left the child with the maternal grandmother without leaving any contact information or explanation for her disappearance. After two days, the maternal grandmother refused to be the child's full time caretaker. The department was notified and the child was removed from the maternal grandmother's home. The mother's whereabouts were unknown until December 10, 2010, when she was located at the Baltimore Detention Center in Baltimore, Maryland. She was being held on $50,000 bail for charges of robbery with a deadly and dangerous weapon and second degree assault. The mother continued to have no contact with the child until she was released from the Baltimore Detention Center in March of 2011. After the mother returned to Massachusetts in March, 2011, until the time of trial, her contacts with the child were inconsistent. The mother continued to be unemployed, used marijuana daily, declined treatment for drug use, and refused compliance with the department's service plans.
Discussion. 1. A full and fair hearing. The mother first argues that she was denied a full and fair hearing because the judge did not consider the documentary evidence before making her decision .
This argument rests on the fact that most of the documentary evidence was received in evidence and marked as an exhibit at the end of the trial and shortly before the judge announced her decision from the bench. This argument is flawed for several reasons.
The mother does not challenge the adequacy of the evidence of parental unfitness, but instead challenges the decision-making process.
First, as the department points out, many of the documents marked as trial exhibits were in the court file and accessible to the judge before the trial. A review of the judge's findings also indicates she relied on those documents as well as the testimony of witnesses in reaching her decision. Also, it is significant that the mother's trial counsel did not raise any objections to the manner in which the trial was conducted. When the mother's counsel was asked at oral argument about what significant information was contained in the exhibits offered at the conclusion of the trial that is not reflected in the judge's findings and rulings, he was not able to identify any evidence which undermined the evidence that the mother was frequently unavailable, lacked regular contact with the child, and pursued a lifestyle that was not compatible with meeting the basic needs of the child over a period of nearly three years. Second, the mother's argument, which asks us to find that the judge made her decision too hastily, disregards the principle that “[n]o specific period of deliberation is constitutionally required.” Commonwealth v. Doyle, 392 Mass. 23, 27 (1984). A judge as fact finder is not foreclosed from receiving impressions of the evidence as a trial unfolds. See ibid. Third, the mother's argument, which asks us to examine the judge's decision-making process, is foreclosed by the judicial deliberative privilege which forbids a party from “[p]robing the mental processes of a trial judge, that are not apparent on the record of the trial proceeding.” Matter of Enforcement of a Subpoena, 463 Mass. 162, 167 (2012).
Our review of the record leads us to the conclusion that the case was tried fully and fairly, and that the judge's detailed findings of fact reflect her consideration and understanding of the evidence.
2. The sufficiency of the adoption plan. The mother argues that the adoption plan proposed by the department was insufficient, and that the judge abused her discretion by approving it. The department worked with the child's maternal grandmother, who expressed a willingness to adopt her, but who then changed her mind and asked the department to consider the child's aunt. The department's plan indicated that if a kinship adoption was not successful, it would make a referral to the Massachusetts Adoption Resource Exchange or the Adoption Development Licensing Unit. The record is replete with examples of the department focusing their time and resources on creating service plans for the mother and trying to find a placement for the child with a family member.
In any event, a sufficient adoption plan was later offered by the department. “Our cases recognize that in many ... cases no preadoptive parents have been identified when the parental rights of the biological parents are terminated, and that, while a fully developed adoption plan is preferable, it is not an essential element of proof in a petition brought under G.L. c. 210, § 3.” Adoption of Scott, 59 Mass.App.Ct. 274, 278 (2003) (citations and quotations omitted). The department provided guidelines to follow when selecting an adoptive family so the child's needs would be met. For those reasons, the plan was sufficient.
3. Denial of posttrial motions. Finally, the mother argues that the judge erred in denying the posttrial motions to reopen the evidence and conduct an evidentiary hearing based on the mother's allegations of changed circumstances after the mother's parental rights were terminated. Such motions are “addressed to the discretion of the judge. Such a decision will not be reversed on appeal save for abuse.” Bird v. Ross, 393 Mass. 789, 791 (1985) (citations and quotations omitted). The judge in this case did not abuse her discretion. This is not a case like Adoption of Theodore, 36 Mass.App.Ct. 355, 357 (1994), or Adoption of Cesar, 67 Mass.App.Ct. 708, 715–716 (2006), where there was a single, specific reason for finding the parent unfit, and that reason was resolved after the trial. Here, the judge was warranted in concluding that there was no credible evidence that the mother was motivated to change her lifestyle and, as a result, there was no basis to revisit the ruling that the mother's rights should be terminated.
Consequently, we affirm the decree, the order denying the posttrial motions, and the order denying the motion to reconsider.
So ordered.