Opinion
15-P-274
09-23-2015
ADOPTION OF OTIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After a trial, a Juvenile Court judge found the father unfit to parent the child, and that termination of his parental rights was in the child's best interests. The judge terminated the father's parental rights and approved the Department of Children and Families' (DCF) adoption plan. The father appeals. We affirm.
The mother stipulated to termination of her parental rights and has not joined in the appeal.
1. Background. Otis was born in August, 2009. For the first three years of his life, the mother's then boy friend was considered to be the child's putative father. The father's paternity of Otis was established in 2012. On July 17, 2013, DCF filed the current care and protection petition. G. L. c. 119, § 24. Additional facts, drawn from the Juvenile Court judge's findings, supplemented by undisputed facts in the record, are set forth below where appropriate.
A prior care and protection petition was dismissed on March 25, 2013.
2. Father's unfitness. "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 the 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). We review for abuse of discretion or other clear error of law, disturbing the judge's findings only if they are clearly erroneous. Adoption of Ilona, 459 Mass. 53, 59 (2011).
The judge here based his decision on an aggregate of factors, all amply supported by the record. We reject the father's characterization of the findings of fact and conclusions of law as erroneous. First, the father has an extensive criminal record that the judge properly found to be reflective of his propensity for violence. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125-126 (2002). Dating from 2006, the father has multiple convictions of crimes of violence, as well as drug and other nonviolent offenses. As a result of these convictions, the father has spent a significant portion of his adult life incarcerated. He was incarcerated at the time of this trial, awaiting trial on charges of attempted murder by strangulation, assault and battery by means of a dangerous weapon, and assault and battery. The alleged victim of these charges was the father's mother. In 2013, the child's mother obtained a G. L. c. 209A abuse prevention order against the father.
The father's claim that the judge improperly considered excluded evidence is not supported by the record.
The father has been convicted of conspiracy, extortion, disturbing the peace, possession of a class B substance, disorderly conduct, resisting arrest, assault and battery by means of a dangerous weapon, and domestic assault.
Second, the father provided minimal information to DCF and generally refused to cooperate with his assigned social worker. See Adoption of Carla, 416 Mass. 510, 519 (1993). Nor did he comply with any of his service plan tasks. The father also denied issues of domestic violence and substance abuse when questioned by the social worker, notwithstanding his prior convictions and the abuse prevention order.
Prior to his August, 2013, incarceration, the social worker was only able to contact the father by telephone once, a call she initiated. The father did not want to meet with her. Once incarcerated, only four or five meetings took place due to lack of cooperation by the father. Meetings are supposed to occur monthly. The social worker testified that the father "did not appear to want to meet with me when I was there."
Those tasks included demonstrating an ability to provide a safe, stable, nurturing environment that would meet the developmental needs of the child; meeting monthly with his social worker; signing necessary releases; obtaining appropriate housing; completing a State-certified batterers' intervention program; and participating in a parenting class, an assessment with DCF, substance abuse treatment, weekly therapy, and services available during the father's incarceration.
Third, Otis has significant emotional and psychological issues that the father is ill-equipped to manage. See Adoption of Warren, 44 Mass. App. Ct. 620, 625-626 (1998). He has a history of self-injurious behavior, including head-banging that has required several visits to the emergency room of a hospital. In his short life, Otis has been in and out of foster care three times. His current placement has proved to be stabilizing. Otis has improved his ability to regulate himself, ask for help, and verbalize his feelings. His current foster care placement has been identified by DCF as the proposed adoptive family.
Otis has been diagnosed with posttraumatic stress disorder and anxiety.
Lastly, the father has had minimal contact with Otis. Indifference toward a child may constitute unfitness. Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973). In total, the father has visited with Otis a total of four times, and has outright refused visits at points in time during the pendency of this case. The father has never had custody of Otis, nor has Otis ever lived with the father. Neither, when able and not incarcerated, did the father pursue any actions to establish a relationship with Otis. The father's relationship with Otis is essentially nonexistent. Moreover, the child has developed a "positive and trusting" bond with his preadoptive family, a factor the judge properly considered in his fitness determination. See Adoption of Frederick, 405 Mass. 1, 7 (1985).
When asked if he had ever met Otis prior to trial, the father pleaded the Fifth Amendment.
3. Father's trial testimony. At trial, the father testified, but only answered four questions, asserting his right under the Fifth Amendment to the United States Constitution as to all other questions. He now argues that DCF failed to present a case adverse to him. We disagree. While the evidence in this case was limited to the testimony of the social worker, the four testimonial responses of the father, and seven exhibits, the judge's finding that the father is unfit, and that it is in the best interests of Otis to terminate the father's parental rights, is borne out by the evidence. The father took a risk when he invoked his rights under the Fifth Amendment and held DCF to its burden. DCF met its burden. There was no error.
The father testified as to his name, his age, the fact of his current incarceration, and the fact of his paternity.
The father's contention that the judge improperly shifted the burden of proof to him is without merit. We deem his further claim that DCF failed to make reasonable efforts to reunify him with Otis waived, as he failed to raise this issue prior to trial. Cf. Adoption of Gregory, 434 Mass. 117, 124 (2001).
Decree affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 23, 2015.