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In re Adoption of Raffi

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 16, 2016
89 Mass. App. Ct. 1128 (Mass. App. Ct. 2016)

Opinion

No. 15–P–1357.

06-16-2016

ADOPTION OF RAFFI.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this proceeding initiated pursuant to G.L. c. 119, § 24, for the care and protection of the child, the father appeals from a decree terminating his parental rights and dispensing with the need for his consent to the child's adoption. See G.L. c. 119, § 26 ; G.L. c. 210, § 3. He challenges the sufficiency of the evidence of his unfitness, and argues that efforts by the Department of Children and Families (DCF) to reunite him with the child were not reasonable. We affirm.

The mother stipulated at trial that the child is in need of care and protection and assented to the guardianship of the child by the maternal grandparents.

Background. The judge made 144 findings of fact, which “are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence.” Adoption of Don, 435 Mass. 158, 165 (2001). We summarize her findings, supplemented by testimony from the trial.

The child was born in November, 2009. From that time until he was removed in July, 2013, the child resided with the father and the mother, who is not a party to this appeal. The father works long hours and is out of the home for approximately ten hours per day; thus, the mother was the child's primary caretaker while the father and the mother were together. The father was aware that the mother abused and sold controlled substances while caring for the child, that she slept all day and failed adequately to supervise the child, and that she verbally and physically abused the child. He did nothing to stop it, “hoping the problem would essentially solve itself.”

On March 6, 2013, DCF placed the child in the custody of his maternal grandparents, where he remained until May, 2013, after the father and the mother engaged in a physical altercation in the child's presence. Between March and May, 2013, a social worker visited the home and observed that the living room was used as a work area, with tools left on the floor. The father admitted that he allowed the child to play with a cordless power drill, and that, before the child could walk, he was burned by a soldering iron that the father “careless[ly]” left within the child's reach. The mother frequently had parties in the home, including one which took place on July 7, 2013, during which the father was assaulted by friends of the mother while the child was sleeping in the next room. The next day, the child was removed and placed with his maternal grandparents and the parents' relationship ended.

In August, 2014, the father married another woman (wife). The wife has no children and works part time. The father testified that, should he regain custody of the child, he intends for the wife or her mother to care for the child while the father is at work. The wife's mother is ninety years old and has never met the child. The child does not know that his father has married the wife, nor has he ever met the wife, although DCF has encouraged her to participate in visits. The wife did not testify at or attend the trial, and she did not participate meaningfully in the case.

The father has a history of mental illness. In or around 2001, the father spent three weeks in a military hospital and was diagnosed with bipolar disorder. He was prescribed medications that he did not take. In 2008, the father was treated for bipolar disorder and depression, and once again he was prescribed medication. The father was admitted to a local mental health facility in April, May, and July, 2009, after incidents wherein the father was “in crisis and out of control,” and he was prescribed medication after each of these admissions. However, the father does not take prescribed medication because he believes that doing so “is not dealing with something,” and he would not give the child “any medication designed to treat mental health issues, including psychotic episodes.” The father discontinued therapy after he was asked to undergo a neuropsychological evaluation, which DCF added to his service plan in order “to determine cognitive processing, ability to learn new skills, address any mental health issues and receive recommendations for appropriate treatment.” The father has not completed a neuropsychological evaluation and he has no future plans to reengage in therapy. The judge found that “[a]s an alternative to therapy sessions with a professional, Father talks with friends at work in order to treat his mental health.”

The father stated that it “would be a tough call” whether he would give the child a steroid inhaler prescribed to treat the child's asthma.

Although his DCF service plan required monthly meetings, the father met with his social worker only twice between May and December, 2014, because “it did not seem urgent” to meet with her more. The father failed to telephone or visit the child on the child's birthday, and he also missed Christmas visits in 2013 and 2014. His visits became biweekly after he missed a January, 2014, visit and did not call, leaving the child “emotional,” waiting in the social worker's office. The father never telephones the maternal grandparents' house to speak with the child, and the child has not spoken on the telephone with the father in at least one and one-half years before the trial. DCF did not reunify the child with the father “due to their concerns over the safety issues, father's untreated/unevaluated mental health, lack of a viable plan for [the child]'s return considering the father's work schedule, limited understanding of the child's developmental age, especially regarding what [the child] is and is not capable of, irresponsible decision-making and a lack of insight into [the child]'s abilities.”

Based on her findings, the judge concluded that the father is currently unfit to assume parental responsibilities for the child, that his unfitness is likely to continue, that the child's best interests are served by terminating the father's parental rights, that DCF's efforts to safely reunite the child with the father were reasonable, and that continuing the guardianship with the maternal grandparents is in the child's best interests. She ordered monthly visitation between the father and the child, and gave the maternal grandparents “sole discretion in increasing contact as deemed appropriate.”

Discussion. “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). “The standard for parental unfitness and the standard for termination are not separate and distinct[;] ... [a]fter ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Nancy, 443 Mass. 512, 515 (2005). The judge's findings will not be “disturbed unless clearly erroneous,” and we review her ultimate conclusions “with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence.” Ibid.

We see no error in the judge's findings, all of which are supported by the record. Although the father challenges the conclusion that he has an untreated mental illness, the evidence supports the judge's subsidiary findings regarding his mental health history. There was evidence that the father has experienced acute mental health issues when faced with stressful situations, including three hospitalizations when he discovered that the mother was pregnant with the child. Yet, DCF's repeated attempts to help him “identify and treat any mental health problems were rebuffed,” and he “consistently refused evaluation for psychiatric problems, even when required by service plans to which he agreed.” Adoption of Eduardo, 57 Mass.App.Ct. 278, 281 (2003). The judge noted that the father's “life stressors would only increase” if the child were returned to his care, and that in light of his previous hospitalizations in anticipation of the child's birth, the father's “denial of [any] problems [and] h[is] refusal to be evaluated or to take prescribed medication,” was very relevant to the question of his fitness to parent the child full time. Id. at 282. See Adoption of Serge, 52 Mass.App.Ct. 1, 8 (2001).

So too was the father's testimony regarding his “hesitancy to use a prescribed medication that could save [the child]'s life, or at least prevent future complications from asthma.”

It is clear from the evidence and from the judge's findings that “[o]verall, the [father] did not appear able to offer a specific or realistic plan for assuming full time care of [the child].” Ibid . At the trial, which took place in December, 2014, and January, 2015, the father stated that he would rely on the wife to care for the child while he is working. However, in February, 2014, he told the parental functioning evaluator that the wife would not babysit or parent the child. The wife napped during the father's meeting with the evaluator rather than participating, and the judge found concerning “[t]he lack of evidence regarding [the wife's] childcare abilities, and the fact that she has not been involved in this case.” Neither the wife nor her ninety year old mother have met or expressed an interest in meeting the child, and we agree with the judge that, “[c]onsidering Father's work schedule, his history of tenuous mental health and the lack of practical supports around him, the father cannot provide [the child] with a stable family life.”

“The judge was bound to [and did] consider” evidence of the father's recent positive gains, id. at 7, including “the fact that Father maintains gainful employment ... and is a good employee.” The judge recognized the father's “good intentions, in seeking therapy for a limited amount of time and participating in the parental functioning evaluation,” but concluded that such intentions “do not establish that he is able to adequately care for [the child] on his own.” We see no error in this conclusion, where the evidence showed that the child “suffered ongoing and repeated neglect and abuse while in the care and custody of his parents,” and that “Father made the choice not to take action regarding Mother's misconduct, resulting in the removal of his child.” The judge found that at trial, the father “tried to minimize his knowledge of the danger/risk to [the child] while [the child] lived with he and Mother,” suggesting that he did not appreciate the seriousness of the prior abuse and neglect he permitted. It is well settled that “an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child.” Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979). Where, as here, the father has failed fully to engage in services designed to ensure that the child safely could be returned to his care, where he has failed to telephone or give notice before missing visits with the child, causing the child to become “emotional,” and where he fails to telephone the child because he distrusts the guardians, evidence of prior neglect was “unrebutted by more recent proof of parental capacity [and] provides a satisfactory basis for a finding of current parental unfitness.” Ibid.

Finally, we see no failure by DCF in its efforts to reunite the child with the father, where DCF offered the father multiple services, weekly visitation, and telephone contact with the child that the father did not avail himself of. DCF's duty “was contingent upon the [father]'s fulfillment of [his] own parental responsibilities,” Adoption of Mario, 43 Mass.App.Ct. 767, 774 (1997), including participating in a neuropsychological evaluation, therapy, and parenting classes. This he did not do, and while the judge found and the record demonstrates that the “Father continues to present as a caring and concerned parent,” his “rights are secondary to the child's best interests.” Adoption of Gregory, 434 Mass. 117, 121 (2001).

Decree affirmed.


Summaries of

In re Adoption of Raffi

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Jun 16, 2016
89 Mass. App. Ct. 1128 (Mass. App. Ct. 2016)
Case details for

In re Adoption of Raffi

Case Details

Full title:ADOPTION OF RAFFI.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jun 16, 2016

Citations

89 Mass. App. Ct. 1128 (Mass. App. Ct. 2016)
51 N.E.3d 511