Opinion
15-P-790
04-01-2016
ADOPTION OF RENATA (and two companion cases).
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
The mother appeals from a judgment and decrees of the Juvenile Court, adjudicating her to be currently unfit to parent the subject children, Renata, born in 2006, Alan, born in 2001, and Charles, born in 2005, and dispensing with the need for her consent to the adoption of Renata and Alan. The father of Renata appeals from a decree of the Juvenile Court finding him unfit and dispensing with the need for his consent to her adoption. We affirm.
The parental rights of the father of Alan and Charles were also terminated; he did not appeal. Our use of "father" in this memorandum and order refers only to Renata's father.
Background. The mother has eight children. The father is the biological father of four of these children -- Renata, twin boys, and another boy, Robert. The twins currently live with the mother, and each suffers from autism and asthma. Renata, Alan, and Charles (collectively, subject children) also have special needs. Renata's needs are especially significant. She has been diagnosed with a cognitive disability, reactive attachment disorder, and depressive disorder-NOS.
A pseudonym. The mother's and father's parental rights were terminated as to Robert in a prior proceeding, and he has since been adopted. He is not involved in this appeal.
The subject children and three siblings were placed in the custody of the Department of Children and Families (department) on March 12, 2008, because of missed medical appointments, hygiene issues, and the mother's failure to meet with the department. The father was arrested in March, 2012, and subsequently convicted in December, 2012, for selling cocaine to an undercover officer in the mother's driveway. Beginning in early 2013, the father spent five months in a house of correction prerelease program. He then was placed in a substance abuse program run by the sheriff until September, 2013, when he entered a halfway house.
Discussion. 1. The mother's unfitness. The mother contends that the judge improperly relied on stale findings from her prior termination proceeding involving Robert. Such findings are admissible when they "are relevant and material and made during a proceeding in which the parents had a compelling incentive to litigate." Adoption of Darla, 56 Mass. App. Ct. 519, 521 (2002). In the earlier termination case, the mother had a compelling incentive to litigate, and she did so. Furthermore, in the instant case, all of the judge's specific references to prior findings reflect basic factual information.
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).
The mother correctly points out, however, that the judge incorporated all of the prior findings by reference. The mother strongly takes issue with this, arguing that the prior findings include some that are out of date and no longer relevant and material. She points to expressions of concern about her ability to provide "minimally adequate levels of care" to the twins, and references to the fact that she required significant direction regarding their care from a parenting program. According to the mother, these findings are stale because, three years later, at the time of the trial in the present case, the twins had not been removed from her care, and the evidence suggested that she was meeting their needs.
The mother's argument is without merit. Although she retained custody of the twins when the present case was tried, nothing in the record suggests that her ability to care for their significant needs was anything but precarious. The judge appropriately relied on the previous findings to establish relevant and material background for the current matter.
The mother also argues that the judge's subsidiary findings regarding her history of drug abuse and difficulties with visitation, as well as his conclusion that she had made "minimal effort" to make and attend appointments, were clearly erroneous. We disagree. The record adequately supports these findings. Especially given the significant needs of the subject children, as well as those of the twins, the record supports a nexus between the mother's parenting deficits and a likelihood of harm to the children, and the determination that terminating the mother's parental rights is in the best interests of Renata and Alan. We discern no error or abuse of discretion on the part of the judge.
2. The father's unfitness. The father argues that the judge erred in terminating his parental rights to Renata without considering whether his unfitness might be temporary. See Adoption of Carlos, 413 Mass. 339, 350 (1992). See also Adoption of Ramona, 61 Mass. App. Ct. 260, 264-265 (2004). According to the father, the judge erroneously focused on his behavior prior to his incarceration, when he was engaged in drug use and was not visiting with Renata. He emphasizes that during his incarceration and immediately following it, he began visiting with her regularly and engaging in services.
The judge acknowledged that the father had made gains, but expressed concern that these gains were untested outside the context of his incarceration. The judge also noted that the father made no effort to visit Renata until his incarceration and refused to engage with the department throughout most of the case. The father has no experience caring for Renata, a child with significant special needs; and the father's drug use had led to her neglect in the past. The judge was entitled to consider all of these factors in finding the father to be currently unfit and determining that termination was in Renata's best interests. See Adoption of Diane, 400 Mass. 196, 204 (1987) (judge may rely on "prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness"). See also Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799-800 (1983) (child's particular needs should be considered when determining whether parent is unfit).
3. Posttermination visitation with the father. The father's final argument is that the judge erred by not ordering posttermination visits. Finding no significant bond between the father and Renata, the judge left the determination of posttermination contact to the discretion of Renata's "legal custodians," currently the department.
The father argues that the judge should have considered additional factors to determine that visitation was in Renata's best interests, citing Adoption of Rico, 453 Mass. 749, 759 (2009). For example, he contends that he can be a source of stability, that he can provide Renata with a sense of her background, and that he can support her in coping with her disabilities. However, while such factors "may be relevant," they do not compel posttermination visits. Ibid. Furthermore, unlike the situation in Adoption of Rico, in this case there is no evidence of a strong parent-child bond, or other factors suggesting that visitation was in the best interests of the child. Id. at 755.
In Rico, the child had moved between four foster placements, and had lost his preadoptive placement. Rico, 453 Mass. at 755. The Supreme Judicial Court also noted that in view of the specific circumstances of Rico, failure to order visitation constituted an abuse of discretion, but that Rico does not provide a general rule. See Adoption of Ilona, 459 Mass. 53, 65 (2011).
Even when a judge finds that visitation is in the best interests of the child, the judge has broad discretion to decide whether to order visitation or to leave the nature and frequency of visits to the judgment of the child's legal guardians. See Adoption of Ilona, 459 Mass. 53, 66 (2011). See also Adoption of Douglas, 473 Mass. 1024, 1027 (2016). Here, the judge considered the relevant factors and made a decision that was well within the bounds of reasonable alternatives. There was no abuse of discretion. See generally L.L. v. Commonwealth, 470 Mass. 169, 184-185 & n.27 (2014).
It remains open to the father to contact the department and seek the opportunity to visit with Renata.
Judgment affirmed.
Decrees affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 1, 2016.