Opinion
No. 15–P–1547.
06-02-2016
ADOPTION OF WALENA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and the father appeal from decrees terminating their parental rights. The mother argues that (1) the judge erred by relying almost exclusively on “the predictive value of past behavior”; (2) certain findings of fact were erroneous; and (3) the judge erred by basing findings on the mother's poverty and homelessness. The father argues that the judge erred because (1) there is no nexus between the judge's findings regarding the father's shortcomings and his inability to parent Walena; and (2) the Department of Children and Families (department) did not provide reunification services to the father. Our review is limited to whether the judge abused his discretion. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). We affirm.
The mother. 1. Past behavior. The mother argues that by relying almost exclusively on the predictive value of past behavior, the judge did not address a “too rapid” change of the goal to adoption or the department's failure to provide services to the mother to strengthen the family, and failed to appropriately consider the improvements the mother made. In his findings of fact, the judge drew on evidence surrounding the removal and termination of the parents' rights with regard to two older children in support of his finding that the parents were unfit to parent Walena. Evidence of past behavior may be used to substantiate a conclusion that a parent is unfit, provided the information is not stale. Adoption of Rhona, 57 Mass.App.Ct. 479, 485 (2003). In fact, “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” and, “particularly where unrebutted by more recent proof of parental capacity, provides a satisfactory basis for a finding of current parental unfitness.” Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979). During the proceedings involving the two older children, the department had advised the parents that the mother's home was completely unsuitable for children and asked the mother to repair the home or find new housing. The father was homeless. In the case involving the older children as well as in the case involving Walena, the department established goals and provided services to the parents; however, they refused to participate or participated only minimally. The parents' rights to the older children were terminated within a year before Walena's birth. The information was not stale and had not changed. There was no error in the judge's conclusion that the parents' past conduct, which was continuing, supported his finding that the parents were unable to care for Walena. See Adoption of Larry, 434 Mass. 456, 469 (2001) (past conduct is especially relevant where it continues). See also G.L. c. 210, § 3(c) (judge must consider whether danger of abuse or neglect is likely to continue). The mother's argument that the judge relied “too heavily” on this factor goes to the weight of the evidence and is not a proper matter for appeal. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). Furthermore, it is evident from the findings and the record that the judge relied on many factors, not only the parents' past behavior.
The two older children are not involved in these proceedings.
At the time of Walena's birth, and at the time of trial, the mother continued to live in the same house, which was still unsuitable.
The judge examined the department's efforts with regard to reunification and the services it provided to the mother. The judge specifically did not credit the allegation that the department did not provide her services or contact her regularly. We cannot disturb a credibility finding by the judge and we must defer to the weighing of the evidence by the fact finder. See Adoption of Cecily, 83 Mass.App.Ct. 719, 726–727 (2013).
2. Findings with regard to the mother. The mother argues that the judge erred in finding that there was a continuing relationship between the mother and the father; that there was insufficient evidence to support a finding that Walena had special needs; and that the judge relied too heavily on unsubstantiated and unconnected mental health issues and cognitive limitations. Examination of the record establishes that there was sufficient support for the judge's findings of fact and conclusions.
With regard to whether there was an ongoing relationship between the mother and the father, which was typically characterized by violence by the father against the mother, the judge found that the parents continued to see each other and that domestic violence remained an ongoing issue in their relationship. Regardless of the nature of their relationship, the parents continued to see each other and continued to deny that violence had occurred in the past, in spite of the fact that the first care and protection petition against the parents was filed after an incidence of domestic violence that occurred while the mother was holding the parents' oldest child. The judge was entitled to consider this evidence when making his findings. See id. at 726.
The mother also argues that there was insufficient evidence to support a finding that Walena had special needs. It is readily apparent from the findings and the record, as the department argues, that the parents were unable to meet Walena's needs on any level, or even their own needs. The finding that Walena does, in fact, have special needs is amply supported by the record. Early intervention evaluations showed that Walena is delayed in cognition, communication, and motor skills. The judge noted that these special needs may continue in the future.
The mother argues, as does the father, that the department did not make sufficient efforts to support reunification. This argument was not raised below; therefore, it is waived. Adoption of Gregory, 434 Mass. 117, 124 (2001). Even were we to consider the issue, however, the argument would fail. The record establishes that the department offered and provided numerous programs and support structures. The parents' participation was, at best, poor. The department made reasonable efforts to assist the parents with reunification. Adoption of Lenore, 55 Mass.App.Ct. 275, 278 (2002).
The mother's argument that the judge erred by basing findings on her poverty and homelessness is unavailing. The evidence was overwhelming that the parents were incapable of providing Walena a safe home. At the time of trial, the mother was living in her own mother's home, as she had been when Walena was born, and the father was homeless. The home had no heat and was in a deplorable and unsafe condition. The mother, in fact, conceded that the home was not safe or clean enough for a child.
The father. The father argues that the judge erred because the department did not demonstrate a nexus between the father's shortcomings and his inability to parent Walena. Care & Protection of Ian, 46 Mass.App.Ct. 615, 617 n.4 (1999). In particular, the father focuses on his diagnosis of bipolar disorder, for which he was not taking medication, and his anger management problems. The father also challenges the conclusion that he failed to comply with the department's service plan and take advantage of programs.
The father argues, as does the mother, that the department did not make adequate attempts to reunify the family. This argument fails, as it does with the mother.
Our examination of the record and relevant principles of law satisfies us that the judge appreciated the need for a nexus between the father's mental illness and his ability to parent Walena, and that, as with the mother, the nexus was strong. We are also satisfied that the judge's determination that the father had failed to comply with the service plan and to take advantage of services was well supported by the record. In fact, the father conceded at trial that he did not engage in any of the recommended services in the service plan after Walena was born. The judge's findings are amply supported by the record, even without the father's concession.
Decrees affirmed.