Opinion
14-P-213
10-27-2014
ADOPTION OF YASHA (and two companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
These appeals arise from final decrees of the Juvenile Court entered on June 13, 2013, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, finding three children in need of care and protection, committing the children to the custody of the Department of Children and Families (DCF), and terminating the parental rights of the parents. On appeal, both the mother and father argue that the finding of unfitness was not proved by clear and convincing evidence, and that the judge impermissibly relied on stale evidence in making his determination of unfitness. The mother further contends that the judge abused his discretion in denying her motion for a continuance. The father also argues that the judged abused his discretion in denying posttermination and postadoption contact. We affirm.
1. The mother's parental unfitness. On appeal, the mother argues that there was insufficient evidence for the judge to determine her current parental unfitness. The record suggests otherwise. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). While "stale information cannot be the basis for a finding of present parental unfitness, [p]rior history . . . has prognostic value." Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (internal quotations omitted).
In this case, the judge made fifty-nine detailed findings based on trial testimony and extensive documentary evidence. The crux of these findings is that the mother has a history of relationships plagued by domestic violence, substance abuse, a criminal record, and mental illness, and that "placing the children in the custody of [the] [m]other would place them at serious risk of peril from neglect." These findings find abundant support in the record.
Specifically, the judge found that the mother's parental unfitness was demonstrated by her history of relationships marked by significant domestic violence and her unwillingness to confront this recurring issue. The judge found that the "[m]other has repeatedly placed herself in abusive relationships and minimizes the risk to herself and her family posed by such relationships."
The mother has been involved in relationships characterized by domestic violence since she was sixteen. The judge credited that in 2005, the mother told a social worker that the father had physically assaulted her and that two weeks after giving birth had forced her to have sexual intercourse with him over her objections. The record indicates that in 2007, the father was arrested again for assault and battery on the mother. However, the mother continued to allow the father to stay at her apartment and interact with the children. The mother's most recent relationship also ended with physical violence. The man the mother was dating hit her with a baseball bat and cut her with a box cutter. At least one of the children witnessed this violence.
The judge found that "[d]uring her testimony at the hearing . . . [the] mother was less than forthcoming about her history of domestic violence, altering, or concealing facts and minimizing or denying her history of abuse," and that she "displayed a flippant attitude to the history of domestic violence between her and [the] father."
The pattern of substance abuse was long standing. The judge's findings specifically refute the mother's claim that at the time of trial her substance abuse had vastly improved. In April, 2012, a mere two months prior to the hearing, the mother was charged with operating under the influence, and in addition was civilly committed for substance abuse treatment.
"[A]t the hearing on the merits [the] mother continually denied that she had a present or prior substance abuse problem, or that she had a history of using substances other than alcohol or marijuana"; the mother's claim that she "completed" three weeks of inpatient substance abuse treatment does not change this analysis. Indeed, the mother completed this substance abuse treatment only after the judge ordered her to do so.
With respect to her psychiatric condition, the judge further found that the mother suffers from a host of largely unaddressed mental disorders, including anxiety, posttraumatic stress disorder, and a panic disorder. While the mother has sought and received some psychiatric treatment, she "has been inconsistent in her mental health treatment," and "no future appointments were scheduled at the time of the hearing."
The mother's criminal record was also a negative factor weighed by the judge, including "the multiple criminal charges filed against [the] [m]other during the pendency of this matter." Thus, at the time of the hearing the mother had, "several open criminal charges, including assault and battery with a dangerous weapon, shoplifting, and operating under the influence of drugs."
Finally, the judge found the mother currently unable to provide a stable home environment for the children: "Mother does not at this time, nor has she over the 5 months prior to the hearing on the merits, have an appropriate residence for the children."
In sum, the judge's findings of fact and conclusions of law, for which there is fulsome record support, establish the mother's current unfitness clearly and convincingly.
2. The continuance issue. The mother also argues that the judge abused his discretion in denying the parties' request to continue the proceeding to allow her time to show progress in her parenting skills. We see no such abuse of discretion.
The decision to continue a trial is in the discretion of the trial judge. See Adoption of Quinn, 54 Mass. App. Ct. 117, 122 (2002). In denying a continuance the judge analyzed systemic significant and long term parenting deficiencies which the mother had not dealt with before the scheduled trial date including, but not limited to, the prolonged period before trial in which the mother had continued to minimize her history of relationships characterized by domestic violence, and failed to follow through on treatment of her substance abuse, ignoring for a long time the impact these serious problem have had on the children.
"[C]hildhood is fleeting, [and] a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. at 60. The record supports the judge's decision that there were not adequate grounds to delay the trial. From all that appears in the record, it was not likely that the mother's problems would improve in a foreseeable calculable time such that a trial continuance was in order.
3. The father's parental unfitness. On appeal, the father argues that the judge relied on stale and insufficient evidence in terminating his parental rights. We are not so persuaded. To the contrary, the judge's findings detail the father's lengthy criminal history, current unavailability due to his incarceration for the next five to eight years, and a lengthy and well documented history of significant domestic violence against the mother.
In this case, the father's acts of domestic violence were of a continuing, serial nature. To be borne in mind is that even a single instance of domestic violence, even if dated and disputed, warrants careful consideration on the issues of fitness and custody. See Care & Protection of Lilith, 61 Mass. App. Ct. 132, 140-142 (2004) (requiring consideration of domestic violence where "the acts of domestic violence occurred at least six years before the trial [and] the record contains no reported incidents of domestic violence on the part of the father since that time"). Here more incidents of domestic violence were enacted by the father.
The judge weighed the father's "extensive criminal history," including convictions for "assault and battery with a dangerous weapon, assault and battery, multiple counts of assault and battery on a police officer, eight counts of assault with a dangerous weapon, and convictions on multiple counts of illegal possessions of firearms." See Care & Protection of Frank, 409 Mass. 492, 494 (1991) ("There is no reason why evidence of a parent's criminal record, to the extent it bears on parental fitness, should be excluded categorically in care and protection proceedings"). The judge also found that as a result of the father's incarceration "he is not able to care for the children," and that "he cannot provide financial support for the children." The father does not contest these facts.
The father's assertion that the judge relied solely on the (1) his current incarceration and (2) his inability to provide financial support as the basis for the determination of unfitness is meritless. The judge examined these two factors in combination with the father's lengthy criminal history and significant instances of domestic violence involving the mother.
4. Posttermination and postadoption contact. "Once it is established that a parent is unfit, the decision whether to grant postadoption visits must be left to the sound discretion of the trial judge." Adoption of John, 53 Mass. App. Ct. 431, 439 (2001), citing Youmans v. Ramos, 429 Mass. 774, 783 (1999). The judge should apply the best interests of the child standard in determining whether visitation is appropriate. See Adoption of Helen, 429 Mass. 856, 862-863 (1999). In this case, as a result of DCF intervention and these proceedings, the children are thriving in a loving preadoptive home.
Given the father's history of domestic violence towards the mother, his lengthy criminal history, and his inability to provide a stable home for the children, the judge's decision to deny postadoption visitation was not an abuse of discretion. Moreover, there is sparse evidence that the children had developed any significant relationship with the father. The father was not consistently living with the children and has been incinerated for a large portion of the children's lives. While there is evidence that the father had two positive visits with the children in jail, such evidence by itself is insufficient to demonstrate that visitation is in the children's best interests. We discern no abuse of discretion in denying the father posttermination and postadoption visitation.
Considering the father's current sentences, by 2018, his earliest release date, he will have spent at least six years of the children's lives incarcerated.
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Decrees affirmed.
By the Court (Berry, Kafker
& Carhart, JJ.),
Clerk Entered: October 27, 2014.