Opinion
11-P-696
12-19-2011
ADOPTION OF BABETTE. (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
On July 7, 2010, decrees entered in Springfield Juvenile Court terminating the mother's and father's parental rights with respect to Babette, Michael, and Cole. The mother and father appeal from the termination, the mother appeals from the judge's failure to order continuing posttermination/postadoption visitation with all three children, and the father appeals from the judge's failure to order posttermination/postadoption visitation with Cole. Babette appeals from the termination of the mother's parental rights and the judge's failure to order posttermination/postadoption visitation with the mother. We affirm.
Discussion. The judge 'shall' dispense with the need for parental consent to adoption if doing so is in the best interests of the child. G. L. c. 210, § 3(b). In making that determination, the judge considers the Department of Children and Families' (DCF's) posttermination plan and 'the ability, capacity, fitness and readiness of the child's parents . . . to assume parental responsibility.' G. L. c. 210, § 3(c), amended by St. 1999. c. 3, § 17. '[T]he critical question is whether the natural parents are currently fit to further the welfare and best interests of the child.' Bezio v. Patenaude, 381 Mass. 563, 576 (1980). Current parental unfitness must by proven by clear and convincing evidence. Care & Protection of Laura, 414 Mass. 788, 790 (1993).
A. Termination based upon parental unfitness. The judge in this case made 'specific and detailed findings demonstrating that close attention ha[d] been given the evidence.' Id. at 791. Her findings will not be set aside unless clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993). Contrary to the parents' contentions, the judge's subsidiary findings were supported by the record and justify her ultimate finding of parental unfitness by clear and convincing evidence.
The judge found the parents unfit because 'neither . . . has adequately addressed the protective concerns that resulted in the children's removal from their care, despite offered services.' Her conclusion was supported, in part, by subsidiary findings that the mother is unable to protect the children because she has not acknowledged the father's sexual abuse of Babette and continues to have a relationship with the father; the mother continues to smoke marijuana (which adversely affects her ability to parent) and is not substantially engaged in therapy; the father has not participated in services; and both parents neglected the children's medical and hygienic needs. Each of these findings is supported by a preponderance of the evidence and not clearly erroneous. Care & Protection of Laura, supra at 794.
The judge found that the mother cannot protect the children from the father because she does not believe Babette's allegations and continues to maintain some kind of relationship with the father. This finding is supported by the judge's finding that Babette disclosed the father's sexual abuse to the mother, who took no action because she did not believe Babette. The mother and father admitted to seeing each other after the children were removed, and both testified that the mother had a key to the father's apartment. Finally, there was evidence that Babette called the father using the mother's cellular telephone during one of the mother's visits with the children. Such evidence demonstrates that the mother is unable to protect the children -- particularly Babette -- from the father.
The mother also testified that some of her belongings are still at the father's apartment.
While the father argues that the judge's finding that he sexually abused Babette is clearly erroneous, it is clear that the judge 'focused on findings other than those related to sexual abuse in reaching a conclusion of parental unfitness.' Id. at 793-794. The judge noted that neither parent has accepted that Babette's allegations might be true, and that the father has refused to engage in any of the services set forth in his service plan, which are designed to address the allegations. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ('[e]vidence of parents' refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness'). The mother admitted that she knew of the allegations but refused to take any action, and such evidence supports the judge's ultimate conclusion that neither parent is currently able to address any special needs Babette may have as a result of the alleged abuse. See Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986) (holding that child's special needs are relevant to whether parent is fit to care for her).
The judge's finding that the mother continues to smoke marijuana despite its adverse effect on her ability to parent, and that the mother is not substantially engaged in therapy was supported by the mother's testimony and her failure to provide a clean urine screen. Additionally, the record amply supports the judge's finding that the father has refused to participate in services. Participation in services and abstinence from marijuana has always been part of the parents' respective service plans, and their inability or refusal to comply with the service plans is relevant to their current parental unfitness. See Adoption of Rhona, supra. The mother's inability to abstain from marijuana provides particularly strong support for the judge's conclusion that she has not addressed the concerns that led to the children's removal.
While ingestion of drugs, without more, is insufficient to support a finding of parental unfitness, there is no question that the mother's marijuana use 'has to date caused [her] to provide less than minimally acceptable care' of the children. Adoption of Katharine, 42 Mass. App. Ct. 25, 31 (1997).
Finally, the judge's finding that the parents neglected the children's medical and hygienic needs was supported by undisputed evidence that the children were not up to date medically and the home was filthy when they were removed.
B. Posttermination/postadoption visitation. '[A]n order for postadoption contact is grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent.' Adoption of Vito, 431 Mass. 550, 562 (2000). The record shows that Michael 'has formed strong, nurturing bonds with his preadoptive family, and there is little or no evidence of a significant, existing bond with [either] biological parent.' Id. at 563. While there was evidence that Cole runs to the father during visits, there was no evidence of 'significant, existing bonds between the child and [either] biological parent, such that a court order abruptly disrupting that relationship would run counter to the child's best interests.' Ibid. Babette has expressed her desire to maintain contact with the mother, however, '[a] necessary condition' to ordering posttermination/postadoption contact 'is a finding, supported by the evidence, that continued contact is currently in the best interests of the child.' Id. at 564. There was no such finding in this case, and the judge properly left the question of posttermination/postadoption visitation 'to the wise guidance' of the children's new families. Id. at 565.
Indeed, Michael's first word was his foster sister's name.
Decrees affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),