Opinion
22-P-181
09-29-2022
CARE AND PROTECTION OF FERNANDO (and a companion case[1]).
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a trial in the Juvenile Court, a judge adjudicated the father unfit to parent Fernando (born in 2007) and Ben (born in 2009), transferred permanent custody of the children to the Department of Children and Families (department), and approved the department's goal of permanency through guardianship with the paternal grandparents. The father appeals, contending that the department failed to meet its burden, and that the judge ignored evidence favorable to him. We affirm.
The mother stipulated to her unfitness and is not a subject of this appeal.
Background.
We summarize the facts as found by the judge. The department became involved with the family in 2015, after the father was arrested for assaulting the mother in the presence of the children. At the scene, the police described the father as "acting erratically and smelling of alcohol." As a result, the department received a report pursuant to G. L. c. 119, § 51A (51A report). After conducting an investigation pursuant to G. L. c. 119, § 51B (51B investigation), the department substantiated the allegations in the 51A report. During the 51B investigation, the department learned that the children were afraid of the father, and that the father put his hands over Ben's mouth and called him names, such as "homo."
The police noted "redness on [the mother's] neck." As a result of this incident, the mother obtained an abuse prevention order against the father pursuant to G. L. c. 209A.
Five months later, the police responded to the home for a report of a "suicidal man," where they found the father intoxicated, agitated, and naked in the kitchen. He was uncooperative, and aggressive to emergency medical personnel. The police again responded to the home later that year and found the father to be "unsteady" and "increasingly paranoid and unpredictable." He was taken to a local hospital for evaluation.
The children were placed in the care of their paternal grandparents in July 2015, after the department received a subsequently substantiated 51A report that the mother was in an automobile accident while intoxicated with the children in the car. In June 2016, two 51A reports were filed, and subsequently substantiated. One report alleged that the father was emotionally abusive to the mother and the children. The other report alleged that the mother smelled of alcohol when the father dropped off the children after a visit. In October 2017, four subsequently substantiated 51A reports were filed based on the mother's continued use of alcohol while caring for the children, and the children's exposure to ongoing domestic violence between the mother and father.
In December 2017, a judge of the Probate and Family Court awarded the father sole legal and physical custody of the children. In February 2018, two 51A reports (that were substantiated) were filed based on the father's intoxication and a confrontation with police (witnessed by the children) that resulted in the father's involuntary commitment to a hospital for an evaluation. Thereafter, the department filed a petition for emergency custody of the children, and the children were again placed with the paternal grandparents.
His blood alcohol was three times the legal limit for operating a motor vehicle.
In April 2020, Fernando said that he wanted to live with the father, and the department placed him in the father's care. In September 2020, three 51A reports (that were subsequently substantiated) were filed alleging, among other things, that the father picked up Fernando at school while intoxicated and had been intoxicated for several days while caring for Fernando. The police conducted another well-being check and found the father in a "manic state." After berating the police in Fernando's presence, the father was admitted to a hospital for evaluation. Fernando then returned to live with the paternal grandparents and brother.
The father has an extensive history of mental health issues, most of which he denied. He also has a longstanding history of substance misuse. Despite the department's development of a series of action plans designed to address these issues, the father failed to provide releases to allow the department to verify his participation in therapeutic and psychiatric services. He also refused to provide drug screens and failed to provide the department with evidence that he completed a parenting evaluation. The father's behavior toward the department was aggressive and increasingly hostile. He refused to allow the department to conduct home visits for more than six months and eventually refused all contact with the department.
Discussion.
1. Current parental unfitness.
"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age" (quotation omitted). Adoption of Cesar, 67 Mass.App.Ct. 708, 711 (2006). A finding of parental unfitness must be supported by clear and convincing evidence. See Adoption of Katharine, 42 Mass.App.Ct. 25, 27 (1997).
Here, the judge's determination that the father was unfit was "based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). They were amply supported by the trial testimony and the exhibits, including the father's "past conduct, medical history, and present events to predict future ability and performance as a parent." Care &Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998). The father's multiple hospitalizations following police intervention, and his denial of the majority of his mental health challenges demonstrated a nexus between his mental health and his inability to be a fit parent. See Adoption of Luc, 484 Mass. 139, 146-147 (2020) (judge's findings established "sufficient nexus between [mother's] mental health challenges and her ability to provide for [child]"; failure to recognize need for or to engage consistently in treatment for mental health challenges is relevant to determination of unfitness).
The father's lack of insight into his longstanding history of substance misuse also contributed to his unfitness. See Adoption of Anton, 72 Mass.App.Ct. 667, 676 (2008) ("Evidence of alcohol or drug abuse is relevant to a parent's willingness, competence, and availability to provide care"). While the misuse of alcohol or drugs, on its own, did not render the father unfit, it did prevent him from effectively caring for the children. See Adoption of Katharine, 42 Mass.App.Ct. at 33 34. Furthermore, the father's substance misuse was not temporary, as demonstrated by his refusal to meaningfully participate in treatment. "'[A] condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction . . . [that] makes the parent . . . unlikely to provide minimally acceptable care of the child' is not a temporary condition." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c) (xii).
As the judge found, the children were continually exposed to physical and verbal domestic violence between their parents."[W]itnessing domestic violence, as well as being one of its victims, has a profound impact on children." Adoption of Zak, 87 Mass.App.Ct. 540, 543 (2015), quoting Custody of Vaughn, 422 Mass. 590, 599 (1996). "[A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Custody of Vaughn, 422 Mass. At 595. Despite evidence to the contrary, the father maintained that there were no domestic violence issues, and as a result he failed to participate in therapy to address it.
The mother obtained four abuse prevention orders against the father between 2014 and 2017. The court investigator reported that there were sixty-five pages of police reports for domestic violence between the mother and the father.
The department's efforts to work with the father were met with denials, anger, and at times, aggression. He was resistant to services and repeated patterns of behavior that negatively impacted the children. "A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. at 33. Here, the judge "properly rel[ied] upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness." Adoption of Diane, 400 Mass. 196, 204 (1987).
The judge entered 159 detailed findings of fact, almost all of which are unchallenged on appeal. The father claims that the judge erroneously found that he "refused to report if he was taking medications as prescribed." Although the record supports the judge's finding, even if it was erroneous, it does not change our view of the propriety of the judge's ultimate conclusion regarding the father's unfitness.
The father's inability to manage his anger and control his actions was evident throughout the case. This included his treatment of department social workers, and his failure to comport himself during court proceedings, all of which is relevant to his fitness. See Adoption of Yvonne, 99 Mass.App.Ct. 574, 580 (2021).
Finally, the father's contention that the judge did not give sufficient weight to the testimony of a particular witness is unavailing because "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986), quoting Custody of Two Minors, 396 Mass. 610, 618 (1986).
2. Best interests.
"At the core of the [parental fitness] inquiry is the question of what is in the best interests of the child[ren]." Adoption of Katharine, 42 Mass.App.Ct. at 28. The judge's finding that their best interests would be served by granting permanent custody to the department was fully supported by clear and convincing evidence. Both children have issues that require significant attention. Fernando was diagnosed with generalized anxiety, posttraumatic stress disorder, and autism spectrum disorder. In 2019, he was twice hospitalized for suicidal ideation and subsequently admitted to a community based acute treatment program for treatment. In 2020, he was again twice hospitalized. At the time of trial, Fernando continued to struggle at school and was prescribed medication for anxiety.
Ben has significant special needs, including developmental delays and a learning disability. He has an individualized education plan and receives extensive mental health and support services. A parent's inability to provide the environment required by a child's on-going special needs is an appropriate factor in the fitness analysis. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. 120, 125-126 (1984).
Finally, we note that both children testified that they do not want visitation with the father, and that they want to continue to live with the paternal grandparents. The judge credited this testimony, and although not dispositive, he was permitted to consider their wishes. See Adoption of Nancy, 443 Mass. 512, 518 (2005).
Judgments affirmed.
The panelists are listed in order of seniority.