Opinion
15-P-531
12-29-2015
CARE AND PROTECTION OF ZEB (and four 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 issued by a judge in the Juvenile Court that she is currently unfit to parent her son Zeb. See G. L. c. 119, § 26. The mother and the father appeal from decrees issued by the same judge finding them unfit to parent their children Andrew, Peter, Emily, and Sara and terminating their parental rights as to these four children (we shall refer to these children hereafter as the younger children). See G. L. c. 119, § 26; G. L. c. 210, § 3. The mother, father, and the younger children argue error in the judge's decision not to order postadoption visitation. The children also argue error in an order of sibling visitation providing for a minimum of four, rather than six, visit per year. We affirm.
The father of Andrew, Peter, Emily, and Sara is not the father of Zeb. Zeb's father is not a party to this appeal.
Termination of parental rights to the younger children. The mother and father challenge the judge's determinations that they are unfit to provide for the welfare and best interests of the younger children. A decision to terminate parental rights involves, first, a finding that the parent is currently unfit, and second, a finding that termination is in the best interests of the child. See Adoption of Kimberly, 414 Mass. 526, 528 (1993); Adoption of Mary, 414 Mass. 705, 710 (1993); Adoption of Nancy, 443 Mass. 512, 515 (2005). "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." Adoption of Mary, supra at 711. On appeal, "[w]e give substantial deference to a judge's decision that termination of a parent's rights in is the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).
The judge carefully considered the factors set forth in G. L. c. 210, § 3, to determine the mother's and the father's fitness to parent the younger children. Her ultimate decision to terminate their parental rights was based primarily on the parents' longstanding neglect of the children and their inability to make any progress in addressing their serious deficiencies as parents, despite many years of DCF's interventions and provision of services. Neither parent seriously contests this core finding. The mother, for her part, argues that she had in the past "demonstrated success working with DCF" and that the judge impermissibly inferred that the mother's demonstrated inability to make and keep her own appointments indicated an inability to care for her children. She argues that without expert testimony to show that abuse and neglect would follow from her shortcomings, the judge's finding amounts to "impermissible speculation," quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 31 (1997).
In Adoption of Katharine, supra, the court stated in pertinent part, that "[i]n the absence of a history of unacceptable care or testimony from an expert . . . , the prediction that [abuse] will occur is impermissible speculation" (emphasis supplied). Here, the judge found, with ample record support, that the mother had a history of failing to make and keep the children's medical appointments, resulting in specific harms to each of them. Moreover, the mother had repeatedly lost her own and the children's MassHealth coverage because of her "inability to follow through with requirements." The mother was unable to maintain her own appointments for services even after the children were removed and she was no longer responsible for their daily care.
The mother's expert did offer the opinion that she would be a "good enough" parent were she able to follow through with a list of recommendations for services and behaviors; however, the judge found that DCF had been making the same recommendations, and making appropriate services available, for years, but the mother had never followed through. In short, "the judge gave due consideration to the question whether the mother's unfitness was temporary" and "[t]here was ample evidence that the children would suffer if returned to the custody of their mother." Adoption of Elena, 446 Mass. 24, 31-32 (2006).
The father -- and to some degree the mother -- argues that the judge failed to make individualized determinations of his ability to parent each of the younger children, and instead erroneously focused on his inability to care for all four of them collectively, without considering whether he could care for any of them individually. See Petition of Dept. of Social Servs. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 689, 698 (1985). Contrary to the father's argument, the judge in fact made lengthy and detailed assessments of each child individually, their particular health and emotional needs and deficiencies, and the parents' past and likely future inability to care for each of them. We detect no error or abuse of discretion.
Domestic violence and substance abuse. Both parents take issue with the judge's reliance on the factors of domestic violence and substance abuse in terminating their parental rights to the younger children. The mother further argues that the judge failed to make detailed findings connecting the allegations of domestic violence to the mother's current unfitness to parent her five children, as required by Custody of Vaughn, 422 Mass. 590, 599-600 (1996).
There was no error. The judge made factual findings, supported by the record, of specific instances of violence throughout the parents' relationship and their failure to address the problem notwithstanding DCF's having made available relevant programs and services. "[P]hysical force within the family is both intolerable and too readily tolerated, and . . . a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Id. at 595. The concern in Custody of Vaughn is that judges making child custody decisions will minimize the significance of domestic violence. Id. at 599. "[E]xplicit findings about the effect of the violence on the child and the appropriateness of the custody award in light of that effect will serve to keep these matters well in the foreground of the judges' thinking." Id. at 599-600. In her decision, the trial judge properly took into account the parents' history of domestic violence, its specific effects on one of the children, and the parents' failure to recognize or deal with the issue.
The judge found, "At least one of the children . . . has reported abuse by Father and is afraid of him." We reject the father's contention that this finding is clearly erroneous; the trial testimony fully supports this conclusion.
The judge's factual determination that "[b]oth Mother and Father have issues of substance abuse" is not clearly erroneous. The judge found that substance abuse, and the parents' reluctance to address it, contributed to their inability to care for the children. However, the judge was careful to note that "the parents' chronic neglect of the children is not the result of a long-standing untreated substance abuse issue" (emphasis supplied), but rather stems from "an innate inability to parent the children." The judge did not err in her consideration of unaddressed issues of substance abuse as one factor supporting the termination of parental rights.
Postadoption visitation. The trial judge acknowledged that the parents love their children. Nonetheless, the judge declined to order postadoption visitation, finding that "the children have been placed with identified adoptive families to whom the children have already bonded. This is not a case where the children require visits with the parents to ease the children's transition [to their adoptive families]." The parents and the younger children appeal from this determination, arguing that the judge failed to acknowledge the strong bond between the parents and the children and that the judge erred in finding that the adoptive parents would permit postadoption contact.
Because postadoption visitation orders interfere with the adoptive parents' right to raise their children, such orders "may be justified only in limited circumstances." Adoption of Vito, 431 Mass. 550, 563 (2000). "A necessary condition is a finding, supported by the evidence, that continued contact is currently in the best interests of the child." Id. at 564. "The purpose of such contact is not to strengthen the bond between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Id. at 564-565. Thus, the judge must balance any significant, existing bonds with the biological parents against any bonds that have formed with the preadoptive parents. See Adoption of Ilona, 459 Mass. at 63-64. In reviewing this determination, "our task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused [her] discretion or committed a clear error of law." Adoption of Hugo, 428 Mass. 219, 225 (1998).
After hearing the testimony of the biological parents, their experts, and the preadoptive parents, the judge determined that postadoption visitation was not in the younger children's best interests. She acknowledged that "the overwhelming majority of visits between the parents and the four younger children went very well." It is true that the judge denied the mother's request for her expert to interview the children, and then discredited the experts' opinions as to the degree of bonding in part because they failed to interview the children. Although the judge may have underestimated the strength of the bond between the biological parents and the children, any error in this regard would not have affected her ultimate conclusion that court-ordered visitation would not be in the children's best interests where they had already formed strong bonds with their adoptive parents. We conclude that the judge's findings and conclusions were based on consideration of the proper factors and did not amount to an abuse of discretion.
Because the "necessary condition" that "continued contact is in the best interests of the child[ren]" is not present, Adoption of Vito, supra at 564, we need not review the judge's determination that "any interest that the children may have in the future in maintaining post-adoption contact with their biological parents will be adequately served by the adoptive parents."
The mother's unfitness to parent Zeb. Much of the judge's decision with regard to the younger children, which we have discussed, supra, applies with equal force to the mother's fitness to parent Zeb. The judge made specific findings as to Zeb's neglect while he lived with the mother, including the failure to provide him with necessary medical care, a significant number of tardy arrivals and unexcused absences from school, and her inability to provide the police with the name or address of the friend with whom Zeb was staying at the time of the children's emergency removal from the home. The judge found that Zeb was now in a "stable environment" with a proposed guardian "who met [his] medical and emotional needs." There was no error.
We note that Zeb will turn eighteen in March, 2016.
Sibling visitation. The judge found that a minimum of four visits among all of the siblings per calendar year would be in the children's best interests. The younger children argue that the judge abused her discretion because she did not order a minimum of six visits, as they requested. We disagree. A minimum of four annual visits, where the adoptive parents are free to permit additional contact, does not "fall[] outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Decrees affirmed.
Judgment affirmed.
By the Court (Rubin, Maldonado & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 29, 2015.