Opinion
16-P-1101
05-08-2017
ADOPTION OF FLORENCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Juvenile Court, the father appeals from a decree finding him unfit to assume parental responsibility, terminating his parental rights, and dispensing with the need for his consent to the adoption of the child. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. We affirm.
The mother stipulated to the termination of her parental rights and she is not involved in this appeal.
The Department of Children and Families contends that because the father testified at trial that he wanted the maternal grandparents to have physical custody of the child "until [he got] on [his] feet," he conceded unfitness. We do not construe the statement as such.
1. Termination of parental rights. Deciding whether to terminate a parent's rights is a two-step process. First, "[t]he judge must find by clear and convincing evidence that a parent is presently unfit to provide for the welfare and best interests of the child." Adoption of Mary, 414 Mass. 705, 710 (1993). See Adoption of Rhona, 63 Mass. App. Ct. 117, 124 (2005). The judge may then make any order that is in the best interests of the child, including terminating parental rights and dispensing with parental consent to adoption. See G. L. c. 119, § 26(b ).
To determine whether an order is in the best interests of the child, the judge considers factors under G. L. c. 210, § 3. The judge is required "to make specific and detailed findings, demonstrating that close attention has been given the evidence." Adoption of Gregory, 434 Mass. 117, 126 (2001). "We give substantial deference" to the judge's decision unless "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). Here, the judge's close attention to the evidence is demonstrated by his findings of fact and conclusions of law.
The father first contends that the judge erred in basing the father's unfitness on his failure to cooperate with the Department of Children and Families (department). This argument ignores other relevant findings the judge made regarding the father's lack of cooperation and its impact on the child.
It is apparent from the judge's findings that the father let his distrust of the department obscure his views of the child's special needs. As a result, the father rejected and minimized the child's significant behavioral issues and educational needs. For example, despite the child's exhibition of highly sexualized behavior, the father believed that the department fabricated the claims of the child's sexualized behavior in order to gain custody of the child, and he accused a department social worker of sexually assaulting the child in order to perpetuate this lie.
He also refused to comprehend the detrimental impact of his missed or sporadic visits on the child. See Adoption of Jacques, 82 Mass. App. Ct. 601, 607 (2012) (parent's inconsistent visitation with child supports finding of unfitness). We are not persuaded by the father's assertion that in finding that he had "missed and inconsistent visits" with the child, the judge ignored evidence of his positive visits and the department's role in limiting his visits after December of 2015. On the contrary, the judge's findings exhibit careful consideration of the entire pattern of the father's visits, from April of 2014, when the child was first removed from the mother's custody, until the time of trial.
The judge found that the father was initially offered two visits per week but chose to visit only once per week. After four weeks, the father stopped the visits and visited with the child only once from May of 2014 to August of 2014. In response to the father's request to resume visits, the department scheduled a visit at their office, but the father failed to attend, stating that it was "no big deal." The father made another request for visits and he was permitted monthly visitation. The father visited with the child for three months from November of 2014 to January of 2015, but upon learning that the maternal grandparents had rightfully claimed the child as a dependent on their taxes (something he had planned to do), he ceased these monthly visits, and went several months without visiting the child. He then resumed monthly visits in April of 2015, only to stop again shortly before December of 2015.
"Evidence such as the failure of the parent[ ] to keep a stable home environment for the child[ ], the refusal of the parent[ ] to maintain service plans, visitation schedules, and counseling programs designed to strength the family unit are relevant to the determination of unfitness." Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). There is ample evidence in the record to support the judge's finding of the father's unfitness.
The father failed to appreciate the child's educational needs. With respect to the child's individualized education program, the father stated, "she doesn't look like she has needs." The judge also properly considered the father's history of unstable living arrangements, and his refusal to permit the department to inspect his current apartment. The father was unemployed and there was no indication that he was looking for a job. The judge found that the father "currently makes up the difference between his income and his expenses with cash assistance and money from his friends." Under these circumstance, the judge properly found that the father was unable to provide a stable environment for the child.
When asked what his plan would be were the judge to grant him custody, the father stated: "My plan would be to keep it exactly how it is. They have my child. They're doing good with her, I believe, and until I can get on my feet, I think she's fine where she is."
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Finally, we are not persuaded by the father's assertion that simply because he has a "positive relationship" with the child, the judge was wrong to find him unfit, as that sole factor is not dispositive of the father's unfitness. As discussed earlier, the judge was required to weigh various factors, see G. L. c. 210, § 3, and he did so here. The judge did not commit an error of law or abuse his wide discretion. See Adoption of Ilona, 459 Mass. at 59-60.
2. Proposed plan. The father also contends that the judge abused his discretion in dispensing with parental consent to adoption, where the father proposed an alternative plan. We review the judge's placement determination for abuse of discretion. See Adoption of Hugo, 428 Mass. 219, 225-226 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "A plan proposed by a parent is not entitled to any artificial weight as opposed to alternative plans." Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2002).
The child had been living with the maternal grandparents since shortly after she was removed from the mother's custody in April of 2014. At trial, the father acknowledged that the child was receiving good care from her maternal grandparents and suggested that she remain with them until he was able at some unspecified later date to regain legal custody. See note 4, supra.
The judge was required to consider the range of potential placement options and select the option which furthered the child's best interests. See Care & Protection of Three Minors, 392 Mass. 704, 714 (1984). The judge was free to consider both adoption and the permanent guardianship that the father essentially proposed. However, the father's plan, which appears to have been offered for the first time at trial, did not offer permanency, as there was no definitive time for when the father would be able to care for the child. Moreover, even if we assume that the goal for the child was guardianship, rather than adoption, it still may have been in the child's best interests for the father's parental rights to be terminated. See Adoption of Gillian, 63 Mass. App. Ct. 398, 406 (2005) (termination of parental rights can serve best interests of child for whom permanent guardian has been appointed). Here, the judge found that the child had a strong bond with the maternal grandparents. They attended to the child's behavioral challenges and educational special needs and provided a stable and secure environment for her. Under these circumstances, we discern no abuse of discretion in the judge's acceptance of the department's adoption plan instead of ordering permanent guardianship. See Adoption of Nancy, 443 Mass. 512, 517 (2005) (child "deserve[s] permanence and stability, which will be eased by termination of [the] father's rights").
Decree affirmed.