Opinion
12-P-607
12-26-2012
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
The mother of Francesca appeals from an August 5, 2011, Juvenile Court decree terminating her parental rights. On appeal she challenges the judge's findings that her involvement in abusive relationships, among other things, placed Francesca at risk. We affirm.
The parental rights of Francesca's father were terminated in a previous proceeding from which no appeal was taken.
Discussion. We review a judge's decision to terminate parental rights for abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011). There must be clear and convincing evidence to support the conclusion that the parent is unfit and termination must be in the best interests of the child. Adoption of Nancy, 443 Mass. 512, 515-516 (2005). 'Subsidiary findings must be supported by a preponderance of the evidence'; the findings will not be disturbed unless clearly erroneous. Id. at 515. Exposure of children to abuse. The mother argues that the judge's findings were based on past behavior, and that she had recently terminated her relationships with abusive men. The judge found that the mother has had a continuing pattern of abusive relationships both past and present.
This finding was fully supported by the evidence. The father of Francesca, with whom she had had a relationship for three years, was physically abusive to the mother as recently as October 30, 2008. Thereafter, on March 12, 2009, a G. L. c. 119, § 51A, report was filed alleging that Francesca's father had physically and sexually abused one of the mother's other children, Lisa. The Department of Children and Families (department) substantiated this allegation. However, the mother denied that any abuse had occurred. Despite the department's repeated notice that termination of their relationship was a necessary condition for the return of her children, she continued their relationship. She allowed a restraining order to lapse after learning of the allegations of sexual abuse and sent the father to school to pick up the child whom he was alleged to have abused.
Permanent custody of Lisa has been granted to her father, and she now lives out of State. The mother's oldest child, Olivia, has lived with the mother's sister, almost since birth. This maternal aunt is the preadoptive placement for Francesca.
The judge further found that the mother continued to engage in abusive relationships after she ceased seeing Francesca's father, and that she failed to appreciate the risk to Francesca. The judge's finding was fully supported by the evidence. The mother began a relationship with another man, Jon Segal, in Rhode Island sometime after November, 2009, at the same time as she was told to end the relationship with Francesca's father. Segal has a lengthy criminal history and was registered as a sex offender as of August, 2009, in Rhode Island. The mother visited him fifty-three times in jail from July, 2010, to February, 2011. As of March, 2011, the mother told the department that she was not involved with anyone.
A pseudonym.
The following evidence is derived from Rhode Island police reports, which were admitted for all purposes. In 2004, Segal was arrested for child molestation after two minors were found to have contracted gonorrhea from him. He sexually abused a nine year old girl in 2005. He was convicted of second degree child molestation on November 8, 2009. In March, 2010, he was arrested and later incarcerated for second degree child abuse of his children. In May, 2010, a restraining order was served on Segal while he was incarcerated in order to prevent him from communicating with an underage girl. He has been arrested multiple times for failure to register as a sex offender.
After Segal was released from jail, he was arrested in the mother's presence in April, 2011, for first degree child molestation, based on allegations by Segal's mother that he sexually assaulted his seven year old daughter. When confronted by a Rhode Island child protective services worker about the allegations, the mother vehemently denied knowledge of any sexual abuse, echoing her previous denial of the abuse of her older child by Francesca's father.
The mother initially denied that she was with Segal at the time of the arrest, but later conceded that she was.
At trial, the mother denied that she was in a romantic relationship with Segal. She also testified that she did not know that he was a sex offender, and that she would not have visited him if she had, though she admitted she knew he had physically abused his children. She also stated that she made no inquiry of him as to his past criminal history. The mother testified that she had no relationship or contact with him as of the date of trial. It is this testimony on which she bases her claim of error.
At first, the mother denied any knowledge of Segal's criminal history, but later admitted she knew of his history of physical abuse of his children.
The judge found that the mother's testimony that she did not know that Segal was a sex offender was not credible. The judge also found her claim that Segal had not stayed with her and that he was not alone with Francesca were not credible. We will not disturb the credibility determinations of the trial judge. See, e.g., Custody of Two Minors, 396 Mass. 610, 618 (1986). The judge's determination that the mother's relationship with Segal presented a potential danger to the child was 'appropriate and relevant.' See Care & Protection of Isabelle, 33 Mass. App. Ct. 548, 592-593 (1992). This is not a case in which the judge relied on historical evidence to the exclusion of more recent favorable evidence. To the contrary, the judge found that the mother has had a continuing inability to disentangle herself from men who present a danger to her children. Contrast Adoption of Rhona, 57 Mass. App. Ct. 479, 482-485 (2003). The judge was not required to wait for harm to occur before terminating the mother's parental rights. See Adoption of Katherine, 42 Mass. App. Ct. 25, 32-33 (1997).
Segal's mother testified that he left his house for days at a time to stay with the mother of Francesca.
Substance abuse. The mother also argues that the judge erroneously found that she had recurrent substance abuse issues. She asserts that the department did not ask her for a urine screen and that she does not currently have a substance abuse problem. However, the mother testified that she tested positive for marijuana while pregnant, and that she was partially hospitalized for drinking until she blacked out. While staying in a domestic violence shelter she was found with alcohol, violated curfew, and returned intoxicated. The judge's finding that the mother minimized the impact of her drinking on her children was supported by the evidence. See Custody of Two Minors, supra at 618.
Counseling. The mother also contends that the judge erroneously found that she was inconsistent with counseling in the spring of 2010, and that he ignored evidence that she was consistent with counseling from June, 2010. She also points to evidence that she followed her service plans from May, 2010, to the time of trial. The judge found that although the mother attended parenting and domestic violence classes, she failed to grasp the necessity of developing a home environment free of violence and abuse. These findings are not clearly erroneous. Adoption of Paula, 420 Mass. 716, 729-730 (1995).
General Laws c. 210, § 3(c), factors. The mother's final argument is that the trial judge failed to adequately consider the factors contained in G. L. c. 210, § 3(c). The judge specifically referenced the statutory factors [FN9] and provided factual findings. Because the findings clearly corresponded to the relevant factors and are 'specific and detailed so as to demonstrate that close attention has been given the evidence,' Adoption of Stuart, 39 Mass. App. Ct. 380, 381, quoting from Custody of Eleanor, 414 Mass. 795, 799 (1993), the mother's claim is not meritorious.
Conclusion. One additional observation is in order. Despite the moral overtones of the statutory term 'unfit,' the judge's decision was not a moral judgment. A judge may find that a mother loves and provides for her child to the best of her ability, but nonetheless reach the conclusion that the best interests of the child warrant termination of parental rights. This mother's inability to protect herself or her children from abuse does not arise in a vacuum; the evidence at trial was that she had been molested by six different men between the ages of five and seventeen and was raped at seventeen by an older man. The decision of the trial court is intended to protect the best interests of Francesca by preventing further repetition of such abuse.
Decree affirmed.
By the Court (Trainor, Agnes & Sullivan, JJ.),