Opinion
No. 10–P–744.
2012-07-3
ADOPTION OF GARNER (and a companion case ).
By the Court (GRASSO, GREEN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree of the Juvenile Court, finding him unfit to parent two of his children and terminating his parental rights. He argues that the judge's findings were not supported by clear and convincing evidence and that, even if his parental rights were properly terminated, the case should be remanded for specific orders providing for posttermination and postadoption visits between the father and the children. We affirm.
The father and the children's mother were never married; he was adjudicated the legal father of Garner and Francine. The mother and father have at least one other child who was the subject of a separate care and protection proceeding.
The judge also found the mother to be unfit and terminated her parental rights. The mother filed a timely notice of appeal, and her request for a stay was allowed by the trial judge on August 12, 2009. The mother subsequently dismissed her appeal after reaching an agreement with the department regarding postadoption contact and visitation.
The father first argues that the evidence was insufficient to warrant termination of his parental rights because only thirty-five of the judge's two hundred and twenty-three findings pertained to him; he also contends that the “majority” of those findings were either “favorable or neutral.” A careful reading of the judge's detailed and thoughtful findings reveals the following: the defendant has a long history of substance abuse, a lengthy criminal record including crimes of violence, and a history of refusing to participate, or inconsistent participation, in services provided to him by the Department of Children and Families (department). He was incarcerated for most of the children's lives due to his own actions, and initially contested the children's paternity. He exposed Garner to illegal drugs and to police raids, failing to provide a safe and stable home for him. Shortly after being released on parole and while the department's petitions were pending, the father was incarcerated for an additional three months following an incident with the children's mother; she testified that he hit her in the face, leaving her with scratches on her face, bruises, and a ripped shirt. In addition, the defendant has seen his daughter only three times in her life. Finally, he has shown no ability to meet the special needs of either of the children . We accord substantial deference to the judge's assessment of the credibility of the witnesses and the weight given to the evidence presented. See Adoption of Peggy, 436 Mass. 690, 702 (2002). In addition, “[t]he judge's findings must be left undisturbed absent a showing that they are clearly erroneous.” Adoption of Greta, 431 Mass. 577, 587 (2000). After a review of the entire record, we are persuaded that the judge's findings support his determination of the father's current unfitness and the likelihood of harm to the children if his parental rights were not terminated. Cf. Adoption of Ramona, 61 Mass.App.Ct. 260, 264 (2004). A judge is “not bound to wait for a disaster to happen” in determining that the children are in need of care and protection. Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
The judge did acknowledge that the defendant participated in programs available to him while he was incarcerated, and that he moved to a sober living program and engaged in services when he was released from prison.
While the mother and father gave inconsistent testimony about this incident, the judge found that the defendant's own actions led to his parole revocation and subsequent incarceration.
Garner has behavioral issues and developmental delays; Francine suffers from a seizure disorder, has developmental delays, and because she is unable to express herself, has severe tantrums resulting in her banging her head. Both have adjusted well in their respective foster homes.
The father also argues that the judge erred in not entering orders for posttermination and postadoption visitation, instead leaving such visits to the discretion of the department and the preadoptive parents. For support, he relies on Adoption of Rico, 453 Mass. 749 (2009), arguing that he is the only “father figure” in Garner's life and that, although Francine will have an adoptive father, the same analysis should be applied to her circumstances in granting the father visitation. Rico is easily distinguished from this case; in Rico, it was undisputed that “there [was] a strong bond between the father and [child]” and the child's preadoptive placement had been “disrupted.” Id. at 753, 751. Here, Garner had been living in the same preadoptive home with his older sister since 2007, and Francine was placed in her preadoptive home in 2006 when she was only four months old. The father spent most of the children's lives incarcerated and, as noted, he had only seen Francine a total of three times in her life.
“Where, as here, the child[ren] [have] formed strong, nurturing bonds with [their] preadoptive famil[ies], and there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption contact would usually be unwarranted.” Adoption of Vito, 431 Mass. 550, 563 (2000). “[I]n ordering posttrial [and postadoption] visitation, the proper focus is on the best interests of the child and on parental unfitness, rather than the rights of the parent.” Care & Protection of Georgette, 54 Mass.App.Ct. 778, 785 n. 10 (2002), S. C., 439 Mass. 28 (2003). In addition, “[a]doptive parents have the same protected interest in their relationship with the adoptive child as biological parents, and are entitled to the same presumption they will act in the best interest of the child in making decisions regarding the child, including decisions about visitation.” Adoption of Ilona, 459 Mass. 53, 64 (2011).
The judge gave careful consideration to the best interests of the children and determined that each child had formed a strong, positive bond with his or her preadoptive family; neither child has a significant bond with the father, due largely to his extended incarceration and initial contest of paternity. Accordingly, it was reasonable for the judge to find that it is in the best interest of the children that posttermination and postadoption visitation be left to the discretion of the department and adoptive parents. We see no error.
Decrees affirmed.