Opinion
21-P-520
04-01-2022
ADOPTION OF JEAN. [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
This case involves the welfare of Jean, born in January of 2017. After trial, a Juvenile Court judge issued decrees that found Jean in need of care and protection, found the mother and the father unfit, terminated their parental rights, awarded permanent custody to the Department of Children and Families (DCF), and approved a plan for adoption of Jean by her foster parents in lieu of placing her in the guardianship of her paternal grandmother. The mother, the father, and the paternal grandmother all have appealed. We affirm.
The paternal grandmother filed a petition for guardianship, which the judge dismissed in the second phase of bifurcated proceedings.
"While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous" (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). The judge made careful and detailed factual findings, none of which any of the appellants has demonstrated to be clearly erroneous. Those findings set forth the profound challenges that both parents faced. For example, the mother suffered from serious mental illness, including diagnoses of anxiety, depression, borderline personality disorder, bipolar disorder, and "severe panic anxiety." She also had an extensive history of drug and alcohol addiction, and she relapsed in 2018, the year after this care and protection action had begun. The father actively was using drugs at the time of trial.
A 2018 drug screen tested positive for heroin or fentanyl. The mother testified that she could not recall relapsing at that time, and she suggested that she must have consumed marijuana laced with heroin or fentanyl. The judge discredited that explanation, and further concluded that even if the mother's explanation were correct, the fact that she was purchasing marijuana off the street was problematic in itself.
Perhaps most disturbingly, the record reveals many instances in which the father physically abused the mother, including, for example, one in which he caused a bleeding gash on her head. Despite DCF repeatedly urging the mother to terminate her relationship with the father, the mother continued that relationship, while trying to hide it from DCF and the judge. "Domestic violence may imperil a child's physical safety and psychological development. . . . [E]vidence of domestic violence is relevant to a judge's determination of parental fitness." Adoption of Jacob, 99 Mass.App.Ct. 258, 262 (2021). Thus, the mother's inability to sever the relationship with the father is, in and of itself alone, a basis for a finding of unfitness.
In addition, Jean was removed from the parents' care at two months old after she was diagnosed with a skull fracture. The parents could not explain the cause of the fracture, and their efforts to suggest what had occurred kept shifting. The judge found insufficient evidence to determine the cause of the injury, and he therefore made it clear that, as fact finder, he would not speculate on how the injury was caused. See Adoption of Zoltan, 71 Mass.App.Ct. 185, 190 (2008). Nevertheless, this does not mean that the unexplained injury was not relevant, and comments that each parent made with respect to the injury were particularly concerning. Ultimately, the judge found the parents "neglectful" in delaying having the x-rays taken that revealed the skull fracture.
The father at one point asked a doctor whether the injury could have been caused if he had squeezed Jean's head too hard while feeding her. For her part, the mother expressed some regret for taking Jean in for medical treatment, commenting that Jean would not have been taken away had the mother not done so.
The mother and father point out that the delay in having the x-rays taken was relatively small, and that it must be viewed in light of the fact that the doctor who had ordered the x-rays was not particularly concerned about the bump on Jean's head that prompted that order. The judge was well aware of this context, and his findings of neglectful behavior are not clearly erroneous.
The mother maintains that the judge did not give her due credit for positive things in her favor. We conclude that any such criticisms of the judge's findings go at best to matters of tone and emphasis, rather than to the judge's failure to engage with "[t]roublesome facts." Compare Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). For example, the judge credited that the mother complied with some aspects of her service plan, even while pointing out her lack of progress in alleviating her parental shortcomings, especially those related to domestic violence. None of the mother's arguments undermines the substantive force of the judge's findings, which provide ample clear and convincing support for the judge's ultimate conclusions that the mother was unfit to parent Jean, and that such unfitness was likely to continue for the foreseeable future. For his part, the father makes no claim that he was fit to parent Jean, and he does not seek custody of her.
As we previously have stated:
"We pause to note that the [parents have] shown evident affection toward [Jean], and none of the judge's findings negate this. Despite the moral overtones of the statutory term 'unfit,' the judge's decision was not a moral judgment or a determination that the [parents] ... do not love the child. The inquiry instead is whether the parents' deficiencies or limitations 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Adoption of Bianca, 91 Mass.App.Ct. 428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998) .
Termination of parental rights.
As we have recognized, "[u]nfitness does not mandate a decree of termination" (citation omitted). Adoption of Imelda, 72 Mass.App.Ct. 354, 360 (2008). But at the same time, it is unfair to leave children in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005) ("it is only fair to the children to say, at some point, 'enough'"). With the passage of time, it becomes increasingly important that children obtain a stable, safe, and nurturing home environment. Jean is now five years old, and she has lived in her preadoptive home since she was two months old. She has thrived there, despite having many serious medical issues. In the end, "[w]hile courts protect the rights of parents, 'the parents' rights are secondary to the child's best interests and . . . the proper focus of termination proceedings is the welfare of the child.'" Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching standard in mind, we discern no error in the judge's decision to terminate the mother's rights.
Jean was born prematurely with opiates in her system, and she suffers from a serious respiratory condition known as broncomalacia, eye problems, allergies, and herpes.
Choice of placement plan.
The paternal grandmother filed a petition to be appointed Jean's permanent guardian, and both parents supported that placement option. The judge nevertheless determined that DCF's plan of having Jean adopted by the foster parents who have cared for her for almost her entire life would serve her best interests. We discern no abuse of discretion in that decision. See Adoption of Jacob, 99 Mass.App.Ct. at 272 (choice of placement plan subject to abuse of discretion review). Although a guardianship of Jean by her paternal grandmother would have had the advantage of being a kinship placement, there was robust evidence that the foster parents could better serve Jean's needs in every other respect, including with regard to her extensive medical needs.
The paternal grandmother takes the position that a proposed kinship placement cannot be rejected unless the relative willing to take custody is found to be unfit, especially where the parents have nominated such person. That is simply not the state of the law. See Adoption of Zak, 87 Mass.App.Ct. 540, 545 (2015) ("biological and/or cultural match between child and caretaker is a desirable aim; but it is a single factor among many"). See also Adoption of Hugo, 428 Mass. 219, 226 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999) (judge must consider plan proposed by parents, but no plan entitled to greater consideration based on who is proposing it).
The judge had specific concerns regarding the paternal grandmother's behavior. For example, during visits, the paternal grandmother would present Jean with gifts, but then take them away from her. The paternal grandmother also exhibited a belligerent attitude and, together with the father, was in fact arrested for causing a disturbance at the court house. Perhaps most significantly, the judge was understandably concerned that the paternal grandmother would not protect Jean from risks presented by the father.
Posttermination and postadoption visitation.
The judge ordered posttermination visitation between the mother and Jean, but did not order postadoption visitation. We discern no abuse of discretion in leaving such visitation issues to Jean's adoptive parents, particularly where they exhibited an openness to allow such visitation. See Adoption of Ilona, 459 Mass. at 64-66. Compare Adoption of Rico, 453 Mass. 749, 755-757 (2009).
The father has moved to strike certain portions of the child's brief. No action is necessary, because the panel has not relied on those portions of that brief.
Decrees affirmed.
Order dismissing petition for guardianship affirmed.
Milkey, Sullivan & Ditkoff, JJ.
The panelists are listed in order of seniority.