Opinion
21-P-845
10-31-2022
ADOPTION OF JILLIAN (and two companion cases [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
After a trial, a Juvenile Court judge found the mother unfit to parent three of her children, Jillian, Daniel, and Edward. The mother's parental rights to those three children were terminated, and Jillian and Daniel were placed in the permanent custody of their father, Greg (a pseudonym). The mother's husband, who is the father of Edward (father), was also found unfit to parent Edward and the father's parental rights to Edward were terminated.
The mother appeals from the decrees terminating her parental rights to the children. She argues that the judge used burden-shifting language in her memorandum of decision, inappropriately terminated the mother's parental rights as to Jillian and Daniel because they were placed in the custody of their father, Greg, and should have discussed the impact of Jillian's age as it might bear on the termination of the mother's parental rights to her. We affirm the decrees terminating the mother's parental rights as to all three children.
The decrees terminating the mother's parental rights as to Jillian and Daniel awarded custody to those children's father, Greg. See Adoption of Willamina, 71 Mass.App.Ct. 230, 231 n.2 (2008).
The father appeals from the decree terminating his parental rights to Edward. Like the mother, he contends that the judge's memorandum of decision contained burden-shifting language. He also argues that the judge's finding of unfitness rested on evidence of the father's issues with domestic violence, substance use, and mental health, but that there were insufficient findings as to the latter two issues and how they impacted the father's parenting of Edward. As explained below, we vacate the decree terminating the father's parental rights and remand to the trial judge for further explication of those issues.
Background.
After five nonconsecutive days of trial in January and February 2020, the judge made 441 findings of fact and forty-one conclusions of law, "demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001).
The mother has significant histories of mental health issues, substance use, criminal conduct, and exposing the children to domestic violence. In July 2015, police responded to a convenience store where the mother and the father were arguing in a car. The father was intoxicated, and the mother alluded to the father's having been violent to her, suggesting that she "had to wear jeans to cover the bruising." The father became combative with police and was arrested. At the police station, the mother recanted her statements that the father had caused the bruises, claiming instead that another man had done so.
The father was later convicted of resisting arrest and malicious destruction of property; other charges including assault and battery on a family member were dismissed.
Three days later, while the mother was in a hospital emergency room being treated for various injuries, the mother and father were arguing and the father was escorted from the hospital by security. When a doctor spoke to her about domestic violence, the mother claimed that her injuries occurred when she fell down stairs during an argument with one of her older children. She admitted that her "significant other" was violent, but would not disclose his identity. As a result of that incident, a report pursuant to G. L. c. 119, § 51A (51A report), was filed alleging neglect of Edward, who was then nine months old, by the mother's "name unknown boyfriend." From evidence at trial, the judge found that that unnamed man was the father. Although the allegations in that 51A report were not substantiated, see G. L. c. 119, § 51B, due to concerns about the father's domestic violence and alcohol use the Department of Children and Families (DCF) established a service plan (2015 service plan), to which the mother agreed, requiring among other things that the father not be around her children or in her home until DCF could further assess his current risk to the children. That service plan recommended that the father "work with" DCF.
That child is not a part of this proceeding.
In October 2015, a 51A report was filed alleging neglect of eleven year old Jillian, which was substantiated. At Jillian's cheerleading practices, the mother appeared to be "high" or under the influence of drugs or alcohol, had trouble standing up, and during a competition screamed at Jillian. During a subsequent family assessment, the mother was uncooperative with the DCF investigator and evasive about what medications she had been prescribed and by what doctor. The mother denied any domestic violence, substance use, or mental health issues, but admitted she was meeting with a mental health clinician, although she would not disclose that person's identity, saying it was "none of [DCF]'s business." The mother denied being in a relationship with the father, but admitted that she and he "just fuck sometimes." The judge did not credit the mother's claim that she was not in a relationship with the father.
In March 2016, the father anonymously called 911 using the mother's cell phone and reported a drug overdose in the mother's apartment. When police arrived, the mother was the only adult present and denied that there was an emergency. During a protective sweep of the apartment, police found in Jillian's bedroom a handwritten note stating, "This letter to all my children and loved ones I'm so [sorry] for what I've done I just want to let you all know that I love you all to pieces. I such a p[ie]ce of shit, sorry." Inferring that it was a suicide note, police transported the mother to the hospital and filed a 51A report alleging neglect of Jillian, Daniel, and Edward, which was substantiated. To DCF emergency response workers and later to a court investigator, the mother claimed that Greg had called 911 as part of his ongoing harassment of her; the judge did not credit that claim. After testing revealed cocaine and marijuana in the mother's blood, the mother told emergency response workers that she had used those drugs a month before, which the judge found was "not truthful." Interviewed by DCF emergency response workers, Jillian said that the father had been at their home on the evening of the mother's overdose, and the judge found that the mother had violated the DCF service plan by permitting the father into the home. The mother vehemently denied that she had written the suicide note, and claimed at trial that Jillian had written it saying goodbye to her dolls, which the judge did not credit.
Based on concerns about the mother's exposing the children to domestic violence and her failure to participate in mental health and substance abuse treatment, DCF removed the children from her home on an emergency basis and instituted care and protection proceedings. Jillian and Daniel were placed in the care of their father, Greg. Edward ultimately was placed in what became his preadoptive home. After another family assessment, DCF established another service plan (2016 service plan). It recommended that the mother participate in a substance abuse evaluation, undergo counselling for her mental health issues, work with a parent aide, and complete a parenting psychological evaluation. As to the father, it recommended that he seek counselling to address domestic violence issues, undergo a substance abuse evaluation, and submit to a parenting psychological evaluation.
After the children were removed, the mother married the father. On multiple occasions over the next three years, police received reports of domestic violence involving the mother and the father, but when they responded the mother denied that any violence had occurred. In July 2016, four hours after one such denial to responding officers, the mother appeared at a police station wearing only underwear and a torn tank top, with visible bruises on her forehead, neck, and legs. She reported that she had been bound with duct tape, locked in a closet, and not allowed to leave the apartment, which the judge credited. At first the mother refused to say who had beaten her, but eventually told police that it was the father. The mother disclosed that the father put out cigarettes on her chest and ankle, head-butted her, and hit the back of her head against a window ledge. The judge credited the mother's statements to police, and did not credit the mother's testimony at trial minimizing the injuries that the father had inflicted on her.
In the parking lot after a supervised visit in early 2017, the mother and father engaged in a domestic violence incident, and police were called. After that, DCF required a police detail for all meetings and visits with the mother.
Neither the mother nor the father met the goals DCF had set for them in being evaluated for and undergoing any recommended treatment for issues with domestic violence, substance abuse, and mental health. For at least one year after Edward's removal in March 2016, the father did not even meet with DCF. In March 2017, DCF's goal for Edward was changed from reunification with the mother and the father to adoption; a guardian ad litem (GAL) later made the same recommendation. In August 2018, a Juvenile Court judge suspended the mother's visitation with Daniel, finding that it was harmful to him. In December 2019, the GAL recommended that Greg be granted sole physical and legal custody of Jillian and Daniel.
Discussion.
"To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests" (citation omitted). Adoption of Yalena, 100 Mass.App.Ct. 542, 549 (2021). DCF bears the burden of proof as to both parental unfitness and best interests, and that burden "never" shifts to the parent. Care & Protection of Erin, 443 Mass. 567, 571 (2005). Because termination of parental rights is an "extreme step, . . . it is appropriate for a judge to consider whether, on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary" (citation omitted). Care &Protection of Zeb, 489 Mass. 783, 788 (2022). "Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Id., quoting Adoption of Ilona, 459 Mass. 53, 60 (2011).
1. Mother's appeal.
a. Burden-shifting language.
The mother does not contest the sufficiency of the evidence that she was unfit to parent each of the three children, but rather argues that the finding of her unfitness was error because the judge used language in her memorandum of decision that shifted the burden of proof from DCF to the mother. For example, the judge concluded that "there is insufficient evidence to show that [the mother] has benefited from . . . services," "[n]o expert testimony was offered regarding the necessity of any of the medications [m]other is prescribed," and "no credible evidence was presented that [m]other acknowledges her history of domestic violence or the impact it has on her children."
The judge's memorandum of decision made clear that she understood that DCF bore the burden of proving the mother's unfitness to parent each of the three children, and that termination of her parental rights was in each child's best interests. As summarized above, DCF presented abundant evidence of the mother's unfitness, including that for years she untruthfully had denied having problems with domestic violence, substance abuse, or mental health issues. In that context, the handful of grammatical constructions about which the mother complains in the judge's eighty-nine page memorandum did not show that the judge shifted the burden of proof to the mother. See Adoption of Terrence, 57 Mass.App.Ct. 832, 836 (2003) (in context, phrasing that mother "has not demonstrated that she is capable of caring for" child not burden-shifting). Cf. Adoption of Yalena, 100 Mass.App.Ct. at 549-550 (requirement in DCF family service plan that mother "acknowledge responsibility for abusing" child who sustained broken bones while in mother's care not burden-shifting, in context of abundant evidence of mother's lack of insight into child's needs).
b. Termination of mother's parental rights to Jillian and Daniel.
The mother argues that termination of her parental rights to Jillian and Daniel was not in their best interests, and the Juvenile Court did not have jurisdiction over their custody because they were born out of wedlock. The arguments are unavailing.
i. Best interests of children in custody of other parent.
Because Jillian and Daniel were in the custody of their father, Greg, the mother contends that there was "no need" to terminate her rights as to them, and instead it would be in their best interests simply to leave her legal relationship with them intact, because her "condition could improve."
The judge considered the mother's future potential for fitness, and concluded that as a result of the mother's lack of insight into her parental shortcomings and her lack of progress at remedying those shortcomings during the four years since the children were removed, "there is a reasonable expectation that [m]other . . . will not be able to provide proper care or custody within a reasonable time," and her "unfitness will continue undiminished into the future." That conclusion was supported by ample evidence. See Care &Protection of Zeb, 489 Mass. at 788-789. The mere fact that Jillian and Daniel are in the custody of their father, Greg, does not diminish their "unqualified right to permanency and stability." Id. at 789. Nor is a judge required to refrain from terminating a parent's parental rights based on a "faint hope" that the parent's condition could improve. Id.
A judge may terminate the parental rights of one parent but not the other. See Adoption of Willow, 433 Mass. 636, 643-644 (2001). Cf. Adoption of Xarina, 93 Mass.App.Ct. 800, 803 (2018) (rejecting mother's argument that DCF sought to terminate her parental rights to "punish" her, where it did not also seek to terminate father's parental rights). The judge found that for five years after the mother's relationship with Greg had ended, she made multiple false allegations against him, giving rise to unfounded G. L. c. 209A abuse prevention orders against him and to at least one criminal prosecution in which he was acquitted at trial. As a result, DCF recommended that Greg obtain a G. L. c. 209A order against the mother. The mother's years of false accusations against Greg gave the judge ample basis to conclude that termination of the mother's parental rights was in the best interests of Jillian and Daniel. Doing so would prevent the mother from initiating periodic review and redetermination proceedings and otherwise attempting to disrupt the children's stable placement with their father. See Adoption of Helen, 429 Mass. 856, 862 (1999). This consideration supported terminating the mother's parental rights even where the children "have already gone to live with their father." Adoption of Willow, supra at 648.
ii. Jurisdiction of Juvenile Court.
For the first time on appeal, the mother argues that the Juvenile Court did not have jurisdiction to determine the custody of Jillian and Daniel because she was not married to Greg when they were born, and G. L. c. 209C, § 3, gives the Probate and Family Court "exclusive" jurisdiction to determine custody of children born out of wedlock. The argument is meritless, because the Juvenile Court has jurisdiction over "cases of neglected . . . children," G. L. c. 218, § 60, and, on the petition of DCF or another proper person, to determine the custody of children in need of care and protection, G. L. c. 119, §§ 24, 26 (b). The notion that children are not entitled to protection from neglect by the Juvenile Court because they were born to unmarried parents is simply untenable. "Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children." G. L. c. 209C, § 1. See Sullivan v. Smith, 90 Mass.App.Ct. 743, 747-748 (2016).
Greg is the legal father of Jillian and Daniel: his name is on their birth certificates.
Indeed, Greg did pursue custody of Jillian and Daniel in the Probate and Family Court, but the mother contested it. Even so, the mother testified at the termination trial that if she had custody of Jillian, she would allow Jillian to continue living with her father in order to finish school. The judge noted the inconsistency in the mother's position, and that had the mother been amenable to granting Greg custody in the Probate and Family Court, that would have "allow[ed] her to be dismissed from this petition."
c. Impact of Jillian's age.
The mother further argues that the judge abused her discretion in terminating the mother's parental rights as to Jillian, who was sixteen years old when the decree issued, making it likely that this appeal would not be resolved before Jillian reached age eighteen. The mother maintains that the judge should have discussed the impact of Jillian's age on whether the termination of the mother's parental rights was in Jillian's best interests.
Jillian turned eighteen years old during the pendency of this appeal. See G. L. c. 119, § 21 (defining "child" for purposes of §§ 21-51H as a "person under the age of [eighteen]"). At the time of trial, Jillian had recently turned sixteen. The mere fact that Jillian was about two years away from the age when the Juvenile Court would no longer have jurisdiction over proceedings concerning her best interests did not lessen the protections to which she was entitled at age sixteen.
2. Father's appeal.
a. Unfitness.
The father argues that, although the judge repeatedly referenced the father's issues with domestic violence, substance use, and mental health as the bases for her finding of his unfitness, there was "'minimal evidence' that [f]ather suffers from mental health or substance abuse issues or that either of these alleged 'deficits' caused harm to [Edward]."
The judge concluded that domestic violence "has permeated" the father's relationship with the mother, and the father's "refusal to acknowledge" it demonstrated his "complete lack of insight into the issue and contributes to [his] parental unfitness." The judge credited the mother's statements in July 2015 that she had bruises caused by violence between herself and the father. In addition, the judge credited evidence that in July 2016, four months after nine month old Edward's removal, the father bound the mother with duct tape, locked her in a closet, put out cigarettes on her chest and ankle, head-butted her, and hit the back of her head against a window ledge. For years after the children's removal, the father repeatedly beat the mother, but she refused to disclose his identity to responding police officers, and to social workers she minimized his violence.
Our case law does not suggest that children are traumatized by domestic violence only when they witness it firsthand, nor does it require them to do so as a prerequisite to termination. See Custody of Vaughn, 422 Mass. 590, 599 (1996); Adoption of Lisette, 93 Mass.App.Ct. 284, 294 n.15 (2018). However, the judge's findings did not make clear whether the father's history of domestic violence against the mother was alone enough to prove his unfitness to parent Edward.
As to the father's issues with substance abuse, the judge found that during the July 2015 incident that resulted in the unsubstantiated 51A report, the father was "visibly intoxicated" and combative with police, and as a result DCF had "concerns of [the father]'s alcohol use." Discussing with the GAL the night in March 2016 when the children were removed, the father denied that he used substances then, but admitted that two nights previously he and the mother "had a few drinks, and did a few lines" of cocaine, which the judge credited. Based on the father's statements in an October 2017 substance abuse evaluation, the judge found that from the time that he was in his twenties until then, the father "was smoking marijuana almost every day," and as a result was diagnosed with severe cannabis use disorder. During that evaluation, the father denied that he had any issues with alcohol, marijuana, or other drugs, which the judge did not credit. The judge found that the father was "visibly intoxicated" at trial.
Despite the judge's findings that the father was under the influence of alcohol or drugs on many occasions, the judge did not make findings that would connect how the father's alcohol and drug use did or did not affect his ability to parent Edward. Cf. Adoption of Eden, 88 Mass.App.Ct. 293, 295 (2015) (judge's decision was "ambiguous" about extent to which it relied on unproven allegations of sexual abuse). Substance abuse alone does not render a parent unfit, but it may if it is linked to neglect or abuse of a child. See Adoption of Rhona, 57 Mass.App.Ct. 479, 484 (2003). Here, the judge's findings about the father's alcohol and marijuana use, "[a]lthough far from indicators of parental excellence," do not by themselves amount to the sort of "grievous shortcomings or handicaps [placing] the child's welfare much at hazard" (quotation and citation omitted). Adoption of Zoltan, 71 Mass.App.Ct. 185, 189 (2008).
As for the father's mental health issues, the judge found that in June 2017 the father authored a note in which he described living as being difficult. In June 2019 the mother told police that the father had attempted suicide; she averred in an affidavit in support of a G. L. c. 209A abuse prevention order that he slept with a knife under his pillow and hallucinated that she had betrayed him. The judge did not find whether those reports were credible, although after the mother later recanted her statements that the father was suicidal and slept with a knife under his pillow, the judge found that the mother "was not forthcoming with accurate information." Again, even assuming that the evidence showed that the father had issues with mental illness, the judge's findings do not connect those issues to his ability or lack of ability to parent Edward. See Adoption of Chad, 94 Mass.App.Ct. 828, 838-839 (2019).
The judge also found that the father had failed to cooperate with DCF. The 2015 service plan recommended that the father "needs to work with" DCF, and the father agreed to do so, but the judge found that the father "disappeared shortly thereafter" and had "minimal contact" with DCF. The 2016 service plan recommended, among other things, that the father seek counselling to address domestic violence issues, undergo a substance abuse evaluation, and submit to a parenting psychological evaluation, but for at least the next year, the father did not even meet with DCF. He attended only one session of a batterer's intervention class, and then was discharged, and did not complete a parenting psychological evaluation. He attended only two of the four sessions required to complete the substance abuse evaluation. Although DCF requested that he submit to drug screens, he did not do so.
It may well be that the judge could find that the father's domestic violence against the mother would alone be a sufficient basis to prove by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, see Adoption of Yalena, 100 Mass.App.Ct. at 549, that the father is unfit to care for Edward. Or, it may be that although any issues the father may have had with substance abuse or mental health were not themselves enough to render him unfit as a parent, they had some causal link to his unfitness not yet articulated by the judge, and his unwillingness to address those issues by cooperating with DCF and undergoing the recommended evaluations and follow-up treatment further contributed to his unfitness. See Adoption of Eden, 88 Mass.App.Ct. at 297 (judge's supplemental findings reported that he could not determine whether sexual abuse occurred, but placed "substantial weight on the inappropriate and troubling way in which . . . [f]ather . . . chose to deal with those allegations"). See also Adoption of Luc, 484 Mass. 139, 146-147 (2020) (failure to recognize need for or to engage consistently in treatment is relevant to determination of unfitness). "But it is for the trial judge, not us, to determine in the first instance whether unfitness has been proven by clear and convincing evidence, and whether termination of parental rights is in the best interests of the child[]." Adoption of Eden, supra at 296.
Consequently, we vacate the decree terminating the father's parental rights to Edward and follow the procedure set out in Care &Protection of Lillith, 61 Mass.App.Ct. 132, 142 (2004), "remand[ing] the case for clarification of the judge's findings" on the relevant matters. "[D]uring the pendency of [the remand proceedings] the present custody arrangements are to be maintained." Care &Protection of Ian, 46 Mass.App.Ct. 615, 618 (1999). "[W]e do not by this decision require the judge to hear further testimony if [she] does not consider this necessary, but at the least [she] must hear both parties and make explicit findings on the matters" necessary to reach a determination on the questions before her (citation omitted). Care &Protection of Lillith, supra.
b. Father's absences from trial and failure to testify.
The father argues that, by noting that he had failed to appear for the first three days of trial and to testify at trial, the judge improperly shifted the burden of proof to him.
When a parent in a termination of parental rights case fails to testify or absents himself from the trial despite having received notice, it is permissible for the judge to draw an adverse inference against the parent. See Adoption of Talik, 92 Mass.App.Ct. 367, 371 (2017). This is so because "the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child's best interests." Id. at 372. See Adoption of Helga, 97 Mass.App.Ct. 521, 525 (2020). We review a trial judge's decision to draw such an adverse inference for an abuse of discretion. Id. at 525-526.
The father contends that the judge used burden-shifting language when she concluded, "Due to [father]'s failure to testify in this matter, [DCF] and the court have little information about [f]ather's housing, employment, finances, mental health, substance abuse, engagement in services[,] and ability to care for [Edward]." Of course, DCF bore the burden of proving the father's unfitness as a parent and that termination of his parental rights would be in Edward's best interests. See Care &Protection of Erin, 443 Mass. at 571. Read in context, that sentence may have been a summary of the evidence that the father had failed to engage with DCF in performing the tasks and obtaining the evaluations and treatment recommended by his service plan. See Adoption of Terrence, 57 Mass.App.Ct. at 836. Nevertheless, because we are retaining jurisdiction, and because the challenged statement refers specifically to the paucity of information regarding the father's substance abuse and mental health -- issues that contribute to the need for a remand -- the judge should also clarify the significance of the challenged statement.
The father also argues that the judge used burden-shifting language when she twice using the phrase, "No evidence was presented that [father] had a sufficient understanding of [Edward]'s needs." As discussed above with respect to the mother's similar argument, the judge's findings made clear that she understood and applied the correct burden of proof.
Conclusion.
Accordingly, the decree terminating the father's parental rights to Edward is vacated, and the matter is remanded for such further proceedings as the judge deems appropriate, consistent with this memorandum and order. The panel will retain jurisdiction of any appeal from any future decree in this matter.
The decrees terminating the mother's parental rights to all three children are affirmed.
So ordered.
The panelists are listed in order of seniority.