Opinion
11-P-1084
04-12-2012
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 appeals from a Juvenile Court judge's decrees terminating her parental rights with respect to Lin and Garrick. Lin appeals from the decree, insofar as the judge failed to order sibling visitation or order the Department of Children and Families (DCF) to investigate a joint placement for both Lin and Garrick. Garrick appeals on the basis that the judge's findings fail to show, by clear and convincing evidence, that the mother is unfit to parent him. We affirm those parts of the decrees that terminate parental rights, and remand the matter for further findings on the issues of sibling visitation and placement plans.
Discussion. 1. Termination of parental rights. A judge terminating parental rights 'must find by clear and convincing evidence that a parent is unfit to provide for the welfare and best interests of the child.' Adoption of Mary, 414 Mass. 705, 710 (1993). We will not disturb a judge's findings supporting an order of termination unless they are clearly erroneous. Ibid.
The mother argues that several of the judge's findings are clearly erroneous because there was no corroborating evidence that Lin was physically abused and no nexus between the mother's marijuana use and an inability to care for the children. The findings with which the mother takes issue either do not relate to the mother's marijuana use, or demonstrate that the judge did not rely heavily on the mother's marijuana use in finding parental unfitness. The findings relating to physical abuse are based upon the documentary evidence at
trial and the testimony of the mother and a DCF social worker. The judge did not credit the mother's testimony regarding the allegations of abuse, and implicitly credited Lin's allegations as documented in the evidence and recounted by the social worker. The judge 'was in the best position to assess [the mother]'s credibility, and the credibility of [Lin's] allegation,' and his 'assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.' Custody of Eleanor, 414 Mass. 795, 799- 800 (1993).
The mother and Garrick also argue that the decree terminating the mother's parental rights with respect to Garrick is not supported by clear and convincing evidence because there are no specific findings that the mother is currently unfit. They contend that the judge's findings with respect to the mother's ability to care for Garrick were sparse, and were based upon stale evidence.
The judge's findings show that he carefully considered the mother's history with DCF, history of violent relationships with men, history of drug abuse, recent relationship with a level three sex offender, and inability to recognize and provide for the special needs of Lin. Evidence that the mother has lost custody of all six of her children, that she nevertheless has
continued to engage in the behaviors that resulted in removal of her children, and that she failed to engage in the services required by DCF to regain custody of Lin and Garrick, amply support the judge's finding that the mother lacks self-awareness and is unable either to understand or appreciate the consequences of her behavior. The judge was entitled to consider the mother's 'character, temperament, [and] conduct' in evaluating her ability to provide for the needs of Garrick, Adoption of Mary, 414 Mass. at 711, and 'properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child.' Adoption of Elena, 446 Mass. 24, 33 (2009). There was ample evidence that the mother is unaware of how her behavior or relationships affect the children and/or put them at risk, and a judge 'need not wait for inevitable disaster to happen.' Adoption of Katherine, 42 Mass. App. Ct. 25, 32-33 (1997). See Custody of Two Minors, 396 Mass. 610, 620 (1986) ('Courts need not wait until they are confronted with a maltreated child before deciding that care and protection are necessary'). While the mother has engaged in some of the services required by DCF and states her desire to have her children back, 'good intentions are not alone sufficient indicia of ability to care for children.' Custody of Two Minors, supra. The judge was 'permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child,' and we discern no error in his conclusions. Id. at 621.
Such findings are also supported by evidence of the mother's failure to appreciate the consequences of missing visits with the children, having angry outbursts in front of the children, and aggressively handling Garrick despite his cries.
2. Parental visitation. There was no error in the judge's failure to order posttermination or postadoption visitation between the mother and the children. Judges have equitable power to order visitation where it is in the child's best interests. Adoption of Ilona, 459 Mass. 53, 63 (2011). In deciding whether visitation is in the child's best interests, 'a judge should consider, among other factors, whether there is a 'significant, existing bond with the biological parent' whose rights have been terminated.' Id. at 63-64, quoting from Adoption of Vito, 431 Mass. 550, 563 (2000). The judge correctly adduced that no significant bond exists between the mother and Garrick, and that Garrick does not willingly go to visit the mother. Although there is evidence of a bond between the mother and Lin, there is also significant evidence that the mother's behavior negatively affects Garrick. Garrick becomes extremely agitated when the mother misses visits, or when the mother's visits involve (as they frequently do) an angry outburst. There was evidence that Lin struggles for the mother's attention during visits, and that she is often reluctant to leave school or activities to visit with the mother. In light of the judge's finding that the mother lacks awareness of how her behaviors affect her children, the judge's conclusion that visitation between the mother and Lin is not in Lin's best interests is clearly supported by the
record.
3. Sibling visitation. Under G. L. c. 119, § 26B(6), inserted by St. 2008, c. 176, § 84, '[t]he court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visitation with siblings . . . .' The judge made no findings regarding whether sibling visitation or joint placement is in the best interests of the children. This was error. See Adoption of Three Minors, 392 Mass. 704, 715 (1984); Adoption of Galvin, 55 Mass. App. Ct. 912, 913 (2002) (decided under G. L. c. 119, § 26(5), inserted by St. 1997, c. 43, § 99 ). Accordingly, we remand for further findings on the issues of sibling visitation and the possibility of joint placement. Those parts of the decrees terminating parental rights and declining to order parental visitation are affirmed.
There are no findings following the heading 'Sibling Visitation' in the judge's findings and order.
The newer statute is to the same effect.
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So ordered.
By the Court (Vuono, Grainger & Carhart, JJ.),