Opinion
11-P-1144
03-02-2012
ADOPTION OF NILTON.
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
This case presents a second appeal from decrees of the Probate and Family Court. Pursuant to a remand from this court (see Adoption of Nilton, 77 Mass. App. Ct. 1118 [2010], hereinafter Nilton I), the judge amended his previous order and decree so as to terminate the mother's parental rights and grant the maternal grandparents' petition for adoption. The mother appeals. For the following reasons, we affirm.
The Department of Children and Families is not involved in this case.
Background. The evidence supported the following findings. Nilton was born in February of 2002. The mother was approximately seventeen years old at the time. Over the first year and one-half of Nilton's life, the mother often left him with relatives for up to a month. She also lived at seven different addresses over six years. The mother was the victim of domestic abuse. She lived at various times with drug users and dealers, as well as individuals with histories of arrests and convictions, including a convicted child abuser.
In August, 2003, the mother was living in Maine. That State's Department of Health Services began investigating the mother and determined that Nilton had been emotionally abused and neglected. As a result, the mother preemptively placed Nilton with her parents, Nilton's grandparents, in Massachusetts. At that time, she signed a document assenting to guardianship of Nilton by the grandparents.
Nilton has lived with the grandparents since October, 2003. They have provided a stable and loving home for Nilton, who has been diagnosed with various developmental disabilities including: (1) bipolar disorder, (2) attention deficit hyperactivity disorder, (3) posttraumatic stress disorder, and (4) expressive language deficit.
The grandparents last spoke with the mother in February, 2005, the occasion of the mother's last visit with Nilton. She made no effort after 2005 to visit or communicate with him. In 2006, the grandparents submitted a petition to the Probate Court to adopt Nilton. The judge conducted a three-day trial; both the mother and the grandparents were present.
At the conclusion of the trial, the judge found the mother to be unfit, but did not terminate her parental rights. On appeal, in Nilton I, 77 Mass. App. Ct. 1118 (2010), this court vacated the decree. It remanded the case to the Probate Court for additional findings whether termination of the mother's parental rights served the best interests of the child and whether the mother's unfitness was only temporary.
On remand, after a status conference, the judge issued (1) an order and an amended decree dated January 19, 2011, which terminated the mother's rights to the child and granted the grandparents' petition for adoption; and (2) an order dated March 11, 2011, which denied the mother's motion to stay the adoption hearing and the decree of adoption pending her appeal, and which included findings and reasoning in support of the amended decree. The mother appeals from the January 19, 2011, order and amended decree.
On remand, the judge did not conduct any additional evidentiary hearings or make any further factual findings.
Analysis. On appeal the mother argues (1) that the judge failed explicitly to link his findings of fact to specific statutory adoption factors, (2) that the judge relied on stale evidence, and (3) that the judge lacked sufficient evidence to terminate the mother's rights. Additionally, the grandparents claim on appeal that they are entitled to an award of attorney's fees caused by the mother's 'frivolous' appeal.
In an appeal of this nature, we give substantial deference to the trial judge. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, sub nom. Hugo P. v. George P., 526 U.S. 104 (1999). We do not review the case de novo, but instead 'determine whether the trial judge abused his discretion or committed a clear error of law.' Ibid. We afford substantial deference to his factfinding and discretion because he had the opportunity to view the witnesses and weigh the evidence. See Adoption of Quentin, 424 Mass. 882, 886 (1997); Adoption of Nancy, 443 Mass. 512, 515 (2005).
1. Failure to link findings of fact explicitly to statutory factors. The mother first argues that the judge committed reversible error by failing to link explicitly the statutory adoption factors found in G. L. c. 210, § 3(c), to his enumerated findings of fact. We disagree.
The mother correctly states the standard: the judge must make specific and detailed findings demonstrating attention to the evidence and the fourteen statutory factors. Adoption of Nancy, 443 Mass. at 516. However, that standard does not require that a judge explicitly state which factor applies to each of his enumerated findings of fact. See ibid.; Adoption of Elena, 446 Mass. 24, 33 (2006). Courts have said only that it would be 'better practice' or 'advisable' to have an explicit linkage between the specific findings and the statutory factors. Adoption of Nancy, 443 Mass. at 516. The judge here has neither committed clear error, nor abused his discretion. It is implicit in the judge's findings that he appropriately weighed the evidence and the testimony and applied the statutory factors. Nothing more is required.
The mother argues also that on remand the judge failed to comply with the instructions from Nilton I, 77 Mass. App. Ct. 1118. We disagree. As discussed supra, the judge's original findings were sufficient to terminate the mother's rights even if he had failed to link them specifically to the statutory factors. However, on remand, the judge went further: he explicitly stated that factors ii, vi, vii, viii, ix, x, xi, and xii of G. L. c. 210, § 3(c), underlay his findings of fact 9 through 68, 85, 90, 91, 110, 134, and 136 through 141. That reference is sufficient to satisfy the directive of this court on remand, and more than sufficient to satisfy the standard for termination of the mother's parental rights.
2. Staleness of evidence. The mother next argues that the judge relied on stale evidence for his findings and rationale for the amended decree. We disagree.
Stale evidence cannot be the basis for the finding of current unfitness. Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). However, history has predictive value. Ibid. Evidence of the mother's past behavior is only stale when her circumstances have improved. Without a showing of improvement, the evidence remains highly relevant. In Nilton I, this court held that the mother's improvement was not sufficient to overcome evidence of past behavior. The mother made no offer of fresh evidence at the remand conference or by any written submission during the remand stage of litigation to challenge the judge's earlier findings. As a result, the evidence relied on by the judge remains relevant and is not stale.
Beyond the issue of the mother's fitness, additional evidence supported the termination of parental rights as being in Nilton's best interests. Several criteria were particularly weighty: (1) the child had bonded with the grandparents, with whom he had lived since October of 2003 and with whom he now has a connection of deep stability and continuity; (2) the child had not seen the mother since February of 2005; and (3) the child's developmental disabilities and special needs required highly competent and consistent parenting. These considerations further diminish the pertinence of the mother's objection on the ground of stale evidence of unfitness.
3. Sufficiency of evidence to terminate the mother's parental rights. The mother contends that the termination of her parental rights rests upon insufficient evidence.
To terminate parental rights, the judge must first find the parent unfit by clear and convincing evidence. Adoption of Georgia, 433 Mass. 62, 65-66 (2000). The judge also evaluates whether the parent can assume the duties and responsibilities required of a parent and whether dispensing with consent will serve the best interests of the child. Ibid. The reviewing court will not disturb the trial judge's findings unless they are clearly erroneous. Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005).
In this case, the judge made 141 factual findings which established the following: (1) the mother previously neglected and emotionally abused Nilton, (2) the mother is unable to provide proper care for a child with special needs, (3) the grandparents have the ability, capacity, fitness, and readiness to assume responsibility for Nilton, (4) the mother has no bond with Nilton, (5) the grandparents have bonded with Nilton during the years of his care by them, (6) the mother failed to visit Nilton or make contact with the grandparents for at least four years prior to trial, (7) the mother has continually associated with people who abuse and sell drugs, (8) the mother continues to be involved in relationships where her two younger children are exposed to violence, and (9) the mother has not made or offered proof of improvements in her life since the grandparents took custody of Nilton, including failure to monitor her own mental health needs. Each finding had adequate support in the record. The aggregate evidence established clearly and convincingly (1) the mother's unfitness and (2) the service of the child's best interests by termination of parental rights.
The judge credited the mother with certain effort and improvements including (1) work toward a GED, (2) a stable residence, (3) a continuous relationship with the same boyfriend, and (4) imminent acquisition of a driver's license.
4. Appellate attorney's fees. Finally, the grandparents' attorneys argue that they are entitled to an award of appellate fees as a result of the mother's 'frivolous appeal.' We disagree.
Pursuant to Mass.R.A.P. 25, as amended, 376 Mass. 949 (1978), an appellate court may order an award of attorney's fees for the appellees if it determines that an appeal is frivolous. 'An appeal is frivolous if, under settled law, the appellant has no 'reasonable expectation of a reversal." Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64, 73 (2010), quoting from Avery v. Steele, 414 Mass. 450, 455 (1993).
An award under rule 25 is not appropriate in this case. The mother's attorneys have provided zealous representation in a matter of grave importance to her: a connection to her biological son. Their chances of appellate success were unlikely, but not nonexistent. We cannot say that the required zealous advocacy denatured into frivolous advocacy.
Additionally, we observe that all parties have received appellate representation from law firms offering their services pro bono publico. We are particularly reluctant to chill the commendable provision of such work in the absence of clearly frivolous tactics or strategy.
Order and amended decree dated January 19, 2011, affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),