Opinion
21-P-620
05-03-2022
ADOPTION OF NYLA.[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
Following a trial in the Juvenile Court, a judge issued decrees finding that the mother and father were unfit to assume parental responsibility of their daughter, Nyla, terminated their parental rights, and approved the adoption plan proposed by the Department of Children and Families (department). On appeal, the parents both claim that the evidence of their unfitness was insufficient, and that the judge abused his discretion in finding that termination was in Nyla's best interests. The mother also contends that the judge abused his discretion by failing to order posttermination and postadoption visitation. We affirm.
Background.
Shortly after her birth in July 2015, the department received a report filed pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of Nyla. During the investigation, both parents admitted to the department that they argued, but denied any physical abuse. The mother claimed that an eye injury that was visible to the department investigator was self-inflicted. Ten days later, the father threatened to stab the mother while holding a kitchen knife, after which the mother obtained an emergency restraining order pursuant to G. L. c. 209A (c. 209A order). The mother allowed the c. 209A order to lapse because the father promised to begin therapy. Shortly thereafter, the father attacked the mother, again causing an injury to her eye. Neighbors called the police, and the father was arrested. The mother recanted her initial disclosure that the father caused her injury and once again claimed the injury was self-inflicted; she refused to testify against the father, and the criminal case was dismissed. Soon thereafter the mother obtained another c. 209A order against the father. The father violated the c. 209A order numerous times, but the mother did not report the violations to the police. Eventually the mother abandoned her shelter placement, and moved in with the paternal grandmother, where the father also lived. On one occasion, the paternal grandmother pushed the mother in front of the child, and was arrested. In February 2016, the mother again abandoned her shelter placement and her whereabouts were unknown to the department and her probation officer. As a result, the department filed a care and protection petition, and a probation warrant issued for the mother's arrest. The mother learned of the proceedings, and promised to bring the child to the department, which she failed to do at least twice.
In total six 51A reports were filed and two G. L. c. 119, § 51B, investigations were conducted.
The mother was on probation for an assault and battery on a previous intimate partner.
After the child's removal, both parents were given action plans. The mother made substantial progress and the department changed the goal to permanency through reunification on November 21, 2017. The father told the department that he was moving to New York and did not know when he would return. A department social worker told the father that he could seek visitation in the Probate and Family Court because the child was to be reunified with the mother and there was an active c. 209A order. In February 2018, the father told the social worker that he "never want[ed] to see [Nyla] again," and in April 2018 sent an e-mail to the same social worker that directed the worker not to contact him and reported that he was "all set."
After the child was returned to the mother in February 2018, the mother had contact with the father but, when the social worker learned of it, the mother said that "it was not a big deal." This was despite the fact that the mother was told by the department that she was not to provide the father with any access to the child and that she needed to call the police if the father contacted her. Thereafter the social worker learned that the father had been in the mother's apartment while the child was present. Nyla was again removed from the mother's care on April 10, 2018, and the department changed the goal to adoption.
Standard of review.
"When reviewing a decision to terminate parental rights, we must determine whether the trial judge has abused his discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "When making this determination, subsidiary findings of fact must be supported by a preponderance of the evidence, with the ultimate determination of unfitness based upon clear and convincing evidence." Adoption of Rhona, 63 Mass.App.Ct. 117, 124 (2005). See Adoption of Luc, 484 Mass. 139, 144 (2020). Clear and convincing evidence "must be sufficient to convey a high degree of probability that the proposition is true. . . . The requisite proof must be strong and positive; it must be full, clear and decisive" (quotations and citations omitted). Adoption of Rhona, 57 Mass.App.Ct. 479, 488 (2003). "Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases." Care & Protection of Yetta, 84 Mass.App.Ct. 691, 696 (2014), quoting Custody of Eleanor, 414 Mass. 795, 800 (1993). Here, both parents claim that the evidence of their unfitness was not supported by clear and convincing evidence and therefore the judge erred in terminating their rights. We are not persuaded.
Neither parent contends that any of the findings of fact are clearly erroneous.
Termination of parental rights.
The judge's 467 findings of fact and forty-two conclusions of law find ample support in the record, and are not clearly erroneous. The parents' relationship was volatile, chaotic, and unstable due, in part, to their own mental health issues and substance misuse. Of paramount importance, the parents each lacked insight into the effect that the domestic violence between them had on Nyla. They repeatedly minimized the violence and were unable to keep the child away from it. Although the mother made gains at times, ultimately, she continued to allow the father to spend time with Nyla with the knowledge that this could jeopardize Nyla's return to her. Family violence is "highly relevant to a judge's determination of parental unfitness and the best interests of the child[]." Adoption of Gillian, 63 Mass.App.Ct. 398, 404 n.6 (2005). Indeed, "witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Adoption of Zak, 87 Mass.App.Ct. 540, 543 (2015), quoting Custody of Vaughn, 422 Mass. 590, 599 (1996). "[A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Adoption of Zak, supra, quoting Custody of Vaughn, supra at 595. Here, there was more than sufficient evidence to demonstrate that each parent failed to understand and appreciate the seriousness of the violence between them and the impact it had on Nyla. The father's contention that the evidence of domestic violence was stale is unconvincing. While it is true that "[i]solated problems in the past or stale information cannot be a basis for a determination of current parental unfitness" (citation omitted), Adoption of Rhona, 57 Mass.App.Ct. at 487, it may be considered "to predict future ability and performance." Adoption of Katharine, 42 Mass.App.Ct. 25, 33 (1997). See Adoption of Luc, 484 Mass. at 145 ("Prior history . . . has prognostic value" [citation omitted]). That is precisely what the judge did here.
The father claims that the department failed to prove that he was unfit to parent Nyla because he was caring for a child from another relationship. However, a parent can be fit to parent one child, but not another. See Guardianship of Estelle, 70 Mass.App.Ct. 575, 581 (2007) . See also Adoption of Rhona, 57 Mass.App.Ct. at 487 ("In some circumstances, a parent may be fit to raise one child and unfit to raise another").
The parents contend that the judge focused only on the issue of domestic violence, and therefore the decrees must be vacated. However, the judge considered the father's mental health issues, which included his anger and aggression, as well as his statements to the mother that he wanted to kill himself. The judge also considered the mother's mental health history including two suicide attempts that resulted in psychiatric hospitalizations, one of which the department did not learn about until after they reunified the child with the mother. See Adoption of Frederick, 405 Mass. 1, 9 (1989) (mental disorder relevant to extent it affects parents' capacity to assume parental responsibility, and ability to deal with child's special needs).
The father was diagnosed with anxiety and depression, but refused to sign a release to allow the department to speak with his treatment providers.
The mother was diagnosed with borderline personality disorder, attention deficit hyperactivity disorder, posttraumatic stress disorder (PTSD), depression, anxiety, and obsessive compulsive disorder. At trial, the mother testified that she suffered only from anxiety and PTSD.
The judge also properly considered the parents' misuse of alcohol and illegal substances. See Adoption of Anton, 72 Mass.App.Ct. 667, 676 (2008) (evidence of alcohol or drug abuse relevant to parent's willingness, competence, and availability to provide care). The judge also found that the parents lacked stable housing, and the mother jeopardized her shelter placements by maintaining contact with the father. Although this alone cannot be the basis for termination of parental rights, the judge properly considered it as but one factor. See Adoption of Anton, supra at 676 (inability to secure "adequate stable housing" is properly considered in determining parent's unfitness). The judge also found that the father has a criminal history beginning in 2008, with charges including assault and battery, drug possession, illegal possession of ammunition, and violations of c. 209A orders. And the father was a defendant in multiple c. 209A orders as well as a harassment prevention order issued pursuant to G. L. c. 258E. A parent's criminal history alone is not sufficient to terminate parental rights; however, "[t]o the extent it bears on fitness, . . . evidence of prior convictions may properly be weighed in the balance." Care & Protection of Frank, 409 Mass. 492, 495 (1991). Evidence of a criminal record, "to the extent that it had a bearing on [the father's] fitness as a parent, is germane in care and protection proceedings." Care & Protection of Quinn, 54 Mass.App.Ct. 117, 125 (2002). These findings were grounded in the evidence, none were clearly erroneous, and all support the judge's determination of parental unfitness.
The father denied that he misused substances despite receiving treatment. During her pregnancy, the mother drank alcohol, smoked marijuana, and failed to obtain adequate prenatal care. The mother admitted to self-medicating with alcohol in the past.
Best interests of child. The termination of parental rights must be in the best interests of the child, which "requires a court to focus on the various factors unique to the situation of the individual for whom it must act." Custody of a Minor, 375 Mass. 733, 753 (1978) . "The 'parental fitness' test and the 'best interests of the child' test are not mutually exclusive, but rather 'reflect different degrees of emphasis on the same factors.'" Adoption of Rhona, 57 Mass.App.Ct. at 490, quoting Care & Protection of Three Minors, 392 Mass. 704, 714 (1984). "In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent" to adoption, "the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in [G. L. c. 210, § 2, ] to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition." G. L. c. 210, § 3 (c).
Here, the mother did not receive appropriate prenatal care, and Nyla was born weighing less than five pounds. Nyla had a number of developmental and processing issues, but early intervention services were terminated because the mother did not have a telephone; Nyla also missed numerous medical appointments while in the mother's care. After the department obtained custody, Nyla was diagnosed with an adjustment disorder with anxiety, and received speech, coping, and development skills services. Following visits with her parents, Nyla experienced night terrors; she was often emotional and angry, and acted out. As a result, Nyla was enrolled in weekly play therapy. Notably neither parent addressed Nyla's special needs in their briefs. See Adoption of Frederick, 405 Mass. at 9 (child's special needs relevant to capacity to assume parental responsibility). Moreover, Nyla has formed a strong bond with her preadoptive family, and a forced removal from her current caretakers would likely cause serious psychological harm to her. See G. L. c. 210, § 3 (c0 (vii); Adoption of Katharine, 42 Mass.App.Ct. at 29-31; Adoption of Nicole, 40 Mass.App.Ct. 259, 262-263 (1996) .
Posttermination and postadoption visitation. The mother contends that the judge abused his discretion by failing to order posttermination and postadoption visitation. The judge found that such contact was not in the child's best interests, and concluded that the child's adoptive parents are in the best position to determine whether any visitation or contact will benefit Nyla in the future. "Once it is established that a parent is unfit, the decision whether to grant postadoption [or posttermination] visits must be left to the sound discretion of the trial judge." Adoption of Terrence, 57 Mass.App.Ct. 832, 839 (2003), quoting Adoption of John, 53 Mass.App.Ct. 431, 439 (2001). "The judge's discretion is not, however, unfettered, but must be 'grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation." Adoption of Terrence, supra, quoting Adoption of Vito, 431 Mass. 550, 562 (2000). At the time of trial, Nyla was three years and ten months old and had been in the care of the preadoptive family for the eleven months preceding the trial. The preadoptive mother's ability to act in Nyla's best interests is best reflected by her facilitation of visits between Nyla and her maternal aunt, who was ten years old at the time of trial, something the preadoptive mother plans to continue. We discern no abuse of discretion in the judge's disposition. See Adoption of Ilona, 459 Mass. 53, 64-66 (2011).
Decrees affirmed.
By the Court
Blake, Lemire & Hershfang, JJ.
The panelists are listed in order of seniority.