Opinion
No. 13–P–430.
2013-11-5
ADOPTION OF PIERS (and a companion case ).
By the Court (HANLON, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from decrees of the Juvenile Court terminating his parental rights and accepting the permanent placement plan proposed by the Department of Children and Families (department).
He argues that the department did not meet its initial burden of showing a change in circumstances in order to proceed with a review and redetermination hearing; the judge abused her discretion when she approved the permanency plan; and it was error for the judge to order the termination of his parental rights, particularly in light of the fact that the children were not likely to be adopted. We affirm.
The mother's parental rights were terminated after trial on November 14, 2011; she did not appeal from that decision nor is she a party in these proceedings.
Background. On February 18, 2009, eight year old Piers and six year old Adam were removed from their mother's care and placed in the temporary custody of the department; at the time, the father's whereabouts were unknown. The children were returned to the mother's custody the next day, but removed again on March 31, 2009, after they were left home alone. The mother waived her right to a custody hearing on April 10, 2009, and the children were placed in the department's custody, where they have remained ever since. On November 14, 2011, before the termination of the mother's parental rights, the father appeared before the judge by telephone from a Florida correctional facility. At that time, he stipulated to a finding of unavailability and adjudication of unfitness, with permanent custody to the department; his parental rights were not terminated. The department filed a petition for review and redetermination on August 1, 2012, and a hearing on that petition took place on September 17, 2012.
The children. Both children have significant medical issues.
Piers has been diagnosed with reactive attachment disorder, posttraumatic stress disorder, bipolar disorder with psychotic features, and encopresis brought on by anxiety, stress, and past trauma; he has exhibited sexually inappropriate, assaultive, and self-abusive behavior and has been hospitalized due to suicidal ideations. He takes a number of daily medications and requires twenty-four hour supervision.
After Piers was removed from his mother, he lived in approximately eleven different placements before 2010, when he was placed with his brother in his current foster home. Since then, Piers has become behaviorally and emotionally stable and his grades and reading levels have improved. He participates in individual therapy and is awaiting an opening with a trauma therapist. Piers refuses to have any involvement with his biological family, refused a visit with his paternal grandmother in November, 2011, and refuses any and all contact with the father.
Adam was born with microcephaly, moderate cerebral palsy, and global developmental delay; he was subsequently diagnosed with cognitive impairment/mental retardation, eczema, a mood disorder (possibly bipolar), and a chromosome mutation deficiency.
Adam is nonverbal, uses braces or a wheelchair for mobility, and displays “self-injurious behaviors”; he requires twenty-four hour supervision, and needs support for all daily living skills. Since being placed in his current intensive foster home in 2009, his mobility has improved—he is now able to walk for short periods of time with leg braces, and he has learned to communicate through sign language and use of a computer. His episodes of self-injurious behavior have decreased. His foster parents administer his medications and accompany him to regular visits with various medical and psychiatric professionals. Given Adam's extensive medical problems, adoption is unlikely.
At the time of the hearing, the children had been together in their current placement for two years; Adam was placed in 2009 and, as noted, Piers joined him in 2010. The current foster parents have expressed a willingness to care for Piers until the age of majority and beyond, and if his goal is changed to adoption, “they would like to be that resource.” The foster parents also would like to adopt Adam, but because of his extensive need for support and medical care, it would be financially impossible for them; however, they are willing to keep him indefinitely. The foster parents have taken more than one hundred hours of classes in order to learn how to tend to the children's specialized needs. The children have bonded with them, and refer to them as “Daddy” and “Daddy”; neither child has a bond with the father or his extended family.
The department's goals for the children have changed several times. Due to the substantial cost of caring for them, the plan at the time of the hearing was permanency with kin, meaning permanent placement with the current foster parents, allowing the children to remain together and to continue to receive the support and services they were receiving through the department—services that would not be available if they were adopted or under a guardianship, unless the guardianship was subsidized.
The father. The mother and the father were never married; their relationship was “on and off” from 1999 until approximately 2002. There were domestic violence incidents and the mother sought restraining orders twice. After he moved to Florida in 2003, the father visited with the children sporadically, when he was in Massachusetts, until 2007 when he was incarcerated. He has not seen the children since 2007.
In 2007, after the father pleaded guilty to first degree arson and aggravated assault, he began serving a seven-year sentence in a Florida State correctional institution. The record indicates that he expected to be released in August, 2013, and to be on house arrest for the following two years with electronic monitoring, followed by six years of probation.
He has a lengthy criminal record in both Florida and Massachusetts, and currently has an outstanding warrant for a probation violation in Massachusetts.
The father disputes the finding that electronic monitoring would be required; however, the record does not indicate that condition was vacated.
In 2009, when the department filed the care and protection petition, the father's whereabouts were unknown, although the mother had reported that he was in jail somewhere in Florida. In the spring of 2011, the case was transferred to a new caseworker, Timothy McNamara, who was able to locate and contact the father.
The department then created a service plan, requiring the father, among other things, to keep in touch with the department, participate in a batterers' intervention program and, while incarcerated, participate in services addressing issues related to domestic violence, substance abuse, and parenting. Although the father testified that he completed ten-week parenting and anger management classes, he failed to submit any proof; the judge found that the father had failed to comply with the department's service plan.
McNamara sent the father a letter with a service plan and blank assessment form. The father completed the assessment form and returned it to McNamara; the father also wrote letters to McNamara. McNamara sent the father bimonthly status updates on the children along with a picture of Adam. Piers refused to have his picture taken to be sent to the father.
The father testified at the hearing that he was responsible for taking care of the children daily when he lived with the mother; he also said that after he moved out he no longer provided care but “sent money and stuff for her.” The judge made no finding as to whether the father had provided physical care for the children; she specifically did not find credible the father's testimony that he sent the mother voluntary child support payments. The judge also noted that, while the father was aware that Piers has emotional issues and that Adam suffers from mental and physical health issues, he was not aware of the extent of either child's issues, including diagnoses, treatment, or medications. In particular, he was not aware that Adam was unable to walk. The father was aware that Piers refused to have contact with him, but asserted that his son “[had him] confused with someone else.”
The father proposed placement of the children with his mother (paternal grandmother) in Florida during his incarceration; the paternal grandmother has never met Piers and visited with Adam only once in November, 2011. After that visit, neither the paternal grandmother, nor any other paternal relatives, responded to or contacted the department to inquire about the children or pursue placement.
At the conclusion of the review and redetermination hearing, the judge found the father unfit to parent, his parental rights were terminated, and the children were found in need of care and protection; permanent custody of the children was granted to the department. In her adjudication and order issued December 17, 2012, the judge also found that the department's proposed permanency placement plan “of adoption or subsidized guardianship for [Piers] and subsidized guardianship for [Adam] with their present foster parents is in the best interest of both children.”
The department also requested that Florida investigate the paternal grandmother as a potential caretaker of the children under the Interstate Compact on the Placement of Children (ICPC). Florida “denied” the request because of the paternal grandmother's inability to read and write English and her limited command of the language.
Discussion. In petitioning for a review and redetermination hearing, the department “has an initial burden of production that must be met ... [and] must present some credible evidence that circumstances have changed since the initial determination [that the children are] in need of care and protection.” Care & Protection of Erin, 443 Mass. 567, 572 (2005). Once this burden is met, “the department must show, by clear and convincing evidence, that the parent remains unfit, that the [children] remain in need of care and protection, and that [their] best interests are served by removal or termination of parental custody.” Adoption of Melvin, 71 Mass.App.Ct. 706, 713 (2008).
On appeal, for the first time, the father argues that the review and redetermination hearing should not have been held because the department failed to overcome its burden of showing that the circumstances had changed since the father's initial unfitness adjudication on November 14, 2011. The department responds that the father waived his right to challenge the review and redetermination proceeding because he did not raise the issue before the judge. We agree. See Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 810 (2006). We also are satisfied that the department met its burden of showing a change in circumstances.
In McNamara's affidavit in support of the department's petition, he cited several changes since the initial adjudication, including Piers's refusal to have contact with the father or the father's extended family; notice of an additional term of house arrest to be served by the father after release from prison; the initiation and denial of an ICPC request to Florida for placement of the children with the paternal grandmother; and the paternal grandmother's failure to respond or contact the department regarding scheduling additional visits with the children or pursuing a placement plan.
The father next argues that the judge abused her discretion when she approved the department's proposed permanency plan because there was insufficient evidence to show that the foster parents were willing and able to adopt or assume guardianship of either child, and the plan was not in the best interests of the children. In addition, he argues that the judge erred in terminating the father's parental rights because permanency with kin does not require it, and it was error to base such termination on the father's continued incarceration.
We disagree. “After ascertaining unfitness, the judge must determine whether the [father]'s unfitness is such that it would be in the child[ren]'s best interests to end all legal relations between parent and child.” Adoption of Thea, 78 Mass.App.Ct. 818, 823 (2011), quoting from Adoption of Nancy, 443 Mass. 512, 515 (2005). In this case, the judge “articulate[d] specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that she has given the evidence close attention.” Adoption of Nancy, supra at 514–515. Her findings will not be disturbed “absent a showing that they are clearly erroneous.” Adoption of Don, 435 Mass. 158, 165 (2001).
The judge appropriately took into account the father's “character, temperament, conduct, and capacity to provide for the [children] in the same context with [each] child's particular needs, affections, and age.” Ibid., quoting from Adoption of Mary, 414 Mass. 705, 711 (1993). She noted that the “nature of the father's conviction will deprive the children of a stable home for many years to come.” See G.L. c. 210, § 3(xiii). The father's argument that the judge unfairly based her termination order solely on his incarceration fails for two reasons. First, the judge was entitled to consider the father's conviction of arson and aggravated assault, along with his resulting unavailability, in determining the best interests of the children. Second, the judge cited other valid reasons. We discern no error.
In determining whether the father's rights should be terminated, the judge must also consider the permanency plans proposed by the department and the parent.
See Adoption of Cadence, 81 Mass.App.Ct. 162, 167 (2012). “The statute [ G.L. c. 119, § 26( b )(4) ] ... provides a greater range of permanent placement options for children than simply limiting placement to adoption.” Adoption of Nancy, supra at 517.
A judge has the discretion to “dispense with the need for consent of any person named in section 2 of chapter 210 to the adoption, custody, guardianship or other disposition of the child ... if the court adjudicates the child to be in need of care and protection ... upon finding that the best interests of the child ... will be served thereby.” G.L. c. 119, § 26( b )(4), as amended by St.2008, c. 176, § 84.
At the time of the hearing, the children had been living in their current foster home for two and three years. The judge found that “[b]oth children are thriving in their placement and express a desire to remain living with their foster parents.” Neither child has a bond with the father or his extended family; Piers refuses to have any involvement with the father and refused to visit with the paternal grandmother. The judge found that “[b]oth children have bonded with their foster parents and would likely suffer devastating and irreparable damage if removed from this home and separated from each other.” “Stability in lives of children is important, particularly in a case that has continued for a long period of time.” Ibid. Finally, McNamara testified that Piers asked repeatedly when the court process would end, and “when [could he] actually start [his] life?”
While the father is correct that termination is not a prerequisite to the department's permanency plan, under all the circumstances of this case, “[w]e agree with the judge that these children deserve permanence and stability, which will be eased by termination of their father's rights.” Ibid.
Decrees affirmed.