Opinion
11-P-1437
02-10-2012
ADOPTION OF SAIF. [FN1]
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
After a two-day trial a judge of the Plymouth Juvenile Court found that there was sufficient evidence to warrant the termination of parental rights pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3. The sole issue on appeal is whether there were sufficient facts to support the judge's determination. We affirm.
The father did not appeal. He was represented by counsel, but did not appear at hearings or trial and did not assert his parental rights.
The findings. We summarize the key findings below, supplemented as necessary in the discussion which follows.
On May 31, 2009, the mother gave birth to Saif at home. She came to the attention of authorities when, after calling for advice and assistance after the birth, she failed to appear at her local hospital. Ultimately, she was transported to the Brockton Hospital together with Saif, some eleven hours after the birth, by the police. Saif was healthy and the mother was observed to be caring and attentive, though a bit 'odd.'
While in the hospital, the mother was visited by the hospital's social worker. She told inconsistent and ultimately false stories about her residency in Massachusetts and Florida, and her prenatal and medical care. She initially refused to sign the birth certificate and also refused a psychiatric consult. The hospital social worker and the police department each filed a G. L. c. 119, § 51A, report (51A report), and a social worker from the Department of Children and Families (DCF) investigated. During the course of the interview, in response to the mother's questioning, the DCF social worker informed the mother that she was free to leave but that Saif would have to remain during the DCF investigation. The mother then left mid-conversation, and discharged herself from the hospital. That day DCF filed a care and protection petition, and obtained temporary custody of Saif two days later. During that two-day interval the mother's other children, then resident in Massachusetts, were moved to Florida.
DCF workers met twice with the mother thereafter. She admitted to providing false information concerning the whereabouts of her other children. She told the social worker that she intended to stay in Massachusetts, but moved to Florida without telling either the father or DCF, and revoked all releases of information she had given to DCF.
The mother also made numerous other inconsistent and admittedly false statements to the hospital social worker and the DCF social workers concerning the circumstances of Saif's birth, who and where her children were, and her living accommodations both in Massachusetts and in Florida which we do not detail here. The judge also found that the mother's testimony at trial contradicted statements that she had made in the hospital, and concluded that the mother was attempting to evade DCF, both in moving to Florida and in failing to maintain contact. The judge was well within her discretion in taking these discrepancies into account in judging the overall credibility of the mother as a witness.
Before moving to Florida she saw Saif on two occasions. After leaving, she did not see him for nineteen months. When she returned for trial, she left after the first day and did not visit him while she was in Massachusetts. While she was in Florida, she did not send him any cards, books, letters, notes, or pictures, despite DCF's offer to provide them to Saif. DCF did send her pictures of Saif at her request. She also sent numerous electronic mail messages (e-mails) to DCF questioning whether Saif was getting adequate care. DCF responded to each of these e-mails in detail, assured her of Saif's well-being and repeatedly requesting information as to where she was living so that DCF and the Florida authorities could complete a home study.
Once the mother left, DCF attempted to coordinate services in Florida. These efforts were frustrated by the fact that the mother did not provide DCF or the court with a reliable address, and her mother (maternal grandmother) told DCF that she did not know where the mother was. In addition, there were significant difficulties in reaching her by telephone.
DCF's initial goal was reunification, and toward that end created two service plans. The judge found that compliance with the conditions set forth in the plans was reasonable, and that the mother agreed to comply but did not substantially comply with any of them.
The DCF assessment in Massachusetts terminated when the mother moved to Florida. At the request of DCF, the Florida authorities attempted on three separate occasions to complete a home study. Two home studies of the mother were closed, one because the mother stated that her house was being foreclosed upon, and a second because the mother declined a psychological examination to determine if there were any mental health needs. The mother claimed to have insufficient funds to obtain a parenting or psychological evaluation; however, her credited testimony showed she could afford it. A home study of the maternal grandmother was also closed for lack of response. The mother did attend an effective parenting class, which she left after three weeks, and claimed to have had a psychological evaluation. The judge did not credit the latter representation, since the evaluation had not been provided to DCF or the court. The mother participated in services in Florida for a total of only thirty days before terminating all participation.
In February of 2010 DCF changed its goals from reunification to adoption. After his discharge from the hospital, Saif had been placed with a foster family and developed a strong bond with his five year old foster sister. Both children were placed together in a preadoptive home that is culturally and ethnically a match for his background. The former foster parents are friends of the preadoptive parents and remain involved in the lives of both children. The adoptive parents are experienced parents with whom Saif has a strong bond and a close relationship. By contrast, the judge found that '[a]lthough Mother has not seen Saif since Saif was one month old, Mother believes Saif would know her immediately. . . . Mother has limited insight and only a superficial understanding of [Saif's] needs.'
2. Discussion. 'When deciding whether to terminate a parent's rights, the judge should evaluate whether the parent is 'able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the child[].' Adoption of Mary, 414 Mass. 705, 710 (1993).' Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). Taken together, the facts must establish parental unfitness by clear and convincing evidence. Care & Protection of Laura, 414 Mass. 788, 790 (1993). Subsidiary findings need only be proved by a fair preponderance of the evidence and will not be disturbed unless clearly erroneous. Adoption of Quentin, 424 Mass. 882, 886 (1997). We defer to the judge's determinations regarding the best interests of the child, and reverse only where there is a clear error of law or abuse of discretion. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
'Because the termination of parental rights is an 'extreme step,' . . . [a] judge [must] articulate 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, 443 Mass. 512, 514-515 (2005). The judge clearly gave the facts of this matter 'close attention', having issued a forty-five page decision containing eighty separate findings of fact and corresponding conclusions of law. The judge found that Saif had been effectively abandoned, if not in the legal sense, then 'in fact', and that his mother was unable to provide a stable home environment for him. See Adoption of Fran, 54 Mass. App. Ct. 455, 462-463 (2002). The judge carefully considered the factors 'enumerated in G. L. c. 210, § 3' in assessing parental unfitness, and found that there was 'clear and convincing evidence' that the mother was unfit. Adoption of Cadence, 81 Mass. App. Ct. at 167. She further made the requisite factual findings to support the conclusion that 'it would be in the child's best interests to end all legal relations between parent and child.' Ibid. quoting from Adoption of Nancy, supra at 515. We do not 'quarrel with the detailed findings of fact made by the trial judge and the credit and weight [s]he gave to the evidence that came before [her].' Adoption of Hugo, 428 Mass. at 224.
The mother does not challenge the adequacy of the permanency plan on appeal.
The mother contests the judge's conclusions, arguing that she was able to care for the child, as shown by her behavior in the hospital, that she did not abuse or neglect him, and that he had no special needs. The mother may well have been appropriate with her son during the brief time she was with him, but her decision to leave him in the hospital, coupled with her failure to return or communicate with him for a period of nineteen months, supports the finding of neglect. See Adoption of Fran, 54 Mass. App. Ct. at 462-463.
The mother also argues that she is being penalized for lacking funds with which to return to Massachusetts, and for leaving Massachusetts to care for her children in Florida. The mother says she took a job she found on the Internet as a nanny in Florida, because the pending 51A report would impede her ability to obtain similar work in Massachusetts. However, she lost her job as a nanny shortly after arriving in Florida, and was self-employed doing cleaning services work, web design work, and debt repair service work, all of which could have been done in Massachusetts. She submitted a financial statement, which the judge credited, that showed that she earned sufficient funds with which to return to visit. The mother had produced different financial records to the Florida authorities that suggested a far lower income, but the judge's resolution of the factual dispute is entitled to deference as it was not clearly erroneous. We will not reweigh the evidence. See Adoption of Quentin, 424 Mass. at 886.
The mother's failure to visit Saif in Massachusetts was one of several factors the judge relied upon. DCF also made a sustained effort to evaluate the mother in Florida and to pursue a reunification plan at her home in Florida. DCF initiated three separate requests under the Interstate Compact on the Placement of Children (ICPC). All three investigations were closed with unsatisfactory results due to unstable housing, lack of follow through, and/or the mother's lack of participation. The ICPC 'provides that the department may not send children in its custody to another State until the appropriate public authorities in the receiving State notify the department in writing that the proposed placement does not appear to be contrary to the interests of children. See St.1963, c. 452, § 1.' Adoption of Willow, 433 Mass. 636, 638 n.3 (2001). In the absence of a favorable report from Florida, DCF had no authority to place Saif with the mother in Florida. Ibid. 110 Code Mass. Regs. § 7.514 (2008).
Finally, the mother argues that the judge relied too much on the mother's failure to cooperate with authorities, and that evasiveness (or even dishonesty) does not equal unfitness. The ability to cooperate and follow a service plan is one factor to be considered. Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). In this case, the mother's failure to cooperate with DCF deprived DCF of the very information necessary to make a reunification plan work. It may be, as the mother argues, that her conduct was not wilful, and that she did the best she could, but without her cooperation or explanation, DCF was left without practical alternatives. There was no error.
Decree affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),