Opinion
No. 12–P–5.
2012-07-23
ADOPTION OF UNITA (and a companion case ).
By the Court (KANTROWITZ, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Juvenile Court judge issued a decree finding two children in need of care and protection and terminating the mother's and father's parental rights. On the father's appeal, we affirm.
Background. DCF gains custody. At the time of the termination trial, Unita was eight years old and her sister Jane was six years old. They were born in Tortola, in the British Virgin Islands (BVI), where the father lived at the time. In 2004, when Jane was at most only a few months old and Unita was approximately two years old, the mother moved back to the United States with her daughters. The following year, the Department of Children and Families (DCF) (then known as the Department of Social Services) received a report that the mother was neglecting them. In May of 2008, DCF filed a petition for their care and protection based on continued allegations of neglect by the mother (apparently related to her acknowledged mental illness). DCF gained temporary custody of the girls at that time, and at a July, 2009, hearing on permanent custody, the mother stipulated that the children were in need of care and protection, agreeing to their placement into the permanent custody of DCF. Nevertheless, DCF's goal remained reunification until February of 2010. Because the mother eventually surrendered her parental rights, and has not appealed from the decrees terminating those rights, little purpose would be served by repeating the judge's findings with respect to her unfitness.
Jane was born in May, 2004, and Unita was born in May, 2002. The record does not reflect precisely when the mother moved back to the United States in 2004.
The father. When the mother returned to the United States, her relationship with the father ended and he remained in Tortola (although it appears that for some period thereafter he had a mailing address in nearby St. John). Since that time, the father's contact with the girls has been sporadic. On two occasions between 2006 and 2008, the girls visited the father in Tortola, once for two weeks and the other time for three days. The father has never visited them in the United States, and he in fact has been unable to secure a visa to travel here. During the period when the girls lived in the United States with their mother, the father had some level of phone contact with the girls. He also paid the mother some child support prior to DCF's gaining custody.
The father reported to the court investigator in July of 2008 that his problem with securing a visa had to do with unpaid child support. At trial DCF sought to introduce evidence of an alternative explanation for the father's visa problems, but the judge excluded that evidence. At oral argument, father's counsel offered that his visa problems stem from the relevant Federal agency's concern that people in the father's position who arrive on a visa will then seek to stay in the United States.
The mother told the court investigator in 2008 that the father paid “very little child support” and had not paid any in months. The father told the investigator that he paid for the children to visit him in Tortola and that he had regularly paid the mother $575 per month in child support. However, he also made other statements acknowledging that he had not met his support allegations. See note 3, supra. The judge did not resolve the extent to which the father had met his support obligations, and neither his decision nor ours turns on that issue.
As of May of 2008, when DCF gained temporary custody, the “only information” the agency had regarding the father was that he lived in Tortola. Nevertheless, two months later, a court investigator was able to locate the father and interviewed him by telephone. The father told the investigator that he wanted custody of the girls and that, after having spoken with a social worker, he understood that he needed a two-bedroom apartment before his taking custody could be considered. He also told the investigator that he was in the process of getting a visa so that he could come to the United States. As evidenced by their own interview with the court investigator, the girls were at this point plainly aware of their father, and they stated that they liked visiting him and “would like to live in Tortola.”
In January of 2009, DCF learned that the relevant BVI agency had opened a home study for the father. Prompted by the girls' request to speak with him, that agency reached out to the father in an effort to have him reconnect with the girls. The father was to contact the children once a week. Also in January of 2009, the judge appointed a lawyer to represent the father in these proceedings.
Service of process. As of July of 2009, the father still had not formally been served. Although DCF's goal at that time remained reunification, the judge made it clear that he was not going to proceed against the father unless the father was served in person or by publication. DCF then orally moved for service by publication, to which the father's counsel responded “no objection.” In August and September of 2009, DCF published a formal notice of the pending proceedings in a local Tortolan newspaper. The father in fact saw that notice.
The October 2009 care and protection hearing. At a hearing held on October 8, 2009, DCF reported that publication had been completed. The father's counsel again raised no objection to service by publication. With regard to the merits, the father's counsel acknowledged that his client was unable to parent the girls at that time, based at least in part on the father's inability to secure either a visa (which would have allowed him to travel to the United States) or a favorable home study (which would have removed an obstacle to DCF's sending the children to Tortola). With the father having made such concessions, the judge granted permanent custody of the children to DCF.
The termination trial. DCF changed its goal to adoption by recruitment in February of 2010, and the judge approved that change in the following month. A termination trial was eventually held on August 26, 2010. Although his attorney participated in the trial, the father himself (who, as noted, has been unable to secure a visa) did not. In addition, the information DCF was able to provide about the father was somewhat limited.
The service plans that DCF developed for the father (covering six-month terms beginning in 2009) all emphasized the need for him to maintain regular phone contact with the girls, to maintain regular phone or e-mail contact with the DCF social worker, and to cooperate with the home study and other assessment tasks. Although it is not clear whether the father received written copies of some of these plans, the judge found that the DCF social worker informed him of the required tasks by e-mail and telephone.
The father placed occasional phone calls to the girls at their foster parents', often calling after the girls went to bed. There are strong indications in the record that the father's cooperation with the home study process was significantly less than ideal. While it is true that the BVI agency eventually had enough information to complete the second of two such studies, it denied the father the requested approval. It appears that the agency had some concerns with regard to the size or condition of the father's home. However, the specific reasons for the denial of the home study are unclear, because DCF never received any official written report.
The girls' situation. The girls' first experiences with foster care were not easy. They exhibited serious behavioral issues, and in rapid succession they were repeatedly transferred from one living situation to another. This situation had stabilized by the time of trial. Specifically, having received extensive therapy, the girls were no longer exhibiting behavioral problems, and they were placed with a foster family that “was meeting both of the girls' needs and were great advocates for them.” As of August, 2010, the girls had expressed an interest in adoption and they had begun pressing the assigned adoption worker when a home would be identified for them. That same month, DCF in fact identified a “potential match” for them.
Discussion. Service. There is no merit to the father's argument that inadequate service requires us to vacate the decree. Service by publication is a means specifically allowed by the rules. Juvenile Court Rule 3.A.1(g). To the extent that the father argues that DCF did not make adequate efforts to serve him in person before resorting to publication, such arguments were waived long before the father raised them at trial. Moreover, as the judge found (based on ample evidence), the father in fact saw the publication. That fact removes the reason for concern about the adequacy of this mode of service. Finally, we note that the father has been aware of this proceeding since at least August of 2008, and has been represented by counsel in it since January of 2009. We agree with the judge that the father is unable to show that any notice problems deprived him of a meaningful opportunity to participate.
Nor is there merit to the father's argument that the decrees must be vacated because of inadequate notice to the BVI embassy. Putting aside the fact that some notice was provided, such notice requirements were for the benefit of the children, not him (as the father acknowledges in his reply brief). Moreover, the father is not himself a citizen of the BVI (nor even at this time a resident).
Merits. The thrust of the father's argument on the merits is not that the judge's individual subsidiary findings are clearly erroneous, but that collectively these findings do not add up to the clear and convincing proof necessary to justify termination of his rights. See Adoption of Leland, 65 Mass.App.Ct. 580, 584–585 (2006). In this regard, the father highlights the relative scarcity of information about him in the record, and he argues that the judge ruled against him only through improperly placing the burden on him to prove that he was fit.
The father does assert that the judge's finding that the children had bonded with their foster parents is unsupported by any evidence and that, in any event, DCF's plan was to transfer the children to a preadoptive home. The judge's decision does not depend on this finding.
There is some force to the father's argument that the information about him in the record is frustratingly thin, and that DCF might have been able to do more to augment the record. However, it is also true that much of the problem stems from practical difficulties inherent in the unusual circumstances presented. Moreover, while the father is correct that the burden of proof never switches to him, see Adoption of Lorna, 46 Mass.App.Ct. 134, 139 (1999), this does not mean that the judge could not take into account the limited nature of the father's efforts to fulfill an active role as parent.
At the hearing held on October 8, 2009, the father (through counsel) freely acknowledged that he was not in a position to parent his children at that time. That acknowledgment by itself cannot establish the father's unfitness at the time of trial. See Adoption of Melvin, 71 Mass.App.Ct. 706, 713 (2008). But the question remains: what circumstances changed between the time this acknowledgement was made and trial? The only significant development that occurred was the father's continued inability to secure a favorable home study from the relevant BVI agency. Although it certainly would have been preferable to have an official explanation on the record as to why the father could not secure such approval, the fact remains that his inability to do so stood as an obstacle to DCF's sending the children to Tortola (regardless of the grounds for the agency's denial).
At oral argument, father's counsel reported that his client no longer lives in Tortola but instead has returned to his native St. Vincent. As a result, there would be little served from a remand targeted at securing information from the BVI agency.
At oral argument, we pressed the father's counsel on whether his client is now in any better position to parent his children than he was in 2009 (when the father acknowledged he was not in a position to do so). He was unable to provide a satisfactory response. It is apparent that the father is not so much actively pressing for custody as he is seeking to prevent the termination of his parental rights. As we have recognized, “[u]nfitness does not mandate a decree of termination.” Adoption of Imelda, 72 Mass.App.Ct. 354, 360 (2008). But at the same time, it is unfair to leave the children in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005) (“it is only fair to the children to say, at some point, ‘enough’ ”). With the passage of time, it becomes increasingly important that they obtain a stable, safe, and nurturing home environment. The children have not lived in the same country as the father since 2004 (at which time Jane was at most a few months old and Unita only about two years old), and they have seen the father in person for only a few days since then (and not at all since at least May of 2008). They have spoken with him by telephone only sporadically since 2008, and from November, 2009, until the trial in August of the following year, the father made only two phone calls to the children. As the judge recognized, the evidence at trial was that the children had moved on with their lives. “While courts protect the rights of parents, ‘the parents' rights are secondary to the child's best interests and ... the proper focus of termination proceedings is the welfare of the child.’ “ Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting from Adoption of Gregory, 434 Mass. 117, 121 (2001). “Although [p]arents are the biological guardians of their minor child and entitled to its custody[, t]heir right will not be enforced to the detriment of the child.” Guardianship of Clyde, 44 Mass.App.Ct. 767, 772 (1998), quoting from Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 588 (1981). Weighing all of the factors considered by the judge, we discern no error in his determination that the girls' best interests lie in the termination of the father's parental rights.
Although we do not rely on this posttrial development, we note that DCF and the children's attorney reported at oral argument that the children are now living (and thriving) with the family that had been identified at trial as a “potential match” for adopting them.
Two additional observations are in order. First, the father has shown evident affection toward his daughters, and none of the judge's findings negate this. Despite the moral overtones of the statutory term “unfit,” the judge's decision was not a moral judgment or a determination that the father does not love his daughters. Second, the termination of the father's parental rights does not necessarily mean that he cannot play a meaningful role in the girls' lives. It appears that the father desires such a role, and the judge's findings reflect that the identified preadoptive family “was willing to maintain connections with the girl's extended family members as well as their culture.” Although we do not disturb the judge's findings regarding the childrens' best interests as to continued contact with the father, this should not be interpreted as precluding DCF (which for the moment retains custody of the children) and any adoptive parent from determining that the children might benefit from some form of relationship with him.
At oral argument, father's counsel reported that there had been posttrial negotiations between him and DCF over continued contact between his client and the girls, but that negotiations had broken down over specific terms, such as frequency of contact.
Decrees affirmed.