Opinion
23-P-534
07-11-2024
ADOPTION OF WYLEE.[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
The father appeals from a decree of a Juvenile Court judge finding the father unfit to parent Wylee, terminating his parental rights to the child, and approving the adoption plan of the Department of Children and Families (department). We affirm.
The mother signed an open adoption agreement, stipulation for judgment, posttermination agreement, and affidavit, which were accepted by a judge of the Juvenile Court. Accordingly, the judge entered a decree terminating the mother's parental rights. The mother is not a party to this appeal.
Background.
The father was twenty and the mother was fourteen, though she said she was seventeen, when they began messaging on an Internet application in March 2019. The mother suffers from a number of disorders and functioned at the level of a nine or ten year old. Around June 2019, the mother told the father her real age; she became pregnant that same month. The trial judge did not credit the father's testimony that he did not know the mother's real age until after they had engaged in sexual relations. In the year after the child was born, the mother reported that the father posted nude photographs of her and that he wanted to have another baby with her.
The department made a referral to the district attorney on October 9, 2019, well before trial began in June 2022. On the first day of trial, the judge asked the department to make a referral to the district attorney. As of trial, the referral was pending.
The child was removed from the mother after the mother ran away from her teen residential program with the child, who was about four months old, without infant formula. The mother stayed with the paternal grandmother for approximately twenty-four hours before the mother contacted the department, which took the child back into its custody and placed her in unrestricted foster care; the mother was committed to the Department of Youth Services.
The father admits that he avoided contact with the department until the child was twenty-one months old because he was concerned about his potential criminal exposure given the mother's age. He did eventually establish his paternity and complete a nurturing father's program. Between establishing paternity and June 2022, the month trial started, he had three visits with the child. The father first visited with the child when she was two years old.
The father is a high school graduate. At the time of trial, he was employed. He lived part-time with his mother, the paternal grandmother, sharing a room with his brother, and part-time with the paternal great-grandmother. The paternal grandmother's home already had five family members living there and it was not clear where the child could sleep. The father could not afford to live independently and would have had to rely on the paternal grandmother, his aunt, or great-grandmother for transportation. The father has a history of mental health issues; he has been diagnosed with anxiety, depression, and attention deficit hyperactivity disorder. The father previously was prescribed medication for his mental health issues, but he stopped taking the medication without talking to his mental health practitioner. The father uses marijuana for anxiety and attends counseling to address his mental health issues. Though the father had attended therapy and engaged in some services, he did not demonstrate meaningful growth. The father conceded unfitness at the time of trial and testified that he was open to getting to know the child for "at least a year" before taking custody.
The department explored placements with the paternal grandmother and paternal great-grandmother. The paternal grandmother's application to be a foster care kin placement was denied due to, among other factors, her aggression toward the department, the fact that she housed the mother and the child when the mother ran away from her residential program, and concerns about the grandmother's handling of other minors living in her home. The paternal great-grandmother did not indicate that she wanted a connection to the child and she never submitted an application for placement. The judge did not credit her claim that the department had not contacted her about the child.
Discussion.
1. The father's unfitness.
Although the father concedes that he was unfit at the time of trial, he contends that the evidence was insufficient to show that his unfitness would continue indefinitely. We disagree.
"After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. 512, 515 (2005). "In determining whether the best interests of the child[ ] will be served by issuing a decree dispensing with the need for consent [to adoption], a 'court shall consider the ability, capacity, fitness and readiness of the child's parents . . . and shall also consider the plan proposed by the department or other agency initiating the petition.'" Id., quoting G. L. c. 210, § 3 (c). "Consideration of future fitness, however, should never be made at the expense of the child, whose interest is paramount." Adoption of Inez, 428 Mass. 717, 723 (1999). See Care & Protection of Zeb, 489 Mass. 783, 788-789 (2022). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child," and will reverse only where there is a clear factual error, abuse of discretion, or other error of law. Adoption of Ilona, 459 Mass. 53, 59 (2011). On this record, we cannot say that the judge committed any legal error, nor do we discern any material factual error or abuse of discretion.
The circumstances leading to the child's conception and the father's continued desire to have a second child with the mother, still a minor at the time, had a predatory element and were appropriately considered by the trial judge. See Care & Protection of Leo, 38 Mass.App.Ct. 237, 244 (1995) (determination of parental fitness includes assessment of criminal record). Further, the judge was entitled to credit the testimony of the department when it expressed concerns regarding the suitability of the father's living situations, his marijuana use, and his engagement with mental health services. See Care & Protection of Jamison, 467 Mass. 269, 280 (2014) (appellate courts give substantial deference to trial judge's findings based on witness credibility and weight of evidence).
It is true that the father had three positive visits with the child, underwent home visits with the department, completed a nurturing father's program, and signed releases allowing the department to contact his therapist. However, the judge also considered evidence that the father's living situation raised concerns for the child's safety, that the father had not been able to comply with action plan tasks consistently, and that the father's judgment and character were in question. We perceive no abuse of discretion. See, e.g., Adoption of Nancy, 443 Mass. at 517-518 ("We agree with the judge that [this child] deserve[s] permanence and stability, which will be eased by termination of [her] father's rights").
2. Judicial bias.
The father claims that the judge's conduct at trial deprived the father of an impartial and fair hearing.
Generally, a party can demonstrate bias where a judge holds a negative disposition towards a party because of information gleaned from some extrajudicial source; however, opinions that a judge forms based on facts learned during judicial proceedings do not constitute bias. See Matter of a Care & Protection Summons, 437 Mass. 224, 239-240 (2002) (judge not biased against parents where parents could not demonstrate bias came from extrajudicial source); Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 525 (1997), quoting Liteky v. United States, 510 U.S. 540, 551 (1994) ("opinions held by judges as a result of what they learned in earlier proceedings" are not bias or prejudice).
The father argues that the judge was "consumed with the impact of [the father's] criminal exposure." It is true that on the first day of trial, the judge requested that the department make a referral to the district attorney's office on the basis that the father had committed statutory rape and warned the father of his constitutional right to remain silent. While it may have been better had the judge asked if the department had already made a referral or if the father was being prosecuted, the judge was permitted to evaluate the evidence of the father's shortcomings, including his criminal conduct and the adverse consequences that may flow from that conduct. See Care & Protection of Leo, 38 Mass.App.Ct. at 244.
We note, however, that "the waiver of the privilege against self-incrimination at a trial on the termination of parental rights does not result in a waiver of that privilege in a subsequent criminal trial. In any future criminal proceeding, with entirely different stakes and rights at issue, the [parent] may reassert the privilege against self-incrimination." Care & Protection of M.C., 479 Mass. 246, 261-262 (2018), S.C., 483 Mass. 444 (2019).
The father also argues that the judge's questioning of witnesses and unsolicited commentary were uneven and favored the department. Passing over the question whether the father preserved this issue, from our review of the trial record, we conclude that the judge did not display bias for or against a party. The judge's questioning of witnesses may have pushed the bounds of what is typical and created an unnecessary risk that his "impartiality might reasonably be questioned." Commonwealth v. Morgan RV Resorts, LLC, 84 Mass.App.Ct. 1, 10 n.16 (2013). Review of the transcript, however, reveals that the judge asked questions of witnesses presented by the department and the father and asked clarifying questions or inquired about information he thought necessary to decide the matter. Compare Adoption of Norbert, 83 Mass.App.Ct. 542, 545-546 (2013) (decrees terminating parental rights affirmed even though judge improperly "assumed an active role" and asked many more questions than did attorneys combined). Following the judge's questions, the judge instructed counsel to continue with their examinations. We are satisfied by the judge's thorough and well-supported findings and conclusions that his assessment of the evidence was evenhanded and fair.
Decree affirmed.
Green, C.J., Blake & Henry, JJ.
The panelists are listed in order of seniority.