Opinion
20-P-1332
11-09-2021
ADOPTION OF ZACK.[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 issued by a judge of the Juvenile Court terminating his parental rights with respect to his son, Zack. On appeal, the father argues that (1) the termination of his parental rights was not in the child's best interests because the judge's findings of fact did not clearly and convincingly support the father's unfitness to parent the child, (2) the judge erred in his assessment of the mother's credibility, and (3) the judge erred by issuing his findings of fact and conclusions of law in an untimely manner. We affirm.
Discussion.
1. Parental unfitness.
The father claims that the judge's findings of fact did not clearly and convincingly support his unfitness to parent the child. We disagree. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011) . "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 reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id.
On the evening of May 5, 2017, the mother was returning home from a friend's house, when the father called her and told her the child, who was approximately three weeks old, was unresponsive. The mother told him to immediately call an ambulance, but he did not do so. When the mother arrived home, she observed the child to be unresponsive and "blue." It was not until after the mother once again yelled at the father to call an ambulance that the father took action to obtain medical treatment for the child. The child was then quickly rushed to the hospital, and was diagnosed with severe injuries. Many of these injuries still affected him at the time of trial, as he continued to suffer from significant vision impairment, concerns of deafness, cognitive impairment, and difficulty with mobility.
The father also stated that he found the child to be "limp and lifeless" at a time approximately one hour before he first called the mother to notify her that the child was unresponsive.
The judge found the father's failure to promptly seek medical attention for the child demonstrated an instance of particularly severe medical neglect. As properly emphasized by the judge, the child has the right to be "safe and free from the effects of the grievous shortcomings" of the father. In Adoption of Zoltan, 71 Mass.App.Ct. 185, 189-190 (2008), we concluded that where there existed no evidence of a specific act or omission by which a mother could have been faulted for her child's isolated head injury, there was insufficient evidence of parental unfitness, and that termination was not in the child's best interests. Here, unlike in Zoltan, such an omission by the father did exist, namely his failure to promptly seek medical attention for the child, who appeared unresponsive and "blue." Cf. id. As such, we see no error in the judge's determination that this instance of severe medical neglect supported the father's parental unfitness.
The child has significant and demanding needs as a result of the injuries suffered on May 5, 2017. "It is in the best interests of [the child] to have parents who can and who will, on a consistent long-term basis, assume all parental responsibilities and who can provide [him] with the stable and continuous care and nurturing [he] needs and will continue to need as a child" (quotation and citation omitted). Adoption of Gwendolyn, 29 Mass.App.Ct. 130, 136 (1990).
The father also claims that where there was insufficient evidence that he was the perpetrator of the child's physical abuse, the evidence was insufficient to establish his parental unfitness. However, there was at least some evidence the father contributed to the child's injuries, as the Department of Children and Families (DCF) established that the injuries were "non-accidental." In fact, the judge had explicit concerns that the father inflicted the child's severe injuries, given the father's statements that on this evening that he "may have shaken the baby too hard," "may have lost control," and may have injured the child's leg when performing "tummy exercises." Nonetheless, there need not be such an explicit determination that the father was the perpetrator of the physical abuse, where the father has been deemed unfit due to his inability to protect the child from future harm and abuse. See Adoption of Lorna, 46 Mass.App.Ct. 134, 140 (1999).
Moreover, contrary to the father's argument, the judge did not base his decision solely on the father's failure to seek prompt medical attention. The judge also found that the father admitted he had difficulty controlling his anger at times, resulting in destructive behavior and the need to use substances to deal with his stress. On appeal, the father claims that he is merely a social drinker, and that the judge erred in finding that the father's use of alcohol and marijuana negatively affected his ability to parent the child. However, the judge's findings that the father was drinking alcohol and smoking marijuana on the evening of the injury are well supported by the record, and as such, are not clearly erroneous. See Adoption of Cecily, 83 Mass.App.Ct. 719, 726 (2013). Therefore, where the judge found the father used substances on the evening the child received severe physical injuries, during which time the father repeatedly "failed to promptly seek medical attention for an obviously medically distressed baby," we see no error in the judge's consideration of the father's substance use when evaluating his parental fitness. Cf. Adoption of Zoltan, 71 Mass.App.Ct. at 190 (mother's prior drug use did not impact parental fitness where there existed no evidence of drug use on night of child's head injury).
Moreover, despite repeated requests, the father also refused to participate in a substance abuse evaluation, as he believed that he did not need one. The father's refusal to engage in a substance abuse evaluation mirrors his failure to comply with what he described to be "unjustified service tasks." Such service plan tasks included parenting classes that would have educated the father on the harmful effects of physical abuse on a child. Where the service tasks directly aimed at remedying the father's parental deficiencies, we also see no error in the judge considering the father's refusal to maintain his service plan when evaluating his parental fitness. See Adoption of Rhona, 63 Mass.App.Ct. 117, 126 (2005) . Cf. Adoption of Yale, 65 Mass.App.Ct. 236, 242 (2005) (less significance in parent's failure to comply with service plan where service tasks did not relate to parent's clearly identified deficiencies).
The father argues he does not suffer from a substance abuse problem, but it is the results of the evaluation, not the father's own statements, that would be the proper basis to make such a determination.
The father alleged he had insurance issues that prevented him from engaging in DCF services, but he did not supply any evidence in support of this allegation.
At bottom, given our substantial deference to the judge's decision, coupled with evidence of the father's severe medical neglect of the child, bouts of anger, substance use, and failure to comply with his service plan, we see no error in the judge's decision that the father was unfit and that termination of his parental rights was in the child's best interests. See Adoption of Ilona, 459 Mass. at 59.
2. Mother's credibility.
The father argues the judge failed to consider the mother's potential bias against him when determining the credibility of the mother's testimony about the father being drunk on the night the child was injured. We disagree.
When the mother returned home on May 5, 2017, the father seemed "off," and the mother testified that although he was not drinking earlier that evening when she left, she nevertheless knew he was drunk when she returned. The father contends that the mother fabricated the notion that he was drunk, so as to highlight the father's "nonparental traits." Because the mother "quickly" moved on from her relationship with the father, he alleges that she "had good reasons for diverting any blame for [the child's] injuries to [him]." The father argues that where this alleged bias was not explicitly addressed by the judge, the "[m]other's trial testimony undoubtedly colored the trial judge's perception of [the father.]"
Contrary to the father's claim, the judge did not blindly credit the mother's entire trial testimony. More specifically, he chose not to credit the mother's testimony that the father was drunk on the night of the child's injuries, and he declined to render a finding about the father's "degree of intoxication." The judge found only that the father consumed "some alcohol" on the evening of May 5, 2017. Where such a finding is certainly supported by the record, including by the father's own admission that he drank "one or two nips" that evening, we disagree that the mother's trial testimony "undoubtedly" distorted the judge's perception of the father.
Contrary to the arguments made in the father's brief, the judge also specifically found that the decision to have the father ride in the ambulance to the hospital that evening, rather than drive the family vehicle, was not "based on any determination that [the father] was too impaired to drive."
On appeal, the judge's credibility determinations are entitled to substantial deference. See Adoption of Querida, 94 Mass.App.Ct. 771, 778 (2019). The judge is in a "superior position to evaluate witness credibility." Adoption of Cadence, 81 Mass.App.Ct. 162, 166 (2012). Of course, the judge may not ignore "[t]roublesome facts" (citation omitted). Adoption of Abby, 62 Mass.App.Ct. 816, 817 (2005). But where the judge heard the mother's testimony that the father was drunk on the evening of the child's injuries, and then explicitly declined to render a finding on the father's degree of intoxication, we are satisfied that the judge gave careful consideration to the mother's testimony, and did not, as argued by the father, blindly credit such testimony in its entirety without concern for potential bias. See Adoption of Nancy, 443 Mass. 512, 514-515 (2005) (no error in credibility determination where judge gave close attention to evidence). As such, we will not disturb the judge's credibility determination where the father's arguments on appeal "amount to no more than dissatisfaction with the judge's weighing of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
3. Timeliness of findings of fact and conclusions of law.
The father also argues that the judge's failure to issue findings of fact and conclusions of law within ninety days of the close of evidence constitutes an extraordinary delay, one that warrants reversal. We disagree.
Juvenile Court Standing Order 2-18, § III(C), provides that the decision and written findings are to issue within ninety days of the close of evidence. However, the mere fact that a judge issues such findings beyond the ninety-day period does not render the findings to be per se unreliable. See Adoption of Rhona, 57 Mass.App.Ct. 479, 486 (2003) ("We establish no per se rule or presumption concerning the length of time after which the accuracy of a judge's findings may be called into question").
Here, the trial concluded on August 28, 2019, and the judge issued his findings of fact and conclusions of law approximately six months later, on February 28, 2020. Where the father has failed to demonstrate prejudice from the judge's delay, beyond mere speculation, there was no error. See Adoption of Don, 435 Mass. 158, 170 (2001) (no reversible error where parents failed to show prejudice from delay in proceedings).
In his brief, the father claims that the trial commenced on March 6, 2019, and concluded on April 24, 2019. However, that is not the case. The trial did commence on March 6, 2019, and did initially conclude on April 24, 2019. However, the judge reopened the evidence to allow recordings of police interviews to be added to the record. Accordingly, the trial ultimately did not conclude until August 28, 2019.
Decree affirmed.
The panelists are listed in order of seniority.