Opinion
19-P-1450
10-26-2020
ADOPTION OF ANDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in Juvenile Court, a judge found the mother and father unfit to parent the child, entered decrees terminating their parental rights, and approved the plan of adoption put forward by the Department of Children and Families (department). The parents do not contest the finding of unfitness, but argue that termination of their parental rights was not in the child's best interests. They also argue that the judge abused his discretion when he ordered only one posttermination and postadoption visit per year with the child. We affirm.
Background. Since the mother and father concede that they are currently unfit to care for the child and do not claim that any of the judge's findings are clearly erroneous, we only briefly summarize the judge's detailed findings of fact. See Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012) (finding of unfitness must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence"). After the birth of the child in January 2013, the family lived with the maternal grandmother. The department first became involved with the family in April 2013 after the father assaulted the mother. The mother obtained a restraining order against the father.
During the first two and one-half years of the child's life, the mother moved frequently between the maternal grandmother's house, the paternal grandmother's house, and the home of another relative, as well as spending time in a homeless shelter. In spite of numerous incidents of domestic violence and restraining order violations by the father, the mother refused counselling and did not admit that she was a victim of domestic violence. In April 2014, it was reported to the department that the mother was "nodding off" while in court, "which raised a concern that [she] may have been under the influence." In June 2015, following an order of the Probate and Family Court, the mother tested positive for morphine, heroin, oxycodone, and marijuana, and the department removed the child from the mother's custody. The judge found that after the child's removal, the mother's compliance with her service plans was inconsistent -- she failed to commit to treatment for her substance abuse, her housing remained unstable, she failed to engage in domestic violence counselling, and she had unresolved criminal matters. The judge further found that the mother admitted to using heroin three months before trial, and that as of trial there was evidence that she was still addicted to opiates and she was not in treatment for substance abuse.
The paternal grandmother had filed a petition for guardianship of the child in the Probate and Family Court, which required the mother to take a drug test.
The father admitted that he had an issue with alcohol and blamed alcohol use for at least one of the incidents of domestic violence against the mother. After the child was removed by the department, the father inconsistently attended or failed to participate in substance abuse treatment, domestic violence counselling, anger management classes, and a psychological evaluation and therapy, all of which were required by his service plans. He was arrested in June 2016, and pleaded guilty to armed robbery, armed carjacking, and possession of a firearm without a license; he remained incarcerated at the time of trial. The judge described as "minimal[ ]" the father's engagement in required services, and noted that although the father took classes while incarcerated to address his violent and criminal behavior, he was unable to establish how he benefited from such classes.
Despite the struggles, both the mother and the father regularly attended their scheduled visits with the child, and the judge termed these contacts "significant and meaningful." The mother visited with the child biweekly for several years, and she engaged well with him and tended to his needs. In March of 2018, however, six months before trial, the mother's visits were reduced to once a month because she had relapsed.
Discussion. 1. Termination of parental rights. Termination of parental rights involves a two-step analysis. The judge must determine first by clear and convincing evidence that a parent is unfit, and second that termination of parental rights is in the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 59 (2011). We are concerned here only with the second step of the inquiry, as unfitness is not contested. In deciding the best interests of a child, "the court shall consider the ability, capacity, fitness and readiness of the child's parents ... to assume parental responsibility." G. L. c. 210, § 3 (c ). See Adoption of Nancy, 443 Mass. 512, 515-516 (2005). "[I]t is appropriate for a judge to consider whether, on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary." Adoption of Carlos, 413 Mass. 339, 350 (1992). The judge's findings are entitled to substantial deference, and we review a decision to terminate parental rights for an 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).
As noted, the judge found that "[b]oth parents maintained significant and meaningful contact with the child while he was in [the department's] custody," and that during visits, "the child interacted well with his parents." However, the judge also found that "there [was] no expectation that the unfitness of both parents may be remedied in the foreseeable future."
The mother argues that termination of her parental rights was not in the child's best interests because the child was healthy and bonded to her, and looked forward to visits with her. The father also argues that termination of his parental rights was not in the child's best interests, relying on his consistent contact with the child, including regular visits during his incarceration, and regular telephone calls. While it is commendable that the parents maintained a bond with the child, and were consistent in their visits with him, that alone does not outweigh the evidence of their continuing unfitness. See Adoption of Bianca, 91 Mass. App. Ct. 428, 432 (2017) (not inappropriate to terminate parent's rights in spite of "strong bond" between parent and child). The mother admitted that she used heroin three months before trial, and the judge found that there was "strong evidence" that she was still addicted to opiates. The judge concluded that the mother's "drug use, housing instability, unaddressed issues of involvement with a domestically violent partner, and unaddressed criminal charges together clearly and convincingly establish that [the] mother's unfitness to parent [the child] will continue into the indefinite future." As to the father, the judge concluded that the father's unfitness also would continue into the indefinite future, citing among other things the father's lack of insight into and his refusal to treat his "violent and criminal history," his denial of domestic violence toward the mother, and his lack of substance abuse treatment.
The judge also drew a negative inference from the mother's absence on the second and last day of trial, and her resulting failure to testify. See Custody of Two Minors, 396 Mass. 610, 616 (1986).
The mother relies on the child's proposed guardianship plan in arguing that "the child opposed termination of parental rights and adoption"; the father relies on the same plan to argue that the judge had "other, better options" than terminating his parental rights, emphasizing that the child's counsel stated during trial that the child "want[ed] to see" the father. "The wishes of the child at the center of the custody determination must be considered, but are not dispositive." Adoption of Garret, 92 Mass. App. Ct. 664, 676 (2018). The termination of parental rights is a necessary prerequisite to adoption, and the findings here support the judge's conclusion as to the best course for the child. We see no error in the termination of the parental rights.
During the trial, the child proposed a plan of guardianship by the maternal grandmother. The department's plan was adoption by the paternal grandfather and his wife (collectively, paternal grandfather). The judge did not find the maternal grandmother credible in certain aspects of her testimony, and found that the department's plan was in the best interests of the child. On appeal, neither the parents nor the child contest the placement of the child with the paternal grandfather. The mother argues that her parental rights should not have been terminated because the child did not have a bond with the paternal grandfather (as to which there was no evidence and as to which we do not opine), but that argument is not persuasive in light of the evidence of the mother's unfitness. The judge noted that the child's transition to living with the paternal grandfather was recent, and that there was "no indication that the child had difficulty in that transition."
We note that the child was not quite six years old at the time of the trial. We also note that on appeal, the child supports the termination of parental rights and his placement with the paternal grandfather.
The judge considered the factors listed in G. L. c. 210, § 3 (c ), and found factors (ii), (iii), (iv), (vi), (viii), (ix), and (xii) applicable to this case, making the required findings.
2. Visitation. "An order of visitation between a child and a parent whose parental rights have been terminated is authorized where such visitation is in the child's best interest," and is reviewed for an abuse of discretion (quotation and citation omitted). Adoption of Oren, 96 Mass. App. Ct. 842, 848 (2020). In making such a visitation order, the judge should consider the relationship and emotional bond between the child and the parents. See Adoption of Vito, 431 Mass. 550, 562 (2000). The judge should also consider the child's relationship with the preadoptive parents, and whether visitation decisions should be left to the judgment of the preadoptive parents. See Adoption of Ilona, 459 Mass. at 64-66.
Here, the judge found that an order of posttermination and postadoption visitation was in the child's best interests, and ordered one two-hour visit per year between each parent and the child. At the time of trial, each parent had monthly visits with the child, which went well. The parents argue that the judge abused his discretion in ordering only one visit per year in light of the undisputed bond that existed between them and the child, and their history of successful and consistent visits.
A judge must balance the benefit of an order of visitation with the intrusion that such an order imposes on adoptive parents, "who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass. at 64. Although the judge's order here reduced the number of visits the parents had been enjoying with the child, the judge also specified that "[n]othing contained herein shall be deemed to preclude further contact with the child by [the parents] as the custodian or adoptive parent(s) may deem appropriate in the future." In addition, the paternal grandfather and his wife stated during the home study to determine their fitness as a placement for the child that they were "open to birth parent contact if it is determined safe and appropriate." Finally, the child on appeal argues that the visitation order "was appropriate and served [his] best interests." In these circumstances, the judge did not abuse his discretion in his order of visitation; his "decision did not ‘fall[ ] outside the range of reasonable alternatives.’ " Adoption of Garret, 92 Mass. App. Ct. at 677, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Contrast Adoption of Oren, 96 Mass. App. Ct. at 849-850 (case remanded regarding postadoption visitation, where judge recognized bond existed between mother and child but failed to enter specific order of visitation and made no findings whether visitation would be in child's best interests).
We reiterate that "[t]he purpose of [posttermination and postadoption] contact is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Adoption of Vito, 431 Mass. at 564-565.
Decrees affirmed.