Opinion
19-P-74
06-23-2020
CARE & PROTECTION OF QWINNIA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The father appeals from a judgment of the Juvenile Court wherein the judge adjudicated the child in need of care and protection, found the father unfit to parent her, and granted permanent guardianship to her maternal aunt and uncle.
Both the mother and the child oppose the father's appeal. They argue that the judge correctly found that the father was unfit to parent the child and that her best interests were served by guardianship in her maternal aunt and uncle.
Background. The child was born in January, 2013. The Department of Children and Families (department) immediately became involved with the family because the child was born addicted to narcotics. Over the next twenty months, the department received numerous allegations of neglect of the child, most relating to the mother's substance abuse or altercations between the parents. While the mother and father lived together for the first year of the child's life, their relationship was tumultuous and it ended in January of 2014. After they separated, the father and mother shared physical custody of the child.
By November of 2014, a total of twenty-one G. L. c. 119, § 51A, reports had been filed and six had been screened in for a department response.
On September 29, 2014, the department received a report of the mother neglecting the twenty month old child by leaving her unattended at the hotel at which they were staying and telling other hotel residents to watch her. By the time a department worker arrived at the hotel, the child had ended up in the care of the hotel housekeeper. The department filed a care and protection petition on behalf of the child and temporarily removed her from the mother's custody. The child was returned to the mother but the mother violated the conditions of this custody arrangement; the department removed the child from the home on November 19, 2014.
The father was incarcerated when the department removed the child from her mother's care. In July of 2014, while on probation for a 2011 assault and battery conviction, the father was arrested for his second operating under the influence (OUI) offense; he was subsequently convicted and sentenced to a 150-day commitment. With the father unable to care for the child upon her removal, the department placed her with the maternal aunt and uncle.
On January 19, 2016, the judge commenced a hearing on the merits on the department's care and protection petition. Both the mother and the father stipulated to their unfitness on January 20, 2016; the judge found the parents to be unfit and the child to be in need of care and protection. The judge approved the department's permanency plan of guardianship on September 21, 2016, and shortly thereafter the maternal aunt and uncle filed their petition for permanent guardianship.
The father filed a motion for a review and redetermination hearing on his fitness to parent the child on December 6, 2016. The judge consolidated the care and protection proceedings, including the father's review and redetermination hearing, and the petition for permanent guardianship. The hearing proceeded as to the father's fitness on March 28, 2017, and continued until April 26, 2017. At the time of the hearing, the child was four years old and had been living as part of her maternal aunt's and uncle's family since she was twenty-two months old. The child was participating in supervised visits with the father every other week at the time of the hearing but she had not lived with him since 2014.
The mother did not join the father in his motion for review and redetermination and consented to the maternal aunt's and uncle's guardianship.
The judge ultimately concluded that the child remained in need of care and protection. The judge found that the father was unfit, though she did not terminate his parental rights, and she granted the maternal aunt's and uncle's petition for permanent guardianship. She also ordered continued visitation so long as visitation remained in "the Child's best interests as determined by the Department of Children and Families when the Child is still in their custody, or as determined by her guardians when placed in their legal custody, or by agreement between the parties."
The father now appeals, arguing that the judge 1) erred in finding the father to be unfit because clear and convincing evidence does not support her conclusion, and 2) abused her discretion in granting the maternal aunt's and uncle's petition for permanent guardianship.
Discussion. 1. The judge's finding of unfitness. While parents have a fundamental liberty interest in the custody of their children, "that interest is not absolute and the State may intervene if a parent is unfit." Care & Protection of Erin, 443 Mass. 567, 570 (2005). Finding that a parent is unfit requires finding "more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent." Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). The judge must find that the parent instead suffers from "grievous shortcomings . . . that would put the child's welfare . . . much at hazard." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). See Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009).
A parent found to be unfit in a care and protection proceeding, who has not had his parental rights terminated, may seek a hearing for review and redetermination of that finding pursuant to G. L. c. 119, § 26. Though in such a hearing "the judge does not start with a blank slate, but builds on findings established in the preceding stages," the department still must prove by clear and convincing evidence that the parent is currently unfit to parent the child. Care & Protection of Erin, 443 Mass. at 570, 572.
A parent petitioning for review and redetermination must produce "some credible evidence that circumstances have changed since the initial determination such that the child may no longer be in need of care and protection," but the department still bears the ultimate burden of proving that the parent is unfit. Care & Protection of Erin, 443 Mass. at 572. Here the judge found that the department met its burden.
Here, the judge considered several factors, including the father's history of domestic violence, his substance abuse and alcohol issues, his prior convictions, and his mental health status in reaching her determination that the father remained unfit to care for the child. The father argues on appeal that the judge's conclusion that each of these factors supported a finding of unfitness was in error and that the remaining evidence was insufficient to clearly and convincingly establish his unfitness. We address his arguments as to each of these factors in turn.
a. Domestic violence. The father had a history of domestic violence with the mother. During her testimony, the mother recounted three occasions prior to the child's birth in 2013 on which the father became violent with her. On one occasion, the father gave the mother a black eye and she called the police. The second incident occurred in October of 2011, when during an argument the father pushed the mother down the stairs and strangled her. She again called the police and the father was arrested for assault and battery. The mother also obtained an abuse prevention order against the father pursuant to G. L. c. 209A in 2011. The third incident, the mother testified, occurred while she was pregnant with the child. The father, visibly drunk, had refused to leave the mother's parents' home, kicked the front and back doors out of their frames, and broken a window. The police were called and they arrested the father.
The father first argues that the judge erred in finding that the father's history of domestic violence bore on his fitness because any evidence of domestic violence was stale. The father points to our holding in Adoption of Rhona, 57 Mass. App. Ct. 479, 487 (2003), that stale information cannot support a determination of unfitness and argues that, because the father ended his relationship with the mother in 2014 and has committed no new incidences of domestic violence since, the father's history of domestic violence should not have been considered in determining his fitness. We disagree.
The judge did not rely on stale evidence in determining that the father's domestic violence bore on his current fitness. In determining parental fitness, the judge may consider a pattern of "past conduct to predict future ability and performance." Adoption of Ulrich, 94 Mass. App. Ct. 668, 676 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 269-270 (1990). A parent's history of domestic violence, even if dated, may be relevant to that parent's current or future fitness. Cf. Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139-142 (2004) (father's history of domestic violence against mother, over six years before trial, should have been explicitly considered by judge in determining father's fitness, even though father had only limited contact with mother at time of trial and had not committed any new acts of domestic violence).
Here, the father concedes that he committed acts of domestic violence against the mother during their relationship. The mother testified that the father's anger led him to give her a black eye, to throw her down the stairs, and to strangle her. The father was ultimately convicted of assault and battery as a result of his violence against the mother. Though these incidents occurred several years before the hearing, given the department's continuing concerns about the father's ability to control his anger, the judge did not err by considering the father's domestic violence against the child's mother, among other factors, in her fitness analysis.
b. Substance abuse, alcoholism, and prior convictions. The father next contends that the judge improperly considered his substance abuse, alcoholism, and criminal history in her analysis, arguing that they do not bear on his current fitness to parent the child. We reject this argument, as the father's substance abuse, alcoholism, and related convictions were relevant factors for the judge to consider in her determination of unfitness.
The father began to use opioids following a motorcycle accident in 2010. The father was sober while incarcerated from October of 2014 to February of 2015 but relapsed quickly after he was released. The father testified to using pills throughout the spring of 2015 and testified that he had taken unprescribed Percocet and morphine, obtained from his cousin. He tested positive for morphine and oxycodone in January of 2016 when he stipulated to being unfit to care for the child. The father began drug treatment at CleanSlate in March of 2016 and was drug-tested weekly until December of 2016, at which time the father transitioned to biweekly testing.
The father first argues that the judge's findings do not show consideration of the evidence contained in the father's treatment records from CleanSlate. We disagree. The judge's findings reflect that she did, in fact, consider the father's records from CleanSlate, including his positive drug screens after beginning treatment in March of 2016. Contrary to the father's claim on appeal, these records do not prove that the father "had been sober for at least two years at the time of trial." Instead, they show that, while the father made progress in his recovery, he still tested positive for cocaine in May of 2016 and consistently tested positive for marijuana in every screen since March of 2016.
The judge's findings also contradict the father's argument that substance use was not a problem for him at the time of the hearing. The judge found that the father tested positive for oxycodone as recently as March 28, 2017, the first day of the review and redetermination hearing. Though the father testified that he only took the oxycodone because he was prescribed pain medication following a tooth extraction, the judge noted that his testimony about this dental appointment was inconsistent. Of concern to the judge, too, was the fact that the father never mentioned that he was taking the oxycodone to his treatment providers at CleanSlate and his social worker despite several opportunities to do so. The judge considered that the father, despite testing positive for marijuana in each of his drug screens, did not believe that his marijuana use reflected a failure to remain sober. The father testified that he did not believe his marijuana use posed a risk to his sobriety, and does not "see marijuana as a drug" at all. The judge properly considered this testimony, along with the testimony of the department social worker that she remained concerned about the father's substance abuse including his use of marijuana.
We conclude that the judge did not err in finding that the father's continued substance use in the year leading up to the review and redetermination hearing was, given his long history of substance use and addiction, a factor that supported a finding of continued unfitness. Care & Protection of Frank, 409 Mass. 492, 494 (1991) (though not dispositive of issue of parental fitness "[e]vidence of alcohol or drug abuse clearly is relevant to a parent's willingness, competence, and availability to provide care").
The judge also properly considered the father's alcoholism, as his prior alcohol relapses had interfered with his ability to parent the child. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (when "drug use was a factor contributing to established neglect, it is properly considered in a determination of unfitness"). When the child was removed from the mother's custody in November of 2014, the father was unable to care for her because he had been convicted of his second offense of OUI and was consequently incarcerated. The mother also testified that the father's relapses with alcohol played a role in the domestic violence that occurred during their relationship. The judge did find that the father had been regularly attending Alcoholics Anonymous meetings for several years at the time of the hearing. The judge was still permitted, though, to weigh the father's history of alcohol abuse as one factor, among many, in determining his fitness. See Care & Protection of Frank, 409 Mass. at 494.
The judge also properly considered the father's convictions dating from 2002 to 2014 and his incarceration for OUI in 2014. "To the extent it bears on fitness, . . . evidence of prior convictions may properly be weighed in the balance." Care & Protection of Frank, 409 Mass. at 495. Here, the father's incarceration in 2014 prevented him from being able to care for the child when she was removed from the mother's care. We see no error in the judge's weighing of these convictions.
c. Mental health status. The father next contends that the judge's concerns about the father's mental health status were not supported by the record and did not reflect due consideration of the father's positive gains.
The judge did not, as the father implies on appeal, find that the father's symptoms alone would prevent him from meeting the child's basic needs. The judge 1) found that the father had a history of anxiety, depression, and PTSD, and 2) weighed, consistent with the father's own testimony, the extent to which these conditions affected his day-to-day life. The judge found, as the father testified, that his anxiety and panic attacks interfered with his ability to work, and occasionally made him anxious at the thought of leaving the house.
The judge's findings also reflect an even-handed review of the evidence. While the judge considered the impacts of the father's conditions, she also noted that the "father's anxiety is controlled with medication and therapy" and credited the father's significant efforts in therapy to manage his anxiety, trauma, frustration, and depression. The judge did not err in her ultimate weighing of the evidence regarding the father's mental health. See Custody of Eleanor, 414 Mass. 795, 799 (1993) ("the judge's assessment of the weight of the evidence . . . is entitled to deference").
d. Sufficiency of the evidence. The judge's finding of unfitness was supported by clear and convincing evidence in the record. Though we discern no error in the judge's consideration of the father's domestic violence history, substance abuse, alcoholism, criminal history, and mental health concerns we note that the judge's conclusion was also supported by several of her other findings.
To begin with, the judge's findings regarding the father's difficulty controlling his anger provide support for her conclusion of unfitness. The judge credited the social worker's testimony regarding the father's difficulty controlling his angry outbursts; she described three instances in which the father lost control of his anger in the presence of the child. The judge also noted that, though the father's service plan required the father to undergo a psychological evaluation due to the department's ongoing concerns about his anger management, the father failed to complete this evaluation.
During one parent-child visit in 2015, the father became angry because the visit was being supervised by the social worker. At the end of another visit in September of 2015, the father became so angry that he began to cry in front of the child. During a visit in February of 2017, the father began screaming profanities and visibly shaking when he saw his dogs running around the social worker's car as he was attempting to place the child in her car seat.
The father argues that he was unable to afford the evaluation because it would not be covered by his insurance and could not be completed at ServiceNet. The judge noted, however, that the father testified that he did not see the relevance of such an evaluation, that he believed he handled his anger appropriately, and that he did not believe that he yelled at other people.
There were additional concerns posed by the father's living situation within his mother's house. The judge noted that the father had testified to his history of childhood trauma that included his mother taking her anger out on him. The father's therapist also testified that the father had recounted a childhood marked by "significant abuse" and that the father's mother had used a horse saddle strap to hit him as a child. Though the father testified that he had a good relationship with his mother at the time of the hearing, the judge had well-founded concerns about his plan to live with the child in his mother's home.
These factors, in combination with the father's domestic violence history, his substance abuse and alcoholism, his prior convictions, and his mental health challenges, were sufficient to support the judge's conclusion by clear and convincing evidence that at the time of the hearing, the father was not yet fit to care for the child.
We note that because the father's parental rights were not terminated, he has the right to petition to modify or end the guardianship in the future. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453 (2018).
2. Best interests of the child. The father additionally argues that the judge abused her discretion in approving the maternal aunt's and uncle's petition to become the child's permanent guardians, arguing that the decision did not serve the child's best interests. We disagree.
If a child's parents are found to be unfit, the judge may appoint a guardian for the child, if such appointment would serve the child's best interests. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453 (2018); G. L. c. 190B, §§ 5-204 (a), 5-206 (c). As discussed above, the judge did not err in finding that the father was, at the time of the hearing, unfit to parent the child. And the judge's conclusion that the interests of the child would then be best served by approval of this guardianship was not an abuse of discretion. The child has lived in the maternal aunt's and uncle's home since she was twenty-two months old, the father had no concerns with how the child was treated in that home, and the judge found that she has formed ties with her guardians as her caretakers. The judge's decision to approve this guardianship was not an abuse of her discretion.
Judgment affirmed.
By the Court (Meade, Rubin & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 23, 2020.