Opinion
21-P-616
03-10-2022
ADOPTION OF GILBERT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a Juvenile Court judge terminating his parental rights with respect to his son, Gilbert. On appeal, the father claims that (1) the Department of Children and Families (DCF) failed to make reasonable efforts to promote family reunification, and (2) the judge erred in finding clear and convincing evidence that the father is unfit to parent Gilbert, such that termination of his parental rights is in Gilbert's best interests. We affirm.
Discussion. 1. Reasonable efforts of DCF. Before terminating parental rights, "[DCF] is ‘required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties.’ " Adoption of West, 97 Mass. App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). Here, in much of his brief, the father argues that DCF failed to exert any efforts to promote family unification, despite being mandated to do so in light of his incarceration. See 110 Code Mass. Regs. § 1.10 (2008) (where parent is incarcerated, DCF must make "special efforts ... to prevent permanent or irremediable separation of children from their incarcerated parents").
The father claims that DCF's failure to make any efforts at reunification rendered the evidence insufficient for the judge to properly determine his fitness. However, "[i]t is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of West, 97 Mass. App. Ct. at 242, quoting Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C. 460 Mass. 72 (2011). Here, DCF maintains, and the father concedes in his brief, that the father failed to raise the issue of inadequate services at any time prior to entry of the decree. Therefore, in this posture, the issue has not been properly preserved for appellate review, and is waived. See Adoption of Larry, 434 Mass. 456, 470 (2001).
Notwithstanding the issue of waiver, the judge did find that DCF made reasonable efforts to reunite Gilbert with the father.
Even if DCF failed to make reasonable efforts to support reunification, "it does not follow that the father is entitled to reversal of the decrees terminating his parental rights." Adoption of Franklin, 99 Mass. App. Ct. 787, 798 (2021), citing G. L. c. 119, § 29C ("A determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest").
2. Parental unfitness. The father also claims that the judge erred in finding clear and convincing evidence that he is unfit to parent Gilbert. In particular, the father claims that the judge erred in relying solely on his past criminal record. We disagree.
The father attempts to challenge some of the judge's findings of fact as clearly erroneous. However, much of the father's argument fails to rise above the level of a mere disagreement with the judge's careful weighing of the evidence. See Adoption of Yvonne, 99 Mass. App. Ct. 574, 577 (2021). See also Adoption of Franklin, 99 Mass. App. Ct. at 799 (no error where judge's findings are fair and balanced overall, in light of voluminous trial record).
"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" (quotation and citation omitted). Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age" (citation omitted). Id.
Here, the father has a lengthy criminal record, which includes numerous violent offenses. He was incarcerated from 2009 through 2016, and again from 2017 through 2021. Gilbert was born in January 2018. "Physical unavailability of the parent to provide day to day care for the child, including for reasons of incarceration, was relevant evidence of unfitness." Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001). The judge found that "[b]ecause of his criminal conduct, [the] [f]ather has never been in a position to truly parent [Gilbert]." "Evidence of the father's criminal record, to the extent that it had a bearing on his fitness as a parent, is germane in care and protection proceedings" (citation omitted). Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002).
As a juvenile, the father pleaded guilty to indecent assault and battery on a child. At his trial in this matter, the father acknowledged that he was previously convicted of Federal drug crimes. Prior to this trial, the father had also been charged with assault, breaking and entering, and multiple probation violations.
The father claimed that upon his release from incarceration, he would secure stable housing, as well as two jobs to support Gilbert. However, contrary to the father's appellate argument, the judge was entitled to discredit the father's plan for reunification as being unrealistic. See Adoption of Yvonne, 99 Mass. App. Ct. 574, 577 (2021) (past conduct is relevant to predict future abilities and performance of parents). The judge was not bound by "mere hypothesis or faint hope" in predicting whether the father's ability to parent Gilbert would improve. Adoption of Serge, 52 Mass. App. Ct. at 7. Instead, the judge was entitled to reasonably conclude that the father's "current imprisonment and history of criminal recidivism" supported the finding of unfitness both at the time of trial and "within any relevant future period." Adoption of Nicole, 40 Mass. App. Ct. 259, 262 (1996).
The father did comply with his service plan, but his compliance itself is insufficient to overcome his parental unfitness. See Adoption of Darlene, 99 Mass. App. Ct. 696, 702 (2021) (judge did not err in finding mother unfit despite her progress and strong compliance with her service plan).
During the short period of time in which the father was not incarcerated, he did not assume any parental responsibilities for his other three children.
The father also refused to accept any responsibility for Gilbert being in DCF custody, and believed that he had nothing to do with Gilbert being the subject of the care and protection proceeding. "The idea of parental unfitness [is best described as] grievous shortcomings or handicaps that put the child's welfare much at hazard" (quotation and citation omitted). Adoption of Yvonne, 99 Mass. App. Ct. at 577. Should Gilbert be removed from his current placement, there is no doubt that, as the judge concluded, the father's pattern of grievous parental shortcomings, coupled with his inability to appreciate their effect on Gilbert, would put Gilbert's safety at risk and may result in a "potential traumatic impact."
At bottom, "[t]he welfare of the child is the most important consideration when determining parental fitness." Adoption of Lisette, 93 Mass. App. Ct. 284, 293 (2018). Here, Gilbert was born substance exposed. Since being removed from his parents’ care very shortly after birth, Gilbert was placed in the custody of his maternal aunt, with whom he has formed a strong, loving relationship. Gilbert is doing very well in the aunt's custody. The aunt has demonstrated the ability to both care for Gilbert and act in his best interests, and she is both willing and well-suited to do so.
The mother did not participate in the trial and did not appeal from the decree terminating her parental rights.
"It is in the best interests of [Gilbert] to have [a parent] who can and who will, on a consistent longterm basis, assume all parental responsibilities and who can provide [Gilbert] with the stable and continuous care and nurturing [he] needs and will continue to need as a child." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990). Thus, we see no error in the judge's reasonable determination that the father's lengthy separation from Gilbert, coupled with the strong bond formed between the aunt and Gilbert, rendered the father unfit, such that termination of parental rights was in Gilbert's best interests. See Adoption of Frederick, 405 Mass. 1, 7 (1989) ("lengthy separation between parent and child, the growth of emotional ties between the child and a different custodian, and the effect of a forced return of the child to the biological parents are all factors that should be weighed by the judge, with no one factor being determinative").
Decree affirmed.