Opinion
11-P-705
01-13-2012
CARE AND PROTECTION OF HALEIGH (and two companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from an adjudication that his three children are in need of care and protection and permanently committed to the custody of the Department of Children and Families (DCF). He argues that certain findings are not supported by the evidence and therefore are erroneous, while the remaining supported findings do not amount to clear and convincing evidence of his unfitness to parent his children. We disagree and affirm the judgments of the trial court.
Our review of this appeal 'is not done to assess the evidence de novo, but rather to determine whether the judge's findings were clearly erroneous and whether they proved parental unfitness by clear and convincing evidence.' Custody of Eleanor, 414 Mass. 795, 802 (1993). The judge's subsidiary findings must be proven by a preponderance of the evidence and will only be disturbed if they are determined to be clearly erroneous. Care & Protection of Laura, 414 Mass. 788, 793 (1993). Adoption of Quentin, 424 Mass. 882, 886 (1997). '[T]he judge's assessment of witness credibility and weight of evidence is entitled to deference.' Custody of Eleanor, supra at 799.
The father objects to the judge's finding the he had 'minimal' contact with his children after he left the family in December, 2006, and the time the children were placed in DCF's care. Based on the testimony of the mother, the testimony of the father, the testimony of the social worker, and evidence of only one contact between the father and the children, referenced in the court investigator's report, it was not clearly erroneous for the judge to find that this was 'minimal' contact.
The father next complains that the judge's finding that the mother stipulated to her current parental unfitness is clearly erroneous. While the colloquy supporting the mother's stipulation is barely sufficient, the mother does stipulate, on the record, that her children are in need of care and protection. The mother does not appeal the adequacy of her colloquy nor the stipulation, and the judge's findings based on the stipulation are not clearly erroneous. See Care & Protection of Erin, 434 Mass. 567, 572-573 (2005) (a parent's stipulation under any of the grounds in G. L. c. 119, § 24, is a valid basis for judgment because it is an admission of unfitness).
The father next complains about the judge's finding concerning the father's inability to articulate the connection between his domestic violence and his children being placed in DCF care and about the judge's finding that the children entered DCF care after being exposed to domestic violence between the mother and father. The error the father alleges in finding forty-five is based on the father's testimony regarding his understanding of the connection. However, this is an instance where the judge apparently concluded that the father's testimony demonstrated a lack of understanding of the connection between his behavior and the children's placement with DCF. The judge is free to determine the credibility of the witness. See Custody of Eleanor, 414 Mass. at 800.
Similarly, there is ample record evidence to support finding forty-six. While it is true that the children entered DCF custody as a direct result of inadequate supervision and poor school attendance, there was ample evidence of domestic violence, including that the father hit the mother throughout their marriage. The children's therapists and the court investigator produced evidence upon which the judge concluded that the children had been traumatized by domestic violence. See Custody of Michel, 28 Mass. App. Ct. 260, 266 (1990). This was not error.
Finding forty-seven states that the father had not engaged in any services at the time of trial to address his issues with domestic violence and its impact on the children. The father's own testimony at trial indicated that he had just attended his first therapy session 'for anger' and that he had not engaged in any other services. Additionally, the father's lack of a service plan was due primarily to his avoiding any contact with DCF. The father knew that the children had been removed in January, 2008, but did not contact anyone until October, 2009, and ultimately did not meet with the social worker until March, 2010. See Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001). Finding forty-seven is not erroneous.
Again, finding forty-nine is based on evidence found in the court investigator's report. The fact that the father testified to the contrary is irrelevant because the judge is entitled to make credibility determinations. See Custody of Eleanor, 414 Mass. at 800. Finding forty-nine is not clearly erroneous.
Finally, the father argues that finding fifty-three is clearly erroneous because he testified that he would make himself available to care for the children. He offered no evidence or testimony however that he had begun looking for a new job, had attempted to rearrange his work schedule, or had attempted to reduce his work hours. The testimony and evidence indicated that the father had made no arrangements for the children's care other than his wife assuming those duties. Finding fifty-three is not clearly erroneous.
It is clear that these and the uncontested findings, when viewed as a whole, amply demonstrate clearly and convincingly, that the father is unfit to parent his children. The father's lack of contact with the children and with DCF are significant factors. The father's history of domestic violence, including one serious incident, must also be considered. The father had not received any services for his anger management at the time of trial nor did he appreciate the impact that domestic violence has on his children. He has not provided any financial support for the family since he left the home in December, 2006. He has no understanding of the children's educational needs nor of their mental health issues. Finally, he has no workable plan to care for the children.
The father received actual notice that DCF had removed his children, in January, 2008, and since that date has had numerous occasions to be heard on this matter. See Armstrong v. Manzo, 380 U.S. 545, 552 (1993). The father's due process rights were protected when he received notice of the children's removal and his opportunity to be heard on the issue was protected.
Judgments affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),