Opinion
11-P-1888
05-02-2012
ADOPTION OF MARTA (and a companion case).
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 mother appeals from decrees of the Juvenile Court dispensing with her consent to the adoption of her children. She argues that the trial judge's factual findings were clearly erroneous and based on stale evidence, that the judge made no determination of the children's best interests, and that the judge's failure to issue findings of fact until one year after trial deprived her of due process. Because the judge's findings (with a few immaterial exceptions) were supported by the evidence and were sufficient to justify the decrees, and the mother has not demonstrated prejudice from the delay, we affirm.
The father stipulated to adoption and is not a party to this appeal.
On appeal, we must determine whether the findings of the judge were clearly erroneous and whether they establish the mother's parental unfitness by clear and convincing evidence. See Custody of Eleanor, 414 Mass. 795, 802 (1993). We must defer to the judge's assessment of the weight and credibility of the evidence. See Adoption of Quentin, 424 Mass. 882, 886 (1997). The judge's findings demonstrate that the mother was subjected to numerous incidents of abuse by the father and the paternal grandmother, some of which occurred in the presence of the children. See Custody of Vaughn, 422 Mass. 590, 595, 599 (1996). The mother was also arrested for abuse of the father. The police responded to the paternal grandmother's house (where the father and mother lived) dozens of times for domestic disturbances. Despite the urgings of employees of the Department of Children and Families (department), the mother refused to leave this abusive environment. Moreover, on at least one occasion, the mother attempted to force-feed the son at a hospital, shouted at him, and kicked him in his stroller. The mother failed to take effective advantage of services offered by the department and others to establish stability in her life, improve her parenting skills, and alleviate the effects of domestic violence on her and her children. She obstructed the department's efforts to assure the children's welfare by preventing it from conducting home visits. These findings are not clearly erroneous, and among others they support the judge's conclusions that at least five statutory factors weigh in favor of parental unfitness. See G. L. c. 210, §§ 3(c)(ii), (v), (vi), (vii), (viii). It was appropriate for the judge to consider the mother's past conduct to predict her future fitness. See Adoption of Carla, 416 Mass. 510, 517 & n.7 (1993). On the whole, we conclude that the evidence supported the judge's determination of unfitness clearly and convincingly. The mother argues that the judge failed to make findings of fact sufficient to establish that the termination of parental rights and the department's adoption plan were in the children's best interests. See Adoption of Thea, 78 Mass. App. Ct. 818, 823- 825 (2011). The findings do, however, support the conclusion that termination of her parental rights and the department's adoption plan are in the children's best interests. 'Here, it is implicit in the judge's findings that termination is in the best interests of the children, and by no means can the judge's decision be said to be clearly erroneous.' Adoption of Nancy, 443 Mass. 512, 516 (2005). The judge laid out the reasons for her conclusions of parental unfitness, and the standard for termination involves the same factors. See id. at 515. She also explicitly considered the department's adoption plan and declared it to be in the children's best interests, as the children were 'abundantly loved and well care for' by the preadoptive family. The judge's findings are sufficient to support the decrees entered.
Although the judge also indicated she had considered certain other factors that do not seem applicable in this case, those we have listed are amply supported by appropriate findings of fact and clearly underpin the judge's decision.
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Finally, the mother contends she was deprived of due process by the gap of one year between the trial and the entry of the judge's findings and conclusions. Without doubt, such delays are concerning. See Adoption of Willamina, 71 Mass. App. Ct. 230, 238-239 (2008), and cases cited. However, the mother has not established the prejudice necessary for a due process violation because she has 'not shown that the outcome of this case would have been different had the [findings issued] more expeditiously.' Adoption of Don, 435 Mass. 158, 170 (2001). Additionally, although she did bring the delay to the attention of the judge, the mother did not seek to 'reopen evidence to allow all parties to submit relevant, updated information concerning parental fitness.' Adoption of Rhona, 57 Mass. App. Ct. 479, 486-487 (2003).
Decrees affirmed.
By the Court (Kantrowitz, Kafker & Meade, JJ.),