Opinion
11-P-1157
01-27-2012
ADOPTION OF NAMBDI.
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 of Nambdi appeals from a decree of a Juvenile Court judge terminating his parental rights and his right to consent to adoption. Nambdi has submitted a brief seeking affirmance of the decree. After careful review of the record, we discern no merit in the father's claims of error and affirm the decree in its entirety.
The mother, who previously lost custody of her other four children, waived her right to a trial on the department's petition to terminate her parental rights of Nambdi and is not a party to this appeal.
Background. We summarize the relevant facts and procedural history from the judge's comprehensive findings, which are amply supported by the record and uncontested by the father. Nambdi was born in July, 2004. The parents were not married, and the father lived with Nambdi and the mother for only a few months following Nambdi's birth. In January, 2005, when Nambdi was six months old, the Department of Children and Families (department) filed a care and protection petition and obtained temporary custody of Nambdi. The father, who was working in the merchant marine, was out of town when the petition was filed and did not participate in the proceedings. Nambdi was placed in foster care, where he remained for thirty-one months.
The filing of the petition followed an investigation, which supported an allegation of neglect by the mother on the grounds that the mother shoplifted formula with Nambdi while under the influence of heroin.
In August, 2007, after the mother successfully completed substance abuse treatment, Nambdi was returned to the mother's custody and the care and protection case was closed. After regaining custody, the mother filed a complaint to establish the father's paternity. The father, who had not maintained any contact with Nambdi throughout this period, requested time to contest the claim, but never did so, and on July 24, 2008, he was adjudicated to be Nambdi's biological father. Thereafter, between June and August, 2008, the father filed three ex-parte motions in the Probate and Family Court requesting custody of Nambdi, but did not follow through on the motions, all of which were denied without prejudice.
At some point in November, 2008, the father returned to the area and visited Nambdi and his mother at a rooming house where they were living. The mother was essentially homeless and was using drugs. On November 27, 2008, the father contacted the department to report that the mother was using drugs, was suicidal, and had access to a gun. The department supported the allegation of neglect, and commenced a second care and protection proceeding. Nambdi, now almost five years old, was returned to the custody of the foster parents who wished to adopt him.
Five months after the second care and protection petition was filed, the father met with a social worker from the department for the first time. The social worker prepared a visitation schedule and a service plan, which included the following tasks: strengthen parenting skills; engage in an anger management group or counseling; find stable, permanent housing; and meet with the department. The department's goal at this time was reunification. Initially the father visited Nambdi on a regular basis, but the visits tapered off after a few months. In addition, the father failed to comply with any of the tasks required by his service plan and failed to develop a meaningful relationship with Nambdi. As a result, the department changed its goal to adoption. Due to the father's sporadic contact with the department, he was not informed of the department's plan to pursue adoption until December, 2009, at which time he rejected the department's offer of monthly visitation. By the time of the trial, the father had not seen Nambdi in eleven months (from July, 2009, through May, 2010).
The service plan also included substance abuse treatment, which the judge found was unnecessary as there was no evidence that the father had an issue with substance abuse.
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On the basis of these facts, the judge concluded the father was unfit because he had failed to provide proper care for Nambdi, had failed to consistently visit with him in order to create a meaningful relationship, had no stable housing or income, and refused to utilize services to improve his parenting skills. The judge further found that Nambdi had strong bonds with the foster family, with whom he had lived for more than two-thirds of his life. The judge determined that Nambdi's best interests would be served by a termination of the father's parental rights, and she supported the adoption plan propounded by the department.
Discussion. The father contends that the judge's findings do not adequately support the conclusion that he is unfit and that termination of his parental rights is in Nambdi's best interests. Specifically, he claims that his limited contact with Nambdi and his failure to comply with his service plan do not amount to 'clear and convincing evidence' of unfitness as required by our case law. See Adoption of Ilona, 76 Mass. App. Ct. 481, 485 (2010), S. C., 459 Mass. 53 (2011), quoting from Adoption of Carlos, 413 Mass. 339, 348 (1992) ('For a judge to take the 'extreme step' of irrevocably terminating the legal relationship between a parent and child, [s]he must determine by 'clear and convincing evidence that the parent is currently unfit to further the child's best interest'').
Contrary to the father's assertions, the record contains substantial evidence of the father's unfitness. The judge found that due to his extensive absences, the father had failed to provide Nambdi with stability, support, or consistency throughout his life, and that the father's shortcomings were unlikely to change in the future. See Adoption of Diane, 400 Mass. 196 204 (1987) (judge may 'properly rely upon patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining parental unfitness'). She found that the father's unwillingness to maintain a visitation schedule and his inability to comply with his service plan were evidence that the father was 'not committed to his son's welfare.' See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ('Evidence of parents' refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness').
Additionally, the judge properly considered the bond between Nambdi and the foster family and the harm that Nambdi would suffer should he be removed from them. See ibid. (judge must 'consider the bond between the child and the preadoptive parents, [and] that bond must be addressed in conjunction with consideration of the psychological harm to the child resulting from the child's removal from the preadoptive home and the biological parents' ability to address that resulting harm'). The judge's findings detail the commitment of the foster family, who had cared for Nambdi for four of his six years, to Nambdi's well-being. In contrast, Nambdi has never lived with the father. See Adoption of Olivia, 53 Mass. App. Ct. 670, 677 (2002) (noting that a child has a 'right[] to a stable and safe environment'). Moreover, the judge credited the foster mother's testimony that Nambdi does not like to visit his father.
Given the circumstances of this case, the judge did not err in determining that the father, who has never parented Nambdi, was currently unfit. Accordingly, we affirm the decree terminating the father's parental rights, including his right to consent to adoption.
So ordered.
By the Court (Green, Vuono & Milkey, JJ.),