Opinion
No. 15–P–1239.
07-18-2016
ADOPTION OF ZENOBIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree terminating his parental rights and dispensing with the need for his consent to adoption, arguing that the Department of Children and Families (DCF) failed to make reasonable efforts to reunify him and Zenobia, that several of the judge's findings are clearly erroneous, and that the evidence was insufficient to support entry of the decree. We affirm.
An identical decree was entered with respect to the mother. She is not a party to this appeal.
Background. After trial, the judge made 126 findings of fact that “are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence.” Adoption of Don, 435 Mass. 158, 165 (2001). We summarize his findings.
Zenobia was born in February, 2008. In 2009, DCF filed a petition alleging that Zenobia was in need of care and protection due to neglect. In May, 2010, following a hearing on the merits, the trial judge determined the father to be fit and awarded him custody of Zenobia. The father refused further services from DCF and the case was closed in September, 2010.
At various times between September, 2010, and March, 2013, the father and Zenobia lived with Tom Smith and the father's brother, who acted as a personal care attendant for Smith. In March, 2013, Smith was Zenobia's primary caretaker because the father and his fiancé were homeless. On March 19, 2013, the father's brother and the father's fiancé engaged in a domestic dispute in Zenobia's presence, and the father, although he was not physically involved in the dispute, was arrested because he was out of control, yelling at the police and failing to calm down. On March 26, 2013, a DCF worker conducted an unannounced visit to Smith's home, but the father and Zenobia were not there and their whereabouts were unknown. Smith advised the DCF worker that the father and his fiancé no longer were welcome in his home, and that he had obtained a restraining order against the father.
A pseudonym.
Smith obtained civil restraining orders against the father on March 25, 2013, and April 24, 2013.
On April 18, 2013, DCF learned that the father, his fiancé, and Zenobia were living with Robert Jones, another friend of the family, who had been caring for Zenobia for approximately one week. Jones told DCF that the father and his fiancé were living in a car and visited Jones with Zenobia periodically, but that, during those visits, the father would yell at Zenobia, the father and his fiancé would take telephone calls rather than focus on Zenobia, and both smelled like marijuana. The family was located later that day, and Zenobia was placed in foster care. DCF filed a second petition alleging that Zenobia was in need of care and protection, and the case came before the same judge who had heard the first care and protection petition in 2010.
A pseudonym.
The judge found that, since Zenobia's removal, the father “has failed to have civilized conversations with [DCF] employees about the services he must engage in.” The father has been verbally abusive to DCF staff, including one visit wherein he yelled profanities, screamed at the visit supervisor, and accused DCF of kidnaping Zenobia, all while he was holding her in his arms. Several of the father's visits were terminated because of his angry outbursts, as were telephone calls and office visits with DCF. DCF was unable to go over the father's service plans with him because he refused to read them; on one occasion in February, 2014, the father “read one task, became enraged, and yelled ‘mother fuckers stay out of my life.’ “
The father lived in his car from April to June, 2013, when he moved into a motel. DCF denied the father's requests for unsupervised visits with Zenobia when he refused a home visit at that motel, although two home visits took place after he moved to a different motel in July, 2013. In December, 2013, the father moved in with his mother (paternal grandmother). During a home visit conducted by DCF, workers noticed that the paternal grandmother was slurring her words. The father and paternal grandmother have a rocky relationship and they often fight verbally; at the time of trial in May, 2014, the father was living with the paternal grandmother and she had sought a restraining order against him, which was denied. The father's fiancé also had obtained a restraining order against him in February, 2014, after their romantic relationship ended. The father has not had stable employment since the petition was filed, and the only tasks on his service plan that he has completed are visiting with Zenobia and attending court. The father has not completed an anger management course, a psychological evaluation that would allow DCF to determine whether there are any mental health issues contributing to his anger problem, or a “Father's Nurturing Program.”
The paternal grandmother is an alcoholic, and the judge did not credit the father's testimony at trial that she had been sober for two months.
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Discussion. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). “The standard for parental unfitness and the standard for termination are not separate and distinct[;] ... [a]fter ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Nancy, 443 Mass. 512, 515 (2005). The judge's findings will not be disturbed “unless clearly erroneous,” and we review his ultimate conclusions “with substantial deference, recognizing [his] discretion to evaluate a witness's credibility and to weigh the evidence.” Ibid.
The father argues error in the judge's findings that he lacks stable housing, that he refused to cooperate with DCF, and that he has an anger management problem. “Almost without exception, the father's claims of error in these findings take issue with the judge's assessment of credibility and the weight of the evidence, to which we accord substantial deference.” Adoption of Peggy, 436 Mass. 690, 702, cert. denied sub nom. S.T. v. Massachusetts Dept. of Social Servs., 537 U.S. 1020 (2002). “We see no basis for disturbing the judge's view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n. 3 (1997).
Taken together, the judge's findings amply support his ultimate conclusion that the father is unfit and that Zenobia's best interests are served by terminating the father's rights. The father's lack of cooperation with DCF was “relevant to the determination of unfitness,” Adoption of Rhona, 63 Mass.App.Ct. 117, 126 (2005), and the judge's “assessment of prognostic evidence derived from an ongoing pattern of parental neglect [and] misconduct [by the father was] appropriate in the determination of future fitness and the likelihood of harm to the child.” Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979). This was the second care and protection petition for Zenobia that had come before this judge, and “[p]rior history ... has prognostic value.” Adoption of George, 27 Mass.App.Ct. 265, 268 (1989). “The judge did not have to wait for further injury to [Zenobia] before concluding that [the father is] unfit,” Adoption of Inez, 428 Mass. 717, 721 (1999), in light of his findings that after one visit with the father, Zenobia could not stop crying and could not say why she was crying; she was anxious before or after visits with the father, sometimes vomiting after a visit; and she exhibited separation anxiety when the foster mother left the room. The judge found that Zenobia's “anxious behavior was due to Father's angry outbursts in the presence of [Zenobia].” While it is clear from the record, and as the judge found, that the father loves Zenobia and she loves him, the father's “rights are secondary to the child's best interests.” Adoption of Gregory, 434 Mass. 117, 121 (2001).
Insofar as the father faults DCF for its efforts to reunify him and Zenobia, we note that DCF's duty “was contingent upon the [father]'s fulfillment of [his] own parental responsibilities,” Adoption of Mario, 43 Mass.App.Ct. 767, 774 (1997), including participating in an anger management class, a psychological evaluation, and a nurturing father's class. The judge found that the father flatly refused to engage in these services, and he “[wa]s not required to grant the father an indefinite opportunity for reform.” Adoption of Cadence, 81 Mass.App.Ct. 162, 169 (2012). “Stability in the life of a child is important,” Adoption of Willow, 433 Mass. 636, 647 (2001), and we see no error in the judge's conclusion that the father's “character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age” justify termination of his parental rights. Adoption of Mary, 414 Mass. 705, 711 (1993).
Decree affirmed.