ADOPTION OF HARRISON v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from decrees of the Juvenile Court that found the father of Harrison and Sara (children) unfit, terminated the father's parental rights, and approved the adoption of the children by their maternal grandfather and his wife. The father argues that the evidence presented failed to establish by clear and convincing evidence that he was unfit to further the children's best interests. The father also argues that the Department of Children and Families (DCF) failed to make reasonable efforts to maintain the family together, and also failed to provide adequate services to that end. We affirm.

Background.³ Harrison and Sara were born in 2011 and 2012, respectively. After the children were born, the family lived in New Hampshire; the New Hampshire Department of Children, Youth and Families became involved with the family when the children were very young. The mother was involved in multiple incidents of neglect between 2012 and the spring of 2014, which ultimately resulted in the father having sole custody of the children for a brief period in the summer of 2014, when the children were two and three years old.

Later in 2014, the mother regained custody and moved with the children to Massachusetts, where they lived in a hotel in Greenfield. In the fall of 2014, a series of G. L. c. 119, § 51A, reports were filed indicating, among other things, that the children were being left unattended at the hotel, sometimes running around the hotel halls and in the parking lot. DCF investigated and in November 2014 removed the children from the mother's care. The hotel room itself was extremely dirty and messy. When the children were removed they each had head lice. Sara, then two years old, also had a seizure disorder, which was going untreated.⁴ Throughout the investigation in Greenfield, DCF did not observe the father with the family, and the mother told DCF that she was no longer in a relationship with the father and had no income or assistance. The record contains conflicting evidence as to whether the father was living with the family at this time.⁵

DCF filed a care and protection petition on behalf of the children in November 2014, and obtained temporary custody of them. The children were eventually placed with the maternal grandfather and his wife in New Hampshire, and have lived with them since June 2015. DCF's proposed adoption plan is to have the maternal grandfather and his wife adopt the children, and the judge found that the adoption plan was in the children's best interests.

The case was tried for two days in October 2016, and a third day in February 2017. The children were four and five years old at the time trial commenced. The mother stipulated to the termination of her parental rights at the close of trial, and is not part of this appeal. The father challenged DCF's permanency plan of adoption and testified at trial. The judge's findings with respect to the father revealed the following. At the time of trial, the father was forty-eight years old (the mother was thirty-one years old). The father testified that he had a total of eight children by seven different mothers, although his trial testimony revealed at least two other children, in addition to the eight children he initially acknowledged. The father's parental rights had been terminated by court order as to two of these children, in 2014. The father was named on some of his children's birth certificates, but not on others. The father owed child support with respect to several of his children, and as of the time of trial, he had not paid child support to anyone since April of 2016.

The father had an extensive criminal record spanning seven different States, for crimes such as armed robbery, receiving stolen property, shoplifting, disorderly conduct, and eluding an officer. Many of his offenses were for selling music tapes (so called “mix tapes”) without the manufacturer's label, which he claimed at trial was legal and which he admitted he continued to do. The father's work over the years had been sporadic, and consisted primarily of working as a disc jockey on radio and at events. The father admitted to using several different aliases in order to avoid warrants for his arrest. He had been incarcerated many times, most recently for the nine months from July 2015 through March 2016. During those nine months of incarceration he did not have any contact with the children.

When the children were first removed in November 2014, DCF's stated goal was reunification. The father was given a service plan at that time, which he did not complete. In August of 2015, after the father was incarcerated, DCF changed its goal to adoption, and thereafter DCF identified the maternal grandfather and his wife as the potential adoptive parents. The father's proposed plan is guardianship by the maternal grandfather and his wife until he can take custody of the children. After trial, on July 6, 2017, the judge ordered the entry of decrees terminating the father's rights, together with twenty-six pages of detailed findings of fact and conclusions of law.

Discussion. On appeal, the father first argues that the judge erred in terminating his parental rights because DCF failed to establish his unfitness by clear and convincing evidence. Principally, the father contends that the record evidence of unfitness is speculative, and that it was unnecessary to terminate his parental rights because his plan for guardianship was substantively the same as DCF's plan for adoption. We disagree.

Termination of parental rights is appropriate where there is clear and convincing evidence that a parent is unfit to care for the child, and where termination is in the child's best interests. Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). Parental unfitness means more than general ineptitude -- it reflects “grievous shortcomings or handicaps that would put the child's welfare” in danger. Adoption of Lisette, 93 Mass. App. Ct. 284, 292-293 (2018), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). In determining whether termination is in the child's best interests, “[t]he [judge] shall consider the ability, capacity, and readiness of the child's parents ․ to assume parental responsibility.” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c). On review, we examine the judge's decision to terminate parental rights with substantial deference, and will only reverse where there is a clear factual error, abuse of discretion, or other error of law. See Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge's finding of unfitness here was soundly grounded in the evidence. The judge cited the father's extensive record of criminal and legally risky behavior, and noted that such behavior often directly impeded the father's ability to parent the children -- for example, during periods of incarceration and when he was actively avoiding service of outstanding warrants. The judge also noted that there was no indication that such behavior would abate, where it had continued for over thirty years and where the father had made little effort to alter his lifestyle. Similarly, the judge found that the father had shown little capacity or even interest in parenting the children. The judge specifically found that the father knew in advance of the conditions that led to the removal of his children from the Greenfield hotel in 2014, and did not act to remedy those conditions. In the months after the removal, the father made only “sporadic” efforts at visitation, and he failed even to make contact with DCF during his incarceration. The father did not ask how the children were doing or follow up, for example, on serious medical issues. He failed to accomplish key requirements in the service plan and failed to make any efforts after August of 2015, when the goal was changed to adoption.

Although parental unfitness alone does not require a termination of parental rights, termination is appropriate where, as here, it is in the children's best interests. Adoption of Nancy, 443 Mass. 512, 515 (2005). The standard for determining the best interests of the children is similar to that of parental fitness and “reflect[s] different degrees of emphasis on the same factors.” Id., quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 641. Here, the same factors establishing unfitness also support the judge's finding that termination was in the children's best interests. The father's transient and criminal lifestyle, his lack of participation in services, and his history of abandoning Harrison and Sara, which was consistent with his history with his other children, sufficiently established that the father lacked the “ability, capacity, and readiness ․ to assume parental responsibility.” Adoption of Elena, 446 Mass. at 31. The father's contention that termination was unnecessary because his proposed plan for guardianship was functionally the same as DCF's plan for adoption is unavailing, because it ignores the importance of stability and permanence in the children's lives. See Adoption of Hugo, 428 Mass. 219, 228-229 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See also Adoption of Bianca, 91 Mass. App. Ct. 428, 434 (2017) (affirming judge's decision to approve adoption plan over parent's proposal for guardianship).

The father next argues that DCF failed to provide the necessary services, including adequate visitation, to further the goal of reunification. The father contends that DCF's actions in this regard harmed his relationship with the children. We are not persuaded. Although DCF was “required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with” termination, Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002), such an obligation was contingent upon the father's “own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services.” Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001). Here the judge found that the father did not comply with his service plans or interact appropriately with DCF, and that finding is well supported on the record.

Moreover, a claim of inadequate services must be raised in a timely manner. See Adoption of Gregory, 434 Mass. 117, 124-125 (2001). Here, after DCF changed the goal to adoption in August 2015, the father did not request a visit with the children until March 2016, and did not file a motion for “expansion of visitation” until April 2016, almost fifteen months after the children were removed and at least nine months after the father stopped engaging with DCF services. The argument that DCF is at fault rings hollow on this record.

Decrees affirmed.

FOOTNOTES

3.   The facts herein are taken from the findings of the trial judge. The father does not challenge any factual findings as clearly erroneous.

4.   At the time of removal the parents could not identify a treating pediatrician or provide medical records. In fact, no records were found for Harrison, and Sara had not been seen by a doctor in eighteen months despite her seizure disorder.

5.   The social worker did observe numerous items in and around the hotel room suggesting that the father had been there, including the father's car, and items the mother claimed belonged to the father but that she intended to sell (men's clothing, five computer towers with compact disc drives, blank compact discs, and a printer).