ADOPTION OF NICO v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The father challenges a decree of the Juvenile Court terminating his parental rights. He asserts that the trial record lacked clear and convincing evidence of his unfitness and that the judge erred in refusing to order posttermination visitation. We affirm.

Background. In November 2014, Nico was born substance-exposed and spent two days in the hospital's neonatal intensive care unit (NICU). The father was present for Nico's birth, but contends that he was not told why Nico was placed in the NICU and that he had no knowledge of the mother's drug use.³ The Department of Children and Families (department) subsequently received a G. L. c. 119, § 51A, report alleging neglect on the part of the mother.⁴ The social worker assigned to investigate the report visited the mother's listed address in Dorchester on December 10, 2014. The social worker spoke with the father, who at that time did not identify himself to the worker as Nico's father. The father stated that the mother was not at the home but that she would contact the social worker the following day. However, the social worker was unable to locate or contact the mother until December 29, 2014. The social worker met with the mother on December 31, 2014. After additional unsuccessful attempts to establish a meeting with the mother and Nico -- including a voicemail message left on the mother's cell phone relaying that the department would take legal action if it could not gain access to Nico -- the department filed a care and protection petition in March 2015. Nico entered the department's care on March 20, 2015. He was then placed with a paternal aunt and uncle.

The father's criminal history begins in 2006 when, at the age of seventeen, he pleaded guilty to kidnapping and armed robbery charges. In 2010, the father pleaded guilty to motor vehicle homicide by negligent operation after striking and killing a pedestrian.⁵ In December 2014, the father was arrested while carrying a firearm loaded with hollow-point ammunition without a license. The father testified that at the time of his arrest he was living in Dorchester with the mother, his brother David (a pseudonym), David's children, his cousin, and Nico -- who was just over one month old. When a stranger came to the door of the residence at 1 a.m., brandishing a knife and asking for David, the father retrieved a firearm from the floor of the basement. The father claimed that he did not know who owned the firearm or whether it was loaded.⁶ He nonetheless placed the firearm in his pocket and attempted to follow David and the stranger. He was quickly stopped and arrested. The father pleaded guilty to several firearms-related charges and was incarcerated from June 18, 2015 (when Nico was seven months old), to October 19, 2016.

During his incarceration, the father was disciplined on several different occasions for actions such as threatening correction officers, spitting, interfering with the safety and security of other prisoners, disobeying orders, and possessing stolen contraband. The department's goal for Nico was changed from reunification to adoption during this time, and Nico's paternal aunt sent a letter to the father inquiring whether the father would respect their parental authority should she and the paternal uncle adopt Nico. The father responded with a disrespectful and strongly worded letter refusing to relinquish any control over Nico. After receiving his response, the paternal aunt and uncle no longer wished to foster Nico. Nico was moved to his current preadoptive home in December 2016. His half-brother resided in the same preadoptive home.

At the time of trial the father was unemployed and collecting Supplemental Security Income (SSI) of $ 700 per month as a result of being diagnosed with posttraumatic stress disorder (PTSD).⁷ He also received approximately $ 160 per month in food stamps. During trial, the father and his brother David signed a lease agreement for a three-bedroom apartment in Fall River. The lease specified rent of $ 1,000 per month, and the father testified that he and David would split the rent evenly. The father did not know whether utilities were included in the monthly rent.

Discussion. In order to terminate parental rights, a judge must determine that the parent is unfit and that termination is in the best interests of the child. See Adoption of Gillian, 63 Mass. App. Ct. 398, 403 (2005). “Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). Although parental fitness must be determined on current evidence, “evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness” may be considered. Adoption of Cesar, 67 Mass. App. Ct. 708, 712 (2006), quoting Adoption of Paula, 420 Mass. 716, 729 (1995). Parental unfitness must be supported by clear and convincing evidence. See Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017).

Here, the record supports the trial judge's determination that the father was unfit to parent Nico. The father spent much of the first two years of Nico's life incarcerated after pleading guilty to the firearm-related charges. See Adoption of Mario, 43 Mass. App. Ct. 767, 771 (1997) (though incarceration does not conclusively render parent unfit, it may be taken into account when determining parental fitness). In addition, despite the number of classes the father participated in while incarcerated, his actions reflected poorly on his ability to control his emotions. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 126-127 (2002). The father was disciplined several times while incarcerated, and his inappropriate response to the paternal aunt's offer to adopt Nico led to Nico's removal from that kinship foster placement -- a placement where he had been living for more than one and one-half years.⁸

The record also supports the judge's finding that the father did not comply with his service plan tasks regarding his mental health. The department's service plan called for the father to attend weekly therapy sessions to treat his PTSD. At separate points in his testimony the father stated that he attended therapy monthly for ten minutes, but he then testified that his previous two therapy sessions had occurred two months apart. See Adoption of Rhona, 63 Mass. App. Ct. 117, 125-126 (2005).

Finally, the father admitted that Nico's first home contained a loaded firearm on the floor of the basement. When questioned as to whether he was concerned about the possibility of a child gaining access to the firearm, the father's response was that “[t]he basement stay[ed] locked.”

The judge's determination of the father's unfitness was supported by clear and convincing evidence.⁹

The father also argues that the trial judge erred in declining to order posttermination visitation. Posttermination visitation “is grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation.” Adoption of Vito, 431 Mass. 550, 562 (2000). Absent evidence of such a bond, an order of posttermination visitation is improper because “such visitation necessarily intrudes on the ordinary prerogatives of the adoptive family.” Adoption of Greta, 431 Mass. 577, 589 (2000). “[T]he decision whether to grant postadoption visits must be left to the sound discretion of the trial judge.” Adoption of Querida, 94 Mass. App. Ct. 771, 779 (2019), quoting Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The father and Nico resided in the same home for the first two months of Nico's life. Since that time the father had participated solely in supervised visits, and after his release from incarceration the visits were monthly, for one hour at a time. Although these visits occurred without incident, there was no evidence that any bond existed between Nico and the father beyond that of an infrequent playtime companion. The evidence of a strong bond between Nico and his preadoptive mother as well as the preadoptive mother's concern over the father's ability to respect her parenting decisions supported the judge's decision to leave any posttermination contact to the discretion of the preadoptive mother. See Adoption of Ilona, 459 Mass. 53, 65-66 (2011). We discern no abuse of discretion.

Decree affirmed.

FOOTNOTES

3.   The father also testified that he and the mother were living together while she was pregnant.

4.   The mother's parental rights were terminated in a separate proceeding. She did not participate in this appeal.

5.   The father testified that he purchased the vehicle in question the day before and that a defect in the vehicle led to the accident. He admitted that the vehicle was registered to and insured by a different party in order to save money.

6.   The father had seen the firearm on prior occasions, but neither inquired into its ownership nor contacted police.

7.   The father listed his occupation on a purported lease agreement as “SSI/mechanic/Entrep[reneur],” but also testified that he was looking for work as a mechanic.

8.   This issue was further compounded at trial, when the father said that the paternal aunt was “not people” and “like an animal.”

9.   There was evidence at trial sufficient to support the inference drawn by the trial judge that the father colluded with the mother in order to prevent the department from gaining access to Nico. Even were we to accept the father's contention that the finding was clearly erroneous, however, the finding does not appear to have factored significantly in the judge's conclusion that the father was unfit.