ADOPTION OF MABEL v. << (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Mabel (born in 2014) and Ann (born in 2018) and the father of Ann appeal from decrees of the Juvenile Court adjudicating them unfit and terminating their parental rights.³ The mother also appeals from the judge's decision not to order posttermination visitation. We discern no error, and affirm.

Peter,⁴ the father's child from a previous relationship, was placed with the father and mother in September 2019. On December 11, 2019, Peter, then two years old, was seriously injured while in the mother's care. The Department of Children and Families (DCF) removed Peter, as well as Mabel and Ann, from the mother's and father's care on that date.

1. Termination of the mother's parental rights. The mother argues that the judge improperly relied on inadmissible hearsay, failed to consider all relevant facts, and wrongly declined to order posttermination visitation with respect to Mabel and Ann.

To terminate parental rights, a judge must find, by clear and convincing evidence, that the parent is unfit and that termination is in the best interests of the child. See Adoption of Luc, 484 Mass. 139, 144 (2020). We give substantial deference to the judge's determination and “reverse only ‘where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.’ ” Id., quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). “A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Adoption of Posy, 94 Mass. App. Ct. 748, 751 (2019), quoting Adoption of Abby, 62 Mass. App. Ct. 816, 824 (2005). Once a parent's rights have been terminated, a judge has discretion to order visitation if it is in the best interests of the child. See Adoption of Ilona, supra at 63.

The judge did not err. The mother's counsel did not object to admission of the G. L. c. 119, § 51B, investigation report or the hospital report at trial. Any objection is therefore waived, and the judge was permitted to consider the “full probative force” of the evidence. Adoption of Kimberly, 414 Mass. 526, 534-535 (1993) (failure to object to proffered evidence at trial results in waiver of objection); Adoption of Carla, 416 Mass. 510, 515 (1993).

The evidence of the mother's unfitness was clear and convincing. The record shows that the mother had been involved with DCF regarding the care of her children in the past. The judge found that the mother abused Peter, an immediate family member of Ann, resulting in severe injuries to Peter. See G. L. c. 210, § 3 (c) (ii); Custody of Michel, 28 Mass. App. Ct. 260, 262 (1990). When DCF removed Mabel and Ann following Peter's abuse, the home was in a poor and unsanitary condition: garbage and food were strewn around the apartment, dog feces covered the floor inside a pet enclosure, debris was piled in the bedrooms, and clothes filled the crib. See Care & Protection of Three Minors, 392 Mass. 704, 713 (1984) (cleanliness of home is appropriate factor for consideration of fitness). The mother is currently awaiting trial on charges relating to abuse of Peter and is under a no-contact order with respect to Mabel and Ann.⁵ Based on these considerations, the judge did not err in concluding that the mother was unfit.⁶

Nor did the judge abuse her discretion in finding that a visitation order would not serve the best interests of the children. The mother is currently prohibited from contacting Mabel or Ann, and neither Mabel nor Ann has had any contact with the mother since they were removed from her care on December 11, 2019.

2. Termination of the father's parental rights. The father argues that the judge relied on erroneous subsidiary findings and stale evidence to determine that the father was unfit to parent Ann.⁷

“[S]ubsidiary findings must be proved by a fair preponderance of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 (1997). The evidence supported the judge's findings. The judge could find that the father was not capable of properly protecting the children and caring for their safety. Here, the father worked full-time and knew that the mother was overwhelmed and that she had mishandled Peter on prior occasions. Though the father told the mother to leave the home immediately after the abuse of Peter on December 11, 2019, the father testified at trial that he did not know whether Peter's injuries were accidental or inflicted by the mother, despite the medical evidence (and the father's apparent belief) that the injuries were inflicted. The judge could consider the father's unwillingness to acknowledge that the mother intentionally injured Peter in evaluating his fitness to safely parent Ann in the future. In this regard, the judge could also consider that, years earlier, the father's former wife had also physically abused the father's older children.⁸ Even if the father was in fact unaware that the mother intentionally inflicted Peter's injuries he could fairly be held responsible for failing to recognize the risk posed by leaving Peter in the mother's care, particularly in light of the fact that the father was substantially dependent on others to care for his children while he worked.⁹

The judge also rightly considered the father's failure to comply with his action plan. The father's contention that the assigned services in his action plan -- namely, the requirements to complete an intimate partner abuse program and to engage in individual counseling -- were inappropriate fails, since the judge was entitled to consider the father's history of abuse prevention orders and DCF investigations. See Adoption of Don, 435 Mass. 158, 166 (2001). Nor is the father's claim that he was unable to engage in the required services due to the challenges of the COVID-19 pandemic persuasive where the judge found that the father did not use available in-person services either before the pandemic or when they later resumed. Similarly, the father stopped attending visitation with Ann even after in-person visitation had resumed, testifying that he did not want to continue visiting her if he could only visit once a month.

When these findings are considered with other evidence of unfitness, such as the poor state of the home, the father's criminal record, and the father's lack of cooperation with DCF, the judge did not err in finding the father unfit and finding termination of his parental rights to be in the best interests of Ann.

Decrees affirmed.

FOOTNOTES

3.   Mabel's father did not appeal from the termination of his parental rights, and he is not involved in this appeal. Our reference to “father” in this decision is to Ann's father.

4.   A pseudonym. Peter's case is not before us.

5.   While the mother has engaged in some services prescribed by DCF, she has been both unwilling and unable to complete her action plan designed to improve her parental shortcomings.

6.   The mother argues that the judge failed to consider her respective relationships with Mabel and Ann. On the contrary, the judge conducted a factor-by-factor analysis pursuant to G. L. c. 210, § 3 (c), as to Mabel and Ann.

7.   The father challenges the judge's findings that the father “lack[ed] insight and the ability to protect his children from future contact with [the mother]”; that a full year passed in which the father failed to engage in services assigned by DCF in the action plan; that those services were appropriate; and that the father did not request alternative methods of visitation during the COVID-19 pandemic.

8.   While stale information cannot be the basis for a finding of unfitness, a judge may consider past patterns of parental misconduct to determine future fitness. See Adoption of Carla, 416 Mass. at 517. Here, the judge properly considered the father's criminal history and prior involvement with DCF.

9.   We note that, before the mother injured Peter but after the father was aware the mother was overwhelmed and had mishandled him, both parents declined a referral to daycare for the children.