ADOPTION OF KIRSTIN v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case involves the welfare of twin girls born in June of 2016. After trial, a Juvenile Court judge issued decrees that, inter alia, found the girls in need of care and protection, found the mother and father unfit, terminated their parental rights as to the girls, and approved a plan that the girls be placed in a permanent guardianship with the maternal grandparents (grandparents). Both the mother and father have appealed. We affirm.

Parental fitness. “While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous” (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). Having reviewed the trial record, we conclude that the judge's findings are thoughtful and balanced. The mother asserts that the judge made several errors in his fact finding, but most of these arguments engage the judge's ultimate finding regarding termination rather than the accuracy of his findings of fact. There are only two specific subsidiary findings that the mother claims are clearly erroneous.³ The first is a factual statement included in conclusion of law no. 12 that “[h]ere, by her own admission, mother has chosen partner after partner who is highly physically and emotionally abusive to her, often in the presence of the children.” Because the girls were removed from the mother's custody at birth, she is correct that the abuse perpetrated on her could not have occurred in their presence. However, it is plain from reading the just-quoted statement in the context of the findings as a whole that the judge was well aware of when the girls were removed and that the judge was referring to abuse that had occurred in the presence of the girls' older siblings (the parental rights to whom earlier had been terminated). There was no error.

The other subsidiary factual finding that the mother claims is clearly erroneous is finding no. 29, which states that she “canceled or re-scheduled multiple pre-natal visits” when she was pregnant with the girls. The mother argues that this finding is not supported by duly admitted evidence ⁴ and that it ignores evidence of many instances when the mother did attend scheduled prenatal appointments. To the extent this finding is clearly erroneous, that error is of no significant consequence.⁵ See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (affirming termination decree where errors in fact finding were “not central to the ultimate conclusion of unfitness”).

Moreover, as both parents confirmed at oral argument, neither is claiming that she or he currently is fit to parent the girls, or that the judge erred in finding that their unfitness was likely to continue for the foreseeable future.⁶ In any event, there was robust evidentiary support for such findings that rose to the level of clear and convincing evidence. Especially where neither parent challenges the judge's determination that they are unfit, little would be gained by repeating the detailed subsidiary findings that document their unfitness.⁷

Termination. Of course, “[u]nfitness does not mandate a decree of termination.” Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). The girls have lived with the grandparents since they were born, and they live with three half-siblings who also have been removed from the mother's care and custody. As the judge found with regard to each of the girls:

“The child has been in [the grandparents'] home since the beginning of her life. It is the only home the child has ever known. To all observation by the social worker, she is comfortable in the home, and interacts well with the [grandparents] and her siblings. The [grandparents] are attentive to the child's needs, and the child appears attached to the [grandparents].”

The plan put forward by the Department of Children and Families, and approved by the judge, is to continue with the grandparents serving as permanent guardians. Both parents argue that the judge did not sufficiently explain why he was terminating their parental rights where, as here, the children were not being adopted. The mother relies principally on Adoption of Chad, 94 Mass. App. Ct. 828 (2019). This case bears little resemblance to Adoption of Chad. In that case, the children's lack of prospects for long-term stability outside of the mother's care and custody, together with the nature of their ongoing relationship with their mother, rendered it appropriate for the judge to provide more explanation for why termination was warranted. Id. at 840. In the case before us, the children have a stable, long-term placement, and a limited relationship with both parents. Our cases make clear that an imminent adoption is not a prerequisite to termination. See Adoption of Nancy, 443 Mass. 512, 516-518 (2005). More generally, although unfitness does not mandate termination, it is unfair to leave a child in limbo indefinitely. Id. at 517 (“it is only fair to the children to say, at some point, ‘enough’ ”). With the passage of time, it becomes increasingly important that a child obtain a stable, safe, and nurturing home environment.

As noted, the girls are well situated in the grandparents' home where their three siblings also live. In the end, “[w]hile courts protect the rights of parents, ‘the parents’ rights are secondary to the child's best interests and ․ the proper focus of termination proceedings is the welfare of the child.'” Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching standard in mind, we discern no error in the judge's decision to terminate parental rights.

Mandated visitation. The judge ordered some posttermination visitation with the mother, but not the father. With regard to the father, the judge concluded that “that issue is best left to the custodian of the child[ren], and nothing in these findings or the order precludes contact or visitation, if deemed to be in the children's best interest.” We disagree with the father that the judge's failure to mandate posttermination visitation with the father was error. In the circumstances of this case, and in particular in the absence of any appreciable bond between the children and the father, the judge did not abuse his discretion in leaving the question to the girls' guardians. See Adoption of Ilona, 459 Mass. at 66 (upholding judge's decision to leave posttermination visitation to discretion of child's preadoptive parents where there was no reason to question they would act in child's best interests).

Decrees affirmed.

FOOTNOTES

3.   The mother also points out that there are two identical findings with regard to the same girl. It is obvious that one was intended to apply to the other twin, and that the error was typographical in nature.

4.   It appears that the judge may have relied on reports filed pursuant to G. L. c. 119, § 51A, that came in only to “set the stage.” For purposes of our review, we assume the § 51A reports were the basis of the finding.

5.   In fact, in the same factual finding, the judge expressly found that “[t]here is no evidence that the failure to appear for such [prenatal] visits physically impacted the children.”

6.   The mother nevertheless does argue that the judge erred in drawing an adverse inference regarding her absences from many scheduled trial dates and eventually striking her testimony. Our review of the record reveals that the judge was extremely indulgent in accommodating the mother's unexcused absences. The judge's patience finally was exhausted after the mother missed yet another court date, this time allegedly “relative to a restraining order being considered against her domestic partner” in a different court. It eventually came out that the mother attended that hearing not to secure an abuse prevention order against her new boyfriend, but instead to attend the hearing in support of him. In these circumstances, the judge did not abuse his discretion in drawing a negative inference. See Adoption of Talik, 92 Mass. App. Ct. 367, 371-372 (2017). Nor was it error for the judge to strike mother's testimony which -- because of her absences -- only consisted of the first one-half of her direct examination. When “ ‘a witness ․ because of illness or otherwise, is unavailable for cross-examination, ․’ rather than moving for a mistrial, ‘[t]he better practice is to move to strike the witness's testimony.’ ” Commonwealth v. Alves, 50 Mass. App. Ct. 796, 801 (2001), quoting Commonwealth v. Kirouac, 405 Mass. 557, 562-564 & n.6 (1989).

7.   We pause to note that the parents each have shown evident affection toward the girls, and the judge's findings do not negate this. “Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision was not a moral judgment or a determination that the mother and father do not love the child.” Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). “The inquiry instead is whether the parents' deficiencies or limitations ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ ” Id., quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).