ADOPTION OF FAY v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial in the Juvenile Court, the judge found the mother unfit to parent the children, terminated her parental rights, and approved the plan of the Department of Children and Families (department) for adoption by the children's paternal grandmother.³ On appeal, the mother claims that the judge abused his discretion by terminating her parental rights and by placing the children with the paternal grandmother.⁴ We affirm.

1. Unfitness and termination of parental rights. The mother claims that the judge erred in terminating her parental rights because she had made progress in areas where the department had concerns. The mother asserts that this is a situation analogous to Adoption of Flora, 60 Mass. App. Ct. 334, 342 (2004), where “the child's best interest may be served without a decree of termination.” The mother's paramount claim is that the children should be placed with the maternal grandmother instead of the paternal grandmother. However, there was ample evidence to support the judge's conclusions that termination and approval of the department's adoption plan were in the children's best interests.

A decision to terminate parental rights calls for a two-step analysis. See G. L. c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). “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). “In determining whether the best interests of the children will be served by a decree dispensing with the need for consent, a ‘court shall consider the ability, capacity, fitness and readiness of the child's parents ․ and shall also consider the plan proposed by the department or other agency initiating the petition.’ ” Adoption of Nancy, supra, quoting G. L. c. 210, § 3 (c). “We review the judge's findings with substantial deference, recognizing [the judge's] discretion to evaluate a witness's credibility and to weight the evidence.” Id.

The mother does not contest the judge's findings of fact. The children were removed from the mother's custody in November 2016 due to her positive drug screen and substance abuse issues. The mother has a history of Oxycodone, Percocet, cocaine, and Fentanyl abuse, among other drugs. See Adoption of Katharine, 42 Mass. App. Ct. 25, 33-34 (1997) (drug abuse relevant if it contributes to child's abuse or neglect). The judge also found that the mother had time to address her mental health prior to trial, but failed to do so.⁵ See Adoption of Frederick, 405 Mass. 1, 9 (1989) (mental disorder relevant if it affects parental responsibilities).

The mother also has an extensive history of domestic violence with the father. During an argument when the mother was pregnant with Fay, the father threatened the mother with a gun. The mother obtained an abuse prevention order against the father, but failed to extend it. After resuming her relationship with the father, another incident occurred where the father kicked in the door and then fled when the police were called. The mother did not obtain an abuse prevention order after this incident and did not provide a reason why she failed to do so. During its investigation, the department had continuing concerns about domestic violence.⁶ Although the mother now claims that she has ended her relationship with the father, the judge permissibly concluded that the mother failed to appreciate the seriousness of domestic violence and the role it played in the lives of her children. See Custody of Vaughn, 422 Mass. 590, 595 (1996).

The judge also based his determination of unfitness on the mother's failure to comply with her service plan tasks. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005). The mother was tasked with meeting with the department social worker regularly, completing a substance abuse evaluation, participating in treatment, and attending all visits with children. However, the mother did not meet with the social worker consistently, or at all since June 2018. She did not help facilitate home visits and did not tell the social worker when she moved. Nor did the mother complete a substance abuse evaluation or complete a substance abuse program. Importantly, the mother's contact with the children was sporadic, which is relevant to unfitness. See Petitions of Dep't of Soc. Services to Dispense with Consent to Adoption, 399 Mass. 279, 288-289 (1987).⁷ Furthermore, the judge was “warranted in measuring probabilities rather than possibilities” when determining unfitness. Adoption of Nicole, 40 Mass. App. Ct. 259, 261-262 (1996). There was no abuse of discretion or clear error of law. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

2. Placement. The touchstone in determining placement is the children's best interests. See Adoption of Hugo, 428 Mass at 225. The judge must carefully consider the plans proposed by the department and the parent, although neither is entitled to presumptive weight. Id. at 226. The judge carefully considered the plans here, and we are not persuaded by the mother's argument that his assessment was not “even-handed.” Id. at 226 n.8. The mother does not contest the judge's subsidiary findings, which detailed the maternal grandmother's history of domestic violence and her criminal record. Further, the department had received a G. L. c. 119, § 51A, report alleging neglect of one of the children's half-siblings in the maternal grandmother's care.⁸ The maternal grandmother had also demonstrated an inability to converse civilly with department employees.⁹

The mother claims that the judge erred in separating the children from their four older half-siblings, contrary to the court's decision in Adoption of Hugo, 428 Mass. at 230-231. However, a sibling relationship does not hold presumptive weight, but is “one factor, albeit an important one, that a judge should consider in custody cases.” Id. at 230. The children had never lived with their half-siblings, and no evidence presented depicted a significant relationship between them. In light of the best interests of the child standard, we cannot say that the judge abused his discretion in not placing the children with their half-siblings, especially where the judge found the maternal grandmother to be an unsuitable placement.

In contrast, the children have lived with the paternal grandmother since May 2018 and are affectionate towards her. Each child has their own bedroom, and the paternal grandmother takes the children to their medical appointments. The judge found that the paternal grandmother recognized that the father had made bad choices, and she would not allow the father to see the children without the department's approval. To that end, the mother merely disagrees with how the judge weighed the evidence. See L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014). There was also no abuse of discretion in approving the department's plan for adoption of the children by the paternal grandmother.¹⁰

Decrees affirmed.

FOOTNOTES

3.   The father's parental rights were also terminated, but he has not appealed.

4.   The mother also claims that her due process rights were violated because some of the maternal grandmother's testimony remains missing. This claim is waived. The judge issued an order inviting the parties to submit proposed testimony, but the mother did not do so. The mother also filed her appellate brief prematurely and argued this issue while a stay for the transcript reconstruction was still pending. In any event, the judge determined that “a few minutes at most” of the maternal grandmother's testimony was not recorded, and the mother makes no showing of an appellate issue that cannot be adjudicated without the missing testimony. Accordingly, there is no due process problem. See Commonwealth v. Harris, 376 Mass. 74, 78 (1978).

5.   The mother suffers from depression, anxiety, bipolar disorder, and posttraumatic stress disorder.

6.   At trial, the mother testified that she was not engaged in any domestic violence services and claimed that she would not know where to find such a service. However, the judge did not credit that testimony.

7.   The mother also failed to attend the last five days of trial, and the judge permissibly drew a negative inference. See Custody of Two Minors, 396 Mass. 610, 616 (1986).

8.   The maternal grandmother is the guardian of the mother's four older children; they are the half-siblings of Fay and Andrew. The § 51A report alleged that one of the half-siblings was not up to date on their shots.

9.   At oral argument the mother made much of the judge's two references to the importance of a foster parent's ability to maintain effective communications with the department, and to the maternal grandmother's shortcomings in this regard. The mother argued that this issue was irrelevant to the maternal grandmother's suitability to adopt the children. But the mother was proposing that the maternal grandmother serve as the children's guardian, not that she adopt them. Putting aside the mistaken terminology, we are not persuaded that the maternal grandmother's difficulties in communicating effectively with the department were irrelevant in weighing the mother's proposed plan.

10.   Any additional claims of error are either without merit or harmless. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).