ADOPTION OF ISLA v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a one-day trial at which neither the mother nor the father appeared, a Juvenile Court judge found Isla's parents unfit and Isla to be a child in need of care and protection. Isla was committed to the permanent custody of the Department of Children and Families (department), and decrees entered terminating the parents' rights and dispensing with the need for their consent to Isla's adoption. Only the father appeals. He claims that the ultimate finding of unfitness is not supported by clear and convincing evidence because the judge relied on clearly erroneous findings. We affirm.

Background. The witnesses at trial were Isla's ongoing social worker, adoption social worker, and one of her foster parents.³ On the basis of the testimony and the agreed-upon documentary exhibits, the judge made seventy-nine findings of fact and thirty-two conclusions of law. Contrary to the father's claim on appeal, we conclude that the judge's findings “are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence.” Adoption of Don, 435 Mass. 158, 165 (2001). We summarize the pertinent findings.

The mother did not receive prenatal care before giving birth to Isla in August 2016. The father knew the mother was pregnant and not receiving prenatal care, but he did not appear concerned. Isla was born with a heart condition and was subsequently diagnosed with “failure to thrive.” The department removed Isla from the parents when she was three days old and placed her in a foster home that is now her preadoptive home. Isla is a shy child. She is comfortable in her foster home and feels safe in the care of her foster parents, who wish to adopt her. Although Isla overcame her diagnosis of failure to thrive, the cardiac condition remains. There is no evidence that the father has an understanding of, or a willingness or ability to meet, Isla's special medical needs.

The father lacks employment and stable housing. He abuses substances, is a gang member, and has a significant adult criminal history that reflects a pattern of ongoing, repeated, and serious violent behavior. In 2008, the father was convicted of assault and battery and two counts of assault and battery by means of a dangerous weapon, based on two separate incidents. In January 2018, he was convicted of procuring alcohol for a minor, disorderly conduct, and assault and battery by means of a dangerous weapon based on evidence that he beat the mother and stabbed his nephew when the nephew tried to intervene. One month later, on February 8, 2018, the father was convicted of negligent operation of a motor vehicle and operating while under the influence of intoxicating liquor (OUI). The father was placed on probation as a result of these convictions and was in violation of his probation at the time of trial. The father has been incarcerated repeatedly and cannot provide a safe and stable environment for Isla. His behavior creates a significant likelihood of future harm to her.

The father expressed a desire to reunify with Isla. To this end, he participated in some of the services required by the department's family action plan, including visiting with Isla. Those visits went well. In or around August 31, 2017, however, the ongoing social worker informed the father that visits would be moved to another office because she had learned from a member of the Fall River police department's gang unit that there were open warrants for the father's arrest. The social worker expressed concern for the safety of Isla and herself because “[t]he open warrants were based on violent crimes and gun-related crimes.” She told the father that visits would occur at the new location, and at times when a police officer was present. The father did not visit Isla after this conversation. There is no evidence that Isla, who was two and one-half years old at the time of trial, is bonded to the father.

Ultimately, the judge concluded that the father does not have the wherewithal to support Isla. The father's rejection of rehabilitative services makes it unlikely that he will develop the capacity to care for Isla in the foreseeable future; along with his other “grievous shortcomings,” this fact would place Isla at risk should she be placed in the father's care. The judge considered each of the factors set forth at G. L. c. 210, § 3 (c), in deciding whether to terminate the father's parental rights, and found applicable factors (ii), (iii), (vi)-(viii), (x), (xii), and (xiv). She approved of the department's plan for Isla to be adopted by the foster family after finding it to be in Isla's best interests, and ordered entry of the decree from which the father now appeals.

Standard of review. “To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's best interests will be served by terminating the legal relation between parent and child” (quotation and citation omitted). Adoption of Luc, 484 Mass. 139, 144 (2020). See Adoption of Ilona, 459 Mass. 53, 59 (2011). “We give substantial deference to the judge's findings of fact and decision, and will reverse only ‘where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.’ ” Adoption of Luc, supra, quoting Adoption of Ilona, supra.

“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” (quotation and citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Discussion. The father claims that the judge clearly erred in finding that he was a gang member, a career criminal, a drug abuser, an indifferent parent, and that he engaged in domestic violence, because the only evidence in support of those findings consisted of inadmissible hearsay and opinions, contained in reports prepared by the department pursuant to G. L. c. 119, §§ 51A and 51B. The Supreme Judicial Court recently clarified the rules governing the admissibility of hearsay evidence in such reports. See Adoption of Luc, 484 Mass. at 149. “Under what we will refer to as the Luc criteria, first- and second-level hearsay contained within [department] reports and official [department] records is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the document and is available for cross-examination, should the party challenging the evidence request to do so.” Id. at 153. “[S]tatements of primary fact may include words of summary description,” but not “judgment or opinion evidence that is not ‘rationally based on the witness's perception’ or that fails to otherwise satisfy the criteria for admissible lay opinion.” Id. at 153 n.34, quoting Mass. G. Evid. § 701. The Luc criteria do not apply to evidence that satisfies “another, preexisting hearsay exception.” Id. at 154.

The ongoing social worker documented the information she learned about the father's gang involvement in a report she submitted to the court with her supervisor's written approval. The father's counsel did not object to the report's admission, ask that it be redacted, or subpoena the people who had provided the information.⁴ See Adoption of Luc, 484 Mass. at 153-154. The father's counsel was able to and did cross-examine the social worker regarding the basis for the statements in her report, which was admissible pursuant to G. L. c. 119, § 21A, Adoption of Luc, supra at 153 n.33, for its full probative value. See Adoption of Kimberly, 414 Mass. 526, 534-535 (1993).

The information in the report provides ample evidence to support the judge's findings when taken together with the ongoing worker's testimony regarding her conversations with the father. The father told the social worker that prison officials found gang paraphernalia in his bag. He also confirmed that his Facebook page contained several posts “[in] which he cites Gang Up with gun emoji's, and a lot of marijuana use and drinking.” The judge was not required to credit the father's claim, as recounted by the social worker, that he was not in a gang but merely “in the wrong place at the wrong time.” See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984) (it is within judge's discretion to evaluate credibility of witnesses and make findings of fact accordingly). To the extent the father disputes the evidence regarding his statements, we note that he could have questioned the source of that evidence by appearing for trial and testifying.

The social worker testified that the father “openly admitted to me that he smokes marijuana every day” and “drinks quite often and drinks with the intent to get intoxicated.” In February 2018, the father was convicted of OUI. In January 2018, the father was convicted of procuring alcohol for a minor. In 2008 and 2018, the father was convicted of offenses including assault and battery by means of a dangerous weapon. In August 2017, there were open warrants for the father's arrest based on his alleged commission of violent and gun-related crimes.⁵ At the time of trial, the father was in violation of his probation.⁶ The judge was entitled to conclude from this evidence that the father abused drugs and was a career criminal.

The father claims that the judge erred when she relied on the mother's statements, as testified to by the social worker, to find that the father engaged in domestic violence. We need not decide whether the mother's statements were admissible under a hearsay exception because they are not necessary to the judge's finding. There is no dispute that the father was convicted in 2018 of committing an assault and battery on the mother by means of a dangerous weapon. Finally, the judge's finding that the father was an indifferent parent is supported by evidence that he did not visit with Isla for one and one-half years before trial and did not comply with tasks designed to enable him to gain custody.

Many of the father's arguments with respect to the subsidiary findings “amount to no more than a disagreement with the judge's weighing of the evidence and credibility determinations regarding witnesses.” Adoption of Don, 435 Mass. at 166. “We see no basis for disturbing the judge's view of the evidence,” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997), which, we conclude, amply supports the determination of unfitness. The father had been absent for more than one-half of Isla's life by the time of trial, failed to keep a stable home environment, and refused “to maintain service plans, visitation schedules, and counseling programs designed to strengthen the family unit.” Petitions of Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). The father was repeatedly incarcerated, and was at risk of future incarceration because he was then in violation of probation. See Adoption of Nicole, 40 Mass. App. Ct. 259, 262 (1996) (current imprisonment and history of persistent criminal recidivism support finding that father could not act as fit parent at time of trial “or within any relevant future period”). And, contrary to the father's claim, the judge did not ignore evidence favorable to the father. The judge found that the father engaged in some of the services required by his family action plan but had “not internalized any lessons of positive parenting and responsible fatherhood.” This unchallenged finding is entitled to “substantial deference,” Adoption of Peggy, 436 Mass. 690, 702, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002), and further supports the judge's ultimate conclusion. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (inability to demonstrate any benefit derived from services relevant to finding of unfitness).

Finally, since birth, Isla “has been the daughter of her [foster] parents and knows them as mother and father.” Adoption of Nicole, 40 Mass. App. Ct. at 262. Isla has formed strong, positive bonds with the foster parents, and has thrived in their care. While not dispositive, this evidence “has weight in the ultimate balance.” Id. at 262-263. Having carefully reviewed the entire record in this case, we conclude “there was ample support, under the clear and convincing evidence standard, for the judge's decree terminating the [father]'s parental rights to [Isla].” Adoption of Luc, 484 Mass. at 148.

Decree affirmed.

FOOTNOTES

3.   The judge drew a negative inference from the father's failure to appear and testify.

4.   The Fall River police officer and the department's emergency response worker were both named in the report.

5.   The father was found not guilty of these charges.

6.   Although the judge struck the ongoing social worker's testimony regarding her conversations with the father's probation officer, this finding is supported by the father's Court Activity Record Information (CARI) report, which was admitted in evidence without objection.