ADOPTION OF MEREDITH v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial in the Juvenile Court, the judge found the mother and the father unfit to parent the children, terminated their parental rights, and approved the Department of Children and Families' (department) plan of adoption by the preadoptive foster family. On appeal, the mother claims that the judge erred in terminating her parental rights. The father claims that the judge abused his discretion in leaving postadoption visitation frequency to the discretion of the adoptive family. We affirm.

1. Unfitness and termination of parental rights. The mother claims that the judge erred in finding the mother unfit and terminating her parental rights because no nexus existed between the mother's shortcomings and her failure to engage in services and an inability to care for her children. The mother also claims that the department failed to use reasonable efforts to reunify the mother with her children. We disagree.

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 issuing 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 weigh the evidence.” Adoption of Nancy, supra.

Here, the mother's challenges to the termination of her parental rights stem from her dissatisfaction with “the judge's assessment of the weight of the evidence and the credibility of the witnesses,” which is entitled to deference. Custody of Eleanor, 414 Mass. 795, 799 (1993). Ample evidence supports the judge's finding that the mother's mental health issues, her involvement in abusive relationships, her criminal behavior, her unstable lifestyle, and her failure to comply with services rendered her unfit.

First, the mother has significant mental health issues, of which the judge's detailed findings and conclusions establish a nexus to her lack of parenting ability. See Adoption of Greta, 431 Mass. 577, 588 (2000) (mental illness is one of constellation of factors that may establish inability to care for child). Her aggressive behaviors and inability to control her moods affected nearly every step of the case, including her relationships with department workers, visitation with the children, and the trial.³ These mental health issues also impacted the mother's ability to care for and understand her children. The judge found that Meredith's growth and progress had been disrupted in her care. See Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973). The mother also struggled to keep a clean and safe environment, and kept the children in risky situations. See Adoption of Greta, supra at 586.

An extensive history of domestic violence also existed between the mother and the father. Shortly after Meredith's birth, two reports pursuant to G. L. c. 119, § 51A (51A reports) issued due to Meredith's exposure to domestic violence. Shelter staff observed a black eye on the mother after she returned from visiting with the father. The second 51A report issued after police intervened in an altercation between the mother and the father in which the father assaulted the mother in the presence of Meredith. Although the mother claims she has cut off contact with the father, the harm to Meredith had been done. See Custody of Vaughn, 422 Mass. 590, 596 (1996) (domestic violence “destroys the security that all should enjoy in the very place and context which is supposed to be the refuge against the harshness encountered in a world of strangers”). Importantly, her failure to engage in domestic violence or other services, discussed infra, is indicative of her unfitness.⁴ See Adoption of Paula, 420 Mass. 716, 729 (1995) (failure to acknowledge psychological damage done to child by harmful environment relevant in determining unfitness). In fact, the judge explicitly found that Meredith's growth and progress had already been disrupted due to exposure to domestic violence, the mother's mental health issues, and unstable living situations.

Additionally, the judge properly considered the mother's criminal record, which included recent resisting arrest, assault and battery on a police officer, larceny, and drug charges. See Care & Protection of Frank, 409 Mass. 492, 494 (1991) (judge properly considered parent's criminal conduct as relevant to unfitness). The judge also found that the mother had continued to accumulate charges and warrants for her arrest throughout the trial. The mother's criminal conduct, along with her relationship choices with men who also have criminal records, is not stale, and demonstrates a pattern of poor judgment indicative of her capacity to care for the children. See Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (prior history has “prognostic value”).

The mother also did not engage meaningfully in services, which were designed to address her parental deficiencies and domestic abuse. See Petitions of the Dep't of Soc. Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (refusal to participate in services may be considered as evidence of unfitness). She was tasked with gaining education through parenting and domestic violence courses, engaging in therapy and parenting classes, and finding stable housing. However, the judge did not credit the mother's claim that she had completed courses or engaged in treatment. The mother was untruthful about both her participation in a parenting program and attending therapy. Furthermore, she had issues maintaining stable housing. She was evicted from the St. Mary's Shelter for failing to abide by the rules and failing to pay rent. The mother then stayed with friends or relatives intermittently, but failed to provide the department with names and addresses of those she stayed with. See id. (parent's failure to maintain stable home environment relevant to determination of unfitness).

The mother claims the judge's finding that the department made reasonable efforts to return the children to the parents is clearly erroneous, and claims the department's failure contributed to her noncompliance with service tasks. However, the mother's claim must be raised in a timely manner, which she did not do. See Adoption of Gregory, 434 Mass. 117, 127 (2001). Additionally, the mother's testimony that the department workers had assisted her on numerous occasions belies the notion that the department did not make reasonable efforts. To the contrary, the mother's own behavioral issues made it difficult to provide help. The mother was combative with department workers and refused to accept the department's help or recognize the care necessary for her children. The mother also faults the department for suspending visitation, but she seldom attended visits and oftentimes brought unannounced guests.⁵ Where the mother had ample opportunity to achieve fitness, “it is only fair to the children to say, at some point, ‘enough.’ ” Adoption of Nancy, 443 Mass. at 517.

Finally, the mother claims the judge erred in applying the factors in G. L. c. 210, § 3 (c). She is incorrect. The judge must consider the § 3 (c) factors prior to finding a parent unfit. See Adoption of Elena, 446 Mass. 24, 31 (2006). However, the judge is not required to comment on or find applicable all of the factors. See Adoption of Larry, 434 Mass. 456, 470 (2001) (proper consideration of § 3 factors even where judge commented on only four). Here, the judge properly identified and considered factors (ii) and (iii), which the detailed findings of fact support. Accordingly, the mother merely quibbles with how the judge weighed the evidence, which is in the judge's sole discretion. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). There was no abuse of discretion. Any additional claims of error are either without merit or harmless. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

2. Visitation. The father claims that the judge abused his discretion in leaving postadoption visitation frequency to the discretion of the children's adoptive parents. He claims that an order was necessary because it would provide the children with “clarity and security.” Once it is established that a parent is unfit, the decision to grant postadoption visitation is left to the discretion of the judge. See Adoption of Vito, 431 Mass. 550, 564 (2000).⁶ Upon finding that visitation is in the children's best interests,⁷ the judge must then decide if a visitation order is necessary or whether visitation may be “left to the judgment of the adoptive family.” See Adoption of Ilona, 459 Mass. 53, 63 (2011). In deciding, the judge must consider the benefit of clarity an order will provide as well as the imposition on the rights of the adoptive parents, who are “entitled to the ․ presumption they will act in the best interest of the child[ren].” Id. at 64.

The judge found that the adoptive parents are in the best position to determine the frequency and extent of contact in the children's best interests. Indeed, the adoptive parents have demonstrated they will act in the children's best interests. They engaged in the services provided and referred to them by the department, and with a trauma therapist, in order to learn how to properly care for the children. The father's claim that the adoptive parents would not do what is in the children's best interests because the adoptive parents have no knowledge about the father's history with the children is purely speculative. The judge did not abuse his discretion.

Decrees affirmed.

FOOTNOTES

3.   The mother had stormed out of a meeting with department workers about her service plans. Additionally, her behavior escalated during a scheduled visit with the children when a social worker confronted the mother on bringing an unidentified guest. Police were summoned to remove the mother, who was physically restraining the children when told she had to leave. During trial, the mother was disruptive in court and had to be reminded to behave.

4.   Another 51A report was filed against the mother, who was pregnant at the time, alleging that the mother and her boyfriend were smoking marijuana in the presence of Meredith. The report also detailed concerns about strange men coming and going from the mother's apartment, drinking and leaving liquor bottles on the ground outside.

5.   Because the visits were suspended and not terminated, no court order was necessary under the department's regulations. See 110 Code Mass. Regs. § 7.128 (2011).

6.   The father does not challenge the judge's finding of his unfitness or the termination of his parental rights.

7.   Here, the judge found that a “significant relationship” exists between the father and the children and determined that visitation was in the children's best interests.