ADOPTION OF RAY v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a judge of the Juvenile Court found the father unfit to parent the children, Ray and Brian, terminated the father's rights, and approved the guardianship plan of the Department of Children and Families (department), pursuant to G. L. c. 210, § 3.³ On appeal, the father contends that (1) several findings of fact essential to the finding of unfitness are clearly erroneous, (2) the judge did not properly consider the father's proposed guardianship plan, (3) the termination of his parental rights was unwarranted, and (4) the judge abused his discretion in not ordering posttermination visitation. We affirm.

Discussion. Parental rights are fundamental and cannot be terminated unless a judge determines by clear and convincing evidence that a parent is currently unfit and termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 515 (2005); Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). The trial judge's decision will remain undisturbed unless the findings of fact are clearly erroneous or there is a clear error of law or abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011).

1. Unfitness. The father argues that certain findings were clearly erroneous. The father challenges finding no. 73 (“[t]he service plan provided that he would engage in services upon release if they were not available while in jail”) because the service plan only required engagement in services upon the father's release from incarceration. The father challenges finding no. 74 (“[o]ne of the services was to engage in a batterer's evaluation and follow up treatment as needed”) because the service plan required only an evaluation. The father also challenges conclusions of law premised on these findings. Although the service plan was misstated in the two findings as the father contends, these findings “are not central to the ultimate conclusion of unfitness,” so the error is harmless.⁴ See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).

A determination of parental unfitness takes “into consideration a parent's character, temperament, conduct, and capacity to provide for a child in the same context with the child's particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). The judge “must also find that the current parental unfitness is not a temporary condition.” Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). In making this determination, the judge may properly take into account “prognostic evidence derived from an ongoing pattern of parental neglect or misconduct.” Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).

The judge concluded that the critical element of the father's unfitness was his persistent unavailability to the children due to his frequent periods of incarceration and his substance abuse. See Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001); Adoption of Nicole, 40 Mass. App. Ct. 259, 261 (1996). The father had been incarcerated numerous times in the past fourteen years for drug and firearm charges, including a three-year prison commitment ending in 2013. The father had also struggled with substance abuse issues for a long time; he relapsed in 2005, continued to abuse substances until 2010, and his most recent relapse occurred shortly before the children were removed from the home.

The father's persistent unavailability because of both his incarceration and substance use has had substantial negative effects on the children, including: causing them to miss school; leaving their illnesses untreated; requiring them to live in a home with uninhabitable conditions; and hindering their relationship with the father.⁵ The father's unavailability is also evidence of an ongoing pattern, and thus the judge properly found that the father's unfitness was not temporary. See Custody of a Minor (No. 1), 377 Mass. at 883; Adoption of Virgil, 93 Mass. App. Ct. at 301. Therefore, even without the findings regarding the father's participation in the service plans, the conclusion that the father is unfit has clear and convincing evidentiary support.

2. Termination. The father argues that the judge abused his discretion by terminating the father's parental rights where termination was not necessary to promote stability for the children. The father also contends the judge's decision lacks explicit findings on how termination serves the children's best interests and that the judge erred in not giving full consideration to the father's proposed guardianship plan.

“The standard for parental unfitness and the standard for termination are not separate and distinct, but ‘reflect different degrees of emphasis on the same factors.’ ” Adoption of Nancy, 443 Mass. at 515, quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975). “After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Nancy, supra. A termination decision involves consideration of the child's best interests and the “ability, capacity, fitness and readiness of child's parents ․ and shall also consider the plan proposed by the department or other agency litigating the petition.” Id. at 515-516, quoting G. L. c. 210, § 3 (c). While making explicit findings regarding why termination is in the best interests of the child is the better practice, “such specificity is not required.” Adoption of Nancy, supra at 516.

a. Children's best interests. The judge's conclusion that termination of the father's parental rights is in the children's best interests because they “have not been in a continuous safe and stable living environment since 2005” is well supported by the judge's findings and in his consideration of the factors enumerated in G. L. c. 210, § 3 (c).

The judge made numerous detailed factual findings regarding the father's unavailability with regard to the children and the negative repercussions his unavailability had on the children's lives. The judge did not abuse his discretion in concluding that, given the father's history, he was unlikely to become a stable physical and emotional presence in the children's life in the near future.

In contrast, as the judge's factual findings demonstrate, the children's needs were being met by the guardians. Ray regularly attends school, gets straight A's, participates in extracurricular activities, and is excelling therapeutically, educationally, and socially in his placement. Brian receives speech therapy and attends day care full time. The judge found that the children are both very bonded with the guardians and are happy and thriving in a placement that provides them with a sense of stability and permanency that was previously lacking. Thus, “it is implicit in the judge's findings that termination is in the best interest of the children, and by no means can the judge's decision be said to be clearly erroneous.” Adoption of Nancy, 443 Mass. at 516.

b. Father's proposed guardianship plan. The father's argument regarding his proposed guardianship plan is misplaced. Here, the department submitted a permanent plan for both children to be placed in the guardianship of their maternal aunt and her husband. The father did not contest that this guardianship was in the best interests of the children. What the father did contest was the termination of his parental rights, but this does not constitute an alternative plan for guardianship of the children. See Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999) (“A judge should provide an ‘even handed’ assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan” [emphasis added] ). Because the father's proposed plan merely opposed the termination of his parental rights, it cannot be said that the judge erred in not specifically addressing it.⁶

3. Posttermination visitation. The father also argues the judge abused his discretion in declining to issue a specific order for posttermination visitation, and instead leaving the decision of whether to allow visitation to the proposed guardians.

A judge has equitable authority “to order visitation between a child and a parent whose parental rights have been terminated, where such visitation is in the child's best interest.” Adoption of Ilona, 459 Mass. at 63. In determining whether visitation is in the child's best interests, the “judge should consider, among other factors, whether there is ‘a significant, existing bond with the biological parent’ whose rights have been terminated.” Id., quoting Adoption of Vito, 431 Mass. 550, 563 (2000).

Here, the evidence demonstrated that an order for visitation would not be in the children's best interests. As previously mentioned, the determination that the children's needs were being met by the guardians was well grounded in the evidence. Additionally, neither child has a significant, existing bond with the father.

Although the father was active in raising the children during the first few years of their lives, the bond between the father and the children was attenuated at the time of trial. After being removed from their home in November 2017, the children have had only one brief visit with their father at a house of correction in July 2018. During the visit, the father needed to be redirected by the social worker multiple times because the topics he spoke to the children about were inappropriate, and at the end of the visit Ray became quiet and disengaged. Ray was unsure if he wanted to visit his father again.⁷ Brian was too young to appreciate the visit, as the visit occurred through a glass partition. The children have not requested to visit the father since this visit and so the father and the children have not seen each other since July 2018.

Moreover, the guardianship plans submitted at trial do not exclude the possibility that the guardians will allow posttermination visitation with the father. Though the language in the initial guardianship plan stating that the guardians were open to visitation was replaced with language leaving visitation up to the judge's discretion, the subsequent guardianship plan does not preclude visitation.

“We therefore see no grounds on which to upend the judge's conclusion that a visitation order was not in [the children's] best interests.” Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012). There was no abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Decrees affirmed.

FOOTNOTES

3.   The judge also determined that the children's mother was unfit and issued a decree terminating her parental rights. The mother did not appeal.

4.   The father also challenges finding no. 75 (“whatever efforts [the father] may have made in the past have been unsuccessful in curbing the domestic violence between he and mother, in that it is still ongoing”), arguing that the domestic violence could not have been ongoing since he had been incarcerated for one year prior to trial. We take this finding to be supported in the sense that the pattern of domestic violence remained unabated. Additionally, the father argues that finding no. 87 is erroneous, but the father quotes instead from finding no. 88 (“[t]he social worker has not been able to verify any services completed by father while incarcerated, which spans the entire time of this case”), and argues that he was not required to complete any such services while incarcerated. We take this finding to be a reference not to the service plan but to the social worker's request that the father engage in certain services while incarcerated. This finding is supported by the record.

5.   The record is also replete with evidence of the father's acts of domestic violence against the mother. The father has perpetrated domestic violence against the mother in the presence of the children on more than one occasion, and there is one documented instance of a child being injured during an incident of domestic violence. The father's violence toward the mother further supports the judge's finding of parental unfitness. See Custody of Vaughn, 422 Mass. 590, 595-596 (1996).

6.   Thus there is no merit in the father's argument that the judge abused his discretion because he made no findings specific as to why the department's plan was better suited to meet the children's needs. As previously stated, the judge's decision consisted of a thoughtful and thorough articulation of why termination was in the best interests of the children.

7.   Although the father was offered more visits with the children, he chose not to accept the visits because, due to his misconduct in jail, his ankles and wrists would be shackled and he did not want the children to see him like that. The judge properly considered the father's decision to decline visits as among the reasons supporting the decision not to order posttermination visitation. See Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004) (postadoption visitation order not warranted where parent opted for fewer visits than those offered).